Feds try to 86 "I Spy" defense
By Al Lewis, Staff Columnist
Friday, October 5, 2007
Near as I can tell, former Qwest chief executive Joe Nacchio
lived a double life as a secret-agent man.
He and his lawyers continue to meet in top-secret rooms in
Washington, D.C., as they prepare their appeal of a criminal
conviction and fend off a civil lawsuit from the Securities and
They're kind of like the guys on that 1960s TV spy spoof "Get
Smart," according to Craig Shaffer, the U.S. magistrate judge
overseeing the SEC case against Nacchio, who has been convicted
on 19 counts of illegal insider stock trading.
"I personally went to Washington to meet with ... an attorney
from the Department of Justice," Nacchio lawyer Jeffrey Speiser
told Shaffer at a hearing last month. "We met in a skiff."
"You met in a (what)?" Shaffer asked.
"A skiff," Speiser repeated.
"A skiff is usually a rowboat," Shaffer said. "The Potomac's
nice, but I ... wouldn't conference in a skiff on the Potomac
"No," Speiser said. "A skiff ... is a ... sealed room which
cannot be penetrated by any electronic equipment."
"Sort of like in 'Get Smart'?" Shaffer asked. "A 'Cone of
Silence' kind of thing?"
"Kind of like that," Speiser said. "Whatever you say stays in
the room, literally."
On the TV show, Maxwell Smart, a.k.a. Agent 86, usually
communicated with Chief using this "Cone of Silence" that
Shaffer referenced. It was a transparent bubble that never
really worked, leading to ridiculous shouting, slapstick antics
and gross miscommunications.
Another recurring gag on "Get Smart" was a rotary-dial telephone
concealed in Smart's shoe. It required dimes and often rang
loudly, blowing Smart's cover.
The court transcript does not record any discussions about the
telecommunications technology in Nacchio's shoe.
Nor does it indicate what sort of secrets Nacchio wants to use
in his defense against the SEC allegations. But apparently,
Nacchio hopes to argue that he was expecting top-secret
government contracts that would have helped Qwest meet its
earnings projections -- potentially a key point in an
Government lawyers, however, told Shaffer they plan to invoke
state-secrets privilege, which would limit his defense.
Prosecutors pulled a similar move during Nacchio's criminal
trial, and the "I Spy" defense was never presented.
The Denver Post has asked the federal court where Nacchio was
tried to provide transcripts of closed-door hearings where the
classified elements of Nacchio's criminal defense were
The government responded by saying it would provide those
transcripts -- redacting all of the classified information -- by
this past Wednesday.
I have yet to see these transcripts. I can't even get a decent
explanation as to why. So I guess I'll have to send our lawyer
back to federal court to file more paper.
Both judges, Edward Nottingham in the criminal trial and Shaffer
in the SEC trial, have said this classified information is
potentially relevant to Nacchio's defense, and yet Nacchio's
lawyers have not been able to present it.
"The information that the defendants have targeted is
classified," attorney Lisa Olson, who represents government
agencies that don't want to be identified, told Shaffer. "It is
subject to various statutory and perhaps governmental privileges
under the National Security Act."
Olson would have played well on "Get Smart" herself. The
information she is so vociferously protecting is at least six
years old if it pertains to Nacchio's 2001 stock trades. It's
possibly even 10 years old.
How relevant a national-security secret could it really be?
Congress' Energy and Commerce Committee recently sent letters to
three major telecommunications companies -- AT&T, Verizon and
Qwest. Lawmakers want to know the extent to which the National
Security Agency has been demanding telephone and Internet
records to spy on private citizens.
Nacchio reportedly was the only major telecommunications
executive who just said no when the agency demanded records of
private citizens after 9/11.
He may not be the most likable CEO, but at least he didn't hand
over our information without a required court order. And now,
the only place he can talk about it is in a skiff? Maybe the
committee should subpoena him.
Our government has done a fine job prosecuting Nacchio and
giving its lawyers awards for a job well done. But did several
government agencies hold down his defense while prosecutors
We might know the answer to that question if the government
would release the requested transcripts from Nacchio's criminal
proceedings as promised. But my guess is that some bureaucrats
have their heads stuck in a cone of silence.
There's a chance that this may all be interesting to the U.S.
Court of Appeals.
Government lawyers lose on appeal?
How's that for comedy?
Al Lewis' column appears Sundays, Tuesdays and Fridays.
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denverpostbloghouse.com/lewis, 303-954-1967 or