Kenneth L. Wainstein, Esq., of the Cadwalader white-shoe law firm, has done more than merely author the the by-now notorious UMiami “prudential concerns” report of February 2013 commissioned by NCAA President Mark Emmert. [see my prior posts, “I Repeat: NCAA “Enforcement Review” by Cadwalader Found NO Violations”, , and ‘The Fatuous NCAA Enforcement Review Report: Julie Roe Lash Got Bagged to Save Emmert and Remy or ‘NCAA/Miami Prudential Concerns vs. NCAA/UConn Knowing Violation of Federal Statutory Mandates; also my post on a broader issue: “Tressel-Paterno-Freeh-Peppers, a 1924 Constitution, and Raggedy-Ann Doll Compliance” on why NCAA enforcement is a sham.]
The Wainstein Miami report found that NCAA staffers violated some airy, never-cited “prudential concerns” during their investigation of earlier allegations of serious NCAA bylaw violations by UMiami. As I pointed out in those posts, Wainstein clearly figured it all out: Emmert had, the previous autumn, jumped the due-process gun by excoriating staff – in the absence of evidence of wrongdoing. If Wainstein had been honest (as Louis Freeh was at Penn State), he’d have said that Emmert jumped the gun. Instead, Wainstein tap-danced his way through, wearing his “prudential concern” tu-tu, and diverted everyone’s attention. His “white-shoe tap-dance,”gave Emmert cover, and I’m betting Emmert called someone at UNC to tell them: “Hire Emmert, he’ll give you the ‘ole corporate cover.
Wainstein knows about corporate cover. He served as former General Counsel and as Chief of Staff to the FBI Director, and also as a assistant attorney general for national security between 2006 and 2008, all in the Bush administration, and has had a central role in establishing the now-controversial authority of the FISA court which has, it is fair to conclude, rubber-stamped almost every request from the National Security Administration since 2007.
Much of this controversy, and the NSA’s breathtakingly broad interpretation of its’ powers, has it’s genesis in Wainstein’s legal opinions seven years ago, when the jury-rigged old FISA procedure was cast in stone as a direct result of Wainstein’s work. Wainstein’s role is described below in this July 4, 2013 Washington Post story [also here is Wainstein’s FISA opinion]:
“Guardian also disclosed a November 2007 memorandum prepared for then-Attorney General Michael Mukasey by Kenneth Wainstein, who was in charge of the Justice Department’s National Security Division. On behalf of the NSA, Wainstein requested that the attorney general approve a powerful form of computer-assisted analysis of U.S. persons’ metadata, including their phone and e-mail records, as well as Internet Protocol addresses of individual computers. This information was obtained “by various methods, including pursuant to the Foreign Intelligence Surveillance Act,” the memo states.”
“NSA has in its databases a large amount of communications metadata associated with persons in the United States,” the memo states.”
“In the memo, Wainstein argued, as other government officials have over the years and continue today, that metadata is not content, and therefore is not subject to protections under the Fourth Amendment. ” [Emphasis added]
Refer, in fact, to Wainstein’s 2013 testimony (at 1:45) about the FISA court, and his wooden notion that, because our well-established fourth amendment case law allows a prosecutor to obtain an ex parte warrant as regards a case against one person (which means the prosecutor shows up on his own, doesn’t even have to tell the other party, and gives his version as to why the judge ought to approve the wiretap or warrant) means that the current NSA practice of obtaining ex parte FISA court warrants to allow tapping/review/collation of data or metadata pertaining to millions or billions of people all at one time is entirely appropriate.
Stop and think a minute: might a fair, logical mind suggest that, with so many people’s data involved, such an ex parte procedure is highly suspect and, in light of the fact that millions or billions of people’s right are being trammeled, those masses ought be heard when the warrant or intrusion is requested – ex parte – by a self-serving governmental agency?
To what extent did Wainstein’s past (and current) support of the NSA meta-surveillance require Wainstein to hide in the bushes for higher-ups, to satisfy his own careerist motives, before protecting the interests of the average American citizen?
Maybe Wainstein will pull a Louis Freeh, and come out swinging with an honest UNC review. To do that, he’ll have to break free of his past pattern.