Tag Archives: DOJ

Chronicle of an assult on the Constitution

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It seems that whenever Americans feel insecure the first actions are to jettison long held Constitutional protections that were created only by revolution and bloodshed. The latest such action, of course, was what happened after the 9/11 attacks, 10 years ago next week.

David Shipler, writing in The American Prospect, outlines chapter and verse of this sad time for the US Constitution. The entire article is worth a read.  The litany of civil liberties abuses is long and should be sufficient to illuminate the very real risks to freedom that fear has generated even in the US.

Here is an excerpt:

… the Patriot Act of 2001 emasculated an array of privacy statutes that had been enacted in the last quarter of the 20th century. In 2008, Congress further amended one of those laws, the Foreign Intelligence Surveillance Act (FISA) to legalize the extensive surveillance that Bush had clandestinely authorized during the weeks following the attacks. At the time, while legislators and civil-liberties groups were arguing over the Patriot Act’s changes to FISA, Bush was evading FISA by ordering the National Security Agency to monitor Internet and phone communications without judicial oversight. Bush’s program sparked outrage in Congress when The New York Times reported it in 2005, but in the 2008 FISA Amendments Act, Congress “gave the government even broader authority to intercept international communications” than the president had given himself, according to a joint report by the inspectors general of the CIA, the National Security Agency, the Justice and Defense departments, and the Office of the Director of National Intelligence.

The inspectors general did not credit the program with many successes. While it “had value in some counterterrorism investigations,” they found, “it generally played a limited role in the FBI’s overall counterterrorism efforts.” Most officials interviewed for the report “had difficulty citing specific instances” when the monitoring had contributed to counterterrorism. A senior CIA official told the investigators that the surveillance “was rarely the sole basis for an intelligence success, but that it frequently played a supporting role.” Other CIA officials discounted the intelligence as “vague or without context.”

Political quote of the day

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In a free country, you should never feel comfortable being searched. This is not the country I was born in. We’re a fascist nation now.

– Jesse Ventura, former wrestler and governor of Minnesota, speaking to a DOJ attorney following a court hearing. Ventura has filed a case challenging the legality of TSA groping procedures.

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Update on the Thomas Drake case

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In an earlier post, I pointed to the Thomas Drake case in which the federal government was accusing Mr. Drake under the Espionage Act for blowing the whistle on what he saw as monumental waste of resources at the NSA. Then the prosecution’s case fell apart shortly before trial.

And now, the judge has delivered his ruling:

Judge Richard D. Bennett of the Federal District Court praised the former National Security Agency official, Thomas A. Drake, for his exemplary record of public service before giving him a mild scolding for improperly providing information on alleged agency mismanagement to The Baltimore Sun.

But Judge Bennett reserved his strongest condemnation for the Justice Department, saying the two and a half years that elapsed between the search of Mr. Drake’s home and his indictment in 2010 was far too long.

The visibly angry judge said that Mr. Drake had been through “four years of hell” and that the dragging out of the investigation — and then the dropping of the major charges on the eve of trial — was “unconscionable.”

“It doesn’t pass the smell test,” he said.

Federal government over-reach, as usual in cases with the slightest connection to the “war” on terror.

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Obama administration case collapses

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The Obama administration has filed (and appears to be planning to file) more cases against government whistle blowers than the George W. Bush administration. It is part of the Obama administration’s consistent attack on civil liberties and hardened governmental secrecy.

Well, one of these cases, against Thomas Drake, formerly of the NSA. I noted this case in an earlier post.  The DOJ had charged Drake with violating the Espionage Act of 1917 because of his efforts to disclose waste, fraud and abuse at the NSA.  The case has collapsed. Drake agreed to plead to a single misdemeanor, and prosecutors have said they would not object to no jail time. It is a scandal that he and his family were subject to a multi-year federal investigation for simply trying to bring problems to light.  Jane Mayer, staff writer for The New Yorker talks on NPR about the collapsed case here.

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Your tax dollars at work

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Jane Mayer, writing the current issue of The New Yorker, tells an amazing story about a former NSA employee who is charged under the Espionage Act for blowing the whistle on waste, fraud and abuse inside the NSA. The article also describes the scope and illegality of the country’s warrantless wiretap program against Americans. I strongly recommend you read the entire article.

In December, 2005, the N.S.A.’s culture of secrecy was breached by a stunning leak. [The accused man was not involved in the story.] The Times reporters James Risen and Eric Lichtblau revealed that the N.S.A. was running a warrantless wiretapping program inside the United States. The paper’s editors had held onto the scoop for more than a year, weighing the propriety of publishing it. According to Bill Keller, the executive editor of the Times, President Bush pleaded with the paper’s editors to not publish the story; Keller told New York that “the basic message was: You’ll have blood on your hands.” After the paper defied the Administration, Bush called the leak “a shameful act.” At his command, federal agents launched a criminal investigation to identify the paper’s source.

The Times story shocked the country. Democrats, including then Senator Obama, denounced the program as illegal and demanded congressional hearings. A FISA court judge resigned in protest. In March, 2006, Mark Klein, a retired A.T. & T. employee, gave a sworn statement to the Electronic Frontier Foundation, which was filing a lawsuit against the company, describing a secret room in San Francisco where powerful Narus computers appeared to be sorting and copying all of the telecom’s Internet traffic—both foreign and domestic. A high-capacity fibre-optic cable seemed to be forwarding this data to a centralized location, which, Klein surmised, was N.S.A. headquarters. Soon, USA Today reported that A.T. & T., Verizon, and BellSouth had secretly opened their electronic records to the government, in violation of communications laws. Legal experts said that each instance of spying without a warrant was a serious crime, and that there appeared to be hundreds of thousands of infractions.

President Bush and Administration officials assured the American public that the surveillance program was legal, although new legislation was eventually required to bring it more in line with the law. They insisted that the traditional method of getting warrants was too slow for the urgent threats posed by international terrorism. And they implied that the only domestic surveillance taking place involved tapping phone calls in which one speaker was outside the U.S.

Drake [the accused former employee] says of Bush Administration officials, “They were lying through their teeth. They had chosen to go an illegal route, and it wasn’t because they had no other choice.” He also believed that the Administration was covering up the full extent of the program. “The phone calls were the tip of the iceberg. The really sensitive stuff was the data mining.” He says, “I was faced with a crisis of conscience. What do I do—remain silent, and complicit, or go to the press?”

Drake faces 35 years in prison if convicted. Yet, the masterminds of an illegal and unconstitutional domestic spying program have gone unprosecuted.

Mark Klein, the former A.T. & T. employee who exposed the telecom-company wiretaps [see the first related link below], is also dismayed by the Drake case. “I think it’s outrageous,” he says. “The Bush people have been let off. The telecom companies got immunity. The only people Obama has prosecuted are the whistle-blowers.”

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Obama wants copyright enforcement

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The Obama White House, which cannot seem to be able to convict any of the bankers that almost took down our entire economy, has issued a 20 page proposal seeking to greatly ratchet up law enforcement activity in alleged intellectual property/copyright infringement.

A couple of highlights from a summary written by Declan McCullagh:

  • Under federal law, wiretaps may only be conducted in investigations of serious crimes, a list that was expanded by the 2001 Patriot Act to include offenses such as material support of terrorism and use of weapons of mass destruction. The administration is proposing to add copyright and trademark infringement, arguing that move “would assist U.S. law enforcement agencies to effectively investigate those offenses.”
  • Under the 1998 Digital Millennium Copyright Act, it’s generally illegal to distribute hardware or software–such as the DVD-decoding software Handbrake available from a server in France–that can “circumvent” copy protection technology. The administration is proposing that if Homeland Security seizes circumvention devices, it be permitted to “inform rightholders,” “provide samples of such devices,” and assist “them in bringing civil actions.”

This type of enforcement is unnecessary and is nothing but a huge subsidy to the entertainment industry who thereby avoids having to fund their own IP protection efforts.  Outrageous pandering to special interests.

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Taibbi: Why no jail?

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Matt Taibbi’s latest article questions the lack of prosecutions of Wall Street bankers following the collapse. Other than Bernie Madoff, it seems clear that the regulatory/enforcement system is not working. Taibbi notes that the enforcers leave the regulators or the US Attorneys Office after a few years and then move to the law firms and banks they previously regulated. Does this lead to lax enforcement? Why does no one prohibit the revolving door?

But the real fireworks came when Khuzami, the SEC’s director of enforcement, talked about a new “cooperation initiative” the agency had recently unveiled, in which executives are being offered incentives to report fraud they have witnessed or committed. From now on, Khuzami said, when corporate lawyers like the ones he was addressing want to know if their Wall Street clients are going to be charged by the Justice Department before deciding whether to come forward, all they have to do is ask the SEC.

“We are going to try to get those individuals answers,” Khuzami announced, as to “whether or not there is criminal interest in the case — so that defense counsel can have as much information as possible in deciding whether or not to choose to sign up their client.”

Aguirre, listening in the crowd, couldn’t believe Khuzami’s brazenness. The SEC’s enforcement director was saying, in essence, that firms like Goldman Sachs and AIG and Lehman Brothers will henceforth be able to get the SEC to act as a middleman between them and the Justice Department, negotiating fines as a way out of jail time. Khuzami was basically outlining a four-step system for banks and their executives to buy their way out of prison. “First, the SEC and Wall Street player make an agreement on a fine that the player will pay to the SEC,” Aguirre says. “Then the Justice Department commits itself to pass, so that the player knows he’s ‘safe.’ Third, the player pays the SEC — and fourth, the player gets a pass from the Justice Department.”

When I ask a former federal prosecutor about the propriety of a sitting SEC director of enforcement talking out loud about helping corporate defendants “get answers” regarding the status of their criminal cases, he initially doesn’t believe it. Then I send him a transcript of the comment. “I am very, very surprised by Khuzami’s statement, which does seem to me to be contrary to past practice — and not a good thing,” the former prosecutor says.

Earlier this month, when Sen. Chuck Grassley found out about Khuzami’s comments, he sent the SEC a letter noting that the agency’s own enforcement manual not only prohibits such “answer getting,” it even bars the SEC from giving defendants the Justice Department’s phone number. “Should counsel or the individual ask which criminal authorities they should contact,” the manual reads, “staff should decline to answer, unless authorized by the relevant criminal authorities.” Both the SEC and the Justice Department deny there is anything improper in their new policy of cooperation. “We collaborate with the SEC, but they do not consult with us when they resolve their cases,” Assistant Attorney General Lanny Breuer assured Congress in January. “They do that independently.”

FBI: Give us back our secret tracker

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Fascinating story of what happened when a man in California discovered a tracking device had been secretly planted on his car.

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Another horrible idea

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A website blocked in Bahrain
Image via Wikipedia

Several politicians have announced a new proposed bill called the Combating Online Infringement and Counterfeits Act (COICA). It would create two blacklists of Internet domains: one created by the courts and a second created by government bureaucrats. Domains added to the lists would be blocked by US ISPs.

COICA creates two blacklists of Internet domain names. Courts could add sites to the first list; the Attorney General would have control over the second. Internet service providers and others (everyone from Comcast to PayPal to Google AdSense) would be required to block any domains on the first list. They would also receive immunity (and presumably the good favor of the government) if they block domains on the second list.

The lists are for sites “dedicated to infringing activity,” but that’s defined very broadly — any domain name where counterfeit goods or copyrighted material are “central to the activity of the Internet site” could be blocked.

This is Internet censorship, pure and simple. Welcome to China.

You can sign a petition in opposition to this governmental censorship here.

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Obama = Bush Light, part 2

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Once again, President Obama is adopting positions inconsistent with his campaign promises and consistent with his predecessor.  His Department of Justice is taking a position that the US government is immune to all claims of warrantless wiretapping, a position even more damaging to privacy rights that Bush’s.

The DOJ claims that the U.S. Government is completely immune from litigation for illegal spying — that the Government can never be sued for surveillance that violates federal privacy statutes.

Previously, the Bush Administration has argued that the U.S. possesses “sovereign immunity” from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government’s ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

NSA’s warrantless wiretapping ruled illegal (updated)

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Finally. A federal judge, Vaughn R. Walker, has ruled that George Bush’s warrantless wiretapping program was in fact illegal. This despite the efforts of the Obama administration to fight the result.

In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers who were representing it in 2004. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said that the government was liable to pay them damages.

More info from the EFF here.

Update: Click here for the full text of the decision.

Reality TV and reality (updated x2)

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It seems that various incidents involving reality TV have recently been causing news. On the first was the entire balloon boy incident, when an aspiring reality TV “actor” sought publicity by faking a purported accidental balloon flight by his son. This triggered a large emergency rescue effort, putting rescuers of a non-existent threatened child in danger and costing money.

Now, an aspiring reality TV show couple successfully crashed a White House official state dinner.  The couple shook President Obama’s hand while the President stood immediately next to the Prime Minister of India. Pictures of the couple at the event are shown on the wife’s Facebook page.  Needless to say, this was a huge failure by the Secret Service, but it is also an outrage that, apparently for the purpose of entertainment, the couple in question intentionally breached Presidential security.

It is important, in this case, that the couple be prosecuted fully.  Further, anyone who knowingly aided the breach should also be charged if possible. Reality TV “personalities” cannot be above the law. Also, it appears that Bravo (aka NBC) may also have been involved.

Mr. and Mrs. Salahi, who are known in the area to have a taste for polo and fine wine, are aspiring reality-show celebrities. For months, the couple have been trailed by camera crews with the cable channel Bravo, as it prepared for a new show, “The Real Housewives of D.C.”

Seemingly distancing itself from the Salahis’ actions, Bravo said Friday that it would not comment about “ongoing investigations.” Earlier, the channel said that while its cameras were filming the Salahis before the dinner, producers were told by the couple that they had been invited to it.

Update: More here, from the New York Times’ television critic:

Bravo has not yet said it would drop the dashing blond Mrs. Salahi; Larry King has already booked her for his show. The Washington social climbers had a plan, even if it was lunatic and dangerous. So did the father who pretended that his son was trapped in a runaway balloon, and in much the same reality-show fevered way, so did Jon and Kate Gosselin when they ripped their marriage apart on camera.

Richard and Mayumi Heene, the parents of Falcon, the so-called Balloon Boy, were not as lucky as the Salahis. They briefly held cable news in their thrall last month, but after the local Colorado sheriff concluded that the 50-mile balloon chase was a fake, Mr. Heene pleaded guilty to a felony charge of falsely influencing the authorities and faces jail time. But even that may turn out to be worth it to the Heenes, amateur storm chasers who appeared twice on ABC’s reality show “Wife Swap.”

Update 2: Now they have cancelled their Larry King appearance and are taking bids for their first TV interview. Shame on whoever pays them a dime.

Terrorism prosecutions: a report from the DOJ

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For those concerned about the likelihood of success in the upcoming 9/11 prosecutions in New York, you should understand that the DOJ believes it can be successful.  For example, the United States Department of Justice, in a June, 2006, report, outlined its overwhelming success in prosecuting terrorism suspects in the United States courts. I would encourage reading at least the Executive Summary section of the report, which includes this:

Our international terrorism and terrorism-related cases draw on the full range of criminal charges available in the federal criminal code, according to the facts and circumstances of each case. The material support statutes have been a cornerstone of our success in terrorism financing cases as well as in a wide range of other cases addressing all types of support to terrorism. Our effective use of these statutes has allowed us to intervene at the early stages of terrorist planning, before a terrorist act occurs. We also have effectively used other terrorism and weapons of mass destruction statutes, and have drawn on more general statutes, such as immigration fraud and false statement offenses, where they apply in terrorism investigations. These statutes of more general application have been so important to our disruption efforts that U.S. Attorneys’ Offices around the country have undertaken numerous initiatives to expand their use of these statutes to further our prevention strategy.

Our successful prosecutions have produced cooperating defendants who have, in turn, provided intelligence information to investigators, prosecutors and national security officials, leading to further investigation, disruption and prosecution. This is one of a number of classic criminal enforcement approaches discussed below. Cooperation with our foreign partners has led to counterterrorism successes in foreign courts as well as in our own, and we discuss some of these cases in which such cooperation has been critical to success.

As for those concerned about the defendants making a spectacle out of the trial, and using it as a platform, I would ask why you believe that the statements from such individuals are more powerful than a presentation of the evidence against them in open court? Is our country (or our system of criminal justice) so fragile that it cannot stand strongly against the words of killers?

Further, compare the results obtained in terrorism cases in the courts versus the record of military convictions as of November 2008.

Although some have defended the commissions as an efficient form of military justice, their track record in prosecuting terrorism cases has been abysmal. Since their establishment, the commissions have concluded only three cases, two after trials and one based on a guilty plea. During the same time period, the federal courts have tried more than 107 terrorism cases, obtaining 145 convictions. Several defendants have been sentenced to life in prison.

Don’t bogart that joint, dude (updated)

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The Obama administration has announced that Federal prosecutors will no longer go after medical marijuana users or distributors. Finally, some action to reflect the will of the voters.

People who use marijuana for medical purposes and those who distribute it should not face federal prosecution, provided they act according to state law, the Justice Department said on Monday in a directive with far-reaching political and legal implications.

Meanwhile, the City of Los Angeles is looking to begin a big crackdown on distributors.

Update: And yesterday, a judge ruled that the City of Los Angeles could not impose a moratorium on new marijuana shops. And here is the full-text of the DOJ Memorandum.

CIA heads seek to stop torture inquiry

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Several former directors of the CIA have asked the Obama administration to drop the Department of Justice inquiry into detainee torture. Why?  They give three reasons: (1) charges should not be brought based on a change in administration, (2) continuing the investigation would help Al Qaeda, and (3) the results of the investigation may cause foreign intelligence agencies to distrust the US to keep secrets.

Each of these reasons is no reason at all. In terms of the new administration, it seems pretty clear to me that the prior administration’s basis for approving torture was incorrect and immoral. One reason administrations change in a democracy is to allow faulty policies to be changed. In this case, given the extreme secrecy of the Bush Administration, digging in to find the true story of what happened is central to helping the country avoid such vile actions in the future.

How it would help Al Qaeda to apply American justice to American citizens is beyond me. And even if prosecutions to help Al Qaeda, restoring the country to a sound moral footing is worth the cause. Any damage done can be laid at the feet of those who approved the American use of torture.

Finally, I am more interested in the US citizens being able to trust our government follows the law even if that means some disclosure clandestine interactions with foreign governments (who presumably have their own torture problems to worry about, at least if they are governments to whom we moved detainees for such purpose).

One approach that might help mitigate the issues raised by the former CIA directors would be to re-focus the investigation away from the front line interrogators and dig in to the real issues as to who devise, and ordered, the use of torture at the higher levels. In some respects, the front line operations are less important going forward that what sort of flawed decision-making allows the entire mess to happen.