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What the Mar-a-Lago Warrant Tells Us
At first read the newly-released Mar-a-Lago search warrant reveals little, with about half its pages redacted. It does suggest two possible narratives going forward, one with severe political implications: the National Archives sicced the FBI on Candidate Trump.
The warrant does say the search was based on “a significant number of civilian witnesses” to Trump’s actions and the Twitterverse is already alive speculating who that might have been (Ivanka or a maid?) This will generate a thousand conspiracy theories as to who first told the FBI about the classified documents stored at Mar-a-Lago but in the end adds little to key questions. The warrant also includes a single line saying prosecutors requesting to search Trump’s residence had “probable cause to believe that evidence of obstruction will be found” without explaining what was potentially obstructed and how. The warrant makes clear it does not matter if the documents seized were classified, or had been declassified.
The real meat of the warrant is redacted, some 14 out of its 32 pages. We get the beginning and end but not the important middle. The warrant reiterates the sections of law of concern are 18 U.S.C. §§ 793, “Gathering, transmitting or losing defense information… with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation,” part of the infamous Espionage Act of 1917. Also included is 18 U.S.C. §§ 2071, “Concealment, removal, or mutilation generally of an record” and 18 U.S.C. §§ 1519, the “anti-shredding provision” which imposes criminal penalties on anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede or obstruct an investigation.” This section of law as a possible violation is what the line had “probable cause to believe that evidence of obstruction will be found” likely refers to.
The warrant gives us the laws in question, and a slightly fuller accounting of what was found at Mar-a-Lago, including previously when Trump cooperatively allowed DOJ to remove items from his home. The warrant tell us 15 boxes taken voluntarily in May contain NDI, National Defense Information. The documents lean toward the higher end of the classified spectrum. Sub-designators include Sensitive Compartmented Information (SCI), classified information derived from intelligence sources, methods, or analytical processes, Special Intelligence (SI) meaning technical and intelligence information derived from the monitoring of foreign communications signals, and HUMINT Control System, or HCS, meaning intelligence information derived from clandestine human sources.
Redacted is the in between, the narrative portion of the warrant which links the laws potentially violated with the evidence found/to be looked for. This is especially important for the obstruction charge, which may be as simple as Trump refusing voluntary access to materials stored at Mar-a-Lago, a conclusion which would also explain the need to obtain a warrant.
Based on the visible portions of the warrant, two possible scenarios exist.
One scenario is Trump takes documents with him from the White House; the National Archives requests those documents returned; Trump voluntarily returns some of them in May and refuses to give up any more documents; DOJ obtains a search warrant under the above criminal codes to seize the remainder of the documents through the involuntary search in August. Trump is “guilty” of not returning his classified library books and the DOJ used the search warrant to go pick them up. The argument would be whether the documents in question qualify as “presidential records” and thus could have stayed under Trump’s control, or “government records” which should have been under control of the National Archives. Comments by Trump and one of his attorneys suggest this may be the view Trumpworld is taking of all this.
DOJ seems to be taking a different view, given the unreturned documents appear to be highly classified, and that is to criminalize Trump’s actions. The very first line of the warrant states “The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records. The investigation began as a result of a referral the United States National Archives and Records Administration (NARA.)”
Under this scenario, Trump knowingly takes classified documents with him from the White House; the National Archives requests those documents returned; Trump voluntarily returns some of them in May but refuses to return the remainder; DOJ obtains a search warrant under the above criminal codes to seize the documents through the involuntary search in August both to regain possession to safeguard the material against future misuse by Trump and as evidence of his crime of illegal possession; DOJ indicts Trump, criminalizing his possession of the documents instead of seeing that as a legitimate disagreement over what qualifies as a presidential record. Obstruction charges come from the lack of cooperation in August as shown in May, necessitating the warrant and full-on field search. None of this scenario requires the documents to be classified, or is affected if Trump declassified any of them. This would be consistent with a footnote on page 21 of the warrant stating “18 U.S.C. 793(e) does not use the term classified information but rather criminalizes the unlawful retention of information relating to the national defense.” (emphasis added) In short, the Archives sicced the FBI on Trump.
Even if either of the above narratives is substantively true, this is not a slam dunk case that will end any potential Trump candidacy. In the former Trump and NARA will argue, likely via motions in front of some court, over which documents were the president’s to control and which were not, a discussion which will break down into technical chatter.
The latter scenario will generate smoke as it is a criminal matter and potential source of indictment for Trump, but absent some sort of unlikely proven criminal intent (Trump planned to give the documents to the Russians!) and in the face of claims it is all banana republics-style politicization of the judicial, will generate little fire. It is unlikely the Trump journey ends over a document dispute with the National Archives.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Horowitz Report Shows the FBI Tried to Influence the 2016 Election
Justice Department Inspector General Michael Horowitz’ report, which shows the Democrats, media, and FBI lied about not interfering in an election, will be a historian’s marker for how a decent nation fooled itself into self-harm. Forget about foreigners influencing our elections; it was us.The Horowitz Report is being played by the media for its conclusion, that the FBI’s intel op run against the Trump campaign was not politically motivated and thus “legal.” That covers one page of the 476 page document, fits with the Democratic-MSM narrative Trump is a liar, and ignores the rest. “The rest” of course is a detailed description of America’s domestic intelligence apparatus, aided by its overseas intelligence apparatus, and assisted by its Five Eyes allies’ intelligence apparatuses, releasing a full-spectrum spying campaign against a presidential candidate to influence an election and when that failed, delegitimize a president.
We learn from the Horowitz Report it was an Australian diplomat Alexander Downer, a man with ties to his own nation’s intel services and the Clinton Foundation, who was set up with a meeting with a Trump staffer, creating the necessary first bit of info to set the plan in motion. We find the FBI exaggerating, falsifying, and committing wicked sins of omission to buffalo the Foreign Intelligence Surveillance Act (FISA) courts into approving electronic surveillance on Team Trump to overtly or inadvertently monitor the communications of Paul Manafort, Michael Cohen, Jared Kushner, Michael Flynn, Jeff Sessions, Steve Bannon, Rick Gates, Trump transition staffers, and likely Trump himself. Trump officials were also monitored by British GCHQ and the information shared with their NSA partners, a piece of all this still not fully public.
We learn the FBI greedily consumed the Steele Dossier, opposition “research” bought by the Clinton campaign to smear Trump with allegations of sex parties, pee tapes, and, most notoriously, claims he was a Russian plant, a Manchurian Candidate, owned by Russian intelligence through a combination of treats (land deals in Moscow) and threats (kompromat over Trump’s evil sexual appetites.) The Horowitz Report makes clear the FBI knew the Dossier was bunk, hid that conclusion from the FISA court, and purposefully lied to the court claiming the Dossier was backed up by investigative news reports which themselves were secretly based on the Dossier. The FBI knew Steele had created a classic intel officer’s information loop, secretly becoming his own corroborating source, and gleefully looked the other way because it supported their own goals.
Horowitz contradicts media claims the Dossier was a small part of the case presented to the FISA court. He finds that it was “central and essential.” And it was garbage: “factual assertions relied upon in the first [FISA] application targeting Carter Page were inaccurate, incomplete, or unsupported by appropriate documentation, based upon information the FBI had in its possession at the time the application was filed,” reads the Report. One of Steele’s primary sources, tracked down by FBI, said Steele misreported several of the most troubling allegations of potential Trump blackmail and Trump campaign collusion.
We find human dangles, what Lisa Page referred to as “our OCONUS lures” (OCONUS is spook-speak for Outside CONtinetal US) in the form of a shady Maltese academic, Joseph Mifsud, with deep ties himself to multiple U.S. intel agencies and the Pentagon albeit not the FBI per se, paying Trump staffers for nothing speeches to buy access to them. We find a female FBI undercover agent inserted into social situations with a Trump staffer (pillow talk is always a spy’s best friend.) It becomes clear the FBI sought to manufacture a foreign counterintelligence threat to import into the United States as an excuse to unleash its surveillance tools against the Trump campaign.
We learn Trump staffer Carter Page, while under FBI surveillance to discover Trump’s ties to Russia, was actually working for the CIA in Russia. The FBI was told this repeatedly, yet it never reported it to the FISA court approving the secret investigation of Page as a Russian spy. An FBI lawyer even doctored an email to hide the fact Page was working for the Agency and not the Russians; it was that weak a case. The CIA rated Page well as a source, and dismissed the Steele Dossier itself as an “Internet Rumor.” Had that information been available to the FISA court, it is hard to imagine they would have approved the warrant against Page, or further considered the Dossier absent additional information the FBI of course did not have.
The Horowitz Report goes on to find “at least 17 significant errors or omissions” concerning FBI efforts to obtain FISA warrants against Page alone. California Congressman Devin Nunes raised these points almost two years ago, in a memo the MSM widely discredited, even though we now know it was basically true and profoundly prescient. Adam Schiff’s rebuttal memo turns out to have been garbage.
Much has been made by the MSM about these “mistakes,” in that the Horowitz Report does not conclude they were indices of political bias. Maybe. But if the mistakes were just that, accidents or sloppiness, you’d expect at least some of them to favor Trump’s side. In fact, all of the mistakes favored the FBI’s poor case and that chips away at the idea there was no motivating element behind them.
Page was a nobody with nothing, but the FBI needed him. Horowitz explains agents “believed at the time they approached the decision point on a second FISA renewal that, based upon the evidence already collected, Carter Page was a distraction in the investigation, not a key player in the Trump campaign, and was not critical to the overarching investigation.” They renewed the warrants anyway, three times, largely due to their value under the “two hop” rule. The FBI can extend surveillance two hops from its target; so if Carter Page called Michael Flynn who called Trump, all of those calls are legally open to monitoring. Page was a handy little bug.
Carter Page was never charged with any crime. He was a small nobody blown into a big deal by the fictional Steele Dossier, an excuse for the FBI to electronically surveil the Trump campaign.
When Trump was elected, the take from all this muckery, focused on the uber-lie that Trump was dirty with Russia, was leaked to the press most likely by James Comey and John Brennan in January 2017 (not covered in the Horowitz Report), and a process which is still ongoing tying the president to allegiance to a foreign power began. “With Trump, All Roads Lead to Moscow,” writes the New York Times even today, long after both the Mueller Report and now again the Horowitz Report say unambiguously that is not true. “Monday’s congressional hearing and the inspector general’s report tell a similar story,” bleats the Times, when in fact the long read of both says precisely the opposite.
Michael Horowitz, the author of this current report, should be a familiar name. In January 2017 he opened his probe into the FBI’s Clinton email investigation. In a damning passage, that 568 page report found it “extraordinary and insubordinate for Comey to conceal his intentions from his superiors… for the admitted purpose of preventing them from telling him not to make the statement, and to instruct his subordinates in the FBI to do the same. By departing so clearly and dramatically from FBI and department norms, the decisions negatively impacted the perception of the FBI and the department as fair administrators of justice.”
Horowitz’ Clinton report also criticizes FBI agents and illicit lovers Peter Strzok and Lisa Page, who exchanged texts disparaging Trump before moving from the Clinton email to the Russiagate investigation. Those texts “brought discredit” to the FBI and sowed public doubt. They included one exchange reading, “Page: “[Trump’s] not ever going to become president, right? Strzok: “No. No he’s not. We’ll stop it.”
If after reading the Horowitz Report you want to focus only on its page one statement the FBI did not act illegally, you must in turn focus yourself on what is “legal” in America. If you want to follow the headlines saying Trump was proven wrong when he claimed his campaign was spied upon, you really do need to look up that word in a dictionary and frankly compare it to the tangle of surveillance, foreign government agents, undercover operatives, pay offs, and more Horowitz details.
You may accept the opening lines of the Horowitz Report that the FBI did not act with political bias over the course of its investigation. Or you can find a clearer understanding in Attorney General William Barr’s summary of the Report “that the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions.” You will need to reconcile the grotesque use the information the FBI gathered was put to after Trump was elected, the fuel for the Mueller investigation and years’ worth of media picking at the Russian scab.
To claim none of this is politically biased, you must walk away from the details of the Horowitz report, particularly the gross abuses of FISA, happy that what it says is how democracy works in America today. You must be willing to search and replace every instance of “Trump” with “Elizabeth Warren” a couple of years from now, and be happy with that. You have to see every instance in that report where the FBI orders something done as OK if it was Trump issuing the same words. At that point you can say there is no bias.
The current Horowitz Report, read alongside his previous report on how the FBI played inside the 2016 election vis-a-vis Clinton, should leave no doubt the FBI tried to influence the election of a president in 2016 and then delegitimize Trump when he won. It wasn’t the Russians, it was us. And if you walk away concluding the FBI fumbled things, acted amateurishly, failed to do what some claim they set out to do, well, just wait until next time.
On a personal note, if any of this is news to you, you may want to ask why you are learning about it now. This blog has consistently been one of the few outlets which exposed the Steele Dossier as part of an information op nearly since it was unveiled, and which has explained how the FISA court was manipulated, and which has steadily raised the question of political interference in our last election by the American intelligence services; follow the links above to read some of our past reporting, going back to the election.
I claim no magic powers or inside information; to any of us who have been in or on the fringes of intelligence work what was obvious just from the publicly available information was, well, obvious. Despite what you think you know about spying from TV and movies, most of the work is done the same way every time, using techniques that go back to ancient times. Honey works better than vinegar, so bribes trump pee tapes. There was no Moscow hotel-land deal is the biggest “tell” here nothing else was true. Be careful, because your enemies will tell you what you want to believe. Make people your friends by paying them. Dangling a cool blonde is always a good gambit. Important agents are run by important intelligence officers. If Putin was pulling Trump’s strings, in real life a little man like Carter Page would not know it.
If you are reading any of this for the first time, or know people who are reading bastardized versions of it for the first time in MSM sources, you might ask yourself why those places went along with Steele, et al. Their journalists are no dumber or smarter than me. They do write with a different agenda, however. Keep that in mind as we flip the calendar page to 2020.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Was It All Just Pilot Error? IG Report Says No Political Bias Found in FBI Investigation of Clinton Email
What everyone will agree on: Comey and the FBI interfered with the election. What everyone will not agree on: Everything else.
It will be easy to miss the most important point amid the partisan bleating over what the Department of Justice Office of Inspector General report on the FBI’s Clinton email investigation really means. While each side will find the evidence they want to find that the FBI, with James Comey as Director, helped/hurt Hillary Clinton’s and/or maybe Donald Trump’s campaign, the real takeaway is this: the FBI influenced the election of a president.
In January 2017 the Inspector General (IG) for the Department of Justice, Michael Horowitz (who previously worked on the 2012 study of the Obama-era gun operation Fast and Furious), opened his probe into the FBI’s Clinton email investigation, including statements by Comey made about that investigation at critical moments in the presidential campaign. Horowitz’s focus was always to be on how the FBI did its work, not to re-litigate the case against Clinton. Nor did the IG plan to look into anything Russiagate.
In a damning passage, the 568 page report found it “extraordinary and insubordinate for Comey to conceal his intentions from his superiors… for the admitted purpose of preventing them from telling him not to make the statement, and to instruct his subordinates in the FBI to do the same… by departing so clearly and dramatically from FBI and department norms, the decisions negatively impacted the perception of the FBI and the department as fair administrators of justice.” Comey’s drafting of a press release announcing no prosecution for Clinton, written before the full investigation was even completed, is given a light touch though in the report, along the lines of roughly preparing for the conclusion based on early indications. We also learned Comey ironically used private email for government business.
Attorney General Loretta Lynch herself is criticized for not being more sensitive to public perceptions when she agreed to meet privately with Bill Clinton aboard an airplane as the FBI investigation into Hillary unfolded. “Lynch’s failure to recognize the appearance problem… and to take action to cut the visit short was an error in judgment.” Her statements later about her decision not to recuse further “created public confusion and didn’t adequately address the situation.”
The report also criticizes in depth FBI agents Peter Strzok and Lisa Page, who exchanged texts disparaging Trump, and then moved from the Clinton email to the Russiagate investigations. Those texts “brought discredit” to the FBI and sowed public doubt about the investigation, including one exchange that read “Lisa Page: “[Trump’s] not ever going to become president, right? Rights?! Peter Strzok: “No. No he’s not. We’ll stop it.” Another Strzok document stated “we know foreign actors obtained access” to some Clinton emails, including at least one secret message.”
Page and Strzok also discussed cutting back the number of investigators present for Clinton’s in-person interview in light of the fact she might soon be president, their new boss. Someone identified only as Agent One went on to refer to Clinton as “the President” and in a message told a friend “I’m with her.” The FBI also allowed Clinton’s lawyers to attend the interview, even though they were also considered witnesses to a potential set of crimes committed by Clinton.
Page and Strzok were among five FBI officials the report found expressed hostility toward Trump before his election as president, and who have been referred to the FBI’s internal disciple system for possible action. The report otherwise makes only wishy-washy recommendations, things like “adopting a policy addressing the appropriateness of Department employees discussing the conduct of uncharged individuals in public statements.”
Attorney General Jeff Sessions indicated he will review the report for possible prosecutions. The IG previously referred former FBI Deputy Director Andrew McCabe for possible prosecution after an earlier report found McCabe leaked to the press and later “lacked candor” when speaking to Comey and federal investigators. Sessions fired McCabe him in March 2018.
But at the end of it all, the details really don’t matter, because the report found no political bias, no purposeful efforts or strategy to sway the election. In aviation disaster terms, it was all pilot error. An accident of sorts, as opposed to the pilot boarding drunk, but the plane crashed and killed 300 people anyway.
The report is already being welcomed by Democrats — who feel Comey had shattered Clinton’s chances of winning the election by reopening the email probe just days before the election — and by Republicans, who feel Comey let Clinton off easy. Many are now celebrating it was only gross incompetence, unethical behavior, serial bad judgment, and insubordination that led the FBI to help determine the election. No Constitutional crisis. A lot of details in those 568 pages to yet fully parse, but at first glance there is not much worthy of prosecution (though IG Horowitz will testify in front of Congress on Monday and may reveal more information.) Each side will point to the IG’s conclusion of “no bias” to shut down calls for this or that in a tsunami of blaming each other. In that sense, the IG just poured a can of jet fuel onto the fires of the 2016 election and walked away to watch it burn.
One concrete outcome, however, is to weaken a line of prosecution Special Counsel Robert Mueller may be pursuing. To say Comey acted incompetently during the election, albeit in ways that appear to have helped Trump, does not add to the argument he is otherwise competent, on Russia or any other topic. An FBI director willing to play in politics with an investigation is simply that, an FBI director who has abandoned the core principles of his job and can’t be trusted. Defend him because it was all good natured bad judgment doesn’t add anything healthy to the question of competency.
Mueller has just seen a key witness degraded — any defense lawyer will characterize his testimony as tainted now — and a possible example of obstruction weakened. As justification for firing Comey, the White House initially pointed to an earlier Justice Department memo criticizing Comey for many of the same actions now highlighted by the IG (adding later concerns about the handling of Russiagate.) The report thus underscores one of the stated reasons for Comey’s dismissal. Firing someone for incompetence isn’t obstructing justice; it’s the boss’ job.
It will be too easy, however, to miss the most important conclusion of the report: there is no longer a way to claim America’s internal intelligence agency, the FBI, did not play a role in the 2016 election. There is only to argue which side they favored and whether they meddled via clumsiness, as a coordinated action, or as a chaotic cluster of competing pro- and anti- Clinton/Trump factions inside the Bureau. And that’s the tally before anyone brings up the FBI’s use of a human informant inside the Trump campaign, the FBI’s use of both FISA warrants and pseudo-legal warrantless surveillance against key members of the Trump team, the FBI’s use of opposition research from the Steele Dossier, and so on.
The only good news is the Deep State seems less competent than we originally feared. But even if one fully accepts the IG report’s conclusion all this — and there’s a lot — was not intentional, at a minimum it makes clear to those watching ahead of 2020 what tools are available and the impact they can have. While we continue to look for the bad guy abroad, we have already met the enemy and he is us.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Parallel Construction: Unconstitutional NSA Searches Deny Due Process
The NSA sits at the nexus of violations of both the Fourth and Fifth Amendments with a legal dodge called Parallel Construction.
Parallel Construction is a technique used by law enforcement to hide the fact that evidence in a criminal case originated with the NSA. In its simplest form, the NSA collects information showing say a Mr. Anderson committed a crime. This happens most commonly in drug cases. The conclusive information is passed to the Drug Enforcement Agency (DEA), who then works backwards from the conclusion to create an independent, “legal” body of evidence to use against Mr. Anderson.
Example: an NSA email intercept shows our Mr. Anderson received a Fedex package with drugs, which he hid under his bed. The DEA takes this info, and gets a search warrant for the Fedex data, which leads them to Mr. Anderson’s apartment. A new legal warrant authorizes a search, and agents “find” the drugs under the bed right where the NSA said they were in the first place.
Some may call this little more than illegal evidence laundering.
Some Constitutional Background
The Fourth Amendment to the Constitution protects Americans against unreasonable and unwarranted searches. The Supreme Court has generally held that searches of, for example, someone’s home, require a warrant. That warrant can be issued only after law enforcement shows they have “probable cause.” That in turn has been defined by the Court to require a high standard of proof, “a fair probability that contraband or evidence of a crime will be found in a particular place.” The NSA pulling information out of the cyberspace ether bypasses and thus violates the Fourth Amendment.
The NSA violations of the Fourth Amendment enable further DEA and other law enforcement violations of the Fifth Amendment, specifically the critical due process clause. The concept of due process dates back to the 13th century Magna Carta.
Specifically, the use of information obtained illegally and whose ultimate source is concealed from the accused violates procedural due process. This is the requirement that before any government actions to take away life, liberty or possessions, the persons affected have the right to defend themselves, to understand the evidence against them, and to question and call witnesses in rebuttal, one’s “day in court.” In short, procedural due process aims to protect individuals from the coercive power of government by ensuring that adjudication processes are fair and open.
DEA is blunt in a document released via FOIA as to how conveniently parallel construction violates these rights:
Our friends in the military and intelligence community never have to prove anything to the general public. They can act upon classified information without ever divulging their sources or methods to anyway [sic] outside their community.
Why Do This to Americans?
With exceptions, courts have held that evidence obtained illegally cannot be used in trial. So why bother to fight for an exception when, using NSA data surreptitiously, evidence can subsequently be obtained cleanly under a warrant, albeit a warrant issued by a court kept ignorant of the source of the underlying information. Another reason to use parallel construction is to hide the NSA’s role. Apart from the broader goal of not disclosing to the American people what their government is doing, blurring the trail back to the NSA gets around any courtroom attempts that require such data to be shared with the defense. And of course the defense can’t ask for something it does not know exists. Lastly, if defendants do not know the ultimate source of the information used to convict them, they cannot know to ask to review potential sources of exculpatory evidence– information that could reveal entrapment, mistakes or biased witnesses.
Needless to say, using information obtained already pre-packaged from the NSA makes DEA’s and other law enforcement agencies’ jobs much easier. They have to do little work on their own to gather the data needed to track down Americans they seek to prosecute. It’s all in the bag.
DEA as the Nexus
DEA seems to be the center of the NSA distribution network, as the program originally started as a way to bust foreign drug dealers before it metastasized into the currrent tool for broadly evading the Bill of Rights.
How widespread domestically is the practice of parallel construction? No one knows. It is known that the unit of the DEA that distributes the NSA information is called the Special Operations Division (SOD.) It partners with two dozen other agencies, including the FBI, CIA, Internal Revenue Service and the Department of Homeland Security. Once laundered of any NSA fingerprints, what those multiple agencies do with the data, and how far they themselves spread it to even more agencies, or to local law enforcement, is unknown.
Why it Matters
There have been complex questions raised about the hiding of NSA-obtained information used to convict Americans, leading to the Solictor General of the United States lying to the Supreme Court about how the Justice Department was not notifying defendants in situations when warrantless surveillance had led in turn to a wiretap order that produced evidence used in court. The Justice Department has taken to notifying some defendents that information obtained via warrantless survellience is being used against them, allowing for a likely Supreme Court challenge. The Justice Department has previously blocked Supreme Court challenges by hiding how information was obtained, thus denying the accused of “standing” in the Court’s eyes.
As part of the response to such government actions, organizations such as the Los Angeles County Bar Association are now offering for-continuing-education-credit tutorials to defense attorneys under titles such as “Criminal Prosecutions and Classified Information.”
A lot of attention Post-Snowden has been paid to what the NSA does– vacuum up emails, listen in on Skype chats and so forth. Too little attention has been devoted to what is done with the information NSA collects. The appetites of law enforcement agencies in Post-Constitutional America are bottomless, and the NSA holds terabytes of data to fill them.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
CIA, Senate and a Constitutional Crisis Resolved (not in favor of the Constitution)
Chroniclers of the decline of the republic will recall March 2014. Speaking then in reference to revelations that the CIA searched computers being used by Senate staffers, and removed documents those staffers received from the CIA detailing its post-9/11 torture program, Senate Intelligence Committee Chairman Dianne Feinstein said:I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the Speech and Debate Clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities.
[CIA actions] may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.
Feinstein went on to say then “The interrogations and the conditions of confinement at the CIA detentions sites were far different and far more harsh than the way the CIA had described them to us” and emphasized that her committee’s report would detail “the horrible details of the CIA program that never, never, never should have existed.”
It appears more than likely the files the CIA pulled out of the Senate’s hands would reveal two presidents lied to the world about the torture program, and that horrors beyond what we know were committed in our names.
A classified 6,300-page Senate report on torture was prepared 19 months ago, before the details of the CIA spying became public. Calls were made, in March 2014, to declassify parts and release them to the public. Now, in July, we are still waiting.
The Constitutional Crisis
The bulk of the Constitution is a road map to the checks and balances the Founders created to ensure no one part of government would become so strong and powerful so as to negate the others. Chief among those checks and balances is the oversight role Congress plays over the Executive branch. Simply put, Congress investigates what the Executive does. That is what Dianne Feinstein and her Senate Intelligence Committee were doing looking into the truth behind the lies of CIA torture.
When the Executive, using the CIA in this instance (and there are credible claims Obama personally knew of the CIA’s activities ahead of time), inserts itself wrongly in that process by spying on and manipulating evidence of the Committee, you have a Constitutional crisis. The essential checks and balances designed to sustain our democracy and rein in an out-of-control Executive are no longer functioning.
The Obama administration declined to get involved. Then-White House spokesperson Jay Carney announced Obama administration lawyers were told about the CIA’s intentions to have the Department of Justice investigate Senate staffers for potentially stealing classified documents they sought to hold on to after the CIA tried to delete them by spying on and penetrating the records database, but did not approve or weigh in on the agency’s decision.
With the White House choosing the sidelines, a DOJ investigation, no matter the motive, was the only check and balance to be applied to this crisis of power, and the only hope for public clarity about what really happened.
The DOJ Declines Intervening on the Side of the Constitution
On July 10, 2014, DOJ released a short statement: “The department carefully reviewed the matters referred to us and did not find sufficient evidence to warrant a criminal investigation.” There will be no reckoning of what the CIA did to conceal or influence the Senate report.
Previously, in 2012, the Justice Department closed an inquiry into prosecuting low-level CIA practitioners of torture without bringing any charges.
Post-Constitutional America, Again
Dianne Feinstein appears to have made no comment on the DOJ decision despite her central role in all this and previous claims of unconstitutional actions by the Executive. As this is written, her most recent public remarks deal with immigration. The last reference found on her official website to the torture report is from April 2014.
The CIA attacks on the Senate, designed to impede, alter or influence the outcome of a report on torture, coupled with a lack of concern from the White House and the Department of Justice, as well as apparently by the chair of the Senate Intelligence Committee itself, are another example of our new world, a Post-Constitutional America where the old rules of an aging republic no longer apply.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Execute the Rich
The weird days are the ones where Iran is more honest and just than America.
The Iranian Model
Mahafarid Amir Khosravi, an Iranian billionaire businessman at the heart of a $2.6 billion state bank scam, the largest fraud case since the country’s 1979 Islamic Revolution, was executed Saturday, Iranian state television reported.
Authorities put the swindler to death after Iran’s Supreme Court upheld his death sentence. The fraud involved using forged documents to get credit at one of Iran’s top financial institutions, Bank Saderat, to purchase assets including state-owned companies.
A total of 39 defendants were convicted in the case. Four received death sentences, two got life sentences and the rest received sentences of up to 25 years in prison.
That’d be one way to enforce financial laws and protect against wealthy people misusing the system for their own personal gain, never mind the consequences for the greater society. Here’s another way.
The American Way
How many executives have been convicted of criminal wrongdoing related to the crushing U.S. financial crisis of 2008?
The Department of Justice doesn’t know. That’s because the Department doesn’t keep count of the numbers of board-level prosecutions. In a response to a March request from Senator Charles Grassley, the Justice Department said it doesn’t hold information on defendants’ business titles. “Consequently, we are unable to generate the comprehensive list of Wall Street convictions stemming from the 2008 meltdown.”
Quick aside: The Department of Justice not only keeps exact track of the number of terrorists it prosecutes, it lists them in detail on a publically available “fact sheet” on its web site. No need for a Senator to even ask.
Not a Big Number
Back to America’s financial “terrorists.” C’mon, really, how many were prosecuted? “It’s not a big number to count, that’s for sure,” said Chris Swecker, who ran the Federal Bureau of Investigation’s criminal division from 2004 to 2006. A spokeswoman for the Justice Department said the numbers of financial-fraud cases being brought has increased since the crisis, though it is of course unclear how she could know that since apparently no one at DOJ keeps a count. “I can tell you why you wouldn’t keep the data,” William Black, a former bank regulator, said. “Because it would be really embarrassing.”
Still, credit where credit is due (get it?). DOJ did prosecute one known case of alleged wrongdoing directly related to the financial crisis: criminal charges filed against all of three former Credit Suisse employees for allegedly inflating mortgage-bond values and tax evasion. Credit Suisse is of course not an American company. Nobody went to jail or was executed, but the company did pay a hefty fine. Even then, the Credit Suisse prosecutors were instructed to consult the Federal Reserve about the potential fallout from the case.
More prosecutions to follow? Maybe not. Head of the Department of Justice Eric Holder said he understands “the public desire to, as one pundit put it, ’see the handcuffs come to Wall Street.’ We’ve found that much of the conduct that led to the financial crisis was unethical and irresponsible. But we also have discovered that some of this behavior, while morally reprehensible, may not necessarily have been criminal.”
OK, It’s Zero
While the Department of Justice can’t seem to figure out how many prosecutions it has pursued following the financial crisis of 2008, Reuters can. They report “In the United States, home to Lehman Brothers, no top executives at large Wall Street or commercial banks have been convicted of criminal charges relating to the 2008 crisis.”
Why is that? Reuters also knows that. Basically it is just so gosh darn hard to do. “At issue is the difficulty in pinning the blame on any one person for risks and decisions taken throughout a firm – one of the main obstacles to building such cases so far. ‘It’s a case of the confused lines of responsibility and accountability,’ said Judith Seddon, director in law firm Clifford Chance’s business crime and regulatory enforcement unit in London. ‘When you’re pursuing an individual, if they’ve delegated responsibilities… it’s much more difficult in a big organization.'” They add: “U.S. regulators’ approach since the crisis has reflected some of these challenges.”
Execute the Rich
So, for those keeping track of these things where the Department of Justice is not, here’s a quick tally from the crisis of 2008:
Credit Suisse: Three people prosecuted, company paid a fine.
Bank of America: No officers prosecuted.
Bear Stearns: No senior officers prosecuted.
Citigroup: No officers prosecuted.
Goldman Sachs: No senior officers prosecuted.
J.P. Morgan Securities: No officers prosecuted.
UBS Securities: No officers prosecuted.
Wachovia Capital Markets: No officers prosecuted.
Wells Fargo: No senior officers prosecuted.
We’ll give this round on points to the Iranians.
(No bankers were harmed in writing this blog post)
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Destroying Rights Guaranteed since the Magna Carta
Here are the Department of Justice’s legal arguments granting permission to the president to assassinate Americans if they are connected with al Qaeda, essentially destroying rights guaranteed citizens since the Magna Carta— right to life, right to a trial, right to due process.This will be one of the documents historians study years from now while chronicling the end of the American experiment in democracy. Those historians will conclude that no foreign power defeated us; we ate ourselves.
Torture as American Policy
The release of these legal arguments comes on the same day that the Open Society Foundation detailed the CIA’s effort to outsource torture since 9/11 in excruciating detail. Known as “extraordinary rendition,” the practice concerns taking detainees to and from U.S. custody without a legal process — think of it like an off-the-books extradition — and often entailed handing detainees over to countries that practiced torture. The Open Society Foundation found that 136 people went through the post-9/11 extraordinary rendition, and 54 countries were complicit in it. The U.S. worked with Iran to take new prisoners, and sent others into Assad’s Syria for torture.
Justification to Ignore the Constitution
According to MSNBC, the undated DOJ memo is entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.” It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly. The white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel. The administration has refused to turn over to Congress or release those more detailed memos publicly, or even to overtly confirm they existence.
In the DOJ white paper, it is determined that in order for the United States of America to kill one of its own citizens, all that is needed is that “an informed, high-level official of the U.S. Government has determined that the targeted individual poses an imminent threat of violent attack against the United States,” and that capture is not feasible and of course that the laws of war are followed. For those tracking the amount of blood on the president’s hands, note that no review takes place, no due process, no jury, no anything, just death because the president (or, technically, any anonymous informed high-level official) says kill that man, woman or child. This is considered by the Department of Justice to be “a lawful act of national self-defense.”
DOJ specifically states that if the targeted individual had rights under the Fourth Amendment and the Due Process Clause, such rights would not “immunize him from a lethal operation.”
The Fourth Amendment is a now-quaint part of the U.S. Constitution that guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. The Due Process Clause is contained in the Fifth and Fourteenth Amendments to the United States Constitution. It once acted as a safeguard from arbitrary denial of life, liberty, or property by the Government. The clear intent of Due Process, appearing twice in the Constitution, is to assure Americans that the government cannot act against them outside of a judicial process, a set of laws to protect against the government having too much power.
The Department of Justice also concludes that the murder of an American Citizen under such circumstances “would not violate certain criminal provisions prohibiting the killing of U.S. nationals outside the United States; nor would it constitute the commission of a war crime or an assassination prohibited by Executive Order.”
It was found that “the realities of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. Citizen before using lethal force.”
The document notes that “the condition that the operational leader present an imminent threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” Instead, DOJ asserts a “broader definition of imminence.”
Neatly, to conclude their argument, the Department of Justice states that due to the unique circumstances of the conflict with terror, “there exists no appropriate judicial forum to evaluate these constitutional considerations.”
The End of the Experiment
One is left literally gasping for air, pale with anger, wondering what we have become in America. Have we stooped to the level of the Nazi Nuremberg Laws, which in precise legalese justified the Holocaust? Have we reached the point where we believe we must destroy our beautiful Constitution in order to save it?
Of what value anymore is the oath all Federal employees take, the same oath Obama took on the steps of the Capitol last month, promising to defend and uphold the Constitution? What value is that oath when with a memo he deems that that Constitution does not apply when there is killing to be done abroad. What type of nation declares war on its own citizens?
Those questions are left rhetorical for now, but this much is now true: the president of the United States has granted himself legal justification to ignore the most basic tenet of freedom– the right to live– and empowered himself to kill his own citizens without any form of due process or judicial procedure. It is an easy way for a writer to grab headlines, claiming such-and-such is the end of our rights, such as the limits imposed on habeas corpus, online spying, no-fly lists, restrictions on free speech, etc. But now we have truly approached the edge, because when you are dead, killed extra judicially by your own government, well, no other theoretical rights really matter anymore.
Abu Graid, Guantanamo, the CIA secret prisons, imprisonment without trial of Bradley Manning, those are not aberrations or exceptions– they were practice. These are indeed the darkest of days for our democratic experiment.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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