21st Century Wire | October 15, 2016
This is a bit of an oddity as far as TED talks go…
Investigative journalist Trevor Aaronson actually delivers a TED presentation which calls out the FBI for being the party responsible for creating the majority of so-called ‘domestic terror’ and ‘Islamic terror’ busts in the US since 9/11.
Just this week, the FBI are boasting of a high level domestic extremist terror bust of a militia group in Kansas, but when you read the fine print of the case, it features several FBI “confidential informants,” no doubt helping to ‘egg-on’ and steer their prey into a preconceived trap.
21WIRE has been saying this for years, and it’s refreshing to see what is normally a bland, mainstream talking shop like TED actually allow a speaker to present a real anti-establishment subject like this one.
In truth, the FBI’s shady record in this area stretched back well before 9/11, when FBI informants (under FBI supervision) helped to organize the 1993 World Trade Center Bombing. Despite this, idiotic mainstream media and politicians in the US still claim that the 1993 WTC event was “linked to al Qaeda.”
NOTE: The following speaker, Trevor Aaronson, claims that both the Boston Bombing and the attempted Times Square car bombing [were authentic terror attacks]. This statement is very likely to be incorrect. It has already been confirmed that the FBI’s lead suspect in Boston, Tamerlan Tsarnaev, was being actively recruited by the FBI for at least two years prior to the event in question, as well as being associated with a CIA front org called the Jamestown Foundation. Similarly, the alleged Times Square bomber, Faisal Shahzad, appeared to have fled to Pakistan with a handler who has connections to the CIA and MI6. Otherwise, we welcome this topic raised by journalist Aaronson.
If you are one of the approximately 280 million people with Yahoo email accounts, your email was scanned for content and possibly turned over to the U.S. government. Yahoo, on Tuesday, admitted that fact.
Reuters revealed on Tuesday that the Internet mega-company (which is now being purchased by Verizon Communications) designed a special program last year to capture and scan all its users’ incoming email after being ordered to do that by the either the NSA or FBI. It deployed the program over the last year, scanning every piece of email Yahoo accounts received and apparently turning over all email that contained any of the tens of thousands of “keywords” the NSA considers suspicious.
The decision, Reuters says, was made by President and Chief Executive Officer Marissa Mayer, in collaboration with people in her legal department. It wasn’t without controversy: several Yahoo top staffers left the company including Chief Information Security Officer Alex Stamos (who left for a top job at Facebook).
The news is startling for several reasons. It’s also deceptive for some others.
* Email providers like Google (whose gmail program is a favorite source of NSA data capture) always claim they don’t do “blanket review” of email content. Yahoo is the first to openly admit that it does. It apparently made that decision because its executives didn’t think they could successfully resist the government orders.
That decision by Mayer, already under considerable pressure at the struggling corporate giant, was apparently taken without consultation with her security team. Instead, she just ordered technologists to write the data scanning software. Many in the company thought it could challenge the government orders in the courts and prevail. Several, including Stamos, fled in reported horror.
* They didn’t just review the emails, they built a special program to do it and never let their users know they were doing that. It might seem logical — after all, you don’t let the person who you’re spying on know you’re spying — but very few Yahoo users are the subject of investigations. Yahoo’s statement — that it complies with legal requests — doesn’t even mention the Consitution that protects your data legally and whose first and fourth amendments appear to have been clearly violated by this action.
* Finally, what do you do with all that data? While the government would contend that it was investigating illegal activity, it now has reports (at least) if not full captures on everyone. And a government that collects data on everyone isn’t a state doing policing. It is a police state.
As shocking as this revelation is, the reaction of other Internet companies has been gallingly disengenuous.
“We’ve never received such a request,” a spokeman for Google, told Reuters. “But if we did, our response would be simple: ‘No way’.”
Well… yes… “way” because Google has received thousands of NSA National Security Letters and routinely complies with them. They may not be scanning all the information but they will scan and turn over any information the government requests without informing the affected customer.
A Microsoft spokesperson also chimed in, “We have never engaged in the secret scanning of email traffic like what has been reported today about Yahoo.”
No, maybe not like reported today but Microsoft also routinely complies with government orders almost never challenging them.
In a sense, the way the data is collecting (and the amount collected) — as shocking and important as that is — is probably not the most important issue. If you collect and turn over data on any user just because someone in the NSA tells you to, your respect for privacy and constitutional rights is deeply questionable. That’s exactly what all these companies do.
Yahoo’s latest scandal only underscores how little respect for our rights this industry has.
There are many cases by companies challenging the government on surveillance. Why Yahoo could choose to comply so quickly and not tell anyone about it will certainly provoked widespread circulation and analysis in the coming weeks.
That is something we should all be monitoring.
(Full disclosure: as an official of MayFirst/PeopleLink, I am involved in an international lawsuit challenging the NSA’s right to conduct mass surveillance in foreign countries. The “bias” revealed, however, should not surprise any reader of this website.)
JASTA Opens Many Doors
By overwhelming margins the U.S. Senate and House of Representatives voted on September 28th to override President Barack Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA). Obama had noted that the Act would have negative consequences for U.S. officials overseas as it establishes the principle that governments can be held accountable in the courts for what they do. Prior to this legislation Washington generally respected the principle of sovereign immunity, which means in practice that governments resolve issues between themselves by negotiation, not through litigation.
With Congress now demanding foreign government accountability it is reasonable to assume that other countries might respond in kind by establishing reciprocity based on the language in JASTA, which would mean that serving or former American officials might be detained and tried for criminal actions undertaken by the U.S. in its war on terror. It might also lead to other suits against the United States government that would result in demands for what is already being described as “intrusive discovery” of documents relating to clandestine American operations overseas. In a letter President Obama has described JASTA as allowing foreign litigants to “second-guess our counterterrorism operations and other actions that we take every day” while Secretary of Defense Ash Carter assailed the “ability of foreign litigants to seek classified intelligence and analysis.” CIA Director John Brennan denounced the “associated risks to our national security,” adding that the bill harbored “grave implications” for national security with a “downside [that is] potentially huge.”
So-called State Sponsors of terrorism Syria, Iran and Sudan can already be sued in American courts but JASTA considerably broadens the playing field to permit additional litigation. Supporters of the Act insist that their intention is only to enable suits directed against Saudi Arabia, which might have been either complicit or negligent in its dealings with the alleged terrorists who carried out 9/11, 15 of whom were Saudis, but the language is actually much broader than that. The actual text, which does not specifically name Saudi Arabia, reads: “A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by an act of international terrorism in the United States.”
The Act reproduces the U.S. Code definition of “international terrorism” which “means activities that (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, and the locale in which their perpetrators operate or seek asylum.”
I am all for the United States and Saudi Arabia (and others) being held accountable for war crimes and other unlawful behavior to include drones, renditions, torture and target assassinations but it will almost certainly be difficult to prove “knowing or reckless” criminal intent in court even with the new legislation. Also the Act opens up a Pandora’s box of possibilities that I am sure the Congressmen were not thinking of when they cast their votes. While the bill was drafted in such a fashion as to make an unnamed Saudi Arabia the actual target it also can be used against Pakistan, which may have funded the hijackers, and even Germany, where some of those involved in 9/11 lived for a time. It can plausibly be claimed that Islamabad and Berlin had some prior knowledge of the attack which they chose not to share, making them complicit, and the respective governments would have to appear in a U.S. court to demonstrate their innocence. In so doing, they might even demand in their defense that the United States government produce documentary evidence regarding what really did occur on 9/11, something the White House would surely want to avoid.
But the potentially biggest secondary target of the new legislation would without a doubt be Israel. The Israeli role in 9/11, insofar as can be determined, has never been seriously investigated at all and any suppositions or conclusions regarding its activities were never included in the final 9/11 Commission Report.
In 2001 Israel was running a massive spying operation directed against Muslims either resident or traveling in the United States. The operation included the creation of a number of cover companies in New Jersey, Florida and also on the west coast that served as spying mechanisms for Mossad officers. The effort was supported by the Mossad Station in Washington D.C. and included a large number of volunteers, the so-called “art students” who traveled around the U.S. selling various products at malls and outdoor markets. The FBI was aware of the numerous Israeli students who were routinely overstaying their visas and some in the Bureau certainly believed that they were assisting their country’s intelligence service in some way, but it proved difficult to link the students to actual undercover operations, so they were regarded as a minor nuisance.
But the hands-off attitude towards Israeli spying shifted dramatically when, on September 11, 2001, a New Jersey housewife saw something from the window of her apartment building, which overlooked the World Trade Center. She watched as the buildings burned and crumbled but also noted something strange. Three young men were kneeling on the roof of a white transit van parked by the water’s edge, making a movie in which they featured themselves high fiving and laughing in front of the catastrophic scene unfolding behind them. The woman wrote down the license plate number of the van and called the police, who responded quickly and soon both the local force and the FBI began looking for the vehicle, which was subsequently seen by other witnesses in various locations along the New Jersey waterfront, its occupants “celebrating and filming.”
The license plate number revealed that the van belonged to a New Jersey registered company called Urban Moving Systems. At 4 p.m. the vehicle was spotted and pulled over. Five men between the ages of 22 and 27 years old emerged. They were detained at gunpoint and handcuffed. They were all Israelis. One of them had $4,700 in cash hidden in his sock and another had two foreign passports. Bomb sniffing dogs reacted to the smell of explosives in the van. The driver told the police “We are Israeli. We are not your problem. Your problems are our problems. The Palestinians are the problem.” The men were detained at the Bergen County jail in New Jersey before being transferred the FBI’s Foreign Counterintelligence Section, which handles allegations of spying.
After the arrest, the FBI obtained a warrant to search the offices of the van’s registered owner, Urban Moving System of Weehawken, N.J. Papers and computers were seized. The company owner Dominick Suter, also an Israeli, answered FBI questions but when a follow-up interview was set up a few days later it was learned that he had fled the country for Israel, putting both his business and home up for sale. The office space and warehouse were abandoned. It was later learned that Suter has been associated with at least fourteen businesses in the United States, mostly in New Jersey and New York but also in Florida, which was determined to be a main focus for the Israeli intelligence operation in the U.S. that was directed against Arabs.
The five Israelis were held in Brooklyn, initially on charges relating to visa fraud. FBI interrogators questioned them for more than two months. Several were held in solitary confinement so they could not communicate with each other and two of them were given repeated polygraph exams, which they failed. The two men that the FBI focused on most intensively were believed to be Mossad staff officers and the other three were volunteers helping with surveillance. Even though the Israelis were not exactly cooperative, the FBI concluded from documents obtained at their office in Weehawken that they were targeting Arabs in New York and New Jersey, including at least two of the 9/11 hijackers.
There are a lot a dots all leading back to Israel that might well have been connected once upon a time, but the trail has grown cold. Police records in New Jersey and New York where the men were held have disappeared and FBI interrogation reports are inaccessible. Media coverage of the case also died, though the five were referred to in the press as the “dancing Israelis” and by some, more disparagingly, as the “dancing Shlomos.”
Inevitably, the George W. Bush White House intervened. After 71 days in detention, the five Israelis were released from prison, put on a plane, and deported. Now it is just possible that Mossad affiliated Urban Moving was indeed uninvolved in 9/11 but it also must be recognized that Israel had the means, ability and access required to bring down the World Trade Center using controlled pancake explosions. More than fifteen years later it is perhaps past time to reveal what exactly the FBI knew and currently knows about both the scale and modus operandi of Israeli espionage in the United States. Did Israel have critical intelligence either in broad outline or possibly in specific detail about 9/11 and let it happen to bind Washington more closely to it in a “global war on terror?”
Questions about just what happened on 9/11 will not go away. Green Party presidential candidate Jill Stein has called for a new “independent investigation” because the Bush administration’s initial 9/11 inquiry was “dominated by members with an interest in protecting the reputation and careers of foreign affairs and intelligence communities.” It “was not given enough money, time, or access to relevant classified information.” That “classified information” could well include the role of Israel.
I am no lawyer, but it would seem to me that both Israel and Saudi Arabia might well be pretty good places to start in using litigation to determine just who could have been involved in what was to become the 9/11 terrorist attack. It would indeed be ironic if an Israel-loving Congress has, through its passage of JASTA to squeeze money out of the Saudis, also inadvertently opened the door to finding out just what the Mossad and Prime Minister Benjamin Netanyahu were up to back in 2001.
FBI Director James Comey went before the House Judiciary Committee to discuss the Hillary Clinton email investigation after new evidence emerged which suggested Hillary Clinton’s IT specialist, Paul Combetta (under the “Stonetear” moniker), sought advice on Reddit on how to cover her tracks. He addressed claims about the FBI’s treatment of Hillary Clinton and whether or not the they were biased in her favor. He was angered by such claims, yet continued to make up excuses for Hillary Clinton.
What really happened to TWA flight 800? This documentary displays that truth concerning the mysterious crash of TWA Flight 800 on July 17, 1996. As you will see, Flight 800 was actually destroyed by a surface-to-air missile. Every allegation made in this film is backed up with facts-none more dramatic than those that come from the Federal government itself. You’ll learn what the 736 official eyewitnesses actually saw; why aviators reject the CIA “cartoon” explanation; how the Feds criminally suppressed reporting; the critical witness drawings; the rigged NTSB hearings; the damning radar data and documentation; the altered physical evidence; undeniable proof of explosive residue proving a missile strike; the stinging report from the machinist union; and much more!
Producer: pastor Don producer, host, tech., firstname.lastname@example.org 206-440-1938
… When naive individuals suggest that maintaining a large government conspiracy in America is simply impossible because “somebody would have talked” perhaps they should consider the implications of this incident, which occurred so close to the media capital of the world.
And if they ever decide to trust Wikipedia on any remotely controversial topic, they should consult the 10,000 word Wikipedia article on TWA Flight 800, comparing that exhaustive presentation with the simple facts provided in this article, or the wealth of additional information in the numerous books and documentaries upon which my treatment was based. … Read full article
Reconstruction of TWA Flight 800. Credit: Wikimedia Commons
Some years ago as I became increasingly aware of the severe dishonesty of our mainstream media on all sorts of controversial topics, I began telling a joke to a few of my friends.
Suppose, I would say, that I happened to be out walking one pleasant afternoon in Palo Alto, and suddenly heard a gigantic explosion in the general direction of Mountain View, soon followed by a huge pillar of smoke rising towards the sky. Being busy with my own work, I might have no time to bother investigating, and merely wondered what surprising story the front pages of my morning newspapers would reveal as the cause behind those dramatic events. But when I eagerly opened those papers the following day, mention of the explosion was nowhere to be found, either on Page One or anywhere else, even in my own local San Jose Mercury News. So unless I somehow persuaded myself that I had simply imagined the whole thing, I would henceforth stop believing anything I read—or failed to read—in my once-trusted news outlets.
I thought my allegorical fable rather amusing, and repeated it on a number of occasions. But quite recently I came across a rough counterpart in real life, a remarkable tale that had almost completely escaped my attention for over twenty years.
When I used to recall the leading events of 1996, what came to mind was Bill Clinton’s triumphant reelection campaign in the wake of the Oklahoma City bombing and political overreach by Newt Gingrich’s Congressional Republicans. Perhaps there had also been some sort of plane crash on the East Coast, though none of the details were sharp or memorable in my mind. But in fact, the sudden mid-air explosion of TWA Flight 800 on a New York to Paris route was actually voted the top national news story of that year, ranking above the presidential campaign, while the 230 fatalities made it by far New York’s worst disaster of the twentieth century, and the second worst airline tragedy in American history to that date. Indeed, some journalists at the time suggested that the resulting media coverage had eclipsed that of any other transportation calamity since the sinking of the Titanic almost a century earlier.
I had almost forgotten the story of that doomed airliner when I opened my morning edition of the New York Times in mid-July 2013 and read a short review in the Arts Section, favorably discussing a new television documentary presenting the “conspiracy theory” that the plane had been destroyed by a missile rather than by an accidental fuel tank explosion as the government investigation had firmly concluded at the time, a verdict strongly affirmed by both the news and editorial pages of the Times. I had recently published “Our American Pravda” and an eminent mainstream academic who appreciated my piece soon dropped me a note pointing to a website discussion of the details of the plane crash, about which I knew nothing. Being preoccupied with other matters, I could only glance at the material, which shocked me, but now that I’ve gone back and spent some time on the topic, the story turns out to be a truly remarkable one.
The outline of facts is hardly complicated. Soon after taking off from New York’s JFK Airport on July 17, 1996, TWA Flight 800 suddenly exploded in the air just off Long Island. So enormous a loss of life naturally produced an immediate scrambling of numerous federal agencies to investigate the cause, and with widespread fears of terrorism, the FBI launched the largest, most complex investigation in its entire history, deploying some 500 field agents to the area. The investigators soon gathered a copious quantity of seemingly consistent evidence.
Large numbers of local witnesses were immediately interviewed by the swarm of federal agents, with 278 of them reporting that they saw a streak of light, much like a missile, shoot up into the sky in the direction of the aircraft just before the huge explosion. Employees at the local FAA radar installation immediately reported to the government that they had seen what appeared to be a missile closing with the airliner just before it exploded, and other installations produced similar radar records. When tests were eventually performed on the plane wreckage, traces of explosive chemicals were found, exactly the sort used in the warhead of a missile, as well as some reddish-orange chemical residue that a laboratory later identified as likely missile exhaust propellant. An enormous effort was made to locate every possible piece of the wreckage, and for many of these, the contours of the damage indicated an initial explosion external to the plane. Almost immediately after the disaster, a bidding-war allegedly broke out between the national television networks for an amateur home-video showing a missile striking and destroying TWA 800, with the tape eventually being sold for more than $50,000 and briefly broadcast on the MSNBC cable news channel before reportedly being seized as evidence by FBI agents. In addition, a local resident provided a still photo taken at the time showing what seemed to be a missile rising toward the aircraft.
Based on all this initial evidence, many of the early news stories reported that the plane had probably been destroyed by a missile, with widespread speculation about whether the calamity was due to terrorist action or instead accidental “friendly fire” from one of the U.S. naval warships operating in the vicinity. Given the extreme sensitivity of the topic, government officials urged the media to keep an open mind until the full investigation was completed. However, the public debate sometimes turned rancorous, with some individuals soon alleging that a government cover-up was in the works. Eventually, the CIA was brought into the investigation, given its tremendous expertise in certain matters.
After more than a year of detailed research, the government investigation finally concluded that no missile could possibly have been involved, with all the eyewitnesses having been misled by what amounted to an optical illusion caused by the explosion of the aircraft. That explosion itself had been entirely spontaneous, probably caused by a random spark igniting one of the gas tanks. Given the controversy in the case, the CIA helpfully produced a computer animation showing the official reconstruction of the events, which was endlessly broadcast by our news media to explain the disaster to the public. The simulation showed the jetliner spontaneously exploding in mid-air, with no external cause, and just to further clarify matters, the CIA animators also inserted an explanatory message in large text: “There Was No Missile.” The New York Times, and nearly all our other mainstream media repeatedly echoed this same simple conclusion in all their stories and headlines.
The vast majority of our sheep-like population absorbed the simple media message “No Missile” and went back to watching their football games and celebrity music videos, being greatly relieved to know that well-maintained 747 jumbo jets flown by leading national airlines can occasionally explode in mid-air without any external cause.
However, various disgruntled “conspiracy theorists” refused to accept these conclusions, and returned to their “crazy missile conspiracy theories,” thereby earning the hearty ridicule of the entire mainstream media, led by the New York Times. These conspiratorial suspicions even extended to the U.S. navy, which had apparently been staging military exercises in the near vicinity of the calamity, exercises that some claimed including the test-firing of anti-aircraft missiles. Indeed, a local resident later provided a home video clearly showing a missile being fired in that exact same area a few days earlier during previous naval exercises.
The entire remarkable history of this incident is persuasively set forth in a excellent twentieth-anniversary book published earlier this year by investigative journalist Jack Cashill, who has been following the case since the late 1990s, having co-authored a previous book in 2003 and also produced an earlier 2001 television documentary Silenced, now available in its entirely on YouTube.
In addition, the 2013 television documentary by a former CBS producer, whose favorable review by the New York Times marked my first introduction to the topic, was discussed at length and substantially excerpted by NPR‘s Amy Goodman at Democracy Now!
Cashill is strongly affiliated with conservative publications, while someone like Goodman clearly leans toward the left, but the question of whether an American jetliner was destroyed by a missile, and the facts then covered up by the government is a non-ideological matter, so their perspectives seem almost identical.
For anyone having less than absolute faith in the official pronouncements of our government and our media, the likely reality of what happened is hardly difficult to guess, and for those who currently maintain such naivete, I suspect it will quickly dissipate if they choose to watch the documentaries or read the books. But the loss of TWA Flight 800 is surely of no great importance to our country. Accidents do happen. A large and energetic military, eager to test its latest missile weapons, perhaps carelessly and fatally crossed paths with hundreds of unlucky travelers on their way to Paris. Some 30,000 Americans die each year in fatal car crashes, and risks are inevitable in our modern industrial society.
However, from a broader perspective, I believe that the truly horrifying aspect of the incident is the tremendous ease with which our government and its lapdog media managed to so utterly suppress the reality of what had happened—an American jumbo jet shot down by a missile—and did so although this occurred not in some obscure, faraway foreign land, but within the very sight of Steven Spielberg’s home in the exclusive Hamptons, on a flight that had just departed New York City, and despite such overwhelming physical evidence and hundreds of direct eye-witnesses. The successful cover-up is the important story constitutes a central subtext in all of the books and documentaries on the disaster
Given the eyewitness testimony and other factors, it is hardly surprising that many of the initial media stories either directly referred to a missile strike or at least mentioned it as one of the main possibilities, and indeed there is some evidence that top government leaders initially assumed a terrorist attack. But President Bill Clinton was locked in the middle of his reelection campaign, and while the slaughter of Americans by terrorists might unify a nation, disasters brought about by careless military action would surely have had the opposite political impact. So it seems likely that once terrorism was ruled out and the American military believed responsible, a direct order quickly came down from the highest levels to make the missile and all evidence supporting it disappear, with all our supposedly independent federal agencies, especially the FBI, bowing to that primary directive.
As part of the standard investigation, all the debris were gathered and stored at a hangar for examination, but FBI agents were discovered spiriting away some of the most tell-tale pieces, or even caught in the wee hours of the morning hammering them into a shape that would suggest an internal rather than an external explosion. The amateur video showing the missile strike was only briefly broadcast by a cable news channel before being seized by government agents. When an investigative journalist acquired debris containing apparent missile residue and passed it along to a producer at CBS News, the evidence was quickly confiscated, with the journalist and his wife even being arrested, prosecuted, and convicted for violating an obscure law enacted to prohibit bystanders from removing souvenirs from the scene of a disaster; the veteran CBS producer who accepted the material was vilified as a “conspiracy theorist” and soon forced out of her job, her career destroyed. The written FBI reports of 278 eyewitness statements describing the missile attack were completely ignored, and in a number of cases, later statements were actually fabricated, falsely suggesting that crucial witnesses had revised or recanted their earlier testimony.
These particular examples only scratch the surface of the massive amount of coordinated government fraud and deception that was marshalled to make a missile strike seen by hundreds of witnesses officially disappear from the historical record, and transform the destruction of TWA Flight 800 into a rather mysterious and spontaneous mid-air explosion. The New York Times in particular became the primary mouthpiece of the official “See No Missile” party-line, repeatedly denigrating and ridiculing all those who resisted this total rewriting of the facts and history.
This gatekeeper role of the Times in the cover-up became particularly crucial once the high-profile figure of Pierre Salinger entered the controversy. Salinger ranked as a full-fledged member of the political-media establishment elite, having served as President Kennedy’s press secretary and one of the most visible public figures in Camelot, then briefly as an appointed U.S. Senator from California before becoming a prize-winning journalist and the Paris Bureau Chief for ABC News. Himself half-French by birth, he had many connections to the leadership of that country, which was galvanized by the large number of French victims on the flight. French intelligence became involved, quickly acquiring some of the same voluminous missile-related evidence suppressed by its US counterpart, and passed him the information. Cashill notes that Salinger was a loyal Democrat, and perhaps as a consequence he sat on the story until after Clinton was safely reelected in November, then attempted to break it, publishing a long expose in Paris Match, one of France’s highest-circulation popular magazines.
If Salinger had hoped his prestigious standing and long journalistic record would insulate him from attacks, he was sorely mistaken, and instead the threat his stature and credibility posed to the cover-up unleashed an unprecedented barrage of insult, ridicule, and invective, with the New York Times running 18 consecutive articles attacking him, and America’s leading news magazines, Time and Newsweek adding their own denunciations. Such remarkable vilification may have partly been aimed at dissuading any other prominent figures from similarly breaking ranks and following Salinger’s lead in exposing the true facts, and if so, the effort succeeded and the cover-up held.
Prior to Salinger’s regime disloyalty, he had regularly appeared on leading American television news broadcasts and his opinions were treated with the great deference accorded to a highly-respected elder statesman; afterward he was purged and blacklisted, shunned by our elite media as a “conspiracy nut.” Indeed, upon his death a few years later, the disloyalty he had shown to his establishment colleagues seriously tainted his NYT obituary, which closed by describing the “strange turn” he had taken in advocating theories based upon “discredited” evidence.
I don’t doubt that numerous other prominent figures quietly took the lesson of Salinger’s defenestration to heart, much as high-ranking Soviet leaders noted the dire implications of questioning Stalin’s pronouncements. Indeed, I personally know of at least a couple of individuals prominently situated in our current elite establishment whose private views on various controversial topics would surely rank as “utterly conspiratorial” but who remain extremely reluctant to have those views become generally known.
Or take another example, even closer to me. My old friend Bill Odom, the three-star general who had run the NSA for Ronald Reagan, clearly ranked in the upper reaches of the DC national security establishment in the early 2000s, serving as Director of National Security Policies at the Hudson Institute and an adjunct professor at Yale. Yet his strongly discordant views on the Bush response to 9/11 and the preparations for the Iraq War caused him to be totally blacklisted from major media access, reduced to publishing his dissenting opinions on an obscure website or in the pages of small, socialistic quarterlies.
When naive individuals suggest that maintaining a large government conspiracy in America is simply impossible because “somebody would have talked” perhaps they should consider the implications of this incident, which occurred so close to the media capital of the world. And if they ever decide to trust Wikipedia on any remotely controversial topic, they should consult the 10,000 word Wikipedia article on TWA Flight 800, comparing that exhaustive presentation with the simple facts provided in this article, or the wealth of additional information in the numerous books and documentaries upon which my treatment was based.
The old Soviet Union was notoriously reluctant to ever acknowledge serious government errors, but its propaganda machinery was of mediocre quality, routinely ridiculed both in the West and among its own citizens. Surely, their Politburo members and Pravda editors would have been green with envy at how easily our own American Regime and its media minions suppressed the true story of TWA Flight 800, shot down by a missile just twelve minutes after it departed JFK Airport in New York City.
A Turkish prosecutor has claimed that the CIA and FBI provided training for the followers of powerful US-based Turkish cleric Fethullah Gulen, whom Ankara blames for the coup attempt earlier this month.
The indictment, prepared by the Edirne Public Prosecutor’s office and accepted by the local Second Heavy Penal Court, seeks the harshest possible punishment for 43 suspects that have allegedly been linked to the failed coup attempt on July 15, including the coup’s supposed mastermind, Fethullah Gulen, the arch-nemesis of Turkish President Recep Tayyip Erdogan.
The prosecutor said on Thursday that members of what it describes as “the Fethullah Terrorist Organization” were trained by the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI).
“The CIA and FBI provided training in several subjects to the cadre raised in the culture centers belonging to the Gulen movement. The operations carried out by prosecutors and security officials during the Dec. 17 process can be taken as a good example of this,” the document says, referring to a high profile corruption probe that targeted senior government officials between December 17 and December 25 of 2013, as reported by the Turkish Hurriyet daily.
The investigation affected many officials linked to the Turkish Cabinet, which was headed by Recep Tayyip Erdogan at that time. Erdogan, who is now Turkey’s president, called it “a judicial coup” attempt, while accusing Gulen and his movement of orchestrating it with the help of some “foreign forces.”
The indictment states that Gulen loyalists received US training and infiltrated judicial and security institutions.
“This [failed coup] attempt aimed to weaken the state with all its institutions by getting rid of the government completely. Those in the Gulen movement who work in the judicial and security institutions and who received the aforementioned training, took on this task and moved into action,” the document says, as quoted by the Anadolu news agency.
It adds that some other foreign secret services were also involved in training the coup plotters, according to the Turkish Yeni Safak newspaper.
Relations between Washington and Ankara soured following the foiled coup attempt on July 15. Some Turkish media and even government officials, including the labor minister, have claimed that the US was somehow involved, despite an outright denial from the US.
Immediately after the failed coup attempt, the Turkish government criticized the US for providing safe haven for Gulen, saying that a country that harbors “the coup planner” is “no friend” to Turkey. Ankara has also repeatedly demanded that the US extradite Gulen to Turkey, while Washington has maintained that Turkey must first file a formal extradition request and provide solid proof of his involvement in the coup.
On July 25, Turkey’s foreign minister, Mevlut Cavusoglu, said that Turkey-US ties could suffer unless Washington extradites Gulen.
On Friday, Erdogan once again slammed the US for harboring Gulen, who lives in self-imposed exile in Pennsylvania, and demanded his extradition. He also lashed out at the head of US Central Command, General Joseph Votel, who has criticized the detention of thousands of Turkish military personnel in the aftermath of the coup attempt and said that some of the military figures that the US had been working with are now in jail.
“It is not up to you to make that decision. Who are you? Know your place…” Erdogan said, as quoted by AP.
“Instead of thanking this nation that quashed the coup in the name of democracy, on the contrary you are taking sides with the coup-plotters,” he added, stressing that “the coup plotter is in your country anyway” and “you [the US] can never convince my people otherwise.”
Votel has strongly denied the accusations, saying that “Turkey has been an extraordinary and vital partner in the region for many years.”
Those “damn emails.”
Watching the new Bernie Sanders, distracted by his “awkward dance” to the tune of that damn Platform, one might think him unaware that he had his last best chance to win the Democratic nomination snatched from him in broad daylight. Republicans appear far more disturbed than Sanders is about Clinton sewing up the nomination by beating her secret server rap on dubious legal grounds. Since polls have consistently shown Sanders, not Clinton, to be the strongest candidate to beat their guy, one might expect not Republicans, but Sanders, to be out front on this issue. But its 2016, when the “progressive” revolutionary is endorsing the establishment plutocrat.
In last Thursday’s “emergency” congressional oversight hearings, FBI Director James B. Comey was questioned about his unprecedented Tuesday, June 5, press conference Statement justifying the Bureau’s mutually contradictory factual and legal conclusions from its long-pending investigation of Hillary Clinton’s “servergate” problem. Republicans under committee Chair Jason Chaffetz (R-UT) conducted a professional, informed and fair interrogation of Comey that contributed to the debate. Comey’s less than convincing legal justification for his decision opened as many lines of inquiry as it closed.
Trey Gowdy, (R- SC), a former federal prosecutor, walked Comey through the false statements that Clinton told his Benghazi Committee in October. This evoked a sworn on-the-record FBI endorsement of what amounted to several counts of a potential criminal indictment of Clinton for lying under oath. One wonders if the FBI will investigate the question whether Clinton intentionally lied to Congress as gingerly and at the same level of competence as the FBI’s first limited investigation, which even non-lawyers on the Oversight Committee were able to effectively criticize.
Having virtually framed the indictment of Clinton for lying to Congress, Gowdy then delivered a Socratic lesson to Comey on the subject of how such “false exculpatory statements” by Clinton, along with Clinton’s pervasive and “complex scheme that was designed for the very purpose of concealing the public record” could have been used in the “servergate” case to prove her requisite criminal intent, the supposedly key element of the crime which Comey claimed he could not find.
Gowdy completed his attack on Comey’s central evasion for not indicting Clinton by instructing him that intent is rarely proven by direct evidence, such as Comey seemed to suggest was needed. “You have to do it with circumstantial evidence,” Gowdy said. Gowdy outlined in less than five minutes for Comey what the FBI was somehow incapable to piece together over many months.
Circumstantial evidence has been used in similar cases. In the notorious case of Jeffery Sterling, DoJ was able to imprison a CIA agent on the sole basis of circumstantial evidence amounting to no more than speaking to a reporter, a case that was partially motivated by retribution for Sterling’s racial duscrimination claim against the agency. Another entirely circumstantial case was made against a mid-level bureaucrat for talking with a reporter without direct proof of intent, let alone transfer of any particular information.
This initial examination of Comey by Gowdy and other Republican committee members supports the suggestion that Comey’s formal statement denying Clinton’s criminal intent, quoted below, constitutes one of a series of “coincidental shams and deceptions deeply rooted in a corrupt political system.” This sham includes a) the extended delay and timing of what appears to have been a superficial and artificially limited investigation designed to exculpate, b) the unethical ex parte meeting between Comey’s boss and Bill Clinton at the Phoenix airport, c) AG Lynch’s refusal to recuse herself for that ethical lapse, and d) instead abdicate the DoJ’s prosecutorial judgment to a political FBI Director, e) Clinton (who “believes in gestures”) making anonymous leaks that “she may decide to retain Ms. Lynch,” f) Obama’s endorsement of and North Carolina campaign stop with Clinton timed to deflect attention from the FBI’s criticism of her lies and “extremely careless” conduct in high office, g) unprecedented signature of non-disclosure agreement for agents on this case, and then h) the very nature of the Statement itself, both the unprecedented PR exercise of its being made public and the FBI’s straying well beyond its proper duties and expertise to make and announce the operative legal decision not to prosecute. Reciting some these coincidences Rep. Mica observed “what’s come down, it almost looks like a choreography.”
It may be only a coincidence that Lynch was appointed attorney general by Obama very shortly after Clinton started deleting her “servergate” files in February 2015. And it may be a coincidence that Comey was appointed around the time in 2013 that Clinton’s potential crime was coming to light. But was it a coincidence that Obama failed to appoint a State Department inspector general during all four years of Clinton’s tenure as Secretary of State?
Selling a Technical Fix for a Political Problem
The FBI does not prosecute, and does not evaluate or fire prosecutors. It investigates federal crime, which is a technical and not political process. It is not the FBI’s job to tell prosecutors how to do theirs, but rather to provide the investigation needed for prosecutors to make legal decisions based on reliable and thorough facts. Jason Chaffetz (R- UT) called out (3:34) how unprecedented it was for Comey to go public with such a statement, and then also to do so about more than just the facts discovered by the FBI, but also to publicly pre-judge the legal questions involved in a possible prosecution, indictment, and trial. Rep, Mulvaney also repeated this criticism as a question: “It is unprecedented that an FBI Director gave the type of press conference that he did and took a position that an unreasonable prosecutor would only take this case forward. Why would do you that?” Comey agree, :Yes, it’s a great question.”
Comey’s opinion was that commission of the crime detailed in the FBI’s investigation should nevertheless not be prosecuted because of insufficient “intent” by Clinton. This opinion was not only based on a failure to marshal available evidence, as Rep. Gowdy pointed out, but also a misinterpretation of well-settled law, as discussed below. It also prejudices any future prosecution the Justice Department might have decided, or may decide to pursue in the future, unless discredited as an abuse of the FBI Director’s authority
As Matthew Miller, a former Justice Department official, judged, Comey’s performance was “a gross abuse of his own power,” in part because he “substituted his judgment for that of prosecutors.” The FBI’s autocratic legend who was not shy about expanding the powers of the Bureau, J. Edgar Hoover, himself decreed: “We are a fact gathering organization only. We don’t clear anybody.” sixty years later, Comey has now added a corollary to this rule: “except a Clinton” when it’s time to determine the next president.
This unprecedented FBI polemic about Clinton’s intent violated the general rule that one does not ever speak publicly about a pending investigation or litigation because it can distort due process. It was dramatically improper conduct for political purposes. It is one reason why Comey should be at least fired, if not formally reprimanded or impeached by Congress.
The argument for impeaching Comey is that if Comey does not suffer serious consequences in public, the Clinton case cannot be effectively prosecuted. He has spoiled the case, and failed to faithfully execute “the Laws.” (Art. II, Sec. 3.) He has also established a dangerous precedent for abuse of FBI power that needs to be soundly rebuked. That is difficult to do in any other politically responsible manner than the constitutional process for checking inappropriate executive action, an impeachment vote by the House of Representatives. (Art. II, Sec. 4.) His errors in stating the governing law on which he based his institutionally improper opinion provide yet other reasons for disciplinary action.
This impropriety of the chief federal investigator acting as prosecutor, grand jury, judge, and jury arose out of the context where Comey’s boss Loretta Lynch had said she would abdicate to the FBI her duty to make the legal and political decision on the Clinton case, rather than simply recuse herself for her ethical lapse in holding a secret ex parte meeting with a potential target and surrogate of the main target of the investigation.
By making the legal decision himself rather than properly leaving it to senior Justice Department lawyers and the attorney general, Comey clearly did a political favor not only for Lynch but also for President Barack Obama, who also has a flair for improperly prejudging pending cases, as he did this one. Both of them would otherwise have had to take political responsibility, with an historically dissatisfied electorate, for an unpopular and controversial partisan political decision, the first of its kind in U.S. history, based on a distorted legal analysis. Both had conflicts of interest as political partisans of the same stripe as Clinton. Obama would have effectively pardoned his endorsed successor for preserving his plutocratic legacy. Lynch would be exonerating her potential future employer, who may well eventually appoint her to be the first black woman on the Supreme Court much has her husband appointed Lynch to be US Attorney.
Both the ethical lapse at the airport and the ensuing abdication, rather than recusal, deserve separate reprimand. In her hearings the barest scent of impeachment was in the air. Rep. Goodlatte (31), lawyer and Chairman of the powerful House Judiciary Committee, and not known to make such accusations lightly, charged that Lynch’s abdication was “not [a]… responsible way to uphold [her] constitutionally sworn oath.” The hearing established that “servergate” was the first time Lynch had announced such an abdication of duty ahead of time, that she would follow recommendations of a committee rather than make her own decision. This abdication of responsibility under the pretense that it would remedy her ethical lapse, according to Rep. Jordan (2:13) actually “made a bad situation worse.” AG Lynch’s rehearsed, run-out-the-clock, stonewall demonstration before the Committee of “prodigious dissimulation skills” (Franks,1:50) in furtherance of her abdication bordered on contempt of Congress. On the merits, Rep. Gowdy who knows how to conduct cross-examination could not get a straight answer from Lynch to the simple question of why a specific intent standard was applied by the DoJ when the statute does not demand it, which is the central issue. Her riposte to nearly every question is that her sole decision was to in effect abdicate her duty and that questions on the details should be referred to Comey.
Comey’s highly improper public recitation of facts sufficient to indict, while denying Clinton, for his own political reasons, the opportunity to controvert those facts in court by indicting her was undoubtedly the price Comey had to pay to prevent mutiny from the professionals inside his Bureau. One former spy who is closely following the case predicted that “there are high-ranking spies who [we]re perfectly willing to leak the sordid details of …. exactly what Hillary Clinton did,” had Comey failed to make a credible accounting. But FBI investigators take institutional responsibility solely for delivering the facts, not for Comey’s personal venture into political fixes at the presidential level, nor for his idiosyncratic legal conclusions that Lynch improperly allowed him to make, with some cover provided by unnamed DoJ attorneys on a committee.
Evidence of Intent: looking in all the wrong places
Comey was able to make a political decision appear to be a technical decision by basing it upon his peculiar views of the evidence necessary to prove intent, at least in this one case. But as Rep. Gowdy explained to Comey, this technical decision about intent failed to take proper account of the inferences to be drawn from the circumstantial evidence that shows Clinton’s intent to break the law. For example, Clinton clearly intended to give classified information to her lawyers who lacked security clearances, as well as to allow her uncleared tech support to have access. Comey had no good answer for such facts.
Among the many lapses of judgment that Comey defended, he did not think it germane to an assessment of her intent that Clinton, and nine of her former top aides, refused to be interviewed by the State Department inspector general. A person of innocent intent would have no reason to avoid such an interview by her former employer on a matter within the scope of her employment.
Comey’s refusal to comment on the existence or not of a related Clinton Foundation investigation suggests that, contrary to speculation, those very public allegations of Clinton’s handling of systemic conflicts of interest was not part of the secret server investigation. Such a joint investigation of the two potentially related matters would have justified the FBI’s delay. Not taking into account the Clinton Foundation line of inquiry would exclude consideration of a potential motive for Clinton’s prioritizing over keeping the nation’s secrets keeping secret from the government her “private” emails. About half of the total were allegedly private, representing a quite intensive “private” life for someone in such a high public office. Investigator Greg Palast points out that notionally private communications because addressed to her family, did involve official business. That potential motive would have been far more nefarious than the motives that Comey does approve for prosecution in other cases, such as whistleblowing on matters of mismanagement or torture.
The damage done may also have been greater. William Binney, a former high-ranking NSA official, claimed that the “rather devastating compromise of technical capability and a commensurate loss of high value intelligence” from just one 2011 Clinton email released by the State Department may be “difficult for the public to understand and comprehend, but it is … much worse than what Julian Assange or Chelsea Manning or any of the other whistleblowers have done.” The email wasn’t redacted because it was sent to Clinton by Sid Blumenthal, a private citizen with no security clearance. But as shown in many other emails he sent to Clinton, he somehow had access to the latest top secret NSA information that revealed the NSA’s sources and collection methods.
As it turned out, such a motive of keeping corrupt activities private from government security officials and Freedom of Information Act (FOIA) investigators might have been ineffective in any event. On the same day Comey gave his presentation clearing Clinton, the D.C. Circuit ruled that government email records on private equipment are subject to FOIA if they are not held under a claim of private right. See Competitive Enterprise Institute v. Office of Science and Technology Policy (2016) (“If a department head can deprive the citizens of their right to know what his [sic] department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose [of FOIA] is hardly served.”)
After reciting facts that have long been known by the public, and that contradicted exculpatory public statements by Clinton, the FBI’s operative finding delivered by Comey was that “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.” In the oversight hearing on July 7th, Comey did not demonstrate a full grasp of facts, such as who paid for Clinton’s server. He did not personally interview Clinton nor did he talk with all of the “five or six” agents who did. Another painfully obvious example was when Comey was asked by Rep, Meadows “did [Clinton] contradict some of [her] public statements in private? Because you said she didn’t lie to the FBI, but it’s apparent that she lied to the American people. So did she change her statements in [her] testimony with you last Saturday?” Comey’s incredibly ignorant response was “I haven’t gone through that to parse that…” Rep. Meadows requested “Can you do that and get back to this Committee?” When asked again by Rep. Mulvaney: “why she told y’all one thing and told us another?” Comey replied “I don’t know as I sit here. I mean, I can — I’ll figure that out” even though he agreed “that [could] have been of interest to you in helping to establish intent?”
This is Congress asking the FBI to apply one of its most common enforcement tools, trapping people into making false statements, as if it were some novel enforcement tool they had not thought of before. It will be important to monitor whether Congress will insist that Comey satisfy Rep. Meadows’ request, and Comey’s promise, to “figure that out” why Clinton is not being prosecuted for false statements to the FBI.
Due to repeated professions of ignorance of this kind, Comey’s formula that he did not “find clear evidence” was less than convincing that he looked in the right places.
Comey’s finding was not that Clinton’s conduct did not possibly violate the law, but an inference from Clintons’ “Whoops, sorry, didn’t mean to, won’t do it again:” Voila! No intent; no crime. As Gowdy’s questioning suggested, if when Comey used the word “clear” to describe the quality of evidence of intent that he was looking for he actually meant “direct,” that kind of evidence almost never happens in the real world. The evidence of intent, unless confessed, is always inferential, circumstantial, and indirect, not “clear” in the possible colloquial use of that term that Comey seemed to employ.
Since “clear evidence” is not a legal term, the country is left to guess what Comey’s subjective meaning for the term is. The impression left by Comey, which Gowdy forcefully challenged, was that indirect and inferential evidence was not considered by Comey to be “clear” evidence, and therefore Clinton could only be indicted if she confessed. Indeed, Comey distinguished the Deutch case on the grounds that Deutch “admitted, ‘I knew I wasn’t supposed to be doing this.” The idea that no prosecution can be maintained without a confession is of course the most arrant nonsense. Rep. Duncan reported that when he was a judge he “saw many cases where the evidence of criminal intent was flimsier than the evidence in this case.” But Comey has so far gotten away with asserting the contrary.
The kind of clarity that Comey was seeking would have to dispel his opinion about, among other things, Clinton’s apparent denial that she understood classification markings within a text of a document: “I think it’s possible — possible that she didn’t understand what a “c” meant.” But then, in response to a question by Rep. Meadows whether it is reasonable to doubt such a denial, i.e., “wouldn’t a reasonable person think that someone who has the highest job of handling classified information would understand that?” Comey replies “I think that’s the conclusion a reasonable person would draw. It may not be accurate.” One can observe Comey retreat here from applying the legal reasonable doubt standard into some subjective standard of his own concerning “clear evidence.”
Provided Clinton insisted on her own ignorance which no jury would likely accept, if Comey was looking for other “clear” evidence of intent, he was looking for some abstraction that does not exist, and which the law does not require. No matter how much one looks no other direct evidence will be found without extraordinary investigatory measures. Comey was apparently not looking for it by using such measures. He did not disclose the existence of wiretaps to monitor Clinton’s private conversations for which he clearly did have probable cause. But the inferential and circumstantial kind of evidence that Gowdy recited, and which is commonly sufficient to convict of the intent element of all ordinary crimes where the issue might arise, was not discovered under Comey’s leadership because it was apparently not “clear.”
Comey’s “Reasonable Prosecutor”
Comey’s flawed approach to assessing the element of intent is discussed in further detail below. First, it should be pointed out that Comey offered this opinion, one that departed from the traditional standard of reasonable doubt in favor of some unknown subjective standard of his own, to support his “judgment … that no reasonable prosecutor would bring … a case” for Clinton’s “potential violations of the statutes regarding the handling of classified information.” As mentioned, this judgment went beyond Comey’s position as FBI director to give, and it was given on the basis of his own idiosyncratic legal test.
In his July 5th statement, Comey explained:
“Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past. In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”
Again, Comey probably did not “see those things” because he did not look, mainly because he was looking for the wrong thing. Clinton’s server did involve “vast quantities of materials exposed in such a way as to support an inference of intentional misconduct.” It was not just a mistaken channeling of a few emails through her separate personal email. It was systemic and vast removal of her routine official email traffic from secure government channels to her insecure private server domain used for her “email@example.com” address.
This pervasive arrangement was therefore all but certain to expose national secrets.
Clinton deliberately commingled the personal and the public, permitting her to later delete the public’s communications under the unverifiable, and apparently inaccurate, excuse that she only deleted her personal communications. There is no reliable way of knowing what she deleted because the data was wiped nearly clean.
A fiduciary who commingles financial assets is guilty of crime. Clinton commingled real assets, national secrets owned by the public, with her private information, and put them both in her private insecure server. This violates several federal statutes.
What would be enough evidence of intent for a “reasonable prosecutor” to pursue a conviction for this violation is again left to Comey’s own subjective standard. An objective standard would be met, first, by restraining the FBI Director within the proper scope of his duties, then appointing a professional unbiased special prosecutor to separately assess the legal implications of the facts the FBI produced. The prosecutor should be free of political ties and conflicted interests, such as job retention or promotion in a new administration. Then the case should be presented to a grand jury for possible indictment to determine its objective validity.
That is the constitutional process to achieve objectivity in prosecutions of this political kind of matter. But as mentioned above, the case cannot now be prosecuted unless Comey himself suffers consequences for his improper and unprecedented conduct that relegated the legal and policy decision of whether to prosecute to his own subjective standards under the pretext of being a technical decision backed by the prestige of the FBI.
Before anyone searching for such an independent prosecutor takes Comey’s word about his standard for “reasonable” prosecutors, they might want to first check with his FBI Sacramento office about whether they would agree with Comey that Assistant United States Attorney Jean M. Hobler should be considered unreasonable for successfully prosecuting the case of a reservist named Bryan Nishimura for “removing and retaining” on his private computer classified material acquired when he was serving as a Naval Engineer in Afghanistan.
The FBI investigated this case as a violation of 18 U.S.C. §1924, and published a press release just one year ago lacking any suggestion that the FBI considered Hobler to be anything but a “reasonable prosecutor” for winning this case. Though not nearly as significant as Clinton’s similar crime, this case was virtually identical as far as the element of intent goes. Intent was not an issue. In fact, the investigation of the Nishimura case found no motive “to distribute classified information to unauthorized personnel,” which is not quite true of the Clinton case. But lack of wrongful motive was not a problem for the prosecution of Nishimura. Comey contended the Nishimura case could be distinguished when it was raised by a committee member at the hearing, but he did not actually say how.
Congress needs to ask the Director to put together a dossier of similar cases that the FBI has investigated, and that Comey might have thought could be distinguished although their relevant facts are similar to Clinton’s case. Since in his July 5th presentation Comey said “we cannot find a case that would support bringing criminal charges on these facts,” we need to know if his definition of “these facts” include only relevant facts, or if he considers distinctions that are political or otherwise legally unpersuasive.
Congress needs to ask Comey for all the available legal memoranda distinguishing such cases as the Nishimura case, or the John Deutch case, and others, so people can determine whether these cases really are so different in principle from Clinton’s case after they have a “complete accounting of the facts” which Comey claimed they do not now have, but which he does have. It is almost certain that none of the cases prosecuted under the relevant statutes prohibiting mishandling of government records could be distinguished with respect to the element of intent.
Many commentators, including Representatives Gowdy, Chaffetz, and other oversight committee members concluded that Comey is operating within the framework of a two-tiered system of justice by providing an evasive justification of insufficient intent. The elite political class has one kind of law and everyone else has another. See Matt Taibbi, The Divide: American Injustice in the Age of the Wealth Gap (2014). At the same time that police are murdering people on the streets with impunity, the political elite in the capital is placed above accountability to the law.
Confusing motive with intent
Comey has not only misled the public by his demand for evidence that Clinton’s violation of the law was “clearly intentional and willful” according to some subjective evidentiary standard of his own. More importantly, in his discussion of precedents, quoted above, he deliberately confuses these terms relating to intent with the separate concept of motive. Comey’s description of his search for precedent suggests that he was not really looking for intent, but rather different varieties of motives involved in cases where forbidden material had been placed on private computer devices, or otherwise compromised.
As Supreme Court justices Alito and Thomas said in another context, Comey’s quoted statement about controlling Justice Department precedent “confuses two fundamentally distinct concepts: intent and motive…. [O]ur cases have recognized that a lawful motive (such as necessity, duress, or self-defense) is consistent with the mens rea necessary to satisfy a requirement of intent.” Rosemond v. United States (2014).
Any motive whatsoever, innocent or otherwise, can be used as evidence of intent, but rarely, if ever, can be used to disprove intent for purposes of determining guilt. From the defense perspective, the Supreme Court observed: “Motives are most relevant when the trial judge sets the defendant’s sentence …” Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993) (hate crime). Thus motive might affect punishment, but ordinarily not guilt, except for proving the element of intent or as circumstantial evidence for identifying the culprit of proven bad acts, which is not in question here.
In the Sterling Espionage Act case, proof of an alleged motive for disloyalty to the CIA was virtually substituted for the lack of any direct evidence linking the defendant to the crime. Such trumped up cases invite a jury to illegitimately convict a person for imputed bad thoughts when there is insufficient evidence of the defendant’s bad acts. But where motive is not an element of the crime, evidence that one does not have bad thoughts cannot be used for defensive purposes, to exculpate, as Comey has used it.
In the end, Comey’s argument amounted to little more than an opinion about the success of such a “bad thoughts” case against Clinton. But it ignored that Clinton’s “bad acts” was all he needed to prove, and Clinton’s connection to those acts, unlike the Sterling case, are virtually unquestioned. By cleverly diverting his legal analysis of intent to the issue of motive, Comey made an inherently arbitrary political distinction between motives that the administration can tolerate by its friends and motives it disapproves. This is a violation of the rule of law which does recognize such political preferences but rather defines a crime applicable to everyone irrespective of their friends in high places or the kinds of motives their friends find politically unthreatening to themselves.
This highly limited, solely evidentiary, role of motive in all ordinary criminal prosecutions is shown to be violated by Comey’s reference to the kind of “intent” that he said was defined by Justice Department precedent concerning “disloyalty to the United States; or efforts to obstruct justice.” Such categories clearly involve motives for committing a crime and not the element of intent to commit the underlying crime of mishandling the nation’s secrets, and other government information. Whether it was done for reasons of disloyalty, obstruction, or any other motive in not necessary to proof of intent. These “fundamentally distinct concepts” of motive and intent are jumbled up here on Comey’s list of precedents together with his discussion of “intentional mishandling” or “intentional misconduct,” instead of focusing on the actual element of intent to commit the acts which constitute a crime.
In this context of Comey’s description of the precedent he consulted, each of these formulations appear to share a concern more about the motive of the accused to accomplish some specific purpose by means of violating the law, rather than looking to the intent simply to violate a law. Again, intent is an element of a criminal offense, but motive – with very rare and particular exceptions – is not. Comey has let Clinton off because he did not find evidence of a motive sufficiently evil by his subjective standards, even though under the relevant statutes motive is not even an element of the crime that needs be proven at all. It is not necessary to unpack Clinton’s motives in order to convict her of the crime. Her professions of innocent motive does not obviate that she had the necessary intent to commit the acts that constitute several crimes.
There is evidence, of course, that Clinton did reveal her motive by saying to a confidant, “I don’t want any risk of the personal being accessible.” This is evidence of her intent to make her own rules that would better protect her own inordinate interest in personal privacy rather than to follow the State Department rules for her communications to protect the public’s interests in security. Her publicly expressed motive for having a secret server was different. She told the public it was for her own “convenience” that she risked making accessible to foreign countries and hackers the nation’s secrets entrusted to her, along with “the personal.”
Clinton said it was for this interest of convenience that she wanted to use only one communications device, which is a somewhat less suspect motive than an unprecedented and unauthorized obsession with secrecy. It was Clinton’s decision, intent, to put both “the personal” and the public information equally at risk through her insecure server rather than risk some disclosure of “the personal” to the internal processes of the State Department. This judgment raises questions about whether she might be hiding from the public (although not from foreign hackers) information as important to her as the nation’s secrets.
An unnamed former NSA official familiar with the effort to get Clinton to obey the rules, now asks, “What did she not want put on a government system, where security people might see it?” She must have known that her own server was not only less secure than the government’s, it was also “less secure than,“ Google’s ordinary Gmail account, according to Comey.
The alleged motive of Clinton wanting to use only one mobile device for convenience appears to be a lie in any case, because the FBI found she actually had used more than one device. Apparently, Clinton bought an iPad in 2010, just one year into her tenure as Secretary of State, while continuing to use her BlackBerry. If Comey’s sworn testimony does disprove Clinton’s convenience motive, that she wanted to have the personal and the public communications all on one device, then as the former prosecutor Rep. Gowdy pointed out to Comey, lying about her motives would be highly probative evidence of her intent. Rep. Gowdy also contends “if it were convenience Director, she wouldn’t have waited two years to return the documents and she wouldn’t have deleted them four years after they were created” to which Comey made no coherent response.
A person lacking any intent to break a law would not need to invent motives for breaking the law, in order to disguise other more nefarious motives. A person with no intent lacks the state of mind to have a motive. Satisfying the legal element of intent only requires that Clinton acted deliberately, not that she acted with an particular subjectively evil motive.
Comey’s use of the term “willfully” in his “precedent” argument quoted above, as if it, like Comey’s subjective term “clear,” required some proof of motive, otherwise known as specific intent, is legally outdated. The Supreme Court long ago rejected the idea that, without more, the term “’willfully’ requires proof of any motive other than an intentional violation of a known legal duty.” United States v. Pomponio, 429 U.S. 10, 11-12, (1976). The sole question that “willfully” can raise is whether Clinton knew she had a legal duty not to “remove and retain” confidential or other national defense information, or otherwise mishandle the public’s information.
It is not necessary to parse Supreme Court decisions to understand the fundamental difference between motive and intent that Comey confused, since the distinction is embedded deeply in criminal law. A popular nineteenth century legal handbook, for example, stated quite clearly that “motive with which an act was done is immaterial in deciding the question of criminality. A crime can be committed with a good motive…” “Motive may … sometimes be shown in evidence; but it is merely as evidence of intent. Motive must not be confounded with intent.” May’s Criminal Law (Beale, ed., 2d Ed.: 1893) 18.
Comey, in violation of these black-letter law principles, precisely did “confound [motive] with intent.” In saying that Clinton lacked sufficient criminal intent according to the precedent he described, what he was actually saying was that the FBI did not have clear evidence of the kind of motive that he himself found sufficiently offensive, not what Congress required to prosecute her violation of the law. His argument, discussed further below, was that the unprecedented nature of the professed motives for a Secretary of State to commit the crime of systematically mishandling the nation’s secrets about foreign affairs that were entrusted to her was an excuse for exonerating the crime.
It was not Congress that created such a hierarchy of motives in the relevant statute, a hierarchy that would exonerate the unprecedented motives of corrupt elites but not the quotidian motives of those without power. In order to achieve the political aim of exonerating Clinton, it was her executive branch political allies, on delegation to the FBI Director, who reinterpreted the law to insert a motive element of the crime, where none exists.
Intent is Presumed
Even more important than Comey’s confusion of motive and the ordinary intent element of a crime is his related view of the amount of evidence needed for its proof. The fact of motive, being subjective, may be difficult to prove. The legal element of intent, once properly disentangled from motive, is nowhere near as difficult to prove as Comey wants us to believe. Again, it has been long established in criminal law that, “one [who] does an unlawful act … is by the law presumed to have intended to do it, and to have intended its ordinary and natural consequences.” Id. 19.
When Clinton arranged to have her public business conducted on an unauthorized private email server in her basement against the rules of the State Department, and therefore in violation of a number of federal laws – that act alone was sufficient to prove the intent element of the crime, the same as it would be for any mentally competent, sane, adult. The burden is on Clinton, not Comey, to prove by persuasive evidence that she peculiarly lacked the capacity to have the same intent any reasonable person would have in taking the actions she did. Comey therefore misled the public and Congress when he claimed that as a general rule prosecutors are concerned about “the strength of the evidence, especially regarding intent.” Intent is ordinarily the least “especial” element of a crime.
Comey justified the fix by saying, “I don’t think our investigation established she was particularly sophisticated with respect to classified information.” A predecessor of Clinton as Secretary of State, Madeleine Albright, lectured her employees that “if you are not professional about security, you are a failure.” Even if the kind of ignorance and failure in dealing with the nation’s secrets that apparently persuaded Comey about Yale Law School graduate Clinton’s motive were ever to be believed by a jury, or anyone other than Comey, ignorance of laws (not to mention Comey’s new standard of “lacking sophistication” about laws) concerning such matters is normally not a defense. When Comey was challenged by Rep. Farenthold on this point, Comey’s reply that “you must be aware of the generally wrongful nature of your conduct” did not exclude the case of Clinton. Comey acquitted her because of lack of very specific knowledge, not lack of general awareness that her server would contain classified information. Her ignorance defense would be even more difficult to sustain in view of signed documents where she acknowledged her understanding under oath, for example, that “classified information is marked or unmarked classified information.”
There are some obvious exceptions to the general rule that evidence of motive is unnecessary to proof of the crime, such as for hate crimes, civil rights violations, and treason where evil motive is an express element of the crime. There are also some less obvious exceptions where “Congress may decree otherwise” by expressly adding a “willful” element for criminalizing “not inevitably nefarious” regulatory offenses, such as involving taxation, or currency structuring. See Ratzlaf v. United States, 510 U.S. 135 (1994). Neither has Congress generally created such a motive element for the laws intended to protect the government’s interest in secure communications, nor are such laws normatively neutral regulatory measures of the kind that do require specific intent. Moreover the government has not treated these laws as requiring a nefarious specific intent, in cases like the Deutch case where the motive was similarly simply one of convenience.
One writer who offers legal credentials as authority for rendering political opinion has supported the FBI’s decision to exonerate Clinton. He claims it was justified by “a legal concept called mens rea. As a general rule, most crimes require prosecutors to prove that an individual acted with a particular state of mind before they can be convicted of a specific crime.” First, this statement is misleading to the extent it suggests that “most crimes” require specific (“particular”) intent, or motive. As mentioned above, very few crimes do. “As a general rule,” intent is presumed from the commission of the illegal act, and prosecutors have little concern about difficulties with proving intent.
Second, criminal laws do not necessarily require prosecutors to prove intent. For example, a Florida drug-law was held constitutional that provided “knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense,” meaning that the defendant has to disprove the element of intent, with evidence that rebuts the common-sense presumption that people know what is in containers they control, whether it may be illegal drugs or classified information.
Third, this writer, like Comey, expressly limits his analysis to laws involving classified information, though other laws listed below were also implicated by Clinton’s secret server that go beyond just classified information to include all public records, or at least records involving national defense and foreign relations, without regard to their classification. On the assumption that only mishandling of classified information is prohibited, the mentioned writer thus draws the conclusion: “She had to have acted with knowledge that specific information was classified when it was transmitted. There is little, if any, evidence that Clinton possessed this state of mind.”
This statement, which reproduces the premise for Comey’s fix, can only be called nonsense in light of the description of the general presumption of intent from setting up insecure private communication that would inevitably include routing classified materials and materials about national defense and foreign relations through an insecure private server. No such specific information about any one particular communication was required by any law. Executive Order 13526, Sec. 1.4(d) (2009) defines “classified,” in part, as information relating to “foreign relations or foreign activities of the United States” which “could reasonably be expected to cause identifiable or describable damage to the national security.” Almost any information that a Secretary of State would be handling could have such an impact, some more credibly than others, since the Executive Order further provides that any “foreign government information is presumed to cause damage to the national security.”
It is the job of a Secretary of State to deal with “foreign government information” for the nation on a daily basis. Comey was unable to disagree with Representative Chaffetz’ observation that Clinton would reasonably expect to be communicating classified information through her insecure server on a regular basis. Chaffetz pointed out, “She’s not the head of Fish and Wildlife.”
Unlike the Espionage Act, 18 U.S.C. § 793(a), which applies to anyone and not just public officials, those few laws that Comey selected as within the scope of the FBI inquiry regarding Clinton’s emails, for example § 793(f), do not require a specific motive that the mishandled information was “to be used . . . to the advantage of any foreign nation.” Under § 793(f) the material itself only needed to relate to national defense, which does not concern motive but rather describes the kind of information protected by that particular statute.
Neither statute mentions classification. The statute concerning classification is 18 U.S.C. § 1924 which applies when “an officer, …of the United States … by virtue of his office … becomes possessed of documents or materials containing classified information … knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.” This is the statue which reduces intent to gross negligence, presumably because the classification requirement is designed to place officials on notice of the material’s importance. Similarly, the only specific intent statute of this nature is one that applies to the general public which cannot be expected to know what officials can be expected to know.
Clinton did not have “authority” for removing her materials from the State Department communications system and did intend to retain them at an unauthorized location, which she did until she was forced to return them nearly two years after she left office. There is certainly circumstantial evidence of intent to retain and never return the material, had the existence of her server not been discovered. Asked about whether “keeping the servers at home … obviously is not in compliance with the department’s policies,” Comey answered “Yes.” In response to Rep. Buck’s proposition: “that [Clinton] knew that she didn’t have authority to have this server in her basement?” Comey replied: “Yes, that’s true.” Any reasonable person would have known that classified information would be “removed and retained” by Clinton’s secret server operation. Rep. Buck established this fact by asking: “as secretary of state, she also knew that she would be receiving classified information.” Comey replied, “Yes, in general.”
No Precedent, or Bad Precedent?
Representative Gowdy concluded his questioning by attacking the lack of precedent excuse that Comey gave for recommending against prosecution. Lack of precedent resulted from the fact that no prior Secretary of State had systematically removed their communications including the nation’s secrets from the State Department to their basement where secrets were insecure. Over their lifetime of scandals and corruption, such as the engine for global conflicts of interest labeled “The Clinton Foundation,” the Clinton’s atrophied ethics have always tended to break new ground. The sleaze that led to Bill Clinton’s historic impeachment was also unprecedented. The fact that there are no precedents for Clinton’s particular motive for secrecy resulted in her extraordinary conduct in pursuit of that secrecy.
Both Gowdy and Chaffetz turned the “no precedent” claim around against Comey, suggesting that instead of lack of precedent being an excuse not to prosecute, that Comey was himself making bad precedent by failing to prosecute on the ground of lack of intent. There is now no disincentive for Clinton or her staff or anyone else not to operate the same privatized communications system whether in the presidency or in any other high position of trust, provided they have the political clout to fix the FBI Director.
Artificially limited scope of investigation
Comey reported only three possible charges that could have been brought against Clinton or her aides: intentional or grossly negligent mishandling of “classified information,” both felonies under § 793(f); and knowingly removing and retaining classified information from appropriate systems, a misdemeanor under § 1924.
Comey indicated that his recommendation was limited to “laws governing the handling of classified information,” although the statute governing two of his possible charges, § 793(f,) does not mention classified information. He didn’t mention the various other laws implicated by Clinton’s mishandling of her emails, nor by her misstatements about it in various venues.
The FBI apparently did not record or take sworn testimony of its interview with Clinton, one of the most important interviews in the history of the FBI. So Comey’s subjective judgment that there was no evidence that she made false statements to the FBI, a charge the FBI can usually gin up in such a case, cannot be objectively tested because the interview was not recorded and there is no transcript of the interview. Rep. Mica requested the “302” account of the interview from Comey and this must be made public.
Comey admitted to the Chairman of the House Oversight Committee that the FBI did not investigate lies told to the Benghazi Committee under oath because it did not have a “referral” from Congress. Committee chair Chaffetz responded: “You’ll have one in the next few hours.” Will the FBI also need a referral to investigate the other possible crimes committed by Clinton with respect to her email practices? These would include possible violations of 18 U.S. Code § 641 (one who “disposes of any record … of any department or agency”); 18 U.S.C. § 1030 (1) (exceeding authorized access to computer to obtain government information “unauthorized [for] disclosure for reasons of national defense or foreign relations”); 18 U.S. Code § 1512(c) (one who “destroys, mutilates, or conceals a record … with the intent to impair … availability for use in an official proceeding,” such as a FOIA proceeding, perhaps?); 18 U.S. Code § 1519 (the same, evidence tampering, to “influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States,” like the Clinton Foundation charity conflicts of interest or bribery, perhaps?); 18 U.S. Code § 2232 (“Destruction or removal of property to prevent seizure”); and 18 U.S. Code § 2071 (punishing one who “takes and carries away any record … in any public office”).
The FBI’s “thorough” investigation, taking 3 years of workhours, did not cover Clinton’s associates who sent her classified information and who clearly did have specific intent about particular messages, as revealed when Rep. Massie inquired about “someone down the chain being investigated.” They also seemed to miss the State Department inspector general’s finding that Clinton “did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act” and were therefore punishable under § 2071. See n. 41 and 44 U.S. Code § 3105(2). This potential violation was not within the scope of the FBI’s inquiry. Cf. Lynch (1:30)(“not under purview”) with Comey (Q: “did Secretary Clinton in fact comply with the department’s policies or the Federal Records Act?” Comey: I don’t think so.”)
Another matter raised at the hearings that Comey didn’t pursue was that Clinton may have had on her insecure secret server the names of covert CIA officers, the disclosure of which is a felony under the Intelligence Identities Protection Act.
Bernie Sanders has been preoccupied with convincing his followers that the Democratic Party platform is relevant, by performing his new role in the Kabuki theatre of the corporate Democrats. He is too busy acting out a supposedly important public debate over the irrelevant platform to get involved in this real and personal “servergate” example of impunity for plutocrats. Instead of leading his followers in calling for fair application of the law to his FBI-certified “extremely careless” rival, he was planning to endorse her for the Democratic Party nomination that was stolen from him, without effectively demanding party rules that would prevent current and future such election theft, and/or any other valuable bargaining chip in return.
Therefore, with the newly docile Bernie silenced from any effective action, it was left to Green Party candidate Jill Stein to point out, along with many others, that — aside from the above analysis of Comey’s legalistic obfuscation of the true legal meaning of and limited proof necessary for the element of intent – there was one violation that could be easily understood and accepted by all. “All the elements necessary to prove a felony violation were found by the FBI investigation, specifically of Title 18 Section 793(f) of the federal penal code…. Director Comey said that Clinton was ‘extremely careless’ and ‘reckless’ in handling such information. Contrary to the implications of the FBI statement, the law does not require showing that Clinton intended to harm the United States, but that she acted with gross negligence.”
Section 793(f) punishes anyone “entrusted with … any … information, relating to the national defense, [who] through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed.” No one disputes that the FBI’s “extremely careless” and “reckless” factual findings, which Comey described as common-sense terms that mean “real sloppiness,” precisely satisfy this statute’s reduced intent standard of “gross negligence.” Comey explained that he did not want to apply these literal terms of a statute that reduces the ordinary element of intent to this lower standard, He asserted some institutional disagreement with the statute, although it matches the precise factual findings of the FBI and the law remains on the books to be used to intimidate others.
This stand by Comey. if legally mistaken, would risk violating the constitutional obligation of the executive branch to “take Care that the Laws be faithfully executed.” (Art. II, Sec. 3.) Unless Comey can now produce a cogent constitutional argument that requiring lesser intent in this statute is a violation of due process, then his refusal to indict presents a separation of powers crisis. There is no governing precedent permitting the Justice Department not to enforce this law because it disagrees with it. Congress should either amend the statute to conform it to constitutional principles or alternatively insist that it be enforced on pain of impeachment for failure to execute a valid law so the Supreme Court can decide the issue. Leaving an invalid law on the books after Congress has been formally told that the Justice Department refuses to enforce it is itself of constitutional concern.
Beyond the response of requiring the Justice Department to produce a fully articulated argument for unconstitutionality of the “gross negligence” standard to Congress, one capable of convincing Congress to repeal the law, this gross negligence issue is something of a red herring from the real issue that Comey has dodged: the existence of objective evidence necessary to prove the element of intent, by his confusion of intent with motive. As Rep. Gowdy accurately pointed out, the problem is that Comey is “reading a specific intent element into a gross negligence statute, not even general intent.” In other words Comey is using the standard deception technique of setting up a false dichotomy between specific intent, which none of the statutes support, and gross negligence, which Sec. 1924 supports. Comey is thereby trying to ignore the fact that what Gowdy calls “general intent” or the ordinary intent element of most crimes can be easily proven by the evidence of Clinton’s conduct. Comey has in fact invented his own statute that would require not just specific intent of some important factor, but specific intent with respect to each separate instance of mishandling of classified material rather than general intent for a pattern and practice that any reasonable person would understand would result in mishandling of classified information. No reasonable legislator would write such a statute.
It is unlikely that Comey’s highly flawed legal explanation for the FBI’s institutionally inappropriate spiking of the prosecution of Hillary Clinton will escape the political verdict rendered by Trump and others that it was “rigged.” Whether the motive for rigging was more anti-Sanders or pro-Clinton, Trump will be its main beneficiary. He would almost certainly lose to Sanders, while it is likely he will now be conveniently pulling ahead of Clinton in the final polls prior to his next hurdle, the July 18 Republican Convention. As the Wall Street Journal wrote, “Washington rewards officials who are best at currying public favor, best at surviving, best at creating unfounded legends.” Such an official who has “spent a lifetime with one eye on politics and one eye on his résumé would have behaved exactly as Mr. Comey did.”
It is clear that by eliminating Sanders’ last best hope for nomination Comey has significantly helped elect his future boss, of either party. But Clinton’s history suggests that there is more to this deal yet to be uncovered.
Rob Hager is a public interest litigator who filed an amicus brief in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy and legislation.
FBI Vacuums Up Local Law Enforcement Documents To Block Open Records Requests About Orlando Shooting
The FBI has decided to insert itself into another public records battle. The agency has long been known to cc: itself to public records requests for Stingray documents, but this time it’s claiming any requests for local law enforcement documents related to the Orlando nightclub shooting need to be routed through it.
A June 20 letter from the FBI, attached to the City or Orlando’s lawsuit over withholding 911 calls and other records from 25 media outlets including the Orlando Sentinel, was also sent to the Seminole County Sheriff’s Office with instructions pertaining to how they should respond to records requests.
The letter requests that agencies deny inquiries and directs departments to “immediately notify the FBI of any requests your agency received” so “the FBI can seek to prevent disclosure through appropriate channels, as necessary.”
Notice the FBI says “prevent disclosure,” rather than, say, “assist in determining which documents can be released.” The letter [PDF] claims that all records generated by local law enforcement agencies are now the FBI’s by proxy and that the “investigative documents” exemption [Exemption 7(A)] prevents the release of all documents related to the shooting.
The FBI flat-out states all documents are [evidence and] belong to it.
The FBI considers information obtained from state and local law enforcement agencies in furtherance of its investigation to be evidence, or potential evidence.
Presto! Instant blanket exemption from disclosure at both federal and state level. The FBI takes care to point out which Florida Sunshine Law exemption local agencies can use to withhold documents from requesters.
There’s significant public interest in these documents, especially those related to EMS/police response to emergency calls. This obviously conflicts with the FBI’s determination that its ongoing investigation — which now apparently contains every document created by every responding law enforcement agency in Florida — should preempt any and all requests for documents via Florida open records laws.
Not for nothing have there been several efforts mounted to alter blanket exemptions like the one the FBI is using to insert itself into local level records requests. Unfortunately, it’s very likely the FBI’s wielding of this “open investigation” exemption will be granted deference by the federal court currently presiding over an open records lawsuit between the Orlando Sentinel and the City of Orlando, even though this fight never should have included a federal agency conducting its own concurrent investigation of the mass shooting.
FBI documents sought after in Freedom of Information Act requests for the last year are now available, thanks to a leak to the Intercept. They lay out secret rules for collecting phone records of journalists, bypassing normal judicial processes.
The documents, published Thursday, outline how FBI agents would utilize National Security Letters in obtaining journalists’ phone records. They date back to 2013, the same year the agency’s overseer, the US Department of Justice, amended its standards for subpoenaing for such records.
However, the newly leaked papers are marked “last updated October 2011,” and they seem to conflict with DOJ policy as well as reveal information that many say never should have been secret in the first place.
The FBI’s National Security Letters, or NSLs, are used like search warrants, but unlike a normal warrant, they are not signed off on by any judge or court. They are approved in-house without even a requirement to notify the target. For the purposes of these documents, that means not even the news organization employing the journalist would necessarily be informed. Furthermore, they nearly always come with some form of a gag order, preventing the target from talking about their NSL case.
Getting an NSL authorized typically requires the signatures of the FBI’s general counsel and its National Security Branch’s executive assistant director as well as other chain of command OK’s following the agent making the request, the Intercept reported. That is, as long as the NSL is deemed “relevant” to an investigation pertaining to national security.
Except in investigations over a leak, such as how these FBI documents came to be available, when the purpose of an NSL is “to identify confidential news media sources,” according to the documents, the general counsel and executive assistant director defer to the DOJ National Security Division’s assistant attorney general. To identify a leaker, however, the DOJ is not needed for NSL approval.
The Freedom of the Press Foundation sued the DOJ for a more complete release of these rules, since they had previously been divulged under ample redaction in 2011, along with the rest of the FBI’s Domestic Investigations and Operations Guide, or DIOG.
“These supposed rules are incredibly weak and almost nonexistent — as long as they have that second sign-off they’re basically good to go,” Trevor Timm, the executive director of the media advocacy group told the Intercept. “The FBI is entirely able to go after journalists and with only one extra hoop they have to jump through.”
FBI spokesman Christopher Allen gave little comment to the Intercept, only to say the agency was “very clear” that “the FBI cannot predicate investigative activity solely on the exercise of First Amendment rights.”
Press advocates have criticized President Obama’s administration harshly, as it has pursued more cases, including under the Espionage Act, against publishers, leakers and reporters than prior administrations.
In 2013, in response to backlash over its seizing the phone lines of the Associated Press and keeping tabs on Fox News’s James Rosen, the DOJ released new “Media Guidelines” that conveyed a tightening up of the practices. The information just leaked to the Intercept, though, “makes a mockery” of those guidelines, the Freedom of the Press Foundation wrote Thursday.
It is important to note that NSLs are covered by rules wholly separate from the DOJ’s media guidelines.
Efforts on Capitol Hill to loosen restrictions on NSLs have failed recently, but only by slim margins, and the fight does not seem to be letting up. An amendment to a Senate criminal justice funding bill failed last week by just two votes, while this past Monday, a similar amendment allowing the FBI to demand email header information, web browser history, social media account access and other metadata was blocked by Senator Ron Wyden (D-Oregon), Reuters reported.
Most of the violence occurring between extremist groups in the US is “planned” by FBI informants to “manipulate public opinion” on the upcoming US elections, geopolitical analyst Patrick Henningsen told RT.
“The FBI has infiltrated all major and mid-major activist and movements in the United States over the last 60 years. Every single one whether a right-wing or a left-wing,” Henningsen said, adding that many of the groups have had “FBI informants in the top positions.
“If you look at the history [of] the FBI from the 1950s till the present [they] have infiltrated hundreds of groups – from civil rights groups to… the Ku Klux Klan (KKK)… The FBI has a history of gangs and counter gangs where they infiltrate and [foment] violence on both the right and left and then… arrests will be made and this will be politicized.”
What is more, almost none of the trials in the US that come following the arrests happen without intelligence service involvement, he maintained.
“If you go to any trial… normally half the cases on the prosecution are basically comprised of FBI informants testimonies… including the terrorist cases in the United States,” he said.
The latest violent scuffles in Sacramento, ahead of the Republican National Convention, are no exception and were also organized to “manipulate public opinion” on the US elections, Henningsen believes.
“In terms of groups battling in public it has happened before in the history in the US… The timing of this is no coincidence. We have the Republican National Convention right around the corner and… anti-fascist groups will be there as will the so-called right-wing extremist groups. There will be pitched battles maybe in the streets of Cleveland and all throughout the campaign should Donald Trump become Republican nominee,” he said.
The analyst said it was quite “extraordinary” that police were just “standing around, taking photos not arresting anyone” amidst clear signs of violent threat in Sacramento. Doubting the “authenticity” of the clash, Henningsen was “struck” by the fact that there was no mention of any arrests whatsoever.
“It makes me wonder how authentic this clash was in Sacramento,” he pointed out. On the whole, he said that he did not buy the reports the mainstream media as there is much “more going on behind the scenes.”
According to the analyst, what is actually happening in the US is no more than “a political game” and “drama being played out.”
“I really don’t put a lot of capital in the stories because a lot of this is done for political manipulation,” Henningsen explained saying it is unclear “who is actually pulling the strings” in the extremist groups.
He noted incidents such as the one in Sacramento would only benefit radical groups and “build them up.”