The Federal Bureau of Investigation (FBI) has continued to stonewall requests by the Department of Justice’s inspector general for records pertaining to multiple investigations by the internal watchdog.
The FBI has contended since 2010 that the IG’s office lacks the legal authority to see documents related to certain matters, including grand juries, Title III electronic surveillances and Fair Credit Reporting Act information.
FBI officials also claim they don’t have to share documents related to two investigations of alleged whistleblower retaliation, or those pertaining to an IG review of the FBI’s use of telephonic metadata collected under Section 215 of the Patriot Act, according to the Project on Government Oversight.
The IG said in a report “delaying or denying access to agency documents imperils an IG’s independence and impedes our ability to provide the effective and independent oversight that saves taxpayers money and improves the operations of the federal government.”
“Actions that limit, condition, or delay access have profoundly negative consequences for our work: they make us less effective, encourage other agencies to take similar actions in the future, and erode the morale of the dedicated professionals that make up our staffs,” the report stated.
And it might become even more difficult for the inspector general to get information from the FBI. The 2016 Justice Department budget proposal does not include the section that now forces the Bureau to cooperate with requests from the IG.
Inspector General Michael Horowitz said such a move “could lead the FBI to believe that its conduct has been sanctioned and could cause other department components to conclude that it is acceptable to ignore the Appropriations Act and clear requirements of the IG Act and raise legal objections to the OIG’s access to certain records necessary to perform our important oversight function.”
To Learn More:
Watchdog Barks for Access to FBI Records (by Michael Smallberg, Project on Government Oversight)
Justice Watchdog Continues to Clash with FBI Over Access to Documents (by Charles Clark, Government Executive )
180 Day Report to Congress on the Impact of Section 218 of the Department of Justice Appropriations Act for Fiscal Year 2015 (Department of Justice Inspector General) (pdf)
Justice Dept. Report Details Clashes between FBI and Organized Crime Drug Task Force (by Noel Brinkerhoff, AllGov )
The US Justice Department and the Federal Bureau of Investigation have admitted that almost every examiner with an FBI forensic unit presented flawed testimony in trials in which they provided evidence against criminal defendants for over two decades before 2000.
Out of 28 examiners working for the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches so that it favored prosecutors in over 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project.
NACDL and the Innocence Project are currently aiding the government with the largest post-conviction review of dubious forensic evidence, The Washington Post reported on Friday.
The cases were related to 32 defendants who received death sentences, of whom 14 have been executed or died in prison so far, the groups said.
The two bodies are under an agreement with the US government to disclose results after the review of the first 200 convictions has been completed.
Peter Neufeld, co-founder of the Innocence Project, said, “The FBI’s three-decade use of microscopic hair analysis to incriminate defendants was a complete disaster.”
“We need an exhaustive investigation that looks at how the FBI, state governments that relied on examiners trained by the FBI and the courts allowed this to happen and why it wasn’t stopped much sooner,” Neufeld said.
Mistakes made by the FBI alone do not mean that there was no other evidence to prove a convict’s guilt.
Defendants and federal and state prosecutors in 46 states and the District of Columbia are being urged to provide grounds for appeals as four defendants were previously exonerated.
Legal analysts believe that the acknowledgment marks one of the country’s largest forensic scandals, showing how the US courts have not been able to do their job properly for decades to protect false scientific information from juries.
Long-suspected problems with forensic techniques, including hair and bite-mark comparisons, have resulted in wrongful convictions in over one-quarter of 329 DNA-exoneration cases since 1989.
Court Rejects Request That Secret NSA Evidence Used Against Terrorism Suspect Be Shared With Suspect’s Lawyers
We’ve been following the case of Adel Daoud, an American citizen charged with terrorism. He’s one of the many, many folks that was arrested following one of the FBI’s infamous home grown plots (i.e. he was never actually involved in any terrorism, as all of his “co-conspirators” were actually FBI agents or informants, and there was never any actual threat or chance that he’d pull off an actual terrorist attack). Back during the (pre-Snowden) debates on renewing Section 702 of the FISA Amendments Act, Senator Dianne Feinstein used Daoud’s case as a specific example of when the program had been useful in stopping terrorism.
That caught the attention of Daoud’s lawyers, who noted that this was the first they’d heard of this, and it seemed pretty clear that the government had withheld the evidence that was used to bring Daoud to trial in the first place (which is, as you know, not really allowed). After asking for the evidence, the district court first said no, but then ordered that some of the documents being filed actually be shared with Daoud’s attorneys (who have the necessary security clearances). The DOJ, of course, flipped out at this idea that the lawyers for someone they’re trying to lock up forever should actually be able to see the evidence used against him and how it was collected.
This resulted in an appeals court hearing, which bizarrely had to happen twice after the FBI so scared court staff that they failed to record the public portion of the oral hearings. The hearings were also odd in that, at one point, everybody but DOJ folks and the judges were kicked out of the courtroom, raising serious questions about basic due process.
Unfortunately, Judge Richard Posner’s ruling (right after coming out with his good ruling on the public domain) has found that the evidence does not need to be shared with Daoud’s lawyers. He slams the district court judge for overreacting and over-valuing the concept of the “adversarial process” in the court room. Seriously.
The judge appears to have believed that adversary procedure is always essential to resolve contested issues of fact. That is an incomplete description of the American judicial system in general and the federal judicial system in particular. There are ex parte or in camera hearings in the federal courts as well as hearings that are neither or both. And there are federal judicial proceedings that though entirely public are nonadversarial, either partly or entirely.
Posner basically says that the district court judge herself should have looked over the materials first, to determine if it makes sense to pass them on, rather than defaulting to saying that they should be shared with the lawyers. As such, he basically reveals that the “secret hearing” that was held was to go over the material with the appeals court judges, and they’re satisfied that nothing needs to be revealed to Daoud’s attorneys.
… our study of the materials convinces us that the investigation did not violate FISA. We shall issue a classified opinion explaining (as we are forbidden to do in a public document) these conclusions, and why therefore a remand to the district court is neither necessary nor appropriate.
Posner also, not surprisingly, rejects the objection by Daoud’s lawyers to that secret hearing, noting that it was necessary to determine if the DOJ lawyers were being fully honeset with the court:
Their objecting to the classified hearing was ironic. The purpose of the hearing was to explore, by questioning the government’s lawyer on the basis of the classified materials, the need for defense access to those materials (which the judges and their cleared staffs had read). In effect this was cross-examination of the government, and could only help the defendant.
Defense counsel’s written motion cites no authority for forbidding classified hearings, including classified oral arguments in courts of appeals, when classified materials are to be discussed. We don’t think there’s any authority it could cite.
And, voila, the secret law and secret courts and secret evidence continue unabated…
For a very good analysis of this ruling, I recommend Steve Vladeck’s take, in which he notes that Posner seems to (somewhat bizarrely) confuse sharing details with Daoud’s lawyers in secret, with “openness” to the public. As Vladeck notes, the district court judge recognized that not everything had to happen publicly, but was (reasonably) concerned that just having a judge look over the secret FISA court ruling would not be sufficient, since the judge would not have the same view as the defense attorneys. Posner seems to ignore or misinterpret all of that.
The problem, from Judge Coleman’s perspective, is that it may not always be possible for a district judge to determine whether disclosure is necessary (as opposed to whether it “may be necessary”) without the benefit of adversarial presentation. That is to say, § 1806(f) conditions the disclosure of classified FISA materials to a defendant (or, at least, his security-cleared counsel) upon a finding by the district judge that may, in some cases, only be possible with defense counsel’s participation. This is why, in her order mandating disclosure, Judge Coleman devoted so much of her energy to the importance of adversarial proceedings, especially in criminal cases—not because all proceedings in U.S. courts are adversarial (they’re not), but because, in this context specifically, adverse-ness makes it easier for a judge to have faith that she is comporting with her statutory and constitutional obligations.
But rather than accept—or at least sympathize with—Judge Coleman’s efforts to square a circle, Judge Posner derided them by suggesting that the government has a right to keep these materials secret, repeatedly criticizing calls (one is left to wonder from where) for “openness.” “Not only is federal judicial procedure not always adversarial,” Posner wrote; “it is not always fully public.” This is true, but entirely beside the point; Judge Coleman wasn’t seeking to open the proceedings; she was seeking to provide security-cleared defense counsel (who, just like everyone else, are subject to the Espionage Act) with access to classified information.
Nearly 95 per cent of terrorist arrests have been the result of FBI foiling its own entrapment plots as a part of the so-called post-9/11 War on Terror, a new study revealed.
According to the report entitled ‘Inventing Terrorists: The Lawfare of Preemptive Prosecution’, the majority of arrests involved the unjust prosecution of targeted Muslim Americans.
The 175-page study by Muslim advocacy group SALAM analyzes 399 individuals in cases included on the list of the US Department of Justice from 2001 to 2010.
“According to this study’s classification, the number of preemptive prosecution cases is 289 out of 399, or 72.4 percent. The number of elements of preemptive prosecution cases is 87 out of 399, or 21.8 percent. Combining preemptive prosecution cases and elements of preemptive prosecution cases, the total number of such cases on the DOJ list is 376, or 94.2 percent,” the report concluded.
The authors define ‘preemptive prosecution’ as “a law enforcement strategy adopted after 9/11, to target and prosecute individuals or organizations whose beliefs, ideology, or religious affiliations raise security concerns for the government.”
Nearly 25 percent of cases (99 of 399) contained material support charges. Another almost 30 per cent of cases consisted of conspiracy charges. More than 17 per cent of the analyzed cases (71 of 399 cases) involved sting operations. Over 16 percent of cases (65 of 399 cases) included false statement or perjury charges, and around six percent of cases involved immigration-related charges.
According to the report, since 9/11 only 11 cases posed “potentially significant” threat to the United States.
“Only three were successful (the [Tamerlan and Dzhokhar] Tsarnaev brothers and Major Nidal Hasan), accounting for 17 deaths and several hundred injuries,” the paper says.
One of the FBI’s strategies involved “using agents provocateur to actively entrap targets in criminal plots manufactured and controlled by the government.”
“The government uses agents provocateur to target individuals who express dissident ideologies and then provides those provocateurs 25 with fake (harmless) missiles, bombs, guns, money, encouragement, friendship, and the technical and strategic planning necessary to see if the targeted individual can be manipulated into planning violent or criminal action,” the report concluded.
The government could also choose to use “minor ‘technical’ crimes,” such as errors on immigration forms, an alleged false statement to a government official, gun possession, tax or financial issues, etc., to go after someone for their “ideology.”
“What they were trying to do is to convince the American public that there is this large army of potential terrorists that they should all be very-very scared about. They are very much engaged in world-wide surveillance and this surveillance is very valuable to them. They can learn a lot about all sorts of things and in a sense control issues to their advantage,” Steven Downs, an attorney for Project SALAM, which issued the report, told RT. “And the entire legal justification for that depends on there being a war on terror. Without a war on terror they have no right to do this. So they have to keep this war on terror going, they have to keep finding people and arresting them and locking them up and scarring everybody.”
In the conclusion, authors of the report offered the US government several recommendations that the DOJ “should employ” to change the present unfair terrorism laws. A total of seven recommendations call on the US government to accurately identify people who offer material support for terrorism, strengthen the “entrapment” defense in the courts; abolish “terror-enhanced sentencing” that triples or quadruples jail time in cases linked to terrorist acts; disallow secret court proceedings, and to immediately notify defendants if any evidence in their case is derived from secret surveillance.
FBI Bust Another Handcrafted ‘Terrorist’ For The Crime Of Thinking About Supporting A Terrorist Organization
The FBI’s string of thwarted, self-created terrorist plots continues unabated. Why look for terrorists when you can just craft them yourselves? Digital Fourth has the rundown on the latest “coup” by the agency.
The news this morning is full of the arrest of yet another American on charges of “attempting to provide material support to a foreign terrorist organization.” Nobody’s suggesting that 20-year-old National Guardsman Nicholas Teausant of Acampo, CA is a terrorist, or that he provided any help whatsoever to terrorists, or that he was in contact, ever, with any actual terrorists. But, the media breathlessly report, he’s still facing charges that can put him in jail through to the 2030s.
The more you dig into the story, the more ridiculous it becomes. And Alex Marthews digs in deeply. The propellant (if you will) for this latest thwarted terrorist plot is little more than a campfire story.
Well, seems that he was on a camping trip sometime last year – or maybe not; investigators couldn’t corroborate that the camping trip ever happened – but anyway, afterwards, Teausant is reported to have said to some guy that he had been on a camping trip and had talked with friends about “blowing up the LA subway,” but that they hadn’t done anything because “they” had been “tipped off”.
Unfortunately for Teausant (but fortunately for America!), the “somebody” he relayed his camping conversation to was an FBI agent. Recognizing that Teausant needed a little more prodding to turn against his own nation, the agent connected him with a terrorist tutor of sorts (another FBI agent). This agent/mentor suggested Teausant travel to Canada to further radicalize and then sent more FBI agents to arrest him at the border. Voila, another terrorist attack thwarted.
Teausant is now facing charges of “attempting to provide material support” to a terrorist organization, a crime that seems to be treated just as severely as actually providing material support. As evidence of Teausant’s terrorist proclivities, agents cited posts to his “online photo account” which said such things as desiring to see America’s downfall and “I would love to join Allah’s Army but I don’t know where to start.”
They also cited the following evidence, which exposes the USA’s contradictory and arbitrary determination of who does and does not qualify as a terrorist.
Also, Teausant was apparently trying to figure out how to go to Syria and fight against Bashar al-Assad. This horrifying offense was committed at the same time that the US government was … trying to figure out how to go to Syria and fight against Bashar al-Assad. Last time I checked, Assad was a brutal dictator. But the winds have changed, and now that some of the people fighting against him are Sunni radicals inspired by, but actually repudiated by, al-Qaeda, I guess that makes Assad now a staunch American ally and defender of secular values?
The complaint said Teausant referred to himself as a convert to Islam but did not give details about when or why he may have done so. He met the informant through a mutual acquaintance, the document said.
Among Teausant’s plans was to appear in videos for the group, without covering his face — to be “the one white devil that leaves their face wide open to the camera,” he was quoted in the complaint as saying…
The complaint also states that Teausant told the informant he has an infant daughter, and had arranged for his mother to get custody of the girl if he disappeared.
At one point, the informant questioned him about whether he was serious about his plans, given that he talked a lot but did not seem to follow through.
So, while there are indications that Teausant could have wandered down the path into Islamic radicalism, at the point he was arrested he had done little more than talk smack around the campfire with some other young men (Teausant is only 20) and talk further smack with undercover agents. But as usual, it looks as though the FBI had to do most of the legwork to convert this person into a potential terrorist. It was the FBI, not Teausant, that arranged to get him an “application” to join a violent Al-Qaeda-linked group. It was the FBI that pushed him towards Canada to further his terrorist education. And it was the FBI that convinced itself that Teausant was enough of threat to lock up for a potential 15 years, even though he had never actually “provided material support” to a terrorist organization.
The FBI now gets to chalk up another win in the “terrorist captured” column despite having done little more than arrest a guy who talked a lot, but wasn’t big on following through. Sure, there’s always a chance Teausant would have done all of this on his own, but rather than sit back and keep an eye on him, the FBI proactively made his moves for him… and arrested him for following the undercover agents’ bidding.
Marthews points out how completely bizarre this is in a land where free speech is considered a right.
In a more sensible legal environment, Teausant would walk free because, let me think now, because we have a First Amendment and he is entitled to say whatever dumb thing he wants to so long as he doesn’t actually harm anyone, and the FBI informant and agent would be being charged with entrapment.
That’s the way it should work, but that’s not the way it does work. The counterterrorism money train comes off the rails if government agencies fail to capture terrorists. So, rather than restrict themselves to investigating terrorist organizations and sniffing out plots, the FBI has chosen to pad the books with ringers. Teausant may have made some poor decisions and said some unwise things, but even the FBI’s preponderance of evidence fails to portray him as much more than a dumb kid with stupider dreams. And rather than allow the events to play out, and possibly expose the FBI’s alleged terrorist sympathizer as an ineffectual pretender, it set him up for a date with the penal system. All the while, the accolades and money keep rolling in, ensuring the FBI’s terrorist manufacturing apparatus will keep humming smoothly.
The U.S. Department of Justice (DOJ) has treated mortgage fraud cases as a low priority, even though President Barack Obama promised to crack down on such crimes in the wake of the 2008 financial crisis.
DOJ also greatly exaggerated its success in prosecuting mortgage fraud, according to an investigation by the department’s Office of the Inspector General (IG).
Attorney General Eric Holder Jr. declared four years ago that mortgage fraud crimes had “reached crisis proportions,” and promised his agency would be “fighting back” in response.
But the IG’s report (pdf) shows the Federal Bureau of Investigation (FBI) put mortgage fraud at the bottom of its criminal priority list—after receiving extra funding ($196 million from the 2009 to 2011) to address this problem. In some major cities, mortgage fraud wasn’t even on the FBI’s radar as any kind of a priority.
“Despite receiving significant additional funding from Congress to pursue mortgage fraud cases, the FBI in adding new staff did not always use these new positions to exclusively investigate mortgage fraud,” the report states.
A “significant backlog of unaddressed and pending mortgage fraud investigations” was disclosed by supervisors interviewed by IG investigators. In fact, important fraud cases were completely shut down by the FBI, not due to a lack of resources, but because the Bureau’s resources were diverted to other operations that were given higher priority, according to the report.
Just as disturbing was the fact that Justice inflated its numbers to make it appear prosecutors were doing more than they actually were.
In 2012, Holder announced his lawyers had charged 530 people during the previous year with mortgage fraud that had cost homeowners more than $1 billion.
In truth, the numbers were more like 107 people charged in cases totaling only $95 million, the IG found. Even after the figures were proven to be incorrect, the DOJ continued to cite the false statistics for nearly a year.
“The inspector general’s report sheds light on what looks like an attempt by the Justice Department to pull the wool over the public’s eyes with respect to its efforts to go after the wrongdoers involved in mortgage fraud,” Senator Charles Grassley (R-Iowa), the ranking member on the Senate Judiciary Committee, said in a statement. “According to the inspector general, the department wasted time cooking the numbers about the cases it pursued, when it should have been prosecuting cases.”
The IG offered numerous recommendations to the department, most of which involved fixes to DOJ’s recordkeeping system that had produced such inaccurate figures.
The Justice Department objected to the IG’s conclusions, citing prosecutors doubling the number of mortgage fraud indictments from 2009 to 2011.
“The facts regarding the department’s work on mortgage fraud tell a much different story than this report,” Ellen Canale, a department spokeswoman, told The New York Times. “As the report itself notes, even at a time of constrained budget resources, the department has dedicated significant manpower and funding to combating mortgage fraud.”
Mortgage fraud—through falsification of documents by lenders and brokers—was one of the catalysts of the 2008 financial collapse. Fraud involving mortgage-backed securities, said to be larger in scope and also a contributing factor to the collapse, is considered by the FBI to be securities fraud and was not addressed by the IG report.
To Learn More:
U.S. Criticized for Lack of Action on Mortgage Fraud (by Matt Apuzzo, New York Times)
Mortgage Fraud Efforts Fell Short, Justice Department Inspector General Concludes (by Jeffrey Benzing, Main Justice)
Audit of the Department of Justice’s Efforts to Address Mortgage Fraud (U.S. Department of Justice, Inspector General) (pdf)
Justice Dept. Sues Bank of America over Prime Mortgage Fraud (by Noel Brinkerhoff, AllGov)
Big Banks Slither out of Mortgage Fraud Review with Minor Costs (by Noel Brinkerhoff, AllGov)
Washington – Ecuadorian bankers Roberto and William Isaias, current fugitives, donated large sums of money to campaigns of U.S. politicians, the press revealed today.
Reports underline that the Federal Bureau of Investigation (FBI) is investigating cases that involve Congressional Republican Senator Marco Rubio, Democrat Robert Menendez and Republican Representative Ileana Ros-Lehtinen, among other politicians.
New York’s NBC network says the FBI suspects that Menendez, through phone calls and recommendation letters to the Department of State and other bodies, helped the Ecuadorian brothers establish themselves in the U.S. in exchange for donations to his reelection campaign.
Journalist and blogger Alberto Padilla claims he can confirm that, since they arrived to live in Miami, the Isaias have financed an active lobbying campaign against the Rafael Correa administration in Ecuador and have also aided senators, in exchange for being allowed to remain in the United States.
The Isaias were sentenced in absentia to eight years of imprisonment on April 11, 2012 by the National Court of Justice after a judicial process that lasted 13 years and in which 54 judges participated.
In the Ros-Lehtinen case, the Daily Beast website assured that she recently received money from the former bankers in exchange for help.
The Isaias had donated at least $23,700 USD to Ros-Lehtinen during the 2010, 2012 and 2014 electoral cycles, according to federal contribution campaign registers.
The Isaias also contributed to the campaign funds of Florida’s Senator Bill Nelson, and Congresswoman and also President of the National Democrat Committee Debbie Wasserman-Schultz and Representative Joe Garcia.
CIA: We Only Spied On Senate Intelligence Committee Because They Took Classified Documents That Prove We’re Liars
Earlier this week, we wrote about the accusations that the CIA was spying on Senate staffers on the Senate Intelligence Committee as they were working on a massive $40 million, 6,300-page report condemning the CIA’s torture program. The DOJ is apparently already investigating if the CIA violated computer hacking laws in spying on the Senate Intelligence Committee computers. The issue revolved around a draft of an internal review by the CIA, which apparently corroborates many of the Senate report’s findings — but which the CIA did not hand over to the Senate. This internal report not only supports the Senate report’s findings, but also shows that the CIA has been lying in response to questions about the terror program.
In response to all of this, it appears that the CIA is attempting, weakly, to spin this as being the Senate staffers’ fault, arguing that the real breach was the fact that the Senate staffers somehow broke the rules in obtaining that internal review. CIA boss John Brennan’s statement hints at the fact that he thinks the real problem was with the way the staffers acted, suggesting that an investigation would fault “the legislative” branch (the Senate) rather than the executive (the CIA).
In his statement on Wednesday Brennan hit back in unusually strong terms. “I am deeply dismayed that some members of the Senate have decided to make spurious allegations about CIA actions that are wholly unsupported by the facts,” Brennan said.
“I am very confident that the appropriate authorities reviewing this matter will determine where wrongdoing, if any, occurred in either the executive branch or legislative branch,” Brennan continued, raising a suggestion that the Senate committee itself might have acted improperly.
A further report detailed what he’s talking about. Reporters at McClatchy have revealed that the Senate staffers working on this came across the document, printed it out, and simply walked out of the CIA and over to the Senate with it, and the CIA is furious about that. Then, in a moment of pure stupidity, the CIA appears to have confronted the Senate Intelligence Committee about all of this… directly revealing that they were spying on the Committee staffers.
Several months after the CIA submitted its official response to the committee report, aides discovered in the database of top-secret documents at CIA headquarters a draft of an internal review ordered by former CIA Director Leon Panetta of the materials released to the panel, said the knowledgeable person.
They determined that it showed that the CIA leadership disputed report findings that they knew were corroborated by the so-called Panetta review, said the knowledgeable person.
The aides printed the material, walked out of CIA headquarters with it and took it to Capitol Hill, said the knowledgeable person.
“All this goes back to what is the technical structure here,” said the U.S. official who confirmed the unauthorized removal. “If I was a Senate staffer and I was given access to documents on the system, I would have a laptop that’s cleared. I would be allowed to look at these documents. But with these sorts of things, there’s generally an agreement that you can’t download or take them.”
The CIA discovered the security breach and brought it to the committee’s attention in January, leading to a determination that the agency recorded the staffers’ use of the computers in the high-security research room, and then confirmed the breach by reviewing the usage data, said the knowledgeable person.
There are many more details in the McClatchy report, which I highly recommend reading. And, yes, perhaps there’s an argument that Senate staffers weren’t supposed to take such documents, but the CIA trying to spin this by saying it was those staffers who were engaged in “wrongdoing” is almost certainly going to fall flat with Congress. After all, the intelligence committee is charged with oversight of the CIA, not the other way around. “You stole the documents we were hiding from you which proved we were lying, so we spied on you to find out how you did that” is not, exactly, the kind of argument that too many people are going to find compelling.
Still, the latest is that the CIA has successfully convinced the DOJ to have the FBI kick off an investigation of the Senate staffers, rather than of the CIA breaking the law and spying on their overseers.
Of course, the CIA may still have one advantage on its side: there are still some in Congress who are so supportive of the intelligence community itself that even they will make excuses for the CIA spying on their own staff. At least that seems to be the response from Senate Intelligence vice chair Senator Saxby Chambliss, one of the most ardent defenders of the intelligence community he’s supposed to be watching over. When asked about all of this, he seemed to be a lot more concerned about the staffers supposedly taking “classified” documents than about the CIA spying on those staffers:
“I have no comment. You should talk to those folks that are giving away classified information and get their opinion,” Intelligence Committee Vice Chairman Saxby Chambliss (R-Ga.) said when asked about the alleged intrusions.
A recently released 9/11 Commission memo highlights the role of government “minders” who accompanied witnesses interviewed by the commission. It was added to the National Archives’ files at the start of the year and discovered there by History Commons contributor paxvector.
The memo, entitled “Executive Branch Minders’ Intimidation of Witnesses,” complains that:
- Minders “answer[ed] questions directed at witnesses;”
- Minders acted as “monitors, reporting to their respective agencies on Commission staffs lines of inquiry and witnesses’ verbatim responses.” The staff thought this “conveys to witnesses that their superiors will review their statements and may engage in retribution;” and
- Minders “positioned themselves physically and have conducted themselves in a manner that we believe intimidates witnesses from giving full and candid responses to our questions.”
The memo was drafted by three staffers on the commission’s Team 2, which reviewed the overall structure of the US intelligence community. One of the drafters was Kevin Scheid, a senior staffer who led the team. His co-writers were Lorry Fenner, an air force intelligence officer, and lawyer Gordon Lederman. The complaint was sent to the commission’s counsels, Daniel Marcus and Steve Dunne, in October 2003, about halfway through the commission’s 19-month life.
According to the memo, some minders merely policed prior agreements between the commission and their parent agency about what the commission could ask witnesses, and others were simply there to make a list of documents the commission might want based on a witness’ testimony. However, some minders saw their role differently.
Intimidation through Physical Positioning
The three staffers argued minders should not answer questions for witnesses because they needed to understand not how the intelligence community was supposed to function, but “how the Intelligence Community functions in actuality.” However: “When we have asked witnesses about certain roles and responsibilities within the Intelligence Community, minders have preempted witnesses’ responses by referencing formal polices and procedures. As a result, witnesses have not responded to our questions and have deprived us from understanding the Intelligence Community’s actual functioning and witnesses’ view of their roles and responsibilities.”
The memo also describes the minders’ conduct in detail: “… [M]inders have positioned themselves physically and have conducted themselves in a manner that we believe intimidates witnesses from giving full and candid responses to our questions. Minders generally have sat next to witnesses at the table and across from Commission staff, conveying to witnesses that minders are participants in interviews and are of equal status to witnesses.”
The staffers also worried about minders taking “verbatim notes of witnesses’ statements,” as they thought this “conveys to witnesses that their superiors will review their statements and may engage in retribution.” They believed that “the net effect of minders’ conduct, whether intentionally or not, is to intimidate witnesses and to interfere with witnesses providing full and candid responses.”
Another problem with the verbatim notetaking was that it “facilitates agencies in alerting future witnesses to the Commission’s lines of inquiry and permits agencies to prepare future witnesses either explicitly or implicitly.”
In response to this, the three staffers proposed not that minders be banned from interviews, but a set of rules governing minders’ conduct. For example, minders were to keep a “low profile,” sit out of witnesses’ sight, not take verbatim notes and not answer any questions directed at the witnesses.
Perhaps the most remarkable proposal is that the number of minders be limited to one per witness. The memo indicates that where an interviewee had served in multiple agencies, more than one minder would accompany the witness. The memo therefore requests, “Only one minder may attend an interview even if the witness served in multiple agencies,” meaning a witness would at least not be outnumbered by his minders.
False Statement by Chairman Kean
Commission Chairman Tom Kean, a Republican, first raised the issue of minders in a press briefing in early July 2003 . He said, “I think the commission feels unanimously that it’s some intimidation to have somebody sitting behind you all the time who you either work for or works for your agency. You might get less testimony than you would.”
He was asked about the minders again on September 23 at another press briefing. Instead of saying the minders represented “intimidation,” he commented: “Talking to staff, what they have told me is that as they’ve done these interviews, that the interviewees are encouragingly frank; that they by and large have not seemed to be intimidated in any way in their answers. … I’m glad to hear that it’s — from the staff that they don’t feel it’s inhibiting the process of the interviews.”
The commission’s Vice Chairman Lee Hamilton, a Democrat, commented, “it is our feeling that thus far, the minders have not been an impediment, in almost all cases.” He added that there were “one or two instances where the question has arisen,” but, “neither are we aware at this point that the presence of a minder has substantially impeded our inquiry. And nor have we run into a situation where we think a witness has refrained from speaking their minds.”
However, the Team 2 memo, sent a mere nine days after Kean and Hamilton’s remarks, shows Kean’s statements to have been untrue. The memo even referenced “Minders’ Intimidation of Witnesses” in the title, contained unusually strong language and was co-drafted by a leader of one of the commission’s teams.
Nevertheless, it is unclear whether Kean and Hamilton made the false statements knowingly. One of the criticisms at the commission was that the ten commissioners were cut off from the body of the staff, and all information that flowed from the staff to the commissioners went through the commission’s executive director, Philip Zelikow.
Author Philip Shenon, who wrote a history of the commission, found that at the start of the commission’s work Zelikow drafted a welcome memo containing ground rules for staffers, such as not talking to journalists. One of the rules was that the staff should not talk freely to the commissioners. If a staffer were contacted by a commissioner, he should not deal with the commissioner himself, but contact Zelikow or his deputy, who would then “be sure that the appropriate members of the commission’s staff are responsive.”
This rule was rescinded after complaints from some of the commissioners, including former Deputy Attorney General Jamie Gorelick. Nevertheless, Zelikow’s control of information continued. When the commission’s counterterrorism team found a draft of the final report to be overly deferential to the FBI, they did not launch a formal objection to the draft’s language through the commission’s bureaucracy, but a female staffer cornered Gorelick “where Zelikow would not see it”–in the ladies room.
Diana Durand, a Texas woman who apparently has been romantically involved with Congressman Michael Grimm, has been arrested and charged with illegally funneling money into the New York congressman’s 2010 campaign.
She is also accused of steering “straw donations” into the campaign of yet another congress member, Rep. Aaron Schock (R-IL), according to the New York Daily News.
A straw donation is a donation to a political campaign made by one person, though under another person’s name. It is a way of getting around legal limits on the amount of money that can be contributed to political candidates.
Schock, like Grimm, is an avid supporter of Israel.
Durand is 47-years old and was arraigned in federal court in Houston on Wednesday. She has hired an attorney, Stuart Kaplan, who is a longtime associate of Grimm, both having served in the FBI.
Grimm left the FBI in 2006, was elected to Congress in 2010, and in 2012 the FBI opened an investigation into him over possible illegal campaign donations to his 2010 congressional campaign made by supporters of Israeli Rabbi Yoshiyahu Pinto.
Durand is free on $50,000 bond and is scheduled to appear in court on January 30. The following is from the New York Daily News account:
The single mother of one worked with Grimm before his election when he launched a trucking company near Houston. Records list her brother and sister-in-law as executives at the firm.
Sources said Durand and Grimm, 43, who is divorced, were involved romantically, and that she visited him in Washington after his election.
Durand was busted Friday, nearly five months after a Brooklyn judge first ordered her arrest. Feds spent the intervening months in an unsuccessful bid to win her cooperation in an ongoing probe into allegations that Grimm and supporters encouraged donors to make illegal contributions to his 2010 campaign, people with knowledge of the case said.
As I reported previously, campaign donations totaling more than $500,000 were reportedly solicited on Grimm’s behalf by a top Pinto aide, Ofer Biton, who was arrested in 2012 for immigration fraud and who pled guilty to that charge last August.
The FBI had sought to have Biton turn state’s evidence against Grimm, but he has refused, and apparently Durand intends doing likewise. Also as I repoted before, Grimm has friends in high places—Israel—where he reportedly maintains close ties to Prime Minister Benjamin Netanyahu, and according to reports, the Israeli police have done their best to sabotage the FBI’s investigation.
Schock would appear to be the second congress member implicated in what seems to be a widening investigation. According to the Chicago Tribune:
Schock, 32, is a prolific fundraiser serving his third term in Congress. He had more than $2.9 million in his war chest in September, when the most recent campaign-finance reports were filed.
The House Ethics Committee has been examining Schock’s fundraising after reports that in 2012, he solicited $25,000 for a super PAC, in excess of a $5,000 limit for lawmakers asking for money for that kind of independent-expenditure group.
The Tribune also reports on a statement issued by Schock’s office in which a spokesperson said, “This literally is the first our office has heard of this issue.”
In March of 2010, Schock and 326 other members of Congress signed onto a letter to Secretary of State Hillary Clinton affirming their “commitment to the unbreakable bond that exists between our country and the State of Israel and to express to you our deep concern over recent tension.”
The “recent tension” referred to by the signatories of the letter is an incident I referred to in my first article on the Grimm investigation. On March 9, 2010 the Israeli government announced the construction of 1,600 new homes, for Jews only, to be built in East Jerusalem. The announcement coincided with a state visit to Israel by US Vice President Joe Biden, and was viewed by many as insulting to America. Clinton referred to it as “deeply negative” for US-Israeli relations.
And as I also noted:
Coincidentally, simultaneous to the slight against Biden, the parents of Rachel Corrie were in Israel for the start of their civil trial charging the Israeli military in the wrongful death of their daughter.
Biden’s response to the announcement of the 1,600 new homes was to issue a servile statement in which he declared that “there is no space between the United States and Israel,” whereupon he boarded a plane and jetted home to America without offering any words of support to the Corrie family.
Schock and the other signers of the letter went on to state:
Our valuable bilateral relationship with Israel needs and deserves constant reinforcement. As the Vice-President said during his recent visit to Israel: “Progress occurs in the Middle East when everyone knows there is simply no space between the U.S. and Israel when it comes to security, none. No space.” Steadfast American backing has helped lead to Israeli peace treaties with Egypt and Jordan. And American involvement continues to be critical to the effort to achieve peace between Israel and the Palestinians.
We recognize that, despite the extraordinary closeness between our country and Israel, there will be differences over issues both large and small. Our view is that such differences are best resolved quietly, in trust and confidence, as befits longstanding strategic allies. We hope and expect that, with mutual effort and good faith, the United States and Israel will move beyond this disruption quickly, to the lasting benefit of both nations.
Born of Morrocon Jews, Pinto is one of the richest rabbis in Israel and is viewed by some as a religious and financial “guru” and a “wonder rabbi.” His adherents in the past have included some of the wealthiest oligarchs in the world and also Israeli political leaders:
In Israel, the list of those seeking Rabbi Pinto’s advice reads like a high-society gossip column: Multi-millionaires Lev Leviev and Nochi Danker, opposition leader Tzipi Livni and former Industry Minister Benjamin Ben Eliezer, who the rabbi supposedly brought out of a coma earlier this year. It is even rumoured that Prime Minister Benjamin Netanyahu consults him.
Now, however, he seems to be in hotwater with Israeli police, who have charged him with attempting to bribe a police official—apparently in a bid to sabotage the FBI’s investigation of Grimm. The FBI is hoping to have Pinto testify against Grimm, and reportedly is in possession of a wiretap audio in which Israeli police can be heard threatening the rabbi.
And finally, as I reported yesterday, Grimm apparently isn’t the only Congress member who has accepted donations from Pinto’s wealthy followers. House Majority Leader Eric Cantor is reported to have as well.
Cantor’s ties to Pinto have also been commented upon by blogger Richard Silverstein, who has written extensively on the FBI’s investigation of Grimm:
The key question is whether the techniques and solicitors used in Grimm’s campaign match those used by Cantor. If so, then the FBI is very interested in Cantor. If Cantor was smarter than Grimm and didn’t use mafiosi to collect cash as Grimm did, then he may not get into trouble. But the very fact that Cantor dipped into Grimm’s cookie jar so heavily is mighty suspicious. Who knows where it will lead?
Grimm, by the way, is not Jewish but of Italian descent, which makes us wonder why the Israelis are apparently so keen to protect him—and after all, there are plenty of Israel supporters in Congress. But as Silverstein notes, it’s insurance:
To be clear, I don’t have a smoking gun that points to Netanyahu involvement in sabotaging the FBI investigation. But I do have a series of strong circumstantial evidence that leads in that direction. But why would Bibi or Sara care about this enough to take such risky actions as agitating the FBI? Let’s return to that grand strategy of electing even more Israel-friendly GOP members of Congress. If Michael Grimm was their model to see whether Pinto was a new source of campaign cash, they needed to protect him if he might be going down. Rather than lose their investment and shut down this conduit for millions in new campaign funding, they’d go to the mat to help Grimm.
More background on Bibi’s strategy in dealing with the U.S. political process: he’s found that presidents may not like him because they are slightly more independent than members of Congress. But Congress is in his back pocket due to that campaign largess I mentioned earlier. Bibi is hated in the White House but loved (or feared) in Congress. When he can’t get an invitation to the White House, he goes over the president’s head and gets to address a Joint Session of Congress.
This is the same strategy he and the Lobby are following regarding the Iran sanctions legislation. The president doesn’t want new sanctions. Most sane members of Congress don’t want them either. But the Lobby and Israel do. They want a war with Iran. So they want to sabotage Obama’s strategy of negotiating his way out of the impasse. How best to do this? Don’t confront Obama head-on because he’s an immovable object on this matter. But do an end-around. Activate all those pro-Israel IOUs in Congress.
So the more Michael Grimms there are in Congress, the more Israel has its own interests guaranteed in the halls of Congress.
And of course, there’s no shortage of money. In fact, in a manner of speaking, there’s money to burn:
Leaks coming out of the Obama administration suggest that the President is preparing mostly cosmetic changes to the intelligence community, following the recommendations from the intelligence task force — which were much stronger than many expected. The reports suggest things like putting a public advocate to represent the public’s views in certain cases before the FISC. This has been talked about for a while, and was the main concession plenty of people had been expecting anyway. That’s hardly anything big.
The article talks about two other potential reforms. The first is shifting the holding of phone call metadata from the NSA to the phone companies, allowing the NSA to still search through it after getting a court order. While this may be a marginal improvement, it still has tremendous problems. It will almost certainly come with some sort of data retention law — something that the feds have wanted for ages, and which civil liberties activists have been fighting against for years. Companies shouldn’t be required to hang on to data they don’t need, especially if getting rid of it can better protect their users’ privacy. Furthermore, while not letting the NSA hang onto the data is a good thing, there is a reasonable concern that if the telcos are hanging onto the data themselves, that they, too, might do bad things with it, with little to no oversight.
However, most of the article from the LA Times focuses on National Security Letter (NSL) reform. We’ve written about those for years. NSLs are the way that the FBI can demand information from companies without any judicial review at all and, even more insane, with a complete gag order that prevents the recipient from telling anyone (including, at times, your lawyer). The FBI has an incredibly long history of “serious misuse” of NSLs, and has shown little to no interest in fixing the process. Nearly a year ago, a court actually ruled them unconstitutional, but there’s an ongoing appeals process that will take quite a bit of time.
However, as the article notes, the DOJ/FBI and other surveillance maximalists are all horrified by the idea that Obama might actually require judicial approval of NSLs, for all but “emergency” situations. What this sounds like is that the President may suggest something along those lines, there will be a well coordinated press attack from surveillance hawks freaking out about the danger this puts us all in… and then he’ll back down on that one point. And we’ll be left with… basically nothing, but the President will go around insisting that he reformed the intelligence community, while everything more or less stays the same.
The “most transparent administration” received another win for continued secrecy, thanks to an appeals court decision that allowed it to continue to withhold a DOJ memo that created an exploitable loophole in consumer data privacy protections.
The document at issue is a classified memo issued by the Office of Legal Counsel on Jan. 8, 2010. A report later that year by the Justice Department’s inspector general at the time, Glenn A. Fine, disclosed the memo’s existence and its broad conclusion that telephone companies may voluntarily provide records to the government “without legal process or a qualifying emergency,” notwithstanding the Electronic Communications Privacy Act.
The EFF has been engaged with the government over the release of this document since 2011, when a district court judge ruled the document was exempt from FOIA requests because it was part of executive branch “internal deliberations.” In other words, despite the fact that the OLC memos can be considered legally binding (and exempt those following the memos’ advice or instructions from legal repercussions), the memo is not considered “working law.” The EFF has argued that these memos are not “deliberative,” but are rather secret laws deployed in such a fashion as to avoid being exposed by FOIA requests.
The presiding judge explained his decision with this reasoning.
“Even if the O.L.C. opinion describes the legal parameters of what the F.B.I. is permitted to do, it does not state or determine the F.B.I.’s policy,” Judge Harry T. Edwards wrote in the decision on Friday. “The F.B.I. was free to decline to adopt the investigative tactics deemed legally permissible in the O.L.C. opinion.”
According to the FBI, it did decline to follow the memo’s parameters.
The bureau, which has abandoned exigent letters, said that it did not employ the legal theory outlined in the memo when using the letters, and that it had no plans to use it in the future.
But the DOJ’s arguments for keeping the memo secret calls the FBI’s assertion into question.
During the litigation, the Justice Department also told the court that parts of the memo contained classified information, “highly specific in nature and known to very few individuals,” about a secret intelligence-gathering technique that the F.B.I. is using against “hostile entities.”
Either the FBI is utilizing the memo’s legal theories or the memo covers so much ground that the FBI is using something entirely unrelated, making the first statement truthful as far as it extends to exigent letters only.
Judge Edwards’ rationale gives the government every reason to utilize the Office of Legal Counsel to provide it with the legal justification it needs to deploy questionable tactics and programs. (Previous OLC memos were used to justify warrantless wiretaps and “brutal questioning of detainees.”) The ruling makes it easier for any OLC memo to be exempted from FOIA requests, providing for even more government secrecy.
David Sobel, a lawyer for the EFF, called the ruling “troubling,” describing the office’s memos as a body of “secret law” that the public has a right to know about. He said he hoped the ruling would reinvigorate efforts among some lawmakers to enact a law opening such memos to greater scrutiny outside the executive branch.
“It’s kind of hard to imagine how a different case in the D.C. Circuit is likely to have a different outcome in light of this opinion,” he said.
Because the document remains a secret, its true significance remains a source of speculation. The New York Times says the memo is most likely the legal basis for the CIA’s voluntary agreement with AT&T, which allows the agency to search its massive database of international calls (and tip local numbers to the FBI for further investigation). And it’s not as if this secret memo is the only tool the government has for demanding data. The FBI may have abandoned “exigent letters” but it’s still using National Security Letters to obtain data without a court order. (No mention is made of the FBI’s exigent Post-It notes or over-the-shoulder database searches.)
The DOJ is understandably pleased with this decision as it plays to its obfuscatory tendencies. This is also a dubious win for this administration — and those that follow. Having an in-house agency on tap that can create new laws and interpretations of existing statutes without having to risk having its legally-binding memos scrutinized by the public will be a tool too powerful for many to ignore.