Thomas Drake Proved To Be Bloody Well Right

/52 Comments/in , , , , , , /by

Well hello there Wheelhouse members! Marcy is still on the road, but I am back and ready to roll, so there will start being actual content here again! I want to start with a bit of interesting post-mortem news on Thomas Drake.

As you will recall, Tom Drake was belligerently prosecuted by the DOJ on trumped up espionage charges (See: here, here, here and here) and their case fell out from underneath them because they cravenly wanted to hide the facts. As a result, Drake pled guilty to about the piddliest little misdemeanor imaginable, and will be sentenced, undoubtedly, to no incarceration whatsoever, no fine and one year or less of unsupervised probation on July 15, 2011. But the entire Tom Drake matter emanated out of Drake’s attempt to internally, and properly, cooperate with a whistleblowing to the Department of Defense Inspector General.

The report from the DOD IG in this regard has now, conveniently after Drake entered his plea, been publicly released through a long sought FOIA to the Project On Government Oversight (POGO), albeit it in heavily redacted form:

The U.S. Department of Justice (DOJ) prosecuted Drake under the Espionage Act for unauthorized possession of “national defense information.” The prosecution was believed to be an outgrowth of the DOJ’s investigation into disclosures of the NSA warrantless wiretapping to The New York Times and came after Drake blew the whistle on widespread problems with a NSA program called TRAILBLAZER. Most of the Espionage Act charges against Drake dealt with documents associated with his cooperation with this DoD IG audit. However, this month the government’s case against Drake fell apart and prosecutors dropped the felony charges. Instead, Drake pleaded to a misdemeanor charge of exceeding the authorized use of a computer.

The report, which was heavily redacted, found that “the National Security Agency is inefficiently using resources to develop a digital network exploitation system that is not capable of fully exploiting the digital network intelligence available to analysts from the Global Information Network.” The DoD IG also found, in reference to TRAILBLAZER, that “the NSA transformation effort may be developing a less capable long-term digital network exploitation solution that will take longer and cost significantly more to develop.”

Here is a full PDF of the entire redacted public version of the report in two parts because of file size: Part One and Part Two.

The report speaks for itself and I will not go in to deep quotes from it; suffice it to say, the DOD IG report proves that Tom Drake was precisely correct in his initial complaints that the TRAILBLAZER program was a nightmarish fraud on the taxpayers and inherently inefficient compared to the THIN THREAD program originally devised in house. The money quotes, as noted by POGO, are:

…the National Security Agency is inefficiently using resources to develop a digital network exploitation system that is not capable of fully exploiting the digital network intelligence available to analysts from the Global Information Network.

and

…the NSA transformation effort may be developing a less capable long-term digital network exploitation solution that will take longer and cost significantly more to develop.

So, in sum, thanks to POGO’s FOIA release here, we now know that not only was the persecution of Tom Drake by the DOJ completely bogus and vindictive, Tom Drake was bloody well right about TRAILBLAZER versus THIN THREAD to start with. Who couldda predicted?

Obama War Powers Treachery and The Founders’ Remedies

/153 Comments/in , , , , , /by

Signing-constitutionAs most know by now, Charlie Savage at the New York Times let loose a stunning blockbuster of an expose of the conduct of Barack Obama and his inner circle in relation to the Libyan war vis a vis the War Powers Resolution:

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Let’s be crystal clear as to what happened here: The Attorney General, Head of the Office of Legal Counsel and the General Counsel for the Pentagon/DOD all listened to Obama’s plan to flat out ignore the War Powers Resolution (50 U.S.C. 1541-1548), and the Article I power it represents, and they unanimously said it was untenable and illegal in the face of the War Powers Resolution.

Mr. Obama knows the War Powers Resolution exists, does not challenge its viability or Constitutionality and, against the direct opinion and advice of the three most germane attorneys in the United States Government, has just blithely and unilaterally blown it off. There are nine fairly short provisions in the statutory delineation of the “War Power Resolution” and, despite the yammering from the Administration and dithering by the press, they are actually remarkably clear in their intent and letter.

A criminal can nuance, excuse and rationalize himself around pretty much every statutory criminal provision, but society as a whole has no problem looking at the statute and seeing that there is offending conduct. And so it is here; Obama has thrown up sophistry, excuse and self indulgent rationalization. But any honest review of the WPR yields the unmistakable conclusion Obama is in direct violation, and has been from the outset. Congress has been crystal clear that they have NOT authorized Read more →

DOJ: Calling Out Government Lies Would Endanger National Security

/23 Comments/in , , , , , , , /by

The government argues that, in spite of the fact that Saifullah Paracha’s Gitmo Detainee Assessment Brief was leaked in April, his lawyer, David Remes, cannot talk about it. Because if he did, we might conclude the DAB was real.

Granting Petitioner’s request could also be detrimental to the interests of national security, given the access to classified information that petitioners’ counsel enjoy but that members of the public at large do not. Reliance on the purported detainee assessments leaked to WikiLeaks in unclassified public writings by habeas counsel known to have access to classified information could be taken as implicit authentication of the reports and the information contained therein.

Of course, no one really doubts that it is real. But the government will claim that this public information remains classified to make sure Remes can’t mention the information. Remes can only represent his client, I guess, in court, not in the public sphere.

The problem, of course, is that the file contains obvious problems–if not out and out lies, then at least one gross misrepresentation, to wit: the government claims that Aafia Siddiqui “was detained in Afghanistan in mid-July 2008” (see Detainee assessment (the Scribd like embed at the link), page 5).

There are certainly other areas Remes would be interested in discussing and having the freedom to argue to the public on behalf of his client, because that is not only what defense lawyers are supposed to do, but are ethically required to do, in order to provide a zealous representation for their client.

The real extent of the conundrum this places Remes, and similarly situated Gitmo counsel, in is demonstrated by this from the Blog of Legal Times at the National Law Journal:

Remes, the department said, cannot have unrestricted use of the documents that the government refuses to confirm or deny are authentic assessments of detainees. DOJ’s submission (PDF) expands on the scope of the guidance the department issued this month to lawyers in Guantanamo habeas cases.

In court papers, the DOJ theme is clear: the Justice Department over and over refused to confirm or deny that any individual WikiLeaks document is an official government record.

“Unfettered public use, dissemination, or discussion of these documents by cleared counsel could be interpreted as confirmation (or denial) of the documents’ contents by an individual in a position of knowledge, with corresponding harm to national security,” DOJ Civil Division attorney Kristina Wolfe said in court papers.

The government, Wolfe said, cannot acknowledge the authenticity of one document and then refuse to substantiate another document. The “very act of refusal would in effect reveal the information the government seeks to protect—the authenticity of the purportedly classified document,” Wolfe said.

This is beyond absurd, the DOJ is refusing to admit or deny, and is wantonly limiting the ability of lawyers to use, something the entire world is in on. They are treating the information like it is secret material under a Read more →

The Quiet Death of Habeas Corpus

/in , , , , , , , , /by

Pow Wow left a comment, in response to me and Candace Gorman, on Marcy’s Gitmo Lawyers Information Gulag post that warrants highlighting and further comment. For convenience, here it is in full:

This is what bmaz and hcgorman @ 12 are referencing:

Two Guantanamo detainees, Fahmi Al-Assani and Suleiman Al-Nahdi, have moved the D.C. Circuit to dismiss their habeas appeals (Al-Assani’s motion is here, Al-Nahdi’s is here). Both men lost their district court habeas cases in decisions by Judge Gladys Kessler; the Al Assani decision is here, the Al-Nahdi decision is here. Both men appealed, and today, both men have given up their appeals as lost causes.

Their lawyer, Richard Murphy, explained in an email,

Judge Kessler denied our clients’ habeas petitions and we appealed to the D.C. Circuit, but then stayed the appeals pending the outcome of several [other Guantanamo habeas] cases in which [Supreme Court] cert petitions had been filed. Once cert [review] was denied [by the Supreme Court] in all of the relevant cases coming out of the D.C. Circuit it became clear that the appeals were futile. Under the detention standard that has been developed by the D.C. Circuit (which the Supreme Court has refused to review), it is clear that the courts provide no hope for the men remaining at Guantanamo.

This development strikes me as a big deal–albeit a quiet one that won’t get a lot of press attention. […] – Benjamin Wittes, June 2, 2011

That grim assessment of the current posture of Guantanamo habeas petitions, which, for years, have been pending before federal judges serving in the Judicial Branch of the United States Government, was further illuminated and reinforced by this June 8, 2011 Benjamin Wittes post:

Habeas lawyer David Remes sent in the following comments on recent developments in D.C. Circuit case law. He emphasizes that he has been counsel in several of the cases discussed below and that the following represents his own opinion only:

I agree with my colleague Richard Murphy (here) that for Guantánamo detainees, seeking habeas relief has proven to be an exercise in futility. The D.C. Circuit appears to be dead-set against letting them prevail. It has not affirmed a grant in any habeas case, and it has remanded any denial that it did not affirm.

Moreover, the Supreme Court, having declared in Boumediene that detainees have a constitutional right to seek habeas relief, appears to have washed its hands of the matter. It denied review in every case brought to it by detainees this Term, including one, Kiyemba III, which eliminated the habeas remedy itself.

The D.C. Circuit has decided twelve habeas appeals on the merits. In four, the detainee prevailed in the district court; in eight, the government prevailed. The D.C. Circuit erased all four detainee wins. It reversed two outright (Adahi, Uthman) and remanded the other two (Salahi, Hatim). By contrast, the court Read more →

DC Circuit Reinstates Blackwater Nisour Shooting Prosecution

/in , , , , /by

On December 31, 2009 DC District Judge Ricardo Urbina dismissed the indictment against five Blackwater defendants involved in what is commonly referred to as the Nisour Square shootings occurring on September 16, 2007. Urbina’s decision was 90 pages in length and was further supported by a three week long Kastigar hearing in his court October of 2009. A Kastigar hearing is an evidentiary inquiry based upon Kastigar v. United States, 92 S. Ct. 1653 (1972), “where a party has been compelled to relinquish his Fifth Amendment right against self-incrimination in reliance on the government‘s promises of immunity, the government bears the―affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”

Today, in a surprising unanimous decision, the DC Circuit Court of Appeals overturned Urbina, reinstated the case against four of the five original defendants (the prosecution had voluntarily dismissed Defendant Slatten previously) and remanded the case back to District Court for further proceedings. Here is how Reuters described the ruling:

The five guards were charged with 14 counts of manslaughter, 20 counts of attempt to commit manslaughter and one weapons violation count over a Baghdad shooting that outraged Iraqis and strained ties between the two countries.

The shooting occurred as the private security firm’s guards escorted a heavily armed four-truck convoy of U.S. diplomats through the Iraqi capital on September 16, 2007. The guards, U.S. military veterans, were responding to a car bombing when gunfire erupted at a crowded intersection.

U.S. District Judge Ricardo Urbina ruled in December 2009 that prosecutors violated the defendants’ constitutional rights and the case was tainted by use of statement the guards made to State Department investigators under a threat of job loss.

The appeals court reversed that ruling that the indictment of the guards had been improperly obtained through the use of their compelled statements. It ruled Urbina wrongly interpreted the law.

The appeals court sent the case back to Urbina to determine what evidence, if any, the government presented had been tainted and whether it was harmless.

The public version of the decision is here however, there is also a sealed classified version containing additional material.

The first thing to consider here is the standard of review the Circuit Court used in analyzing the appeal, because there were intermixing of factual and legal findings inherent in the Kastigar process, the court reviewed for clear error:

We review the district court’s findings that the government used a defendant’s immunized statement for clear error, United States v. North, 910 F.2d 843, 855 (D.C. Cir. 1990) (“North I”), a standard that is met for any finding that was “induced by an erroneous view of the law,”

In a nutshell, what that means is that the appellate court had to give strong deference to the findings by the trial court. In spite of this deference still unanimously blew Judge Urbina’s findings straight out Read more →

DOJ Sits On Its Thumbs A Year After Macondo’s Mouth Of Hell Roared

/in , , , , , , /by

It has now been, as noted at FDLNews by David Dayen, one year from the date the British Petroleum wellhead at Macondo blew out, thus killing 11 workers on the TransOcean platform known as “Deepwater Horizon” in the Gulf of Mexico.

Jason Anderson, Aaron Dale Burkeen, Donald Clark, Stephen Curtis, Roy Wyatt Kemp, Karl Kleppinger, Gordon Jones, Blair Manuel, Dewey Revette, Shane Roshto, Adam Weise

These are names you should know. These are the first, and most blatant, victims of the Deepwater Horizon explosion at Macondo. Their actual names do not quickly come to the tongue, nor are they so easy to find. In fact, you know what I had to do to find them? Go through the same process this guy did. And, still, the first link I found them at was his post. Here is a taste of his disgust, and I join it wholeheartedly:

I had to search for those 11 names; most of you may not know them. We didn’t start a war over them, they’re not under any suspicion of anything, not a board of directors of some evil corporate cabal; on the contrary, many would say they are victims of it.

….

But I found them in a story about how frustrated the families are a year later, how frustrated the region is and how all this pep talk about how things are recovering just aren’t true. And there’s plenty of stories about how BP claims to have had its best year ever in terms of safety, yet it caused the worst oil spill in history?? Lots of stories about how the CEO got a million dollar retirement package and bonuses given here and there and it’s enough to make one puke crude, much like a lot of the Gulf remains doing.

First of all, to the families, these people are not “presumed” dead Wikipedia. I know it may be a legal thing, bodies never found, no conclusive evidence, blah blah. They were killed, soldiers in the energy wars killed by friendly fire.

….

…victims of our wanton unbridled lust for oil and the greed of those that produce it. They are dead, gone forever, never to be seen or see their loved ones or live to any more potential; they are gone.

And their deaths appear to have meant little to the world. Nor did the subsequent deaths of everything from thousands of dolphins to countless species of marine life; from the deaths of the livelihoods of so many in the region to the loss of countless ecosystems.

Truer words have likely never been spoken. And that is where I want to pick up.

What could have been done to address these heinous human and ecological wrongs that has not?

Everything.

Because nothing, not diddly squat, has been done. And if the corporate powers that be in this country, and the political puppets who serve them, including Barack Obama, Eric Holder and the currently politicized Department of Justice, have anything to say about it (and they have everything to say about it) nothing significant is going to be done about BP, TransOcean, Halliburton and the Gulf tragedy, or anything related, in the future.

Like the craven and dishonest shell game that has been played by the current administration with regard to torture and destruction of evidence, the US government appears to simply be determined to shine this on with the bare minimum of faux accountability and disingenuous rhetoric to soothe the perturbed masses and maintain status quo with their partners in corporate/political domination of the Read more →

The Weakness Of The Barry Bonds Obstruction Verdict

/in , , /by

Yesterday the Barry Bonds trial ended with a single conviction for obstruction of justice and a mistrial declared due to a hung jury on the other three remaining counts. There were originally five counts in the indictment, but count four was dismissed prior to the case being given to the jury. The case was in front of Judge Susan Illston in the Northern District of California (NDCA) District Court.

Of the four counts given to the jury, the three mistried were for what is commonly referred to as perjury, but formally described as false declaration before a grand jury or court under 18 USC 1623(a). The jury votes on those three counts now dismissed via mistrial were 9-3 acquit (HGH use), 8-4 acquit (steroid use) and 11-1 convict (the injection count). As always, I strongly suggest that reading very much into such numbers on hung counts is foolish; the dynamics behind such numbers are never simple, and never what you think they are. Most media types covering the trial have, almost universally, stated they do not expect a retrial on the three hung counts. I think such a statement is premature, and somewhat ill advised, under the circumstances as the likelihood of a retrial will be dependent on what Judge Illston does with the coming motion to set aside the verdict and, assuming that is denied, the sentencing of Bonds.

The fascinating question right now, however, is exactly how firm is the obstruction conviction? The answer is maybe not so firm at all. When I first heard there was a partial verdict, I thought – as did several others around me – that it was likely a conviction and hung jury on the other counts. Well, that was exactly right, however I assumed the conviction would be on the injection count; never contemplated for a second that the jury would not convict on any of the substantive predicate counts but still convict on the catch-all obstruction count. So, let’s take a look at that count, and the conviction thereon, because there are some serious issues involved that tend to undermine its strength above and beyond the fact there were no convictions on the underlying counts.

The obstruction count is charged under 18 USC 1503, which reads:

Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.

Now the astute reader will note there is no materiality requirement in the direct language of 18 USC 1503. However, a prior case in the 9th Circuit, US v. Thomas, has held that materiality of the obstructive conduct is indeed a necessary element for a conviction under 18 USC 1503.

In light of Ryan and Rasheed, we conclude that although not expressly included in the text of § 1503, materiality is a requisite element of a conviction under that statute. Our conclusion does not, however, mandate a reversal of Thomas’s obstruction conviction, because it is clear that the jury found the requisite element of materiality in convicting Thomas on count six. The jury unanimously returned a special verdict on Thomas’s § 1503(a) charge indicating that the false statements alleged in counts one and three of Thomas’s indictment obstructed justice, and the jury in turn had found Thomas guilty of making material false statements with respect to counts one and three. By convicting Thomas of perjury on counts one and three, the jury necessarily found the statements in those counts to be material. And by indicating in a special verdict form that these statements obstructed jus- tice, the jury necessarily found that Thomas’s obstruction conviction was based on two material statements.

Several things are interesting here. First off, the Thomas decision was authored by the infamous torture memo author Jay Bybee. More importantly, however, Thomas was yet another in the long line of BALCO Read more →

William Welch and DOJ’s Mojo Is Not Risen

/in , , /by

Who says fun things don’t come on Fridays? There is some nice little spooky news on the wire this afternoon. Jeffrey Sterling, a former veteran CIA agent on the Iran beat, was charged back in January with leaking classified information to a reporter. the reporter is widely known and accepted to be none other than the New York Time’s James Risen, and the material supposedly was contained in his book State of War. The prosecution, headed by DOJ leak hitman William Welch (disgraced supervisor in the unethical prosecution of Ted Stevens). For some unknown reason, Welch was installed by the Obama/Holder DOJ as head of their unprecedented crackdown on leaks to the media.

Looks like Welch may have gotten in front of himself again. From the Washington Post:

The government’s case against an ex-CIA officer charged with leaking classified documents to a reporter may not make it to trial because of potential issues with a witness, a federal prosecutor said Friday.

….

At a pretrial hearing Friday in U.S. District Court, prosecutor William Welch told the judge that “potential witness issues” will determine “whether the case goes to trial or not.” He did not elaborate.

Uh huh. What this really means is the court is not likely to change its mind about compelling Risen to testify – Judge Brinkema has already refused and quashed a subpoena once – and the DOJ’s own written guidelines make it hard for them to pursue that further. Oh, and they bloody well do not have enough admissible evidence to make their case without Risen. Makes you wonder just how, and how legally, the prosecution got much of their evidence.

Something you might would have thought a guy like Welch, who has made such an embarrassment of himself in prior big public cases, would have figured out ahead of time. Hey, who knows, maybe Welch can salvage his witchhunt against Sterling and Risen somehow; but you sure don’t see this kind of banter in open court when things are all nice and rosy.

William Welch’s mojo ain’t Risen.

Solicitor General Email FOIA Shows White House Stunt Fail

/in , , , , /by

In all the government shutdown, nuclear meltdown and Libya war of choice news dominating the media landscape the last couple of weeks, a completely juicy little tidbit was pried out of the Obama Administration by a right wing news outfit – and almost nobody picked up on it.

CNSNews, the cyber division of the Brent Bozell run right wing Media Research Center, has scored a bit of a coup with the acquisition of a set of FOIA documents from the Solicitor General’s office partially detailing the unusual grooming of Elana Kagan to ascend to the Supreme Court. The 66 pages of documents are fascinating and offer a unique and rare glimpse into the backstage machinations in the SG Office. The FOIA CNSNews issued was targeted almost solely at the great whale the Ahab like conservative right are pursuing, the Affordable Healthcare Act they unaffectionately refer to as “ObamaCare”.

Here is the thing, why would the Administration agree to turn over the emails? They are almost surely protected within the ambit of deliberative privilege exemption commonly recognized for the Executive Branch. Indeed, the first time CNSNews requested the records, the request was flatly rejected, back on June 22, 2010. But, the Administration, on its own, reconsidered, sought slight clarification and, finally, on March 15 of this year, delivered the FOIA records to CNSNews. The response letter from the Solicitor General’s office facially states that they would have been well within their rights to so withhold, but “it would be appropriate to release significant portions of such records requested as a matter of agency discretion”.

Uh huh. Experts in such matters were shocked. Kannon Shanmugam, a veteran of the SG’s office now with Williams & Connolly, stated (subscription may be required):

…the documents represent “an unusual if not unprecedented” look at the office’s operations. “It raises concerns about chilling lawyers in the office in the conduct of their work, and gives an incentive not to put things down in emails.

Indeed that would be seemingly very sound analysis. So, why did the Obama Administration give up the goods? For that, a quick look at what the emails depict, and what the FOIA asked for is necessary. As the FOIA search terms and parameters indicate, CNSNews was looking for instances of Elana Kagan’s Read more →

Terror Trials, Ray Kelly and the FBI Director Job

/in , , , , , /by

A couple of weeks ago quite a stir was created when the rumor was let leak that President Obama was considering three different high level Bush/Cheney Administration officials to replace FBI Director Robert Mueller, whose ten year term will expire will expire on September 4, 2011. The two names most prominently featured were former Bush Deputy AG James Comey and former Bush National Security AAG Ken Wainstein but also mentioned was former Bush Homeland Security Advisor Fran Townsend. The story creating the hubbub, almost as an afterthought, also mentioned that Sen. Chuck Schumer had been lobbying for current NYPD Commissioner Ray Kelly for the job.

Today, however, comes a news report from local New York investigative reporter Murray Weiss that the FBI Director chair is Ray Kelly’s “for the taking”:

And when sources with solid connections in the White House tell you Kelly has been told by Attorney General Eric Holder that the FBI director’s job is his for the taking, it is impossible to ignore them. All the signals, including the aside from Kelly, are in sync.

Here is the news, according to my sources.

Kelly, who served in two federal posts during the Clinton administration, is this close to heading out of Manhattan and back to Washington to cap his long career of public service by running the FBI.

There are several things interesting about the report. One is Kelly’s age – he is 69 years old. The article addresses that issue:

The FBI Director’s term is 10 years. My sources say the White House has told the 69-year-old Kelly to view the position as a five year commitment, which would coincide nicely with the end of a second Obama term.

If so, and Kelly is indeed nominated, this is a contemptible plan. The intent behind having a ten year service period for the FBI top spot is to give it some space from hard partisan politics. In this case, seeing as how rare it is that a party who has had the presidency for two terms gets it for a third, setting up the FBI job to be open in the face of what would historically be and expected GOP president in 2016 seems short-sighted and extremely ill considered. I guess that presupposes Obama is reelected, but you have to assume the White House believes that will be the case and is acting under Read more →

image_print