Timing Matters: Impeach, Convict, Remove NOW [UPDATE-1]

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[NB: Check the byline, thanks. Updates will appear at the bottom of this post. /~Rayne]

Photos taken during the insurrectionist Capitol Building breach on Wednesday showed a lot of riot tourism — “Look at me, Mom!” kind of behavior which causes reparable damage while irritating observers. The jerk sitting in House Speaker Nancy Pelosi’s chair with his feet on her desk is a perfect example.

But some photos showed participants who weren’t flashy, who weren’t taking selfies. They appeared intent on some objective and they were well equipped, wholly unlike the bare-chested, tattooed Qultist clown Jake Angeli.

Angeli was attention whoring.

This guy was not:

(Believe this is a cropped photo from Getty Images, shared here under Fair Use.)

Malcolm Nance noted this same person was carrying an “olive colored Blackhawk Sherpa pistol holster with a Glock 26 or 43 subcompact pistol w/hogue rubber grips, mace & Flex-cuffs” which is far from the average riot tourist’s gear. There has been speculation it’s not a Glock but a holstered taser, though the consensus appears to be that it’s a weapon.

The photo shows someone intent on doing more than a little light vandalism. They are equipped to kidnap, detain, and possibly hurt or kill someone.

They need to be identified, their situation fully investigated, and prosecuted to the fullest extent of the law.

This isn’t something which should be blown off lightly; this person was in the Senate chamber where two of the next three in line of presidential succession — VP Mike Pence and Sen. Chuck Grassley — had been only moments before, in the same building with third-in-line, House Speaker Nancy Pelosi.

There were others as well who may not have been quite as well equipped but carrying some gear like plastic zip restraints, suggesting they, too, were intent on seizing members of Congress and staff.

Until an investigation is completed, we don’t know if we haven’t just looked upon an aborted kidnapping and/or assassination attempt.

We don’t know yet how the “mobile bomb factory” found by law enforcement figured into this picture:

… The chief also confirmed that police recovered two pipe bombs at the Democratic National Committee and Republican National Committee offices. A cooler that contained molotov cocktails also was found on U.S. Capitol grounds, the chief said. Bowser said officials will review video and issue lookout alerts for people who breached the U.S. Capitol, adding that they “need to be held accountable for the carnage.”

…

Federal agents also are investigating a pickup truck found outside the RNC, according to two people familiar with the investigation.

The truck, parked across the street from the party offices and near the entrance to a Metro station, contained rifles and shotguns, a great deal of ammunition, and other unspecified material, these people said. Federal agents are still trying to determine if that vehicle and its contents are connected to the suspected pipe bombs found earlier, the people said. …

This could have been extremely ugly had riot members been able to occupy and control the Capitol Building through the night.

Trump should not be allowed to pardon these people if he and his associates and family had anything to do with this — like Rudy Giuliani’s incitement calling for “trial by combat” on stage before Trump supporters that day.

The only way to ensure there is no pardon granted by Trump before an investigation is complete is to remove Trump from office.

Immediately.

GOP members of Congress: You need to take this seriously and consider where you and members of your cohort stand. There may be those among them who are complicit, who may have no problem with eliminating their fellow members who aren’t as Trumpist as they are. Until a full investigation is completed there’s no way to know, and no way to protect themselves from a possible second attack-masked-by-riot.

And there’s a second event in the offing. It’s right there in all the chatter online about the January 6 mob.

Impeach, convict, remove Trump NOW, because it’s critical to protecting the continuity of our government under the Constitution about which you swore an oath to defend.

It’s also your skin in the game.

Consider how this scenario looks to others and whether the damage would have been limited to Democratic members of Congress alone.

Next time Congress and the VP might not be so lucky. Remove luck from the equation by removing the source of incitement NOW.

~  ~ ~

UPDATE-1 — 5:10 PM ET —

The Washington Post released video showing the lead up to and the shooting of rioter Ashli Babbit. At least one member of Congress, Rep. Sean Maloney (D-NY-18), is visible at the beginning of the video before they are removed to a secure location and the rioters breach the door.

Impeachment still has traction if slow. Another set of articles of impeachment have been released, this time charging Incitement to Insurrection instead of Abuse of Power. Sorry, I don’t have time right now to type out a transcript, sharing a tweet with screen shots for now.

Pence entered the White House but apparently didn’t speak to Trump, and Sen. Lisa Murkowski is the first GOP senator to demand Trump resign, questioning her own future with the GOP.

One can only hope the news dump zone is kind to us.

Bill Barr Keeps Pretending (Falsely) That He Didn’t Encourage Yesterday’s Insurrection

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Disgraced former Attorney General Billy Barr has released two statements condemning yesterday’s terrorist attack on the Capitol. First, a comment released via his spox,

Then he released a statement to the AP’s Barr-chummy DOJ reporter:

Former Attorney General William Barr says President Donald Trump’s conduct as a violent mob of his supporters stormed the U.S. Capitol was a “betrayal of his office and supporters.”

In a statement to The Associated Press, Barr said Thursday that “orchestrating a mob to pressure Congress is inexcusable.”

Barr was one of Trump’s most loyal and ardent defenders in the Cabinet.

His comments come a day after angry and armed protesters broke into the U.S. Capitol, forcing Congress members to halt the ongoing vote to certify President-elect Joe Biden’s election and then flee from the House and Senate chambers.

Barr resigned last month amid lingering tension over the president’s baseless claims of election fraud and the investigation into Biden’s son.

Of course, Barr himself encouraged the violence yesterday.

That’s because, less than a year ago, he treated a threat against a sitting judge issued by some of the men who organized yesterday’s actions as a “technicality” not worthy of a sentencing enhancement for Roger Stone.

Two years ago, after Roger Stone posted a picture of Amy Berman Jackson with crosshairs on it, Jonathan Kravis asked Stone who came up with the picture. The President’s rat-fucker named two of his buddies who are key leaders of the Proud Boys, Jacob Engles and Enrique Tarrio.

Amy Berman Jackson. How was the image conveyed to you by the person who selected it?

Stone. It was emailed to me or text-messaged to me. I’m not certain.

Q. Who sent the email?

A. I would have to go back and look. I don’t recognize. I don’t know. Somebody else uses my —

THE COURT: How big is your staff, Mr. Stone?

THE DEFENDANT: I don’t have a staff, Your Honor. I have a few volunteers. I also — others use my phone, so I’m not the only one texting, because it is my account and, therefore, it’s registered to me. So I’m uncertain how I got the image. I think it is conceivable that it was selected on my phone. I believe that is the case, but I’m uncertain.

THE COURT: So individuals, whom you cannot identify, provide you with material to be posted on your personal Instagram account and you post it, even if you don’t know who it came from?

THE DEFENDANT: Everybody who works for me is a volunteer. My phone is used by numerous people because it can only be posted to the person to whom it is registered.

[snip]

Jonathan Kravis. What are the names of the five or six volunteers that you’re referring to?

Stone. I would — Jacob Engles, Enrique Tarrio. I would have to go back and look.

Not only did Stone appear at the rally before yesterday’s insurrection, but Tarrio was arrested on his way to the riot for crimes he committed during the last demonstration in support of Trump, an attack on a historic Black church in DC and possession of weapons.

Prosecutors asked Judge Jackson to add a two-level sentencing enhancement for this action, in which Stone’s Proud Boys associates crafted a threat against her.

Finally, pursuant to U.S.S.G. § 3C1.1, two levels are added because the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the prosecution of the instant offense of conviction.” Shortly after the case was indicted, Stone posted an image of the presiding judge with a crosshair next to her head. In a hearing to address, among other things, Stone’s ongoing pretrial release, Stone gave sworn testimony about this matter that was not credible. Stone then repeatedly violated a more specific court order by posting messages on social media about matters related to the case.

This enhancement is warranted based on that conduct. See U.S.S.G. § 3C1.C Cmt. 4(F) (“providing materially false information to a magistrate or judge”); see, e.g., United States v. Lassequ, 806 F.3d 618, 625 (1st Cir. 2015) (“Providing false information to a judge in the course of a bail hearing can serve as a basis for the obstruction of justice enhancement.”); United States v. Jones, 911 F. Supp. 54 (S.D.N.Y. 1996) (applying §3C1.1 enhancement to a defendant who submitted false information at hearing on modifying defendant’s conditions of release).

The sentencing memo that Bill Barr had drawn up to justify a more lenient sentence dismissed this enhancement which it admitted “technically” applied.

Notably, however, the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b).

[snip]

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the [defendant’s obstructive conduct actually prejudiced the government at trial.]

When ABJ gagged Stone in response to him posting the picture, she talked about the possibility that Stone’s post might incite his extremist followers to take action.

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed.

[snip]

The defendant himself told me he had more than one to choose from. And so what he chose, particularly when paired with the sorts of incendiary comments included in the text, the comments that not only can lead to disrespect for the judiciary, but threats on the judiciary, the post had a more sinister message. As a man who, according to his own account, has made communication his forté, his raison d’être, his life’s work, Roger Stone fully understands the power of words and the power of symbols. And there’s nothing ambiguous about crosshairs.

She repeated that sentiment when she overruled the Barr-authorized memo, judging the enhancement was appropriate.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

Effectively, ABJ was warning against precisely what happened yesterday: that Stone (and Trump) would rile up extremists and those extremists would, predictably, take violent actions. ABJ judged that you can’t let the incitement go unpunished.

Barr, on the other hand, suggested that unless there was proof the incitement had an effect, it was just a technicality.

Bill Barr had a chance to stand against the incitement-driven terrorism led by the Proud Boys last year. And he chose to use his authority, instead, to protect Trump.

The Trump Effect: Attempted Coup Edition

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I have long talked about “The Trump Effect,” by which Trump, in pushing existing policies an order of magnitude further, makes those toxic policies visible to people who otherwise have not seen them.

Yesterday’s coup attempt was not the implementation of any existing policy. What happened yesterday was unprecedented in the history of this nation.

That said, it did make certain things visible.

The DOD refusal to honor a request from Mayor Muriel Bowser, made before the coup attempt started, to deploy the National Guard to DC to help makes it clear (as did Trump and Bill Barr’s deployment of DOD troops over the summer) that DC cannot be left anymore without its own defense. As many people have noted, this provides a clear reason, independent of the number of Senators or the existence of a largely-Black city without full franchise, that DC should become a state.

Similarly, the refusal of DC cops, including Capitol Police, to treat these terrorists as terrorists demonstrates why people have called to “defund” the police. It’s not denial that we need police. It’s a recognition that, right now, police forces are often filled with extremists who sympathize with people like the terrorists who stormed the Capitol. There needs to be a priority on cleansing police forces of such extremists, or they will become an armed force working against democracy again.

Finally (in what appears to be a surprise to a guy who wrote a book on the topic and who has been dismissing the threat of a coup for months), what we saw yesterday was what happens when a man who puts self-interest over the good of the country happens to wield the power of the unitary executive. While some people appointed by Donald Trump took the appropriate approach in responding to the coup attempt — citing their oath to the Constitution — others dawdled until Mike Pence took action. It will take some time until we understand their excuse for protecting a man rather than the Constitution. But decades of claims that all authority emanates from the President certainly made it more likely. Last night made it clear that such unchecked authority is incompatible with the Constitution.

We are not yet out of the woods. Trump, even while stating he will leave office, nevertheless has promised to sustain his insurgency. On top of everything else President-Elect Biden has to deal with, he now has to think of ways to coup-proof the US government.

Update: Mayor Bowser has called for Congress to push statehood through in the first 100 days of the Biden Administration.

 

Yet Another Warning from Michigan: FBI Busted Plot to Kidnap “That Woman”

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As you’ve probably heard by now, the FBI foiled a plot to kidnap Michigan’s Gov. Gretchen Whitmer. The conspirators intended to move her across state lines to Wisconsin where she would be tried by a kangaroo court for “treason.”

Timing of the plot and events which may have inspired this idiocy:

10-MAR-2020 — Governor Whitmer issued Executive Order 2020-4, declaring a state of emergency in Michigan to address the COVID-19 pandemic.

13-MAR-2020 — Gov. Whitmer issued Executive Order 2020-5 canceling all events and assemblies over 250 people, ending on Sunday, April 5 at 5 p.m. Michigan’s public schools and churches were closed with this order.

16-MAR-2020 — Gov. Whitmer issued Executive Order 2020-9, closing places of public accommodation including restaurants, bars, gymnasiums, theaters through March 30.

20-MAR-2020 — Militia group in Michigan brought to attention of FBI when group sought addresses of local law enforcement. A Confidential Human Sources (CHS) was identified during FBI interview with a concerned militia member.

23-MAR-2020 — Gov. Whitmer issued “Stay Home, Stay Safe” Executive Order 2020-21, directing all Michigan businesses and operations to temporarily suspend in-person operations that are not necessary to sustain or protect life, effective immediately.

27-MAR-2020 — During a press conference discussing Pence’s work as head of the White House Coronavirus Task Force, Trump tells VP Pence, “Don’t call the woman in Michigan.”

01-APR-2020 — Gov. Whitmer issued Executive Order 2020-33 expanding Executive Order 2020-4, declaring both a state of emergency and a state of disaster across the state of Michigan.

07-APR-2020 — Michigan legislature adopted a concurrent resolution to extend the states of emergency and disaster declared under the Emergency Management Act until April 30, 2020.

09-APR-2020 — First extension of Stay-Home order until May 1 due to rising COVID cases.

15-APR-2020 — Drive-in “Operation Gridlock” Protest in capital city Lansing, violating Stay-Home order; organizer received financial assistance from DeVos family.

17-APR-2020 — Trump tweeted, “LIBERATE MICHIGAN!“

24-APR-2020 — Second extension of Stay-Home order until May 15 due to increased COVID cases. Some restrictions were lifted on outdoor businesses. Masks ordered for all residents in public spaces.

30-APR-2020 — Armed protest in state capitol building

06-MAY-2020 — GOP-majority state house and state senate file suit against Gov. Whitmer (Michigan House of Representatives and Michigan Senate v. Whitmer)

08-MAY-2020 — Third extension of Stay-Home order until May 28. Some restrictions lifted on manufacturing as of 11-MAY-2020 as part of a phased re-opening.

21-MAY-2020 — Michigan Court of Claims ruled in favor of Gov. Whitmer in Michigan House of Representatives and Michigan Senate v. Whitmer; the state of emergency would continue without legislative approval.

22-MAY-2020 — Fourth extension of Stay-Home order until June 12. State of emergency also extended to June 19. Two northern Michigan regions were able to reopen, allowing restaurants and bars to operate at 50% capacity. Groups of 10 were permitted across the state.

01-JUN-2020 — Stay-Home order lifted with restrictions, ex. groups of 100 outdoors, outdoor fitness classes, etc.

06-JUN-2020 — Meeting of ~15 co-conspirators in Dublin, Ohio.

08-JUN-2020 — Restaurants allowed to reopen and operate across the state at 50% capacity with other mandatory changes like masks and social distancing.

08-JUN-2020 — On reopening, Harper’s brewpub restaurant in East Lansing, Michigan, violated several of the remaining emergency restrictions. Over the next month at least 185 cases of COVID will have been traced back to this facility’s reopening.

14-JUN-2020 — A key co-conspirator and a militia group member meet at a militia field training exercise.

15-JUN-2020 — Stay-Home order ends. Some restrictions remain on events and assemblies as well as public accommodation facilities.

18-JUN-2020 — Gov. Whitmer issued Executive Order 2020-127, again finding that the COVID-19 pandemic constitutes a disaster and emergency throughout the State of Michigan.

18-JUN-2020 — Co-conspirators met with militia group leadership at the Second Amendment rally at the state capitol in Lansing, Michigan.

20-JUN-2020 — Several co-conspirators met at a co-conspirator’s business in Grand Rapids for planning.

25-JUN-2020 — Key co-conspirator streams a rant about Gov. Whitmer to a private Facebook group.

28-JUN-2020 — Several co-conspirators met in Munith, Michigan for a tactical training
exercise.

04-06-JUL-2020 — Holiday weekend partying results in uptick of COVID cases.

10-12-JUL-2020 — Co-conspirators attended a field training exercise in Cambria, Wisconsin which included attempting to make IEDs with balloons, BBs, and black powder.

13-JUL-2020 — Gov. Whitmer issued Executive Order 2020-147, mandating the wearing of masks to contain spread of COVID-19.

18-JUL-2020 — Co-conspirators met in Ohio, discussed attacking Michigan State Police and shooting up Gov. Whitmer’s vacation home in western lower Michigan.

27-JUL-2020 — Co-conspirators discussed plan to kidnap Gov. Whitmer at vacation home, transport her to Wisconsin, and prosecute her.

09-AUG-2020 — Co-conspirators discussed obtaining intelligence about Gov. Whitmer’s Lansing home as well as attacking her at that site.

18-AUG-2020 — Co-conspirators discussed surveillance of Gov. Whitmer’s vacation home and getaway plans.

23-AUG-2020 — Co-conspirators discussed surveillance while meeting in Lake Orion, Michigan.

29-AUG-2020 — Co-conspirator and CH-2 surveil Gov. Whitmer’s vacation home.

30-AUG-2020 — Co-conspirators discuss findings of surveillance.

12-13-SEP-2020 — Co-conspirators meet in Luther, Michigan for field training exercise and practice making and using IEDs as well as tighten planning and coordination.

14-SEP-2020 — Co-conspirators discuss executing plan in late October, well before Election Day.

30-SEP-2020 — Co-conspirators discuss acquiring taser for plan.

02-OCT-2020 — Key co-conspirator confirms acquisition of taser.

06-OCT-2020 — In a 4-3 ruling along partisan lines, Michigan Supreme Court determined Gov. Whitmer did not have the authority to issue COVID-related executive orders after April 30, 2020.

07-OCT-2020 — Co-conspirators planned to meet to make payments on equipment.

07-OCT-2020 — Co-conspirator Garbin’s house was raided.

09-OCT-2020 — Arrest of ‘Wolverine Watchmen’ conspirators announced, complaint published.

I use word inspired loosely, because there doesn’t seem to be a direct link between the most aggressive emergency action and the inception and progress of this seditious terror plot. The emergency Stay-Home order was lifted the week the conspirators began planning; what restrictions remained clearly did not stop these men from traveling, meeting, organizing, and planning.

They also didn’t have a legitimate beef about the effectiveness of the governor’s actions, any more so than the polarized and irrational MIGOP-controlled state legislature. Eleventh largest by population, Michigan was hit hard early in the pandemic, now ranking 10th in overall COVID-19 deaths. But since Whitmer declared the state of emergency and enacted the Stay-Home order along with a phased reopening process, the state’s daily death toll has plummeted and its cases per million is now 40th in the country.

You’ll recall from posts I wrote about the protests opposing Whitmer’s orders back in April that the protests cause spikes in active confirmed cases beginning 5-10 days after the protests. They’re visible here in these charts.

The plot wasn’t about Whitmer’s handling of COVID-19.

One only needs to look and listen to the language the conspirators used about Gov. Whitmer to know that this was about hate for a woman with the authority to give orders with regard to a deadly pandemic.

Tyranny to this baker’s dozen of white men was about a democratically-elected woman in a position of legitimate authority telling them what to do.

Trump set the tone for this by refusing to help Whitmer when she asked for federal assistance, by refusing to allow Pence as COVID-19 Task Force chair to listen to Whitmer, and by tweeting, “LIBERATE MICHIGAN” after the first protest against Whitmer’s orders.

His tweets yesterday attacking Whitmer again even after the arrests of kidnapping conspirators only reinforce the real intent of Trump and seditious domestic terrorists alike.

What will Trump’s tweets spawn next as we head into a second wave of COVID-19, this time with Michigan’s governor disempowered by Republicans on the state supreme court?

The Minh Quang Pham Precedent to the Julian Assange Extradition

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WikiLeaks supporters say that extradition of Julian Assange to the United States threatens journalism. That is true.

They also say that his extradition would be unprecedented. I believe that’s true too, with respect to the Espionage Act.

But it’s not entirely without precedent. I believe the case of Minh Quang Pham, who was extradited to the US in 2015 for activities related to AQAP — the most substantive of which involve providing his graphic design expertise for two releases of AQAP’s magazine, Inspire — provides a precedent that might crystalize some of the legal issues at play.

The Minh Quang Pham case

Minh Quang Pham was born in 1983 in Vietnam. He and his parents emigrated to the UK in 1989 and got asylum. In 1995, he got UK citizenship. He partied a lot, at a young age, until his conversion to Islam in 2004, after which he was drawn to further Islamic study and ultimately to Anwar al-Awlaki’s propaganda. Pham was married in 2010 but then, at the end of that year, traveled to Yemen. After some delays, he connected with AQAP and swore bayat in early 2011. While he claimed not to engage in serious training, testimony from high level AQAP/al-Shabaab operative Ahmed Warsame, who — after a two month interrogation by non-law enforcement personnel on a ship — got witness protection for himself and his family in exchange for cooperation, described seeing Pham holding a gun, forming one basis for his firearms and terrorist training charges (though the government also relied on a photo taken with Pham’s own camera).

On my arrival, Amin had a Kalashnikov with him and a pouch of ammunition. I am not certain if he had purchased the gun himself but he did say he had been trained by Abu Anais TAIS on how to use it, I can say from my knowledge of firearms that this weapon was capable of automatic and single fire.

Warsame’s role as informant not only raised questions about the proportionality of US treatment (he was a leader of al-Shabaab, and yet may get witness protection), but also whether his 2-month floating interrogation met European human rights standards for interrogation.

Pham reportedly sucked at anything military, and by all descriptions, the bulk of what Pham did in Yemen involved helping Samir Khan produce Inspire. After some time and a falling out with Khan — and after telling Anwar al-Awlaki he would accept a mission to bomb Heathrow — he returned to the UK. He was interrogated in Bahrain and at the airport on return, and again on arrival back home, then lived in London for six months before his arrest. At first, then-Home Secretary Theresa May tried to strip him of his UK citizenship in a secret proceeding so he could be deported (and possibly drone killed like other UK immigrants), but since — as a refugee — he no longer had Vietnamese citizenship, her first attempt failed.

The moment it became clear the British effort to strip him of citizenship would fail, the US indicted Pham in SDNY on Material Support (covering the graphic design work), training with a foreign terrorist organization, and carrying a firearm. Even before he ultimately did get stripped of his citizenship, he was flown to the US, in February 2015. The FBI questioned him, with no lawyer, during four days of interviews that were not recorded (in spite of a recently instituted FBI requirement that all custodial interviews be recorded). On day four, he admitted that Anwar al-Awlaki had ordered him to conduct an attack on Heathrow (which made the 302), but claimed he had made it clear he only did so as an excuse to be able to leave and return to the UK (a claim that didn’t make the 302; here’s Pham’s own statement which claims he didn’t want to carry out an attack). While Pham willingly pled guilty to the training and arms charges, at sentencing, the government and defense disputed whether Pham really planned to conduct a terrorist attack in the UK, or whether he had — as he claimed — renounced AQAP and resumed normal life with his wife. He failed to convince the judge and got a 40 year sentence.

The question of whether Pham really did plan to attack Heathrow may all be aired publicly given that — after Pham tried to get a recent SCOTUS case on weapon possession enhancements applied to his case — the government has stated that it wants to try Pham on the original charges along with one for the terrorist attack they claim Pham planned based on subsequently collected evidence.

The parallels between the Assange and Pham cases

Let me be clear: I’m not saying that Assange is a terrorist (though if the US government tries him, they will write at length describing about the damage he did, and it’ll amount to more than Pham did). I’m arguing, however, that the US has already gotten extradition of someone who, at the time of his extradition, claimed to have injured the US primarily through his media skills (and claimed to have subsequently recanted his commitment to AQAP).

Consider the similarities:

  • Both legal accusations involve suspect informants (Ahmad Warsame in Pham’s case, and Siggi and Sabu in Assange’s)
  • Both Pham and Assange were charged for speech — publishing Inspire and publishing the names of US and Coalition informants — that is more explicitly prohibited in the UK than the US
  • Both got charged with a substantive crime — terrorism training and possession of a gun in the case of Pham, and hacking in the case of Assange — in addition to speech-based crimes, charges that would (and did, in Pham’s case) greatly enhance any sentence on the speech-related charges
  • Pham got sentenced and Assange faces a sentence and imprisonment in SuperMax in the US that is far more draconian than a sentence for the same crimes would be in the UK, which is probably a big part of the shared Anglo-American interest in extraditing them from the UK
  • Whatever you think about the irregularity and undue secrecy of the Assange extradition, Pham’s extradition was far worse, particularly considering the way Theresa May was treating his UK citizenship

Unlike the Pham charges — all premised on Pham’s willing ties to a Foreign Terrorist Organization, AQAP — the US government has not included allegations that it believes Julian Assange conspired with Russia, though prosecutors involved in his case trying unsuccessfully to coerce Jeremy Hammond’s testimony reportedly told Hammond they believe him to be a Russian spy, and multiple other reports describe that the government changed its understanding of WikiLeaks as it investigated the 2016 election interference (and, probably, the Vault 7 release). Even if it’s true and even if they plan to air the basis for their belief, that’s a claimed intelligence tie, not a terrorism one.

This distinction is important. Holder v. Humanitarian Law clearly criminalizes First Amendment protected activity if done in service of a designated Foreign Terrorist Organization, so Pham’s graphic design by itself made him fair game for charges under US precedent.

The government may be moving to make a similar exception for foreign intelligence assets. As the Congressional Research Service notes, if the government believes Assange to be a Foreign Agent of Russia, it may mean the Attorney General (Jeff Sessions for the original charge, and Bill Barr for all the indictments) deemed guidelines prohibiting the arrest of members of the media not to apply.

The news media policy also provides that it does not apply when there are reasonable grounds to believe that a person is a foreign power, agent of a foreign power, or is aiding, abetting, or conspiring in illegal activities with a foreign power or its agent. The U.S. Intelligence Community’s assessment that Russian state-controlled actors coordinated with Wikileaks in 2016 may have implicated this exclusion and other portions of the news media policy, although that conduct occurred years after the events for which Assange was indicted. The fact that Ecuador conferred diplomatic status on Assange, and that this diplomatic status was in place at the time DOJ filed its criminal complaint, may also have been relevant. Finally, even if the Attorney General concluded that the news media policy applied to Assange, the Attorney General may have decided that intervening events since the end of the Obama Administration shifted the balance of interests to favor prosecution. Whether the Attorney General or DOJ will publicly describe the impact of the news media policy is unclear.

There’s a filing from the prosecutor in the case, Gordon Kromberg, that seems to address the First Amendment in more aggressive terms than Mike Pompeo’s previous statement on the topic.But it may rely, as the terrorism precedent does, on a national security exception (one even more dangerous given the absence of any State Department FTO list, but that hardly makes a difference for a foreigner like Pham).

Ultimately, though, the Assange extradition, like the Pham prosecution, is an instance where the UK is willing to let the US serve as its willing life imprisoner to take immigrants to the UK off its hands. Assange’s extradition builds off past practice, and Pham’s case is a directly relevant precedent.

The human rights case for Julian Assange comes at an awkward time

While human rights lawyers fought hard, at times under a strict gag, on Pham’s immigration case, Assange’s extradition has focused more public attention to UK’s willingness to serve up people to America’s draconian judicial system.

Last Thursday, Paul Arnell wrote a thoughtful piece about the challenge Assange will face to beat this extradition request, concluding that Assange’s extradition might (or might have, in different times) demonstrate that UK extradition law has traded subverted cooperation to a defendant’s protection too far.

We need to reappraise the balance between the conflicting functions of UK extradition law.

Among the UK’s most powerful weapons are its adherence to the rule of law, democracy and human rights. Assange’s extradition arguably challenges those fundamental principles. His case could well add to the evidence that the co-operative versus protective pendulum has swung too far.

He describes how legal challenges probably won’t work, but an appeal to human rights might.

British extradition law presumptively favours rendition. Extradition treaties are concluded to address transnational criminality. They provide that transfer will occur unless certain requirements are met. The co-operative purpose of extradition more often than not trumps the protection of the requested person.

The protective purpose of extradition is served by grounds that bar a request if they are satisfied. Those particularly applicable in Assange’s case are double criminality, human rights and oppression.

There are several offenses within the Official Secrets Acts 1911/1989 and the Computer Misuse Act 1990 that seemingly correspond to those in the US request. However, human rights arguments offer Assange hope.

Three are relevant: to be free from inhuman and degrading punishment, fair trial rights and freedom of expression. Previous decisions have held that life-terms in supermaximum-security prisons do not contravene the “punishment” provision, while the right to freedom of expression as a bar to extradition is untested.

Assange’s best prospect is possibly the oppression bar. Under it, a request can be refused on grounds of mental or physical health and the passage of time. To be satisfied, however, grievous ill health or an extraordinary delay are required.

It’s a good point, and maybe should have been raised after some of the terrorism extraditions, like Pham’s. But it may be outdated.

As I noted, Arnell’s column, titled, “Assange’s extradition would undermine the rule of law,” came out on Thursday. Throughout the same week that he made those very thoughtful points, of course, the UK publicly disavowed the rule of law generally and international law specifically in Boris Johnson’s latest effort to find a way to implement Brexit with no limits on how the UK deals with Northern Ireland.

The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.

This was not a slip of the tongue.

Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.

No: law-breaking was now a considered government policy.

[snip]

[T]he government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.

[snip]

Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.

This proposal has been a long time in the making.

We all only got to know about it this week.

[snip]

No other country will take the United Kingdom seriously in any international agreements again.

No other country will care if the United Kingdom ever avers that international laws are breached.

One of the new disclosures in a bunch of Roger Stone warrants released earlier this year is that, in one of the first Dms between the persona Guccifer 2.0, the WikiLeaks Twitter account explained, “we’ve been busy celebrating Brexit.” That same Brexit makes any bid for a human rights argument agains extradition outdated.

Billy Barr’s DOJ Throws the Book at Someone Not Named Mike Flynn for Reneging on a Plea Agreement

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Last week, the government moved to vacate the guilty plea of Minh Quang Pham because, in violation of his plea agreement, Pham tried to get one of the counts against him thrown out based on an intervening Supreme Court precedent. On top of a new development in a controversial counterterrorism case (one that, because Pham’s admitted actions for AQAP were primarily contributing his graphic design skills, could have interesting implications for Julian Assange’s extradition), the development is an example of what Bill Barr’s DOJ does when defendants not named Mike Flynn renege on the terms of their plea agreement.

Pham is a Vietnamese-Brit who, for a brief period, helped Samir Khan produce Inspire Magazine. Theresa May, while Home Secretary, tried to strip him of his British citizenship, presumably so he could be expelled and drone killed like some other immigrants to the UK with ties to terrorism. When it became clear that effort might fail, the US indicted Pham on Material Support, obtaining military training from a terrorist organization, and possessing a weapon.

There have always been some unexplained aspects of Pham’s story. He claims that he willingly left AQAP, returned to the UK with help from the government, where he lived peaceably until he was arrested. Nevertheless, in four FBI interviews he had while in custody but not recorded (the FBI claimed that because he was still in transit, he was not covered by an FBI rule requiring custodial interviews be recorded), he admitted to getting a bomb-making lesson from Anwar al-Awlaki. He later contested those interviews, but the government used testimony from Ahmed Warsame (another AQAP affiliate was also interrogated in custody while “in transit”) against him. In 2016, Pham pled guilty to three of the charges against him: conspiring to provide material support, conspiring to receive military training, and possessing a weapon. He was sentenced to forty years in prison, of which 30 were tied to the weapons charge, and sent to Florence SuperMax.

Last year in US v Davis, the Supreme Court held that the law used to impose the possessing a weapons charge and with it the long prison sentence against Pham was constitutionally vague.

Over the course of months, Pham worked to get representation to have his case reconsidered under US v Davis, an effort that was badly delayed both by his incarceration in SuperMax and COVID.

Which, after some negotiations between Pham and the government, led to last week’s action. Because US v Davis means Pham’s conviction for the weapons charge must be dismissed, the government argues they are entitled to throw out Pham’s plea deal, and move towards a trial, including new charges.

As set forth in more detail below, the Government respectfully submits that the Court should reinstate the charges contained in the Indictment. The Government dismissed those charges at sentencing pursuant to the Plea Agreement, and only as consideration for the defendant’s guilty plea to the subset of offenses set forth in the Plea Agreement. Neither the terms of the Plea Agreement nor controlling law in this Circuit prevent the Government from reinstating the previous charges against Pham under these circumstances. To the contrary, the defendant’s Plea Agreement expressly preserved the Government’s right to do so should the defendant’s “convictions” be “vacated for any reason.” (Ex. A. at 8). Accordingly, the Government seeks to vacate Pham’s convictions, reinstate the charges in the Indictment, and proceed to trial.

[snip]

Although it is axiomatic that “when a defendant breaches his plea agreement, the Government has the option to . . . treat it as unenforceable,” United States v. Cimino, 381 F.3d 124, 128 (2d Cir. 2004), the Court need not decide whether Pham’s filing of a Section 2255 motion constituted a breach of the plea agreement to grant the Government’s motion. “Whether [Pham] breached his contract or acted properly in negating it is largely irrelevant to this issue. Despite the change in law, [Pham] remained free to comply with the plea bargain. By taking advantage of the opportunity to vacate his conviction under [Davis], [Pham] chose to void his agreement with the government. That choice relieved the government from its contractual obligations, and explains why double jeopardy does not apply.” Podde, 105 F.3d at 821 n.6 (internal citations omitted).

In addition to moving to try Pham on the five existing charges (presumably, on the four that remain after Davis), the government plans to charge Pham with an attempted terrorist attack, in part to make sure they can charge Pham with something if the existing plea deal is upheld.

Separate from the application for reinstatement of charges, the Government respectfully informs the Court and defense counsel that the Government intends to file additional charges against Pham based on additional evidence secured following his conviction and sentencing.

The evidence at issue includes (1) video recordings showing the defendant constructing and detonating a test explosive device virtually identical to the one Pham told law enforcement was to be used in his planned suicide attack on Americans and Israelis at Heathrow International Airport; (2) video recordings of Pham associating with high-ranking members of AQAP; (3) a video recording of Pham describing his goal of waging jihad and his desire to martyr himself; and (4) a document containing instructions for executing the attack upon Pham’s return to London. The Government reviewed this evidence with defense counsel during a meeting on December 5, 2019, and produced a copy of the evidence to the defense on or about March 24, 2020.

Based on this evidence, the Government expects to seek additional charges related to the defendant’s attempted attack at Heathrow, including a violation of Section 924(c) predicated on the use and possession of a destructive device in furtherance of one or more additional crimes of violence committed in connection with the plot. This conduct, and the anticipated charges based upon it (which are subject both to approval by other components of the Department of Justice and presentation to the grand jury), are not covered by the provisions of the Plea Agreement defining the conduct for which “the defendant will not be further prosecuted criminally by this Office.” (Ex. A at 2). Accordingly, while the Government will not proceed with a superseding Indictment until after the Court rules on the reinstatement of the original charges of the Indictment, the Government expects to seek those additional charges whether or not it is also able to proceed on the previously dismissed counts.

Now, I’m not suggesting, at all, that there’s an equivalence in the actions of Pham and Mike Flynn. Even assuming some of Pham’s complaints about his interrogation and the disproportionate responsibility the government attributed to him over Warsame are true, he still admits he sought to participate in a terrorist organization.

But where a comparison is apt is the plea agreement. Like Pham, the government included language in Flynn’s plea agreement that if his conviction were vacated for any reason, he can be charged for the uncharged conduct tied to his plea agreement — which in Flynn’s case are the Foreign Agent charges that carry a possible sentence of 15 years. Flynn is arguing that he has not yet been convicted, though that’s currently among the many issues under dispute.

And the comparison is apt because (the government has argued, though Flynn disagrees) Flynn reneged on the cooperation included in his plea agreement.

For other people, Bill Barr’s DOJ has thrown the book when a defendant has reneged on his plea deal. In Flynn’s case, however, Barr’s DOJ is doing back flips to try to blow up the existing conviction.

Pham’s case will be quite interesting in any case, if it goes to trial (and the government has effectively already told him they intend to keep him in prison for life anyway, so he has no incentive not to contest this aggressively). But it’s also a worthy lesson in what normally happens when a defendant blows up a plea deal like Mike Flynn has.

Ben Wittes Gets Stung by the Trump Effect

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WaPo has a report that DHS disseminated intelligence reports discussing tweets about leaked unclassified materials describing that DHS knows fuckall about the protests in Portland.

Over the past week, the department’s Office of Intelligence and Analysis has disseminated three Open Source Intelligence Reports to federal law enforcement agencies and others, summarizing tweets written by two journalists — a reporter for theNew York Times and the editor in chief of the blog Lawfare — and noting they had published leaked, unclassified documents about DHS operations in Portland. The intelligence reports, obtained by The Washington Post, include written descriptions and images of the tweets and the number of times they had been liked or retweeted by others.

After The Post published a story online Thursday evening detailing the department’s practices, the acting homeland security secretary, Chad Wolf, ordered the intelligence office to stop collecting information on journalists and announced an investigation into the matter.

The WaPo specifically notes that normally this kind of thing only happens with terrorism and other violent actors.

Some of the leaked DHS documents the journalists posted and wrote about revealed shortcomings in the department’s understanding of the nature of the protests in Portland, as well as techniques that intelligence analysts have used. A memo by the department’s top intelligence official, which was tweeted by the editor of Lawfare, says personnel relied on “FINTEL,” an acronym for financial intelligence, as well as finished intelligence “Baseball cards” of arrested protesters to try to understand their motivations and plans. Historically, military and intelligence officials have used such cards for biographical dossiers of suspected terrorists, including those targeted in lethal drone strikes.

The DHS intelligence reports, which are unclassified, are traditionally used for sharing the department’s analysis with federal law enforcement agencies, state and local officials, and some foreign governments. They are not intended to disseminate information about American citizens who have no connection to terrorists or other violent actors and who are engaged in activity protected by the First Amendment, current and former officials said.

The tweets were sent by Ben Wittes and NYT’s Mike Baker.

Wittes wrote a long thread in response, suggesting he may take further action, and complaining, in particular, that discussion of his tweets was disseminated as intelligence reporting.

Welcome to the Trump Effect, Ben.

I have long argued that the President created something I call the Trump Effect, which makes things that the US has long done — like abusive treatment of undocumented immigrants, counterproductive use of violence overseas, and excessive intelligence collection — visible to people like mainstream voters and some kinds of national security commentators.

Here, Wittes is specifically complaining about policies he and Lawfare have, in the past, applauded, a special category of intelligence collection — even collection of speech otherwise protected under the First Amendment — targeted at those believed to pose a unique threat to national security. I’ve tangled with Lawfare in the past over whether such policies disproportionately constrain Muslim speech. And I noted — in response to a Pollyannish prediction from Wittes that Trump wouldn’t be that bad in part because this kind of intelligence is focused primarily overseas that, no, it had already been deployed against Black Lives Matter, precisely the movement it is currently being deployed against.

Consider: One of the most inflated cases of terrorism in recent decades was Mohamed Osman Mohamud, a guy whose father asked the FBI for help because the father worried that the son was being radicalized. Rather than helping, the FBI targeted Mohamud — who was in contact with AQAP propagandist Samir Khan — in a sting. After over a year (probably more than a year), they got the teenager to press a button he thought would detonate a bomb that targeted Pioneer Square in Portland, the site of the historic courthouse. During his prosecution, the FBI wiretapped several lawyers representing Mohamud. The FBI almost  certainly cultivated him after doing back door searches targeting Samir Khan and others. Mohamud, now 28, still has 16 years left on his 30 year sentence, assuming time off for good behavior.

I’m not saying Mohamud, after being radicalized (partly by FBI informants and undercover officers) posed no danger. But the danger and the special authorities used against him were all premised on his intent to do damage to the historic courthouse a few blocks aware from the Federal Courthouse, the very same rationale Billy Barr has repeatedly cited for sending Federal officers to incite more violence in Portland. Whatever you want to call the damage done by a handful of protestors in Portland, it is real damage, unlike what Mohamud got incited by Federal officers to commit.

And using the framework that Lawfare has largely applauded, Trump’s national security establishment has now targeted the First Amendment activities of those deemed to exist in a network, however diffuse, that also includes those “supporting” violence in Portland.

Once a majority of the country came to support Black Lives Matter, a majority of the country came to exist within a diffuse network that has long been treated using a similar framework used against terrorism.

Including Ben Wittes.

None of this makes what DHS has done right. And, because Wittes and the NYT are public figures with access to powerful lawyers (unlike the great majority of journalists covering Portland’s stand-off), Acting DHS Secretary Chad Wolf reversed course.

But the response should not just be a complaint about how Trump and Barr have treated protestors and journalists and lawyers using the same approach that Wittes long applauded to be used with terrorists, one that long ago dispensed with the need to have a real nexus overseas. It should also be an urgent call to reexamine how we have investigated Muslims in the name of terrorism, particularly as the FBI continues to have such success investigating white supremacist terrorism without using this framework.

Federal intelligence targeting networks — especially when wielded by those who don’t understand the networks they’re looking at — will always impinge on First Amendment activities. It just so happens that now it is impinging on the First Amendment activities of those who used to applaud such approaches.

Update: I’ve been getting the two courthouses in Portland confused all morning. Hopefully I’ve fixed it now.

Trump’s Muslim Ban Ignored the Most Dangerous

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The NYT has a long piece describing how Saudi Lieutenant Mohammed Alshamrani managed to get recruited into an elite flight training program, accepted into training in the US, granted a diplomatic visa and then the hunting license that allowed him to murder three sailors on a base in Pensacola last year, all with social media and call records making it clear he had ties to al Qaeda.

The entire thing is worth reading, both for the seeming Saudi indifference to their own vetting and for the discussion about ongoing tensions as DOD attempts to vet those it trains. The key problem, however, is that Alshamrani fell through the holes on both of the vetting programs purportedly set up to keep out people like him. Not only did Trump’s Muslim ban not exclude Saudis (from where more terrorists have come to attack the US than any other country, with the possible exception of Pakistan), but the increased vetting he demanded did not apply to diplomatic visas like the one he came in on. 

After passing through the hands of Saudi authorities, Lieutenant Alshamrani’s application for a visa to the United States landed in the consular section of the American Embassy in Riyadh in the summer of 2017.

The lieutenant’s information was first fed into a database kept by a special Department of Homeland Security vetting unit that has operated in Saudi Arabia after the Sept. 11 attacks. A consular officer used his passport and photograph to run still more checks — including facial recognition searches — on powerful databases fed by the American government’s central repository of information about terrorist identities.

It is not uncommon for the searches to turn up information that prevents military trainees from obtaining visas. But American Embassy officials, who are largely restricted from knocking on doors and taking other steps associated with deep background investigations, did not check the lieutenant’s social media history because such checks were not required at the time. Lieutenant Alshamrani’s application raised no suspicions.

One problem was that he was applying for a diplomatic visa as part of the elite training programs that are often important components of multibillion-dollar arms sales. In the last five years alone, Saudi Arabia has bought more than $45 billion in American weapons and training.

Although the State Department had cabled all embassies at Mr. Trump’s orders earlier in 2017 to step up screening of visas, the extra scrutiny was applied to immigrant visas and not to diplomatic applications, a senior American Embassy official in Riyadh said.

And the Insider Threat program set up in the wake of the Nidal Hassan killings focused exclusively on Americans, not foreign trainees.

The Pentagon system to monitor insider threats — created after the fatal shootings at Fort Hood and the Washington Navy Yard — was focused only on American service members, not on the 5,000 international military students who were training in the United States, including some 850 Saudis.

Normally, I’m of the mind that the national security dragnet will not catch every potential terrorist. But in this case, Alshamrani succeeded precisely because Trump’s racist ban was focused not on efficacy, but on bigotry, exempting precisely those who posed the most risk.

This should be a focus of bipartisan hearings — and it should draw more focus than whether or not Trump can drink a glass of water. Not because we need more dragnets, but because we need existing vetting programs to be focused on the most dangerous threats.

When Billy Barr Called a Press Conference to Target Non-Terrorists Rather than Brag about the Right Wing Terrorists FBI Caught

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What if the FBI succeeded in thwarting a right wing terrorist attack but rather than bragging about that success, instead redoubled its efforts to target peaceful protestors as terrorists?

That’s what happened this week.

On Tuesday, the FBI terrorism agents arrested three adherents of the “Boogaloo” movement, a group of extremists planning a civil war. All have military experience and one, Andrew Lynam, is currently in the Army Reserve. At a ReOpen Nevada protest held in April, at which they were all heavily armed, Lynam told a person who’d go on to become an FBI informant that, “their group was not for joking around and that it was for people who wanted to violently overthrow the United States government.” One of them planned to use the cover of the George Floyd protests to conduct attacks and sow panic.

CHS stated that PARSHALL and LOOMIS’s idea behind the explosion [targeting Lake Mead] was to hopefully create civil unrest and rioting throughout Las Vegas. They wanted to use the momentum of the George Floyd death in police custody in the City of Minneapolis to hopefully stir enough confusion and excitement, that others see the two explosions and police presence and begin to riot in the streets out of anger.

They were arrested on the way to a Black Lives Matter protest with the makings of Molotov cocktails and an AR-15 in their vehicles.

Normally when the FBI thwarts a terrorism attack in process, they hold a big press conference to brag about it. As of this morning, however, neither DOJ nor FBI have posted the arrest on their national news websites (the Nevada US Attorney’s Office has).

Instead of boasting about the plotters arrested as terrorists, yesterday Billy Barr, FBI Director Christopher Wray, Acting DEA Administrator (and Barr flunky) Timothy Shea, and the head of ATF had a press conference that seemed designed to provide post hoc and advance justification for abusive steps Barr has and plans to authorize. (The Daily Beast also remarked on their silence about the Boogaloo arrests, and noted that that was one of the only arrests of ideologically motivated groups that have taken place during the uprising.)

The specifics of their statements, given the legal framework around national security investigations and known and presumptive OLC memos authorizing such things, deserves more attention.

The culprit is Antifa, not (also) the right-wingers carrying guns

In questions, for example, Pierre Thomas asked Bill Barr about the Boogaloo bust. Barr responded by focusing on Antifa.

And that’s why in my prepared statement, I specifically said, in addition to Antifa and other extremist groups like Antifa, there were a variety of groups and people of a variety of ideological persuasion. So I did make that point. I’m not going to get too specific, but the intelligence being collected by our US attorney’s office is particularly integrated by the FBI from multiple different sources is building up. There are some specific cases against individuals, some Antifa related.

Chris Wray also responded to the question about Boogaloo by emphasizing that Antifa was a terrorist organization.

Sure. Let me say first, as I’ve said for quite some time and including even my first few months in job, we, the FBI have quite a number of ongoing investigations of violent anarchist extremists, including those motivated by an Antifa or Antifa like ideology. And we categorize and treat those as domestic terrorism investigations and are actively pursuing them through our joint terrorism task forces.

This repeats comments both Wray and Barr made in their prepared speeches. Barr saidhe culprit here is “Antifa” and it is violent.

At some demonstrations, there are groups that exploit the opportunity to engage in looting.  And finally, at some demonstration, there are extremist agitators who are hijacking the protests to pursue their own separate and violent agenda.

We have evidence that Antifa and other similar extremist groups, as well as actors of a variety of different political persuasions, have been involved in instigating and participating in the violent activity.

Wray said the same. The culprits are “Antifa” and other agitators.

We’re seeing people who are exploiting this situation to pursue violent, extremist agendas—anarchists like Antifa and other agitators. These individuals have set out to sow discord and upheaval, rather than join in the righteous pursuit of equality and justice. And by driving us apart, they are undermining the urgent work and constructive engagement of all those who are trying to bring us together—our community and religious leaders, our elected officials, law enforcement, and citizens alike.

There is a foreign nexus that will allow us to use transnational tools

In his prepared speech, Barr claimed that there are foreign actors involved.

We are also seeing foreign actors playing all sides to exacerbate the violence.

It’s true that the Russians who helped Trump get elected are sowing dissension but that would be dealt separately from a press conference if Barr weren’t trying to use the foreign nexus to access national security tools he says can’t be used with Trump supporters.

Barr returned to this later, and specifically said they maybe can’t offer proof.

I may ask Chris if he cares to provide a little more detail. I’m not sure how much detail we want to get into, but people shouldn’t think that countries that are hostile to the United States, that their efforts to influence the US or weaken the US or sow discord in the US is something that comes and goes with the election cycle. It is constant. And they are constantly trying to sow discord among our people, and there’s a lot of disinformation that circulates that way. And I believe that we have evidence that some of the foreign hackers and groups that are associated with foreign governments are focusing in on this particular situation we have here and trying to exacerbate it in every way they can. Unless Chris has something to add, I can turn it over to … Yeah.

By suggesting there’s a foreign nexus, Barr is laying the groundwork to claim to need tools only available with that foreign nexus (something that has been done with past protest movements).

Every store that gets raided gives federal jurisdiction

After making it clear that Billy Barr intends to target Antifa as the culprit here, and use national security tools to do so, Barr and his flunkies then laid out how they think they have national jurisdiction.

Barr asserted his own jurisdiction based off the federal buildings he said that had been targeted (and because protestors were in front of the White House).

Many of the buildings, as you know, and facilities here, and the monuments are the responsibility of the federal government and the proceedings and process of the federal government take place here. And so when you have a large scale civil disturbance that is damaging federal property, threatening federal property, threatening federal law enforcement officers, threatening the officials in government and their offices and our great monuments, it is the responsibility of the federal government to render that protection.

Barr described how that Federal jurisdiction — and his invocation of the word “riot” — allows them to lead the response via what is the intelligence-driven network used against terrorists.

The Justice Department is also working closely with our state and local partners to address violent riots around the country.  Our federal law enforcement efforts are focused on the violent instigators.

Through the FBI, U.S. Attorney’s Offices, component field offices, and state and local law enforcement, we are receiving real-time intelligence, and we have deployed resources to quell outbreaks of violence in several places.

While Wray didn’t use the word “riot” he described the centrality of the Joint Terrorism Task Force to the Federal response.

We’re making sure that we’re tightly lashed up with our state, local, and federal law enforcement partners across the country, by standing up 24-hour command posts in all of our 56 field offices. We have directed our 200 Joint Terrorism Task Forces across the country to assist local law enforcement with apprehending and charging violent agitators who are hijacking peaceful protests.

Timothy Shea invented an excuse not used in his request to get involved: the DEA has jurisdiction because some people stole controlled substances from pharmacies, possibly after they had been looted.

In addition, DEA continues to investigate drug related crimes, including the theft of controlled substances from looted pharmacies, which is happening here in the District of Columbia and across the country. In the national capital region, approximately or over 150 DEA special agents have partnered with the metropolitan police department at their request and the National Guard to enforce security posts and maintain a secure perimeter in designated areas.

Acting ATF Director Regina Lombardo made a similar claim to jurisdiction (though theirs legitimately extends to explosives activity): ATF is investigating firearm dealer thefts.

 ATF has also responded to 73 federal firearms licensed dealers. We have identified many suspects that made arrest and recovered many firearms already.

When it came to Bureau of Prisons Director Michael Carvajal, the only real excuse he offered was that Billy Barr requested BOP get involved. Though he did offer the bogus claim that BOP’s riot team is “experienced in … conflict resolution.”

The Attorney General asked the BOP to request and assist other law enforcement agencies in maintaining order and peace in the district of Columbia. BOP crisis management teams are highly trained to deal with various types of emergency situations, including crowd control and civil disturbances. They are experienced in confrontational avoidance and conflict resolution.

Barr offered even more transparently bullshit excuses for inviting in the kinds of people who put down riots among violent felons, claiming that there weren’t enough Marshals to go around, and that no one else in the US Government (like Park Police) know how to deal with the kinds of crowds they deal with all the time. Barr also provided a totally bullshit excuse for why the riot teams weren’t wearing identification.

Let me just add that the Bureau of Prisons SORT teams are used frequently for emergency response and emergency situations, in either civil disturbances or hurricanes or other things like that. They’re highly trained. They’re highly trained units. And in fact, in the Department of Justice, we do not really have large numbers of units that are trained to deal with civil disturbances. I know a lot of people may be looking back on history, think we can call on hundreds and hundreds and hundreds of US Marshals, and that’s simply not the case. Our marshals’ response for us is approximately a hundred US Marshals. And so, historically when there have been emergencies where we have to respond with people who do have experience in these kinds of emergencies that are highly trained people, we use what are called SORT teams, response teams from the Bureau of Prisons.

And I could see a number … Now, in the federal system, we don’t wear badges with our name. I mean, the agents don’t wear badges and their names and stuff like that, which many civilian police agents, I mean, non-federal police agencies, do. And I could understand why some of these individuals simply wouldn’t want to talk to people about who they are, if that were, if that in fact was the case.

The photo op was not a photo op

But Barr’s bullshit explanation for why he sicced riot teams on peaceful protestors was still more credible than the excuse he offered for violently attacking peaceful protestors, including priests at a church serving them, for a photo op. He had decided (using the jurisdiction assumed by claiming everything is a federal building) to expand the perimeter around the White House.

Unfortunately, because of the difficulty in getting appropriate units into place, by the time they were able to move our perimeter up to I street, a large number of protestors had assembled on H Street. There were projectiles being thrown and the group was becoming increasingly unruly. And the operation to what… They were asked to three times if they would move back one block, they refused. And we proceeded to move our perimeter out to I Street.

And that had nothing at all whatsoever with the President’s desire for a photo op and he just happened to be in the photo op that had nothing to do with the violent attack on peaceful protestors and the exploitation of a house of worship.

Obviously, my interest was to carry out the law enforcement functions of the federal government and to protect federal facilities and federal personnel, and also to address the rioting that was interfering with the government’s function. And that was what we were doing. I think the president is the head of the executive branch and the chief executive of the nation, and should be able to walk outside the White House and walk across the street to the church of presidents. I don’t necessarily view that as a political act. I think it was entirely-I don’t necessarily view that as a political act. I think it was entirely appropriate for him to do. I did not know that he was going to do that until later in the day after our plans were well underway to move the perimeter, so there was no correlation between our tactical plan of moving the perimeter out by one block and the president’s going over to the church. The president asked members of his cabinet to go over there with him, the two that were present, and I think it was appropriate for us to go over with him.

Let me be clear. These are — most of them — transparently bullshit excuses. Unfortunately, the way our intersecting justifications for using national security authorities work, such transparently bullshit excuses provide the legal cover that the Federal government has long used, especially when it comes to spying on brown people.

To be clear, this is not new. It’s just incredibly ham-handed and pretty transparently done after the fact, after the press already identified Barr’s abuses. And I assume OLC only now is writing memos to match the transparently bogus claims made in yesterday’s presser.

Bill Barr and Chris Wray Schedule a Press Conference to Admit Trump Let an Al Qaeda Terrorist onto Our Military Base

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Today, Billy Barr and Chris Wray had a press conference to announce that — in spite of his Muslim Ban — Trump had permitted an affiliate of AQAP, Mohammed Saeed Alshamrani, into this country, and onto a military base, where he bought a gun and murdered three sailors.

The evidence we’ve been able to develop from the killer’s devices shows that the Pensacola attack was actually the brutal culmination of years of planning and preparation, by a longtime AQAP associate.

The new evidence shows that al-Shamrani had radicalized not after training here in the U.S. but at least as far back as 2015, and that he had been connecting and associating with a number of dangerous AQAP operatives ever since. It shows that al-Shamrani described a desire to learn about flying years ago, around the same time he talked about attending the Saudi Air Force Academy in order to carry out what he called a “special operation.” And he then pressed his plans forward, joining the Air Force and bringing his plot here—to America.

Thanks to a lot of hard work by our people, we now know that al-Shamrani continued to associate with AQAP even while living in Texas and in Florida; and that in the months before the attack, while he was here among us, he talked with AQAP about his plans and tactics—taking advantage of the information he acquired here, to assess how many people he could try to kill.

After presenting this evidence, Barr and Wray didn’t announce that Trump is ending his Muslim Ban or retargeting it to focus on countries like Saudi Arabia that have always been a risk for terrorism. Barr and Wray didn’t explain how it was that the Trump Administration’s vetting was so poor that they let Alshamrani into a flight training program in Pensacola without vetting his social media or searching his phone on arrival. They didn’t explain how they’ll make sure foreign military officers we’re training don’t continue to plot attacks under our nose.

Instead, Barr and Wray used this opportunity to explain that Apple has to make all our phones less secure even after the FBI succeeded in accessing Alshamrani’s phones.

Barr and Wray didn’t explain why the obvious solution is not, instead, to properly vet military officers from countries that have attacked us in the past, including consensual searches of phones as those officers enter the country.

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