Dear Eric Holder: You’re Doing Recusal Wrong

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Let me start this post by saying I think it is absolutely appropriate for Eric Holder to have recused himself from the UndieBomb 2.0 investigation, in part because — as someone read into the UndieBomb 2.0 operation, he was interviewed by the FBI (though so was James Cole, who is now in charge of the investigation), and he turned over his own phone contacts to the FBI — but also because top Administration officials like John Brennan at least should be under close scrutiny in this investigation.

Nor do I think, in his recusal, Eric Holder did anything in bad faith. I have zero reason to believe Holder is tampering with this investigation, in any way shape or form.

But Jeebus, Holder is doing this entire recusal thing wrong.

That’s true, first of all, because with a rabid Congress (at the time he recused from the investigation and now) accusing him of wrongly delegating this investigation to Ronald Machen in an investigation that could net incredibly powerful people as suspects, Holder did not write his recusal — or a delegation of authority of Attorney General powers — to James Cole, who is overseeing the investigation.

Now, Holder claims not to remember whether he memorialized his recusal in past cases, including the John Edwards investigation — the most high profile case in which he has recused. And though George Holding, who conducted that investigation and now represents the Raleigh, NC, area in Congress, was in the room, I’m not sure they clarified whether he had written anything down there, either. Holder was, however, very clear about what authorities he delegated to Patrick Fitzgerald when he investigated the John Adams Society, which led to the prosecution of John Kiriakou, having sent 3 letters (1, 2, 3) memorializing the limits of Fitz’ authority.

I think part of the problem is that Holder didn’t really appoint special counsels to investigate this matter, even while he made a big deal of appointing the people who — US Attorney for DC Ronald Machen’s appointment rather then US Attorney for Eastern District of VA Neil MacBride aside — would have been investigating it anyway. Dumb. Congress was screaming for some kind of formality, and Holder didn’t establish that formality.

And then there’s the journalist-subpoenaing precedent of the Plame investigation where Fitz several times got letters clarifying his authority. The first of those reads,

By the authority vested in the Attorney General by law, including 28 U. S .C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department’s investigation into the alleged unauthorized disclosure of a CIA employee’s identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.

This came in handy later in the investigation when Libby’s lawyers challenged Fitz’ authority.

Then, Holder’s recusal hasn’t been very strict. Most troublingly, Eric Holder reviewed the letter James Cole sent to the AP (though Holder saw a draft which, according to his press conference, included things like details on the specific scope of the subpoena that don’t appear in the final letter). NPR’s Carrie Johnson asked him about this.

Johnson: Is that normal practice when you’re recused from a case?

Holder: No, I just wanted to see the le–I saw I mean I saw saw the draft letter this morning. And I just wanted to have an opportunity to see what it looked like so I’d have at least some sense of the case in case there were things in the letter that I could talk about with the press.

Reviewing this letter — particularly before changes got made to it!! (changes which appear to have deprived the AP of full notice of the call record grab) — simply isn’t appropriate for someone recused from the case!

Again, I’m not suggesting malice here.

But the AP has already — rightly, in my opinion — challenged whether DOJ complied with its own guidelines on media subpoenas. In particular, AP complained that they had not been given notice and an opportunity to cooperate. That’s one of the guidelines that requires AG involvement.

Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.

Yet the guy who signed this subpoena and with it signed off on the claim that alerting AP to the subpoena would do grave damage to the investigation  — James Cole — apparently has no piece of paper giving him authority to sign it.

If DOJ ultimately decides to charge the AP’s sources, if that person has the kind of legal representation DC bigwigs often have, I fully expect them to challenge every bit of their prosecution. After all, by subpoenaing the AP, Cole claimed that DOJ could not get the information from any other source. So if AP’s sources are indicted, they can rest assured that their prosecution went through this bottleneck of an Acting AG who had no paperwork to prove he had the authority to sign off on the claims he was making to get information he was certifying was absolutely necessary to find them. And from this subpoena forward, everything else will be fruit of a tainted AG, at least if you’ve got fancy lawyers.

Dumb.

One last thing. Also in today’s hearing, Holder admitted that it probably would have been a good idea to write down this recusal thing in public. Which, if they do ever charge AP’s sources and if said sources have the resources to make this obvious challenge, they’ll cite in court to document that even the guy who delegated this authority thinks it would be smarter if he did so in writing.

Seriously, this entire recusal process has been an own goal. As I said, I don’t think DOJ is pulling anything fishy. But the entire point of recusing is to ensure there’s proof nothing fishy happened. And in this case, DOJ has anything but.

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Gone Fishin’ Hikin’, Ham, and Bourbon-in’

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[youtube]hOxz-jyDwr0[/youtube]

It’s that time of year: when Mr. EW and I celebrate St. Pattys, his birthday, our anniversary, and my birthday (and, this year, our friend Catie’s birthday, too).

We’ll be doing it, for the next 5 days or so, in KY’s Red River Gorge — sandstone like you’d expect to find in the Southwest, but with rhododendrons growing everywhere instead of saguaros.

Then we’ll be heading on a Bourbon and ham pilgrimage. We’re not Bourbon drinkers, so include your advice in comments!

Thing is, while Red River Gorge is beautiful, it also is one of the places in the US that still has godawful Intertoobz and wireless connectivity. Blame Mitch McConnell for screwing his constituents, I guess.

So I’ll probably be mostly absent from these parts until Wednesday and only somewhat present until whenever we decide to return home to Beer Mecca from Bourbon Mecca.

Sadlly, bmaz (and Jim and Rayne) will have to make do with whatever leftovers are in the likker cabinet until I can stock it with Bourbon again. I’m sure he’ll make do!

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Vote For A Winner – Vote Emptywheel!!

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Okay denizens of The Wheelhouse, there is such a thing as “Twitter Fight Club”. And the first rule of Twitter Fight Club is talk about Twitter Fight Club and vote for Marcy “Emptywheel” Wheeler. The second rule is don’t forget the first rule.

It is a fun game that has been done once a year for two or three years now; you will recognize many of the names involved, many you will not. It is a bracketed competition like the NCAA basketball tournament. Fill out a full bracket for a chance at glory and prizes, or simply vote on one game (Hint: Emptywheel’s portion).

Here is the page you need for voting and further information.

First round voting closes at midnight tonight. Assuming the headmistress here gets through to the second round (she should) you should then check back at TFC and help lead her to victory in further rounds! Let’s win one for the Wheeler!

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CIA Director Petraeus’ Traditional Military Operations

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One of Brennan’s answers to Additional Prehearing questions I didn’t gloss the other day is this one:

Question 8: What are your views on what some have described as the increased “militarization” of the CIA mission following September 11, 2001 attacks?

In my view, the CIA is the Nation’s premier “intelligence” agency, and needs to remain so. While CIA needs to maintain a paramilitary capability to be able to carry out covert action as directed by the President, the CIA should not be used, in my view, to carry out traditional military activities.

[snip]

Do you envision the CIA becoming more or less “militarized” in its mission, should you be confirmed?

The evolution of foreign threats will determine how the CIA adjusts its intelligence activities in the future. If I were to become the Director, I would plan to carry out CIA’s crucial missions, including collecting foreign intelligence, providing all-source analysis, conducting robust counterintelligence, and carrying out covert actions as directed by the President. If confirmed, I would not be the Director of a CIA that carries out missions that should be carried out by the U.S. military.

Brennan brought up the issue again in response to a question (which was prefaced by a totally inappropriate bid to his Jesuit training) from Barbara Mikulski.

At the beginning of her questioning, Sen. Barbara Mikulski (D-Md.) noted dryly that she had been “jerked around” by every CIA director she’d known as a legislator, with the exception of Leon Panetta. Brennan assured her “truthfulness is a value that was inculcated in me in my home in New Jersey.” But when Mikulski brought up about the CIA’s increasing role in paramilitary operations, describing that as “mission creep” and asking whether Brennan would steer the Agency back towards its more traditional intelligence-gathering role, Brennan said only that he would “take a look at the allocation of that mission,” before saying that the CIA “should not be involved in traditional military activities.” But Mikulski was talking about paramilitary activities such as drone strikes. No one actually accused the CIA of engaging in “traditional military activities.”

Clearly, Brennan is making a distinction between paramilitary actions he insists (contrary to the many claims he’d get out of the business) are a central part of CIA’s mandate and traditional military operations.

To some degree, he seems to be saying he will not abide by putting himself in the chain-of-command to give a JSOC op a legally pretty face.

But I couldn’t help thinking about Brennan’s answers as I read this WaPo article. While the article never comes out and says it, what it describes is Obama’s decision — taken at precisely the moment when Petraeus ousted, ostensibly for a consensual affair — to abandon an approach put in place by the retired general.

President Obama is unlikely to shift his stance against the expansion of a U.S. role in Syria’s civil war, despite a death toll topping 60,000 and acknowledgment that key members of his national security staff favored a plan first proposed in June to arm the Syrian rebels.

Read more →

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Will Guantanamo Judge Reveal Identity of Monday’s “Big Brother” Censor?

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Carol Rosenberg in the Miami Herald and Peter Finn in the Washington Post recount a very strange sequence of events during yesterday’s proceedings in the Guantanamo military commission that is attempting once again to “try” the group of five prisoners that includes Khalid Sheik Mohammed for their conspiracy in bringing about the 9/11 attacks. As Rosenberg recounts, the judge was enraged when a portion of the proceedings was censored by someone outside the courtroom. The judge appeared to have no knowledge beforehand that anyone besides himself or his security officer could control the censoring process:

Someone else besides the judge and security officer sitting inside the maximum-security court here can impose censorship on what the public can see and hear at the Sept. 11 trial, it was disclosed Monday

The role of an outside censor became clear when the audio turned to white noise during a discussion of a motion about the CIA’s black sites.

Confusion ensued. A military escort advised reporters that the episode was a glitch, a technical error. A few minutes later, the public was once again allowed to listen into the proceedings and Army Col. James Pohl, the judge, made clear that neither he nor his security officer was responsible for the censorship episode.

“If some external body is turning the commission off based on their own views of what things ought to be, with no reasonable explanation,” the judge announced, “then we are going to have a little meeting about who turns that light on or off.”

Finn described the event as the action of an “invisible hand”:

Who controls what the public and reporters can see and hear at the military commissions at Guantanamo Bay, Cuba? Is there an invisible hand, unknown to even the military judge, that can switch off audio and video feeds?

Finn gives more details of the proceedings as the button was pushed:

David Nevin, one of Mohammed’s civilian attorneys, was discussing a defense motion to preserve any evidence from the secret overseas prisons where the defendants were held by the CIA. The motion had been declassified, but Nevin had barely gotten a sentence out when the audio feed to the media centers on base and at Fort Meade was smothered in white noise. Then the video of the courtroom was cut.

When the feeds were restored several minutes later, Judge James Pohl, an Army colonel, seemed perplexed as to not only why Nevin was censored but by whom. Pohl said he did not cut off the feed, and it did not appear that the court security officer who sits beside him did, either.

Rosenberg informs us that the judge was very upset:

But to court observer Phyllis Rodriguez, the judge appeared “furious” and “livid” when he realized that that outsiders had their finger on the censorship switch of his courtroom.

“It’s a ‘whoa moment’ for the court,” said Human Rights Watch observer Laura Pitter. “Even the judge doesn’t know that someone else has control over the censorship button?”

Both articles point to DOJ attorney Joanna Baltes offering to explain to Pohl in secret session how the censorship came about and it appears that Pohl intends to disclose who pushed the button if, as Finn states, “what happened could be explained in public”.

The event also upset the attorneys. As Finn reports, it prompted further concerns:

Nevin and other defense attorneys said they wanted to know whether there was some mysterious entity monitoring the proceedings — and whether that entity might be listening to communications between the lawyers and their clients.

Just who is responsible for this censoring? And, as Nevin speculates, is this same “invisible hand” also an “invisible ear” listening to his discussions with his clients?

This episode is yet another example of the folly of not trying these defendants in federal court. The military commission rules are an ever-changing mess where nobody, now apparently including the presiding judge, knows what is appropriate and what is not or even who determines what constitutes secret information. In a federal court, there never is a question that the judge controls all aspects of the proceedings.

Iran’s PressTV was highly entertained by the episode, citing both the “invisible hand” phrase and putting “open” into scare quotes in their lede paragraph about the session and its unexpected censoring:

During defense arguments in an “open” session of the US military trial of Guantanamo inmates, an ‘invisible hand’ suddenly cut off the audio-visual feed to the media, even mystifying the military judge.

It would appear that PressTV was laughing uncontrollably over this, as they attributed quotes from Finn’s Washington Post article to the New York Times, which, at the time of this writing, has not reported on the event.

At any rate, I will provide an update if an explanation from Pohl is forthcoming. That is, if I’m not too busy laughing at the irony of Iran being able to ridicule the US about censorship less than 24 hours after arresting a number of journalists for “consorting with hostile foreign news media”.

Update: The short answer to the question in the headline appears to be “no”. From tweets by Carol Rosenberg “Pohl on who controls button: “We’re getting to a line here of what’s public and what’s security. … I’m not sure what witnesses to call.”” and “Judge Pohl made clear that whoever hit the censorship button yesterday should not have, but did not clarify or describe who did it.” and also “#KSM attorney Nevin is asking for “courtesy” of understanding who’s listening in on hearings. Private talks between lawyer and client too.”

Update 2: More tweets from Carol Rosenberg lift the veil just a bit: “Now the Justice Dept secrecy expert, Joanna Baltes, has given judge and defense lawyers a piece of paper that says OCA reviews the feed.” and “OCA= Original Classification Authority, as in for example the CIA on interrogation techniques and black site program.”

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Why Is State Waiting to Release the Saudi Technical Cooperation Agreement?

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As I noted in this post, one explicit purpose of Saudi Minister of Interior Mohammed bin Nayef’s trip to the US from January 14 to 16 was to renew the Technical Cooperation Agreement first signed on May 16, 2008 by Condi Rice and MbN’s father when he was Interior Minister. MbN and Hillary Clinton signed the renewal on January 16.

Particularly given that the prior TCA is posted on State’s website and this picture was out there (not to mention the joint statement with DHS, addressing a trusted traveler program that may end up being controversial), I was surprised that the renewal was not. I checked with State and–after a day of checking–learned that the renewed agreement “hasn’t been posted yet.”

Yes, I do plan to keep trying, both through persistence or FOIA.

But I am interested in why State wouldn’t post it right away. Perhaps it’s just internal bureaucracy, but here are thoughts about some other possibilities.

State could be hiding changes in the funding structure

First, there is a change we know has taken place since the TCA was first signed.

The TCA is basically a cooperation agreement to get direct help from us–including training and toys–to protect Saudi infrastructure and borders, particularly its oil infrastructure. As part of it, the Saudis are developing a 35,000 person force, including a paramilitary force, with US training. But unlike our other defense agreements with the Saudis (and like the Joint Commission for Economic Cooperation it was explicitly modeled on, which had been in place from the 1970s until 1999), this one includes a special bank account to fund it all.

The Kingdom of Saudi Arabia will establish a dollar disbursement account in the United States Treasury. Any funds required by the United States for agreed-upon projects will be deposited by the Kingdom of Saudi Arabia in the account in such amounts and at such times as are mutually agreed, and the United States may draw on this account in the amount so agreed. If upon termination of this agreement there are funds remaining in the special account after all expenses have been paid, such funds will be refunded to the Kingdom of Saudi Arabia.

That account could fund contractors and toys. But at least at first, it could not fund US government employees.

The United States will pay for all costs of U.S. Government direct-hire employees assigned to the Kingdom of Saudi Arabia to perform services under this Agreement.

Less than a year into the agreement, that changed, with MbN agreeing the Saudis would also pay for US personnel salaries.

MbN was grateful for USG efforts and assured us full funding would soon follow the signing of these documents, and reconfirmed the SAG’s commitment to pay all OPM-MOI costs. He also agreed to fund all USG employee costs, concurring with any necessary TCA changes to allow such payments, commenting that “hopefully the lawyers will not cause us any problems.”

And already by the time MbN made that agreement, the US was installing military and State employees to oversee this effort (see more on these personnel here).

Now, I’m not entirely sure how innovative it is that the Saudis are funding US hires to defend their oil infrastructure. But MbN’s quip about the lawyers suggests some sensitivity on this front. Read more →

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Future Forecast: Shocking?! Not

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[photo: adapted from Shock by Jeremy Brooks via Flickr]

In advance of the new year, I’ve been looking at futurism and forecasting over the last several days. Actually, I’ve been looking at futurism for a decade; at one point in time I seriously considered a degree program in Future Studies. There were only two schools in the U.S. that offered such a program, and a third one offered a handful of courses in the subject.

For this reason you can bet most future predictions are not made by folks with degrees in Future Studies. Not only are there few courses and fewer programs in this field, but there are very few jobs for graduates. Many grads will end up in think tanks, assuming they don’t have a dual degree in finance, economics, or business, with which they end up getting a corporate sector job.

As small and obscure as this field is, one might wonder how much practical experience many of these Future Studies experts have with regard to how things work.

Apart from climate and weather forecasts, this means the public is subjected to forecasts and predictions by few true futurists, and likely “sheltered” ones at that.

It’s no surprise, then, that we end up with posts like this one via the World Future Society’s The Futurist magazine: Eight Shocking Quotes from 2012 that will Redefine Our Future.

Are these truly shocking? Hardly; while quotes by Richard Florida and Chris Anderson are noteworthy and truly predictive, the rest are filler.

(Note also that none of the eight SHOCKING! quotes are by women. Apparently estrogen prevents those of us born with double XX chromosomes from saying anything that might sharply detour you from the future as you’ve believed it will be.)

Let’s look at a couple examples, starting with this quote by former Microsoft CEO and progenitor, Bill Gates:

“When you come to the end of the innovations that business and government are willing to invest in, you still find a vast, unexplored space of innovation where the returns can be fantastic. This space is a fertile area for what I call ‘Catalytic Philanthropy.’”

What a crock. The Futurist contributor, Thomas Frey, believes this to be a stop-in-your-tracks remark. This ranks among the finest examples of naivete and the obtuse, combined with hypocrisy that I’ve ever read.

Apparently Frey is either unaware or has forgotten that Bill Gates’ organization led the effort to squash independent innovation that business and government wouldn’t fund, in the form of open source software. See the 1998 Halloween Documents as evidence. It’s utter hypocrisy that Gates makes such a declaration as if he’s never run into innovation in the wild, unfettered by corporate and government reins.

Is Gates right about the returns? Hell yes — that’s why his corporation worked for nearly a decade to beat down the under-funded, coder community-based competition. Just look at the amount of open source Linux-based Android software and applications in the marketplace today, along with the hardware they support. Beaucoup returns based on an open source software. Oh, and philanthropically funded, albeit with self-interest, by Google in the form of Summer of Code projects combined with infrastructure support for open source software projects and organizations.

Philanthropy and future redefining, my ass. This is profit in the present, and Gates once again lives in the past as he did in 1998.

Another doozy of a quote offered up was by Netscape browser’s creator, Marc Andreessen:

“Software is eating the world.”

Where have both Andreessen and Frey been living — under a rock? The very reason cellphones have outsold personal computers for the last handful of years has been software, combined with increasingly cheap, miniaturized hardware, and the increasing reach of network connected to cheap servers and storage. The amount of applications exploded with the release of the first smartphones, particularly the iPhone; the middleware environment kept pace to service the data created by applications. Tablet hardware now takes the place of even more PCs, using many of the same software applications that smartphones use.

It’s not shocking at all that Andreessen, of all people, would believe that “software is eating world” — software is his life’s blood, his raison d’être. (Hello, Netscape?)  His remark is hardly a redefinition of the future, but a description of the present and near-term past.

The flimsiness of these quotes with regard to their impact on our future should give us all pause when presented with predictions and forecasts. Perhaps you can do a better job of forecasting without credentials in future studies, simply by using solid analytical thinking and a careful examination of the past and present.

(Disclosure: I have consulted in competitive intelligence related to open source software–me and my double XX chromosomes.)

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Alabama’s Song, SEC Dominance, NCAA Bullshit & BCS Fuckery

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Yes, the conifer trees of Stanford beat the Oregon Ducks in a narrowly decided conference game. The deed was done with a lousy game by the far superior Ducks, but credit to the Tree, they won then and have now won the PAC-10.X Championship after downing UCLA 27-24 before a curiously half full stadium in Palo Alto. With the win, Stanford will go to the Rose Bowl and the Ducks, the fifth ranked team in the BCS standings, very well may have to settle for a lower tier bowl. The BCS still sucks, and their crappy four team playoff ginned up for future years won’t materially improve anything.

So, we have a Saturday lineup of more conference championship games in the NCAA and a few decent games in the pros. What are people doing to celebrate the festivities? Hmmm, lets check in on Jim White:

Rare weekend at home without family. Gonna make a big batch of burrito filling tonight and then watch TV sports until I melt into the couch.

Well then!! Lets see what Jim may be watching. Like the Quacker fans, Jim won’t be watching his Gators in the conference championship game. No, the SEC will have Georgia taking on Alabama. Contrary to somewhat popular belief, I think the Dawgs have a chance. Georgia’s defense is not as good as the Tide’s, but they are still very good. And Aaron Murray is a very experienced 4th year QB who can get the ball down the field. Is that enough to beat Bama? Probably not, but worth watching.

The other games are, frankly, not nearly as interesting. Oklahoma/TCU, Florida State/Georgia Tech, Texas/Kansas State and Nebraska/Wisconsin will be on the tube. All relative snoozers. Really, Texas gets to play in a conference championship? What a joke. The Boise State/Nevada game may be interesting, as Boise always is. I miss Johnny Football already! And, yes, just give him the Heisman already.

In the pros, the game of the week is the Cardinals at Jets. Hahaha. Just joking. Normally you would have to say Stillers at Ravens is the game of the week, but with Big Ben still out, probably not so much. Instead, I am looking at the Monday Night game of Giants at Skins. Good or Bad Eli against new stud on the block RGIII. Are the Gents due for a letdown after their smashing of the Cheese? I think they may be. It is almost inexplicable that NBC did not flex eliminate the putrid Cowboys/Eagles game in favor of Tampa/Broncos. By the way, while nobody was watching, the Bucs have gelled nicely and are playing really good football for Greg Schiano. But this game is at Mile High, and Peyton seems to be on a mission, and that should be good for a Donkos win. Vikings at Packers and Squawks at Bears may also be worth paying attention to. Cutler is back for the Bears, so they probably have the edge.

On a tragic note, Chiefs LB Javon Belcher appears to have shot and killed his girlfriend at home and then drove to Arrowhead Stadium where he went up to Romeo Crenel and Scott Pioli, thanked them and then killed himself by gunshot. It was hard to imagine how Kansas City’s season could get worse before this incident, but it sure did. I really don’t know what to say about this, what a human tragedy. As of now, the NFL still plans to play the Chiefs/Carolina game at Arrowhead tomorrow afternoon. I guess the show must go on, but it is hard to see how it does for the Chiefs so soon.

Music is by the Doors and the Alabama Song medley; it is a great video. What y’all got?

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Another Sequel in the Libyan Left Behind Series

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A month ago, I marveled at the remarkable frequency with which interesting documents have a way of appearing in Libya; I dubbed it the “Libyan Left Behind” syndrome.

It has happened again. Yet more journalists–Harald Doornbos and Jenan Moussa, writing for Foreign Policy–has found newsworthy documents at the abandoned (and unsecured) mission in Benghazi. These suggest that elements from Benghazi’s police force may have helped plan the attack. One letter informed the Libyan Foreign Affairs office that a member of the police force had been surveilling the compound the morning of the attack, and that the police had not provided increased security requested for Ambassador Stevens’ visit.

One letter, written on Sept. 11 and addressed to Mohamed Obeidi, the head of the Libyan Ministry of Foreign Affairs’ office in Benghazi, reads:

“Finally, early this morning at 0643, September 11, 2012, one of our diligent guards made a troubling report. Near our main gate, a member of the police force was seen in the upper level of a building across from our compound. It is reported that this person was photographing the inside of the U.S. special mission and furthermore that this person was part of the police unit sent to protect the mission. The police car stationed where this event occurred was number 322.”

[snip]

The document also suggests that the U.S. consulate had asked Libyan authorities on Sept. 9 for extra security measures in preparation for Stevens’ visit, but that the Libyans had failed to provide promised support.

“On Sunday, September 9, 2012, the U.S. mission requested additional police support at our compound for the duration of U.S. ambassador Chris Stevens’ visit. We requested daily, twenty-four hour police protection at the front and rear of the U.S. mission as well as a roving patrol. In addition we requested the services of a police explosive detection dog,” the letter reads.

“We were given assurances from the highest authorities in the Ministry of Foreign Affairs that all due support would be provided for Ambassador Stevens’ visit to Benghazi. However, we are saddened to report that we have only received an occasional police presence at our main gate. Many hours pass when we have no police support at all.”

Another letter–addressed to Benghazi’s police chief, Brigadier Hussain Abu Hmeidah–asked the police directly to look into the surveillance. The government in Tripoli purportedly fired Abu Hmeidah after the attack, but he has refused to leave and no one has forced him to.

Note, FP’s journalists found the documents in the mission’s Tactical Operations Center, which (according to State’s Deputy Assistant Secretary Charlene Lamb, though she’s definitely one of the people whose job is at risk here), was not breached during the attack.

They attempted to break into the Tactical Operations Center again and again but were not able to
breach the facility.

Presumably–particularly given assurances no classified information was compromised–the security officers destroyed anything particularly sensitive in the TOC before leaving the mission (though these were only draft documents).

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The Kiriakou Conundrum: To Plea Or Not To Plea

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There are many symbols emblematic of the battle between the American citizenry and the government of the United States in the war of transparency. One of those involves John Kiriakou. Say what you will about John Kiriakou’s entrance into the public conscience on the issue of torture, he made a splash and did what all too few had, or have since, been willing to do. John Kiriakou is the antithesis of the preening torture monger apologist in sullen “big boy pants”, Jose Rodriquez.

And, so, people like Kiriakou must be punished. Not by the national security bullies of the Bush/Cheney regime who were castigated and repudiated by an electorate who spoke. No, the hunting is, instead, by the projected agent of “change”, Barack Obama. You expect there to be some difference between a man as candidate and a man governing; the shock comes when the man and message is the diametric opposite of that which he sold. And, in the sling of such politics, lies the life and fate of John Kiriakou.

Why is the story of John Kiriakou raised on this fine Saturday? Because as Charlie Savage described, Kiriakou has tread the “Path From Terrorist Hunter to Defendant”. Today it is a path far removed from the constant political trolling of the Benghazi incident, and constant sturm and drang of the electoral polling horserace. It is a critical path of precedent in the history of American jurisprudence, and is playing out with nary a recognition or discussion. A tree is falling in the forrest and the sound is not being heard.

You may have read about the negative ruling on the critical issue of “intent to harm” made in the federal prosecution of Kiriakou in the Eastern District of Virginia (EDVA) last Tuesday. As Josh Gerstein described:

Prosecutors pursuing former CIA officer John Kiriakou for allegedly leaking the identities of two other CIA officers involved in interrogating terror suspects need not prove that Kiriakou intended to harm the United States or help a foreign nation, a federal judge ruled in an opinion made public Wednesday.

The ruling from U.S. District Court Judge Leonie Brinkema is a defeat for Kiriakou’s defense, which asked the judge to insist on the stronger level of proof — which most likely would have been very difficult for the government to muster.

In 2006, another federal judge in the same Northern Virginia courthouse, T.S. Ellis, imposed the higher requirement in a criminal case against two former lobbyists for the American Israel Public Affairs Committee.

However, Brinkema said that situation was not parallel to that of Kiriakou, since he is accused of relaying information he learned as a CIA officer and the AIPAC staffers were not in the government at the time they were alleged to have received and passed on classified information.

“Kiriakou was a government employee trained in the classification system who could appreciate the significance of the information he allegedly disclosed. Accordingly, there can be no question that Kiriakou was on clear notice of the illegality of his alleged communications.

Gerstein has summarized the hard news of the court ruling admirably, but there is a further story behind the sterile facts. By ruling the crucial issue of “intent” need not be proven by the accusing government, the court has literally removed a critical element of the charge and deemed it outside of the due process proof requirement, much less that of proof beyond a reasonable doubt.

What does that mean? In a criminal prosecution, it means everything. It IS the ballgame.

And so it is here in the case of United States v. John Kiriakou. I am going to go a little further than Gerstein really could in his report, because I have the luxury of speculation. As Josh mentioned:

On Tuesday, Brinkema abruptly postponed a major motions hearing in the case set for Wednesday and a hearing set for Thursday on journalists’ motions to quash subpoenas from the defense. She gave no reason for canceling the hearings.

HELLO! That little tidbit is the everything of the story. I flat out guarantee the import of that is the court put the brakes on the entire case as a resultnof an off the record joint request of the parties to facilitate immediate plea negotiation. As in they are doing it as you read this.

There is simply no other reason for the court to suspend already docketed process and procedure in a significant case, much less do so without a formal motion to extend, whether by one party or jointly. That just does not happen. Well, it does not happen unless both parties talked to the court and avowed a plea was underway and they just needed the time to negotiate the details.

So, what does this mean for John Kiriakou? Nothing good, at best. Upon information and belief, Kiriakou was offered a plea to one count of false statements and no jail/prison time by the original specially designated lead prosecutor, Pat Fitzgerald. But the “word on the street” now is that, because the government’s sheriff has changed and, apparently, because Kiriakou made an effort to defend himself, the ante has been ridiculously upped.

What I hear is the current offer is plead to IIPA and two plus years prison. This for a man who has already been broken, and whose family has been crucified (Kiriakou’s wife also worked for the Agency, but has been terminated and had her security clearance revoked). Blood out of turnips is now what the “most transparent administration in history” demands.

It is a malicious and unnecessary demand. The man, his family, and existence are destroyed already. What the government really wants is definable precedent on the IIPA because, well, there is not squat for such historically, and the “most transparent administration in history” wants yet another, larger, bludgeon with which to beat the baby harp seals of whistleblowing. And so they act.

To date, there have been no reported cases interpreting the Intelligence Identities Protection Act (IIPA), but it did result in one conviction in 1985 pursuant to a guilty plea. In that case, Sharon Scranage, a former CIA clerk, pleaded guilty for providing classified information regarding U.S. intelligence operations in Ghana, to a Ghanaian agent, with whom she was romantically involved. She was initially sentenced to five years in prison, but a federal judge subsequently reduced her sentence to two years. That. Is. It.

So, little wonder, “the most transparent administration in history” wants to establish a better beachhead in its fight against transparency and truth. John Kiriakou is the whipping post. And he is caught in the whipsaw….prosecuted by a maliciously relentless government, with unlimited federal resources, and reliant on private defense counsel he likely long ago could no longer afford.

It is a heinous position Kiriakou, and his attorneys Plato Cacheris et. al, are in. There are moral, and there are exigent financial, realities. On the government’s end, as embodied by the once, and now seemingly distant, Constitutional Scholar President, and his supposedly duly mindful and aware Attorney General, Eric Holder, the same moralities and fairness are also at issue. Those of us in the outside citizenry of the equation can only hope principles overcome dollars and political hubris.

Eric Holder, attorney general under President Barack Obama, has prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined, including law-and-order Republicans John Mitchell, Edwin Meese and John Ashcroft.
….
“There’s a problem with prosecutions that don’t distinguish between bad people — people who spy for other governments, people who sell secrets for money — and people who are accused of having conversations and discussions,” said Abbe Lowell, attorney for Stephen J. Kim, an intelligence analyst charged under the Act.

The once and previous criticisms of John Kiriakou, and others trying to expose a nation off its founding tracks, may be valid in an intellectual discussion on the fulcrum of classified information protection; but beyond malignant in a sanctioned governmental prosecution such as has been propounded against a civilian servant like John Kiriakou who sought, with specificity, to address wrongs within his direct knowledge. This is precisely where, thanks to the oppressive secrecy ethos of the Obama Administration, we are today.

Far, perhaps, from the “hope and change” the country prayed and voted for in repudiating (via Barack Obama) the festering abscess of the Bush/Cheney regime, we exist here in the reality of an exacerbated continuation of that which was sought to be excised in 2008. Kiriakou, the human, lies in the whipsaw balance. Does John Kiriakou plead out? Or does he hold out?

One thing is certain, John Kiriakou is a man, with a family in the lurch. His values are not necessarily those of those of us on the outside imprinting ourselves on him.

If the government would stop the harp seal beating of Mr. Kiriakou, and at least let the man stay with his family instead of needlessly consuming expensive prison space, that would be one thing. But the senseless hammer being posited by the out for blood successor to Patrick Fitzgerald – Neil MacBride, and his deputy William N. Hammerstrom, Jr. – is scurrilous.

Rest assured, far from the hue and cry on the nets and Twitters, this IS playing out on a very personal and human scale for John Kiriakou while we eat, drink and watch baseball and football this weekend.

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