Posts

The Misplaced US Determination To Indict Assange

/101 Comments/in , , , , , /by

I have stayed out of the WikiLeaks scrum to date, mainly because the relatively few cables published to date (only 1,269 of the more than 250,000 cables they possess have been released so far) did not provide that much new on the subjects I normally write on as opposed to just confirming or further supporting previous knowledge and/or suppositions. This is certainly not to say they have not been interesting reading or useful to many others, the WikiLeaks material has been all that.

But now comes the bellicose fixation of the United States government on criminally prosecuting WikiLeak’s editor-in-chief Julian Assange. What started out as the usual idiotic yammering of Rep. Peter King and Sen. Joe Lieberman has turned into an apparently dedicated and determined effort by the Department of Justice to charge Assange. As the following discussion will demonstrate, it will require dicey and novel extrapolation of legal theories and statutes to even charge Assange, much less actually convict him.

The interesting thing is this type of prosecution flies directly in the face of the written charging guidelines of the DOJ which prescribe a prosecution should be brought only where the admissible facts and evidence are “sufficient to obtain and sustain a conviction”. As we have seen in so many instances over the last few years, the DOJ uses this requirement to decline prosecution on a whole host of matters they simply do not want to touch, even where the evidence for conviction of serious crimes is crystal clear and unequivocal. Take for instance the case on the blatant destruction of the abu-Zubaydah and al-Nashiri torture tapes for instance (see here and here), where the DOJ and John Durham used just this basis to decline prosecution because the DOJ just does not, you know, go out on limbs.

So, why would the Obama Administration be so aggressive against Assange when doing so flies in the face of their written guidelines and standard glib protocol? Is it really all about prosecuting Assange? That would be hard to believe; more likely it is not just to monkeywrench Assange and WikiLeaks, but to send a hard and clear prior restraint message to the American press. This is almost surely confirmed by the rhetoric of Joe Lieberman, who is rarely more than a short ride away from his disciple and friend Barack Obama on such matters, and who is making noises about also prosecuting the New York Times.

Never before has the Espionage Act, nor other provisions of the criminal code, been applied to First Amendment protected American press in the manner being blithely tossed around by US officials in the WikiLeak wake. Avoidance of First Amendment press and publication has been not just the general position of the DOJ historically, it has been borne out by significant caselaw over the years. If you need a primer on the hands off attitude that has been the hallmark of treatment of press entities, you need look no further than New York Times v. United States, aka the “Pentagon Papers Case”. In NYT v. US, the government could not even use the Espionage Act in a civil context against the press, much less a criminal one as they propose for Assange, without being forcefully shot down. Daniel Ellsberg is right when he says that “Every attack now made on WikiLeaks and Julian Assange was made against me”.

The Barack Obama Administration, who rode into office on a platform and promise of less secrecy, more transparency and a respect for Constitutional principles, has proved itself time and again to be anything but what it advertised. And to the uninformed populous as a whole, ill served by the American press that is being pinched in this process, Julian Assange presents an attractive vehicle for this prior restraint demagoguery by the US government. The public, especially without strong pushback and fight from the press, will surely bite off on this craven scheme. Read more →

Durham Torture Tape Case Dies, US Duplicity in Geneva & The Press Snoozes

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

From the best available information as to the original destruction date of the infamous “Torture Tapes” having been on November 8, 2005, the statute of limitations for charging any general crime by employees and/or agents of the US Government for said destruction will expire at midnight Monday November 8, 2010 as the general statute of limitation is five years. By operation of law, the statute would have run yesterday were it not a Sunday. So, by the time you are reading this, it is over. Absent something extraordinary, and I mean really extraordinary, a criminal statute of limitation is effectively a bar to subject matter jurisdiction and that is that. Ding dong, the John Durham torture tape investigation is thus dead.

Last week, I wrote a letter to the DOJ and saw to it that it was delivered to the main contacts, Dean Boyd and Tracy Schmaler, as well as John Durham’s office. None of them responded. Finally, late Monday afternoon I called Durham’s office, and they acknowledged having received the letter. Although extremely cordial, there was simply no meaningful information or discussion to be had on the subject. “We have no comment” was about the size of it. I asked about the remote possibility of the existence of a sealed indictment; there was “no comment” on that either, and there is absolutely no reason in the world to think anything exists in this regard.

Oh, there was one thing; when I asked why there had been no formal response to my letter, I was told perhaps it was a “little edgy”. Apparently actually phrasing an inquiry with legal specificity and facts makes it too “edgy” for the United States Department Of Justice. Who knew? Ironically, at the same time this discussion was transpiring today, the very same Obama DOJ was in US Federal Court, in front of Judge John Bates of the DC District, arguing for their unfettered right to extrajudicially execute an American citizen, and do so in secret without explanation. But my letter asking about the dying Durham investigation was edgy. The DOJ’s priorities, morals and duties seem to be a bit off kilter when it comes Read more →

Letter to DOJ and John Durham Re: Torture Tape Crimes Expiring

/in , , , , , , /by

As you may know, in early November of 2005, agents of the United States government destroyed at least ninety two videotapes containing direct evidence of the interrogation and, upon admission and belief, torture of Abu Zubaydah and Abd al-Rahim al-Nashiri (see: here, here, here, here and here). The statute of limitations, for the criminal destruction of said taped evidence in the cases of Abu Zubaydah and al-Nashiri will expire on Sunday November 7 (since the last day falls on a weekend, the statute should maintain through the next business day, which is Monday November 8). As we have heard absolutely nothing from Eric Holder, John Durham, the DOJ or the Obama Administration in relation to indictments or other results of the investigation Mr. Durham has been conducting since January 8, 2008, nearly three years, I thought a letter was in order asking just exactly what their status was. Said letter was addressed to Dean Boyd and Tracy Schmaler, official representatives and spokesmen for the Department of Justice, and reads as follows:

Dean and Tracy,

As I believe you are already aware, the statute of limitation on criminal charges including, notably, obstruction of justice for the destruction of evidence, are about to expire. The destruction appears to have occurred on or about November 8, 2005 and there is a five year statute on most all of the general crimes that could possibly be under investigation by John Durham. No competent prosecutor would have waited this long to file charges if he intended to do so, but there are still a couple of days left; what is the status?

Secondly, I would like to point out that should you be thinking about relying on some rhetoric that Mr. Durham simply cannot find any crimes to prosecute and/or that there were no proceedings obstructed, it is intellectually and legally impossible to not consider the tapes to be evidence, and as they almost certainly exhibit torture to some degree and to some part they would almost certainly be exculpatory evidence, in the cases of Abu Zubaydah and al-Nashiri themselves. The United States government continues to detain these individuals and they have charges that will putatively be brought against them in some forum (civil or tribunal), Habeas rights and/or indefinite detention review processes that will occur in the future.

In short, there exist not just the potential, but the necessity, of future proceedings, and agents of, or on behalf of, the United States government have destroyed material, and almost certainly exculpatory, evidence. Crimes have been committed. At a bare root minimum, it is crystal clear Jose Rodriquez has clear criminal liability; there are, without question, others culpable too. What is the status?

If the DOJ does not intend to proceed in any fashion on these clear crimes, please provide me with some intellectually consistent explanation for why the US government is covering up, and refusing to prosecute, the criminal acts of its own employees and agents.

Thank you.

bmaz

emptywheel.com

If there is any worthwhile or meaningful response, I will advise.

Leura Canary Strikes Again: Alabama Bingo Arrests

/in , , , /by

The DOJ has just announced significant arrests in the long simmering Alabama Bingo case. This is huge news that will shake Alabama politics to the bone like nothing has since the Governor Don Siegelman persecution. From the official DOJ Press Release:

Eleven individuals, including four current Alabama state legislators, three lobbyists, two business owners and one of their employees, and an employee of the Alabama legislature have been charged for their roles in a conspiracy to offer to and to bribe legislators for their votes and influence on proposed legislation, announced Assistant Attorney General Lanny A. Breuer of the Criminal Division and Assistant Director Kevin Perkins of the FBI’s Criminal Investigative Division.

The defendants are charged in an indictment returned by a grand jury on Oct. 1, 2010, in Montgomery, Ala., which was unsealed today. Various defendants are charged with a variety of criminal offenses, including conspiracy, federal program bribery, extortion, money laundering, honest services mail and wire fraud, obstruction of justice and making a false statement. They will make initial appearances today in U.S. District Court for the Middle District of Alabama before U.S. Magistrate Judge Terry F. Moorer.

“Today, charges were unsealed against 11 legislators, businessmen, lobbyists and associates who, together, are alleged to have formed a corrupt network whose aim was to buy and sell votes in the Alabama legislature in order to directly benefit the business interests of two defendants, Milton McGregor and Ronald Gilley,” said Assistant Attorney General Lanny A. Breuer of the Criminal Division. “The people of Alabama, like all our citizens, deserve to have representatives who act in the public’s interest, not for their own personal financial gain. Vote-buying, like the kind alleged in this indictment, corrodes the public’s faith in our democratic institutions and cannot go unpunished.”

So, this is pretty interesting timing for this big prosecutorial move, no? It sure is. From today’s report from the excellent Roger Shuler at Legal Schnauzer, who practices in the area and has covered this case from the outset:

The U.S. Justice Department is spinning today’s actions as a legitimate probe focused on corruption connected to gambling legislation. But our sources have been saying for weeks that it is designed to affect the November elections. Polls show Republican Robert Bentley already leading Democrat Ron Sparks in the race for governor, and the arrests could help the GOP take over one or both houses of the Alabama Legislature, a long-stated goal of outgoing governor Bob Riley.

….

Means and Ross are Democrats, Pruett is a Republican, and Smith is an Independent. That appears to be a relatively bipartisan target list. But there is little doubt that Canary and her prosecutors went after Democrats and others who oppose Gov. Riley and his efforts to shut down gaming in Alabama.

….

So far, there is no word of an indictment on Sparks. But what does all of this say about the Obama administration? It already had a dreadful record on justice issues. And yet it backs a process where neither Gov. Riley nor any of his conservative backers who opposed gambling were apparently even investigated. We’ve seen no sign of a probe into the $13 million in Mississippi gaming money that reportedly was spent to help get Riley elected in 2002. Canary seems to have focused only on pro-gambling individuals, who tend to be Democrats or Riley critics.

….

What is this “investigation” all about? It looks like a thinly veiled effort to pay back Riley’s Mississippi gaming supporters–who reportedly laundered money through Jack Abramoff, Michael Scanlon, and Ralph Reed–by shutting down competition in Alabama.

Yes, very interesting timing indeed. It was not enough that DOJ, Canary and Morris used the specter of investigation to influence an earlier legislative vote on the bingo issue (see here and here), there is now Read more →

Unconstitutional Surveillance & United States v. U.S. District Court: Who The Winner Is May Be A Secret – Part 1

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

[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. What follows today is Part I. – Mary]

It was a time of war. America had been attacked in the Gulf of Tonkin. The National Security Agency (NSA) and our military had reassured us this was true. Our national security apparatus, Congress and press had joined behind the office of the President to lead us into a series of forays (Vietnam, Laos, Cambodia) that would leave tens of thousands of American soldiers dead and many times that wounded physically or mentally, while at the same time decimating over three million Vietnamese and over a 1.5 million Laotians and Cambodians.

At home, we were working our way through the civil rights movement, dealing with the cold war and threats of Russian nuclear weapons and witnessing anti-war protests that left students dead and buildings bombed. Algeria was hosting U.S. fugitives from justice, Eldridge Cleaver and Timothy Leary, while Cuban connections were alleged to be behind much of the organized anti-war movement.

Court martial proceedings had begun for the My Lai killings with polls showing most of America objected to the trial. President Nixon would later pardon Lt. Calley for his role. A trial had also, briefly, seemed to be in the works for the “Green Beret Affair,” the killing of Thai Khac Chuyen by Green Berets running an intelligence program called Project GAMMA. The investigation began after one of the soldiers assigned to the Project became convinced that he was also being scheduled for termination. Charges in the Green Beret Affair would be dropped after the CIA refused to make personnel available, claiming national security privileges.

Against this backdrop, Nixon and his campaign manager – attorney general, John Mitchell (the only Read more →

Where’s Cheney and His Freon Pump?

/in , , /by

Well this is good news, the United States Department of Justice is interested in finding and prosecuting human rights violators here in the “Homeland”. From the special announcement from DOJ:

The Human Rights and Special Prosecutions Section actively seeks out information that may assist the U.S. Government in identifying human rights violators who may have entered the United States.

If you know of anyone in the United States or of any U.S. citizen anywhere in the world who may have been involved in perpetrating human rights violations abroad, please contact HRSP either by email at [email protected] or by postal mail at:

Human Rights and Special Prosecutions Section (Tips)

Criminal Division

United States Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530-0001

You do not have to identify yourself when providing information. Please provide as much detail as possible, such as:

* the suspect’s name, place and date of birth,

* physical description, and current location;

* the suspect’s alleged human rights violations including the locations and dates of those activities;

* how you learned of the suspect’s alleged activities and when and where you saw the suspect.

We are unable to reply to every submission; however, your information will be reviewed promptly by HRSP.

Information on non-U.S. citizen suspects living in the United States may be provided to Immigration and Customs Enforcement in the Department of Homeland Security, at 1-866-347-2423 (a toll-free call).

Anybody here have any suggestions for the DOJ?? Glenn Greenwald has more.

Are DOJ and DOI Making A Competent Legal Effort On Gulf Moratorium?

/in , , , , , , /by

Exactly one week ago, in a post entitled Judicial Ethics in the Gulf: Judge Feldman’s Conflicts and DOJ Malpractice, I related the patently obvious, and disqualifying, statutory ethical conflicts on the part of the Federal judge in the Eastern District of Louisiana, Martin Feldman, who made the curious and shocking decision to stay enforcement of the Obama Administration’s six month deepwater moratorium. As I pointed out, it legally was somewhat astounding the government did not raise Feldman’s conflict at any opportunity:

With this knowledge in the public sphere at least substantially by the night after Feldman’s decision, the government nevertheless did not even mention it as a ground in their attempt to stay Feldman’s ruling at the district court level when they filed their motion to stay at the district court level late the following day. That motion was in front of Feldman himself, so maybe you could rationalize the government not raising it at that point (although I would have posed the motion to stay to the chief judge for the district and included the conflict as grounds for relief were it me).

Having predictably received no relief in their lame request for stay from Feldman, the judge who had just hammered them (not surprising), the government put their tails between their legs and made preparations to seek a stay from the 5th Circuit. Surely the government would forcefully argue the glaringly obvious egregious appearance of both conflict and lack of impartiality once they were free of Feldman and in the Fifth Circuit, right? No, no they didn’t.

When the government filed their motion for stay in the 5th Circuit mid to late day Friday June 25, a full three days after getting hammered by oiled up Judge Feldman, and after Feldman’s most recent 2009 financial disclosure had even started being released to the general public (as evidenced by the literally damning piece on it Rachel Maddow did Friday night), the government STILL did not avail themselves of the glaringly obvious argument of conflict by Feldman. Nary a peep from the fine lawyers at the DOJ on one of the most stunningly obvious arguments of judicial bias in recent memory.

Another week later, and there STILL is no peep from the government on an issue that would be critical to reinstating their moratorium if they really wanted to. But while the government lawyers refuse to zealously litigate the position they claim to support, intervenors represented a by law school clinic professor and two lawyers for environmental groups have done the work the government should have done. On Friday June 2, Defendant-Intervenors filed a Motion to Disqualify Feldman in the district trial court and properly noticed the record at the 5th Circuit.

From the D-I Motion to Disqualify:

Pursuant to 28 U.S.C. § 455, Defendant-Intervenors Defenders of Wildlife, Sierra Club, Florida Wildlife Federation, Center for Biological Diversity, and Natural Resources Defense Council (collectively “Defenders”) respectfully move this Court to disqualify itself from Read more →

Obama Administration Follows Bush/Cheney On Politicization Of DOJ

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

Remember the plaintive cries of Democrats and progressives about the wrongful politicization of the Department of Justice by the Bush/Cheney Administration? Remember the stunning chart Sheldon Whitehouse whipped out at a Senate judiciary hearing on Alberto Gonzales’ tenure as AG showing how politicized the hallowed independent prosecutorial discretion of the DOJ had become under Bush, Cheney and Gonzales? The one that Pat Leahy called “the most astounding thing I have seen in 32 years”?

That was in late April of 2007, little more than three years ago. Despite the most fervent hope of a Democratic and progressive base that they were voting to change the wholesale invasion of the prosecutorial discretion by the White House political shop (along with so, so many other things), it appears little has changed. In fact, the invasion of province appears to be being writ larger and more profound. From Jerry Markon in the Washington Post:

Now, the decision on where to hold the high-profile trials of Mohammed and four others accused of being Sept. 11 conspirators has been put on hold and probably will not be made until after November’s midterm elections, according to law enforcement, administration and congressional sources. In an unusual twist, the matter has been taken out of the hands of the Justice Department officials who usually make prosecutorial decisions and rests entirely with the White House, the sources said.

“It’s a White House call,” said one law enforcement official, who spoke on condition of anonymity to discuss internal deliberations. “We’re all in the dark.”

The delays are tied to the administration’s broader difficulties in closing the U.S. military prison at Guantanamo Bay, Cuba — where Mohammed and the other detainees are held — and are unlikely to affect the outcome of a trial that officials vow will be held at some point. But people on all sides of the debate over whether Mohammed should be tried in federal court or before a military commission expressed frustration that nearly nine years after Sept. 11, justice for the attacks seems so elusive.

“It’s important that these trials actually take place, and soon,” said Jameel Jaffer, director of the national security project at the American Civil Liberties Union, which has long pushed for the trials to be held in federal court. “It’s not just that people held for long periods of time in government custody deserve to contest the evidence against them. It’s also that these trials are important to the country.”

For all the hope and change, nothing has changed. Toying with the root charging and prosecutorial functions and discretion of the Department of Justice as a way to respond to the prevailing political winds is a craven path for the Obama Administration to take. And hanging Attorney General Eric Holder and his Department out to dry in those winds is despicable political and executive cowardice.

So, on this fine Fourth of July, as we celebrate America’s independence and reflect on our founding principles, it would be wise to remember, and refresh the recollection of the Obama Administration, Read more →

Judicial Ethics in the Gulf: Judge Feldman’s Conflicts and DOJ Malpractice

/90 Comments/in , , , , , /by

Last week Federal district court judge Matin Feldman of the Eastern District of Louisiana (EDLA), in what has become a controversial decision, overturned the six month moratorium on deepwater oil drilling imposed by the Department of the Interior. It was a legally curious decision to start with as it, on its face, appeared to be contrary to the well established standard of review.

Almost immediately from the time Judge Feldman’s decision hit the public conscience, information on Feldman’s undisclosed (at least on the case record at issue) financial ties to the oil and gas exploration industry started coming out of the woodwork. From Saturday’s Washington Post:

The federal judge who presided over a challenge to the Obama administration’s six-month moratorium on deepwater oil drilling simultaneously owned stock in an oil company affected by the ban, according to a financial disclosure statement released Friday.

U.S. District Judge Martin L.C. Feldman sold the stock in Exxon Mobil 14 days after the case was filed in New Orleans by a group of oil service firms — and less than five hours before he struck down the moratorium.

Feldman said in a statement elaborating on the disclosure that he was unaware of his holdings in Exxon Mobil and a smaller oil company until 9:45 p.m. Monday, the day before he issued his ruling.

“Because he remembered that Exxon, who was not a party litigant in the moratorium case, nevertheless had one of the 33 rigs in the Gulf, the judge instructed his broker to sell Exxon and XTO [Energy Inc.] as soon as the market opened the next morning,” according to a statement released by his chambers and reported by Bloomberg News.

Even before this latest disclosure, Feldman was criticized by environmental groups and others for not recusing himself from the case. The groups pointed to his 2008 disclosure form, which showed that he had invested in companies involved in offshore oil and gas exploration.

So Judge Feldman not only held numerous oil and gas interest stocks, but was trading them up to and including the morning of his fateful decision, and doing so out of an admitted realization that he had an appearance of ethical conflict. Feldman owned and was trading Exxon stock, a company whose Gulf of Mexico rigs were losing money at the rate of a half million dollars a day due to the moratorium, during the entire time he was assigned the case. Yet, failing to disclose his appearance of conflict on the record or recuse, Feldman nevertheless proceeded to issue a questionable decision clearly benefitting the oil and exploration industry he is so invested in.

Lest there be any confusion that perhaps Judge Feldman somehow put himself in the clear by suddenly selling off his holdings in Exxon on the morning of June 22 just hours before issuing his surprising opinion Read more →

BP’s LMRP: Claws, Craws, Saws and Jaws

/327 Comments/in , , , , , /by

As you undoubtedly know by now, BP has failed miserably at every “fix” they have attempted so far. There is growing evidence of what a total sham exists in the craven use by BP of any number of subsidiaries to insulate itself from criminal and civil liability.

But right now the focus is on the ongoing LMRP attempt that BP now is warning could drag on from four days to a week. Many of you have been keeping up the monitoring of this back on the previous Top Hat and Tails: BP Has Yet Another “Solution” thread from Sunday. Please continue that discussion and reporting here.

One other thing I would like to point out; despite making a big dog and pony show of its commitment to speak with a single voice, Thad Allen, and quit making a media show of parading a series of Cabinet Officers down to the Gulf in a vain attempt to look like they are on top of things, the Obama Administration is …. wait for it …. making a media show of sending Attorney General Eric Holder down to the Gulf to make it look like they are on top of things. From Reuters:

Attorney General Eric Holder will survey the damage from the Gulf Coast oil spill on Tuesday and meet with federal prosecutors and state attorneys general, the Justice Department said on Monday.
…..
After a tour and briefing by the U.S. Coast Guard, Holder will meet with the state attorneys general from Louisiana, Alabama and Mississippi as well as U.S. attorneys from those states. Holder is also scheduled to speak to reporters in New Orleans.

The Justice Department has already demanded that the companies involved in the spill, including BP Plc, Transocean Ltd and Halliburton Co to preserve paperwork related to the accident that could become part of an investigation.

Experts have said the Justice Department was likely eyeing potential violations of the Clean Water Act, the Endangered Species Act, the Migratory Bird Treaty Act and the Refuse Act.

Notice what is missing from that last paragraph? There is no mention of prosecution under the negligent and/or reckless provisions of the Federal manslaughter law for the eleven deaths occurring on Deepwater Horizon as a result of BP’s willful and wanton conduct. The article mentions the deaths, but the Obama Administration and Holder DOJ never does. When it comes to talk of potential accountability, it is like the eleven deaths never happened to the Obama Administration. But hey, there are business interests and military fuel contracts they must protect and, clearly, that takes precedence for this Administration.

[Graphic – BP: Broken Promises. Logo design by Foye 2010 submitted as part of the Art For Change BP Logo Redesign Contest and used with permission]