If Joe Biden will not be prosecuted for mishandling classified material, why does Donald Trump face 40 felony charges based on conduct that looks broadly similar? It is a question that Trump's supporters were bound to ask after Special Counsel Robert Hur, formerly a Trump-appointed U.S. attorney, released his findings about Biden last Thursday. But Hur's report includes important details that plausibly explain the contrasting outcomes in these two cases. Although Biden's embarrassingly hypocritical lapses belie his avowed concern about safeguarding material that could compromise national security, the evidence of criminal intent is much stronger in Trump's case.
When Trump left the White House in January 2021, he took thousands of presidential records, including more than 300 marked as classified. The superseding indictment released by Special Counsel Jack Smith last July lists 32 of the latter, each of which is the basis for a charge under 18 USC 793(e). That provision applies to someone who "willfully retains" national defense information when he "has reason to believe" it "could be used to the injury of the United States or to the advantage of any foreign nation."
Hur's report focuses on two types of records that Biden retained after serving as vice president: 1) "documents about military and foreign policy in Afghanistan" that were marked as classified and 2) "notebooks containing Mr. Biden's handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods." FBI agents found both types of material in "the garage, offices, and basement den" of Biden's home in Wilmington, Delaware.
"Contemporaneous evidence suggests that when Mr. Biden left office in 2017, he believed he was allowed to keep the notebooks in his home," Hur writes. Biden took the same position in an interview with Hur's office, saying "his notebooks are 'my property' and that 'every president before me has done the exact same thing,' that is, kept handwritten classified materials after leaving office." In particular, he cited "the diaries that President Reagan kept in his private home after leaving office, noting that they included classified information."
Hur does not agree with Biden's understanding of the law. "If this is what Mr. Biden thought, we believe he was mistaken about what the law permits," he says. But he adds that Biden's position "finds some support in historical practice." The "clearest example," he says, is "President Reagan, who left the White House in 1989 with eight years' worth of handwritten diaries, which he appears to have kept at his California home even though they contained Top Secret information."
Yet as far as Hur could tell, neither the Justice Department nor any other federal agency took steps to "investigate Mr. Reagan for mishandling classified information or to retrieve or secure his diaries." Hur concludes that "most jurors would likely find evidence of this precedent and Mr. Biden's claimed reliance on it, which we expect would be admitted at trial, to be compelling evidence that Mr. Biden did not act willfully."
What about the Afghanistan documents that were marked as classified? The strongest evidence of Biden's intent regarding them is a remark he made during a recorded conversation with his ghostwriter in February 2017, the month after he left office. Discussing a 2009 memo he had written in opposition to a troop surge in Afghanistan, Biden noted that he had "just found all the classified stuff downstairs." At the time, Biden was renting a home in Virginia, which he kept until 2019. Assuming he was talking about the Afghanistan documents that the FBI later found in Wilmington, which is likely but not certain, that comment shows Biden knew the material was classified. But Hur notes defenses Biden could raise against a charge based on that admission.
"Mr. Biden could have found the classified Afghanistan documents at his Virginia home in 2017 and then forgotten about them soon after," Hur writes. "When Mr. Biden told his ghostwriter about finding 'all the classified stuff downstairs,' his tone was matter-of-fact. For a person who had viewed classified documents nearly every day for eight years as vice president, including regularly in his home, finding classified documents at home less than a month after leaving office could have been an unremarkable and forgettable event. Notably, the classified Afghanistan documents did not come up again in Mr. Biden's dozens of hours of recorded conversations with the ghostwriter, or in his book. And the place where the Afghanistan documents were eventually found in Mr. Biden's Delaware garage—in a badly damaged box surrounded by household detritus—suggests the documents might have been forgotten."
That explanation, Hur says, is reinforced by the fact that Biden's memory "was significantly limited, both during his recorded interviews with the ghostwriter in 2017" and "in his interview with our office in 2023." Hur alludes to Biden's difficulty in remembering things several times, saying a jury might view him as "a sympathetic, well-meaning, elderly man with a poor memory." Although that characterization is politically damaging, it would be extenuating in the context of a charge under 18 USC 793(e).
Hur notes that Biden's "cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake, rather than acting willfully—that is, with intent to break the law—as the statute requires." The documents "could have been stored, by mistake and without his knowledge, at his Delaware home since the time he was vice president, as were other classified documents recovered during our investigation."
One of Biden's notebooks, marked as "Af/Pak 1," contained his handwritten 2009 memo on the troop surge. Biden "initially said he was not aware that he had kept the Thanksgiving memo after his vice presidency" but later conceded that "I guess I wanted to hang onto it for posterity's sake." Two other notebooks contained documents marked as classified, but Hur concludes that "the evidence does not suggest either that Mr. Biden retained the classified documents inside them willfully, or that the documents contain national defense information."
Hur also discusses "nine documents with classification markings" that were found in Biden's office at the Penn Biden Center for Diplomacy and Global Engagement, a think tank in Washington, D.C. At the same location, the FBI also found "a set of handwritten notes" that were "potentially classified."
Hur says "there is insufficient evidence to prove beyond a reasonable doubt that Mr. Biden intentionally retained the classified documents" about the Iran nuclear deal that were found in an "eyes only" envelope. Rather, "the evidence supports an innocent explanation for the unauthorized retention of those documents." Biden and his staff "appear to have eventually forgotten about" that envelope, which was "unwittingly moved…out of the West Wing at the end of the administration." Hur likewise found "insufficient evidence to support charging Mr. Biden for the retention of the other marked classified documents recovered from the Penn Biden Center."
Finally, Hur discusses "just over a dozen" classified documents that were found at the University of Delaware among Biden's papers from his time as a senator. "Almost all of these documents predate the Senate's establishment of rules for the tracking and handling of classified information," Hur writes. "The evidence does not suggest that Mr. Biden willfully retained these documents. Rather, they appear to have been included in his large collection of Senate papers by mistake."
In addition to Biden's notebooks, Hur lists fewer than 100 "recovered documents" that either were marked as classified or included classified information. That represents about a third of the classified documents that the FBI says Trump took with him when he left the White House. While Biden's documents span decades, Trump's trove came from his single term as president. But when it comes to criminal liability, the raw numbers are less important than how the retention of sensitive material came to light and how Biden and Trump responded to that discovery.
"With one exception, there is no record of the Department of Justice prosecuting a former president or vice president for mishandling classified documents from his own administration," Hur notes. "The exception is former President Trump." And while "it is not our role to assess the criminal charges pending against Mr. Trump," he says, there are "several material distinctions between Mr. Trump's case and Mr. Biden's."
Notably, those "material distinctions" have nothing to do with Trump's authority as president to declassify documents—a point frequently raised by his defenders. Unlike Trump, they say, Biden had no such authority as vice president. But whatever you make of Trump's claim that the documents he took were "automatically declassified," whether through a "standing order" or simply "by thinking about it," it is a red herring in the context of charges under 18 USC 793(e), which does not refer to classification at all. The relevant questions under that provision are whether the information in those documents was potentially damaging to national security, whether Trump should have recognized that, and whether he nevertheless "willfully" retained them.
In any case, the charges against Trump go beyond that statute. Unlike "the evidence involving Mr. Biden," Hur writes, "the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts. Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it."
That alleged conduct underlies eight additional felony charges against Trump. "In contrast," Hur writes, "Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation." Trump's alleged defiance and deceit, in short, distinguish his conduct from Biden's: They suggest that Trump retained national defense information "willfully," as required for a conviction under 18 USC 793(e), and that he committed additional crimes to cover up the underlying offense.
Notwithstanding these significant differences, there is no disputing that Biden's carelessness blatantly contradicts his criticism of Trump's "totally irresponsible" behavior. "Asked about reports that former President Trump had kept classified documents at his own home," Hur notes, "Mr. Biden wondered how 'anyone could be that irresponsible' and voiced concern about '[w]hat data was in there that may compromise sources and methods.'"
Biden made those comments in a 60 Minutes interview about a month after the FBI searched Mar-a-Lago, where it found more than 100 classified documents that Trump had kept after assuring the Justice Department that he had returned everything in that category. Two months later, six days before the midterm elections, Biden's lawyers found "a small number of documents with classified markings" at his think tank office. The White House did not acknowledge that discovery until the following January, and thus began a series of revelations that expanded the number of searched locations and the number of retrieved documents.
"We found a handful of documents were filed in the wrong place," Biden said in January 2023, taking refuge in the passive voice. "I think you're going to find there's nothing there." The next day, the FBI found additional classified documents at his house.
Hur plausibly concluded that criminal charges against Biden were not appropriate because there was insufficient evidence that he "willfully" retained documents he was not supposed to have. But that does not let Biden off the hook for repeatedly violating the standard of care that he himself insists is essential to protecting national security.
The post Trump's Alleged Defiance and Deceit Distinguish His Handling of Secrets From Biden's appeared first on Reason.com.
]]>Want to know Department of Housing and Urban Development (HUD) Secretary Marcia Fudge's government email address? Too bad, it's a secret.
In response to a Freedom of Information Act (FOIA) request from Reason, HUD released a list of email addresses for all political appointees—with two exceptions. The agency redacted HUD Secretary Marcia Fudge and Deputy Secretary Adrianne Todman's addresses, citing an exemption from releasing any records that would "constitute a clearly unwarranted invasion of personal privacy."
"The interest of the general public in reviewing those portions of government documents does not outweigh the individuals' right to privacy," Sandra Wright, the chief of HUD's FOIA office, wrote.
The withholdings are an unusual and concerning attempt to conceal one of the most basic pieces of information about a public servant: their contact info.
Glancing at the consistent format of every other address on the HUD list, one could make a reasonable assumption about Fudge's address, but one would likely be wrong. You see, cabinet members and high-ranking officials often use pseudonymous or alias email accounts.
For example, while he was vice president, Joe Biden used at least three pseudonyms—"Robin Ware," "Robert L. Peters," and "JRB Ware"—on emails that mixed family and government business.
The practice has been fairly widespread since the Clinton administration. Obama-era Environmental Protection Agency Administrator (EPA) Lisa Jackson used the alias "Richard Windsor" and her private email address in communications with lobbyists. Former Attorneys General Eric Holder and Loretta Lynch also used alias email addresses. Trump-Era EPA administrator Scott Pruitt had four government email addresses.
Administrations have defended using alternate email addresses as necessary for high-level political appointees because of the flood of emails to their public inboxes. However, the practice worries transparency advocates and watchdog groups because it creates doubts over whether FOIA offices are performing complete searches, and whether communications are being properly archived.
Reason was curious about what pseudonyms high-ranking Biden officials are using, so we filed FOIA requests in September of last year to cabinet-level agencies requesting the email addresses for all political appointees, including pseudonyms. To its credit, HUD is the only agency so far that has produced any documents.
Reason is filing a FOIA appeal to challenge the redactions. While officials may argue they need a secret inbox to get work done, convenience is not a factor in the balancing test between the public's right to know and the privacy interests of government employees. Notably, HUD does not consider the release of dozens of other political appointees' email addresses a privacy concern.
HUD's position is also undermined by the fact that other agencies have turned over similar records in response to FOIA requests. The Health and Human Services Department released former Secretary Kathleen Sebelius' secret email address to the Associated Press in 2013.
HUD's public affairs office did not immediately respond to a request for comment.
The post HUD Refuses To Release Secretary Marcia Fudge's Email Address in Response to <i>Reason</i> FOIA Request appeared first on Reason.com.
]]>Jonathan David Hankins died in a Jackson, Mississippi hotel room last May. Even though police were quickly able to identify the body of the 39-year-old, they failed to inform his family—even after his mother reported him missing.
Eventually, Jonathan was buried in a pauper's grave on the grounds of a nearby penal farm. His family didn't know what happened to him until an NBC investigation revealed the misconduct.
"It feels like they threw him away like trash," Jeannie Jones, Jonathan's aunt, told NBC. "No caring. No feeling."
According to Gretchen Hankins, Jonathan's mother, he left her Florence, Mississippi, home on Friday, May 20, 2022, telling her he was planning on meeting some friends and promising to return for Sunday dinner.
Gretchen told NBC that she was used to Jonathan, who was addicted to meth, leaving for days at a time. But when he didn't come back that weekend, she became alarmed. After calling nearby jails and hospitals in search of her son, she reported him missing to local police in July.
While no news immediately came, Gretchen says she regularly contacted the Rankin County Sheriff's Office for over a year, hoping for news about her son, only to be continually told there was no new information.
However, Jonathan had in fact been found dead in a Jackson, Mississippi, hotel room just three days after he left home—before his mother even reported him missing. Law enforcement swiftly identified his body. But despite being present at the scene, neither the Hinds County coroner's office nor the Jackson Police Department informed Jonathan's family. In September, the county had him buried at a Jackson area penal farm.
"That's ridiculous," Gretchen told NBC. "Going that dang long and not calling people, that's just inhumane. It's wrong. It's just wrong."
This isn't the first time Jackson, Mississippi, police have buried someone in a pauper's grave after failing to inform their family of their death. In March, 37-year-old Dexter Wade was struck by a police cruiser just hours after leaving his mother's house. Law enforcement failed to inform his family for seven months—allowing his body to go unclaimed and eventually burying him in a penal farm.
Following Wade's death, NBC launched an investigation into other individuals buried on the same penal farm, which is how they found Jonathan Hankins—and were finally able to notify his family about his death.
"What if there wasn't a Dexter Wade?" Brooks Davis, who runs the website MissingSippi, told NBC. "What if his mama didn't figure out what she figured out and exposed these problems? How much longer would this family be going through this? Would they have ever found out?"
The post Mississippi Cops Buried a Missing Man. His Family Only Found Out When NBC News Revealed It. appeared first on Reason.com.
]]>As Republicans see it, the Justice Department is coming down hard on Donald Trump for political reasons, while it is going easy on Hunter Biden because he is the president's son. Although there are plausible grounds for both assessments, they glide over the question of what justice would look like in these cases.
Trump left the White House with thousands of presidential records, including hundreds that were marked as classified, and resisted efforts to recover them. Under the Presidential Records Act, he claims, he had "the absolute right to do whatever I want with them."
That is not what the statute, which Congress passed in response to Richard Nixon's similar assertion of complete discretion, actually says. But the law itself does not prescribe any criminal penalties.
The superseding indictment unveiled last week instead charges Trump with 32 counts of willfully retaining "national defense information," each tied to a specific document and punishable by up to 10 years in prison. Proving those charges may be difficult, because it requires persuading a jury, based on classified information the government is loath to disclose, that Trump had "reason to believe" the records "could be used to the injury of the United States or to the advantage of any foreign nation."
By contrast, the five obstruction charges in the indictment, each punishable by up to 20 years in prison, do not hinge on the nature of the documents. The indictment plausibly alleges that Trump deliberately concealed those records, in the process flouting one federal subpoena and attempting to evade another.
Anything like the maximum penalties for those charges, some of which are seemingly redundant, would be clearly excessive. But that does not mean there should be no criminal consequences at all for what looks like willful and repeated defiance of the law.
In Hunter Biden's case, the original plan was that he would plead guilty to two misdemeanor tax offenses, while prosecutors would recommend probation. Under a separate agreement, Biden would have avoided prosecution for illegally buying a gun by completing a two-year pretrial diversion program.
The latter agreement, which the lawyers on both sides said was not subject to U.S. District Judge Maryellen Noreika's approval, would have charged her, rather than the Justice Department, with deciding whether Biden had complied with its terms. It also included an ambiguous promise that Biden would not be prosecuted for certain crimes.
Noreika understandably objected to those provisions, which seemed designed to protect Biden from the possibility that his father will lose reelection next year. That highly unusual arrangement reinforced the impression that Biden was receiving preferential treatment.
Some Republicans also wondered why Biden was charged with willful failure to pay his income taxes, a misdemeanor, rather than tax evasion, a felony. But that decision could be explained by the lack of any sophisticated tax dodging scheme, the fact that Biden eventually did pay his overdue taxes, and the difficulty of proving the criminal intent required for an evasion charge, especially in light of the well-known drug problems he was experiencing at the time.
Biden's crack habit, along with his status as a nonviolent offender with no prior criminal record, probably also figured in the decision to approve pretrial diversion on the gun charge. Yet paradoxically, it was the justification for filing that charge in the first place.
Receipt or possession of a firearm by an "unlawful user" of a controlled substance is a felony that was punishable by up to 10 years in prison at the time of Biden's gun purchase. Violating that arbitrary, constitutionally dubious prohibition (which also applies to cannabis consumers, even if they live in states that have legalized marijuana) should not be any sort of crime, let alone one that can put you behind bars for years.
In both of these cases, the legally authorized charges and penalties are not reliable indicators of what justice requires. It's a distinction that members of both parties should keep in mind.
© Copyright 2023 by Creators Syndicate Inc.
The post The Legally Authorized Charges Against Donald Trump and Hunter Biden Don't Tell Us What Justice Requires appeared first on Reason.com.
]]>During his CNN town hall in May, Donald Trump tried to explain why he had done nothing wrong by keeping thousands of presidential records, including more than 300 marked as classified, when he left office in January 2021. "I had the absolute right to do whatever I want with them," he declared. Under the Presidential Records Act, Trump claimed, he had complete discretion to decide which documents belonged in the National Archives and which he could retain as his personal property.
That argument is not only inconsistent with the plain text of the statute; it is highly implausible in light of the motivation for the law, which, as Trump himself contradictorily noted, was a response to Richard Nixon's similar assertion of control over presidential records. Yesterday the Justice Department unveiled a superseding indictment of Trump that suggests he ignored another lesson he could have learned from Nixon: It's not the crime; it's the cover-up.
The original indictment, dated June 8, made a strong case that Trump willfully obstructed efforts to recover the records he took. In particular, it presented evidence that he deliberately defied a May 2022 federal subpoena demanding that he turn over every document with classification markings that he still had at Mar-a-Lago.
The evidence of Trump's defiance includes notes taken by one of his lawyers, Evan Corcoran, indicating that Trump suggested they should conceal documents covered by the subpoena. It also includes Trump's instructions to one of his aides, Walt Nauta, who removed more than 30 boxes of records from the Mar-a-Lago storage room that Corcoran planned to search in response to the subpoena. And it includes a sworn statement from Trump's lawyers, allegedly based on information he gave them, assuring the Justice Department that he had turned over all the records demanded by the subpoena. That was not true, as the FBI confirmed when it searched Mar-a-Lago on August 8.
The first indictment included charges against Nauta for participating in the alleged conspiracy to conceal classified documents. The superseding indictment adds a new wrinkle, alleging an attempted cover-up of the cover-up.
The indictment names a new defendant, Mar-a-Lago property manager Carlos De Oliveira, who reportedly told another Trump employee, I.T. specialist Yuscil Taveras, that "the boss" wanted to delete surveillance camera video that would show Nauta and De Oliveira moving boxes out of the storage room. According to the indictment, Taveras responded that he did not know how to erase the footage and, in any case, did not think he had the authority to do so. He suggested that De Oliveira contact The Trump Organization's director of security. De Oliveira reiterated that "the boss" wanted the video deleted and asked, "What are we going to do?"
That conversation allegedly happened on June 27, 2022, five days after the Justice Department emailed the Trump Organization's lawyer a draft of a grand jury subpoena seeking "any and all surveillance records, videos, images, photographs and/or CCTV from internal cameras" recorded since January 10, 2022, at various Mar-a-Lago locations, including the area of the storage room. The indictment notes that Trump called De Oliveira the day after that email and spoke to him for 24 minutes. That conversation, the indictment implies, was the source of the evidence-concealing instruction that De Oliveira tried to carry out.
In the end, the footage was not deleted, which is why the Justice Department was able to obtain much of the evidence cited in the indictment via the subpoena, which arrived in its final form on June 24, 2022. But the alleged attempt to destroy that evidence is the basis for two of the new counts in the superseding indictment.
Count 40 says Trump, Nauta, and De Oliveira "did knowingly [and] corruptly persuade and attempt to persuade another person, with intent to cause and induce [that] person to alter, destroy, mutilate, and conceal an object with intent to impair the object's integrity and availability for use in an official proceeding." That happened, the indictment says, when the three men asked Taveras to "delete security camera footage at the Mar-a-Lago Club to prevent the footage from being provided to a federal grand jury." Based on the same conduct, Count 41 says Trump et al. attempted to destroy the video, a distinct offense that does not necessarily involve persuasion of another person.
Those alleged crimes are felonies punishable by up to 20 years in prison. So are the three other obstruction charges against Trump, which involve his attempts to hide classified documents.
Trump also is charged with 32 counts of willfully retaining "national defense information," each of which corresponds to a specific document he kept. Each of those counts is punishable by up to 10 years in prison.
Those charges include a new count based on a top-secret document concerning potential military action against Iran that Trump allegedly waved around during a July 2021 meeting at his golf resort in Bedminster, New Jersey, with researchers working on former White House Chief of Staff Mark Meadows' memoir. In a recording of that conversation, Trump says, "I have a big pile of papers, [and] this thing just came up. Look." He describes the document as "highly confidential" and "secret information," adding that "as president, I could have declassified it," but "now I can't," so "this is still a secret."
In a Fox News interview with Bret Baier last month, Trump put an implausible spin on that episode. Contrary to what he said at the time, he claimed that he never actually held up a classified document. "There was no document," he said. "That was a massive amount of papers and everything else talking about Iran and other things. And it may have been held up or may not, but that was not a document. I didn't have a document per se. There was nothing to declassify. These were newspaper stories, magazine stories, and articles."
According to the indictment, however, the Justice Department has identified the document in question, which it describes as a "presentation concerning military activity in a foreign country." Trump retained the document, it says, from January 20, 2021, until January 17, 2022, the day that he surrendered 15 boxes of records to the National Archives.
Still, proving that Trump willfully retained national defense information requires more than showing that he kept classified material. It requires persuading a jury that Trump had "reason to believe" that the documents "could be used to the injury of the United States or to the advantage of any foreign nation." While that seems plausible based on the indictment's cursory descriptions of the documents, it remains unclear to what extent Trump's actions actually endangered national security, especially given the widely acknowledged problem of overclassification. Convicting Trump will require more evidence about the contents of the documents, which will lead to much wrangling over how much classified information can be safely divulged to the jury.
The obstruction charges, by contrast, do not hinge on the nature of the records that Trump kept. If the prosecution can show that Trump deliberately hid the documents, deliberately defied one federal subpoena, and deliberately tried to frustrate another, that would amount to obstruction, regardless of how sensitive the material was.
To rebut those allegations, Trump's lawyers will have to argue that he had no criminal intent when he talked to Corcoran, when he had boxes of documents moved in and out of the storage room, or when he gave whatever information Corcoran relied on when he concluded that his "diligent search" had discovered all of the remaining classified records. They may also question whether De Oliveira was acting on explicit instructions from Trump when he tried to delete the surveillance footage, as opposed to drawing a mistaken inference about what "the boss" wanted.
Depending on the contrary testimony or other evidence they can muster to poke holes in the government's story, Trump's lawyers may be able to create reasonable doubt as to whether there could be innocent explanations for the seemingly obstructive conduct described in the indictment. But based on what we know now, the obstruction charges seem like the most serious threat to Trump's continued freedom.
The post Trump's Alleged Cover-Up of His Cover-Up Reinforces the Obstruction Charges Against Him appeared first on Reason.com.
]]>Donald Trump picked William Barr as his second attorney general largely because Barr had criticized Special Counsel Robert Mueller's investigation of alleged ties between Russia and the Trump campaign. Barr still agrees with Trump that the Russia probe was a "witch hunt."
The former attorney general takes a strikingly different view of the federal indictment against Trump that was unsealed this month, which Barr calls "very, very damning." In contrast with many other prominent Republicans, Barr says the outrage is not the indictment but the "reckless conduct" that prompted it.
Like Trump's claim that the 2020 presidential election was rigged, his retention of government records after he left the White House presents Republicans with a choice. They can risk the wrath of Trump's supporters by acknowledging reality, or they can play it safe by embracing his delusions.
Barr has rejected the latter course since December 1, 2020, when he said the Justice Department had not seen "anything to substantiate" Trump's story of systematically corrupted voting machines or any other evidence of "fraud on a scale that could have effected a different outcome in the election." Around that time, Barr later recalled, he repeatedly told Trump such claims were "bullshit."
Barr likewise has little patience for Trump's assertion that he had "the absolute right to do whatever I want" with the thousands of presidential records he took with him when he left office, which included more than 300 marked as classified. "He had no right to those documents," Barr said on Face the Nation this week. "He had no legal basis for keeping them."
Many Republican legislators have portrayed the criminal charges related to Trump's handling of those records as a politically motivated attack on Joe Biden's likely 2024 opponent. But as Barr noted, Trump "provoked this whole problem himself" by refusing to return the documents.
"The government tried for over a year, quietly and with respect, to get them back, which was essential that they do, and he jerked them around," Barr said. Trump remained recalcitrant even when he faced a federal subpoena seeking all the documents with classification markings stored at Mar-a-Lago.
"He didn't raise any legal arguments," Barr noted. Instead, according to the indictment, "he engaged in a course of deceitful conduct" aimed at hiding records covered by the subpoena. "If those allegations are true," Barr said, Trump's conduct was "outrageous" and "a clear crime."
Barr called the evidence supporting the charges against Trump, which include obstruction of justice and willful retention of national defense information, "very strong," noting that much of it "comes from his own lawyers." Trump lawyer Evan Corcoran's notes, for example, indicate that his client was inclined to defy the subpoena.
Consistent with that impression, Trump had boxes moved out of a Mar-a-Lago storage room before Corcoran could search them for relevant documents. Barr said he also believes Trump lied to the Justice Department by averring that he had fully complied with the subpoena—another crime listed in the indictment.
Trump has claimed every document he removed was "automatically declassified"—perhaps by a "standing order," perhaps just "by thinking about it," perhaps by the very act of removal. As Barr has previously noted, such claims are "highly improbable" and suggest a cavalier attitude toward national security. In any case, they are irrelevant under the statute dealing with national defense information, a category that can include unclassified material.
Trump also has argued that the Presidential Records Act gave him complete discretion to claim documents as his personal property. That legal theory is "absurd," Barr noted, because "the whole purpose of the statute" is to "stop presidents from taking official documents out of the White House."
Trump, whom Barr likened to "a defiant 9-year-old kid," bridled at the legal restrictions on his acquisitive impulses, insisting that no one had any business going through "my boxes." Barr is clearly correct when he observes that the case against Trump is "entirely of his own making."
© Copyright 2023 by Creators Syndicate Inc.
The post The Federal Case Against Trump Is 'Very Strong,' His Former Attorney General Says appeared first on Reason.com.
]]>On Sunday, The New York Times floated a very important question on Twitter: Why was Donald Trump hoarding boxes of national security documents at his Mar-a-Lago resort? And what could possibly explain his intense resistance to giving them back?
For all the detailed evidence in the indictment accusing Donald Trump of holding onto classified documents and obstructing the government's efforts to retrieve them, one mystery remains: Why did he take them and fight so hard to keep them? https://t.co/MlPsooGcdZ
— The New York Times (@nytimes) June 10, 2023
Now, far be it for me to criticize the paper of record's reporting, but last year I made a throwaway joke that solved the mystery. I would like to introduce you all to an advanced political theorem known as "my boxes."
Former American Conservative columnist Rod Dreher had asked last year, around the time of the Mar-a-Lago raid, what reason Trump could possibly have for refusing to return the boxes. It was somewhat of a hobby among the professionally credulous to wonder what machinations could be behind Trump's decision to hold on to these boxes, despite legal peril. Among some resistance liberals, there were unsupported accusations that Trump may have been selling classified documents or using them for nefarious purposes.
Then, in a joking back-and-forth with The Bulwark's Sonny Bunch, I offered a fictional conversation between Trump and an aide that would tidily sum up the former president's motivations and legal theories:
For the past year since then, whenever a new bit of information dribbles out about the case, someone on Twitter alerts me that another point has been scored for "my boxes."
All of the substantive reporting, as well as the recently filed indictment, has backed up the "my boxes" hypothesis. In August, The New York Times reported that Trump told several advisers, in response to the National Archives' demands that he return the boxes: "It's not theirs; it's mine." The Washington Post reported in November that "Trump repeatedly said the materials were his, not the government's—often in profane terms."
This April, Fox News' Sean Hannity tried to tee up a softball for Trump, saying he couldn't imagine the former president saying, "Bring me some of the boxes that we brought back from the White House, I'd like to look at them." But Trump insisted that he would.
"I would have the right to do that," Trump replied. "I would do that."
According to the 37-count indictment filed in federal court against Trump this week, he told one of his long-suffering attorneys: "I don't want anybody looking, I don't want anybody looking through my boxes, I really don't, I don't want you looking through my boxes."
"My boxes" has always been the simplest, most durable explanation for Trump's behavior. He took the boxes because he likes boxes of stuff, and he refused to give them back for the same reason. He has a toddler's conception of property and a similar developmental level of excitement for show-and-tell. (Kid Rock allegedly got a glimpse of national security documents when he met with Trump.) All of which is how you end up with descriptions of America's nuclear capabilities sitting in a box in a South Florida bathroom.
The post The 'My Boxes' Theory Is All You Need To Explain Trump's Behavior appeared first on Reason.com.
]]>Donald Trump's federal indictment sheds light on two crucial questions about the presidential records he took with him when he left office in January 2021: How sensitive was this material, and what was Trump's intent in retaining it? Both points are relevant to the criminal charges that were announced last week.
Trump faces 31 counts of willfully retaining national defense information, each of which corresponds to a specific document described in the indictment. The relevant statute, 18 USC 793, covers "information relating to the national defense" that "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."
According to the indictment, all of the listed documents fell into that category. All but one of them were marked as "secret" or "top secret," and many of them bore additional labels, such as "SI" (special intelligence), "SPECIAL HANDLING," and "NOFORN" (not releasable to foreign nationals). But classification markings are neither necessary nor sufficient to establish that a document qualifies as national defense information under 18 USC 793.
Notably, one of the 31 records mentioned in the indictment, described as an "undated document concerning military contingency planning of the United States," bore "no marking." The Justice Department nevertheless alleges that it "could be used to the injury of the United States" or the advantage of a foreign country. Conversely, given the widely recognized problem of overclassification, a document marked as "secret" or "top secret" might not be covered by 18 USC 793, either because it never should have been classified or because the justification for that decision no longer applies.
The soundness of classification decisions is hard to assess without details that we are not allowed to know. But the indictment's general descriptions at least make it plausible that some of the documents Trump retained were deemed secret for good reason. They included, for example, a "document dated June 2020 concerning nuclear capabilities of a foreign country"; a "document dated October 4, 2019, concerning military capabilities of a foreign country"; an "undated document concerning military attacks by a foreign country"; an "undated document concerning military capabilities of a foreign country and the United States"; a "document dated January 2020 concerning military options of a foreign country and potential effects on United States interests"; and a "document dated November 7, 2019, concerning military activity of foreign countries and the United States."
More generally, the indictment says the documents that Trump kept "included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack." It adds that "the unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military [and] human sources, and the continued viability of sensitive intelligence collection methods."
On the face of it, it seems plausible that careless handling of such documents might expose information, including information about intelligence sources, that could undermine national security. And we know that Trump was, at the very least, careless. That much is reflected in the indictment's photographs of document boxes that were kept in unauthorized and unsecured locations at Mar-a-Lago, including a storage room, a bathroom, an office, a bedroom, and the stage of a ballroom where "events and gatherings took place."
But did Trump "willfully" retain national defense information? "We have seen absolutely no indication that President Trump knowingly possessed any of the marked documents or willfully broke any laws," Trump's lawyers said in an April 26 letter to the House Intelligence Committee. "Rather, all indications are that the presence of marked documents at Mar-a-Lago was the result of haphazard records keeping and packing by White House staff and [the General Services Administration]."
Such sloppiness could explain the presence of secret material in the boxes shipped to Mar-a-Lago. But the indictment presents substantial evidence that Trump knew he had classified documents and deliberately resisted the government's efforts to recover them.
In July 2021, Trump was interviewed at his golf club in Bedminster, New Jersey, as part of the research for former White House Chief of Staff Mark Meadows' memoir. Trump was irked by press reports that Joint Chiefs of Staff Chairman Mark Milley had restrained him from taking military action against Iran toward the end of his presidency. To rebut that narrative, Trump presented what he described as Milley's "plan of attack" for Iran.
"He said that I wanted to attack Iran," Trump said, according to the indictment, which quotes an audio recording of the Bedminster interview. "Isn't it amazing? I
have a big pile of papers, [and] this thing just came up. Look. This was him. They presented me this—this is off the record, but—they presented me this. This
was him. This was the Defense Department and him."
Trump described the document as "highly confidential" and "secret information." As president, he added, "I could have declassified it," but "now I can't," so "this is still a secret."
A month or two later, the indictment says, Trump met with a representative of his political action committee at the Bedminster club. Trump "commented that an ongoing military operation in Country B was not going well." Then he allegedly "showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close." The indictment notes that "the PAC Representative did not have a security clearance or any need-to-know classified information about the military operation."
The indictment contrasts Trump's sloppy handling and gratuitous use of classified records with his prior statements about the importance of guarding state secrets. During his 2016 campaign, for example, Trump repeatedly slammed Hillary Clinton for her careless handling of emails containing classified information when she was secretary of state. He promised that he would be much more careful.
"In my administration, I'm going to enforce all laws concerning the protection of classified information," Trump said in August 2016. "No one will be above the law." The next month, he warned that "we can't have someone in the Oval Office who doesn't understand the meaning of the word confidential or classified." He promised to "enforce all classification rules" and "enforce all laws relating to the handling of classified information." He said he would provide "the best protection of classified information."
In February 2017, then-President Trump decried the "illegal process" by which reporters gain access to classified information. "The press should be ashamed of themselves," he said. "But more importantly, the people that gave out the information to the press should be ashamed of themselves. Really ashamed."
Although Trump was well aware of the restrictions on access to classified documents, in other words, he flouted the rules he said were essential to protecting national security. According to the indictment, Trump also impeded the Justice Department's attempts to recover those documents.
After the National Archives and Records Administration discovered classified material in 15 boxes that Trump surrendered a year after leaving office, the Justice Department launched an investigation. That led to a May 11, 2022, grand jury subpoena demanding the return of all documents with classification markings that remained at Mar-a-Lago.
Twelve days later, Trump met with two of his lawyers to discuss the subpoena. According to the indictment, notes taken by one of those lawyers, Evan Corcoran, indicate that Trump was inclined to defy the subpoena. In "sum and substance," the indictment says, he made comments like these:
"I don't want anybody looking through my boxes. I really don't. I don't want you looking through my boxes."
"What happens if we just don't respond at all or don't play ball with them?"
"Wouldn't it be better if we just told them we don't have anything here?"
"Isn't it better if there are no documents?"
Trump nevertheless agreed to let Corcoran look through the boxes in the Mar-a-Lago storage room on June 2. In the meantime, according to the indictment, Trump aide Walt Nauta, under his boss's direction, moved "approximately 64 boxes" from the storage room to Trump's residence at Mar-a-Lago. As of June 2, Nauta (who also was charged in last week's indictment) had returned "only approximately 30 boxes" to the storage room.
Corcoran's search of those boxes turned up 38 classified records, which he placed in a Redweld folder that he sealed with clear duct tape. While discussing where to store the folder until it could be delivered to the Justice Department, according to Corcoran, Trump "made a funny motion as though [he were saying,] 'Well, OK, why don't you take them with you to your hotel room, and if there's anything really bad in there, like, you know, pluck it out.' And that was the motion that he made. He didn't say that."
The next day, Corcoran asked another Trump lawyer, Christina Bobb, to sign a sworn certification saying that "a diligent search was conducted of the boxes that were moved from the White House to Florida"; that the search was aimed at finding "any and all documents that are responsive to the subpoena"; and that "any and all responsive documents accompany this certification." Bobb said those statements were "based upon the information that has been provided to me." She signed the statement as the "custodian of records" for Trump's office even though she had not reviewed the subpoena, had not participated in the box search, and had not examined the contents of the folder.
Corcoran gave that statement to the Justice Department when he surrendered the folder on June 3, 2022. But the FBI suspected, based partly on surveillance video that showed Nauta moving boxes around, that Trump had not delivered all of the documents covered by the subpoena. The FBI's August 8 search of Mar-a-Lago confirmed that suspicion, discovering 102 additional classified documents in the storage room and in Trump's office.
When the Justice Department revealed what had happened after it served the subpoena, it looked like Corcoran and Bobb had misled the government. Based on the evidence described in the indictment, however, it looks like Corcoran made a good-faith effort to comply with the subpoena but was frustrated by the movement of boxes, which Trump and Nauta did without notifying Corcoran.
Trump's response to the subpoena not only supports the charges related to willful retention of national defense information. It also supports the charge that he and Nauta conspired to obstruct justice. More specifically, they are accused of conspiring to "corruptly conceal a record, document, or other object from an official proceeding." The alleged conspiracy also involved "engag[ing] in misleading conduct toward another person and corruptly persuad[ing] another person to withhold a record, document, or other object from an official proceeding." Other charges against Trump and Nauta involve specific acts related to the conspiracy, including false statements to the FBI and obstructing a federal investigation by concealing documents.
Although we know more about the classified records than we did before, it remains unclear exactly how sensitive they were. But all of the charges against Trump involve conduct that goes beyond carelessness or negligence. Even if Trump initially removed classified documents from the White House by accident (as his lawyers have suggested), it is clear he eventually realized that purported error. But far from trying to correct it, he seems to have intentionally impeded the Justice Department's attempts to recover the records, which by his own account he viewed as his personal property.
The post Trump's Federal Indictment Presents New Evidence of Deliberate Deceit and Obstruction appeared first on Reason.com.
]]>During Donald Trump's CNN town hall last month, moderator Kaitlan Collins asked him about the hundreds of classified documents he took with him when he left the White House in January 2021. "Did you ever show those classified documents to anyone?" she wondered. Trump's response was vague: "Not really. I would have the right to."
Collins asked Trump for clarification: "What do you mean [by] 'not really'?" Trump said he meant "not that I can think of," which is not really the same thing. In any case, he said, "I have the absolute right to do whatever I want with them."
One of the things Trump seems to have done with them, judging from recent reports about a recording obtained by Special Counsel Jack Smith, is rebut the claim that former Joint Chiefs of Staff Chairman Mark Milley restrained him from taking military action against Iran toward the end of his presidency. During a July 2021 interview at his golf club in Bedminster, New Jersey, Trump reportedly cited a secret memo that he said showed it was actually Milley who was bent on confrontation with Iran.
If we can trust the anonymous sources who recently described that conversation to CNN and The New York Times, the episode could be an important piece of evidence in Smith's investigation of what Trump did with thousands of presidential records he retained after leaving office. As reported, Trump's remarks suggest that, contrary to his repeated claims that he had declassified every document stamped as "confidential," "secret," or "top secret" when he had the power to do so, he still viewed the Iran memo as classified half a year after decamping for Mar-a-Lago.
Legally, the classification status of the purloined records is not decisive. Under 18 USC 793, one of the statutes that the FBI invoked when it sought the warrant for its August 8 search of Mar-a-Lago, it is a felony to improperly retain "information relating to the national defense" that "could be used to the injury of the United States or to the advantage of any foreign nation." That law predates the classification system established in 1951 and so makes no reference to it. But Trump's comments could be relevant in establishing that he "willfully" retained national defense information and that he had "reason to believe" it "could be used to the injury of the United States or to the advantage of any foreign nation," both of which are elements of the offense.
"We have seen absolutely no indication that President Trump knowingly possessed any of the marked documents or willfully broke any laws," Trump's lawyers said in an April 26 letter to the House Intelligence Committee. "Rather, all indications are that the presence of marked documents at Mar-a-Lago was the result of haphazard records keeping and packing by White House staff and [the General Services Administration]." As described, the Bedminster recording seems to contradict that claim.
The interview with Trump was conducted as part of the research for former White House Chief of Staff Mark Meadows' 2021 memoir The Chief's Chief. "The recording indicates Trump understood he retained classified material after leaving the White House, according to multiple sources familiar with the investigation," CNN reported this week. "On the recording, Trump's comments suggest he would like to share the information but he's aware of limitations on his ability post-presidency to declassify records, two of the sources said."
Irked by press accounts of Milley's restraining influence, the Times says, Trump "began referencing a document that he had with him, saying that it had been compiled by General Milley and was related to attacking Iran, the people briefed on the matter said." Trump "can be heard handling paper on the tape, though it is not clear whether it was the document in question."
Adding to the intrigue, CNN today reported that Trump's lawyers "turned over material in mid-March in response to a federal subpoena" related to the "classified US military document" he cited in the interview but "were unable to find the document itself." CNN says "it remains unclear" whether the document "was ever returned to the government or where it is now."
Trump has offered shifting accounts of how he supposedly declassified the documents he retained. He initially claimed he had issued a "standing order" that automatically declassified anything he happened to remove from the Oval Office, which was news to his former national security adviser and his former attorney general. Trump later said he had the power to declassify records simply "by thinking about it" or by taking them to Mar-a-Lago. During the CNN town hall, he reiterated that everything he removed was "automatically declassified."
Trump's lawyers, during the legal wrangling over the FBI's use of the documents it seized from Mar-a-Lago, avoided such extravagant claims. But they did note that, as president, Trump could have declassified the records. Trump lawyer James Trusty reiterated that point this week. "When he left for Mar-a-Lago with boxes of documents that other people packed for him that he brought, he was the commander in chief," Trusty told CNN. "There is no doubt that he has the constitutional authority as commander in chief to declassify." But according to the Times, Trusty "declined to say" whether Trump had declassified the Iran memo.
Compounding the confusion, attorney Timothy Parlatore, who was part of Trump's legal team until recently, told CNN this week that the former president's retention of records marked as classified was partly due to "the failure of document handling within the White House." That seems inconsistent with Trump's claim that his purported declassification, whether carried out by a "standing order," a mental declaration, or the very act of removal, operated as intended.
In any case, Parlatore said, the Iran memo's classification status is a red herring in the context of potential charges under 18 USC 793. "Whether it was classified or declassified is not really something that's relevant to the statute that we're talking about here," he said. "What DOJ is investigating is willful retention of national defense information. Whether it's classified or declassified is not an element of that offense."
Parlatore noted that "people have been convicted under this statute for possessing unclassified materials." Conversely, "people have been acquitted for possessing top-secret documents that were not national defense information and were actually overclassified."
That distinction, Parlatore said, poses a problem for any potential prosecution of Trump for mishandling national defense information: To prove that charge, the government would have to declassify the relevant documents so that the jury could assess whether they qualify as national defense information—in particular, whether they "could be used to the injury of the United States or to the advantage of any foreign nation." But the very act of declassification, Parlatore said, would undermine that claim. That challenge is one reason he thinks it is unlikely that Trump will be indicted under 18 USC 793.
In short, while parsing Trump's implausible and evolving declassification claims may be entertaining, it is not relevant to this potential charge. That means Trump's critics probably should spend less time on the question of when secrets are no longer secret. But it also means that citing the president's declassification powers, as Trump's supporters reflexively do when they dismiss the significance of his conduct, does not exonerate him of endangering national security (assuming he did that) by treating sensitive government documents as his personal property.
Classification likewise has nothing to do with Trump's broader assertion that he had "the absolute right" to do whatever he wanted with documents that belonged in the National Archives under the Presidential Records Act. Under 18 USC 2071, which the FBI also cited in its search warrant affidavit, it is a felony to "conceal" or "remove" government documents.
Nor does Trump's sweeping declassification claim affect his potential liability for obstructing a federal investigation, another charge Smith is considering. It is clear that Trump's lawyers failed to fully comply with a federal subpoena seeking all documents with classification markings that remained at Mar-a-Lago, which was the main justification for the FBI's search. The lawyers said they had turned over everything, but the FBI suspected they had not, and the search confirmed that suspicion by discovering 103 additional documents covered by the subpoena.
The question of whether Trump deliberately defied the subpoena hinges on his knowledge and intent. But if he did, he would be guilty of obstruction, no matter what you make of his claim that a document's classification status depends on his unexpressed whims and acquisitive impulses.
The post Trump Reportedly Viewed a Supposedly Declassified Document As a Secret He Was Not Allowed To Share appeared first on Reason.com.
]]>During his CNN "town hall" last night, Donald Trump claimed he never asked Georgia Secretary of State Brad Raffensperger to "find" the votes necessary to reverse Joe Biden's 2020 victory in that state. Trump also said he had "the absolute right" to do whatever he wanted with presidential documents when he left the White House in January 2021. Both of those statements are false, and both go to the heart of potential criminal charges against the former president.
In a notorious phone conversation with Raffensperger on January 2, 2021, Trump pressed him to validate one bogus election-fraud claim after another. Among other things, Trump mentioned "300,000 fake ballots" that "were dropped mysteriously into the rolls"; asserted that "dead people voted, and I think the number is close to 5,000"; said election workers counted Biden votes "three times" and took "18,000 ballots" out of "suitcases or trunks"; and cited a "rumor" that "they shredded ballots in Fulton County."
Raffensperger and his office's general counsel, Ryan Germany, patiently refuted these allegations, saying there was no evidence to support them and no reason to believe that Biden had not in fact won Georgia's electoral votes. Trump was unfazed. He insisted that all of the alleged irregularities amounted to "many, many times the 11,779 margin" by which Biden had won. "All I want to do is this," he said. "I just want to find 11,780 votes, which is one more than we have because we won the state."
Trump was frustrated by the resistance from Raffensperger and Germany. "Why don't you want to find this, Ryan?" he asked. "What's wrong with you?" Addressing Raffensperger, he asked, "Why wouldn't you want to find the right answer, Brad, instead of keep saying that the numbers are right? 'Cause those numbers are so wrong."
If Raffensperger refused to "find the right answer," Trump implied, he could face criminal charges. The conspirators who supposedly stole the election for Biden had committed crimes, he said, and "it is more illegal for you than it is for them because you know what they did and you're not reporting it….That's a criminal offense. And you can't let that happen. That's a big risk to you and to Ryan, your lawyer."
When CNN's Kaitlan Collins asked Trump about that conversation last night, Trump insisted that "I didn't ask him to find anything." Rather, "I said you owe me votes because the election was rigged. That election was rigged."
The plausibility of that gloss is legally significant because Trump's pressure on Raffensperger arguably amounted to solicitation of election fraud under Georgia law, which is one of the issues that Fulton County District Attorney Fani T. Willis is considering. A special grand jury convened as part of that investigation issued its recommendations in January, and the forewoman has strongly implied that they included possible charges against Trump. Willis has said a second grand jury with the power to issue indictments may approve them in July or August.
To convict Trump of soliciting election fraud, prosecutors would have to prove that he made his demands "with intent that another person engage in conduct" that qualifies as a misdemeanor or felony under Georgia's election law. But according to Trump, he had no such intent: He sincerely believed that massive election fraud had denied him his rightful victory in Georgia, and he was simply asking Raffensperger to do his job by correcting that problem. In that light, Trump's continued insistence, despite all the evidence to the contrary, that he actually won reelection is a legal strategy as well as a face-saving fantasy.
Trump's comments about the thousands of government documents he brought to Mar-a-Lago, which included hundreds that were marked as classified, are also relevant to an ongoing criminal investigation. Last night he repeated his claim that any classified material he retained was "automatically declassified," a transformation he has said can be accomplished simply "by thinking about it" because the president has the unilateral authority to decide when secrets are no longer secret.
"I was there, and I took what I took, and it gets declassified," he told Collins. "I had every right to do it. I didn't make a secret of it. You know, the boxes were stationed outside the White House. People were taking pictures of [them]….I had the absolute right to do whatever I want with them."
Trump's implication that everyone knew those boxes contained classified documents is obviously not true, since that discovery by the National Archives and Records Administration (NARA) set off a Justice Department investigation that culminated in the FBI's August 8 search of Mar-a-Lago. In any case, Trump's declassification claim, even if accepted at face value, does not absolve him of criminal liability under the three statutes that the FBI invoked in its search warrant affidavit.
One of those laws makes it a felony to "conceal" or "remove" government documents, classified or not. Those documents include presidential records, which legally belong in the National Archives, not wherever a former president decides to take them based on the erroneous belief that they are his personal property. As Collins noted, the Presidential Records Act "does not say you can take documents with you. It says actually that they are the property of the federal government." Another law makes it a felony to improperly retain information "relating to the national defense"; that category does not hinge on a document's classification status.
The third law cited by the FBI makes it a felony to obstruct a federal investigation, which Trump arguably did by resisting the Justice Department's attempts to recover classified material. In particular, his lawyers responded to a federal subpoena demanding all documents marked as classified that remained at Mar-a-Lago by handing over 38 of them last June, which they said fully complied with the subpoena. That clearly was either a lie or an error, because the FBI search discovered 103 more.
When Collins asked Trump about his apparent defiance of the subpoena, he was not happy:
Collins: That's the question that investigators have, I think: [that] is, why you held on to those documents when you knew the federal government was seeking them and then had given you a subpoena to return them.
Trump: Are you ready? Can I talk?
Collins: Yeah, what's the answer?
Trump: Do you mind?
Collins: I would like for you to answer the question. That's why I asked it.
Trump: It's very simple—you are a nasty person, I'll tell you.
Collins: Can you answer why you held on to the documents?
Trump could not. Instead, he launched into a rambling response in which he mentioned his many months of negotiations with NARA, invoked the Presidential Records Act, mentioned Richard Nixon, and again described the boxes outside the White House that "everybody knew" about. "We were negotiating with NARA," he said. "All of a sudden, they raid our house."
What's missing from that narrative? The very thing that Collins asked Trump to address: his continued retention of documents that the subpoena required him to surrender. That was the justification for the FBI search, and it is at the center of the document-related obstruction that Special Counsel Jack Smith is investigating.
The post Trump Hopes His Own Delusions Will Protect Him From Criminal Charges appeared first on Reason.com.
]]>The New York State Police (NYSP) must turn over decades of disciplinary records and complaints against troopers, a New York state judge ruled today.
In response to a Freedom of Information lawsuit filed by the New York Civil Liberties Union (NYCLU), acting Supreme Court Justice Keri Savona ruled that the NYSP must begin disclosing misconduct records from 2000 through 2020. (Unlike most states, New York's Supreme Court is its trial-level court system.) The ruling is the latest defeat for police unions, which have been fighting to limit the scope of a 2020 law that made police disciplinary files public record.
"We are pleased that this decision orders the NYSP to begin disclosing thousands of its previously-secret disciplinary records—starting promptly in 30 days and continuing on a rolling basis as [New York's Freedom of Information Law] requires," Bobby Hodgson, a supervising attorney at the NYCLU, says in a statement to Reason. "The public has a right to complete information about the police misconduct investigations that take place in their communities."
In 2020, the New York Legislature repealed Section 50-a of the state's civil rights law, a statute that police departments relied on for four decades to keep disciplinary records and other police files secret. Police unions had waged successful court battles to expand the scope of the law to thwart reporters, civil liberties groups, and families of people killed by police from discovering nearly anything about officers' history. A 2018 report by the New York City Bar concluded that 50-a "has been interpreted so broadly that police misconduct in New York State is more secretive than any other state in the nation."
But as Reason reported last year, despite the repeal those records are still hidden in many jurisdictions due to ceaseless stonewalling from police departments. The NYCLU was litigating about a dozen different public records lawsuits against state and local law enforcement agencies for their misconduct records. It filed a suit against the New York State Police in July of last year after the department refused to turn over most of the records the NYCLU sought.
The NYSP argued that it would be unduly burdensome to locate the records. It did release a spreadsheet of complaints against troopers but redacted their names.
The NYSP gave the same treatment to local news outlets, but several found workarounds. When the NYSP refused to hand over disciplinary records to two reporters from The Buffalo News, the reporters instead asked a local district attorney's office, which dutifully complied with the law. The records showed that troopers were rarely fired, even for conduct like interfering with investigations, drunk driving, and intentionally crushing a man's eyeglasses.
Buffalo's ABC 7 News also obtained New York State Police misconduct records from a local district attorney. Those records revealed light punishments, such as a trooper who "took pictures in his State Police uniform with his genitalia exposed, losing five vacation days in 2008 and had sex on the job two years later, leading to an eight day suspension."
As The Buffalo News detailed in an editorial, police unions, rather than expressing chagrin, howled that the publication of such information was unfair. The New York State Police Investigators Association declared, "We do not and will not support sharing personal information with the public that is not relevant to any criminal proceeding." It also warned that publishing such records could "encourage more anti-police violence." The New York State Troopers Police Benevolent Association said it "condemns the recent so-called reporting by local media outlets gossiping about the disciplinary records of New York State Troopers."
The judge did not rule on whether the NYSP can continue to redact officers' names, but Hodgson says the NYCLU will continue to litigate that issue as well.
The Police Benevolent Association of the New York State Troopers, which intervened in the lawsuit on behalf of the NYSP, did not immediately respond to a request for comment.
The post Judge Rules New York State Police Must Disclose Misconduct Records appeared first on Reason.com.
]]>It's Sunshine Week—the week when reporters complain more than usual about government stonewalling and the government brags that it doesn't stonewall quite as often as it used to.
Sunshine Week intentionally coincides with the birthday of President James Madison, who wrote in 1822, "A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy."
To mark the event, the Justice Department announced that it was updating its guidance to federal agencies on applying the Freedom of Information Act (FOIA), the landmark law that guarantees public access to government records. Specifically, the Justice Department clarified how agencies should apply a presumption of openness and the "foreseeable harm" standard, which was codified into law in 2016. These standards were supposed to direct agencies to release public records, even when an exemption could apply, unless it foresees that disclosure would harm an interest protected by one of the nine FOIA exemptions.
"The guidelines make clear that the Justice Department will not defend nondisclosure decisions that fail to apply such a presumption," Associate Attorney General Vanita Gupta said this week. "And the guidelines also emphasize the importance of proactive disclosures and removing barriers to accessing government information."
Someone should alert the federal Bureau of Prisons (BOP). The Reason Foundation, which publishes Reason, filed a FOIA lawsuit against the BOP earlier this year to pry free records of inmate deaths at two federal women's prisons that have been dogged by allegations of unconstitutional medical neglect. The BOP frivolously redacted conclusions of mortality reviews from one prison and simply failed to turn over any records from another.
Unfortunately, this is not an unusual problem. As Anne Weismann, a veteran FOIA litigator, wrote this week, while the FOIA is a powerful and vital law on paper, government delays and obfuscation have neutered it in practice. That's why Micky Dolenz of The Monkees is suing the FBI for records on himself (he's not monkeying around), and why Bloomberg News is suing to discover if former President Donald Trump actually issued a "standing order" declassifying the boxes of documents he schlepped to his Mar-a-Lago resort.
If you need more examples, the folks at the Electronic Frontier Foundation have collected the worst of government stonewalling at the federal, state, and local levels for their annual ignominious award series, The Foilies. You can read about the feds censoring paintings from Gitmo detainees and a small New Jersey town suing an elderly woman for filing too many records requests.
Even if you despise the media, you should be rooting for more government transparency. Some of the worst journalism happens when no one has hard evidence one way or another and the only sources are government press releases and anonymous officials. Take for example the months of speculation surrounding the death of U.S. Capitol Police Officer Brian Sicknick, all of which was enabled by erroneous government statements and the fact that Capitol Police records and autopsy reports were confidential. As I wrote then, "In a vacuum of primary sources, bullshit will prevail. If you want faster, more accurate reporting, demand better public record laws and more transparency from officials."
The power-hungry demagogues and partisan pundits trying to tear this country apart dream of a perfectly fact-free environment where anything can be claimed and nothing can be confirmed. Strong public record laws are the antidote to the farces and tragedies they would inflict.
The post Want Better Journalism and Less B.S.? Demand Stronger Public Record Laws. appeared first on Reason.com.
]]>Classified documents are found in former President Donald Trump's home!
Democrats were outraged! Trump is guilty of "mishandling of some of our nation's most sensitive secrets" creating "a national security crisis!" said MSNBC's Chris Hayes and Nicole Wallace.
Then President Joe Biden got caught.
Suddenly conservatives were upset.
"Thanks to Joe Biden," said Sean Hannity, "America's most sensitive secrets were floating around."
But both sides were wrong.
The truth is, the word, "classified" means little. Our bloated government now classifies three things every second.
If you stacked up all the classified paper in Washington, the stacks would be taller than 26 Washington Monuments.
In my new video, Matthew Connelly, author of The Declassification Engine, explains that "as much as bureaucrats know they're only supposed to classify information that's really important, they end up classifying all kinds of nonsense….Even like telling a friend, 'Let's go have coffee.' They'll end up classifying that email as top secret."
Former CIA Director Mike Hayden once got a classified email saying "Merry Christmas."
For years, government classified how much peanut butter the Army bought. They classified a description of wedding rituals in Dagestan. They even classify newspaper articles.
They are especially eager to classify dumb things they do, like the Army's reported experiments testing whether "psychics" could kill people with their eyes.
"A lot of what the government keeps secret, they keep secret simply because it's embarrassing," says Connelly.
Occasionally, government tries to reduce the overclassification.
Presidents Richard Nixon, Jimmy Carter, Bill Clinton, and Barack Obama all pledged to reduce the excess.
"Not in one case did they actually reduce the rate at which our government was creating secrets," says Connelly. "In fact, the amount of secrecy only increased."
I'm not surprised. In government, butt-covering and status matter more than efficiency.
I say to Connelly, "I would imagine bureaucrats think, 'Ooh, if I label this classified, I'm more important.'"
"In Washington," he answers, "many officials won't even look at something unless it's classified."
And classifying something needlessly has no downside.
"In all my years of research," says Connelly, "I've never found a single instance of anybody being fired for overclassifying something."
With so much unimportant but "classified" paper around, it's no surprise that some ends up in officials' homes.
After Trump and Biden were caught, classified documents were found at the home of former Vice President Mike Pence. In 2014, Hillary Clinton was caught sending emails that included classified information. Former CIA Director David Petraeus gave classified papers to his mistress for a book she was writing.
Connelly is upset that these people act as if government documents are their personal property. Some of Biden's documents were found in a folder labeled "personal."
"I'd like to know who thought that this was his personal property?" Connelly says. "These are our property. These records are our history."
Ordinary people who take records home go to jail. A Navy veteran who took top secret documents got three years in in prison. An ex-CIA contractor who kept classified documents in his home was sentenced to three months.
I bet that won't happen to Biden or Trump.
America's first "top secret" was the D-Day landing. It succeeded partly because Hitler didn't know exactly where the troops would land.
The second was the atomic bomb.
"We have to keep secrets," says Connelly. "But when we create tens of millions of new secrets every year, it's impossible to identify and protect the things that really do have to be protected."
COPYRIGHT 2023 BY JFS PRODUCTIONS INC.
The post The Real Political Scandal Is That Too Many Documents Are Classified appeared first on Reason.com.
]]>Last August, the FBI searched former President Donald Trump's home at Mar-a-Lago, his Palm Beach resort, looking for classified documents. Last Friday, the FBI searched President Joe Biden's home in Wilmington, Delaware, looking for classified documents.
Both searches were unprecedented, and both turned up secret material stored in unauthorized locations. While the circumstances that led to the searches were starkly different, the broad parallels between the two investigations, each of which has been assigned to a special counsel, complicate already fraught decisions about whether Trump's retention of government records justifies criminal charges. They also raise the question of how common such sloppiness is and what it says about a system that is ostensibly aimed at protecting national security.
The 13-hour search of Biden's house, which the president's lawyers suggested after it became clear that no one had any idea how many secret records he may have retained or where exactly they were located, discovered half a dozen classified documents, including material dating to his time as a U.S. senator. That was in addition to "roughly 10" classified records discovered in Biden's former think tank office last November, "a small number" found in the garage of his Wilmington house and an adjacent room in December, and several more found in his home library on January 11 and 12.
Two weeks ago, after CBS News broke the story of the documents in Biden's former office, the president said he had been "surprised" to learn about those records last fall. Last Thursday, after news reports revealed that additional classified material had been found at his house in Wilmington, Biden minimized the import of that development.
"We found a handful of documents were filed in the wrong place," Biden told reporters. "We immediately turned them over to the [National] Archives and the Justice Department….I think you're going to find there's nothing there….There's no there there."
At that point, it was clear that the number of classified documents "in the wrong place" exceeded "a handful." And the next day, the FBI found six more. Contrary to Biden's assurances, there was something there: a pattern of carelessness belying Special Counsel to the President Richard Sauber's claim that Biden "takes classified information and materials seriously."
Sauber emphasized that Biden's transgressions were unintentional. "We are confident that a thorough review will show that these documents were inadvertently misplaced," he said, "and the president and his lawyers acted promptly upon discovery of this mistake."
Trump, by contrast, took thousands of government documents, including 325 marked as classified, when he left office, and he persistently resisted returning them, apparently because he considered them his personal property. That resistance included months of wrangling with the National Archives and Records Administration and incomplete compliance with a federal subpoena, which culminated in the FBI's August 8 search of Mar-a-Lago.
Unlike last week's visit to Biden's house, the Mar-a-Lago search was not consensual. It was authorized by a warrant that a magistrate judge issued after concluding that there was probable cause to believe the FBI would find evidence that Trump or his representatives had committed federal crimes. Specifically, the FBI cited statutes that make it a felony to remove or conceal government documents, retain "national defense information," and obstruct a federal investigation.
So far there is substantially more evidence to support an inference of criminal intent in Trump's case, although proving that is by no means a slam dunk. If Biden "inadvertently" mishandled the government's secrets, he would not be guilty of "willfully" retaining "national defense information." And the proactive cooperation that Sauber highlights, unlike Trump's stubborn foot-dragging and possibly deliberate defiance of a federal subpoena, does not look like obstruction.
Federal law also makes it a felony to permit the removal of national defense information from "its proper place of custody" through "gross negligence." While that seems like a more apt description of what Biden did, the Justice Department has previously declined to prosecute former federal officials under that provision for careless handling of classified material.
Alberto Gonzales, for example, improperly took classified material, including top-secret notes deemed "sensitive compartmented information," home with him while serving as President George W. Bush's attorney general. According to a 2008 report from the Justice Department's Office of the Inspector General, Gonzales "mishandled classified materials regarding two highly sensitive compartmented programs." He "took his classified handwritten notes home and stored them there for an indeterminate period of time." He also "stored other highly classified documents about the two compartmented programs in a safe at the Department that was not located in a SCIF [sensitive compartmented information facility]."
The Justice Department nevertheless concluded that criminal charges were not appropriate. It considered two potentially relevant statutes: 18 USC 924, which covers someone who "knowingly removes" classified material, and 18 USC 793 (f)(1), which addresses "gross negligence" in the handling of "national defense information."
In a recent Just Security essay, New York University law professor Andrew Weissman and two co-authors argue that the Gonzales precedent bodes well for Biden. "Because DOJ must seek to treat like cases alike," they write, "the Gonzales declination appears to be a precedent that will weigh heavily in favor of DOJ closing its Biden investigation without a charge."
The same could be said of the FBI's conclusion that it was not appropriate to prosecute Hillary Clinton for using a private email server as secretary of state. While then–FBI Director James Comey criticized Clinton's "extremely careless" handling of "very sensitive, highly classified information," he said prosecuting her would be inconsistent with the Justice Department's past practices.
"Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case," Comey said. "All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here."
As Reason's J.D. Tuccille notes, people in positions of power seem to get softer treatment even when they intentionally divulge government secrets. But the distinction that Comey drew between carelessness and "willful mishandling" helps explain why people like Gonzales and Clinton escape prosecution while whistleblowers who deliberately leak classified information do not. Applied consistently, that distinction should rule out prosecuting anyone guilty of similar lapses, regardless of his rank, fame, or political influence.
Contrary to Biden's claim, however, none of this means "there's no there there." He cannot consistently maintain that the classification system is vitally important to protecting national security and that "inadvertently" violating its rules is no big deal, a mere clerical error involving documents that were "filed in the wrong place." That certainly was not Biden's take on Trump's handling of classified records, which he called "totally irresponsible" a couple of months before his own trove was discovered.
Even granting the differences between what Trump did and what Biden did, in terms of both volume and attitude, the only way Biden can escape similar criticism is by arguing that it does not really matter if classified material he handled ended up where it was not supposed to be, intermingled with personal records and mementos. But if that's true, either because the documents were classified for no good reason or because they remained classified long after the original rationale no longer applied, the whole system begins to look like a joke.
Biden's retention of classified material from his time as vice president went unnoticed for six years, while one or more secret documents that he came across as a senator remained in his private possession more than twice as long. How many classified records might be discovered in the homes or offices of other former federal officials if anyone bothered to search for them? And do those overlooked documents pose a real threat to national security, or only to the idea that the classification system should be taken seriously?
The post 'There's Nothing There,' Biden Said the Day Before the FBI Found More Classified Documents in His House appeared first on Reason.com.
]]>In this week's The Reason Roundtable, editors Matt Welch, Katherine Mangu-Ward, Peter Suderman, and Nick Gillespie consider the revelation that, like former President Donald Trump, President Joe Biden also had a stash of classified documents in his private office and residence.
0:23: President Biden also had classified materials in his house
10:35: House GOP introduces the Curriculum Review of Teachings, or CRT, Transparency Act
31:33: Weekly Listener Question:
I have long held what I consider to be a libertarian position on college admissions and affirmative action: that private colleges ought to be able to control their own admissions policies and that those who don't like those policies can seek admission elsewhere. I am somewhat surprised that I do not find any libertarians making this argument. It seems to me that if the Supreme Court makes a determination that affirmative action is illegal, as well as other types of arguably discriminatory admissions policies such as preferences for alumni and attempts to achieve geographic diversity in the student body, then we are in for a tsunami of lawsuits in which every damn college applicant in the country who is turned down by her top college pick will argue that she was the victim of discrimination. Where does it end? I'm an alumnus of Wesleyan University. I always accepted that racial diversity is a laudable goal in assembling a student body, as is geographical diversity (although I read recently that a desire for geographic diversity is just a scheme to keep out Jews; I didn't know I was antisemitic), or a distribution of interests in the arts versus the sciences, or a wide variety of extracurricular activities. So it touched my heart when today's New York Times ran a headline, "If Affirmative Action Ends, College Admissions May Be Changed Forever," with a picture of my dear old alma mater, Wesleyan. What does the panel think? By what logic are the details of private college admissions policies a matter for the courts? How does the Constitution say that the courts need to make these decisions? How did we get here? And again, where will it all end?
47:21: This week's cultural recommendations
Mentioned in this podcast:
"With Classified Documents, the Real Divide Is Between the Powerful and the Rest of Us," by J.D. Tuccille
"Biden Looks Careless, Shady, and Hypocritical After the Revelations About His Handling of Classified Material," by Jacob Sullum
"Like Trump, Biden Had a Private Stash of Secret Documents, but It Was Much Less Impressive," by Jacob Sullum
"The Redacted Mar-a-Lago Search Warrant Affidavit Sheds Light on the FBI's Concerns and Trump's Defense," by Jacob Sullum
"Corey DeAngelis: How COVID Has Changed the Face of Education Forever," by Nick Gillespie
"Florida All in for Assault on Academic Freedom," by Keith E. Whittington
"Chris Rufo's Battle To 'Stop Woke'," by Zack Weissmueller and Nick Gillespie
"Time To End Affirmative Action? Live With David Bernstein and Kenny Xu," by Zach Weissmueller and Nick Gillespie
"Want To Stop School Book Battles? Give Parents Real Choice in Education," by Nick Gillespie
Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.
Today's sponsor:
Audio production by Ian Keyser
Assistant production by Hunt Beaty
Music: "Angeline," by The Brothers Steve
The post Yet Another Shady, Hypocritical Document Hoarder appeared first on Reason.com.
]]>Was President Joe Biden more irresponsible than President Donald Trump in mishandling classified documents? Should one be prosecuted? Both? Neither?
Let D.C. denizens hash out the treatment doled out to representatives of competing political factions over their ability to keep government secrets. The real divide is between the consequences faced by the powerful and those inflicted on the rest of us. Whatever happens to rival members of the political class, you and I would certainly face harsher punishment for breaking the rules regarding classified documents.
"Worth noting that the President seems to have absconded with more classified documents than many whistleblowers. For comparison, Reality Winner was sentenced to 5 YEARS for just one document," whistleblower Edward Snowden commented last week as attorneys and journalists were comparing the current president's cache of illicitly retained classified material with that of his predecessor. "Meanwhile Biden, Trump, Clinton, Petraeus… these guys have dozens, hundreds. No jail."
That's exactly right. Back in 2018, the U.S. Department of Justice boasted of the harsh sentence handed to Reality Winner, a former National Security Agency contractor, for sharing an intelligence report on Russian hackers' attempts to infiltrate U.S. voter registration systems prior to the 2016 elections.
"Reality Winner, 26, of Augusta, Georgia, was sentenced today to five years and three months in prison for removing classified national defense material from a government facility and mailing it to a news outlet," the Justice Department trumpeted. "Evidence presented at the change of plea hearing established that on or about May 9, 2017, Winner printed an intelligence report that was classified at the TOP SECRET//SCI level, and she removed it from the facility where she worked."
True, Winner didn't just take the report; she passed what she considered a matter of public importance to journalists. But that wasn't very different from the actions of David Petraeus, a retired four-star general and then CIA director who shared classified info with his biographer/girlfriend. He was charged in 2015 "with one count of unauthorized removal and retention of classified material," according to the Justice Department. His actions were treated with a lighter touch than Winner received.
"Former CIA Director David Petraeus, whose career was destroyed by an extramarital affair with his biographer, was sentenced Thursday to two years' probation and fined $100,000 for giving her classified material while she was working on the book," CBS News reported at the time.
Petraeus' relatively lenient treatment came before Winner's case. But former State Department employee Stephen Jin-Woo Kim was serving 13 months in prison at the time for similarly leaking classified information to a reporter. The investigation that led to his arrest was so over-the-top the Justice Department was compelled to rein in (at least for public consumption) surveillance of journalists.
"General Petraeus is admitting to disclosing NDI [national defense information] that was at least as serious and damaging to national security as anything in Mr. Kim's case," his attorney, Abbe Lowell, wrote to the Justice Department in 2015. "As we said at the time of Mr. Kim's sentencing, lower-level employees like Mr. Kim are prosecuted under the Espionage Act because they are easy targets and lack the resources and political connections to fight back. High-level officials (such as General Petraeus and, earlier, Leon Panetta) leak classified information to forward their own agendas (or to impress their mistresses) with virtual impunity."
Panetta? Yes, he too was a bit loose-lipped while serving as CIA director.
"Former CIA Director Leon Panetta revealed the name of the Navy SEAL unit that carried out the Osama bin Laden raid and named the unit's ground commander at a 2011 ceremony attended by Zero Dark Thirty filmmaker Mark Boal," Politico reported in 2013. "Panetta also discussed classified information designated as 'top secret' and 'secret' during his presentation at the awards ceremony, according to a draft Pentagon inspector general's report."
Panetta faced no legal consequences. But there's no reason he would have expected anything more than a slap on the wrist. The favorable treatment accorded the powerful relative to the harsh punishments inflicted on regular people for disclosing classified information were an issue long before Teams Blue and Red started playing "gotcha" over the treatment of government secrets.
"Government officials regularly discuss sensitive, even classified, information with reporters," Matt Apuzzo of The New York Times pointed out while discussing the disparate punishments for Petraeus and Kim. Whether or not those disclosures are punished has a lot to do with power and status.
"Over the past 20 years, dozens of military and civilian employees of the U.S. government have been punished for taking classified documents home from work without authorization," Walter Pincus and Vernon Loeb wrote in 2000 for The Washington Post. "But few of these incidents have been made public, and the penalties have been extremely inconsistent, according to current and former federal officials."
Military personnel faced legal penalties much tougher than those enforced against civilian government employees, the reporters found. And the higher you were in the hierarchy, the safer.
"There is a double standard. The more senior you are, the less chance you pay a heavy penalty," a former senior intelligence official told the Post.
The government's tendency to wildly overclassify innocuous documents or information the public has every right to know is an additional, but related, problem.
"When government information is improperly classified—particularly when the information could be embarrassing or reveal misconduct—it creates an added incentive for government employees to leak it, and the increased volume of classified information makes government secrets harder to keep," the Reporters Committee for Freedom of the Press warned in 2019.
Once again, those lower on the totem pole are most likely to face consequences for revealing, or merely "mishandling," documents classified as a matter of habit or to prevent high officials from looking bad. The high officials themselves will most likely get a pass, or a slap on the wrist payable out of their next consulting fee, for similar or more egregious revelations.
So pay less mind to debates over the relative handling of powerful political faction leaders when they take liberties with government documents. That's more their concern than yours. The real divide is in the difference separating the lenient treatment those powerful people can expect from the harsh penalties they would happily inflict on you.
The post With Classified Documents, the Real Divide Is Between the Powerful and the Rest of Us appeared first on Reason.com.
]]>In addition to the "small number" of classified documents in President Joe Biden's former think tank office, it turns out, he had a "small number" in the garage of his house in Wilmington, Delaware, plus one more in a room adjacent to the garage.* These were Obama administration records that Biden came across during his time as vice president, and they were definitely not supposed to be in those locations. What had initially seemed like a single lapse now looks like a pattern of carelessness, which creates several problems for Biden and the Justice Department.
First, Biden is no longer in a position to criticize Donald Trump's "totally irresponsible" handling of sensitive material that he retained when he left office. Second, the delay in acknowledging Biden's retention of classified records and obfuscation of its scope look like blatant attempts to minimize the political fallout. Third, a criminal prosecution of Trump for his handling of the government documents he took to Mar-a-Lago, which was always an iffy proposition, now seems doomed for political as well as legal reasons.
That is not to say there are no meaningful differences between what Trump did and what Biden did. Based on what we know so far, Trump's stash, which included 325 classified documents along with thousands of unclassified government records, was much larger than Biden's. And unlike Biden, Trump persistently resisted returning the documents, apparently because he considered them his personal property. That resistance included months of wrangling with the National Archives and Records Administration and incomplete compliance with a federal subpoena, which culminated in the FBI's August 8 search of Mar-a-Lago.
Then again, Biden kept classified records in unapproved locations for six years, while Trump managed to do that for about a year and a half. Biden said he was "surprised" to learn last fall about the documents in his former office. Biden "takes classified information and materials seriously," said Richard Sauber, the "special counsel to the president" who is overseeing the White House's response to the case of the misplaced secrets. "We are confident that a thorough review will show that these documents were inadvertently misplaced, and the president and his lawyers acted promptly upon discovery of this mistake."
The timing of these embarrassing revelations does not reflect well on Biden. Sauber said Biden's lawyers discovered the classified records at the think tank on November 2, six days before the midterm elections. But the White House did not acknowledge that discovery until January 9, and then only after CBS News reported that Attorney General Merrick Garland had asked John R. Lausch Jr., the Trump-nominated U.S. attorney for the Northern District of Illinois, to look into the matter. Even then, the White House did not mention the subsequent discovery of classified documents in Wilmington, which happened in December. That detail came out yesterday, again thanks to news reports that the White House then confirmed.
It is understandable that Biden did not want this story to break in early November, when it might have affected his party's performance in the midterms. It is also understandable that he would want to minimize the extent of his transgressions. But in the end, the lack of candor and transparency made him look cynical and shady as well as hypocritical.
Yesterday a reporter asked White House Press Secretary Karine Jean-Pierre about the delay in acknowledging the documents found in Wilmington, wondering whether the White House is "being transparent about that if that was already known and not discussed up front." Jean-Pierre did not want to answer that question, so she answered a different one:
You said "transparent." I want to say that we have been transparent here. That is why the minute that his lawyers found those documents, they reported it. They reached out to the Archives and the Department of Justice. And they did that voluntarily. And they were not compelled to do it.
It did not help that Sauber called the records found at the think tank "documents with classified markings," which was reminiscent of the weaselly way Trump's lawyers have described the Mar-a-Lago documents. Sauber's phrasing implied that maybe the records Biden kept, despite their markings, were not actually classified, the dubious claim that Trump repeatedly has made about the records he kept.
During an exchange with the president yesterday, a reporter noted that Biden was keeping "classified material next to your Corvette" and wondered, "What were you thinking?" Biden's response: "My Corvette is in a locked garage. OK? So, it's not like they're sitting out in the street."
Trump has a similar defense. The classified documents at Mar-a-Lago were not "sitting out in the street" either. The FBI found most of them in a locked storage area.
Garland, who previously had charged one special counsel, Jack Smith, with handling the investigation of the documents that Trump kept, has now appointed another special counsel, Robert Hur, to oversee the investigation of the documents that Biden kept. Smith was acting U.S. attorney for the Middle District of Tennessee during the Trump administration. Hur was the Trump-appointed U.S. attorney for Maryland from April 2018 to February 2021.
By appointing Smith and Hur, Garland aimed to address conflicts of interest and enhance the credibility of both investigations by making them quasi-independent. But the ultimate decision of whether to bring charges still lies with the man Biden chose as his attorney general.
Trump has already announced that he is running for president in 2024. If he wins the Republican nomination, his opponent is likely to be Biden, who has said it is his "intention" to seek reelection. In these circumstances, it is hard to imagine a scenario in which Garland can credibly decide to prosecute Trump but not Biden.
I am not saying there are no legally relevant differences between the two cases. At this point, there is considerably more evidence to support an inference of criminal intent in Trump's case. That applies to all three potential charges that the FBI mentioned in its Mar-a-Lago search warrant affidavit: removing or concealing government documents, retaining "national defense information," and obstructing a federal investigation.
But all three charges include mens rea elements that will be hard to satisfy even in Trump's case. Based on what we know so far, it is plausible that Trump's conduct can be explained by a combination of ignorance, arrogance, stubbornness, laziness, and carelessness rather than criminal intent.
Even if Smith turns up more evidence that Trump "willfully" mishandled documents or deliberately obstructed the FBI's investigation, prosecuting him while giving Biden a pass is bound to be perceived as unfair, inconsistent, and politically motivated. Trump's supporters surely would see it that way, and so would many Americans who have no particular allegiance to him and might even be inclined to vote for Biden in 2024.
To avoid the firestorm that such a decision would ignite, Garland could let Smith and Hur lay out their findings, make a show of carefully weighing them, and then decide there is not enough evidence in either case to prove criminal charges beyond a reasonable doubt. That might even turn out to be true.
*Update: On Saturday, Sauber said the classified material found in "a room adjacent to the garage," originally described as a single page, included five additional pages. It consisted of more than one document.
The post Biden Looks Careless, Shady, and Hypocritical After the Revelations About His Handling of Classified Material appeared first on Reason.com.
]]>Lost in the incredibly expensive fight over how many billions of dollars the federal government can waste is any number of more modest bills—some of which wouldn't add to our nation's debt and would help protect Americans from that very expensive government.
Consider the PRESS Act—officially the Protect Reporters From Exploitative State Spying Act. The PRESS Act is intended to stop the federal government from attempting to force journalists to divulge the identities of anonymous sources, like government whistleblowers. There are exceptions if the government can show that disclosing the identity of the source is necessary to identify a terrorist or to prevent violent crime or crime against a child.
More importantly, the bill also prevents federal agencies from bypassing the above protections by turning to third-party service providers (like messaging apps or social media platforms) to get the journalist's communications. Again, there's an exemption for threats of imminent violence, and there's a process involved that requires a subpoena and a court hearing. Essentially, it would serve as a federal "shield law." Nearly every state has some sort of law that stops journalists from being forced to reveal sources, but there is currently no federal version.
The bill was introduced in the House by Rep. Jamie Raskin (D–Md.) and sailed through entirely by a voice vote. But in the Senate last week, where it was sponsored by Sens. Ron Wyden (D–Ore.) and Mike Lee (R–Utah), an attempt to get it passed by unanimous consent during the lame duck session was derailed by Sen. Tom Cotton (R–Ark.). He objected on national security grounds, going so far as to use the release of the Pentagon Papers by Daniel Ellsberg, which revealed secrets of America's handling of the Vietnam War, as an example of why it's actually bad to protect journalism and journalists from government authority or prosecution.
"This essentially will grant journalists special legal privileges to disclose sensitive information that no other citizen enjoys," Cotton said.
But Cotton is wrong just on the facts. Journalism is a career for some, but it's also an activity or action that everybody can perform. The PRESS Act defines a journalist as a person who "regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public." The bill uses a similar definition for journalism itself. It does not require a person to be employed by a media outlet as a reporter to claim its protections. Anybody who performs the act of "journalism," even if he's not paid and even if he has political biases or agendas, is protected by the law.
Given the state of the media today and the decline of Americans' trust in the press, it's tempting to buy into critiques that the last thing we need is to give journalists greater privileges and powers. It's also not a new line of attack—Reason's Matt Welch took note of anti-press sentiment back in 2005 with Judith Miller, who spent 85 days in jail for refusing to reveal that Scooter Libby leaked to her the identity of CIA officer Valerie Plame.
Don't succumb to such short-sighted thinking about who is actually served by media protections. Who are the actual beneficiaries when press shield laws stop the government from forcing journalists into revealing their sources? Who were the beneficiaries of the leaking and publishing of the Pentagon Papers? It's the American public that gains the most when the government's power to punish anybody who engages in journalism is restricted. It's the public that gains when sources can turn to journalists and reveal the truth of what the government is keeping secret.
Cotton's position about the release of the Pentagon Papers and his general support of the security state is anti-democratic and anti-liberty, treating American citizens as though their need for information is subservient to whatever the federal government and military desire. Americans—not just foreign enemies—are being deprived of important information about what their own government is doing.
"This bill is a no-brainer to protect free press in America, but I'm not giving up. I'm going to keep fighting until we get this across the finish line," Wyden tweeted after Cotton blocked the bill. Wyden's office did not respond to a call from Reason for an update on the bill's status.
The current (sometimes miserable) state of the press shouldn't distract from the fact that we all benefit from press shield laws, as they help journalists reveal to the public what people with power are doing. This bill is particularly good because it protects not just "professional" journalists who work for major media outlets, but anybody who engages in the act of journalism.
The post A New Federal Press Shield Bill Falters Just Before the Finish Line in Congress appeared first on Reason.com.
]]>Drone footage of an American military strike in Kabul in August that killed 10 civilians (seven of whom were children) shows that children were nearby in the moments leading up to the explosion.
The New York Times today published clips of 25 minutes of footage from two drones, MQ-9 Reapers, showing the strike. The newspaper sued under the Freedom of Information Act to get the footage. The August 29 strike, right as the United States was pulling the last of its troops out of Afghanistan, was called on a man military intelligence believed was an Islamic State terrorist plotting to bomb the airport, and they believed they were hitting a terrorist compound when they struck his car.
The military intelligence was all incorrect. The man they had been following was Zemari Ahmadi, a civilian worker for a California-based food aid organization. The "compound" he had parked the car in as the drone struck him was a home full of family and children.
We still don't know why the military incorrectly thought Ahmadi was a terrorist, and this drone footage unfortunately does not provide clarity. But the footage from both drones shows that children were nearby at the time of the strike. One view from directly above is less clear—black-and-white footage showing heat sources—but there still seem to unmistakably be small bodies moving around near the car just before the strike. A second drone nearby shows higher resolution footage, where it's much more clear that children were in the alleyway by the house just prior to the strike.
That the strike happened anyway is apparently part and parcel for how the military has used drones in the War on Terror. It's why whistleblowers have been warning us all along that the U.S. has been misleading us by claiming these strikes are precise, and capable of taking out terrorists without collateral damage.
The footage certainly reinforces the analysis The New York Times published in December that determined that not only has the military dramatically under counted the number of civilians killed by drone strikes in Afghanistan, Iraq, Somalia, Syria, and other countries, it also seems to have very little interest in analyzing what causes strikes to go bad and has done a poor job of analyzing its failures. Furthermore, it was operational policy for the military to call for drone strikes even when children were present if officials could argue that there was an important "military advantage" gained by the strike.
So even if military intelligence saw the same thing we can all see in the footage, their underlying assumption that Ahmadi was transporting bombs for an attack on the airport may well have overruled any concern for the nearby children.
If nothing else comes from this horrible disaster of a drone strike (the Pentagon has concluded that proper procedures were followed—despite the horrific outcome—and nobody will be disciplined), Americans will understand now that we were all sold a complete lie about how military drones were to be and are used. Hopefully, this video comes to mind the next a government official brings them up as a better form of military intervention.
The post Released Video Footage Shows Disastrous U.S. Drone Strike That Killed Kabul Family appeared first on Reason.com.
]]>A federal judge has sentenced a leaker to prison for helping keep Americans informed about abuses being perpetrated in their name.
Daniel Hale is a former Air Force intelligence analyst who revealed how America's secret drone assassinations in Afghanistan, Yemen, and Somalia were likely killing untold numbers of innocent people. On Tuesday he was sentenced to 45 months in prison after he previously pleaded guilty to passing along classified documents to a reporter that were subsequently published in 2015.
It's widely believed that Jeremy Scahill of The Intercept was the recipient of those documents, though The Intercept will not confirm.
Hale's leaks were intended to show that the drone assassinations under President Barack Obama were not what the American public believed them to be. The government insisted that its secret "kill list" of terrorists was carefully vetted, and the drone strikes were only deployed to kill those the government and military believed it was unfeasible to arrest.
The reality, Hale revealed, was the drone strikes regularly resulted in the death of innocents, and the government covered it up by automatically classifying anybody killed as "militants" even when they weren't the targets of the strikes. This allowed the government to insist that civilian casualties were being kept to a minimum.
The documentation Hale provided was published as "The Drone Papers" by Scahill and later as part of a book titled The Assassination Complex.
The feds finally caught up with Hale in 2019 and arrested him, charging him with espionage. After the arrest, Hale pleaded guilty and essentially threw himself at the mercy of the court, acknowledging that he violated the law while refusing to apologize for it. In a lengthy handwritten letter to U.S. District Judge Liam O'Grady, Hale described an incident where a drone strike he helped arrange failed to kill its target (an Afghan man allegedly involved in making car bombs) and instead killed his 5-year-old daughter. He wrote, "Now, whenever I encounter an individual who thinks that drone warfare is justified and reliably keeps America safe, I remember that time and ask myself how I could possibly believe that I am a good person, deserving of my life and the right to pursue happiness."
Remarkably, despite informing the American public that our drone strikes were killing innocent people, prosecutors attempted to argue that Hale's leaks were to boost his own ego and put Americans at risk.
"Hale did not in any way contribute to the public debate about how we fight wars," Assistant U.S. Attorney Gordon Kromberg said. "All he did was endanger the people who are doing the fighting." The Justice Department sought a nine-year sentence for Hale.
Fortunately, O'Grady didn't fully buy Kromberg's argument, but he did tell Hale that he could have been a whistleblower and spoken out against the drone tactics without stealing and leaking the documents.
O'Grady has a pretty naive attitude toward how whistleblowers in the United States in recent years have actually affected change. The documentation is important, and it's abundantly clear that leaving it to the government officials themselves to validate whether they exist won't accomplish much.
There were stories that hinted at the federal government and the National Security Agency misusing the PATRIOT Act to engage in massive secret domestic collection of Americans' communications years before Edward Snowden leaked documents to Glenn Greenwald. Back in 2006, a lawsuit by the Electronic Frontier Foundation helped expose AT&T's Room 641A, where the NSA used technology to intercept and analyze online communications.
But when Snowden leaked a trove of classified documents in 2013 showing exactly how widespread this surveillance was, that actual evidence blew the doors wide open, and the American public was finally able to grasp how much of their personal information the own government was collecting.
The documentation matters. The Washington Post notes that Hale's leaking of documentation showing how the government put people on secret terrorism watchlists helped civil rights lawyers fight for due process for their clients.
Hale is yet another case where the federal government has used espionage laws not to punish spies who reveal classified information to our country's enemies, but to punish people who reveal the government's unethical and illegal behavior to our country's own citizens.
The post Daniel Hale Revealed America's Drone Assassinations to the Public. He's Been Sentenced to 45 Months in Prison. appeared first on Reason.com.
]]>The Chinese government has not been forthright about the origins of the novel coronavirus that sparked the ongoing global COVID-19 pandemic. On January 5, 2020, the World Health Organization (WHO) issued an emergency preparedness notification reporting that Chinese officials had alerted the agency to an outbreak of pneumonia of unknown cause in the city of Wuhan. The alert noted that "some patients were operating dealers or vendors in the Huanan Seafood market." The dominant narrative was that the virus most likely jumped from bats to humans (possibly via an intermediary species) at a wet market in Wuhan.
Doubts about the market being the initial source of the outbreak soon surfaced. Some articles in late January 2020 cited the possibility that the virus might have escaped by infecting a worker associated with the Wuhan Institute of Virology (WIV), a laboratory known to conduct research on coronaviruses. In April, the U.S. Office of the Director of National Intelligence issued a statement declaring that "the Intelligence Community (IC) also concurs with the wide scientific consensus that the COVID-19 virus was not manmade or genetically modified." However, in January 2021, the U.S. Department of State released a fact sheet that suggested, among other things, that the outbreak could have been "the result of an accident at a laboratory in Wuhan, China."
The fact sheet specifically noted that beginning in 2016, "WIV researchers conducted experiments involving RaTG13, the bat coronavirus identified by the WIV in January 2020 as its closest sample to SARS-CoV-2 (96.2% similar)." The fact sheet added that "the U.S. government has reason to believe that several researchers inside the WIV became sick in autumn 2019, before the first identified case of the outbreak, with symptoms consistent with both COVID-19 and common seasonal illnesses."
It is notable that on September 12, 2019, the main database of samples and viral sequences of the WIV was taken offline. In the meantime, Chinese officials were spreading the rumor that the virus may have actually been introduced into their country by the United States Army.
It isn't uncommon for pathogens to jump from animals to humans. For example, flu viruses have frequently crossed over from pigs and birds into humans. The Ebola virus leaped from bats into people. And earlier in this century, SARS and MERS—both caused by coronaviruses—were passed on to people by bats and camels. Nevertheless, the Chinese government's resistance to investigating the origins of the COVID-19 virus raised eyebrows.
As the pandemic spread across the globe, the Chinese government stymied the attempts of outside investigators to come to Wuhan to sift through relevant data. Finally, a team of WHO investigators was allowed to go to Wuhan in January and February, but their activities and access to data were considerably constrained. Nevertheless, at a February 9 press conference in Wuhan, the WHO team called the lab leak hypothesis "unlikely."
Unsatisfied with the WHO investigation, a group of researchers issued an open letter on March 4 calling for a full and unrestricted international forensic investigation into the origins of COVID-19. The WHO team, in their view, simply did not have adequate access to information to determine whether the outbreak was due to a natural spillover from an animal species or a laboratory/research-related incident.
Among the defects in the WHO investigation is that most of the fieldwork had to be conducted by the Chinese members of the team, with the results simply being communicated to the international members for review and discussion. Another is that reports had to be approved by consensus, meaning that the 17 members appointed by the Chinese government who comprised half of the WHO team have effective veto power over what will be ultimately reported. Further, the WHO investigators did not have access to lab records, data, and personnel that would have enabled them to confidently evaluate various hypotheses.
"Although the joint team investigation was a significant opportunity for the international community to gain some limited and highly curated information, it has unfortunately proven opaque and restrictive, greatly compromising the scientific validity of the investigation," notes the open letter.
The letter's signatories urge that a new investigation be launched involving a team that includes epidemiologists, virologists, wildlife experts, public health specialists, forensic investigators, and biosafety and biosecurity experts. The investigation should also grant the team full or significant access to all sites, records, samples, and personnel of interest.
Of course, the Chinese government has had many opportunities to permit such a full and unrestricted investigation. It is highly unlikely that the probe the signatories have called for will take place.
If the Chinese government won't come clean, then perhaps ours should, argued the Washington Post editorial board in a February op-ed. The op-ed notes, "The truth matters, and the United States should not hide any relevant evidence." That's entirely correct.
The post Researchers Call for 'Full and Unrestricted' Investigation Into COVID-19 Origins appeared first on Reason.com.
]]>On August 9, 2014, Darren Wilson, a former police officer with the City of Ferguson, Missouri, shot and killed Michael Brown. Following the shooting, St. Louis County Prosecuting Attorney Robert P. McCulloch announced that he intended to submit the matter to a grand jury for consideration. At the time, Doe was a grand juror serving in the circuit court for St. Louis County for a term originally scheduled to end on September 10, 2014. Following Brown's death, Doe's service was extended to January 2015, and the grand jury was tasked with investigating whether there was probable cause to believe Wilson committed a crime.
On November 24, 2014, the Wilson grand jury returned a "no true bill," and the jury was subsequently discharged. Immediately afterward, McCulloch held a press conference at which he delivered an oral statement and, in an unusual move, released some of the evidence and testimony presented to the grand jury, including transcripts, reports, interviews, and forensic evidence. The documents were redacted to keep secret the identities of the grand jurors, witnesses, and other persons connected to the investigation. The documents did not include any information concerning the grand jury's deliberations or any grand juror's vote on any charge. Six weeks later, Doe sued McCulloch in his official capacity … seeking both declaratory and injunctive relief because, she claimed, [Missouri grand jury secrecy statutes] violate the Free Speech Clause ….
In her complaint, Doe alleged that she had not recounted her experience or expressed her views concerning the Wilson case on account of her fears that she will face criminal penalties or contempt charges. She asserted that McCulloch mischaracterized the views of the grand jurors collectively toward the evidence, the witnesses' credibility, and the law, and as a result, she sought to correct the record. Doe also claimed that she would like to speak about the experience of being a grand juror, including the discrepancies she noticed in the procedures utilized by McCulloch in the Wilson case compared to others. Doe did not express a desire to discuss publicly the Wilson matter completely independently of her role as a grand juror, but instead she sought to pull back the curtain of the jury's secrecy to discuss a wide array of previously confidential matters that go to the heart of the grand jury's deliberations.
The court held that the traditionally recognized grand juror secrecy rules, which bar grand jurors from speaking out (even after their term of service was over) about what they learned in the grand jury, are narrowly tailored to a compelling state interest in grand jury secrecy, and thus pass the highly demanding "strict scrutiny" test. The court stressed that the laws do not "prevent[ Doe] from discussing anything concerning the Wilson matter other than the knowledge she gained of the evidence, witness identities, and deliberations in the context of her role as a grand juror."
I'm not sure whether I agree with the court's analysis—I'm inclined to say that it might have been better to treat a grand juror as a form of special-purpose government employee, and subject to special conditions binding government employees: "As to one who voluntarily assumed a duty of confidentiality, governmental restrictions on disclosure are not subject to the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public" (U.S. v. Aguilar (1995)). [UPDATE: My understanding is that, in practice, given the length of the grand jury term, grand jurors who don't want to serve are not required to serve, though if that's not so then the analysis I suggest might well not apply.] But in any event I thought our readers would be interested.
The post Restrictions on Grand Jurors' Speech Upheld … appeared first on Reason.com.
]]>A report released today by the Office of the Inspector General for the Department of Justice (OIG) warns that the problems found with the FBI's secret warrants to wiretap former Donald Trump aide Carter Page were not an anomaly. The agency regularly makes mistakes on its applications to the Foreign Intelligence Surveillance Amendment (FISA) Court when it asks for permission to secretly snoop on Americans.
Back in December, the OIG released a blockbuster report showing that FBI agents made a number of significant omissions and errors in their four warrant applications to snoop on Page in the hopes of determining if he was being unduly influenced by Russian officials during Trump's 2016 presidential campaign.
Inspector General Michael Horowitz was so bothered by the problems with the Page warrants that he declared that the OIG would perform a deeper audit to see if FBI officials were following proper procedures with their other secret FISA warrants.
The results of that deeper audit were published today and they don't look good for the FBI. The OIG report shows that the agency regularly neglects proper procedures when seeking FISA warrants.
The failing point appears to be adherence to the Woods procedures, a collection of policies implemented in 2001 to make sure that every fact and detail in a warrant application to the FISA court has been carefully vetted for accuracy and to document that process. The FBI failed to properly follow those procedures with Page. Based on this new report, it looks like this failing is a common problem.
How common? The OIG reviewed 29 FISA warrant applications. In 25 of them the OIG identified errors or "inadequately supported facts." In the other four, the OIG couldn't find the associated Woods files—records that document that the FBI agents did due diligence to verify factual accuracy—at all. In three of those cases, the OIG is not certain whether any Woods files even exist. So there's essentially a problem with every warrant application the OIG looked at for this audit.
The report notes that the OIG is not evaluating whether these errors or omissions were material mistakes that would or should have impacted whether the original warrants should have been granted. But that's not the point, and that's why this audit is so important. Because the FISA warrant process is so deliberately secretive, its oversight is limited to the FISA court, which depends on the FBI to be honest about the procedures it is supposed to follow. The FBI has a lengthy internal process to double-check warrant applications. This report notes that the internal processes have found close to 400 errors in 39 FISA warrant applications across the last five years. Inspector General Horowitz writes:
We do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy, or that the process is working as it was intended to help achieve the "scrupulously accurate" standard for FISA applications.
Horowitz recommends that the FBI put into place a system of examining past Woods procedures compliance problems to train FBI employees to do a better job. And he recommends that the FBI perform a "physical inventory" to make sure that there's a Woods file for every warrant application submitted to the FISA court.
After the Page warrant audit was released, FBI Director Christopher Wray released a 40-point plan to correct procedures within the department. In the FBI's official response to today's OIG report, FBI Associate Deputy Director Paul Abbate contends that the changes that Wray is already introducing, such as more checklists and training, will help fix these problems moving forward.
It's deeply disturbing that the OIG found problems with every single FISA warrant application it looked at. FISA warrants exist for the purpose of catching spies and terrorists, which is why so much secrecy is permitted. But mistakes and omissions in this secretive process have huge civil liberties implications for any citizen caught in the government crosshairs. Normally, citizens can turn to the courts for relief when warrants are misapplied. But that's not the case with FISA warrants.
Read the new OIG memo here.
The post The FBI Is Routinely Screwing Up FISA Warrants Targeting Americans appeared first on Reason.com.
]]>California Attorney General Xavier Becerra (D) has been openly making political hay out of suing President Donald Trump. He's filed more than 40 lawsuits against the Trump administration, targeting, among other things, federal environmental regulation changes, Department of Education policies on for-profit colleges, and, of course, everything Trump has done to try to scale back immigration into the United States or punish sanctuary cities.
One of those lawsuits is about the Department of Homeland Security's (DHS) lack of cooperation with a Freedom of Information Act request for documents detailing immigration enforcement practices. In brief, Becerra is suing to get access to records that might shed light on behavior he and others think might be abusive towards people within the state that are in the custody of federal law enforcement.
Meanwhile, Becerra, like several law enforcement agencies within the state, is essentially refusing to cooperate with new state rules that open records that detail investigations of police conduct and misconduct. California's attorney general wants to reveal federal DHS abuses, but is actively obstructing efforts to reveal bad behavior by law enforcement officers who serve California.
Last year, lawmakers passed SB 1421, a bill that amends public records laws to provide access to documentation about police officer conduct in a number of situations, such as when that officer killed somebody in the line of duty or fired a weapon; was found to have engaged sexual assault on the job; or when that officer had engaged in dishonest practices in the line of work (concealing or fabricating evidence, for example, or committing perjury). For decades, California law exempted such records from public view, making it next to impossible for citizens (and even prosecutors and defenders handling cases involving these officers as witnesses) to know details about officers who have histories of bad behavior.
After SB 1421 was implemented, law enforcement unions fought back, insisting that the law is not retroactive—that it only covers records from 2019 onward. This was not the intent of the bill's author, and right now judges across the state are hearing arguments on this matter. Becerra has apparently taken the side of the police unions and the California Department of Justice is refusing to release any records in its custody that detail police misconduct prior to 2019.
Becerra is now being sued by the state's First Amendment Coalition for refusing to disclose the relevant records. The same organization recently won in Contra Costa County against police unions trying to block the law's full implementation.
Becerra's protection of police misconduct doesn't stop there. A couple of journalists in Berkeley, California, got their hands on the state's list of law enforcement officers who have been convicted of crimes over the past decade. There's nearly 12,000 of them, and the details are being kept by the state so that law enforcement agencies can check the backgrounds of potential officers when they apply for jobs.
The journalists got these records in response to a public information request last month. You'd think that the criminal history of police officers would be a public record and certainly of public interest. But Becerra's response was extraordinary. He told the journalists that they did not have a right to see the list and furthermore his office threatened them with legal action unless they destroyed the records. The journalists have refused.
The East Bay Times takes note:
"It's disheartening and ominous that the highest law enforcement officer in the state is threatening legal action over something the First Amendment makes clear can't give rise to criminal action against a reporter," said David Snyder, executive director of the First Amendment Coalition, a San Rafael-based nonprofit that advocates for free speech and open records.
The documents provide a rare glimpse at the volume of officer misconduct at a time of heightened interest over police accountability. The list includes cops who trafficked drugs, cops who stole money from their departments and even one who robbed a bank wearing a fake beard. Some sexually assaulted suspects. Others took bribes, filed false reports and committed perjury. A large number drove under the influence of drugs and alcohol—sometimes killing people on the road.
An opinion piece at The Mercury News notes that unions representing police and prison correctional officers have spent more than $500,000 helping Becerra's re-election campaign last fall. He's insisting that this is all about caution—that the state faces lawsuits from police officers unless the court rules that the record disclosures are not retroactive.
On that front, there is continuing good news for fans of transparency. A Los Angeles judge ruled last week in favor of open government and media groups arguing that SB 1421 is retroactive, attempting to get access to records of both the Los Angeles Police Department and the Los Angeles Sheriff's Department. (Disclosure: Reason has requested discipline records for L.A. County Sheriff Alex Villanueva and has been denied thus far due to these court actions.) The unions are appealing, and it won't be a surprise if the case goes all the way up to the state Supreme Court.
The post California Wants Transparency From Trump, but Won't Release State Police Records appeared first on Reason.com.
]]>A highway patrol officer in South Dakota is using a law intended to protect the identity of crime victims to keep his or her name from being publicly released after shooting a suspect.
So-called "Marsy's Laws" are victim's rights regulations that, among other things, allow a crime victim to prohibit the release of information or records that could used to "locate or harass the victim or the victim's family." The first Marsy's Law was passed in California and enshrined in its state constitution. It has since spread to Illinois, Ohio, Montana, North Dakota, and South Dakota.
What on earth does a victim's rights law have to do with a police officer demanding to conceal his identity from the public? According to the Rapid City Journal, the officer in question shot 21-year-old Kuong Gatlauk following a confrontation during a traffic stop. According to the police report, Gatlauk made statements intending some sort of self-harm and fled from a police vehicle. In a confrontation, he apparently threw a beer can at the trooper and then tackled the trooper and tried to steal the trooper's gun, according to this report. The trooper was able to keep his gun and shot the suspect twice.
Because Gatlauk was subsequent charged with assaulting the trooper, the trooper is claiming the right under Marsy's Law to have his or her name kept confidential, even though this action happened in the course of public police work and much of the records involved are public records. The state's attorney general has agreed. South Dakota's Marsy's Law does not have any sort of exceptions for law enforcement.
As the Rapid City Journal notes, this is not the first time police officers have used the law to try to shield their names from disclosure. Several officers in North Dakota also used their version of Marsy's Law to conceal their names during the investigation of a police shooting.
The American Civil Liberties Union has been critical of Marsy's Laws, partly because of their vagueness and partly because they can jeopardize defendants' due process rights. In May, Jeanne Hruska, the policy director of the ACLU's New Hampshire chapter, warned:
Would it prevent the release of names or crime reports? Would it reduce the amount of information that press outlets are allowed to provide to the public regarding crimes? Could it give a victim and their attorney control over the limits of a victim's testimony at trial?
Too much of the Marsy's Law narrative is abstract, obscuring what the implications would be for our legal system. The multi-million dollar campaign that comes with Marsy's Law focuses on the intent of the law. But, well-meaning intent does not cure bad language. The concern over ambiguous language and unintended consequences are particularly acute because, unlike a statute, if problems arise with a constitutional experiment, legislators' hands are effectively tied. To change even a few words requires another constitutional amendment.
In South Dakota, they had to do exactly that, to clarify the law to make it clear that police could disclose important information to get help from the public and to limit who was actually covered by the definition of a "crime victim."
In California, media outlets had to take a lawsuit all the way up to the state Supreme Court just to establish that law enforcement agencies couldn't simply conceal the names of officers who had been involved in shootings. And they recently passed a law making public the records of police officers in situtations involving deadly force and certain crimes.
Voters in six states—Florida, Kentucky, Georgia, Nevada, North Carolina, and Oklahoma—will be considering Marsy's Law amendments to their states' constitutions in November. They should keep these (likely) unintended outcomes in mind.
The post A Law Intended to Protect Crime Victims Is Being Used to Shield the Identities of Police Officers appeared first on Reason.com.
]]>Privacy International, based out of London, is an advocacy group that "envisions a world in which the right to privacy is protected, respected, and fulfilled." It has been engaged in activism and legal challenges opposing mass surveillance and the collection of citizens' data in the United Kingdom and countries across the world.
In an Orwellian twist, the group discovered this week that the British government has been secretly collecting and looking at their private data.
Privacy International was one of the activist groups that legally challenged the bulk surveillance conducted by the U.K. government, and which had been revealed by U.S. whistleblower Edward Snowden. A couple of weeks ago, the European Court of Human Rights, of which the U.K. is a member, validated Snowden's warnings by ruling that the U.K.'s mass collection of citizens' online metadata was a violation of their privacy rights.
On Tuesday, Privacy International was informed during a hearing over this legal challenge that MI5, England's domestic intelligence and security agency, had unlawfully collected and held their data. MI5 also acknowledged that communications data they'd gathered had been accessed and viewed by MI5 personnel.
All this matters because the government previously said it had not kept the data it had collected. Then, defenders of this mass data collection conceded that, sure, they were collecting and storing all this info for a while, but they weren't accessing or looking at it without good reason or without following proper safeguards. None of this turned out to be true. The Register, a U.K.-based site that reports on information technology, notes:
MI5's admission was the focus of today's proceedings because it had initially said it held no such data on the charity pre-avowal—but last year amended its position.
Moreover, the discovery of that data has exposed a previously unknown cache of information that officers have amassed while working on cases—and one that MI5 admitted lacked the safeguards that exist for other regimes.
In court, Privacy International's counsel, Thomas De la Mare, equated the situation to an "MI5 sofa".
The agency initially "had a look under the cushions" and found nothing, he said, but when it later poked down the back it dug up "a whole bunch of data" about his clients.
The explanation of how this all happened gets a little technical and complicated—there is a stage of intelligence gathering that lacked processes for review, retention, and deletion. And so it's apparently not even clear to the government what data they had in their possession or how they handled it. Privacy International is now demanding to know how and why, exactly, MI5 could claim it did not possess or access data that it did, in fact, possess and access.
Ultimately, the big takeaway here is that the lack of transparency surrounding data collection and mass surveillance allows for both sinister abuses and actual mistakes to occur, and then go unnoticed for years.
It's also your regular reminder that secret surveillance tools have historically been used to keep tabs on people who are critical of government behavior, not just folks believed to have criminal aspirations or terrorist connections.
The post British Group Fighting Secret Government Surveillance Subjected to Secret British Government Surveillance appeared first on Reason.com.
]]>Visit Turkey recently? If you have, air marshals may be snooping on you during your domestic travels.
Among the travelers followed under a secret Transportation Security Administration (TSA) program recently exposed by the Boston Globe were a professional basketball player and a social media manager for an arts and crafts company.
Neither of these women was actually suspected of any sort of criminal or terrorist activity. Nor, apparently, were thousands of others surveilled and trailed under the TSA's Quiet Skies program, which launched in 2012 and expanded significantly this year. But Courtney Vandersloot, the basketball player, and Taylor Usry, the social media manager, were tracked by air marshals and were subjected to heightened security screening, all because they had gone to Turkey.
The Boston Globe tracked down Usry in Williamsburg, Virginia. She wasn't spied on during her trip to Turkey, where she took some arts-and-crafts courses. It was when she returned that the surveillance began. In July she flew to Florida for work. Plainclothed air marshals followed her, kept track of everything she did, kept records of her behavior, and even rode on the flight with her down to Tampa to keep tabs on her.
That's creepy enough, but she was also subjected to very extensive hands-on screening and security pat-downs—intrusive enough that they made her cry, she tells the Boston Globe. She also had an encounter in line with a chatty, friendly man who asked her all sorts of questions that she now sees in a new light. (Her husband thought the man was flirting with her.) She was also selected for one last "random" bag check at the gate.
Vandersloot went to Turkey to play professional basketball there. She has a work visa to do so, and she says the U.S. government knows full well what her business in the country was. She even qualified in 2016 for a program that expedites travel clearances for people who are considered low risk. Nonetheless, she tells the Globe that she was singled out for extensive searches during her domestic trips.
Civil rights and privacy groups are up in arms. The secretive surveillance appears completely unattached to anything resembling risk or threat assessment: Essentially the program calls for suspicionless surveillance of Americans for the purpose of finding out whether they're a potential threat. Some air marshals themselves have criticized the program, not being enthusiastic about spending their time spying on people who are not under investigation for any actual wrongdoing.
But the TSA has defended the snooping and says it will continue, despite its intrusiveness, its ineffectiveness, and the fact that many of the people carrying it out think it's a waste of time.
The post Air Marshals Secretly Followed an Artsy Virginia Mom on Flights to Make Sure She Wasn't Going to Destroy America appeared first on Reason.com.
]]>A sheriff's deputy in Los Angeles was nearly fired for faking evidence in 2003. He's been a witness or potential witness in hundreds of criminal cases since then. In most cases the defendants were not aware of his background and thus never challenged him.
California's legally mandated deep secrecy about police misconduct is in the spotlight again, thanks to a Los Angeles Times investigation about a Los Angeles Sheriff's Department deputy named Jose Ovalle. In 2003, Ovalle was tasked with collecting and documenting evidence involving a gang fight at a detention center in Castaic where an inmate had been slashed. He couldn't find a bloody shirt that was part of the case, so he fabricated it by pouring taco sauce on a clean shirt, taking a photo of it, and submitting it into evidence.
Ovalle was caught, and the Sheriff's Department initially wanted to fire him. But ultimately they didn't, and he's still working, making $240,000 a year. And the sheriff's department didn't inform prosecutors of Ovalle's infraction, so they initially didn't know about his behavior when they were handling cases where he was a witness. According to the Times, he testified in 31 cases before prosecutors found out what he had done.
Prosecutors are supposed to inform defendants when a police officer's past misconduct could affect his credibility. But that's simply not how things work in California. State law keeps police misconduct records so secretive that even prosecutors cannot directly access them. Defenders have to request that judges to check an officer's record to see if there's anything relevant.
Most of the time, even this doesn't happen. More than 230 people were convicted in cases where Ovalle was a potential witness. Only a handful of defense attorneys attempted to inquire into Ovalle's background. In one case, the Times reports, a man who believed that deputies (including Ovalle) planted evidence to justify a search of his car asked for his history, and the judge rejected the request. He ended up pleading no contest to a misdemeanor firearms offense and was put on probation for three years.
The slow speed of justice in California discourages defendants with little money or time from delving into officers' backgrounds. It's a lengthy process that can take months. Many end up accepting plea deals.
And when defense attorneys do find out about Ovalle's past, it can compromise cases against some pretty sketchy guys. In one case, prosecutors ended up offering a plea deal to a known gang member facing more than a decade in prison after Ovalle's conduct was discovered. The man served eight months in jail instead. Since his release, he's been convicted of 10 additional crimes. In another case, a defendant with a lengthy criminal background had his entire conviction overturned after Ovalle's past came to light. That defendant is now in prison in Nevada for intentionally infecting a girlfriend with HIV.
Given this risk of compromising a case, it shouldn't be a surprise that prosecutors want better information about deputies with histories of misconduct. But law enforcement unions have been fighting every effort to make officers' disciplinary histories more transparent and accessible, even to other government officials. It may take a California Supreme Court ruling to determine whether the sheriff's department can pass the names of deputies with records of misconduct directly to prosecutors. There's also a bill winding its way through the state legislature that would open up police records in cases of official misconduct.
The post L.A. Deputy Faked Evidence—but Was Still Used as a Witness in Criminal Cases for Years appeared first on Reason.com.
]]>Adam Parfrey, who founded and ran Feral House, a publisher dedicated to the obscure, strange, distinctive, and disturbing, died yesterday of complications from a stroke.
I interviewed Parfrey for Reason back in 2002, and as we said then,
Parfrey says his goal is to act as "a facilitator for the important and overlooked." Yet he bridles at being written off as "underground." Indeed, the wide open feel of the contemporary cultural scene makes distinctions between the margins and the center less and less important. And larger, more mainstream culture has long noted what Parfrey has accomplished….Beholden only to its owner and audience—not to commissars in the public, nonprofit, and high-culture sectors—Feral House provides information and viewpoints that may alarm or even disgust many. It is able to thrive (or not) precisely to the degree that it provides entertainment or edification for all who care to partake.
His power as an editorial curator is largely responsible, either first- or second-hand, for any opinions or interest most people might have in topics ranging from the fascinatingly incompetent film director Ed Wood to the weirdness of satanic black metal, the baroque conspiracy theory known as "The Octopus" (and conspiracy theorizing in general), the bizarre European Christmas tradition of Krampus, America's curious post-pulp men's adventure mags, the Process Church, secret societies' hidden role in history, the curious big-eyed paintings of the Keanes, chemtrails, primitivism as a philosophy, and the Church of Satan.
After 9/11, he exhibited a temperamental lack of pollyannaism by issuing Extreme Islam, a collection of works from Muslim sources that presented an alarming vision of the potential danger from that world. As Parfrey told me, "One lesson is that we need to ask, what are the consequences of putting American troops in Saudi Arabia and keeping them there? Some Americans might think we should be able to put troops anywhere we want. But it's arrogant to believe there are no consequences to those actions. Or, if there are consequences, that we should just knock anyone who objects senseless."
Physical books seemed a potentially endangered species even back in 2002, but Parfrey remained dedicated to their aesthetic power. Publishers with a viewpoint and sense of mission are key to the spread of culture and the changing of outlook, and whether you found Parfrey more interestingly provocative or wildly perverse, his handprints are on our culture and will remain there. He was personally a winningly mordant fellow, and that I had an essay appear in a Feral House book—Bubblegum Music is the Naked Truth, a volume that showed his interest in peculiar culture extended beyond just the dark or perverse—was always a point of pride.
The post Adam Parfrey, RIP appeared first on Reason.com.
]]>In November, the Omaha World-Herald sent a simple records request to the Nebraska state government. Along with several other news outlets, the paper wanted to know the source of the drugs to be used in an upcoming execution—the first in the state in more than 20 years.
In the past the Nebraska Department of Corrections would have provided this information, but now it refused. Officials there insisted that the supplier of the drugs the state intended to use, in the name of its citizens, to sedate, paralyze, and stop the beating heart of an inmate were exempt from Nebraska's public record law.
In December the Nebraska chapter of the American Civil Liberties Union (ACLU) sued to challenge the denial.
Nebraska is just the latest state to decide the executioner's black hood of anonymity also covers the pharmacies that mix the deadly compounds used to kill prisoners. As lethal injection drugs have become scarcer and more difficult to obtain, governments have gone to great effort to keep the sources and methods of their death penalty regimes secret. The information that has trickled out through the dogged work of investigative journalists reveals that these states have turned to untraceable cash transactions, unregulated pharmacies, and overseas scammers to buy drugs to fill the veins of condemned inmates. They have even resorted to experimental combinations of drugs, in several cases leading to botched executions.
In 2016, Virginia passed a law shielding the identities of the pharmacies that provide its death penalty drugs. Its next execution lasted 48 minutes—half an hour longer than officials expected—after the condemned inmate was first injected with Midazolam, a controversial sedative that many states turned to after the European Union banned exports of sodium thiopental in 2011.
Fourteen other states have similar secrecy laws. Officials argue such secrecy keeps the flow of necessary drugs unimpeded—but it also leaves death row inmates, their lawyers, the press, and the public in the dark about how governments are wielding the gravest of their powers. Oklahoma once went so far to avoid leaving a paper trail that a state official drove across state lines and purchased execution drugs from a pharmacy using petty cash, essentially acting as a drug mule.
Other states have looked overseas to solve their death penalty problems. A series of BuzzFeed News investigations revealed that at least three states paid Harris Pharma, a mysterious company in India run by a man with no pharmaceutical background, to ship sodium thiopental to them, despite a U.S. Food and Drug Administration (FDA) ban on importing the drug.
Nebraska ordered $54,000 worth of the stuff from Harris—enough to perform 300 executions. The FDA intercepted the shipment, leaving Nebraska taxpayers on the hook.
In a press release, ACLU of Nebraska Legal Director Amy Miller says the group's lawsuit "lays out Nebraska's shady history of backroom deals and attempts to circumvent federal law to obtain lethal injection drugs. In recent years, Nebraska taxpayers have spent over $54,000 to obtain drugs that have never been used and taxpayers' dollars still have not been refunded."
Because of the difficulty of getting Midazolam and sodium thiopental, and because of those products' unreliability, states are now tinkering with other drug combinations. Nebraska is currently planning to execute inmates with a never-before-tried mix of four drugs: diazepam (more commonly known as Valium), potassium chloride, cisatracurium besylate (a paralytic), and fentanyl citrate. That's right, fentanyl: the same super-strong synthetic opioid responsible for a wave of fatal overdoses over the past several years. Nevada also wants to use the substance in its upcoming executions.
Although lethal injection is touted as a humane alternative to the electric chair or gas chamber, it may be impossible to know if an inmate is suffering during the process. Because Nevada and Nebraska's four-drug cocktail includes a paralytic, an inmate could remain conscious or regain consciousness during the execution without giving any outward sign, forced to slowly suffocate while potassium chloride burns through his or her veins. That's why the American College of Veterinarians forbids the use of paralytics when euthanizing animals.
Prison officials have no such qualms about condemned human beings. But the American people should. The secrecy surrounding the U.S. death penalty regime, and states' penchant for experimenting with what Supreme Court Justice Harry Blackmun once famously called "the machinery of death," is a ghoulish farce masquerading as an enlightened alternative to a bullet or a hangman's noose.
The post America's Secret Death Penalty Drugs appeared first on Reason.com.
]]>The first thing you need to know about "The Memo" is that nobody can truly tell you what you need to know about "The Memo" in advance. That's part of the whole shtick.
Here are some basics, though. Rep. Devin Nunes (R-Calif.), previously an extremely pro-surveillance lawmaker, and his staff in the House Intelligence Committee crafted a four-page memo that claims to show that the FBI abused its surveillance authorities. The memo apparently claims that the FBI misled the Foreign Intelligence Surveillance Court (FISC) with the now-infamous "Steele Dossier" in order to get permission to wiretap former Trump aide Carter Page and his conversations with Russian officials. All of this, they say, was part of a conspiracy to attack the Trump administration.
Nunes' memo is currently classified. It has been seen by House lawmakers and, over the weekend, by FBI Director Chris Wray. Last night the House Intelligence Committee voted to begin the process of publicly declassifying and releasing the memo. This starts a five-day clock for Trump to weigh in on if he wants to keep the memo classified. The White House has suggested that it supports the memo's release; we'll see what actually happens.
In the meantime, everybody wants to tell you what to think about the memo based on whether they're backers of Team Red or Team Blue. For those of us who are neither and don't care whose ox gets gored (or hope they all do), there are still reasons to care about what's happening, why it's happening, and the overall impact of this fight.
Yes, This Memo's Release Is Politically Motivated. That's OK.
The Democrats also prepared their own memo explaining what they believed happened with the wiretapping. The Republican-controlled Intelligence Committee declined to release the Democratic version. So only one party here—the party the president belongs to—will be able to publicly represent its interpretation of the surveillance of somebody close to the president.
It's silly to pretend that this is not a deliberate effort to undermine the investigation of potentially inappropriate behavior between people close to Trump and foreign governments. It's also silly to deny that the Democrats' sudden insistence that the FBI is beyond reproach (yeah, right) is a deliberate attempt to undermine critique.
But there might actually be an upside to all this political posturing. The average American knows very little about how federal surveillance works in practice. A sudden burst of transparency, even one-sided and politically motivated, can at least give everyone a better understanding of how the secretive foreign intelligence court actually works.
And for better or worse, Trump is the president of the United States. Secret surveillance of people in the president's orbit by members of his own government is a big deal. It's completely appropriate to reject the idea that we should simply trust that FBI officials are behaving appropriately. They have a very lengthy history of doing otherwise.
But the Memo Is Not Going to Tell You What Actually Happened.
The Nunes memo is an interpretation of classified intelligence that was used to get authorization to snoop on Page. But it's not the intelligence itself. So if we're willing to acknowledge that part of the motivation to release the memo is to protect Trump, we have to acknowledge that this memo is probably not going to tell the whole story.
Do not take this as a demand to keep the memo secret. We should see the memo. We should see the Democrats' memo. And at some point, we should be able to see the underlying intelligence.
Note that Trump, as the president of the United States, has wide authority to arrange for the declassification and release of this intelligence information that supposedly has been misapplied in order to snoop on him and undermine his presidency. That little detail doesn't seem to capture as much attention. The Nunes' memo is one step removed from being able to see what the FBI actually presented.
Again, this is not a demand for less transparency, but for more. We shouldn't settle for the perspective of people who have an obvious interest in shielding the president.
None of This Will Lead to a Discussion of Surveillance Policies and Practices.
A reminder for the umpteenth time: Many of these Republican members of Congress who are acting outraged about the surveillance of Trump just voted to renew and expand the FBI's authority to snoop on American citizens through this secret system. And Trump himself signed the bill into law.
All the while, these same folks misled the American public by saying these surveillance powers were necessary to capture foreign terrorists. As the Cato Institute's Julian Sanchez notes over at Just Security:
One need not believe that there are ongoing partisan conspiracies within the FBI and Justice Department to support more stringent civil liberties safeguards on the broad spying authorities the intelligence community has accumulated over the past two decades. But it is very hard to understand how one could believe such a conspiracy exists—indeed, continues to be covered up by sitting officials—yet reject even the idea of pausing to debate such safeguards before renewing precisely the sorts of powers one claims have been abused.
That's especially frustrating for those of us (and you) who have been paying attention to the federal government's misuses of surveillance for years now, long before Trump even announced his candidacy for president.
UPDATE: If this tweet is accurate, the Nunes memo will be released, and soon.
#URGENT: President Trump has told aides he wants Nunes memo released as quickly as possible, but not before State of Union
— Carol Costello (@CarolHLN) January 30, 2018
The post Everybody's Talking About 'The Memo' and Ignoring the Surveillance Debate appeared first on Reason.com.
]]>Trust Sen. Dianne Feinstein (D-Calif.) to try to turn a political controversy into an excuse to censor social media.
A bunch of Republican lawmakers have been rallying around a classified memo by House Intelligence Committee Chair Devin Nunes (R-Calif.). The memo purports to show FBI abuses connected to the secret surveillance of people involved with Donald Trump's presidential campaign. The push to declassify the document was national news last week, complete with a hashtag campaign, #ReleaseTheMemo. It was discussed by every major news outlet. Several GOP lawmakers tweeted the hashtag.
Feinstein and Rep. Adam Schiff (D-Calif.) are upset because a bunch of Russian-operated Twitter accounts may have jumped on this and attempted the magnify the hashtag campaign's reach. The two of them have sent a letter to Twitter and Facebook pretty much demanding that they investigate the extent of the Russian involvement in the hashtag campaign. And they want a response in three days:
If these reports are accurate, we are witnessing an ongoing attack by the Russian government through Kremlin-linked social media actors directly acting to intervene and influence our democratic process. This should be disconcerting to all Americans, but especially your companies as, once again, it appears the vast majority of their efforts are concentrated on your platforms. This latest example of Russian interference is in keeping with Moscow's concerted, covert, and continuing campaign to manipulate American public opinion and erode trust in our law enforcement and intelligence institutions.
Feinstein is confusing a symptom for a problem, as politicians often do when they have agendas to pursue. It's absurd to hold Russia responsible for the hashtag in any meaningful sense, given that Republican lawmakers were openly, overtly screaming it from the rooftops, on Twitter, and in front of every news camera they could see. A source familiar with how Twitter works told The Hill that the growth of the hashtag appeared to have happened organically. If Russian trolls and bots were involved, they were at most magnifying a conflict that was already underway. They didn't set this fire, and they weren't the chief force spreading it.
Feinstein's political machinations here are twofold. She's trying to make the case that the feds must regulate social media because of foreign involvement in American elections; and second, she's using the familiar guilt-by-association logical fallacy to discredit her political opponents.
Feinstein's love of censorship is well known. She flat-out wants to suppress online content that she deems dangerous. This lack of respect for Americans' speech rights and privacy is one of the few things she has in common with Trump.
As for the guilt-by-association issue, it's remarkable how little people on either side are interested in engaging the surveillance issues that undergird this fight and instead want to make it all about attacking or defending Trump. I've already mocked Republicans acting outraged about the Nunes memo because a bunch of them just voted to expand the feds' power to snoop on American citizens for purposes unrelated to terrorism and espionage. On the very same day this hashtag campaign was launching, Trump signed that bill into law.
The discussion of actual surveillance policy got drowned by constant efforts to either discredit Trump (by any silly memes necessary) or to discredit the FBI investigation. What's most obnoxious about Feinstein and Schiff's response here is how it simply does not engage the complaint that the surveillance state might have abused its powers when it snooped on and possibly unmasked the identities of people in Trump's orbit.
Personally, based on my experience covering the federal surveillance apparatus, I doubt the Nunes memo actually reveals illegal conduct by federal officials. That's actually part of the problem—it's too easy for the feds to legally justify secretly snooping. Nevertheless, the Nunes memo should be declassified and released, as should the secret court warrant request that serves as the memo's foundation. Could there be a better example for the American public to be able to pick apart the consequences of our federal surveillance state than by learning exactly how it spied on the staff of a candidate for president?
But no: When Feinstein actually had the opportunity to make surveillance laws better, she abandoned her own amendment and signed on to terrible legislation. And now she wants to make this all about Russian meddling in American elections, and to use that as an excuse for more censorship. We need more sunlight, not more secrecy.
Related: ReasonTV on politicians invoking "fake news" as an excuse to control what people can see on the internet:
The post Dianne Feinstein Ignores GOP Lawmakers, Blames #ReleaseTheMemo on Russians and Social Media Instead appeared first on Reason.com.
]]>While civil rights and privacy advocates attempt to try to shut a federal surveillance "backdoor" used to snoop on Americans' communications without a warrant, today a BuzzFeed report warns of the existence of another one involving all our bank accounts.
Jason Leopold and Jessica Garrison today report that citizens' banking and financial data are being searched and stored by federal organizations that do not have the authority to do so. For those who have been following the controversies over federal surveillance of Americans, the contours of these allegations will seem familiar: An organization who is supposed to be using its surveillance to track foreign activity is also using its access to snoop on Americans.
BuzzFeed reports:
At issue is the collection and dissemination of information from a vast database of mostly US citizens' banking and financial records that banks turn over to the government each day. Banks and other financial institutions are required, under the Bank Secrecy Act of 1970, to report suspicious transactions and cash transactions over $10,000. The database is maintained by the Financial Crimes Enforcement Network, or FinCEN, a bank regulator charged with combatting money laundering, terrorist financing, and other financial crimes. Under the law, it has unfettered powers to peruse and retain the data.
In contrast to FinCEN, Treasury's intelligence division, known as the Office of Intelligence and Analysis, or OIA, is charged with monitoring suspicious financial activity that occurs outside the US. Under a seminal Reagan-era executive order, a line runs through the Treasury Department and all other federal agencies separating law enforcement, which targets domestic crimes, from intelligence agencies, which focus on foreign threats and can surveil US citizens only in limited ways and by following stringent guidelines.
FinCEN officials have accused their counterparts at OIA, an intelligence unit, of violating this separation by illegally collecting and retaining domestic financial information from the banking database. Some sources have also charged that OIA analysts have, in a further legal breach, been calling up financial institutions to make inquiries about individual bank accounts and transactions involving US citizens. Sources said the banks have complied with the requests because they are under the impression they are giving the information to FinCEN, which they are required to do.
And then, according to BuzzFeed, this information is getting accessed by CIA and defense officials in circumstances that are not supposed to be allowed. Much like the controversy of the misuse of Section 702 surveillance authorities, this is a case where a whole host of federal agencies are getting unwarranted, secret access to Americans' private data—financial information in this case.
Contain your surprise: This behavior preceded President Donald Trump's administration and was happening while President Barack Obama was president. It's another reminder that despite campaigning on openness and transparency, Obama's administration oversaw and encouraged a massive, secretive surveillance apparatus.
Read the BuzzFeed story here.
The post Are the Feds Using Backdoor Searches to Access Your Banking Data? appeared first on Reason.com.
]]>Jose Charles, 15, and his family would like the public to see the way Charles was treated by police in an incident a year ago in Greensboro, North Carolina.
Charles' violent arrest was captured on police body cameras, and he and his mother want it to be released to the public because they believe it shows police misconduct. Greensboro's City Council voted to support the family's request to have the camera footage released. Greensboro's Police Community Review Board agrees with the family.
But the police department and a local judge have managed to keep the video out of the public's eye, thanks to a new law in North Carolina exempting body camera footage from public records laws.
Police arrested Charles in July 2016 at a festival after a fight with a group of teens. He and his mother, Tamara Figueroa, claim he was the one attacked. Subsequently, police officers restrained Charles and was apparently coughing up blood. He spit blood in one of the officers' faces. His mother claims Charles spit because he was having trouble breathing. Police filed a host of charges against him.
The accounts in several news reports from the Greensboro News & Record are very vague. Viewing the body camera footage from the four officers who were on scene would clear it up.
But around the same time Charles was having this encounter with police, North Carolina lawmakers were passing a bill exempting body camera footage from public records requests. The law put law enforcement agencies and judges in charge of deciding what footage may be released.
Despite the many city officials and the review board supporting the family's request, a judge has refused, claiming, incredibly, the video's release could "harm the reputation of Jose Charles and members of his family." That the family wants the video released is apparently not enough to overcome his concern.
All the charges against Charles have since been dropped in exchange for him accepting a plea over some other unrelated accusations. Several members of the review board have resigned over the police department's behavior in this case.
When North Carolina implemented this law, civil rights and transparency experts warned of exactly these sorts of outcomes—law enforcement agencies and judges deciding what the public had the right to see and hear and doing so in a way that protects themselves from criticism. After police fatally shot a man in Charlotte last year, I warned:
Body camera footage will help give people outside these communities a better sense over time how police treat the citizens they're supposed to be protecting and a better sense of how to evaluate and interpret these community backlashes. The circumstances of he the shooting should decide whether or not the officer did anything wrong and should be disciplined or charged with a crime. But the context of the shooting put in perspective with how police in Charlotte interact with citizens also needs to be evaluated in order to shape enforcement behavior. Keeping all footage secret by default does not assist the community in watching the watchers.
Now there are new accusations of excessive force lodged against Greensboro Police as a result of an incident that happened earlier this month. The officer accused of attacking a man for being drunk and disorderly is the same officer accused of attacking Charles. Watch a clip of the arrest captured not on police body camera footage, but from a witness with a phone, here.
The post N.C. Body Camera Law Used to Shield Greensboro Police from Accusations of Abuse appeared first on Reason.com.
]]>Attorney General Jeff Sessions announced today that the Department of Justice has tripled the number of investigations into unauthorized leaks of government information and will be examining their rules for subpoenaing journalists.
The press conference lacked details—after complaining about leakers and saying that the power of the press to report is not unlimited, Sessions declined to answer any reporters' questions. But Sessions and his department clearly want both leakers and journalists to know that they are actively trying to hunt down sources of information. Sessions said he fully intends to prosecute any he can find.
In other words, Sessions is continuing a war that began before he took office. Nothing he said today is all that different from how the federal government under President Barack Obama treated unauthorized leaks other than the expansion of the effort.
Obama's Department of Justice aggressively pursued leaks, invoked the Espionage Act to prosecute people, snooped on the press, and even threatened journalists with prison to try to make them give up sources. The department eventually changed its policies after the revelation that it had been surveilling journalists to try to track down leakers. But those policies can be changed back, and that may be what Sessions intends to do.
Obama famously campaigned on transparency but his administration provided anything but that. Federal agencies took years to respond to Freedom of Information Act requests. Such a paucity of information practically requires reporters to depend on leaks in order to get information.
To many media outlets' credit, reports on today's press conference have contextualized the news by including this Obama-era history. While the ramping up of leak investigations is certainly worth acknowledging—and definitely worth worrying about—journalists are not pretending this is some new development stemming exclusively from the Trump administration's problems. Apparently, the media have a good memory about past administrations' authoritarian tendencies when those tendencies directly affect their work.
Bringing up Obama here isn't "Whataboutism." It's about recognizing that we've been on this slippery slide for years. The government has been demanding the authority to decide what information the public is allowed to know, and it frequently defaults to secrecy instead of openness. Sessions and Trump are being more open and aggressive about attitudes that already existed. (Sessions actually criticized the Obama administration for not being aggressive enough against leakers, even though Obama set records for such prosecutions.)
When an administration decries all these leaks as threats to national security but what we actually learn from them is important for us to know, we should think carefully about the tendency to defer to the government about what should be publicly disclosed.
The post Thanks, Obama! Trump Is Expanding Your Effort to Imprison Leakers! appeared first on Reason.com.
]]>A Somali family—immigrants who are now legally citizens of the United States—are suing several federal agencies over what appears to have been a particularly rough border detention and search. Their treatment, they say, stems from the government's secretive, unaccountable watchlists.
They family is being represented by the American Civil Liberties Union (ACLU), which has spent years fighting to force a system of due process on the various watchlists that agencies use (and share among each other). Thanks to these lists, hundreds of thousands of people are subjected to increased and intrusive searches when traveling.
The lawsuit attacks two significant and well-established problems with these watchlists. One: Even though these lists supposedly exist to keep an eye on suspected terrorists, they contain hundreds of thousands of names of people with no known ties to terrorist organizations. Two: The system is handled secretly, with almost no oversight or due process. People who end up on the list often cannot find out why or even get the government to acknowledge that they're on a list; their only option is to ask to be taken off the list and hope it happens.
The plaintiffs are the Wilwal-Abdigani family, who in March 2015 traveled from their home near Minneapolis to visit relatives in Canada. According to the lawsuit, they had little trouble passing into Canada but were warned that that the father, Abdisalam Wilwal, had a notation on his records that might result in some additional questions when he attempted to return home.
That proved to be an understatement. According to the lawsuit, when the family tried to return to the United States, border agents confronted them at gunpoint and detained them for hours. The lawsuit says that the border patrol asked Wilwal if the travelers were Muslims and accused him of involvement in terrorism. They handcuffed Wilwal and left him alone in a room for hours without even questioning him. He ended up fainting, and they had to call in paramedics. They eventually questioned him for 45 minutes, though he was detained for more than 10 hours.
The other members of the family were detained separately and were not allowed to leave either. At one point the mother, Sagal Abdegani, realized the agents had neglected to take the cellphone away from one of her children and she managed to call 911 to try to get outside help. An agent snatched the phone away from her. According the lawsuit, border patrol agents also took the couple's 14-year-old son into a separate room and demanded he take off his clothes for a strip search. He refused to comply.
The family was released much later in the day and was allowed to return home. They know now that Wilwal's name is in a federal watchlist database, but they don't know why. They've petitioned the feds to have Wilwal's name removed, but per the federal government's processes, the Department of Homeland Security declined to confirm or deny whether Wilwal is actually watchlisted or whether they removed him from the list. The lawsuit notes, "At no point in the process can an individual appear in person before a neutral decision maker to challenge placement on the watchlist or its consequences."
The family is claiming violations of their Fourth Amendment rights, claiming unconstitutional searches and seizures as well as excessive force. They're also claiming violations of their Fifth Amendment rights to due process, because of the way these federal lists are managed and because of the barriers to clearing Wilwal's name.
For the Fourth Amendment claims, unfortunately, the courts have historically given federal officials very wide latitude to engage in warrantless searches with very little justification at the country's borders. But some important court rulings bolster's Wilwal due process complaint, and the ACLU knows it—because they're involved with some of those suits as well.
These lawsuits involve the federal no-fly list, a subset of these terror watchlists. People on the no-fly list are denied the right to board aircraft under a secretive, opaque system much like the one described in this lawsuit. In 2014 a federal judge ordered the Department of Justice to develop a system where people can determine whether they are actually on the no-fly list and a mechanism for correcting mistaken inclusion on the list. One woman turned out to have been added to the no-fly list by accident (somebody checked the wrong box); she had to fight the government for years to be removed. She only found out about the mistake as a result of the lawsuit.
Read the family's lawsuit here. Read the mother's own account of the border search here.
The post Secret Government Watchlist Sweeps Up an American Family, and Now They're Suing appeared first on Reason.com.
]]>A new report put together by the staff of the Senate's Committee on Homeland Security and Governmental Affairs warns of an "avalanche" of leaks from President Donald Trump's administration. The report contends these leaks are threats to our country's safety and security, but we should be very wary about accepting such assertions given how little evidence the report provides.
From Inauguration Day to May 25, the report notes, at least 125 stories have appeared in the news that are sourced from "leaked information potentially damaging national security." That's about a leak a day. The authors calculate this is seven times higher than the number of similar leaks in the early months of George W. Bush and Barack Obama's administrations.
The report also argues that many of the leaks present Trump in a "harsh light" and were obviously intended to make him look bad, which was not the case for most early leaks under Bush and Obama. The implication is that people within the intelligence apparatus want to undermine Trump so much that they're willing to compromise national security. The report concludes:
President Trump and his administration have faced apparent leaks on nearly a daily basis, potentially imperiling national security at a time of growing threats at home and abroad. The commander-in-chief needs to be able to effectively manage U.S. security, intelligence operations and foreign relations without worrying that his most private meetings, calls and deliberations will be outed for the entire world to see.
As matter of establishing a baseline of "shared facts" that everybody can agree upon here—it's obviously true that more people working within the Trump administration are willing to leak information to the press that makes the White House look bad than previous administrations. Clearly there are people within the intelligence community and in other positions of prominence who are deeply concerned about the behavior of Trump and his staff. Whether or not their fears are justified, it would be stupid to pretend that the number of unauthorized leaks hasn't gone up.
But it would also be stupid to blindly accept the assertion that these leaks all have the potential to damage national security. The report does not go through any of these news stories to detail what American interest is threatened by the leak of confidential information. It merely argues that the threat exists because the disclosures violate the law. At one point the report even says that the justifications people often use for leaks—that they're bringing to light illegal behavior or bad policies—don't have any legal foundation. This is often true, which is why Edward Snowden is hiding in Russia rather than arguing his case in the American courts. But the implication is that the government should punish leakers even when they provide valuable, vital information to the public.
As if to undercut the report's argument, the appendix lists all the headlines, media outlets, and bylines of the news stories written from these leaks. Do these sound like stories that threaten national security, or are these stories that provide information Americans should know about their government's or president's behavior?
That last story is particularly important, because it details how our own National Security Agency is responsible for the tools being used in some very dangerous cybersecurity breaches across the world, possibly by other states, such as North Korea. That's a story about government competence and consequences. The American people should know that the massive WannaCry ransomware incident is a direct result of our own government's actions.
The report's authors also decided to classify fired FBI Director James Comey's public disclosures about his private conversations with Trump as potentially damaging "leaks." These are conversations where Comey claims the president attempted to influence him into ending the FBI's investigation of former National Security Adviser Mike Flynn. And so many of the news reports that are the result of Comey's memos ending up in the media are on the list.
Here's a thought exercise: Imagine all those headlines originated from Obama's administration, not Trump's. Wouldn't we want to know how an operation in Yemen went bad under Obama's leadership? Wouldn't we want to know if his own agencies disagreed with the need for some of his policies? Wouldn't we want to know if he loses his temper with the leader of another country? Rather than highlighting the dangers of leaks within the Trump administration, this list frankly should make us angry that we didn't get more leaks under Obama and Bush.
The post Do Americans Have a Right to Know If Their Government Is Incompetent? appeared first on Reason.com.
]]>Pvt. Chelsea Manning was freed from military prison this morning, having served seven years of a 35-year sentence for leaking hundreds of thousands of military documents and diplomatic cables in 2010 to WikiLeaks.
She'd probably still be there if President Barack Obama had not extended mercy right before leaving office and commuted her sentence. Obama's 11th hour kindness comes at the end of an administration that viciously went after leakers.
It's been so long since Manning's leaks and so much has happened since then that it's easy to forget what exactly it is she released. Probably the significant leak that most people still might remember was what was known as the "collateral murder" video, which showed American military helicopters firing on a group of civilians in Baghdad. Two of them were reporters for Reuters, and apparently the helicopter pilots mistook their cameras for guns. The reporters (and others) died, and Reuters struggled to get information about what actually happened.
Manning exposed a lot more of the serious consequences of post 9/11 military interventions and even other important issues of government corruption—not just from the United States either. Multiple media outlets (including The New York Times and The Guardian) reported the contents of many of these documents. A lengthy list of information governments were keeping secret (and really shouldn't have been) exposed by Manning can be read through here, compiled by Greg Mitchell, who wrote a book on Manning's case and trial with Kevin Gosztola.
Over at The New York Times, Charlie Savage notes that Manning essentially pioneered what would become a small trend of mass document dump leaks. She's the reason why we know what WikiLeaks is, honestly. And it's worth wondering if we even would have had an Edward Snowden without the precedent Manning's willingness to release this information at great risk to herself. Also an important reminder: Yes she was convicted of several espionage-related crimes, but she was acquitted of charges of "aiding the enemy."
Manning will apparently be keeping a low profile for a little while. She was notably treated terribly in custody, both before she was even convicted and afterward. After her conviction she announced her gender transition and name change from Bradley to Chelsea. She complained that the military wasn't very accommodating of her transition and even attempted suicide. There's obviously going to be a bit of an adjustment period. But she did tweet/Instagram out a picture of her first steps after release.
Here's an interesting reminder from 2013—Ron Paul said Manning was more deserving of the Nobel Peace Prize than Obama was:
"While President Obama was starting and expanding unconstitutional wars overseas, Bradley Manning, whose actions have caused exactly zero deaths, was shining light on the truth behind these wars," the former Republican presidential contender told U.S. News. "It's clear which individual has done more to promote peace."
It's worth paying attention to the importance of whistleblowers as the Justice Department announces new efforts to find and prosecute the leakers within President Donald Trump's administration. Given the extremely frequent occurrences of leaks within the White House and the administration as a whole, one wonders if there will be anybody left there if the DOJ succeeds.
The post Chelsea Manning Showed Us the Consequences of War, and We Threw Her in Prison appeared first on Reason.com.
]]>Privacy and cybersecurity experts and activists have been warning for ages that governments have their priorities all wrong. National security interests (not just in America but other countries as well) comparatively spend much more time and money attempting to breach the security systems of other countries and potential enemies than they do bolstering their own defenses. Reuters determined, with the information from intelligence officials, that the United States spends $9 on cybersurveillance and government hacking for every $1 it sends on defending its network systems.
The "WannaCry" Malware attack that spooled out over the end of last week and into the weekend, implicates both sides of this problem. The ransomware, first of all, allegedly originated from vulnerabilities and infiltration tools developed by the National Security Agency (NSA) they had been hoarding and keeping secret from technology companies whose defenses they were breaching. All of this secrecy was to facilitate the NSA's ability to engage in cyberespionage and to prevent technology companies from building defenses that would have inhibited government surveillance. The NSA lost control of these infiltration tools and they were publicly exposed by the hacker group known as the "Shadow Brokers" last month.
So this WannaCry attack or something like it (and probably many more) was incoming, and attentive information technology specialists were aware and hopefully prepared. Microsoft had already released a patch to address the vulnerabilities. Except not everybody downloaded it.
The non-downloaders included parts of the United Kingdom's National Health Service (NHS), the socialized, taxpayer-funded healthcare system that covers the entire population there. The NHS had been warned that computers using old Microsoft operating systems were vulnerable, but several hundreds of thousands of computers had not been upgraded, according to the BBC.
So on the one hand, we have a government agency refusing to disclose cybersecurity vulnerabilities it had discovered in order to take advantage of them, potentially leaving everybody's computers open to attacks. And then, on the other hand, we have a government agency refusing to properly prioritize cybersecurity to protect the data and privacy of its citizens (they blamed it on not having enough money, of course).
This poll from Pew from last year shouldn't be a surprise, then. Consumers have less confidence in the federal government to protect their data than cellphone companies, email service providers, and credit card companies:
That the government has been terrible on both ends of this problem makes this op-ed response at The New York Times by Zeynep Tufekci all the more confusing: She blames Microsoft and tech companies for apparently wanting to be paid to continue fixing and updating old, outdated operating systems. While she acknowledges that there are costs involved in such behavior, she seems to think that Microsoft should just suck it up and shell out. This is a rather remarkable hot take (and she's most certainly not alone in it):
[C]ompanies like Microsoft should discard the idea that they can abandon people using older software. The money they made from these customers hasn't expired; neither has their responsibility to fix defects. Besides, Microsoft is sitting on a cash hoard estimated at more than $100 billion (the result of how little tax modern corporations pay and how profitable it is to sell a dominant operating system under monopolistic dynamics with no liability for defects).
Has anybody seen a demand for free goods and services couched in an argument as fundamentally dumb as "The money hasn't expired!" before? Why does The New York Times continue to charge year after year to subscribers? The money readers paid the first time hasn't expired!
Note that she also takes aim at those evil corporations and their money "hoards." Earlier in the column she described the NHS, a massive government juggernaut of a bureaucracy as "cash-strapped." The NHS blows through an equivalent of Microsoft's "hoard" and then some every single year. Its most recent budget is around $122 billion for a year and is predicted to continue growing. It's disingenuous to portray Microsoft as Scrooge McDuck and the NHS as a beggar on a street corner with a sign and a hat.
If nothing else, perhaps NHS's poor financial prioritizations and lack of responsibility will warn Americans against socialized single-payer healthcare systems? No, probably not.
Tufekci's piece isn't all terrible—she, too, recognizes the NSA's culpability in this breach by prioritizing offense over defense. But she nevertheless thinks that the problem is not enough government, despite the fact that this disaster all around is a direct result of poor government behavior:
It is time to consider whether the current regulatory setup, which allows all software vendors to externalize the costs of all defects and problems to their customers with zero liability, needs re-examination.
Whatever new regulations that may be brought to bear against Microsoft will not stop these costs from being "externalized." That's how consumer markets work. If the government mandates that software vendors must continue covering, updating, and protecting its consumers, guess what's going to happen to the price of software? It's going to go up.
Hold the government accountable for all these screw ups, not Microsoft. They're the ones responsible. And Microsoft is not happy about the NSA's behavior either. Brad Smith, Microsoft's president and chief legal officer, called out the feds for its responsibility for these threats to citizens:
The governments of the world should treat this attack as a wake-up call. They need to take a different approach and adhere in cyberspace to the same rules applied to weapons in the physical world. We need governments to consider the damage to civilians that comes from hoarding these vulnerabilities and the use of these exploits. This is one reason we called in February for a new "Digital Geneva Convention" to govern these issues, including a new requirement for governments to report vulnerabilities to vendors, rather than stockpile, sell, or exploit them.
The post Government Is the Cause of—Not the Solution to—the Latest Hacking Outbreak appeared first on Reason.com.
]]>The University of California at Berkeley's inhospitality to conservative speakers, the subject of a federal lawsuit filed on Monday, prompted a Twitter rebuke from President Trump a few months ago. Yet his administration seems determined to demonstrate that suppression of opposing views is a bipartisan impulse.
Berkeley College Republicans (BCR), which invited conservative commentator Ann Coulter to speak on campus this Thursday evening, and Young America's Foundation (YAF), which underwrote her visit, argue that Berkeley's vague, unwritten policy regarding "high-profile speakers" unconstitutionally discriminates against unpopular viewpoints. As a result of that policy, which was adopted after violent protests prompted the university to shut down a February 1 appearance by former Breitbart News editor Milo Yiannopoulos, Berkeley canceled Coulter's speech, then offered to reschedule it for next Tuesday afternoon, in the middle of the "dead week" between classes and exams.
BCR says it felt compelled to cancel an April 12 talk by another conservative journalist, David Horowitz, after the university insisted that it take place at an inconvenient location and end by 3 p.m., meaning most students would be in class while Horowitz was speaking. BCR and YAF say the restrictions imposed by Berkeley in the name of public safety have not been applied to left-leaning speakers and amount to an "unlawful heckler's veto" that marginalizes conservative voices.
After the Milo melee in February, Trump suggested on Twitter that Berkeley risks losing federal funds if it "does not allow free speech." If the president were sincerely committed to protecting First Amendment rights, he would issue similar warnings to the Department of Homeland Security (DHS), which recently demanded that Twitter reveal the identity of a DHS gadfly, and the Justice Department, which is considering criminal charges against people who share classified information leaked by others.
Last month a special agent in charge at Customs and Border Protection (CBP), a division of DHS, issued a summons to Twitter seeking records that would unmask the person or persons behind @ALT_USCIS, an account that regularly criticizes the Trump administration's immigration policies. There did not seem to be any legal justification for the summons, which looked like a blatant attempt to intimidate critics.
DHS dropped the summons the day after Twitter filed a lawsuit arguing that it threatened the First Amendment right to engage in pseudonymous political speech. Last week, in response to inquiries by Sen. Ron Wyden (D-Ore.), DHS Inspector General John Roth revealed that his office is investigating whether the CBP summons was "improper."
The day before Roth expressed concern about government inquiries that might have "a chilling effect on individuals' free speech rights," CNN and The Washington Post reported that the Justice Department is once again looking for a way to prosecute WikiLeaks founder Julian Assange for sharing classified documents with the public. The Obama administration abandoned that project after concluding that charging Assange with violating the Espionage Act would create a precedent that could be used against any news organization that publishes stories based on "defense information" from sources who obtained or divulged it illegally—a very common journalistic practice.
CIA Director Mike Pompeo says we shouldn't worry about that because Assange is not a real journalist, a debatable and constitutionally irrelevant point. The "freedom of the press" that is guaranteed by the First Amendment is not the freedom of people who work for officially recognized news outlets; it is the freedom to use technologies of mass communication.
That freedom extends to everyone in the United States, whether or not he is a professional journalist or an American citizen. If Assange broke the Espionage Act by distributing classified material within the U.S., that means he used "the press" there.
Trump, who declared "I love WikiLeaks!" when it was revealing embarrassing information about Hillary Clinton, has changed his tune now that he perceives a threat to his government's secrets. When he was asked about a potential criminal case against Assange last Friday, Trump said, "It's OK with me."
© Copyright 2017 by Creators Syndicate Inc.
The post The Bipartisan Urge to Suppress Dissent appeared first on Reason.com.
]]>Mike Pompeo, the former Republican congressman who is now President Donald Trump's director of the CIA, wants to protect America from fascism and authoritarian regimes by cracking down on media outlets that publish information he doesn't want them to.
Wait … what?
Pompeo delivered a prepared speech at the Center for Strategic and International Studies yesterday that was clearly intended to be a boisterous defense of what all our federal snoops do to keep America safe. But the intelligence community has had some issues with leaks the past few years, to put it mildly, and Pompeo's speech has him playing company man, insisting through sheer assertion that disclosures about what the CIA and intelligence community at large are doing is a threat to America's ability to keep people safe and fight terrorism.
Pompeo's comments took a particularly dark turn when he addressed WikiLeaks. He does not like the media outlet, nor does he like Julian Assange. This is not terribly surprising and not unusual. Assange has a lot of critics even outside the beltway. He's a polarizing figure.
But Pompeo makes it very, very clear that he does not believe that WikiLeaks should be treated like a media outlet and actually threats some sort of government-sponsored retribution for publishing classified or private data. Here are two separate and rather chilling quotes from parts of his speech:
No, Julian Assange and his kind are not the slightest bit interested in improving civil liberties or enhancing personal freedom. They have pretended that America's First Amendment freedoms shield them from justice. They may have believed that, but they are wrong. …
[W]e can no longer allow Assange and his colleagues the latitude to use free speech values against us. To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.
We must destroy free speech in order to protect it! We must use government power to stop people from disclosing information in order to protect the media's right and responsibility to disclose information. It makes total sense!
Because of the allegations of ties between WikiLeaks and Russia and the possibility that Russian government representatives were the source of documents (like Democratic National Committee communications) that had been released during the presidential election, the site is the focus of even more criticism than it had been before.
But one does not have to be a supporter of WikiLeaks to see the deep, serious problems with what Pompeo argues here—that one's right to free speech and free press is dependent on one's agenda and whether it aligns with the federal government's.
Pompeo is hardly alone in wanting the government to decide what is and isn't a real media outlet and to want to exclude WikiLeaks entirely for the purpose of trying to punish them. Lawmakers have been wanting for ages to decide what counts as a "real journalist" in such a way that allows them to exert control over what really counts as news.
One doesn't have to wander very far to ponder the implications. You don't even have to turn away from Pompeo. As Reuters notes, Pompeo's criticism of WikiLeaks is a new thing. He was certainly willing to treat them like a media outlet with content worth sharing when it was revealing information about the Democrats' communications last year:
In July, Pompeo, than a Republican member of the House of Representatives, mentioned it in a Twitter post referring to claims that the DNC had slanted the candidate-selection process to favor Clinton. "Need further proof that the fix was in from Pres. Obama on down? BUSTED: 19,252 Emails from DNC Leaked by Wikileaks."
So it's absurdly obvious that Pompeo's evaluation of WikiLeaks is in part dependent on whose ox is getting gored.
In the Q&A section, Pompeo was even more specific in saying that the protections of the free press are in part bounded by what the government thinks is in its interest:
Julian Assange has no First Amendment privileges. He is not a U.S. citizen. What I was speaking to is an understanding that these are not reporters doing good work to try to keep the American Government on us. These are actively recruiting agents to steal American secrets with the sole intent of destroying the American way of life.
That is fundamentally different than a First Amendment activity as I understand them. This is what I was getting to. We have had administrations before that have been too squeamish about going after these people, after some concept of this right to publish. Nobody has the right to actively engage in the theft of secrets from America without the intent to do harm to it.
Over at The Intercept, Glenn Greenwald, obviously concerned about what it might mean for somebody responsible for helping Edward Snowden reveal domestic surveillance by the National Security Administration, is bothered that the rest of the media is not terribly worried about this. Pompeo's threats are terrible:
When I worked at the Guardian, my editors were all non-Americans. Would it therefore have been constitutionally permissible for the U.S. Government to shut down that paper and imprison its editors on the ground that they enjoy no constitutional protections? Obviously not. Moreover, what rational person would possibly be comfortable with having this determination – who is and is not a "real journalist" – made by the CIA?
Even many of those who believe Snowden broke the law with his disclosures and think he should face some sort of criminal punishment are not on board with punishing the media outlets themselves for reporting information. Pompeo doesn't seem to be as willing to make the distinction. He throws out the word "treason" in reference to those who leak information. He has used the word before to describe Snowden directly.
Pompeo further insists that Snowden isn't a whistleblower because he didn't follow the proper procedures, which has been a common refrain from apologists for the surveillance state across party lines. Why should anybody accept the government's designation of who a "whistleblower" is any more than they would allow the government to decide what a real media outlet is or who a journalist is?
The reality is that because of Snowden's disclosures, Congress changed the laws in order to place restraints on the government's ability to collect and keep mass amounts of metadata on American citizens. If we were instead to evaluate Snowden on the basis of the outcome of his leaks, he sure as heck counts as a whistleblower. Congress changed laws because of what he showed us and because of the public's outrage over it.
Pompeo, though, supports bulk data collection and surveillance, even domestically. So really, when all is said and done, he is in a very disturbing fashion deciding that concepts like free speech and privacy are subservient to whatever the government declares is in its own interest.
And yet he's telling us to be worried about WikiLeaks.
The post CIA Head Pompeo Would Like to Decide What Counts as a Real Media Outlet appeared first on Reason.com.
]]>Republican House Intel Chairman Devin Nunes (R-California) held a rather unusual press conference this afternoon to declare that he had received information that the feds did indeed secretly collect and disseminate private info from and about Trump's transition team post-election.
To be clear, Nunes (a Trump supporter) said that whatever private information was collected during surveillance was "incidental." This likely means that the team members were not direct targets of federal surveillance but were in contact with people who actually were targets, and whatever happened during conversations or communications got swept up in surveillance. The actual targets could be people under federal investigation, but they could also be any foreign power the government is keeping an eye on.
The natural inclination here is to assume this is part of the whole dust-up over ties between the Trump administration and Russia. Funny there's news on that today, too. Nunes wouldn't say a whole lot about what was happening (which makes his run to the media a little weird) but insisted that this incidental surveillance was not connected to Russia at all. He also seems to think the incidental collection itself was "legal," but isn't entirely sure.
It seems as though the press conference is intended to bolster the argument coming from some Republicans that the problem here is the leaking or spread of information within the intelligence community. Nunes said that some names had been "unmasked" in intelligence reports that had been distributed internally. This means that, much like what might have happened with former National Security Adviser Michael Flynn, the names of Americans who had been swept up in this surveillance may have gotten into the hands of intelligence community workers who weren't supposed to have them.
Nunes is a mass surveillance supporter, and so he's trying to thread a needle here. He wants to present Trump and Trump's staff as having their privacy violated by leaks while not wanting to suggest there's a problem with the amount of surveillance that takes place.
But there is a definite "Switch places, everybody!" mentality on surveillance authority now that Trump and Trump's people have been targeted. This tweet by Rep. Ted Lieu (D-Calif.) is quick to say that the surveillance must have been connected to an investigation or influence by a foreign power. Lieu, however, is also a big opponent of mass unwarranted surveillance, and you'd think he'd be a bigger skeptic than this. Getting your private data and information "incidentially" collected in surveillance is not and should not be treated as evidence of wrongdoing, and that was partly the point of efforts to restrict federal authorities collecting whatever they could.
In all likelihood, mass unwarranted surveillance played absolutely no role in this snooping, and the intelligence officials had secret warrants though the Foreign Intelligence Surveillance Courts. But for somebody who sits on Congress' Fourth Amendment Caucus to jump in the direction that suggests an assumption of guilt on the basis of it being a political opponent is a problem.
Clearly, there will be a lot more to come on this issue. Watch a bit of the presser with Nunes below. Trump has said he feels "somewhat vindicated" (according to the Associated Press) about his insistence that he had been wiretapped. (UPDATE: Rep. Adam Schiff, ranking Democrat on the Intelligence committee, responds here to the oddness of Nunes running to the press):
.@devingnunes: "I have seen intelligence reports that clearly show that the President-elect and his team were, I guess, at least monitored…" pic.twitter.com/wCxJu3irPZ
— CSPAN (@cspan) March 22, 2017
The post Trump Team Was 'Incidentally' Snooped on Post-Election, Says GOP Intel Chair Devin Nunes appeared first on Reason.com.
]]>Rachel Maddow of MSNBC today announced she had a big exclusive: a copy of President Donald Trump's tax returns from 2005. She promised she'd reveal the details on her show tonight at 9 p.m.
Unfortunately, she has decided that she should open her show by using her captive audience to babble on and on and on about every single thing she thinks about corruption in the Trump administration, sounding like the guy at the gym you never, ever make eye contact with. The Daily Beast has some analysis from the source of the leaked returns, David Cay Johnson of DCReport.org. And you don't have to endure a 15-minute monologue first:
Donald Trump earned more than $150 million in the year 2005—and paid just a small percentage of that in regular federal income taxes. Daily Beast contributor David Cay Johnston has obtained what appear to be the first two pages of Trump's 2005 federal income tax return, and published an analysis of those pages on his website, DCReport.org. The Daily Beast could not independently verify these documents.
The documents show Trump and his wife Melania paying $5.3 million in regular federal income tax—a rate of less than 4% However, the Trumps paid an additional $31 million in the so-called "alternative minimum tax," or AMT. Trump has previously called for the elimination of this tax.
"Before being elected President, Mr. Trump was one of the most successful businessmen in the world with a responsibility to his company, his family and his employees to pay no more tax than legally required," the White House said in a statement. "That being said, Mr. Trump paid $38 million dollars even after taking into account large scale depreciation for construction, on an income of more than $150 million dollars, as well as paying tens of millions of dollars in other taxes such as sales and excise taxes and employment taxes and this illegally published return proves just that."
The actual tax return info itself doesn't sound particularly interesting or damning. Note that this is the same tax year where Trump had previously gotten a major tax deal. Probably the bigger news is that Trump insisted and insisted and insisted both before and after the election that he could not release his tax returns because he was being audited. It became very clear very quickly that this is nonsense and many people have said so. But hilariously, before Maddow even made it on the air, the White House responded by confirming the number (ruining her scoop) and then complaining that providing the information is illegal. So the White House just deflated Trump's previous argument that he couldn't release his tax documents. But they also responded in a way that attempts to cast Trump as some sort of victim of an "illegal" disclosure that wouldn't have happened had he been transparent in the first place.
I'm hesitant at this point to even suggest that anything valuable at all will come from this info leak other than the continued polarization of two sides. The fact that Trump refused to release his returns for the dumbest of reasons didn't seem to affect those who voted for him. His angry response was to attack the media and then promise to stick with his own agenda. So it's perhaps political business as usual. Still, it's a net good for public transparency that Americans get this information and are able to evaluate it and decide for themselves whether they should care.
Update: The lack of any sort of smoking gun in the tax filings and the fact that they're apparently labeled "client copy" are already leading to theories that Trump himself had them leaked.
The post Leaked Returns: In 2005, Trump Claimed $150 Million in Earnings, Paid $36 Million in Taxes appeared first on Reason.com.
]]>News over the weekend that White House Press Secretary Sean Spicer is furious about leaks to the press led to some social media amusement by the politically attentive, because what happened during his private meeting with his own staff was also immediately leaked to the press. There were leaks about the effort to fight leaks.
On Sunday Politico reported that Spicer (accompanied by White House lawyers) brought in his staff and had them dump out their phones and tech devices—both those from work and personally owned—for inspection to find out if they're responsible for leaks. And there's also the matter of the tools they're using to communicate with:
There, he explicitly warned staffers that using texting apps like Confide — an encrypted and screenshot-protected messaging app that automatically deletes texts after they are sent — and Signal, another encrypted messaging system, was a violation of the Presidential Records Act, according to multiple sources in the room.
The phone checks included whatever electronics staffers were carrying when they were summoned to the unexpected follow-up meeting, including government-issued and personal cellphones.
Spicer also warned the group of more problems if news of the phone checks and the meeting about leaks was leaked to the media. It's not the first time that warnings about leaks have promptly leaked. The State Department's legal office issued a four-page memo warning of the dangers of leaks, and that memo was immediately posted by The Washington Post.
So a good chunk of coverage of this incident is of the "Ha! Ha! They can't stop the leaks!" variety. In general, the leakiness of President Donald Trump's administration is a good thing. The public will have a better sense of what they're up to. President Barack Obama's administration unleashed pages upon pages upon pages of new regulations and expanded executive branch authority without a lot of media attention unless there were legal challenges. The Trump administration is not even going to be able to sneeze without a reporter offering a Kleenex.
But we do not want to ignore Spicer's warning about how secretive, encrypted communications within the White House are a violation of federal law, because it does have potential implications. A government with staffers who use encrypted communication methods to leak information to the press is also a government with staffers who use encrypted communications methods to keep important discussions out of the hands of the press and the public as well.
It's important to recall that the origins of the Hillary Clinton private email server scandal were rooted in concerns that State Department employees were using these secret backchannels to protect their communications from Freedom of Information Act requests.
So we end up in an awkward space where the lack of communication discipline can lead to two wildly divergent results—all at the same time: Information that the White House wants to keep private can get leaked to the press; but information the press and public should have the right to know about gets concealed.
It's also worth noting, since I pointed this out with Clinton during the campaign, Trump has publicly taken a very dim view on citizens' rights to privacy via encryption. When Apple resisted the FBI's legal demands that the company weaken its own security systems so that the feds could attempt to break into the phone of one of the San Bernardino terrorists, Trump took the FBI's side and called for a boycott of Apple.
This leak issue is an interesting instruction on the impossibility of reining in encryption as a tool to conceal communications. But it shouldn't surprise us if the Trump administration attempts to do just that anyway. The administration is not happy about these leaks and we should not be surprised if they do everything in their power to try to track down and possibly even prosecute those who reveal information to the press and public.
Is there a solution to the dilemma that encryption both creates a platform for leakers and a mechanism for government secrecy? Probably the same solution libertarians and small government conservatives hammer over and over and over again: If the executive branch had much less authority to implement pervasive regulatory power over the citizens without the proper oversight of the other two branches of government, it would have much less incentive to be so secretive. Lobbying and cronyism that influence the regulatory state are bolstered in an environment where bureaucrats are free to make significant policy decisions without public awareness.
The post The Double-Edged Sword of Encrypted White House Chatter: Leaks Vs. Secrecy appeared first on Reason.com.
]]>One would think that letting prosecutors know which police officers have histories of misconduct would actually be beneficial to putting criminals behind bars. If prosecutors knew about problems with an officer's history, they'd be better prepared for a possible attack on his or her credibility if it comes up in a courtroom.
But in California, thanks to laws that treat police officers' personnel records like sealed secrets, police are able to resist (so far successfully) efforts to let prosecutors know when they've got a potentially dirty officer. The Los Angeles Sheriff's Department put together a list of 300 of its own deputies that have records of misconduct. The union that represents them has so far used the courts to stop the LASD from passing those names along to prosecutors.
As the Los Angeles Times notes, this is much bigger than just concealing information from prosecutors. My lede paragraph above is wrong in another way: Because police personnel records and reputations are so thoroughly hidden by law in California, defendants and defense attorneys are far less likely to even know a cop's background to even bring it up in the courtroom. If the Sheriff's Department passes these names along to the prosecutors, they would be duty-bound to inform the defense of any information that could be relevant to the case, like, say, an officer with a record of dishonesty or violence on the job.
So this fight to conceal police officer work history is fundamentally a deliberate effort to deprive criminal defendants of potentially important information that could affect the case. Even prosecutors and defenders have to get special court orders to get information from individual police records.
The police union complained that revealing the information would "draw unfair scrutiny on deputies whose mistakes might have happened long ago." First of all, that sounds like the kind of thing that a jury should get to decide is still relevant, not law enforcement. Second, man, wouldn't it be great if you or I could make the same argument? But no, how many news stories do we see or read about a person arrested for a crime where the police have passed along to the media the suspect's entire criminal record, including mistakes that might have happened long ago?
Right now prosecutors seem to have either informal agreements with police departments to get information about bad officers, or prosecutors find out when officers themselves have been defendants in criminal cases or their behavior shows up in news articles. But several law enforcement agencies, besides the Los Angeles Sheriff's Department are looking to make a more formal arrangement to pass along information to prosecutors. Good for them for at least taking a stab at being more transparent internally about police misconduct.
A judge initially ruled that LASD could only pass along the names of problem officers when there's a pending case where they might testify. But even that was too much for the union, who wanted a full hold on the transmission of any names, and this request was granted. The lawyer for the sheriff's department thinks the case might have to go all the way to the state's Supreme Court to be resolved. This should not come as a surprise. The Los Angeles Times had to go all the way to the California Supreme Court to get law enforcement agencies to cough up the names of officers who were involved in shootings.
Related, we can head over to Chicago to see what happens when a police officer's lengthy record of misconduct complaints is public, including a case (where he was lead detective) where the city ended up paying $750,000 to man wrongly convicted of murder. The officer was recently promoted to commander! Wait, that's awful. Let's just spin it as proof that California doesn't need to conceal its officers' histories of misconduct if nobody's ever going to hold them accountable anyway.
The post When Even Prosecutors Can't Be Informed About Corrupt Cops, We've Got a Problem appeared first on Reason.com.
]]>As the United Kingdom puts into place a law increasing the government's secret access to private citizen digital data, a commission is also making recommendations that could increase criminal penalties for exposing information the government wants to keep to itself.
The Law Commission, an independent U.K. agency that puts together recommendations to reform the legal code, is in the midst of suggesting updates to the laws that monitor and punish leaks of sensitive government data. It just put out a massive report that among other things, recommends the possibility of increasing criminal penalties from a two-year maximum to maybe 14 years depending on the situation. It also suggests the idea that simply receiving sensitive information can be worthy of criminal penalties, not just disseminating it. And it warns against the creation of a specific statutory defense where those accused of violating the law could claim disseminating the government information was in the public's interest.
The Guardian, the U.K.-based newspaper which broke the initial stories about the surveillance information leaked by Edward Snowden, noted that this seemed very much like an effort to target whistleblowers in the media in order to protect state secrets. In addition to the concerns about the recommendations, apparently the Law Commission is acting as though it had "consulted" media and civil liberties groups, but those parties say they just had what they thought were less formal discussions about it:
The Guardian also held only one preliminary meeting with the government's legal advisers and was not consulted before being listed in the report. A spokesperson said: "The proposals to threaten journalists and whistleblowers with draconian punishment, combined with powers just introduced in the [2016] Investigatory Powers Act to surveil journalists without their knowledge, represent a further attack on freedom of expression.
"We are surprised that a roundtable discussion with the Law Commission, which they billed as a 'general chat', has been described as formal consultation, and concerned that despite being told that we would be informed about the progress of these plans, the first we knew about them was when the law commissioner put pen to paper in the Daily Telegraph last week."
Killock said: "This is a full-frontal attack, recommending criminalising even examining secret services' material. The intention is to stop the public from ever knowing that any secret agency has ever broken the law.
The government is already stepping back a bit from the recommendations. This process began under the previous administration and was inherited by U.K. Prime Minister Theresa May. A source told The Guardian that it would not be the government's policy to attempt to punish journalists and public service whistleblowers.
But the law to increase the surveillance authorities by British government agencies was entirely May's baby. She fought for it prior to becoming prime minister and essentially brought the Investigatory Powers Act with her. She is a surveillance state-supporting leader, and British citizens should be deeply suspicious of her intent when it comes to protecting their rights.
Over here in the United States, in the wake of National Security Adviser Michael Flynn resigning over leaks of conversations between him and the Russian government, we have this tweet from President Donald Trump:
The real story here is why are there so many illegal leaks coming out of Washington? Will these leaks be happening as I deal on N.Korea etc?
— Donald J. Trump (@realDonaldTrump) February 14, 2017
Trevor Timm today notes over at the Columbia Journalism Review that even with an administration in office for less than a month, leaks to the media are playing an important role in preventing some potentially dangerous policies or decisions from being implemented. Given Trump's dislike of the press, we should be concerned about any ideas from England to make punishments for leaks harsher arriving on American shores.
The post U.K. Considers War on Leaks by Criminalizing Even <em>Receiving</em> Secret Gov't Info appeared first on Reason.com.
]]>New Jersey legislators voted unanimously to require prosecutors within the state to reveal more information about how they use civil asset forfeiture, the system where police seize and keep property from people without necessarily ever having to prove they've committed a crime.
Despite unanimous approval, Republican Gov. Chris Christie just vetoed the bill, arguing that it would "jeopardize the safety of the public and law enforcement officers."
To be clear, the law does nothing of the sort. It doesn't even so much as change the rules for civil asset forfeiture, despite the propensity for law enforcement and prosecutors to abuse it on order to attempt to bankroll agencies and fill budget gaps.
What Senate Bill 2267 does is expand the amount of information county and state prosecutors provide annually about how civil asset forfeiture mechanisms are actually used within the state. Christie's not opposed to transparency completely—just perhaps the kind of transparency that could highlight some of the troublesome impacts of such forfeiture. From NJ.com:
The bill would have required prosecutors disclose to the state attorney general each seized asset, the circumstances of its seizure and the law enforcement purpose for which it was used. The attorney general would then be required to publish an annual report.
Christie instead recommended a quarterly report in which prosecutors identify seized assets and detail the legal proceedings by which they were seized.
County prosecutors already produce similar reports, which are reviewed by the Attorney General's Office but not made public, according to a spokesman for that office.
Under Christie's proposal, prosecutors also would not have to disclose why they seized an asset or for what purpose it would be used.
Christie's provisional veto (he's requesting changes for reconsideration) claims that the law would require reporting "voluminous information that has no legitimate or logical relationship to the asset being seized or the ultimate use of the asset." How could an annual report about seized property jeopardize law enforcement efforts or result in disclosures the governor declares is not relevant? It doesn't, but what the bill does require is for prosecutors to report things like:
"[A] description of the location at which the property was seized, including whether the property was seized from a private residence or business or during a traffic stop; if the property was seized during a traffic stop, the name of the highway, street, or road on which the property was seized and whether the vehicle was traveling northbound, southbound, eastbound or westbound"
Demanding such specific traffic stop detail may seem confusing, but allow me to explain. One of the twisted incentives that result from these asset forfeiture systems is that police are essentially rewarded for allowing the drug trade to occur and then attempting to snatch the profits. Evidence has shown some police keeping an eye on drug corridors with a focus on stopping and searching vehicles only the side where the money travels.
The consequence here is that anybody traveling with cash is at risk of having it seized and having the police claim that this money is the result of a drug deal (with no evidence) and attempting to keep it. Many, many outrage stories about police inappropriately attempting to seize the cash of innocent people merely driving down highways involve claims of drug trafficking. Because police are intent on trying to grab the cash rather than the drugs, they don't have any actual evidence of a crime.
Disclosing all this traffic stop information would help monitor police behavior and inform the public whether law enforcement agencies are giving preferential treatment to profiting off the drug war rather than fighting drug trafficking (not that police should be continuing to perpetuate the unwinnable drug war). This matters because law enforcement and defenders of civil asset forfeiture insist that forfeiture is all about taking down those big drug lords and grabbing their stuff. In actual practice, forfeiture gets relatively small amounts of property and cash from people who lack the resources and knowledge to fight back—particularly because the "civil" forfeiture process doesn't guarantee legal representation.
The Institute for Justice, which fights to try to stop civil forfeiture, recently graded the states for the transparency of their systems. New Jersey got a D+. While the state is very good at publicly accounting for how forfeiture funds are spent, it is much less open about how it gets its hands on people's property, something this law was attempting to fix.
C.J. Ciaramella recently wrote about the lack of state-level transparency on its use (and dependence) on civil asset forfeiture. Read more here.
Yesterday, President Donald Trump highlighted the civil asset forfeiture issue with what (we hope) is a joke threatening to destroy the career of a Texas politician looking to reform the system. It would be kind of hilarious if his boorish behavior actually drew attention to the controversy. Polls show that citizens across all demographics dislike civil asset forfeiture when it's explained to them. Taking people's property without proving they've committed a crime is not something Americans support. But the challenge is that they often don't know what "civil asset forfeiture" means and how it works. If Trump's comments causes more Americans to learn what actually happens, that sheriff may regret bringing it up.
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]]>This week's release of the affidavit that the FBI used to obtain a warrant for Anthony Weiner's laptop has renewed criticism of the way FBI Director James Comey handled the investigation of Hillary Clinton's email practices as secretary of state. Much of that criticism is misplaced, but some of it is valid, even for those of us who don't share Bill Clinton's dismissive view of "that bogus email deal."
As you may recall (perhaps you thought you only dreamed it), FBI agents were looking into allegations that Weiner, the disgraced former New York congressman, had exchanged sexually explicit messages with a 15-year-old girl when they discovered that his laptop contained thousands of emails between Weiner's wife, Clinton aide Huma Abedin, and her boss from the period when both worked at the State Department. Since the FBI already knew that Clinton and Abedin had used the secretary of state's unsecured, unapproved private server to exchange messages that included classified material, the discovery was clearly relevant to the question of whether Clinton had broken any laws restricting the handling of such information.
"This affidavit relates to a criminal investigation concerning the improper transmission and storage of classified information on unclassified email systems and servers," wrote the FBI agent who applied for the warrant to examine the newly revealed email cache. In his affidavit, he argued that there was probable cause to believe that Weiner's laptop, which "was never authorized for the storage or transmission of classified or national defense information," contained "items illegally possessed in violation of Title 18, United States Code, Section 793(e) and (f)."
The first provision applies to someone who has "unauthorized possession of, access to, or control over" classified information and who "willfully retains" the material or passes it along to "any person not entitled to receive it." The second provision covers someone with authorized access to classified information who "through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust." Both are felonies punishable by up to 10 years in prison.
Some of Clinton's allies argue that the FBI lacked probable cause for a warrant because Comey announced last July that he had decided not to recommend charges against her and anything found on Weiner's computer was unlikely to change that decision. "There was nothing in [the] search warrant filing to controvert Comey's statements from July and truly establish probable cause of a crime," former Clinton campaign spokesman Brian Fallon said on Twitter. But Comey described Clinton's handling of classified material as "extremely careless," a judgment that seems to support a charge under 18 USC 793(f). He said he did not recommend such a charge not because it was legally unsupportable because it would be unfair to prosecute Clinton without evidence that she knowingly broke the law.
The argument that a just prosecution requires evidence of criminal intent is compelling, not only for Clinton but for anyone accused of breaking the law. But such evidence is not required by the statute, so the prospect of finding additional classified material that Clinton handled improperly, even if she did not intend to break the law, would be legally sufficient to support a warrant. Add to that the possibility that Abedin or someone else who participated in the correspondence on her husband's computer violated 18 USC 793, and it clearly was reasonable for the FBI to think there might be evidence of a crime in those emails.
"The standard for probable cause is 'more likely than not,'" Ron Hosko, a former FBI assistant director, told The New York Times. "What's probable cause? Something that makes it more likely [than] not that there is information related to a federal offense and it exists in this location. You're not trying to make the federal case. You're trying to get over a legal threshold, and it is the lowest legal threshold there is."
Hosko misstates the probable cause standard, although it would be better for everyone's privacy if cops and judges followed his definition. He is describing "preponderance of the evidence," the standard of proof used in civil cases. Probable cause is a weaker standard, situated somewhere between reasonable suspicion and preponderance of the evidence. The definition of probable cause, "a fair probability," is far from mathematically precise, but based on what the Supreme Court has said in Fourth Amendment cases it is considerably less demanding than a preponderance of the evidence, which implies a probability of more than 50 percent. Based on what the FBI had previously found in Clinton's email, it does not seem like a stretch to say there was a fair probability that Abedin's correspondence with her would contain mishandled classified information.
Comey's critics are on firmer ground in asking why the FBI did not move more swiftly to obtain the warrant and complete its review of the emails, which ultimately concluded, just two days before the presidential election, that they contained no new evidence that would justify criminal charges. That was more than a week after Comey had revealed the existence of the emails in an October 28 letter to members of Congress—another decision that his critics are right to question. Comey reportedly feared that news of the email trove would leak if he said nothing about it, creating the appearance that he was favoring Clinton by concealing information of potential interest to voters. Instead he was criticized for favoring Donald Trump by revealing the information, which Clinton and her supporters say had a decisive impact on the election.
The FBI could not have simply ignored Abedin's emails, which could have revealed new violations of 18 USC 793. But it could have investigated that possibility more expeditiously and discreetly. Agents seized Weiner's computer in early October and by the middle of the month had informed Comey that it contained Abedin's work-related correspondence. But the FBI did not seek the warrant until October 30, two days after Comey's letter. That timeline makes it look like Comey was more worried about covering his ass than resolving the legal issues raised by the emails.
The post What Critics of the FBI's Clinton Investigation Get Right appeared first on Reason.com.
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