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    KC & Associates Investigations Research Associates

    Quinault Valley Guns & Blades / Urban Escape & Evasion Course

    International Relations * Military * Terrorism * Business * Security [email protected]

    Kathleen Louise dePass Press Agent/Publicist.360.288.2652

    Triste cosa es no tener amigos, pero ms triste ha de ser no tener enemigos porque quin no tenga enemigos seal

    es de que no tiene talento que haga sombra, ni carcter que impresione, ni valor temido, ni honra de la que se

    murmure, ni bienes que se le codicien, ni cosa alguna que se le envidie.A sad thing it is to not have friends, but

    even sadder must it be not having any enemies; that a man should have no enemies is a sign that he has no

    talent to outshine others, nor character that inspires, nor valor that is feared, nor honor to be rumored, nor

    goods to be coveted, nor anything to be envied. -Jose Marti

    From the desk of Craig B Hulet?

    Targeted Killings & the Right to Know When Your Government Can Kill You

    NSA Whistleblower: Justice Department Covers Up Crimes of Obama, Bush Administrations

    Foreign Intelligence Surveillance Act

    Obama Signs FISA Warrantless Wiretapping Program Extension Into Law

    Ex-CIA Agent, Whistleblower John Kiriakou Sentenced to Prison While Torturers He Exposed Walk Free

    Obama Administration Excludes National Security Policies from Commitment to Transparency

    Obamas Im-No-Dick-Cheney Standard for Government Secrecy

    Obama as Narcissistic Paranoid Suffering Hoplophobia; he

    Projects on to American Gun Owners his own Hatred for Them[email protected]:[email protected]://[email protected]://
  • 7/28/2019 FISA Whistleblowers



    NSA Whistleblower: Justice Department Covers Up Crimes of Obama, Bush


    Foreign Intelligence Surveillance Act

    Ina recent segmentfrom Current TVs show Viewpoint, host Eliot Spitzer interviewed threeNational Security Agency whistleblowers: William Binney, a former technical director; KirkWiebe, former senior analyst; and Thomas Drake, a former senior official. Each man talkedabout what he saw the NSA do when they were employees. Each of these whistleblowers directly

    explained the threats to civil liberties posed by the lawlessness of the NSA in the past decade.

    Much of what is shared in the segment was already shown, but since what the NSA didconstitutes illegality and corruption that have gone unpunished, it is worth highlighting keypoints.

    Drake recounts that shortly after 9/11 he discovered that a legal regimethe ForeignIntelligence Surveillance Actwas now being absolutely violated by NSA in league with theWhite House. FISA created a special court to provide warrants for wiretapping, but NSA wasincreasingly abusing its authority and was secretly and unconstitutionally eavesdropping onAmericans. Drake knew if he remained silent he would be complicit.

    The vast capability of the NSA was increasingly being turned inside the US, Drake says. Tosurveil networks, emails, phone calls, etc. Hundreds of millions of calls from individuals in the

    United States were surveilled as part ofStellar Wind.

    The United States of America was turned into the equivalent of a foreign nation for the

    purposes of dragnet electronic surveillance, Drake adds.

    When Drake pushed back, he was told that the US was living in exigent circumstances. But

    isnt that what the FISA court was for? It allowed for authorities to engage in hot pursuit andthen get a warrant 72 hours later. The answer to Drake was that if they went to Congress it wouldsay no. Plus, the White House had approved the program. Therefore, an official asserted itwas all legal.

    Drake was eventually told, after approaching several individuals with concerns, to stop askingquestions and that he was turned into an enemy of the state
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    Now, the NSA is casting a wide net and capturing gargantuan and obscene amounts of data. It isbuilding centers for databases (e.g. Bluffdale, Utah). It is swimming in data in such a way thatonly complicates efforts to fight the so-called war against terrorism.

    Binney details one of the real problems, which is that the FBI can make random queries into

    the NSA. FBI director Robert Mueller told the Senate Judiciary committee that in order toprevent another Fort Hood incident, the FBI puts together a database with the DefenseDepartment so it can get all emails and future emails. In essence, the FBI and NSA have beenmerging.

    The segment closes with this exchange:

    SPITZER: You see whats going on with the Justice Department these days. Were prosecuting

    Roger Clemens for steroid use. You guys are made into enemies of the state. Nobody on WallStreet has been held accountable. Do you begin to think something is amiss somewhere?

    BINNEY: Absolutely. Absolutely, yes. But the real problem I see is that the DoJ is covering upfor all the crimes that this administration and the previous administration has beencommitting against every one of the public

    WIEBE: We have a Congress that isnt ensuring protections under the Fourth

    Amendment as well. We have a real problem on multiple fronts in government. [emphasisadded]

    Not only is the Justice Department engaged in the act of shielding officials and corporateexecutives from prosecution for crimes, but Congress is not fulfilling its role as the LegislativeBranch that is supposed to check the power of the Executive Branch by engaging in oversight. It

    is complicit and impotent. And as these whistleblowers have been targeted, Congress has notraised much of an objection at all to this conduct by the Obama Justice Department.

    The FBI raided the homes of Binney and Wiebe. The Justice Department under Obama decidednot to go after Binney and Wiebe and went after Drake only. The Justice Department eventuallypushed Drake to plead guilty to a misdemeanor charge after the case against him collapsed.Meanwhile, the press has beenlargely silentas these sources, even though they provided scoopsand great insight into the inner workings of lawlessness in government, are targeted forprosecution.

    The annual report on 2011 from the Justice Department shows secret surveillance under FISA

    went up. The FISA court did not deny a request to eavesdrop or spy, according to the privacygroup known as EPIC:

    # of DOJ requests to the FISA court to eavesdrop on and/or physically search Americans/legalresidents: 1,745

    # of FISA court denials: 0,%20we%20were%20in%20an%20entirely%20new%20vehicle%20%E2%80%94%20in%20absolute%20violation%20of%20the%20Constitution.%20I%20knew%20if%20I%20remained%20silent%20that%20I%20would%20be%20complicit%20to%20the%20subversion%20of%20our%20own%20Constitution.%E2%80%9D,%20we%20were%20in%20an%20entirely%20new%20vehicle%20%E2%80%94%20in%20absolute%20violation%20of%20the%20Constitution.%20I%20knew%20if%20I%20remained%20silent%20that%20I%20would%20be%20complicit%20to%20the%20subversion%20of%20our%20own%20Constitution.%E2%80%9D,%20we%20were%20in%20an%20entirely%20new%20vehicle%20%E2%80%94%20in%20absolute%20violation%20of%20the%20Constitution.%20I%20knew%20if%20I%20remained%20silent%20that%20I%20would%20be%20complicit%20to%20the%20subversion%20of%20our%20own%20Constitution.%E2%80%9D,%20we%20were%20in%20an%20entirely%20new%20vehicle%20%E2%80%94%20in%20absolute%20violation%20of%20the%20Constitution.%20I%20knew%20if%20I%20remained%20silent%20that%20I%20would%20be%20complicit%20to%20the%20subversion%20of%20our%20own%20Constitution.%E2%80%9D
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    While national security letters (NSLs)a secret subpoena that the government can use to forcethe disclosure of records, banking or credit information of citizensdecreased, Trevor Timm ofthe Electronic Frontier Foundation (EFF) points to a larger issue:

    Perhaps most notably, the governments use ofSection 215the so-called business records

    provision of FISAmore than doubled in 2011. The DOJ filed 205 applications in 2011, upfrom 96 applications made in 2010. This is the same provision that Senators Wyden and Udallhavewarnedus about: the Senators have said that when the American public finds out how thegovernment has interpreted and is using the provision, the public will be stunned and angry.Given this, it is particularly concerning the government is relying on the provision much morefrequently.

    Yes, right now, the Executive Branch has secret interpretations of laws that are not being sharedwith members of Congress. Members of Congress could be more vocal about this issue, but, toprotect their careers or status in government, they are silent, and if they challenge this conduct atall, they do it privately.

    Finally, the secret surveillancethe ever-expanding surveillance stateis defended by theObama administration in court. The American Civil Liberties Union (ACLU) is challenging theconstitutionality of the FISA Amendments Act but the government hastried to block any judicialreviewof the surveillance law. They have opposed the ACLU as the Cyber Intelligence Sharingand Protection Act (CISPA) moves through Congress, granting NSA even more power to collectinformation on US citizens. And, they have opposed the ACLU as theypush Congresstoreauthorize the probably illegal FISA law of which Congress refuses to conduct proper oversight.

    This is because, as Jay Stanley of the ACLUwrites, there is a growing attitude among lawenforcement that there ought to be apresumptionthat citizens communications be susceptible to

    eavesdropping. President Obama has helped this attitude become further entrenched in the dailyoperations of law enforcement.

    The reauthorization of the FISA law will mean the continued expansion of lawlessness betweenthe NSA and other institutions or agencies of government. Employees will witness this andconscientiously object, but they can expect President Barack Obama to have Attorney GeneralEric Holder and the wider Justice Department come after them, as it has been clearlyestablished

    We dont prosecute people for war crimes.

    We dont prosecute people for authorizing or legalizing torture.

    We dont prosecute people who engage in lawless covert operations.

    We dont prosecute people for warrantless wiretapping.

    We dont prosecute people for engaging in corporate crimes, even ones that collapse the USeconomy.
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    We DO prosecute people who blow the whistle on people who have committed any of the above.

    Obama Signs FISA Warrantless Wiretapping Program Extension Into Law

    WASHINGTON (AP)President Barack Obama has signed into law a five-year extension ofthe U.S. government's authority to monitor the overseas activity of suspected foreign spies and


    The warrantless intercept program would have expired at the end of 2012 without the president's

    approval. The renewal bill won final passage in the Senate on Friday.

    Known as the Foreign Intelligence Surveillance Act, the law allows the government to monitor

    overseas phone calls and emails without obtaining a court order for each intercept.

    The law does not apply to Americans. When Americans are targeted for surveillance, the

    government must get a warrant from a special 11-judge court of U.S. district judges appointed by

    the Supreme Court.

    Known as the Foreign Intelligence Surveillance Act, the law allows the government to monitor

    overseas phone calls and emails without obtaining a court order for each intercept.

    The law does not apply to Americans. When Americans are targeted for surveillance, the

    government must get a warrant from a special 11-judge court of U.S. district judges appointed by

    the Supreme Court.

    Ex-CIA Agent, Whistleblower John Kiriakou Sentenced to Prison While Torturers He

    Exposed Walk Free

    Former CIA agent John Kiriakou speaks out just days after he was sentenced to 30 months inprison. January 30, 2013 |

    NERMEEN SHAIKH: A retired CIA agent who blew the whistle on the agencys Bush- era

    torture program has been sentenced to two-and-a-half years in prison. John Kiriakou becomes the

    first CIA official to be jailed for any reason relating to the torture program. Under a plea deal,

    Kiriakou admitted to a single count of violating the Intelligence Identities Protection Act by

    revealing the identity of a covert officer to a freelance reporter, who did not publish it. Under the

    plea deal, prosecutors dropped charges brought under the Espionage Act.

    In 2007, Kiriakou became the first CIA official to publicly confirm and detail the Bush

    administrations use of waterboarding when he spoke to ABCs Brian Ross.

    JOHN KIRIAKOU: At the time, I felt that waterboarding was something that we needed to do.

    And as time has passed and as September 11th hasyou know, has moved farther and farther

    back into history, I think Ive changed my mind, and I think that waterboarding is probably

    something that we shouldnt be in the business of doing.

    BRIAN ROSS: Why do you say that now?

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    JOHN KIRIAKOU: Because were Americans, and were better than that.

    NERMEEN SHAIKH: John Kiriakous supporters say he has been unfairly targeted in the

    Obama administrations crackdown on government whistleblowers. In a statement urging

    President Obama to commute Kiriakous sentence, a group of signatories including attorneys and

    former CIA officers said, quote, "[Kiriakou] is an anti-torture whistleblower who spoke outagainst torture because he believed it violated his oath to the Constitution. ... Please, Mr.

    President, do not allow your legacy to be one where only the whistleblower goes to prison."

    Prosecutor Neil MacBride, the U.S. attorney for the Eastern District of Virginia, defended the

    governments handling of the case.

    NEIL MacBRIDE: As the judge just said in court, todays sentence should be a reminder to

    every individual who works for the government, who comes into the possession of closely held

    sensitive information regarding the national defense or the identity of a covert agent, that it is

    critical that that information remain secure and not spill out into the public domain or be shared

    with others who dont have authorized access to it.

    AMY GOODMAN: John Kiriakou joins us now from Washington, D.C. He spent 14 years at the

    CIA as an analyst and a case officer. In 2002, he led the team that found Abu

    Zubaydah, a high-ranking member of al-Qaeda. Hes father of five. In 2010, he published a

    memoir entitled The Reluctant Spy: My Secret Life in the CIAs War on Terror.

    And were joined by one of John Kirakous attorneys, Jesselyn Radack. Shes the director of

    National Security & Human Rights at the Government Accountability Project, a former ethics

    adviser to the United States Department of Justice.

    We reached out to the U.S. attorneys office for the Eastern District of Virginia, but they

    declined our request for an interview.

    John Kiriakou, why are you going to jail? Explain the plea deal you made with the government.

    JOHN KIRIAKOU: Well, thanks, first of all, for having me and giving me the opportunity to


    Im going to prison, ostensibly, for violating the Intelligence Identities Protection Act of 1982. I

    believe, and my supporters believe, that this, however, was not a case about leaking; this was a

    case about torture. And I believe Im going to prison because I blew the whistle on torture. Ive

    been a thorn in the CIAs side since that interview in 2007, in which I said that waterboarding

    was torture and that it was official U.S. government policy. And I think, finally, the JusticeDepartment caught up with me.

    NERMEEN SHAIKH: Jesselyn Radack, let me just bring you into the conversation to explain

    what the Intelligence Identities Protection Act is. Your client, John Kiriakouits been invoked

    in his case for the first time in 27 years?

    JESSELYN RADACK: Thats correct. In fact, there have only been two convictions under the

    Intelligence Identities Protection Act, which was enacted to prevent cases like Philip Agee, not

  • 7/28/2019 FISA Whistleblowers


    things like John Kiriakou. It was to prevent the revealing of covert identities for profit or to aid

    the enemy. In this case, John confirmed the name of a torturer to a journalist, which makes Neil

    MacBrides statement all the more hypocritical, because the biggest leaker of classified

    information, including sources and methods and undercover identities, has been the U.S.


    AMY GOODMAN: John Kiriakou, explain what it is that you were trying to expose. Explain

    what you were involved with. Talk about Abu Zubaydah, your involvement in the finding of

    him, and then the course you took, where your conscience took you.

    JOHN KIRIAKOU: Sure. In 2002, I was the chief of counterterrorism operations for the CIA in

    Pakistan, and my job was to try to locate al-Qaeda fighters or al-Qaeda leaders and capture them,

    to turn them over to the Justice Department and have them face trial. That was the originalthe

    original idea, not to have them sit in Cuba for the next decade.

    But we caught Abu Zubaydah. He was shot three times by Pakistani police as he was trying to

    escape from his safe house. And I was the first person to have custody of him, to

    sit with him. We spoke to each other extensively, I mean, talked about everything from

    September 11th to poetry that he had been writing, to his family. And then he was moved on to a

    secret prison after that. Once I got back to headquarters, I heard that he had been subject to harsh

    techniques, then euphemistically called "enhanced interrogation techniques," and I was asked by

    one of the leaders in the CIAs Counterterrorist Center if I wanted to be trained in the use of

    these techniques. I told him that I had a moral problem with them, and I did not want to be


    So, fast-forward to 2007. By then, Human Rights Watch and Amnesty International had reported

    that al-Qaeda prisoners had been tortured, and ABC News called and said that they had

    information that I had tortured Abu Zubaydah. I said that was absolutely untrue. I was the onlyperson who was kind to Abu Zubaydah, and I had never tortured anybody. So, they asked me to

    go on their show and defend myself. I did that. And in the course of the interview, I said that not

    only was the CIAtorturing prisoners, but that it was official U.S. government policy. This was

    not the result of some rogue CIA officer just beating up a prisoner every once in a while; this

    was official policy that went all the way up to the president of the United States.

    NERMEEN SHAIKH: And so, what happened after that, in 2007, once you gave this interview?

    Can you explain what happened to you and to your family?

    JOHN KIRIAKOU: Sure. Within 24 hours, the CIA filed whats called a crimes report against

    me with the Justice Department, saying that I had revealed classified information, which was thetorture program, and asking for an investigation with an eye toward prosecuting me. The Justice

    Department decided at the time that I had not revealed classified information, that the

    information was already in the public domain. But immediately, within weeks, I was audited by

    theIRS. Ive been audited by the IRS every single year since giving that interview in 2007.

    But a more important bit of fallout from that interview was that every time I would write an op-

    ed, every time I would give a television interview or give a speech at a university, the CIA would

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    file a crimes report against me, accusing me of leaking additional classified information. Each

    time, the Justice Department determined that I did not leak any classified information. In fact, I

    would get those op-eds and those speeches cleared by the CIAs Publications Review Board in


    Then the CIA started harassing my wife, who at the time was a senior CIA officer, particularlyover an op-ed I had written. They accused her of leaking classified information to me for the

    purpose of writing the op-ed. Well, I said I had gotten the information in the op-ed from two UPI

    reports and from a South American Ministry of Foreign Affairs website. And they would back


    But this sort of became our life. We would be under FBI surveillance. She would be called into

    the CIAs Office of Security. I would have trouble getting a security clearance when I went to

    Capitol Hill. It just became this pattern of harassment.

    AMY GOODMAN: So, John, why didnt you stop?

    JOHN KIRIAKOU: Because I think thatthat torture is something that needs to be discussed. Isaid this in 2007. This is something that we shouldabout which we should be having a national

    debate. And frankly, I have a First Amendment right to free speech. And, you know, writing an

    op-ed is not against the law. Giving a speech about the Arab Spring or about torture is not

    against the law. And I felt thatthat I didnt want to be cowed. I didnt want tobe frightened

    into silence by theCIA.

    NERMEEN SHAIKH: And, John Kiriakou, you said that in these instances that youve named,

    you were actually charged with espionage, is that right? Can you talk about the significance


    NERMEEN SHAIKH:of the Espionage Act?

    JOHN KIRIAKOU: Yes, the government initially charged me with three counts of espionage.

    Imit sounds silly maybe, but Im still personally offended by these espionage charges, which

    were dropped, of course. The espionage charge is used as a hammer by the administration to

    force people into silence. My espionage charge is related to a conversation that I had with a New

    York Times reporter. ANew York Times reporter approached me and said that he was writing a

    story about a colleague of mine, and would I grant him an interview. I gave him the interview. I

    said this colleague was a great guy, the unsung hero of the Abu Zubaydah operation, terrific

    officer. And the reporter said, "Do you know how I can get in touch with him?" And I said, "No,

    Ive been out of touch with him for a while, but I think I might have his business card." So I gave

    the reporter the business card. Now, mind you, this is a CIA officer who had never, ever been

    undercover. His business card showed that he was involved as a CIA contractor, and it had his

    personal email on it and his cellphone number. I gave the reporter the business card and was

    charged with two counts of espionage. I later gave the same business card to another journalist

    who was doing an article and was charged with a third count of espionage.

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    AMY GOODMAN: What is it that you allege the CIA was doing for all of these years? Explain

    the torture program that you were trying to expose.

    JOHN KIRIAKOU: Sure. There werethere were something like 10 different techniques that

    were used in the CIAs torture program. They went from the benign, you know, where an officer

    would grab a prisoner by the lapels and give him a shake, all the way up to the really roughthings that weve heard about, like waterboarding or, what I think is worse, sleep deprivation or

    the cold cell, where theyll put a prisoner naked in a cell chilled to 50 or 55 degrees, and then

    every hour or two throw ice water on him. I actually think those last two are worse than


    But, again, these are techniques that we have condemned other countries for throughout history.

    The Japanese did this during the Second World War. The Belgians did it in Africa earlier in the

    century. The Chinese and the Vietnamese did it. This isthese are techniques that we have

    always said were crimes against humanity. And then it was theit was though after September

    11th everything changed, and we somehow had license to do the same things we had been

    condemning. I thought that was wrong. You know, Director Petraeusformer Director Petraeusmade a statement in October when I agreed to take a plea to make these other charges go away,

    and he said that my conviction shows that we have to take our oaths seriously. Well, I took my

    oath seriously. My oath was to the Constitution. On my first day in the CIA, I put my right hand

    up, and I swore to uphold the Constitution. And to me, torture is unconstitutional, and its

    something that we should not be in the business of doing.

    NERMEEN SHAIKH: John Kiriakou, I want to play for you comments President Obama made

    four years ago, shortly before he took office, about whether CIAofficials involved in torture

    should be prosecuted. He appeared on the ABC NewsThis Week.

    PRESIDENT-ELECT BARACK OBAMA: I dont believe that anybody is above the law. On theother hand, I also have a belief that we need to look forward as opposed to looking backwards.

    And part of my job is to make sure thatfor example, at the CIA, youve got extraordinarily

    talented people who are working very hard to keep Americans safe. I dont want them to

    suddenly feel like theyve got to spend all their time looking over their shoulders and lawyering.

    GEORGE STEPHANOPOULOS: So no 9/11 Commission with independent subpoena power?

    PRESIDENT-ELECT BARACK OBAMA: You know, we have not made final decisions, but

    my instinct is for us to focus on how do we make sure that, moving forward, we are doing the

    right thing.

    NERMEEN SHAIKH: That was President Obama speaking four years ago to ABC. JohnKiriakou, your response to what the presient said?

    JOHN KIRIAKOU: I supported the presidents response. I remember that interview, and I

    thought, "OK, hes right. There are wonderful, talented, hard-working men and women at the

    CIA who need to be protected." But at the same time, its one thing to look forward; its another

    thing to look forward just for the torturers. Its just not fair. Its not fair to the American people.

    If were going toif were going to make prosecutions or initiate prosecutions, those

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    prosecutions cant just be against the people who blew the whistle on the torture or who opposed

    the torture. You know, we haventwe havent even investigated the torturers, as Jesselyn said.

    We havent initiated any actions against the people who conceived of the torture and

    implemented the policy, or against the man who destroyed evidence of the torture, or against the

    attorneys who used specious legal arguments to justify the torture. If were going to move

    forward, lets move forward, but you cant target one person or two people who blew the whistle.

    NERMEEN SHAIKH: John Kiriakou, youve also spoken about witnessing new Foreign Service

    officers being confirmed, Foreign Service officers who were previously with the CIA and

    participated in acts of torture. Could you explain what happened and explain its significance?

    JOHN KIRIAKOU: Yes. When I was a senior investigator on the Senate Foreign Relations

    Committee, I was approached by a journalist who said that he had evidence that the CIA was

    misusing its cover agreement with the State Department to place people involved in the torture

    program under State Department cover so that their names could not be exposed in the press.

    And if those names were exposed in the press, the people giving the names would be subject to

    the Intelligence Identities Protection Act. So, again, this was a violation of the CIA-StateDepartment cover agreement. I sent a letter under Senator John Kerrythen-Senator John

    Kerrys signature, asking the CIA for clarification. I got a response about six weeks later that

    was classified top-secret, so I was not permitted to see the response. I did not have a top-secret

    clearance at the time. And a colleague of mine told me that the letter essentially said, in very

    strongly worded language, to mind my own business.

    AMY GOODMAN: Were going to go to break. When we come back, we want to ask you about

    President Obamas nominee to become the next head of the CIA, John Brennan, because as you

    talk about the administration, were talking actually about administrations, from the Bush

    administration to the Obama administration. Our guest is about to go to jail. His name is John

    Kiriakou. Hes about to serve two-and-a-half years in jail. This will be one of his last interviewsbefore he goes to prison. Were joined also by Jesselyn Radack, who is one of his attorneys. Stay

    with us.

    Top Federal Prosecutor of Corporate Crime Resigns


    Lanny A. Breuer, the federal prosecutor who led the Justice Departments response to corporate

    crime in the wake of the financial crisis, announced on Wednesday that he is stepping down after

    nearly four years in the post.

    As head of the Justice Departments criminal division, one of the most senior roles at the agency,Mr. Breuer tackled corporate bribery and public corruption. But it was his focus on Wall Street

    that received the most attention, from supporters and critics alike.

    While he has come under fire for a dearth of prosecutions on Wall Street in response to the crisis,

    Mr. Breuer also oversaw an aggressive crackdown on money-laundering and interest-rate

    manipulation at some of the worlds biggest banks. In two weeks last month, he joined a nearly

    $2 billion case against HSBC for money-laundering and a $1.5 billion settlement with UBS for

  • 7/28/2019 FISA Whistleblowers


    rate-rigging. Next week, he is expected to take a similar rate- rigging action against the Royal

    Bank of Scotland.

    I think the criminal division is a fundamentally different place than it was four years ago, Mr.

    Breuer said in an interview on Tuesday. Its the highlight of my professional career.

    His departure, effective March 1, was widely expected. Mr. Breuer had told friends for weeksthat he was ready to leave the public sector. While he has not announced his next step, it is

    expected that he will return to private practice. He was previously a partner at Covington &

    Burling, a white-shoe law firm.

    By virtue of his perch at the Justice Department in Washington, Mr. Breuer became the face of

    Wall Street prosecutions in the aftermath of the financial crisis. But when few such cases

    materialized, critics like the Occupy Wall Street protesters turned on him, portraying him as an

    apologist for banks at the center of the mortgage mess.

    In contrast, he drew praise for the sweeping crackdown on rate-rigging in the banking industry,

    which has largely involved international benchmark rates.

    In a rate manipulation case last month, Mr. Breuers team secured a major payout from UBS and

    a guilty plea from the banks Japanese unit, making UBS the first big global bank in more than

    two decades to have a subsidiary plead guilty to fraud. Mr. Breuer, who announced the action

    after rejecting a last-minute plea from the banks chairman, also filed criminal charges against

    two former employees at the bank.

    The deal sent a strong signal that the authorities wanted to hold banks responsible for their


    Following the UBS model, the Justice Department is now pursuing a guilty plea from a Royal

    Bank of Scotland subsidiary in Asia over its role in the interest rate manipulation scandal, people

    briefed on the matter said. That settlement, which could come as soon as next week, is likely to

    include more than $650 million in fines imposed by American and British authorities, two other

    people with direct knowledge of the matter said.

    In an interview, Mr. Breuer said the rate-rigging case amounted to egregious criminal conduct.

    He struck a similar tone about two other major financial casesthe convictions of executives

    from Taylor, Bean & Whitaker, a now-defunct mortgage lender, and the 110-year prison term

    imposed on R. Allen Stanford for his Ponzi scheme.

    Mr. Breuer has also focused on money-laundering, creating a task force in 2010 that has levied

    more than $3 billion in fines from banks, including the record fine against HSBC. He stoppedshort of indicting HSBC after some regulators warned that doing so could destabilize the global

    financial system.

    Gary Cameron/ReutersLanny A. Breuer has led the Justice Departments criminal division for

    nearly four years in the wake of the financial crisis.

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    Mr. Breuer argued that the charges he did not bringfor example, against Goldman Sachs and

    other banks suspected of fraud after selling toxic mortgage securities to investorscould not

    have been proved. It was not for a lack of trying, he said, noting that United States attorneys

    across the country, after reviewing the same evidence he did, also declined to act.

    Its important for me to hold the financial institutions accountable, he said. Theres neverbeen a time that a prosecutor said we should bring a securitization case and I said no.

    Under Mr. Breuer, the division has also increasingly used a 1977 law, the Foreign Corrupt

    Practices Act, to prosecute corporate bribery.

    He also helped run the Justice Departments investigation of the BP oil spill in the Gulf of

    Mexico, resulting in the company paying $4.5 billion in fines and other penalties and pleading

    guilty to 14 criminal charges related to the rig explosion in 2010.

    In a statement, Attorney General Eric H. Holder Jr. praised Mr. Breuer. Lanny has led one of

    the most successful and aggressive criminal divisions in the history of the Department of

    Justice, he said.

    Mr. Holder stood behind Mr. Breuer when questions arose about his involvement in the botched

    gun-trafficking case known as Operation Fast and Furious. The pair, who were

    both largely cleared after an inspector general investigation, worked together at Covington.

    For years, Mr. Breuer moved in and out of government. The son of Holocaust survivors who fled

    Europe and settled in Queens, he landed at the Manhattan district attorneys office after

    graduating from Columbia Law School. In between stints at Covington, he worked as a White

    House special counsel, defending President Bill Clinton amid federal investigations and

    impeachment proceedings.

    In the interview on Tuesday, Mr. Breuer reflected on his unusual path to the Justice Department.

    The fact that I got to go from Elmhurst, Queens, to the criminal division is remarkable, he said.

    Defense Nominee Hagel, How Will Witnessing Machine-Gunning of an Orphanage Affect Your

    Work at the Pentagon?

    Chuck Hagel's confirmation hearings in the Senate are a chance for the truth about a lost war and

    Americas war-making future. January 31, 2013 |

    Hes been battered by big-money conservative groups looking to derail his bid for secretary of

    defense. Critics say he wants to end Americas nuclear program. They claim hes anti-Israel andsoft on Iran. So you can expect intense questioning -- if only for theatrical effect -- about all of

    the above (and undoubtedly then some) as Chuck Hagel faces his Senate confirmation hearings


    You can be sure of one other thing: Hagels military service in Vietnam will be mentioned -- and

    praised. Its likely, however, to be in a separate and distinct category, unrelated to the pointed

    questions about current issues like defense priorities, his beliefs on the use of force abroad, or the

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    Defense Departments role in counterterrorism operations. You can also be sure of this: no

    senator will ask Chuck Hagel about his presence during the machine-gunning of an orphanage in

    Vietnams Mekong Delta or the lessons he might have drawn from that incident.

    Nor is any senator apt to ask what Hagel might do if allegations about similar acts by American

    troops emerge in Afghanistan or elsewhere. Nor will some senator question him on the possibleparallels between the CIA-run Phoenix Program, a joint U.S.-Vietnamese venture focused on

    identifying and killing civilians associated with South Vietnams revolutionary shadow

    government, and the CIAs current targeted- killing-by-drone campaign in Pakistans tribal

    borderlands. Nor, for that matter, is he likely to be asked about the lessons he learned fighting a

    war in a foreign land among a civilian population where innocents and enemies were often hard

    to tell apart. If, however, Hagels military experience is to be touted as a key qualification for

    his becoming secretary of defense, shouldnt the American people have some idea of just

    what that experience was really like and how it shaped his thinking in regard to todays wars?

    Chuck Hagel on Murder in Vietnam

    "In Chuck Hagel our troops see a decorated combat veteran of character and strength -- they see

    him as one of their own," President Obama said as he nominated the former Republican senator

    from Nebraska to become the first former enlisted service member and first Vietnam veteran to

    serve as secretary of defense. He went on to call him the leader that our troops deserve.

    Chuck Hagel and his younger brother, Tom, fought together in Vietnam in 1968. The two are

    believed to be the only brothers to have served in the same infantry squad in that war and even

    more remarkably, each ended up saving the other's life. With Chuck, our troops will always

    know, just as Sergeant Hagel was there for his own brother, Secretary Hagel will be there for

    you, the president said.

    Largely unnoted was the falling out the brothers had over the conflict. After returning home,

    Tom began protesting the war, while Chuck defended it. Eventually, the Hagel brothers

    reconciled and even returned to Vietnam together in 1999. Years before, however, the two sat

    down with journalist and historian Myra MacPherson and talked about the war. Although their

    interpretations of what they had been through differed, its hard not to come away with the sense

    that both witnessed U.S. atrocities, and that Chuck Hagels vision of the war is far more brutal

    than most Americans imagine. That his experience of Vietnam would include such incidents

    should hardly be surprising, especially given the fact that Hagel served in the 9th Infantry

    Division under one of the most notorious U.S. commanders, Julian Ewell, known more

    colorfully as the Butcher of the Delta.

    The Hagel brothers, MacPherson recounts in her moving and important historyLong Time

    Passing: Vietnam and the Haunted Generation, argued over whether American troops were

    murdering people. Chuck disagreed at first, pointing instead to the depredations of

    Vietnamese revolutionary forces. Tom reminded his brother of the CIAs Phoenix Program

    which, with an estimated body count of more than 20,000 Vietnamese, too often turned

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    murderous and was no less regularly used by corrupt Vietnamese government officials to settle

    personal grudges. There was some of that, Chuck finally granted.

    Tom then raised an example that hit closer to home -- the time, after an enemy attack, when a

    sergeant from their unit took out his frustrations on a nearby orphanage. Remember the

    orphanage, Chuck That sergeant was so drunk and so pissed off that he crawled up on thattrack [armored personnel carrier] and opened up on that orphanage with a fifty-caliber machine

    gun, Tom said.

    When Chuck started to object, MacPherson writes, his brother was insistent. Chuck, you were

    there! Down at the bottom of the sandhill. Skeptically, Chuck asked

    his brother if he was saying the sergeant had slaughtered children in the orphanage. Tom

    granted that he didnt know for sure, because none of us went in to check. Chuck responded,

    In any war you can take any isolated incident

    But the war Tom Hagel detailed to MacPherson wasnt one punctuated by a few isolated

    incidents. He would talk about officers ordering the mutilation of enemy dead and soldiersshooting up and burning down a village, about how helicopter gunships and napalm decimated

    large areas of the countryside, about the lethality of indiscriminate weapons fire and about

    coming upon the bodies of women and children when firefights were over. He also recounted, in

    detail, a July 1968 assault on a hardcore enemy village in which their unit took part. After the

    battle had ended, he said, a lieutenant shot and killed a civilian in cold blood. Were collecting

    all the NVA [North Vietnamese Army] bodies and this woman walks out of a hootch. He just

    shot her dead, Tom recalled.

    The Hagel Hearings: Americas Last Best Chance for the Truth

    Recently, MacPherson wrote an op-ed in the New York Times in support of Chuck Hagels bidto serve as Secretary of Defense: His experience has taught him the physical and mental toll of

    combat. He would surely think twice before sending young men and women into unnecessary,

    stupid, or unwinnable conflicts... One thing I know: Chuck Hagel will stand up to whatever is

    thrown at him.

    Tom Hagel has recently talked about his brother in similarly glowing terms. Hes going to do a

    great job, hell be totally committed to it, he told Politico. I think he will bring special

    sensitivity for enlisted personnel to the job, because, of course, of his experiences as an enlisted

    person in Nam.

    While he ultimately voted to authorize the war in Iraq -- despite grave misgivings -- there is a

    perception that, in the future, Hagel would be reticent to plunge the United States into yet more

    reckless wars and a strong belief exists among his supporters that he will stand up for Americas

    sons and daughters in uniform. On one subject, however, Hagels Vietnam experience shows

    him in a lesser light: sensitivity to the plight of the men and women who live in Americas war

    zones. In this area, his seeming unwillingness to face up to, no less tell the whole truth about,

    the Vietnam War he saw should raise serious questions. Unfortunately, its a blind spot not just

    for him, but for official Washington generally, and probably much of the country as well.

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    Its worth noting that the Hagel brothers left Vietnam just as their commanding general, Julian

    Ewell, launched a six-month operation in the Mekong Delta code-named Speedy Express. One

    whistleblowing veteran who served in that operation told the Armys top generals that Ewells

    use of heavy firepower on the countryside resulted in a My Lai each month (a reference, of

    course, to the one massacre most Americans know about, in which U.S. troops slaughtered more

    than 500 civilians, most of them women, children, and elderly men). That veterans shockingallegations were kept secret and a nascent inquiry into them was suppressed by the Pentagon.

    A later Newsweek investigation would conclude that as many as 5,000 civilians were killed

    during Speedy Express. A secret internal military report, commissioned after Newsweek

    published its account, suggested that the magazine had offered a low-end estimate. The

    document, kept secret and then buried for decades, concluded:

    While there appears to be no means of determining the precise number of civilian casualties

    incurred by US forces during Operation Speedy Express, it would appear that the extent of these

    casualties was in fact substantial, and that a fairly solid case can be constructed to show that

    civilian casualties may have amounted to several thousand (between 5,000 and 7,000).

    During the war, efforts by U.S. senators to look into Speedy Express were thwarted by Pentagon

    officials. More than four decades later, no senator is ever going to launch an investigation into

    what actually happened or the Pentagon cover-up that kept the American people in the dark for

    decades. Theoretically, the Hagel hearings do offer the Senate a belated chance to ask a few

    pertinent questions about the Vietnam War and the real lessons it holds for todays era of

    continuous conflict and for the civilians in distant lands who suffer from it. But any such hope

    is, we know, sure to die a quick death in that Senate hearing room.

    Chuck Hagels views on the Vietnam War underwent a fundamental shift following the release

    of audio tapes of President Lyndon Johnson admitting, in 1964, that the war was unwinnable.That "cold political calculation" caused Hagel to vow that he would "never, ever remain silent

    when that kind of thinking put more American lives at risk in any conflict."

    But what about lives other than those of Americans? What about children in shot-up orphanages

    or women who survive a murderous crossfire only to be gunned down in cold blood? Chuck

    Hagel may well be, as Mr. Obama contends, the leader that our troops deserve. But dont the

    American people deserve a little honesty from that leader about the war that shaped him? In

    these few days, the senators considering his nomination have an opportunity, perhaps the last one

    available, to get some answers about a war whose realities, never quite faced here, continue to

    dog us so many decades later. Its a shame that they are sure to pass it up in favor of the usual

    political theater.

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    Court Rejects CIAs Drone Secrecy Arguments Because Obama, Brennan & Panetta

    Made Statements

    By:Kevin GosztolaFriday March 15, 2013

    2:36 pm

    (Photo: drsmith7383; Edited: JR / Truthout)

    A federal appeals court has ruled the CIA cannot continue to deny in court that it has nointelligence interest in drones strikes carried out by the United States government. The appeals

    courts ruling reversed a lower court decision, which found the CIA did not have to acknowledgeit had any records on drone strikes.

    Therulingby the United States District Court of Appeals for the District of Columbia came in alawsuit by the American Civil Liberties Union (ACLU) to force the release of governmentrecords on the use of drones for targeted killings. The ACLU filed a Freedom of Information Act(FOIA) request for records in January 2010. The CIA issued a Glomar response, which meansthey refused to confirm or deny that the agency had any records. A district court affirmed the

    response and granted summary judgment in September 2011. The ACLU submitted an appeal inMarch 2012.

    Judge Merrick B. Garland wrote in the decision the question before the court was whether it waslogical or plausible for the CIA to contend that it would reveal something not alreadyofficially acknowledged to say that the Agency at least has an intelligence interest in dronestrikes.
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    Given the extent of the official statements on the subject, we conclude that the answer to thatquestion is no.

    A statement by President Barack Obama, made during a Google+ Hangout in January 2012,statements from then-counterterrorism adviser John Brennan during a speech at the Woodrow

    Wilson Center on April 30, 2012, and remarks made by then-CIA director Leon Panetta at thePacific Council on International Policy in 2009 were all cited as official acknowledgments thatthe United States has participated in drone strikes. The acknowledgments made it implausibleand illogical for the CIA to maintain that it would reveal anything not already in the publicdomain to say that the Agency at least has an intelligence interest in such strikes.

    The defendant is, after all, the Central Intelligence Agency, wrote Garland.

    As the judge noted, Obama has publicly acknowledged that the United States uses drone strikes

    against al Qaeda.Brennan made statements that left no doubt that some agency operatesdrones. It strains credulity to suggest that an agency charged with gathering intelligence

    affecting the national security does not have an intelligence interest in drone strikes, even ifthat agency does not operate the drones itself.

    Highlighted explicitly in the ruling was an answer Panetta gave to a question about remotedrone strikes in the tribal regions of Pakistan.

    [O]bviously because these are covert and secret operations I cant go into particulars. I think it

    does suffice to say that these operations have been very effective because they have been veryprecise in terms of the targeting and it involved a minimum of collateral damage. . . . I can assureyou that in terms of that particular area, it is very precise and it is very limited in terms ofcollateral damage and, very frankly, its the only game in town in terms of confronting and trying

    to disrupt the al-Qaeda leadership.

    Displaying the proper contempt for the CIAs argument in this lawsuit, Garland stated, It is hardto see how the CIA Director could have made his Agencys knowledge of and thereforeinterest in drone strikes any clearer. And given these statements by the Director, thePresident, and the Presidents counterterrorism advisor, the Agencys declaration that no

    authorized CIA or Executive Branch official has disclosed whether or not the CIA . . . has aninterest in drone strikes is at this point neither logical nor plausible.

    The ACLUs lawsuit sought access to categories of documents involving drone strikes that otheragencies, like those in the Armed Forces, might have had. Because the CIA believed this mightreveal the CIAs interest in drone strikes or whether it had documents on drone strikes, the

    CIA prevented requests for any and all records.

    Furthermore, to whether the CIA has documents or not, the judge stated, It beggars belief that itdoes not also have documents relating to the subject.

    In the above-quoted excerpt from the CIA Directors Pacific Council remarks, the Director spokedirectly about the precision of targeted drone strikes, the level of collateral damage they cause,

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    and their usefulness in comparison to other weapons and tactics. Given those statements, it isimplausible that the CIA does not possess a single document on the subject of drone strikes.

    Unless we are to believe that the Director was able to assure his audience that drone

    strikes are very precise and . . . very limited in terms of collateral damage without having

    examined a single document in his agencys possession, those statemen ts are tantamount to

    an acknowledgment that the CIA has documents on the subject. In short, although thePresident and Messrs. Brennan and Panetta did not say that the CIA possesses responsivedocuments, what they did say makes it neither logical nor plausible to maintain thatthe Agency does not have any documents relating to drones. [emphasis added]

    The ACLUs Jameel Jaffer, who argued the case, reacted, This is an important victory. It

    requires the government to retire the absurd claim that the CIAs interest in the targeted killingprogram is a secret, and it will make it more difficult for the government to deflect questionsabout the programs scope and legal basis. It also means that the CIA will have to explain what

    records it is withholding, and on what grounds it is withholding them.

    For years, government officials from the Obama administration and from outside theadministration, who possess knowledge of the CIAs drone program, have madedrone claimsonthe record or anonymously. They have made selective disclosures that function as propagandabecause they have typically aimed to explain and justify targeted killing operations. Or, thestatements have served the purpose of showing the Obama administration understands the powerbeing wielded and measures are being taken to establish rules and there is no reason to worry

    about power being abused.

    Amost recent exampleof this was aNew York Times story presenting a kind of officialgovernment account of the decision-making process that led to the targeting and killing of UScitizen Anwar al-Awlaki, who the administration now claims was a senior operator in Al

    Qaeda. He was killed by a CIA drone without charge or trial. He was placed on a kill listbefore he was assassinated.

    The ACLU and Center for Constitutional Rights put out a response to this story, In anonymousassertions to The New York Times, current and former Obama administration officials seek tojustify the killings of three U.S. citizens even as the administration fights hard to prevent anytransparency or accountability for those killings in court. This is the latest in a series of one-sided, selective disclosures that prevent meaningful public debate and legal or even politicalaccountability for the governments killing program, including its use against citizens.

    At the end of Sunshine Weekjust after President Barack Obamascrooked jestthat he is notDick Cheney so his administrations secrecy on drones is acceptablefinally, there is a courtdecision that checks the power of an agency clearly abusing its secrecy powers. Finally, a bit ofsanity in defense of freedom of information from a few appeals court judges.
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    White House Still Disingenuously Presents Release of Visitor Logs to Public as

    Transparency Achievement

    By:Kevin Gosztola

    Friday March 15, 2013

    Flickr Creative Commons-licensed Photo by Trevor McGoldrick

    The administration of President Barack Obama, when boasting about Obamas record on

    openness and transparency, regularly cites how it is now releasing White House visitor logs. Ithas been an achievement the administration explicitly mentions during Sunshine Week, a weekwhere journalists and open government advocates celebrate transparency in government.

    During an event this week, Lisa Ellman, a chief counselor for the Open Government Partnership,stated, For the first time in history, the White House posted visitor logs, salaries, and ethicswaivers online. White House spokesperson Eric Schultztoldthe Washington Post, Obama wasthe first president to release White House visitor records.

    In Obamas 2010 State of the Union, hespokeabout being transparent about who visits theWhite House. He said, We face a deficit of trust deep and corrosive doubts about howWashington works that have been growing for years. To close that credibility gap we must takeaction on both ends of Pennsylvania Avenue to end the outsized influence of lobbyists; to do ourwork openly; and to give our people the government they deserve.

    Grinning, he said during a January Google+ Hangout eventthis year, This is the mosttransparent administration in history and I can document how that is the case. Everything fromevery visitor that comes into the White House is now part of the public recordthats somethingthat we changed.

    However, it is not something the White House or Obama administration took the initiative tochange. Organizations like Citizens for Responsibility and Ethics in Washington (CREW) andJudicial Watch filed lawsuits because the administration refused to release visitor logs. TheWhite House is releasing the records voluntarily and still maintains the Freedom of Information
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    Act does not apply to the visitor logs, which means the next presidential administration couldeasily decide to not release them to the public.

    Visitor logs, according to CREW chief counsel Ann Weissmann, contain only that information

    the Secret Service needs to ensure no visitor to the White House poses a risk to the safety or

    security of any of its occupants. They are valuable in the sense that they can reveal the kind orlevel of influence an individual visitor might have.

    On January 9, 2009prior to Obamas inauguration, the US District Court for DC ruled thevisitor logsmust be disclosed. CREW was seeking records of nine conservative religiousleaders as well as records of visits by Stephen Payne, who was caught on videotape attempting tosell access to top White House officials in return for contributions to the Bush presidentiallibrary. The Bush administration had previously lost the lawsuit after US Chief District Court

    Judge Royce C. Lamberth found hiding the identities of people who visit the White House fromthe public undermines the FOIAs goal of fostering openness and accountability in government.

    Even though Obama was now president and had made significant open government pledges, theadministration would not release visitor logs. CREW filed two lawsuits against the Departmentof Homeland Security, which had custody of the records.One lawsuit, filed in June of 2009,sought records of coal company executives visits to the White House andanother lawsuit, filedin July of 2009, sought records of health care executives who had visited the White House.

    According to Weissmann, who litigated the lawsuits for records, CREW settled litigation,

    which began under the Bush administration and continued through the Obama administration,when the White House offered to not only provide CREW with its requested records but to poston the White Houses website on an ongoing basis nearly all visitor records subject to very

    limited and reasonable expectations. Records after September 2009 would be posted.

    Judicial Watch, a conservative legal watchdog group, filed a lawsuit to force the release ofvisitor logs between January and September 2009. A judgeruledon August 17, 2011, the recordsare subject to FOIA and should be disclosed unless they can be withheld under one of the lawsexemptions.

    On October 14, 2011, the Obama administrationappealedthe ruling. It chose to maintain theposition of President George W. Bushs administration: that the visitor logs were presidentialrecords not subject to FOIA.

    Major media outletsfiled briefsin support of Judicial Watch in May 2012. They expressedconcern that, Reversal of the decision below may encourage federal agencies to seek to place

    millions of documents outside of FOIAs ambit based on no more than their say-so, even in theface of express statutes and judicial orders directly to the contrary. Permitting such an end-runaround FOIA would significantly reduce the quantity and quality of information available to themedia and, consequently, to the public at large, severely undermining the goal of an informedpublic that sits at the core of our democracy.
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    Federal appellate court judgesheard argumenton releasing the visitor logs in September 2012.(There does not appear to have been a ruling by the court yet.)

    Meanwhile, even as it continues to appeal the decision and fight mandatory disclosure underFOIA, the White House continues to make voluntary releases of the logs.

    On February 22, 2013, a post on the White House blogdescribed:

    In September 2009, the President announced thatfor the first time in historyWhite Housevisitor records would be made available to the public on an ongoing basis. Today, the WhiteHouse releases visitor records that were generated in November 2012. Todays release alsoincludes visitor records generated prior to September 16, 2009 that were requested by membersof the public in January 2013 pursuant to the White House voluntary disclosure policy. Thisrelease brings the total number of records made public by this White House to more than 3millionall of which can be viewed in ourDisclosures section.

    Yet, as Daniel Schuman, policy counsel and director for the Sunlight Foundation, stated during aHouse Oversight and Government Reform hearing, The White House has significant discretionabout which logs to release, and it is unclear how a future president would behave. Theres also

    significant opportunity for avoiding disclosure, such as meetings at coffee shops across the streetfrom the White House. We believe the rules regarding disclosure of visitor logs should befleshed out and enacted into law. Of course, to truly track the exertion of influence by specialinterests, we need comprehensive lobbying reform.

    As thoroughly demonstrated, this should not be something the Obama administration is able topromote as an example of their commitment to transparency and openness. An achievement

    are not typically fought in court in efforts that could make it easy for the achievement to be

    unraveled completely. And this post is a rebuttal to any Obama official that touts thisachievement, even as they are litigating against transparency in US courts.

    The reality is the claim of being the most transparent administration everis puffery, as inadvertising. It is as true as a claim by a corporation that their product is 100% favored byAmericans.

    From invoking state secrets privilege to pursuing a record amount of leaks prosecutions to

    refusing to release the legal basis for targeted killing operations in official Office of LegalCounsel opinions to doing nothing about the fact that a majority of federal agencies are violatingfreedom of information law to the Justice Department defending government agencies wheneverthey oppose FOIA requests, the commitment to open government is exceedingly questionablebecause in many instances the administrations actions do more to preserve secrecy than instill

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    Obama Administration Excludes National Security Policies from Commitment to


    By:Kevin Gosztola

    Wednesday March 13, 2013

    President Barack Obama meeting with senior advisors

    A chief counselor for the White Houses Open Government Partnership spoke at a Sunshine

    Week event on Monday and declared, President Obama understands our governmentsobligation to serve the American people to the best of our ability. He has made clear that citizensdeserve accountability, and the opportunity to participate in their governmentand that this willmake our government better.

    The statementfrom Lisa Ellman came during a week where the press, civil society organizationsand United States citizens are celebrating open government and the publics right to know. Itstood in sharp contrast to what was outlined by human rights and counterterrorism investigator,United Nations Special Rapporteur Ben Emmerson. Ina recent report, he mentioned the USgovernment has adopted an unjustifiably broad interpretation of the state secrets privilege in

    US courts. The CIAs secret detention, rendition and torture program of the Bush-era CIA,according to the European Court of Human Rights (EHCR) has adopted a concept of state secretsthat has often been invoked to obstruct the search for the truth.

    Secrecy, which obstructs the truth, has deprived individuals, particularly torture victims, ofjustice and accountability. A clear example is the case of Khaled El-Masri, who was kidnappedby the CIA as he tried to enter Macedonia. He was flown to Afghanistan where he was detainedin a secret CIA black site known as the Salt Pit for over four months, during which time hewas severely and repeatedly beaten. The EHCR found Macedonia had been responsible forMasris unlawful detention, enforced disappearance, torture and other ill-treatment, and for histransfer out of Macedonia to locations where he suffered further serious violations of his humanrights. The courtconcluded, The blanket invocation of state secrets privilege with reference tocomplete policies, such as the United States secret detention, interrogation and rendition program
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    or third-party intelligence (under the policy of originator control) prevents effectiveinvestigation and renders the right to a remedy illusory.

    In publicly stated policy, President Barack Obamas administration has sought to improveopenness and transparency in government, however, there has been a wide gap between what

    values the Obama administration claims they are committed to upholding and what theadministration does in practice. It also seems the Obama administration has increasingly allowednational security policy to be excluded from this commitment to openness and transparency.

    During the event in which Ellman spoke, she stated:

    The Obama Administration understands that when the rules of a society are transparentwhentheres a clear and advertised set of laws and regulations regarding how to start a business,

    what it takes to own property, how to go about getting a loanthat these are the things that

    make a society function well. When the public has access to information on governmentbudgets and processes, this is what allows citizens to engage and to improve how their

    governments function. When officials are held accountable to their actions and citizens feelconfident in the public system, this is what makes a nation prosper and grow. [emphasisadded]

    The rules of society should be transparent, but one cannot help but notice what Ellmandescribes all seems to apply to citizens wanting to start a small business. This is opengovernment for consumers or private owners of property. This does not suggest an opengovernment policy that gives citizens the ability to know if officials are upholding human rightsand not corruptly maneuvering to get around adhering to the rule of law.

    Even so, the Sunlight Foundation recentlyhighlightedhow the US continues to keep some of its

    most important laws behind a paywall. Many public safety standards must be paid for beforeyou can even know what they are, after being developed in partnership with private standardsdeveloping organizations (SDOs). This is accomplished through incorporation by reference,

    where public law refers the reader to a private booklet and says you have to do whatever thebooklet says. The Office of the Federal Register asked for comments on whether private rules

    should be free to the public in February 2012. Since then, theres been no action.

    FOIA & National Security Exemptions

    Returning to national security policies and the agency operations of national security andintelligence agencies, theAssociated Press hasreportedthat, though the Obama administrationanswered more requests from the public to see government records under the Freedom ofInformation Act last year, more than ever it is now citing legal exceptions to censor or

    withhold the material in order to protect national security andinternal deliberations.

    Around 603,000 FOIA requests were submitted last year, about a five percent increase.According to theAP, When the government withheld or censored records, it cited exceptionsbuilt into the law to avoid turning over materials more than 479,000 times, a roughly 22 percentincrease over the previous year. It cited national security to withhold information at least 5,223
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    timesa jump from over 4,243 such cases in 2011 and 3,805 cases in Obamas first year inoffice. The CIA became more secretive and nearly 60 percent of 3,586 requests for files

    were withheld or censored (compared with 49 percent in 2011).

    The following agencies invoked national security exceptions: The Pentagon, Director of

    National Intelligence, NASA, Office of Management and Budget, Federal Deposit InsuranceCorporation, Federal Communications Commission and the Departments of Agriculture,Commerce, Energy, Homeland Security, Justice, State, Transportation, Treasury and VeteransAffairs.

    Remarkably, theAPmentioned it could not determine whether the administration was abusingthe national security exemption or whether the public was asking for more documents aboutsensitive subjects. This shows there are very little ways for a citizen to prove the government isabusing or manipulating the FOIA process. In courts, a citizen or group (like the American CivilLiberties Union) can sue for access to documents or records they believe should be available tothe public, but a judge typically takes the governments invoking of so-called national security

    seriously and will rule in favor of the government.

    The Center for Effective Government (CEG) points out inits reporton Obamas transparencyrecord that over-classification and declassification issues have only persisted. It also criticizesthe administration for allowing agencies to have secret rules or legal interpretations that thepublic is not allowed to know.

    Secret Law

    The Obama administration has presided over agrowing body of secret law. Keeping recordsshowing the legal basis for placing a suspected terrorist on a kill list has been defended in

    court in a FOIA lawsuit advanced by the ACLU. Secret interpretations of the Patriot Act to grantit even more expansive authority to conduct surveillance has been concealed by theadministration. The Obama administration has refused to support releasing FISA court rulings atleast in part or in some other form, which would bring some modicum of transparency towarrantless surveillance. The Justice Departments legal opinions on when it has the authority touse GPS tracking were almost entirely censored from documents provided to the ACLU inresponse to a FOIA request. And Obama issued cybersecurity policy directive that purportedlywrestled with when the US government can and cannot engage in cyber warfare, which remainsclassified.

    President George W. Bush issued sixty-six national security directives.At least thirtyof them arestill classified.