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Yesterday, the House of Representatives voted to re-authorize the 2008 FISA Amendments Act (FAA). The FAA Re-authorization represents the normalization of a domestic surveillance state.
The FAA was bad enough in 2008, when it "legalized" parts of the Bush warrantless wiretapping program and gave retroactive immunity to telecommunications companies that gave up customers' private data to the government, but at least it had a sunset. American Civil Liberties Union legislative counsel Michelle Richard said of the re-authorization:
Yet again, the House has rubberstamped a law so broad and vague that, despite its passage four years ago, we still have little idea how the government is using it.
Despite the facts that:
- the sunset provided Congress an opportunity to rethink the broad surveillance powers the Executive has repeatedly abused;
- even Senators - like Ron Wyden (D-OR) - cannot get a straight answer from the intelligence community about how the law is being used against Americans; and
- whistleblowers, like my client National Security Agency (NSA) whistleblower William Binney, have risked everything to expose domestic spying, the House voted to further empower the Executive's already unprecedented surveillance powers.
The House was obviously not listening to the numerous warnings about continuing unchecked domestic surveillance programs from my clients – NSA whistleblowers William Binney, J. Kirk Wiebe, and Thomas Drake – all of whom were criminally investigated in retaliation for their disclosures. (Drake was prosecuted under the Espionage Act and faced decades in prison before the Justice Department's case against him collapsed in spectacular fashion days before trial.)
After recent rumors of a turnaround for financial whistleblowers seeking rewards under the Internal Revenue Service's (IRS) whistleblower reward program, it is fitting that one of its rare financial awards goes to United Swiss Bank (UBS) whistleblower Bradley Birkenfeld. Not only is Birkenfeld the biggest tax fraud whistleblower in history (who handed the IRS key information on a silver platter), but he is especially deserving as he is the only person to go to prison among the thousands of Swiss bank account tax cheats he exposed. (Easy to understand now that we have a presidential candidate who hides money in offshore tax havens.)
Birkenfeld was released from prison in August after an usually harsh sentence. Despite the fact that Birkenfeld shattered 75 years of Swiss bank secrecy when he approached investigators about a UBS tax evasion service involving thousands of illegal offshore accounts – held by some of your favorite actors, politicians, and sports figures – and billions of U.S. dollars. Instead of targeting UBS kingpin Martin Liechti, the Justice Department turned on Birkenfeld. To add insult to injury, the prosecutor, Kevin Downing, is now in private practice at Miller & Chevalier defending the very tax cheats Birkenfeld turned in.
Until recently, to say the Internal Revenue Service (IRS) had been slow to implement the IRS whistleblower reward program would have been an understatement. The IRS' implementation (or lack thereof) was so extreme that this summer it caused longtime whistleblower supporter Charles Grassley (R-IA) to object to two Department of Treasury nominees.
The award for Birkenfeld marks a much-needed turnaround for the IRS' whistleblower office, and will hopefully encourage other financial whistleblowers to come forward.
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I wrote extensively about Birkenfeld's case during his prosecution and sentencing (here, here, here, and here). After complaining internally to UBS for two years, in June 2007 Birkenfeld voluntarily met with Justice Department prosecutors and an IRS Special Agent during three full days in which he provided unprecedented and voluminous information about UBS’s cross-border and offshore business activities, the UBS offices and private bankers that were directly involved, and the details of 19,000 UBS accounts for its American customers.
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Chief US District Judge Royce Lamberth has long had a reputation for being a fiery jurist, but in yesterday's opinion on Guantanamo Bay detainees' access to counsel, Lamberth conveyed his understandable outrage with the government. Mincing no words, Lamberth accused the Executive Branch of infringing on the Judiciary's duty to protect individual rights, particularly the right to Habeas Corpus.
A little history here. It took Gitmo detainee attorneys more than 2 years – and a trip to the Supreme Court – to finally gain the right to visit and talk to their clients. Even then, the attorneys were forced to operate under severe restrictions designed to inhibit communication.
The Gitmo cases at hand involved the latest government attempt to obstruct detainees' access to counsel despite the fact that, as Lamberth put it,
In a litany of rulings, this Court and the Supreme Court have affirmed that the Federal courts are open to Guantanamo detainees who wish to prove their indefinite detentions are illegal.
The government sought to replace a judicial Protective Order regulating the process for detainees' access to counsel, which the courts oversaw, with a "Memorandum of Understanding" that access would be overseen entirely by the Executive Branch, which would inhibit detainees' ability to meet with counsel and petition the courts. Lamberth was having none of it.
Judge Lamberth's well-reasoned opinion speaks for itself. Key quotes:
The Government's reasoning is substantially flawed and confuses the roles of the jailer and the judiciary in our constitutional separation of powers scheme.
If the separation-of-powers means anything, it is that this country is not one ruled by Executive fiat. Such blanket, unreviewable power over counsel-access by the Executive does not comport with our constitutional system of government.
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Tropical Storm Isaac, on the verge of becoming a hurricane, is headed toward Louisiana. Officials have pronounced New Orleans ready, while at the same time the governor urged people in low-lying areas and places outside of levee protection to leave for safe ground.
The Army Corps of Enginerrs built a $14.5 billion flood protection system. But they have failed to address an independent evaluation by the US Office of Special Counsel (OSC) in 2009 that there are serious safety and reliability issues with hydraulic pumps that were installed in New Orleans after Hurricane Katrina. A tenacious whistleblower and former client, Maria Garzino, is US Army Corps of Engineers ("the Corps") mechanical and civil engineer who revealed the inadequate state of New Orleans' floodwater pumps built by the Corps after Hurricane Katrina. The disclosures, which both the Department of Defense Inspector General’s (DoDIG) office and the Corps fought for years, showcase how New Orleans residents are still in great danger if flooding occurs again. (Also captured vividly in the film The Big Uneasy.)
As the OSC told President Obama in 2009:
There appears to be little logical justification for: (1) restricting the emergency pumping capability . . . to only the untested hydraulic pump systems, (2) not requiring the installation of a reliable pumping system which would adequately protect New Orleans, (3) spending hundreds of millions of dollars to install forty MWI hydraulic pumps which are scheduled to be replaced at a cost of $430 million within 3-5 years. . .
(MWI is owned by J. David Eller, once a business partner of former Florida Gov. Jeb Bush in a venture called Bush-El that marketed MWI pumps.)
In February 2011, Garzino wrote a letter to President Obama detailing how the Corps knowingly installed equipment that cannot adequately protect the city of New Orleans from flooding; duplicated work that cost U.S. taxpayers hundreds of millions of dollars; and deliberately deceived Congress as to the nature of and reason for this work.
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Associated Press reported on the conflicting reports of suspected al-Qaeda leader Badruddin Haqqani's death:
The son of the founder of the powerful Haqqani network was been killed in an airstrike in Pakistan, Afghanistan’s intelligence agency said Sunday, providing the first public confirmation of rumors that have been swirling for days about the key member of a militant group the U.S. considers one of the most dangerous in the region.
The Taliban rejected reports of Badruddin Haqqani’s death, however, saying that he was alive and well in Afghanistan.
The US has refused to comment on the reports that Haqqani was killing in an "airstrike" – read "drone strike" – in Pakistan. Ironic, considering U.S. officials had plenty to say when a US citizen (Anwar Al-Awlaki) and then his innocent American son were killed in drone strikes in Pakistan.
Now, even though it appears that - unlike al-Awlaki's son, who was by all reports innocent of terrorist activity - Badruddin Haqqani, son of terrorist network founder Jalaluddin Haqqani, was actually an operational leader in the terrorist network.
Badruddin is considered a vital part of the Haqqani structure and is believed to have played an active role in kidnappings, extortion and high-profile operations in Afghanistan.
The US drone program has international relations consequences beyond even the dire constitutional consequences of killing Americans without a shred of due process, but the American public is relegated to conflicting reports from Afghanistan about the drone program because:
... the US does not comment publicly on its drone program, which is widely reviled by the Pakistani public and has been a source of tension with Islamabad.
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Reports have surfaced about a new book on the Bin Laden raid by an anonymous Navy Seal who, according to the book's publisher, "was one of the first men through the door on the third floor of the terrorist leader’s hideout and was present at his death."
This latest book (titled No Easy Day: The Firsthand Account of the Mission That Killed Osama bin Laden and due out next month) did not go through the pre-publication review process. From WaPo:
Officials indicated Wednesday that neither the author nor the publisher had cleared the book’s contents with the Defense Department or the CIA, a step ordinarily required by former service members or spies seeking to write about classified operations.
The Obama administration ought to look in the mirror before expressing too much anger about the book considering the administration is the biggest "leaker" of all, especially when it comes to the Bin Laden raid, a point not lost on WaPo:
It could also raise legal and political issues for the Obama administration, which has carried out an aggressive crackdown on leaks even while it has also been accused of offering access to journalists and moviemakers to exploit the success of the bin Laden operation.
The pre-publication review processes, particularly at intelligence agencies, are notoriously favorable to pro-government publications and unfavorable toward critical writings. Worse, even authors who go through the pre-publication review process – like my clients John Kiriakou and Peter Van Buren – are not protected from retaliation for their books.
CIA whistleblower John Kiriakou submitted his 2009 book, The Reluctant Spy: My Secret Life in the CIA's War on Terror, for pre-publication review and worked with the CIA for years negotiating to get his book approved. Now Kiriakou has been indicted under the Espionage Act - the sixth person to be indicted in the Obama administration's record-braking war on whistleblowers - and is facing decades in prison. One of the charges against him despite his cooperation with the pre-publication review process: lying to the CIA's pre-publication review board. More specifically, Kiriakou is charged with trying to trick the CIA's board, but being unsuccessful – meaning CIA approved the book in its entirety. The charge is based upon an e-mail Kiriakou allegedly sent not to the CIA's board, but to his co-author. (If you find it baffling that the Justice Department has used this as the basis for a felony charge, you are not alone.)
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Whatever your opinion of Wikileaks founder Julian Assange, he was right when he called for an end to the war on whistleblowers in his speech outside the Ecuadorian Embassy in London yesterday:
The U.S. administration's war on whistleblowers must end. Thomas Drake, William Binney, John Kiriakou, and other heroic whistleblowers must be pardoned or compensated for the hardships they have endured as servants of the public record.
While my clients' stories differ greatly from Assange's, the Obama administration has threatened to criminally prosecute all of them with the same draconian Espionage Act, a law meant to go after spies not whistleblowers. And the effect of the Obama administration's policy – if not the goal – is the same for my clients and Assange - to silence dissent.
Despite that Assange is often attacked for only looking out for himself (who could blame him considering London police were waiting outside the Ecuadorian embassy to arrest him?), he took time in his minutes-long speech to reach out to others who have been prosecuted. He also correctly identified the Obama administration's war on whistleblowers as a war on journalists and the media, a connection made by myself, Glenn Greewald, and the US main stream media itself.
The United States must pledge before the world that it will not pursue journalists for shining a light on the secret crimes of the powerful.There must be no foolish talk about prosecuting any media organisations, be it Wikileaks or the New York Times.
Assange calls for an end to U.S.'s "witch hunt" against Wikileaks called to mind Supreme Court Louis Brandeis:
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women.