9/11 victims’ family members speak out about recent secrecy ruling in lawsuit against the Kingdom of Saudi Arabia.

towersghostOn October 31, 2019, Fox News aired a short segment where Tucker Carlson spoke with Chris Ganci and Brett Eagleson who both lost their fathers in the attacks of September 11, 2001.  They discussed the US government’s decision to continue to keep information secret, 18 years after the attacks.  On September 12, 2019 the Department of Justice blocked the release of a 2012 FBI summary report about possible Saudi Arabian ties to the attackers.

Family members of victims of the 9/11 attacks sought the information as part of a long-running lawsuit against the Kingdom of Saudi Arabia over allegations of the Kingdom’s involvement in the attacks.

Eagleson states in the interview that the Department of Justice invoked State Secrets Privilege in order to block the public release of the information.  The DOJ cites a reasonable danger that releasing the report risks significant harm to national security as justification for the rare invocation of the privilege.

When asked why he thought the DOJ blocked the release of information, Ganci says he thinks it is about one of two things.  Either they are “covering up their own malfeasance, or they are covering up the complicity of a foreign nation state.  Both of them are equally terrible.”

Saudi Arabia’s possible complicity in the attacks has been reported on numerous times in the years since the attacks.  But the reports are usually provided in a vacuum, with little to no connections that tie the information together into a complete picture.  This makes it all too easy to overlook these individual reports, or to miss their significance.

Similarly, the lawsuit against the Kingdom of Saudi Arabia gets little attention in the news.  Unfortunately, it seems to get most attention when it is an issue that can be trotted out for political purposes.  However, Dan Christensen at the Florida Bulldog has done a great job keeping up with the case, as has the website 28pages.org.

I wrote a thing

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People are being held in cages.  People whose only ‘crimes’ are to seek safety.  They flee from horrible crimes and terror, only to face horrible terror.  And cages.  Overcrowded, reeking cages.  Guarded by people who have described them as “wild ass shitbags,” “beaners” and “subhuman.”  People who have joked about them dying in cages, or burning them up.  People who text about wanting to “take the gloves off” before hitting a migrant with their truck.

This is disgusting, America.

I can’t begin to imagine the fear that drives people to take the enormous risk of fleeing to this country.  Nor can I ever know the fear of worrying every day that you might be sent back to the very dangerous place you fled from.  Or that your spouse might not come home from work.  Or that your parents might not be there when you come home from school.

But, I do know that I’m not okay with putting people through this.  I’m angry.  So I wrote a thing.  You can read it here…

Just A Little Faster

 

Image courtesy of Pixabay

US Supreme Court upholds dual sovereignty doctrine

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Katie Aguilera

The United States Supreme Court has upheld the dual sovereignty doctrine in a seven to two vote in the case Gamble v. United States. This doctrine holds that the States’ governments and the Federal government are separate sovereign entities and can therefore prosecute a defendant for the same offense without violating the Fifth Amendment’s double jeopardy clause.

See Supreme Court to weigh overturning separate-sovereigns doctrine in Gamble v. United States for more on arguments for and against Gamble v. United States and the dual sovereignty doctrine.

Justice Samuel Alito delivered the Court’s opinion. Justice Clarence Thomas filed a concurring opinion and Justices Ruth Bader Ginsburg and Neil Gorsuch filed dissenting opinions.

The decision argues that dual sovereignty is not an exception to protection from double jeopardy because the language of the Fifth Amendment “protects individuals from being twice put in jeopardy for the same offence, not for the same conducts or actions.” Alito writes, “as originally understood, then, an ‘offence’ is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two offences.”

The Court’s opinion goes on to discuss the concern that overturning dual sovereignty would result in the United States no longer having the legal authority to prosecute people who have been prosecuted for the same offence in other sovereign countries.

Citing late-colonial American objection to the so-called Murderers’ Act of 1751 Alito argues that, “on Gamble’s reading, the same Founders who quite literally revolted against the use of acquittals abroad to bar criminal prosecutions here would soon give us an Amendment allowing foreign acquittals to spare domestic criminals. We doubt it.”

“This principle comes into still sharper relief when we consider a prosecution in this country for crimes committed abroad. If, as Gamble suggests, only one sovereign may prosecute for a single act, no American court–state or federal–could prosecute conduct already tried in a foreign court.”

SCOTUS opinion in Gamble v. United States

The decision also argues that Gamble’s arguments are not compelling enough to overturn 170 years of precedents set by previous Supreme Court decisions. “All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns’ laws–much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years.”

In his concurring opinion, Justice Thomas admits to initial skepticism of the dual sovereignty doctrine, but was swayed by the historical record. He makes note that “we are not entitled to interpret the Constitution to align it with our personal sensibilities about ‘unjust’ prosecutions.” He adds in parenthesis, “While the growing number of criminal offenses in our statute books may be cause for concern, no one should expect (or want) judges to revise the Constitution to address every social problem they happen to perceive.”

The majority of his opinion relates to the Court’s reliance on the doctrine of stare decisis, in which the Court typically upholds previous Supreme Court rulings as legal precedent. He writes “in my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions–meaning decisions outside the realm of permissible interpretation–over the text of the Constitution and other duly enacted federal law.”

In her dissenting opinion, Justice Ginsburg cites previous Supreme Court decisions that upheld dual sovereignty and writes, “I would not cling to those ill-advised decisions.”

She argues against the concern over crimes committed and prosecuted abroad. “Gamble was convicted in both Alabama and the United States, jurisdictions that are not foreign to each other.” She goes on to explain “in the system established by the Federal Constitution…’ultimate sovereignty’ resides in the governed…Insofar as a crime offends the ‘peace and dignity’ of a sovereign,…that ‘sovereign’ is the people, the ‘original fountain of all legitimate authority…States may be separate, but their populations are part of the people composing the United States.”

Justice Ginsburg also addresses the reliance on stare decisis, writing it is not an “inexorable command….Our adherence to precedent is weakest in cases ‘concerning procedural rules that implicate fundamental constitutional protections.'”

She goes on to write “the expansion of federal criminal law has exacerbated the problems created by the separate-sovereigns doctrine. Ill effects of the doctrine might once have been tempered by the limited overlap between federal and state criminal law…In the last century, however, federal criminal law has been extended pervasively into areas once left to the States.”

“This situation might be less troublesome if successive prosecutions occurred only in ‘instances of peculiar enormity, or where the public safety demanded extraordinary rigor’…The run-of-the-mill felon in-possession charges Gamble encountered indicate that, in practice, successive prosecutions are not limited to exceptional circumstances.”

Justice Ginsburg, dissenting opinion, Gamble v. United States.

Ginsburg concludes her dissent by pointing out the dual sovereign doctrine has been criticized by “members of the bench, bar, and academy.” She writes “different parts of the ‘WHOLE’ United States should not be positioned to prosecute a defendant a second time for the same offense. I would reverse Gamble’s federal conviction.”

Justice Gorsuch argues in his dissent, “‘separate sovereigns exception’ to the bar against double jeopardy finds no meaningful support in the text of the Constitution, it’s original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy. I would enforce that guarantee.”

He also disagrees with the idea that an offence against the laws of separate sovereigns is two offenses. He cites Blockburger v. United States to argue “if two laws demand proof of the same facts to secure a conviction, they constitute a single offense under our Constitution and a second trial is forbidden.”

“Tellingly, no one before us doubts that if either the federal government or Alabama had prosecuted Mr. Gamble twice on these facts and in this manner, it surely would have violated the Constitution.”

Justice Gorsuch, dissenting opinion, Gamble v. United States

He argues that assigning different aspects of power to the federal and state governments is meant to limit governmental power rather than multiply it. The dual sovereign doctrine goes against this premise as it allows the federal and state governments to do together what neither can do alone, that is, prosecute someone for the same offense.

Gorsuch also addresses stare decisis, arguing it should not be used to ignore precedents that can’t be supported by the Constitution. He offers examples of historic cases previously used as precedents that have been overturned, including Korematsu v. United States.

He writes, “with the text, principles of federalism, and history now arrayed against it, the government is left to suggest that we should retain the separate sovereigns exception under the doctrine of stare decisis. But if that’s the real basis for today’s result, let’s at least acknowledge this: By all appearances, the Constitution, as originally adopted and understood did not allow successive state and federal prosecutions for the same offense, yet the government wants this Court to tolerate the practice anyway.”

Like Ginsburg, Gorsuch also expresses concern over the increasing number of Federal crimes on the books and the resulting effect on the use of the dual sovereign doctrine. “In the era when the separate sovereigns exception first emerged, the federal criminal code was new, thin, modest and restrained. Today, it can make none of those boasts…If long ago the Court could have thought ‘the benignant spirit’ of prosecutors rather than unwavering enforcement of the Constitution sufficient protection against the threat of double prosecutions, it’s unclear how we still might.”

He concludes, “the separate sovereigns exception was wrong when it was invented, and it remains wrong today.”

Unfortunately, as Justice Ginsburg pointed out, this doctrine isn’t relegated to use in unusual and extreme cases. And it isn’t difficult to imagine it will become more and more common to see cases prosecuted under this doctrine as the number of crimes prosecutable under Federal law grows. It can happen to people who were acquitted in their original trial. It can happen years after the original trial and time served. It can happen when original charges are dropped.

The end result is more loss of rights, longer prison sentences, a growing prison population, and traumatic disruption, even destruction, of the lives of those charged and their families.

“When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is ‘the poor and the weak’ and the unpopular and controversial, who suffer first–and there is nothing to stop them from being the last.”

Justice Gorsuch, dissenting opinion, Gamble v. United States.

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Another Whistleblower Indicted

Another Whistleblower Indicted

The Department of Justice has unsealed an indictment this morning for Daniel Everette Hale, of Nashville, Tennessee.  Hale was enlisted in the US Air Force from 2009-2013.  He became a Language Analyst, and was assigned to work at the National Security Agency from December 2011 through May 2013.

He served as an Intelligence Analyst in Afghanistan for a Department of Defense Joint Special Operations Task Force from March 2012 through August 2012.  Hale held a Top Secret/Sensitive Compartmented Information security clearance.  After leaving the Air Force, Hale worked for a defense contractor, Leidos.

Hale is charged with five counts related to obtaining classified information and giving classified information to an unnamed reporter.  According to the indictment, this information was then published by the reporter on an Online news outlet, as well as in a book written by the reporter.

The unnamed reporter Hale is alleged to have given information to is likely Jeremy Scahill of The Intercept.  Scahill and the Intercept published The Drone Papers in 2015 based on a cache of classified documents obtained by the Intercept.  Scahill also wrote the book The Assassination Complex which was published in 2017.

Hale described having his home searched in 2014 by the FBI in the documentary National Bird.  He was informed at that time he was under investigation for espionage and he states in National Bird that he would “probably get charged with a crime” and would “have to fight to stay out of prison.”

Hale’s attorney, Jesselyn Raddack, is quoted in The Washington Post as saying “the allegations against Hale are allegations of whistleblowing.  The Intercept’s reporting on the US government’s secretive drone assassination program shed much needed light on a lethal program in dire need of more oversight.”

No details are given in the indictment as to how Hale ended up under investigation for leaking classified material.  In video, Hale can be seen sitting with Scahill during a presentation at a book store on June 8, 2013.  The indictment states that on or about June 8, 2013, “Hale sat next to the Reporter at a public event at the Bookstore to promote the Reporter’s book.”  According to the indictment, this occurred before Hale leaked any documents to The Intercept.

Hale is not the first person known to face charges after leaking information to The Intercept.  Reality Winner was sentenced to five years and three months for leaking a classified report to The Intercept regarding Russian hacking of election systems.  Reporters for The Intercept sought confirmation the report was authentic from a defense contractor who informed authorities about it and turned over identifying numbers from the report that revealed Winner as the source of the leak.

Terry Albury, a former FBI agent, was sentenced to four years in prison in 2018 for sharing classified information, likely with The Intercept, according to the Washington Post.  He may have been the source of The Intercept’s series of reports entitled The FBI’s Secret Rules.

 

Image courtesy of Pixabay

The Watchdogs Didn’t Bark–A Review

IMG_20190304_171357771.jpgI’ve recently finished a book I’ve been anxious to read since hearing of it’s release.  This book is The Watchdogs Didn’t Bark, by John Duffy and Ray Nowosielski.

I don’t remember where or how I first heard of Duffy and Nowosielski’s work.  It may have been through the excellent documentary 9/11:  Press for Truth.  This film tells some of the story behind the push for answers about the September 11, 2001 attacks through the perspectives of family members of victims.  It’s incredibly powerful.

It may also have been their interview with former counterterrorism adviser Richard Clarke, or their podcast, Who Is Rich Blee.  Around the same time I discovered those, I was also following the site Boiling Frogs Post* which published several reports and interviews about Duffy and Nowosielski’s work.   Their story is an important one that should be getting much more attention than it has.

When I found out they were releasing a book detailing their years of investigation that led to the above-mentioned productions, I knew it would be a must read.  And it is.

Duffy and Nowosielski describe in detail malfeasance, cover-ups, and outright criminal behavior, primarily within the Central Intelligence Agency, both before and after 9/11.  They discuss how the people responsible have been promoted into positions of power, in spite of, or perhaps even because of, their actions, rather than being held accountable.  They point out that these people are still influential and in power within the intelligence community today, a fact that should concern us all.

The Watchdogs Didn’t Bark calls into question the extent to which the government of the United States has used the September 11, 2001 attacks to justify and legalize activities I think most Americans would consider unconstitutional and appalling.  Nearly two decades on, this book should serve as a much-needed wake up call for us all.  It should have us asking if we are still willing to allow our government to continue along it’s increasingly authoritarian and destructive path.

I highly recommend The Watchdogs Didn’t Bark:  The CIA, NSA and the Crimes of the War on Terror.  It’s a courageous example of the incredible importance, the necessity, of good investigative journalism.  It should be required reading for all Americans.

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*Boiling Frogs Post is now Newsbud, a site I no longer follow or endorse.  More on that here.

The Wall That Fear Builds

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Thousands of scary people are pouring over our unsecured southern border to kill us all and destroy our democracy.  Which clearly isn’t being destroyed by corrupt people already here and in power.  Or by the outrageously powerful corporations pulling the strings of those in power.  Or by the lobbyists buying influence over those in power.

No, it’s the scary people pouring over our border.  We must fear them and build a wall.  They are definitely democracy-destroying, drug-packing, murderous, evil people who will first milk the system dry and then rape and kill all US born citizens.  They will definitely not work menial jobs on farms, harvesting the food that feeds America, or other such helpful and important labor.  No, they will steal YOUR job!  They will steal YOUR tax dollars.  And don’t get me started on ISIS and Hezbollah sneaking over our massive, dangerously porous southern border.  Oh my.

But, it’s okay.  We’ve got a national emergency now so we can build a wall that will certainly stop those intent on committing a crime in our country.  Everything will be just fine.  I mean, we don’t need the Constitution anyway, right?  We certainly don’t need rational thought, compassion, cooperation, decency, or any sort of immigration reform.  Nope, we need a wall!  And maybe a few camps where we can safely store all those scary people.  Put them to work and starve them and stuff.

I mean these are seriously, scary, scary people crossing that border.  Not at all like our political leaders.  And certainly nothing like our own ancestors.

 

 

Federal prosecutors to appeal dismissal of charges in Nevada Bundy case

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According to court documents filed yesterday in the US Court of Appeals for the ninth circuit, federal prosecutors have been authorized to appeal the dismissal of charges in the Nevada Bundy case.  The charges against Cliven, Ryan and Ammon Bundy and Ryan Payne were dismissed with prejudice by Judge Gloria Navarro on January 8, 2018 due to Brady violations by the prosecutors.

The document filed yesterday is a request by the prosecution for a 14-day delay in filing its opening brief for an appeal.  The document states “undersigned counsel advises the Court and the defendants that the review process is complete and the Solicitor General has authorized the government’s appeal.”

Prosecutors filed a motion requesting the Court reconsider its orders to dismiss the charges on February 8, 2018.  The district court denied that motion on July 3, 2018 and the US Attorney’s office reported that decision to the appellate section of the Department of Justice’s criminal division.  The US Solicitor General then began the process of deciding whether to appeal the decision, according to court documents.

Cliven Bundy’s lawyer, Larry Klayman, has filed motions opposing the extension of time.  He writes, “…any continuing appeal would have no factual or legal bases to succeed and thus be wholly frivolous and is intended only to continue to harass, vindictively inflict more severe emotional distress upon and financially ruin…” Cliven Bundy and his co-defendants.

The prosecution states in its request for delay that it will file its opening brief on or before February 6, 2019.