Currently viewing the tag: "Subpoena"

In a 21 page opinion, US Magistrate Judge Theresa Buchanan of the Eastern District of Virginia District Court has just granted the United States Department of Justice subpoena demand for records in the WikiLeaks investigation.

Three people associated with WikiLeaks - Jacob Appelbaum, Birgitta Jonsdottir, and Rop Gonggrijp - had petitioned the court to vacate the subpoena and to unseal the court pleadings. The court held:

For the foregoing reasons, petitioners’ Motion to Vacate is DENIED. Petitioners’ Motion to Unseal is DENIED as to docket 10- gj-3793, and GRANTED as to the 1:11-dm-00003 docket, with the exception of the government attorney’s email address in Twitter’s Motion for Clarification (Dkt. 24), which shall be redacted. Petitioners’ request for public docketing of the material within 10-gj-3793 shall be taken under consideration. An Order shall follow.

The three WikiLeaks individuals had argued the subpoena violated constitutional protections for free speech and association; the court disagreed. Appelbaum, Gonggrijp and Jonsdottir have already stated they will appeal.

You can read the full opinion here. I will be updating the post as I read the decision.

Related posts:

  1. The Government’s Amended Twitter Order
  2. What the Government Might Be After with Its Twitter Subpoena
  3. Is the Government Alleging Bradley Manning Loaded Encryption Software onto DOD Computers?


Emptywheel

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Wise counsel to Rep. King from legendary saxophonist

Joe Hendersonregarding this man,

Katem Al-Hajj,

and other AMJA clerics: “RECORDA-ME


Despite opposition from the usual alphabet soup of Muslim Brotherhood offshoot “advocacy” groups in the US, Congressman Peter King is forging ahead with planned mid-March hearings on what he terms domestic “Muslim radicalization.” In a December 19, 2010 Newsday opinion editorial Congressman King cited these eminently reasonable concerns as justification for the hearings:

As I became more immersed in attempting to unravel the radical Islamic threat to our nation and our civilization, it became more and more obvious to me that the moral myopia of Long Island’s Muslim leaders and their apologists in the media was the rule – and that there were few exceptions. Federal and local law enforcement officials throughout the country told me they received little or – in most cases – no cooperation from Muslim leaders and imams…I also know of imams instructing members of their mosques not to cooperate with law enforcement officials investigating the recruiting of young men in their mosques as suicide bombers. We need to find the reasons for this alienation.

We believe direct cross-examination of clerics from the Assembly of Muslim Jurists of America (AMJA), including a frank discussion of their public “fatwas” (Islamic religious rulings), is essential to the Congressman’s critically important goal of understanding Muslim radicalization in America.

The AMJA mission statement maintains the organization was,

…founded to provide guidance for Muslims living in North America…AMJA is a religious organization that does not exploit religion to achieve any political ends, but instead provides practical solutions within the guidelines of Islam and the nation’s laws to the various challenges experienced by Muslim communities…

A report in The Muslim Observer published October 21, 2010 highlighting AMJA’s “seventh annual American conference of imams,” confirms that the organization is accepted as such by the mainstream American Muslim community. AMJA and its recent “training” conference for American imams were described in these banal terms:

The organization AMJA (Assembly of Muslim Jurists of America) has a list of scholars associated with it which stretches from Al-Azhar University to Virginia’s Open University, and back across the ocean to the professors at Saudi universities.  Its website, amjaonline.com, provides fatawa on many issues and promises 24-hour access to scholars who can give legal opinions on the issues people face. AMJA focuses on providing fatwas to Americans, and believes it is able to provide culturally appropriate fatwas although many of their scholars are not American–because they have some American scholars and because of the technological ties that bind AMJA’s American scholars with those abroad. AMJA just had, in Houston, its seventh annual American conference of imams, and two local Michigan imams attended, namely Imam Musa of Bloomfield’s Muslim Unity Center, and Imam Ali of MCWS. Mr. Sadiqul Hassan of AMJA explained that “the event was the 7th annual imam workshop…”  Mr. Hassan said that AMJA is “a fiqh council basically,” with “scholars who live abroad and inside the US; we have experts in different fields to educate about life in the US–fatawa are based on life in the US.”

Notwithstanding this mainstream acceptance, including uncritical endorsement of its recent seventh annual American conference in Houston (October 15-18, 2010) to train American imams, AMJA has issued rulings which sanction the killing of apostates, “blasphemers” (including non-Muslims guilty of this “crime”),  or adulterers (by stoning to death), and condone marital rape, and female genital mutilation. Moreover, AMJA, despite some equivocation, has also issued a blatantly anti-American fatwa directed at US troops and their mission, which was deemed an “occupation.” Indeed, as AMJA cleric Katem Al-Hajj explained in a 23 pp. 2007 fatwa forbidding US Muslims to work for the FBI or US security services because of the ostensible harm these institutions cause Muslims, Muslim minorities in non-Islamic countries are “…subject to man-made laws, which Islamic law [Sharia] does not recognize, either fully or in part.”

AMJA, consistent with modern fatwas published by Yusuf Al-Qaradawi, president of the International Union for Muslim Scholars (IUMS), and other prominent, mainstream Muslim clerics in Egypt, Lebanon, Iran, and Malaysia, has mandated lethal punishment for apostates from Islam. These specific rulings on so-called “apostasy” from Islam were issued by AMJA in 2006 and 2009:

Dr. Hatem al-Haj  2006-04-17 As for the Sharia ruling, it is the punishment of killing for the man with the grand Four Fiqh Sharia scholars, and the same with the woman with the major Shari`ah scholars, and she is jailed with Al-Hanafiyyah scholars, as the prophet, prayers and peace of Allah be upon him, said: “Whoever a Muslim changes his/her religion, kill him/her”, and his saying: “A Muslim`s blood, who testifies that there is no god except Allah and that I am the Messenger of Allah, is not made permissible except by three reasons: the life for the life; the married adulterer and the that who abandons his/her religion”.

Dr. Main Khalid Al-Qudah  2009-01-02 Under the authority of the Muslim state, the People of the Book have the right to stay on their belief without being compelled to embrace Islam. But if one of them has embraced Islam, it would not be acceptable from him to go back to his original religion. The same rule applies to those who are born into Muslim families. According to the Islamic Law, they cannot commit apostasy.

Dr. Main Khalid Al-Qudah  2009-04-10 As for the second one, the “people” in this hadith means either the apostates who had become Muslim and then retreated to disbelief thereafter, or the polytheists who do not attribute themselves to any divine religion. This second possible meaning has been mentioned in Imam Al-Nasa’i’s narration: “I have been commanded to fight against the polytheists until they…” In Islam, neither of these categories of people is allowed to remain on their religion. The fact that there is no compulsion in religion does not negate the other fact that someone who has embraced Islam cannot change his mind afterward and embrace polytheism.

Germane 2006-2009 AMJA rulings also sanction hateful attitudes towards non-Muslims, and the murder of those—including non-Muslims—who “blaspheme” Islam’s prophet Muhammad.

Dr. Main Khalid Al-Qudah  2007-07-22, on “Unbelievers,” i.e. non-Muslims: Our belief is that Islam is the final divine religion, supersedes all other divine religions, and that all other religions are abrogated by the prophet hood of Mohammad PBUH. In another words; no one has the right to stay on his/her Christianity or Judaism after the prophecy of Mohammad PBUH. Based on the above, if any one from the people of scriptures has received the message of Islam clearly, yet, insisted on his belief, then he is- from an Islamic perspective- a disbeliever. Our doctrine is that paradise is granted for all original Muslims, and for those who embraced Islam after acknowledging the prophecy of Mohammad PBUH. Meanwhile, we believe that hellfire is granted for the disbelievers, which include anyone did not believe in the prophethood of the messenger that he/she lived during his/her life. This includes anyone that received the message of Islam, and passed away before embracing Islam.

Dr. Salah Al-Sawy 2009-01-21, on “Blaspheming” Muhammad, the Muslim prophet: [F]or those scholars who say that repentance of a person who insults Allaah or His Messenger shall not accepted, [they] mean that repentance does not lift up the set punishment for cursing and insulting the Prophet,  i.e., execution. Because the Prophet is the one who was actually wronged and insulted and he is no longer alive, therefore, he is not alive to practice his right to forgive him [the blasphemer] for what he did. Also, no Muslim is ever is entitled or authorized to forgive on the Prophet’s behalf.

Additional AMJA rulings validate stoning adulterers to death, and uphold the notion that marital rape is not a crime.

Rendered by Dr. Hatem al-Hajj, June 22, 2006—Question: “I am married but recently being away on a business trip, I happed to go to a adult club where I came in close contact with a dancer. We touched each other and kissed but there was no actual intercourse involved. I remain fully clothed and she had her top off. Is this act considered zina punishable by pelting? Please clarify. I shouldn`t have commited this act of sin and am ashamed of it.” Fatwa (Islamic Legal Ruling): “All praise be to Allah, and may his peace and blessings be on the last and best prophet and messenger, Muhammad.   Since you are ashamed and you have repented sincerely, Allah is all forgiving, so don`t loose hope in his mercy and forgiveness. The act you have committed – as you appear to know – is an offensive sin, and it is a form of fornication, as the Prophet (May Allah bless him and give him peace)  indicated that the eyes comit fornication by looking…etc. Yet, it is not the absolute zina punishable by al-hadd. (the prescribed punishment of zina, which is stoning in the case of a married man). The later must involve intercourse. May Allah protect you, and save your deen and honor.   Allah knows best.”

Responding to the specific query, “Is there a such thing as Marital Rape?”, AMJA issued fatwa #2982:

In the name of Allah, all praise is for Allah, and may peace and blessing be upon the Messenger of Allah and his family. To proceed: For a wife to abandon the bed of her husband without excuse is haram [forbidden]. It is one of the major sins and the angels curse her until the morning as we have been informed by the Prophet (may Allah bless him and grant him peace). She is considered nashiz (rebellious) under these circumstances. As for the issue of forcing a wife to have sex, if she refuses, this would not be called rape, even though it goes against natural instincts and destroys love and mercy, and there is a great sin upon the wife who refuses; and Allah Almighty is more exalted and more knowledgeable.

AMJA rulings also support the practice of female genital mutilation (FGM), which the United Nations has called “a dangerous and potentially life-threatening procedure that causes unspeakable pain and suffering.” Fatwa #1639 from Dr. Hatem al-Haj justifies the horrific practice, saying:

[…] Some extremists from the west and their devout followers in the Muslim world like to brand all circumcision as female genital mutilation (FGM). For those, we say, why is male circumcision not MGM? Male circumcision is widely practiced in the west. Yet it would be considered by the Chinese MGM (Male Genital Mutilation).

The benefits of male circumcision are beginning to be more recognized in the medical societies, even though still contested by a few. Fifty years ago, no one knew that male circumcision has medical benefits. The same could be true with female circumcision. They may figure out the benefits of the practice in fifty or five hundred years. […]

A concordant fatwa issued in Arabic (translation by Al-Mutarjim) on the website of the Secretary-General of AMJA and the chief member of its Resident Fatwa Committee, Dr. Salah Al-Sawy, declares that FGM is “an honor” for women:

But for the woman, the purpose [of circumcision] is the benefit that it has in lessening her lust, which is a wholesome request. There is no harm in removing it. In short, female circumcision is an honor (which) does not rise to the level of a duty, in clear language. Stated another way, it is neither forbidden nor required.

Another Arabic-language fatwa (translation by Al-Mutarjim) from Dr. Al-Sawy leaves open the possibility for offensive jihad against America and the West, as soon as Muslims are strong enough to do so. When asked whether “the Islamic missionary effort in the West…[was] to the point where it could take advantage of offensive jihad,” Al-Sawy ruled:

[…] The Islamic community does not possess the strength to engage in offensive jihad at this time. With our current capabilities, we are aspiring toward defensive jihad, and to improve our position with regards to jurisprudence at this stage. But there is a different discussion for each situation. Allah Almighty knows best.[emphasis added]

Finally, it is of grave concern that AMJA, as an American organization, offers only grudging and conditional support to the fundamental notions of acquiring citizenship in, and swearing allegiance to the US and our Sharia- antithetical governing legal system. Responding to the query, “Is acquiring an American citizenship lawful or prohibited?”, AMJA issued fatwa #77223:

[…] As for optionally obtaining citizenship of a non-Muslim country it is definitely prohibited without a doubt, moreover it could be a form of apostasy or main means leading to apostasy because willingly accepting the laws of disbelievers and obeying it without any valid excuse or enforcement, or ignorance is considered a nullifier to Tawheed and Islam, as long as the proof has been established upon this person and the matter and its consequences are as I clarified. As for obtaining citizenships in light of circumstances of Muslims today who are residing outside the lands of Islam – on the condition that they do not accept indefinitely the law and legislation of that country and being indefinite belonging to the nation of the non-Muslim country so that they become loyal to all their allies and an enemy to all their enemies – and obtaining the citizenship is considered a required means in order to organize the affairs of Muslims who already live there while ensuring fulfilling vows and agreements between them and host countries, and exists due to urgent necessities and needs and this Muslim kept his loyalty to Allaah and His Messenger, then it would not be farfetched to say that it would be permissible. […] [emphasis added]

Given these odious, if unabashed public rulings, it is incumbent upon Representative King and his committee staff to subpoena (if necessary) the AMJA clerics who have issued them. We believe that publicizing and elaborating the “rationalizations” for such Islamic rulings by these clerics—authoritative representatives of mainstream, institutional Islam—will afford critical insights into the radicalization of American Muslims.

Big Peace

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Yesterday, House Oversight Committee Chairman Rep. Darrell Issa (R-CA) issued his first subpoena of the Obama administration with a request that Department of Homeland Security employees “testify about the department’s Freedom of Information Act (FOIA) policies and practices.” The subpoena has already caused a controversy due to Issa’s partisan approach. According to the Washington Post, Rep. Elijah Cummings (D-MD), the ranking member on the committee, penned a letter demanding to know why Issa’s staff deliberately circumvented the Democrats on the committee. Homeland Security staffers had been willing to comply voluntarily, and Cummings charged, “all three subpoenas appear unnecessary at this time and could have been avoided if you had adequately consulted with me and other Members of the Committee.”

In January, Issa made clear that he intends to scrutinize logs of FOIA information, possibly revealing the identities of various journalists and citizens who have issued requests to the government. As the New York Times has noted, Issa’s “extraordinary” demand “worries some civil libertarians” and could have a chilling effect to journalists. While Issa’s spokesmen have brushed aside criticism and claimed that the chairman’s purpose is aimed at improving government responses to the FOIA process, Issa’s personal record on FOIA undercuts his credibility. During the Bush administration, Issa was a loyal partisan who repeatedly tried to crush attempts at expanding FOIA and greater government transparency, even at the DHS, his current subpoena target:

- Issa Tried To Kill A Landmark Expansion Of FOIA Law: In 2007, a bipartisan bill HR 1309 was proposed to expand the FOIA process, including a tracking system for submitters to view the status of their request, new reporting requirements for congressional oversight, and a provision to ensure that requests not processed within twenty days would not require a fee. The Bush administration fought vigorously against the bill and promised to veto it. Issa even sponsored an amendment to the bill to kill off the proposed “open records policy,” claiming Al Qaeda would “harvest” the data. In the end, the bill passed by an overwhelming majority in the House, despite Issa’s “no” vote. Unfortunately, it died in the Senate.

- Issa Co-sponsored The Original Bill To Exempt DHS From FOIA Law: In 2002, Issa co-sponsored the bill to merge several agencies into one new expanded bureaucracy called the Homeland Security Department. Issa’s bill included a provision exempting the agency from some FOIA requests. Repeatedly, Issa voted against amendments to remove this exemption from DHS. For example, he voted against an amendment sponsored by Rep. Jan Schakowsky (D-IL) to remove the FOIA exemption. Issa even supported an amendment that explicitly expanded the FOIA exemption to his DHS bill.

- Issa Helped Karl Rove And Bush Allies Hide Government E-Mails In RNC Accounts: In 2008, the House Oversight Committee investigated the fact that an estimated 5 million e-mails from Bush administration servers vanished from the president’s office. Although it was widely believed that White House adviser Karl Rove had used Republican National Committee e-mail accounts, in violation of the Presidential Records Act, to hide official communications, Issa used his position on the committee to try to squash the inquiry.

While it is laudable to strengthen the FOIA process, Issa’s behavior suggests that he is simply out to create a partisan investigation. For one thing, Issa’s position on the FOIA process appears to radically change depending on which party controls the White House. Furthermore, Issa’s backhanded attempt to sideline Cummings and other Democrats on the Oversight Committee undermines the legitimacy of his subpoena. Asked about Cummings’ letter, Issa’s press secretary Kurt Bardella cynically replied, “Another day, another complaint and more righteous indignation, what else is new?”

In fact, Issa has gone on record indicating that he is more interested in serving his party’s corporate benefactors than leading honest investigations.

Ironically, since Congress exempted itself from FOIA law, Issa has been less than forthcoming about record requests into his own office. At the behest of Citizens for Responsibility and Ethics in Washington, several lobbyists have provided letters regarding a request by Issa to entertain proposals from corporations seeking his help in eliminating regulations. Issa has not voluntarily released all of the other letters he received from lobbyists. Also, Issa has so far ignored a request by a group called the IssaFiles to respond to serious ethical questions raised by a New Yorker article by Ryan Lizza. The ten questions relate to a suspected arson at a factory insured by Issa earlier in his career.

ThinkProgress

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Rep. Darrell Issa (R-CA), chairman of the Committee on Oversight and Government Reform, expanded a prior investigation into the Countrywide Financial Corporation’s infamous VIP loan program by issuing a wide-ranging subpoena aimed at exposing more information about the mortgage giant’s efforts to win friends and influence people at the highest levels of government.

Issa’s subpoena, announced Wednesday night, was sent to Bank of America, which purchased Countrywide just before the height of the economic crisis. The subpoena asks for all documents and requests related to Countrywide’s VIP program, which implicated Sen. Kent Conrad (D-ND) and former Sen. Chris Dodd (D-CT), the then-chairman of the Banking Committee.

Both senators had VIP loans but denied knowing they had personally benefited from the VIP program. A Senate Ethics Committee determined that the terms of their loans were similar to other members of the public, but they warned both senators to be more prudent about the perception of special treatment in the future.

In late 2008, Issa won a hard-fought battle to convince Chairman Edolphus Towns (D-NY) to issue subpoenas in the matter. But the subpoenas to Bank of America at that time were more limited in scope. The new Issa subpoenas have a deadline of March 7 and call for all information related to covered borrowers serviced by Countrywide Financial through Branch 850, the branch Issa has determined as the headquarters of the VIP operation.

Bank of America will be forced to produce, all documents, including e-mails, between Countrywide officials notifying a covered borrower of membership in the VIP and/or Friends of Angelo program or between and among Countrywide officials discussing the purposes and goals of the VIP program.

Issa also is specifically requesting documents showing the number of people enrolled in the VIP and/or Friends of Angelo program from 1996 to 2008, and the city and state of residence of such persons who were covered borrowers.

Such a broad dragnet could implicate other members of Congress and their aides who participated in the program. The Wall Street Journal wrote a series of articles implicating Rep. Edolphus Towns (D-NY), who chaired the oversight committee at the time, as a member of the VIP program.

“This subpoena will allow us to obtain the information needed to answer the outstanding public interest questions regarding the full size and scope of the VIP program,” Issa said in a statement. “The American people have a right to know the totality of who participated in the Countrywide’s VIP program and what they did in return for access to it. Our role is to get all of the facts so that the American people can judge for themselves who should be held responsible and accountable.”









TPMMuckraker

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Via Jeff Stein, the St. Louis Beacon reports that DOJ not only (unsuccessfully) subpoenaed James Risen in their pursuit of alleged MERLIN source Jeffrey Sterling, but they successfully subpoenaed Sterling’s one-time lawyer, Mark Zaid.

Mark Zaid, a Washington, D.C., lawyer who handles national security cases, was subpoenaed to appear before a grand jury to discuss events surrounding his representation of Sterling in a race discrimination case he filed against the CIA, say sources with knowledge of the case.

As both pieces lay out, the guidelines on subpoenaing a lawyer are-at least in theory-as limited as subpoenaing a reporter (never mind that the government wiretaps lawyers representing alleged terror suspects). But they appear to have used Zaid to get to other interactions-including Sterling’s testimony to a congressional committee-apparently to hone in on an alleged motive.

Prosecutors questioned Zaid about Sterling’s motive in allegedly leaking classified information about an intelligence operation in Iran to James Risen of The New York Times, a source said. The indictment alleges that Sterling leaked the information to retaliate against the CIA for its refusal to settle his race discrimination claim and to approve a memoir he was writing.

The prosecutors’ questions focused on motive and dealt with the circumstances of Sterling’s case and contacts Zaid had with third parties, a source said. Zaid had tried to negotiate a settlement of Sterling’s issues with the CIA. In addition, prosecutors questioned Zaid about actions he had taken on Sterling’s behalf that led to testimony to a congressional committee and that promoted his racial discrimination case through the media, a source said.

Zaid’s testimony was entirely about his contacts with third parties on Sterling’s behalf and was outside of the attorney-client privilege, a source said. [my emphasis]

Now, there are several interesting implications of this. For starters, Zaid probably represents more disgruntled CIA officers than Risen publishes CIA-related scoops. Subpoenaing him-even with the understanding he didn’t testify about protected conversations-may chill others who would seek out Zaid for assistance.

But I’m particularly interested in the way this seemingly links conversations with third parties-notably a Congressional Committee-and motive. Because one of the weakest parts of the indictment is the CIA’s effort to dismiss the possibility that Sterling came forward as a whistleblower.

The indictment describes testimony Sterling gave to two staffers at SSCI on March 5, 2003. This happened two weeks before the start of the Iraq War, but after CIA had rejected the employment discrimination settlements Sterling had proposed through Zaid:

On or about March 5, 2003, consistent with his secrecy and non-disclosure agreements with the CIA, defendant STERLING met with two staffers of the Senate Select Committee on Intelligence and disclosed classified information about Classified Program No. 1 and Human Asset No. 1. However, in doing so, defendant STERLING falsely characterized certain facts and circumstances relating to Classified Program No. 1, falsely reported that he had believed Classified Program No. 1 to have been flawed from its inception based solely upon his mischaracterization of a single remark by a participant in Classified Program No. 1, and claimed, based upon that false information, that Classified Program No. 1 may have enhanced the weapons capability of Country A.

Importantly, the indictment admits that Sterling was entitled to share this information “consistent with his secrecy and non-disclosure agreements.” While the indictment doesn’t ascribe a motive to Sterling in this meeting, it does say Sterling claimed MERLIN had enhanced Iran’s weapons capability. In other words, by all appearances, it seems that Sterling made a legally-allowable effort to alert Congressional oversight staffers that the CIA had engaged in a boneheaded operation that had helped one of the Axes of Evil acquire nukes.

That is, by all appearances, Sterling was acting as a whistleblower.

Note how the indictment claims Sterling misrepresented something to the Committee (which was then headed by Pat Roberts, noted for his efforts to protect Cheney’s gaming of intelligence and the CIA’s use of torture), but it doesn’t provide any evidence that Sterling intentionally misrepresented it. He was wrong, the indictment claims, but it doesn’t claim he knew he was wrong.

If Roberts didn’t squelch any interest in MERLIN himself, then we can probably assume the CIA told SSCI the same thing they’re claiming here, that Sterling was wrong about what he told SSCI.

Now look how the details change as soon as Sterling goes to Risen. Whereas with the meeting with SSCI, the indictment doesn’t attribute a motive and doesn’t explicitly claim Sterling intentionally provided false information, they claim Sterling made false representations about the operation to “induce” Risen to publish a story on it.

Defendant STERLING caused [Risen's first call to the CIA's Public Affairs director about MERLIN] to occur by having disclosed certain information relating to Classified Program No. 1 to Author A and providing false and misleading information about Classified Program No. 1 to Author A in order to induce Author A to publish a newspaper article about Classified Program No. 1.

Claiming Sterling’s alleged misrepresentation was part of what Sterling did to induce Risen to publish this attributes a motive to the allegedly false information. Presumably, they’re arguing that without the risk that MERLIN gave Iran nukes, Risen wouldn’t have found it as interesting a story (though given that this happened just as it was becoming clear Cheney had lied about Iraq’s nukes, I’m not so sure).

And, too, the indictment provides a clear motive behind Sterling’s attempts to get Risen to publish information on MERLIN.

Defendant STERLING’s anger and resentment towards the CIA grew over time as the CIA rejected the defendant’s settlement offers and made other legal decisions. In retaliation for the CIA’s refusal to settle on terms favorable to defendant STERLING, as well as other decisions made by the CIA, defendant STERLING caused and attempted to cause the publication of classified information about Classified Program No. 1 and Human Asset No. 1 that defendant STERLING characterized in a false and misleading manner.

So it seems likely to me the government went to the trouble of subpoenaing Zaid to try to smooth this transition between what appears to be legal whistleblowing to what they claim to be retaliatory, misrepresentative leaking. I would imagine they’re very interested in why Zaid (apparently) negotiated the testimony to SSCI.

Mind you, there are three more interesting details of timing. The indictment alleges that Sterling was the source for this November 4, 2001 article revealing that the 9/11 attacks had destroyed CIA’s New York office. As the indictment lays out, it appeared just days after the CIA had rejected Sterling’s second employment discrimination settlement attempt. So they lay the ground work for retaliation motive early.

Also, the indictment claims that Sterling called Risen on February 27, 2003, two weeks after CIA rejected his last settlement offer, putting it before Sterling told SSCI CIA had had him help deal nuclear blueprints to Iran.

But perhaps the most interesting set of dates appear in a paragraph in Sterling’s suit-filed March 4, 2003, so the day before he testified to SSCI-regarding CIA’s refusal to let him publish details in his memoir.

By letter dated January 3, 2003, the CIA notified Sterling of additional decisions regarding his October submission [to the Publication Review Board]. Sterling was not only notified that the CIA considered certain information in his manuscript to be classified, which also conflicted with earlier decisions, but the CIA informed Sterling that he should add information into the manuscript that was blatantly false. Upon information and belief, the CIA instructed Sterling to knowingly include false information within his manuscript solely to maintain a litigation advantage against Sterling in the unrelated discrimination lawsuit. [my emphasis]

That is, it appears that Sterling, not the CIA, is the first party to claim the other was lying (though they may be about entirely unrelated issues).

It seems likely one of the biggest weaknesses of this indictment is the possibility that Sterling will argue he legitimately worried about our government dragging us to war against Iran based on false claims and went to Risen as a whistleblower. That doesn’t make it legal, but it’s an extenuating circumstance that, 4,300 deaths into the Iraq War, might well make a jury pause before they convict him for leaking this information. And if Sterling can make that case at all credibly, then it’ll get into the mother of all CIPA fights over whether Sterling can get information to prove the CIA right or wrong about MERLIN.

So it seems like the government dragged Sterling’s lawyer into the Grand Jury to try to rebut the whistleblower excuse from the start.

Related posts:

  1. James Risen’s MERLIN Source Arrested
  2. CIA Doesn’t Want You To Know It Gave Iran Nuclear Blueprints
  3. Did NYT’s Editors Alert the Government to Risen’s Source?


Emptywheel

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Everyone’s naturally tweeting about it: Twitter successfully fought to make public government subpoenas for information about Wikileaks supporters. When the ruled for Wikileaks and unsealed the subpoenas, the Wikileaks supporters then were informed of the subpoenas and could fight them on their own.

Considering Wikileaks is making a sweeping transparency argument accusing governments of too much secrecy, appending gag orders to these subpoenas is almost ironic.

Ryan Singel at Wired has perhaps the best piece on the matter. He argues that Twitter’s response should be the industry norm. His most memorable line is that Twitter “beta-tested” a new feature: a spine.

Fast Company, meanwhile, credits Twitter’s actions to the deft brilliance of its general counsel.

I can’t help but think it’s a little sad that this act today requires heroism. Twitter was merely trying to follow the law by challenging inappropriate gag orders. But the act might require courage. Qwest claimed it was punished by the government for refusing to cooperate with the Bush administration’s illegal warrantless wiretapping, while AT&T and Verizon received retroactive immunity for breaking the law at government direction.

One hopes that Twitter doesn’t face some punishment for merely asking the judge to rule on the law here. If Twitter is punished somehow, we could guess what the industry norm may become.

At the same time, people are asking questions not just about industry norms but also about what the law and U.S. international policy should be. Next week, on Capitol Hill, the Congressional Internet Caucus Advisory Committee is hosting its annual, important, conference on Internet issues. One panel is devoted to this question:

Can the U.S. Continue to Support a Free Global Internet in the Age of Wikileaks, Cyberwar and Rampant Copyright Piracy

I think the answer is yes, depending on how you define a free global Internet. But I’m happy to see this issue debated publicly rather than under gag order.

Balkinization

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A lawyer for Julian Assange calls the Department of Justice’s request for Twitter information “harassment” and points out that this violates the Fourth Amendment, which protects against unreasonable search and seizure.

Is he right?  I think so.  Generally, I am suspicious of lawyers in general because they are paid to have opinions that support their clients.  In this case, however, what we have is an incredibly broad search that is aimed towards anyone who “may” be connected.  In other words, they are mining data to try to make connections, and our search and seizure laws are designed to work the other way around.  The DOJ should be stating specifically what they are looking for, instead of being allowed to fish and retain copies of users private information.    It also paves the way for abuse of search if the group or association isn’t criminal but merely unsavory.

The agency’s subpoena of Twitter is “grossly overbroad” and would give prosecutors access to data on a member of Iceland’s parliament and more than 634,000 people who follow WikiLeaks’ so-called tweets on the site, Stephens said. Similar information was sought from Google Inc., Facebook Inc. and EBay Inc.’s Skype unit, he said.

Regardless of how one feels about Assange, this bears watching.  The potential for abuse is overwhelming, and our ability to resist temptation equally underwhelming. I hope this is squashed for many reasons, but mostly so that our information won’t be “sifted” for a reason like then, then stored for review, and then really just put into a databank where it is stored until convenient.  I have been aware of this danger for a long time, but I’m still amazed by how quickly our principles are being put to the test.


Zandar Versus The Stupid

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And so it begins.  At what level is our activity monitored, and at what level is it protected?  How is protection of our information or enforcement of breaches going to be handled?  A reader implied in an earlier comment that if you’re not a criminal that you shouldn’t have anything to hide.  Not so. I am completely legal and aboveboard, but I do like having the right to my privacy.  This is one of many similar stories.  Not only is it interesting from a legal point of view, but from a social standpoint.  The outcome of these growing pains will define our future.

The US Department of Justice has subpoenaed Twitter, a top social-media site, for information pertaining to certain persons and accounts linked to WikiLeaks, according to media reports. The action comes after Attorney General Eric Holder indicated last year that the Justice Department was looking at options for prosecuting those involved in WikiLeaks’s release of secret US documents.

As for the Twitter subpoena, the Department of Justice is demanding a sizable amount of information: “It includes all mailing addresses and billing information known for the user, all connection records and session times, all IP addresses used to access Twitter, all known email accounts, as well as the ‘means and source of payment,’ including banking records and credit cards,” details Salon. The information to be produced is supposed to go back to Nov. 1, 2009, Salon says. 

That really is quite a bit of information.  It’s why we should be concerned with online privacy and how our personal information is stored, and for how long it is stored.  It doesn’t really matter if it’s a hacker or a telemarketer, our information is sold or stolen regularly.  If the Department of Justice can demand this information, we should be setting protective guidelines and overseeing security protocols, and establishing liability for when our information is used without our permission.  It is naive to think that the law will only use our private data for good and noble purposes, and it is plain stupid to think that even our right to private conversations are safe.  Who is protecting us from those who would abuse this access?  Surely not the same guys who benefit from that access… right?


Zandar Versus The Stupid

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My Google Alert for Wikileaks-related news brings me this item, from IT Security & Network Security News:

A federal court has ordered Twitter to turn over details of accounts tied to several WikiLeaks supporters as part of the government’s investigation into the whistle-blower site.

The U.S. Department of Justice obtained a subpoena for the micro-blogging site Dec. 14 requesting records going back to Nov. 1, 2009, that are “relevant and material to an ongoing criminal investigation.” Among those targeted are WikiLeaks founder Julian Assange, Dutch hacker Rop Gonggrijp (whose name is misspelled in the subpoena) and Bradley Manning, the U.S. Army intelligence analyst suspected of leaking documents to the WikiLeaks.

Also named in the subpoena are computer programmer Jacob Appelbaum (identified by his Twitter username, ioerror) and former WikiLeaks volunteer and current Icelandic parliament member Birgitta Jónsdóttir, who wrote the following in a tweet: “just got this: Twitter has received legal process requesting information regarding your Twitter account in (relation to wikileaks).”

Jónsdóttir also tweeted that she plans to oppose the subpoena.

According to a copy of the court order published by Salon.com (PDF), the government is looking for a variety of information, including session times and mailing addresses.

Wikileaks plans to fight the order (emphasis is mine):

In a statement Saturday, WikiLeaks said officials have subpoenaed details of its account from the San Francisco-based Twitter Inc., seeking private messages, contact information and other personal details of founder Julian Assange and three other people associated with the website.

WikiLeaks said that it suspected other U.S. Internet providers have been contacted by federal government officials as part of their investigation into possible charges against the website and its staff.

WikiLeaks vowed to fight the court order to release the Twitter account information, saying it amounted to harassment.

“If the Iranian government was to attempt to coercively obtain this information from journalists and activists of foreign nations, human rights groups around the world would speak out,” Assange said in the statement.

Washington has been considering possible charges against WikiLeaks and its staff following a series of spectacular leaks of frank and often embarrassing U.S. diplomatic cables.

A copy of the court order, posted to Salon.com, said the information sought was “relevant to an ongoing criminal investigation” and ordered Twitter not to disclose its existence to Assange or any of the others targeted.

Twitter, however, defied that part of the order — to their credit, not just because the surveillance targets’ right to be informed was thus protected, but also because informing the users of those Twitter accounts had the obvious effect of informing the general public of what the government is doing in our name, and what it in all probability is doing to users of other social networking and Internet services who might be going along with the government’s gag order (emphasis in original):

The request for information was supposed to be secret, but Twitter challenged that aspect of the subpoena in order to notify the users that their information had been requested, giving them a chance to file a legal challenge. That has led to suspicion that other Internet sites, namely Facebook and Google, may have received similar requests and quietly complied, reports the Guardian. … Some of the targets of the subpoenas were quick to praise Twitter. “It appears Twitter, as a matter of policy, does the right thing,” Gonggrijp said. “Heaven knows how many places have received similar subpoenas and just quietly submitted all they had on me.”

Carne Ross at The Huffington Post has some thoughts on the forest that should please advocates of balance and moderation:

Amid the sound and fury of the reaction to WikiLeaks, something is missing. Whether hostile or supportive, politicians and commentators on all sides have managed to miss the real point. The contents of the leaked cables should demand a deep reflection on our foreign policy. That this has not happened tells a sorry story about our very democracy.

On the right, and indeed center, the reaction has been hysteria. Politicians have lined up to decry the threat to US national security and even American lives, without offering a shred of evidence to confirm this claim.

Virtually no one, save the admirable Ron Paul, has stood up for free speech and the public’s right to know what government is up to in its name, or defended Bradley Manning’s right to the presumption of innocence, but whose involvement in the leaks is unquestioningly assumed by everyone.

On the left: blind support for Assange and WikiLeaks, despite the feckless irresponsibility of leaks that include detailed information on the defenses of nuclear sites, of minimal public interest but considerable interest to potential terrorist attackers. Meanwhile, many have confused the issue of free speech by supporting Assange’s transparently self-interested claims that allegations of sexual misconduct are part of a CIA plot. In Sweden? Come off it.


The Moderate Voice

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The noose around the necks of Wikileaks is now tightening at a rapid pace, with the United States finally getting overtly involved. Last night, Icelandic Parliamentarian and producer of Wikileaks’ “Collateral Murder” video Birgitta Jonsdottir stated she had just been notified that the US Department of Justice had sent Twitter a subpoena for all of her activity on Twitter- and that of Julian Assange, and anyone involved with Wikileaks.

Wikileaks fremeny The Guardian, who broke the story after Jonsdottir’s initial tweets, reports that Jonsdottir is doing everything she can to fight the subpoena, and has ten days to get the process in motion before Twitter is forced to hand over the information. While most of the information- tweets- is already public, this would also give the government access to her private messages on the network, which is what Jonsdottir has said she expects the government is after. She is also demanding a meeting with the US ambassador to Iceland, and is using all her weight as a member of the legislature to fight the release of her information. She tells the Guardian:

“It’s not just about my information. It’s a warning for anyone who had anything to do with WikiLeaks. It is completely unacceptable for the US justice department to flex its muscles like this. I am lucky, I’m a representative in parliament. But what of other people? It’s my duty to do whatever I can to stop this abuse.”

Meanwhile, over at Salon, Glenn Greenwald has uncovered the actual subpoena request (downloadable here) and astutely notes that, while Jonsdottir has been the loudest about the request, she is not nearly the only Wikileaks-related person whose information is being recalled. Also on the list, of course, is Julian Assange, but also other senior members of the organization, like spokesman Jacob Appelbaum and Rop Gonggrijp, and- if possible- suspected military leaker Bradley Manning. For all these entities, he explains, the government seeks “all mailing addresses and billing information known for the user, all connection records and session times, all IP addresses used to access Twitter, all known email accounts, as well as the ”means and source of payment,” including banking records and credit cards.” Greenwald also questions- as Jonsdottir did over Twitter later- whether other social networking sites received similar subpoenas and remained mum about it.

The subpoenas finally confirm rampant speculation that the US Department of Justice is considering mounting a criminal case against Wikileaks for their work, though the targeting of people like Jonsdottir and Appelbaul, as Greenwald also points out, makes the search notably more sweeping. Jonsdottir’s involvement in particular, as she is only known to have worked on Collateral Murder and had a very public change of heart about Assange’s leadership, shows that it was not the diplomatic cables that pushed the Department of Justice to act- they’re investigating every move Wikileaks has made in the past couple of years. Also notable in the list of names is the absence of Daniel Domscheit-Berg (PKA Daniel Schmitt), the former Wikileaks spokesman who has moved on to establish the rival site Openleaks after either resigning from Wikileaks in disgust or being fired by Assange for contempt. Domscheit-Berg’s collaboration with the organization lasted much longer than Jonsdottir’s, despite ending much more explosively, though it is also possible that the Department of Justice is banking on old animus against Assange to turn Domscheit-Berg to their side. For now, all parties involved must simply wait for the legal process to unravel, and for the American government to open up about their search.

Mediaite

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After a member of Iceland’s Parliament and former Wikileaks volunteer, Birgitta Jónsdóttir, revealed on Twitter yesterday that Twitter has been subpoenaed for details on her Twitter account, details of the subpoena have been released. The subpoena was first submitted to Twitter on December 14, and asked for account information for six people as well as any account associated with Wikileaks, going back to November 1, 2009. Of particular note, they ask for:

records of user activity for any connections made to or from the Account, including the date, time, length, and method of connections, data transfer volume, user name, and source and destination Internet Protocol address(es).

non-content information associated with the contents of any communication or file stored by or for the account(s), such as the source and destination email addresses and IP addresses.

By getting the IP addresses, they might be able to tie a location to the Wikileaks activity (though I would imagine some of the subpoenaed people shield that kind of information).

Here’s what they might be after.

There’s a passage in the chat logs in which Manning describes his first contacts with Julian Assange. This passage comes on May 22, allegedly before Adrian Lamo was cooperating with investigators (but there are reasons to question that).

(2:05:58 PM) Manning: it took me four months to confirm that the person i was communicating was in fact assange
(2:10:01 PM) Lamo: how’d you do that?
(2:12:45 PM) Manning: I gathered more info when i questioned him whenever he was being tailed in Sweden by State Department officials… i was trying to figure out who was following him… and why… and he was telling me stories of other times he’s been followed… and they matched up with the ones he’s said publicly
(2:14:28 PM) Lamo: did that bear out? the surveillance?
(2:14:46 PM) Manning: based on the description he gave me, I assessed it was the Northern Europe Diplomatic Security Team… trying to figure out how he got the Reykjavik cable…

While Manning doesn’t say that these conversations took place on Twitter (I’ll come back to this), we know that Wikileaks, at least, was revealing details of this surveillance on Twitter. A series of Tweets from late March describe heavy State Department surveillance. Several of the tweets reference the production of the Collateral Murder video. Now mind you, this was a month or more after Manning would have leaked the video itself. But this tweet makes me wonder whether Manning didn’t continue monitoring surveillance and response.

We know our possession of the decrypted airstrike video is now being discussed at the highest levels of US command.

In other words, this may be evidence on Twitter of the Wikileaks team learning information that Manning might have provided them.

As Glenn points out, three of the people covered by the subpoena were involved in the production of the video.

the three named producers of the “Collateral Murder” video — depicting and commenting on the U.S. Apache helicopter attack on journalists and civilians in Baghdad — were Assange, Jónsdóttir, and Gonggrijp (whose name is misspelled in the DOJ’s documents).  Since Gonggrijp has had no connection to WikiLeaks for several months and Jónsdóttir’s association has diminished substantially over time, it seems clear that they were selected due to their involvement in the release of that film.

One of the things the government may be trying to do is to pinpoint what IP was involved in the tweets revealing the surveillance, to try to tie any conversation about that surveillance to conversations with Manning, and in turn tie those conversations to their theory that the Wikileaks team conspired to leak this information.

Related posts:

  1. When Did Adrian Lamo Start Working with Federal Investigators?
  2. Pulling Some Threads on Lamo’s Inconsistencies
  3. Lamo’s Two (?!) Laptops


Emptywheel

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As we saw that thing bubbling out, blossoming out – all that energy, every minute of every hour of every day of every week – that was tremendous to me. That we could deliver that kind of energy out there – even on an explosion.

That’s Ralph Hall (R-TX), the incoming chair of the House Science and Technology Committee on the BP oil disaster.  Imagine how bowled over Hall will be if he ever figures out that his anti-science pro-pollution denialist policies are poised to deliver a ruined climate to future generations (see Ralph Hall: “We have some real challenges; we have the global warming or global freezing”).

Brad Johnson has more:

Rep. Ralph Hall (R-TX) plans to pursue an aggressive pro-oil agenda as the incoming chair of the House Science and Technology Committee. In an interview with the Dallas Morning News this month, the “unconditional champion of fossil fuels” described his zeal for the “holy grail” of the oil industry — the Arctic National Wildlife Refuge — discussed issuing subpoenas to interrogate climate scientists, and explained why the BP disaster “didn’t dampen his enthusiasm for offshore drilling.”

Hall described the BP explosion that killed eleven men, injured dozens, and led to the despoilment of the Gulf of Mexico as a “tremendous,” “blossoming” flower of energy:  “As we saw that thing bubbling out, blossoming out – all that energy, every minute of every hour of every day of every week – that was tremendous to me. That we could deliver that kind of energy out there – even on an explosion.”

In an extensive report yesterday, the New York Times describes the explosion differently: “Dazed and battered survivors, half-naked and dripping in highly combustible gas, crawled inch by inch in pitch darkness, willing themselves to the lifeboat deck. . . . Crew members, certain they were about to be cooked alive, scrambled into enclosed lifeboats for shelter, only to find them like smoke-filled ovens.”

Only conservatives can marvel at the damage their policies are doing — and then in the same breath continue doing them.  The same Dallas News story reports:

With the House GOP full of climate-change skeptics, Hall’s committee is likely to investigate the scientific studies that say man-made activities are to blame for global warming. Environmental groups say that debate is settled. Nonetheless, Hall said he plans to appoint an aggressive legislator, Rep. James Sensenbrenner, to chair the subcommittee that investigates scientific activities.

Sensenbrenner, R-Wis., can be expected to hold hearings that question “uncertainties” in climate-change science that impact public policy, said John Mimikakis, a former deputy chief of staff for the science committee. Sensenbrenner recently referred to the scientific consensus on global warming as a “massive international scientific fraud.”

“I’m interested in the truth on that,” Hall said. “There are a lot of people who believe that a lot of decisions were made on the false statements of others.

“I’ll try to find out who those others are, and ask them to come before the committee,” he said. “And if they don’t come before the committee, well, we might subpoena them.”

And so it begins….

Climate Progress

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Incoming science chair Rep. Ralph Hall (R-TX) plans to put big oil back in charge of his committee. In an interview with the Dallas News this month, the climate zombie declared his intention to use the House Science and Technology Committee to investigate the “false statements” of climate scientists, and “subpoena” those who don’t appear willingly. Hall also explained why the BP disaster “didn’t dampen his enthusiasm for offshore drilling.” He sees the BP explosion that killed eleven men, injured dozens, and led to the despoilment of the Gulf of Mexico as a “tremendous,” “blossoming” flower of energy:

As we saw that thing bubbling out, blossoming out – all that energy, every minute of every hour of every day of every week – that was tremendous to me. That we could deliver that kind of energy out there – even on an explosion.

Hall has received $ 14,500 in campaign contributions from BP. In an extensive report today, the New York Times describes the explosion differently:

The worst of the explosions gutted the Deepwater Horizon stem to stern. Crew members were cut down by shrapnel, hurled across rooms and buried under smoking wreckage. Some were swallowed by fireballs that raced through the oil rig’s shattered interior. Dazed and battered survivors, half-naked and dripping in highly combustible gas, crawled inch by inch in pitch darkness, willing themselves to the lifeboat deck.

It was no better there.

That same explosion had ignited a firestorm that enveloped the rig’s derrick. Searing heat baked the lifeboat deck. Crew members, certain they were about to be cooked alive, scrambled into enclosed lifeboats for shelter, only to find them like smoke-filled ovens. Men admired for their toughness wept. Several said their prayers and jumped into the oily seas 60 feet below. An overwhelmed young crew member, Andrea Fleytas, finally screamed what so many were thinking:

We’re going to die!”

Under the leadership of Rep. Bart Gordon (D-TN), the science committee approved legislation to champion scientific innovation, prevent and respond to oil spills, and create a National Climate Service. Although the oil spill and climate initiatives were killed by Republican filibusters in the U.S. Senate, the science innovation legislation was finally passed last week.

Wonk Room

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With less than two months left until the conservative majority of the U.S. Commission on Civil Rights loses control of the agency, the Republican and libertarian members are hoping to breath new life into the controversy over the Justice Department’s decision in the New Black Panther case by subpoenaing four more DOJ officials. The subpoenas — first announced at a meeting on Friday — show that depositions have been set up in mid-November, a TPMMuckraker review of the documents sent to the Justice Department shows.

The new subpoenas were sent to former acting Civil Rights Division Assistant Attorney General Loretta King; her former deputy, Sam Hirsch; Deputy Assistant Attorney General Julie Fernandes and Deputy Assistant Attorney General Steve Rosenbaum, a career employee.

In an e-mail to the commissioners, DOJ’s Director of Federal Programs Joseph H. (“Jody”) Hunt accepted service of the subpoenas on behalf of the Department employees on Oct. 28. The Justice Department previously declined to comply with subpoenas issued by the commission on the issue and instructed two employees to ignore them (one DOJ employee quit and testified anyway, another stayed at DOJ but testified against their instructions). A DOJ spokeswoman did not immediately respond to a request for comment on the new subpoenas.

Democratic Commissioner Michael Yaki, who walked out of the Commission’s meeting on Friday to deny the majority a quorum, said he took issue with the actions of the commission. “I don’t really see how at this point any further inquires serve either the mission of the Commission or the cause of civil rights, but I suppose that’s exactly the point they’re trying to make,” Yaki said.

In addition to testimony, the subpoenas request writings and documents related to the New Black Panther case as well information on the enforcement of voter intimidation laws more broadly. (Check out one of the subpoenas here).

Fernandes, a Deputy Assistant Attorney General in the Division, has been a particular target of the commission and the former and current DOJ employees who have testified before it. Former Civil Rights Division lawyer J. Christian Adams said that Fernandes told the Voting Section last November that they new leadership had “no interest” in enforcing a provision of the law that says states should remove ineligible names from the voter roles. Adams claimed that Fernandes said, “It has nothing to do with increasing turnout, and we are just not going to do it.” Former Voting Section Chief Christopher Coates confirmed Adams’ testimony about Fernandes’ statements.

Regulations posted on the Justice Department website over the summer note that the National Voter Registration Act requires states make a “reasonable effort” to clean up the voter roles, but that it “does not require any particular process for doing so” and that “there is no federal process to be met.”

Adams, according to Hans von Spakovsky, sent a series of warning letters to 16 states he believed were violating the law about purging voter roles in early September.

Voter role purges can often accidentally sweep up individuals who should be allowed to vote because they have similar names to dead people (or felons). Kansas Attorney General-Elect Kris Kobach aptly demonstrated that problem last week, when he cited “Alfred K. Brewer” as an example of a dead man in whose name votes were being cast; the Witchita Eagle later found Brewer, whose long-deceased father carried the same name, raking leaves in his front yard. Many voting rights experts point out that there is nearly no evidence of dead voters actually casting ballots.

Meanwhile, the Commission has canceled a meeting scheduled for Friday where conservatives would have tried to gather all five of the members who supported the New Black Panther Party probe to approve their interim report on the case. A draft of the report slammed the Obama administration’s handling of the voter intimidation case. Conservatives were unable to rally enough of their members to show up to vote on the report last Friday. A meeting has been rescheduled for Nov. 19.

President Barack Obama will replace two of the conservative officials on the Commission with his own appointees next month. But the end of conservative control of the Commission doesn’t mean an end to this story, as Republicans on the House Judiciary Committee are expected to make it a priority come January.









TPMMuckraker

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With less than two months left until the conservative majority of the U.S. Commission on Civil Rights loses control of the agency, the Republican and libertarian members are hoping to breath new life into the controversy over the Justice Department’s decision in the New Black Panther case by subpoenaing four more DOJ officials. The subpoenas — first announced at a meeting on Friday — show that depositions have been set up in mid-November, a TPMMuckraker review of the documents sent to the Justice Department shows.

The new subpoenas were sent to former acting Civil Rights Division Assistant Attorney General Loretta King; her former deputy, Sam Hirsch; Deputy Assistant Attorney General Julie Fernandes and Deputy Assistant Attorney General Steve Rosenbaum, a career employee.

In an e-mail to the commissioners, DOJ’s Director of Federal Programs Joseph H. (“Jody”) Hunt accepted service of the subpoenas on behalf of the Department employees on Oct. 28. The Justice Department previously declined to comply with subpoenas issued by the commission on the issue and instructed two employees to ignore them (one DOJ employee quit and testified anyway, another stayed at DOJ but testified against their instructions). A DOJ spokeswoman did not immediately respond to a request for comment on the new subpoenas.

Democratic Commissioner Michael Yaki, who walked out of the Commission’s meeting on Friday to deny the majority a quorum, said he took issue with the actions of the commission. “I don’t really see how at this point any further inquires serve either the mission of the Commission or the cause of civil rights, but I suppose that’s exactly the point they’re trying to make,” Yaki said.

In addition to testimony, the subpoenas request writings and documents related to the New Black Panther case as well information on the enforcement of voter intimidation laws more broadly. (Check out one of the subpoenas here).

Fernandes, a Deputy Assistant Attorney General in the Division, has been a particular target of the commission and the former and current DOJ employees who have testified before it. Former Civil Rights Division lawyer J. Christian Adams said that Fernandes told the Voting Section last November that they new leadership had “no interest” in enforcing a provision of the law that says states should remove ineligible names from the voter roles. Adams claimed that Fernandes said, “It has nothing to do with increasing turnout, and we are just not going to do it.” Former Voting Section Chief Christopher Coates confirmed Adams’ testimony about Fernandes’ statements.

Regulations posted on the Justice Department website over the summer note that the National Voter Registration Act requires states make a “reasonable effort” to clean up the voter roles, but that it “does not require any particular process for doing so” and that “there is no federal process to be met.”

Adams, according to Hans von Spakovsky, sent a series of warning letters to 16 states he believed were violating the law about purging voter roles in early September.

Voter role purges can often accidentally sweep up individuals who should be allowed to vote because they have similar names to dead people (or felons). Kansas Attorney General-Elect Kris Kobach aptly demonstrated that problem last week, when he cited “Alfred K. Brewer” as an example of a dead man in whose name votes were being cast; the Witchita Eagle later found Brewer, whose long-deceased father carried the same name, raking leaves in his front yard. Many voting rights experts point out that there is nearly no evidence of dead voters actually casting ballots.

Meanwhile, the Commission has canceled a meeting scheduled for Friday where conservatives would have tried to gather all five of the members who supported the New Black Panther Party probe to approve their interim report on the case. A draft of the report slammed the Obama administration’s handling of the voter intimidation case. Conservatives were unable to rally enough of their members to show up to vote on the report last Friday. A meeting has been rescheduled for Nov. 19.

President Barack Obama will replace two of the conservative officials on the Commission with his own appointees next month. But the end of conservative control of the Commission doesn’t mean an end to this story, as Republicans on the House Judiciary Committee are expected to make it a priority come January.









TPMMuckraker

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