Wednesday, March 18, 2009

A New Blog at POLITICO

Exciting news.....

I'm kicking off a new blog entitled "Under The Radar."

Come check it out here at the POLITICO website.

This blog will stay up, but I don't expect to update it. I'll be putting all my riveting new material on the new blog.

Hope you like it, add it to your feeds and/or visit regularly.

Tuesday, February 24, 2009

Big Defense Win in Aipac Case, But Beware the Dreaded Footnote

A federal appeals court has handed another serious defeat to the prosecution of two pro-Israel lobbyists accused of trafficking in classified information, though a cryptic footnote could offer some hope to the government.

On Tuesday, the Richmond, Va.-based U.S. Court of Appeals for the Fourth Circuit refused to overturn a lower judge’s ruling that the two American Israel Public Affairs Committee, Steven Rosen and Keith Weissman, had the right to use two classified documents as part of their defense.

In an unusual pre-trial appeal, the Justice Department argued that the records, an FBI report and a document describing the briefing Israeli officials gave the U.S. about Palestinian arms smuggling were irrelevant to the case, in large part because Rosen and Weissman are not alleged to have seen the documents.

The three-judge appeals court panel said it had doubts about the relevance of the Israeli briefing document, but was bound to defer to the trial judge, T.S. Ellis III.

“We may not substitute our judgment for that of the trial court, which has been immersed in these proceedings for many months and has far more familiarity with the matter
than we do,” Judge Robert King wrote, joined by Judges Roger Gregory and Dennis Shedd.

Portions of the appeals court’s opinion were deleted, apparently because they contained classified information.

Last week, in a blow to the prosecution, Ellis ruled that Rosen and Weissman have the right to call a former federal classification czar, J. William Leonard, as a witness. Leonard is expected to testify that over-classification is pervasive in the federal government and that the information Rosen and Weissman allegedly received may not have been classified at all.

However, in a footnote Tuesday, the appeals court delivered what may have been a brush-back pitch to Ellis.

In a key ruling in 2006, Ellis found that, to win a conviction, prosecutors had to show Rosen and Weissman knew what they were doing could harm the U.S. or help an enemy. The judge also said the government would have to show Rosen and Weissman knew what they were doing was illegal.

The Justice Department asked the appeals court to overturn that order, but the court ruled last year that it was not ripe for review. The three appeals judges stood by that position Tuesday, but added this in a footnote: “We are nevertheless concerned by the potential that the…order imposes an additional burden on the prosecution not mandated by the governing statute.”

The judges wrote that the law under which Rosen and Weissman were charged, the Espionage Act, “must be applied according to its provisions, as any other course could result in erroneous evidentiary rulings or jury instructions.”

The judicial aside has no direct impact on Ellis’s decision, though it could persuade him to revisit the matter. If he did, the government might not like the ultimate outcome. Ellis’s ruling suggests he believes that, without the additional requirements on the prosecution, the law would be unconstitutional.

A defense attorney for Rosen, Abbe Lowell, hailed the long-awaited decision from the appeals court.

“In addition to arguing that this is a misdirected case from the get-go, the defendants have stated they ought to have the right to use relevant classified information in their defense. The government has fought that and now both Judge Ellis and the court of appeals have agreed with the defense,” Lowell said. “We’re most anxious to get to trial.”

Lowell declined to comment on the potentially troublesome footnote.

A lawyer for Weissman, John Nassikas, declined to comment.

The Justice Department could seek to appeal the decision to the full bench of the 4th Circuit, but officials were noncommittal yesterday.

“We are reviewing the decision and will respond in court,” Peter Carr, a spokesman for the prosecutors, said.

Rosen and Weissman were indicted in 2005 on charges they obtained classified information from government officials and passed it to journalists, diplomats and others. The pair pled not guilty. A trial is set for April, but lawyers involved in the case have said they expected it to be delayed again.

The defense team is hopeful that President Obama’s appointees at the Justice Department will review the case and decide to drop it, especially in light of the recent rulings. However, such a decision could cause an outcry among career prosecutors and FBI agents eager to proceed with the prosecution of the two ex-lobbyists.

Friday, February 6, 2009

Bid to Reclassify Guantanamo Data Marches On

Despite President Obama’s promises to bring a new wave of transparency to government, the Justice Department is still opposing a media-led effort to give the public access to certain court records pertaining to war-on-terror detainees at Guantanamo Bay.

Government lawyers submitted a legal brief last week objecting to an attempt by the Associated Press, the New York Times and USA Today to view some government filings in habeas corpus cases brought on behalf of Guantanamo detainees. The filings in dispute are portions of so called “factual returns” in which the government offers evidence said to justify keeping each detainee locked up.

The government filed the documents under seal but said the contents were unclassified. Now, however, the Justice Department says some of the data should have been classified.

“Regrettably, the speed of the redaction process resulted in errors, and subsequent review has revealed that classified material was not fully redacted from the unclassified returns,” Justice Department lawyers wrote. They said they fear that classified information could be assembled from a number of different cases to form a “mosaic” that would be inimical to national security.

“If the unclassified factual returns were released to the public now… the classified information contained therein could be aggregated and analyzed by interests hostile to the United States,” government attorneys wrote.

The Justice Department said officials plan to review the documents again and file some portion of them publicly, but the newspapers’ lawyers have argued that re-redacting the documents could do more harm than good by alerting detainees, who saw the original filings, to exactly which information was mistakenly declassified.

Justice Department attorneys also argued that there is no First Amendment right to view any court documents filed in connection with the habeas cases. “There is no tradition of judicial proceedings at all in these circumstances, much less open proceedings,” the lawyers wrote. They noted that oral arguments, unclassified versions of briefs, and opinions in the cases have been made public.

The Justice Department’s request to reclassify some of the records and keep them secret was filed in December. After President Obama was sworn in, the Justice Department asked judges for delays to re-evaluate the government’s position on some Guantanamo-related issues, but no delay was requested to review the government’s opposition to the newspapers’ request to obtain the records.

Approximately 135 habeas cases are pending in federal court in Washington seeking the release of or changes to the conditions of confinement for about 210 of the roughly 245 prisoners at Guantanamo Bay. Soon after taking office last month, Obama ordered Guantanamo closed within a year and asked for a delay in pending military trials there. However, the question of what to do with the men detained there remains unresolved.

Monday, January 12, 2009

Post-9/11 Pardons Seem Likely

President Bush's press conference today made me suspect that he plans at least some pardons to block prosecution of CIA and Pentagon employees and contractors involved in so-called "enhanced interrogation" of war-on-terror prisoners. I think the president may also extend clemency to those who took part in the warrantless wiretapping program(s) he ordered. (I offered an early assessment of the pros and cons of such pardons in The New York Sun more than a year ago.)

To be sure, Mr. Bush dodged the pardon question when it was put to him today by Sheryl Gay Stolberg of the New York Times. "I won't be discussing pardons here at this press conference," he said.

However, during the presser, the president was at his most passionate, even resentful, when he described second guessing of his post-9/11 decisions.

"All these debates will matter not if there's another attack on the homeland," he said. "The question won't be, you know, were you critical of this plan or not; the question is going to be, why didn't you do something?Do you remember what it was like right after September the 11th around here? ...People were saying, how come they didn't see it, how come they didn't connect the dots? Do you remember what the environment was like in Washington? I do. When people were hauled up in front of Congress and members of Congress were asking questions about, how come you didn't know this, that, or the other? And then we start putting policy in place -- legal policy in place to connect the dots, and all of a sudden people were saying, how come you're connecting the dots?"

Mr. Bush also made pretty clear that he didn't give a rip about "short-term history," by which he seemed to mean that he'd take his chances with the historians in a decade or more and worries little about his reviews on Jan. 21. He also evinced little concern about the views of his hard-line critics here or abroad, who are likely to be the most vocal about lawlessness and such if he does pardons.

All those factors make me suspect Mr. Bush would be willing to accept the firestorm that would follow pardons. Granted, Vice President Cheney's recent statement that pardons aren't necessary militates slightly against their issuance. So does President-elect Obama's statement that he doesn't want to dwell on the past. However, those who crafted some of these policies trust Democrats and the whole Justice Department for that matter about as far as they can throw them. The issue here is not whether people will be convicted or even indicted for their conduct. Both eventualities are highly unlikely. But mere criminal investigation could cost some officials hundreds of thousands of dollars apiece in legal bills. That prospect is what will push Mr. Bush toward pardons, if the lawyers tell him they are practical.

I put the chance of blanket 9/11-related pardons at about around 65% as of this writing.

Friday, January 9, 2009

Post Weighs in on Clinton Foundation Transparency

Back on December 2, I noted some shortcomings in the pledges President Clinton's foundation is making to avoid conflicts with Senator Clinton's likely service as Secretary of State.

Today, for the second time, the Washington Post's editorial page expresses concern about some of the same issues. I missed a similar editorial in the Post on December 20. Here's Clinton Foundation CEO Bruce Lindsey's letter to the Post describing the paper's stance as "shortsighted and dangerous."

While it may come as a shock to some, I'm already on the record agreeing with Lindsey. I said asking Mr. Clinton to suspend his work in this area was "stupid." On the other hand, I said real-time disclosure was the best way to handle any conflicts. The pledges still fall short on that score.

Wednesday, January 7, 2009

Richardson Pull-out Disappoints One Journo

I'm bummed that Governor Bill Richardson decided (or had it decided for him) to withdraw his planned nomination for Secretary of Commerce. That move is being chalked up to an ongoing federal investigation into an alleged pay-to-play scheme in New Mexico. I suspect the echoes of Blagojevich play a role here.

However, my disappointment is due more to the fact that the Senate will be denied the opportunity to dig into some other issues, including Richardson's alleged role as Energy Secretary in leaks about Wen Ho Lee, the nuclear scientist accused of being a spy for China, held in jail for a year or so, and then released in a plea deal that fell far short of the original charges. The federal judge handling the criminal case apologized to Lee.

When I asked President Clinton about the case, he said he "always had reservations" about how Lee's prosecution was being handled. I later grilled Joe Lockhart about why the president allowed the man to spend a year in jail but never raised a hand, even though Mr. Clinton strongly suspected the case was being mishandled from the outset. Some of these exchanges were included in a PBS documentary.

Some Asian-Americans have never forgiven Richardson for his alleged role. They publicly opposed Richardson's nomination over what they called the scapegoating of Lee. That opposition got virtually no press coverage, though it was the only Obama nomination I know of that triggered a race-based outcry. You can see more about the opposition here and here. Richardson's critics have also posted this video from 60 Minutes (and other news reports) of the former Energy Secretary asserting that he tried to safeguard the scientist's reputation.

I understand that in a civil suit Lee brought against the government for alleged privacy violations, Richardson denied leaking Lee's identity to the press.

Anyway, too bad some of this couldn't have been probed a bit further. Maybe Richardson will be invited back into the administration at some future point and these issues will be put back on the table.

Monday, January 5, 2009

A 'Cult' at Costco

On a milk run to my local Costco this morning, I was startled to find a woman in a long orange traditional Chinese gown standing just inside the entrance. I was even more surprised to find that her presence was connected to Falun Gong, a religious sect which the Chinese government has branded as an "evil cult."

The woman and several compatriots in business suits were promoting "Divine Performing Arts: The Spectacular 2009," a show which will be staged at the Kennedy Center in Washington in February and is timed to coincide with Chinese New Year. Similar performances at Radio City Music Hall last year led some attendees to tell the New York Times they were shocked to find pro-Falun Gong propaganda in the show. Some walked out, complaining they were deceived.

The Times said promotional material for the 2008 show made no mention of the sect. A brochure being handed out at the Costco in Arlington, Va. discloses the connection in passing. "Divine Performing indpendent of China's regime and proud to include artists that practice Falun Gong meditation," the flyer says. Fine print on the back says the Washington run is "presented by NTVDC," a television news outlet affiliated with the sect, and by the local Falun Dafa Association. The show's Web site says "Audiences may....glimpse the courage of Falun Gong practitioners in China today."

A newspaper linked to the sect, Epoch Times, recently boasted about the success of the Costco connection. Nearly half the audience for a show in Chicago was drawn in through the warehouse store, the paper said. Epoch Times also said the in-store promotional tabling was approved at Costco headquarters in Washington state and that chain executives specifically insisted on the costumed "empress" who greeted me this morning.

The sect's connection at Costco goes beyond the practice at some stores of letting the Salvation Army, a Christian group, fundraise at the doors. Tickets to the Falun Gong-backed shows are actually purchased at the Costco register.

There are cult-like aspects to the Falun Dafa/Falun Gong group, though many members insist they practice it mostly for the calm and focus achieved through meditation and breathing exercises. I am also minfdul that the dividing line between a cult and a mainstream religion is fuzzy and, in the view of some, nonexistent. On the other side of the ledger, the Chinese government's response to the group has been heavy-handed and sharply criticized by international human rights groups.

I'm not really looking to take one side or the other in the longrunning battle between the Chinese Government and Falun Gong, or to assert an equivalence between the two. I'm just surprised that a major American corporation would want to wade into all this. Would Costco permit a man costumed as a People's Liberation Army soldier to stand in uniform inside its stores? Would Costco sell tickets for shows which could be seen as proselytizing by a Catholic or evangelical Christian group? For a non-religious Chinese pro-Democracy group?

Of course, Costco is free to open its doors to any group. I'd also fervently defend anyone's attempt to exercise their First Amendment rights outside of Costco, even on the store's private property. This 2004 court ruling says Costco allows such "expressive activity" under a complex regulatory scheme, only at stores which share parking lots with non-Costco stores, and perhaps only in California. (In this instance, the ticket sales further complicate the analogy.)

Costco sold its holdings in the Chinese mainland in 2004 and presently has five stores in Taiwan, so maybe there's a geopolitical element to their stance. I have a call into Costco's headquarters and will post any comment they offer.

I guess it goes without saying that I'm a Costco member. I was also a member of Costco's Chinese chain, Pricesmart, before the sale.
Addendum: It looks like the arrangement between the show and Costco may have been in place for a year or more.

Friday, January 2, 2009

Silliest FOIA Ruling of the Year?

It's award season, so I'd like to offer a nominee for silliest Freedom of Information Act decision of the year. At the agency level, there are too many contenders, so they are automatically excluded. But in the waning days of 2008 we had a real sleeper from the good ol' federal court in the nation's capital.

On December 19, Judge Colleen Kollar-Kotelly threw out a FOIA lawsuit brought by SAE Productions, Inc., a television production company run by Steven Emerson, a veteran journalist who has become a polarizing figure for his early and unabashed warnings about the perils of Islamic extremism and terrorism. Emerson was asking the FBI for information about himself and about the agency's dealings with camps for Muslim youths.

Judge Kollar-Kotelly nixed the suit for the hyper-technical reason that the case was brought in the name of Emerson's company and not by Emerson himself. "The Corporation was not adequately identified as the FOIA requester," she wrote.

Oh, so Emerson just jotted off letters to the FBI from his home address, never mentioning his production company and suddenly popped up in court suing from some media entity the FBI never had an inkling about? Nope. Copies of the letters filed in court show Emerson wrote in on SAE letterhead, describing himself as "Steven Emerson of SAE Productions," and identifying himself as a representative of the news media.

Justice Department lawyers argued Emerson never made clear he was seeking the records "on behalf of" the company. Judge Kollar-Kotelly took the argument hook, line and sinker. "Plaintiff cites to no authority
supporting its argument that the use of corporate letterhead, without more, is a sufficient indication that a FOIA request is being made on behalf of the corporation, nor is the Court so persuaded," she wrote. The court and Justice Department cite a bunch of cases not particularly analogous in my view, such as companies which tried to sue over requests made by outside lawyers and a wife who tried to sue over her husband's request.

This decision is absurd. Frankly, I find it hard to believe DOJ would make the argument and even harder to believe a judge would accept it. As a journalist, I've written dozens of FOIA requests and seen probably hundreds more from other reporters. I've not seen one yet that says "I've obtained a resolution from the board of the Washington Post company authorizing this FOIA request" or "The president of CBS Inc. has instructed me to proceed." Nor should they have to.

FOIA requests should not have to be drafted with legal precision. The whole purpose of the well-intended but poorly-executed law is to give the public ready access to government information, not to bury requesters in technicalities and roadblocks. The notion that a request has to include the magic words, "on behalf of," to allow one's employer to pursue it in court is entirely at odds with what FOIA was trying to do.

If a reporter makes a FOIA request on a news outlet's letterhead or even identifies the entity he or she works for, that ought to be enough to give both the individual reporter and the entity the right to file suit. The judge sees some Constitutional problem here, but I don't. Reporters excluded from court proceedings and secret agency meetings often object without stating explicitly that they are acting "on behalf of" their outlet. They may not even be empowered to do so. But this shouldn't eviscerate the outlet's right to take up the fight later--in its own name.

This wayward decision can probably be worked around by savvy requesters simply adding to their boilerplate the phrase: "on my own behalf and on behalf of XXX Inc." And the rare news outlet willing to pay legal fees in this environment could still sue under its reporter's name. For those reasons, I can't say this is the worst FOIA ruling of the year, because it's more about procedure than substance. But it definitely qualifies as one of the decisions most starkly at odds with the spirit of FOIA.