by John Fund
After receiving a message of an IED explosion near a compound where U.S. officials were meeting with Iraqi officials, the Blackwater team took up positions in Nisur Square, a traffic circle just outside the International Zone, to secure an evacuation route for the American officials. They got into a firefight in which fourteen Iraqis were killed and others wounded. The media painted this as an overreaction by the Blackwater guards, who claimed they had been shot at by insurgents. Those media accounts failed to acknowledge the fact that State Department investigators who went to the scene after the firefight found shell casings from AK-47s—the favorite weapon of Iraqi insurgents—which tended to confirm the claim that the Blackwater team had been shot at. None of the contractors were equipped with AK-47s.
No one minimizes the seriousness of what happened or the fact that civilians were killed. But the “firearms violations” charges were particularly ridiculous—the Justice Department apparently objected to the Blackwater guards being equipped with automatic weapons and grenade launchers in a country flooded with automatic weapons and grenade launchers routinely used by terrorists and insurgents to attack American forces and their Iraqi allies.
In a startling and unusual action, federal judge Ricardo Urbina dismissed the indictment against the five Blackwater guards in 2009 in a ninety-page opinion, preventing the case from even going to trial. His scathing criticism of Holder’s prosecutors, including lawyers from the National Security Division, made it clear that they had engaged in gross prosecutorial misconduct. That misconduct included withholding “substantial exculpatory evidence” from the grand jury that indicted the defendants, such as the fact that within “five seconds” of the Blackwater team pulling into its position in the square, they “started taking fire.”35 The prosecutors also presented evidence summaries to the grand jury that were “distorted versions of the testimony on which they were based.”
The worst abuse of the prosecutors, however, was their use of sworn statements that the guards had given immediately after the incident to State Department investigators. The guards were required to make the statements as part of their contract with Blackwater and the State Department. The use of such testimony, just like the use of the compelled testimony of police officers to internal department investigators, is strictly barred from being used in subsequent criminal prosecutions. In the case of Garrity v. New Jersey,36 the Supreme Court concluded that using such compelled statements violates the Fifth Amendment privilege against self-incrimination.
According to Judge Urbina, the Justice Department was forced to acknowledge that “its investigators, prosecutors and key witnesses were exposed to (and indeed, aggressively sought out) many of the statements given by the defendants to State Department investigators.” This was due to their “zeal to bring charges” against Blackwater, and in that “zeal,” the trial team “repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team” that the evidence they were using was “thoroughly tainted.” The excuses offered by the Justice Department prosecutors for their abusive behavior “smack of post hoc rationalization” and were simply implausible, according to the judge. In fact, they were “all too often contradictory, unbelievable and lacking in credibility.”37
The question this case raises is “whether prosecutors felt they could get away with such abusive behavior because Blackwater was such a politically unpopular defendant.” Eric Holder had made clear his attitude and Blackwater, which had political ties to Republicans, had been made “a whipping boy to further undermine public support for the Iraq war.”38 The dismissal of the indictment was another black eye for the Holder Justice Department but more evidence of how prosecutors under his authority were willing to abuse their power for political reasons.
It is true that a federal appeals court in 2011 sent the case back to Judge Urbina saying that he needed to review the evidence against each defendant individually to see “what evidence—if any—the government presented against him that was tainted.”39 After his specific findings of wrongdoing by the government during remand, the Justice Department brought new charges against four of the defendants through a new grand jury in October 2013. But those new charges and the appeals court decision don’t change the fact that Holder’s prosecutors were willing to use tainted evidence to bring charges in violation of their ethical duty as prosecutors and to ignore the evidence of some of the witnesses in the case that the “Blackwater convoy was under fire.”40
Finally, a discussion of the Justice Department’s handling of national security matters cannot be had without pointing out the totally contradictory and hypocritical approach that Holder has applied to the investigation and prosecution of leaks of classified information. At the very same time that the Justice Department has prosecuted more leak cases against low-level government employees and contractors “than all prior administrations combined,”41 it has been “overlooking and rewarding politically beneficial leaks”42 by high-level individuals in the administration, particularly the White House, that make the president and the administration look good politically as being tough and successful in fighting terrorism. And Eric Holder, when questioned by Congress about its leak investigations, gave “deceptive and misleading”43 testimony, although “it would be less kind and more accurate to say that [what Holder said] would rise to be a lie by most people’s standards,” according to Representative Darrell Issa (R-CA), chairman of the House Committee on Oversight and Government Reform.
In fact, the Obama administration, which came into office promising more transparency, has implemented the most aggressive effort to control the dispersal of government information “since the Nixon administration,” according to former Washington Post executive editor Leonard Downie, who was one of the editors at the newspaper during the Watergate investigation.44 David Sanger, the chief Washington correspondent for the New York Times, says that “[t]his is the most closed, control-freak administration I’ve every covered,”45 although Sanger himself benefited from a controlled leak by the administration on the Stuxnet virus, engineered by the United States to damage Iran’s nuclear program.
The revelation of information about the Stuxnet virus shows how the administration leaked “classified, or highly sensitive information in what appears to be a broader effort by the administration to paint a portrait of the President of the United States as a strong leader on national security issues,” according to Senator John McCain (R-AZ).46 Stuxnet was the first malicious software designed to attack the computer-assisted industrial control system of a nuclear plant.47 It caused Iranian centrifuges being used to enrich uranium to spin out of control and explode.
The New York Times story on June 1, 2012, by Sanger reported that President Obama had secretly ordered the cyberattacks on the computer systems running Iran’s nuclear enrichment facilities, and included highly sensitive details such as the code name for the operation and even a detailed description of a White House Situation Room meeting, something that could only have come from a high-level administration official.48
On June 8, 2012, Holder asked Rod Rosenstein, the U.S. attorney for Maryland, to investigate the Stuxnet leaks. But State Department emails obtained by Freedom Watch through the Freedom of Information Act detail extensive cooperation between the White House and the State Department with Sanger “during the period that he broke confidential national security information.”49 The emails were only turned over after a lawsuit and after the State Department had told Freedom Watch that it had no relevant documents.
According to the emails, the State Department arranged official background interviews for Sanger with State Department officials; then–National Security Council advisor Tom Donilon also talked to Sanger. In fact, a public affairs official at the State Department made it clear in an email that the White House was “cooperating” with Sanger and that Sanger had spoken to Hillary Clinton and “scores of people,” including “over at NSC and other agencies. We have been cooperating
with him on this project and the chats have all been on background.”50
So while the Justice Department investigation has been concentrating on retired Marine General James Cartwright over the Stuxnet virus leak,51 the real question is whether the Justice Department will simply ignore the officially sanctioned leaks that were made by Obama political appointees at the State Department, the National Security Council, and the White House and that Holder is no doubt aware of. Given the general criticism over the president’s lack of action against Iran in 2012, the reason for the Stuxnet leak was “obviously to make President Obama and his administration look strong” in the lead-up to his reelection, according to Freedom Watch’s Larry Klayman. Before Sanger published—with the active help of the Obama administration—the details of one of the most successful cyberattacks in history, designed to stop a country officially designated as a sponsor of terrorism from developing a nuclear bomb, it “was clearly one of the most tightly held national security secrets in our country,” according to Senator McCain.52
Another highly publicized leak investigation that upset the entire Washington and New York media community shows Eric Holder’s tendency to ignore leaks by high-level administration officials while prosecuting politically unimportant individuals. On May 7, 2012, the Associated Press reported on a CIA counterterrorism operation that had intercepted a plot by the Al Qaeda affiliate in Yemen to bomb a U.S. airliner using a more advanced version of the bomb that failed to explode over Detroit on Christmas Day 2009.53 The 2012 bombing was intended to coincide with the one-year anniversary of the killing of Osama bin Laden.
Unfortunately, the leak also disclosed that the CIA had been able to stop the plot because of information from a double agent inside Al Qaeda, a Saudi Arabian intelligence agent who had to be rushed to safety after the AP agreed to hold its story for a week. Eric Holder called it “if not the most serious, it is within the top two or three most serious leaks that I have ever seen. It put the American people at risk, and that is not hyperbole.” According to Holder, it “required very aggressive action.”54
That “very aggressive action” involved the Justice Department violating its own regulations and federal law when it secretly seized—and failed to notify the AP—telephone records for a two-month period for twenty separate AP phone numbers, including the main AP number in the press gallery of the House of Representatives, its office numbers in New York City, Washington, D.C., and Hartford, Connecticut, as well as the cellular, work, and home telephone numbers of individual reporters.55 The president of the AP, Gary Pruitt, did not learn about the seizure until May 2013, a year later, when he was notified by the Justice Department; he immediately sent a letter back to Eric Holder protesting the scope of the seizure and the failure of prior notice or negotiation with the AP, calling it a “massive and unprecedented intrusion.”
The original Yemen story involved only five reporters and an editor, yet the Justice Department didn’t subpoena the records of just those individuals to try to find the government official who had leaked information about the bombing plot to the specific reporters working on the story. Instead, it seized all of the AP’s telephone records from its general numbers for two months, involving more than one hundred reporters, and which would “reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”56 Fifty news organizations signed a letter protesting the Justice Department’s actions.57
The congressional inquiry about the AP investigation was answered by Deputy Attorney General James Cole, since Holder told Congress that he had recused himself from the case. But Cole did not explain why the Justice Department violated its own regulations requiring prosecutors to negotiate with the news media before issuing any subpoena unless the responsible assistant attorney general determines that such negotiations would pose a substantial threat to the integrity of the investigation. In fact, Cole falsely claimed Justice had complied with all applicable legal requirements.
Reporters are also protected under the Privacy Protection Act, which prohibits the federal government from using search warrants to seize the work product of journalists unless there is probable cause to believe they have committed a criminal offense. According to the signing statement of President Jimmy Carter, who signed the Privacy Protection Act into law, government officials must either “request voluntary compliance or use subpoenas—with advance notice and the opportunity for a court hearing—instead of search warrants when they seek reporters’ materials as evidence.”58
Cole, whose response was called as “amateurish as it was unilluminating” by the Washington Post,59 told Congress that the Justice Department had conducted more than 550 interviews before it seized the AP’s phone records, so its investigation was not exactly a secret. And since the AP’s phone records are maintained by its telephone carriers, there was no possibility of these records being destroyed if the AP had gotten advance notice, as it should have, that the Justice Department was seeking these records through a subpoena. There was no reasonable claim that notifying the AP would compromise the integrity of the leak investigation; the only effect of failing to give the AP notice was that it prevented the AP from fighting the Justice Department in court.
Apparently, the AP records did lead the Justice Department to one of the leakers. In September 2013, the FBI announced that an FBI contractor, Donald Sachtleben, had agreed to plead guilty to disclosing to the AP that “there was a foiled al-Qaeda plot on the first anniversary of Osama bin Laden’s death.”60 His leak was prompted by the false claims made by the White House that “there was no credible terror threat on the anniversary of bin Laden’s death.”
But Sachtleben wasn’t responsible for the worst part of the Yemen plot leak. The most damaging information, that there was a Saudi undercover agent who had infiltrated the Yemen Al Qaeda affiliate, “was actually disclosed by Richard Clarke, a former official in the Clinton administration,” and by President Obama’s own homeland security adviser John Brennan.61 The original AP story said nothing about the government having a double agent inside Al Qaeda.
On May 7, 2012, after the AP story and just before the network evening newscasts, Brennan “held a small, private teleconference to brief former counter-terrorism advisers who have become frequent commentators on TV news shows.”62 Brennan told the advisers that the Yemen plot was never a real threat because Washington had “inside control” over it.63 Just after the conference ended, Clarke told ABC’s World News Tonight that the bombing plot “never came close because they had insider information, insider control,” and a few hours later on ABC’s Nightline he surmised that since the government was saying the plot “never came close because they had insider information, insider control,” that implied “that they had somebody on the inside who wasn’t going to let it happen.”64 It was Clarke’s revelation gotten directly from Brennan that led to headlines the next day that the United States had a spy inside the plot.
Despite Brennan’s direct responsibility for the Yemen leak, “unnamed White House officials vehemently denied” that Brennan improperly disclosed classified information65 and he was confirmed to be the new head of the CIA. So once again, the Holder Justice Department went after a low-level FBI contractor who leaked information to counter a misleading story put out by the Obama administration, and ignored the leak of the most damaging information by a political appointee of President Obama, who leaked that information specifically to shape the media spin about the efficacy of the administration’s fight against terrorism.
Anther Justice Department investigation into a leak about North Korea, while not as damaging to America’s intelligence gathering, shows the willingness of Holder to skirt and bend, if not break, federal law. This is also a case in which Holder gave “deceptive and misleading” testimony to Congress, a habi
t of his that has helped lead to his being the first attorney general in American history to be held in contempt by the House of Representatives.
On June 11, 2009, James Rosen, the chief Washington correspondent for Fox News, published a story about North Korea.66 Rosen reported that U.S. intelligence believed that North Korea would respond to a UN Security Council resolution condemning the country’s nuclear and ballistic missile testing program in four different ways, including launching another missile. Rosen quoted an unnamed source but said he was withholding details “to avoid compromising sensitive overseas operations.”
Holder ordered the FBI to open an investigation that led to the indictment of Stephen Jin-Woo Kim, a Lawrence Livermore National Laboratory employee who was on a detail to the State Department, and who eventually pleaded guilty to disclosing national defense information. Kim was one of ninety-six individuals who had accessed the relevant classified intelligence report on North Korea on June 11, the day the story came out, but the only one who had spoken with Rosen that same day by telephone, as well as having prior telephone calls and email exchanges with Rosen. The FBI had found all of this evidence by seizing Kim’s official State Department telephone and email records.
The FBI also believed that Kim met with Rosen face-to-face on June 11. This was based on the electronic system that tracked the State Department badges of both Kim and Rosen and showed them leaving and returning to the State Department building at 2201 C Street, NW in Washington, D.C., at almost the same time.67
But the FBI also had emails between Kim and Rosen because the agency had secretly obtained a search warrant in May 2010 for Rosen’s personal email account. The Privacy Protection Act bans the government from obtaining a search warrant for a reporter unless “there is probable cause to believe” the reporter is committing a crime, so the affidavit filed in the Justice Department’s warrant application claimed that “there is probable cause to believe that the Reporter [Rosen] has committed a violation” of the Espionage Act “at the very least, either as an aider, abettor and/or co-conspirator of Mr. Kim.”68 The only factual basis the FBI revealed for that assertion was that Rosen flattered Kim, “exploited” his vanity, and was very “persistent” in seeking information about the North Korean situation, actions all reporters do routinely when they try to convince a source to provide them with information.