Obama's Enforcer

by John Fund

  The search warrant application, which was personally reviewed and approved by Eric Holder under applicable DOJ policy, also requested that the federal court issue an order preventing the email provider from notifying Rosen of the search warrant. It alleged that disclosure would endanger the life and safety of an individual, potentially cause flight from prosecution, destruction and tampering of evidence, intimidation of potential witnesses, or otherwise seriously jeopardize the investigation. Since Rosen could not destroy or tamper with emails on his email provider’s server and the FBI had already seized all of Kim’s telephone and email records, the claims made by the agent were clearly false. And no one can seriously argue that any of the other claims—such as that Rosen would flee—would apply, either.

  Two separate judges refused to grant the Justice Department a warrant, with each separately concluding that DOJ “was required to notify Mr. Rosen of the search warrant.”69 But Justice appealed the decision and convinced the chief judge of the Federal District Court for the District of Columbia, Royce C. Lamberth, to issue the warrant. The Justice Department didn’t move to unseal the search warrant records until November 7, 2011. However, due to a series of errors by the court clerk, the search warrant was not unsealed until May 16, 2013, when the clerk started receiving media inquiries as the story broke.70

  The day before, however, on May 15, Eric Holder testified before the House Judiciary Committee and was specifically questioned about the Justice Department’s leak investigations. He made no mention whatsoever of the warrant that had been issued for Rosen’s emails. When Representative Hank Johnson (D-GA) asked Holder about the seizure of the AP’s phone records and possible prosecution of the press for publishing stories based on classified information, Holder responded:

  With regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved, heard of, or would think would be a wise policy. In fact my view is quite the opposite. . . . The focus should be on those people who break their oaths and put the American people at risk, not reporters who gather this information. That should not be the focus of these investigations.71

  This testimony was not true. Holder claimed that prosecuting the press was “not something that [he had] ever been involved, heard of, or [thought] would be a wise policy” and yet he had personally approved the application for a search warrant72 that claimed Fox reporter James Rosen was a co-conspirator or aider and abettor of criminal activity, which would make Rosen just as guilty of violating the Espionage Act as the government official who disclosed the classified material. If Holder did not believe this to be true, and if he had no intention of ever prosecuting Rosen, it was unethical for him to approve such a false claim based on a false premise in a sworn affidavit that was filed with the court.

  When the House Judiciary Committee learned about the Rosen investigation by Justice after Holder’s hearing, it tried to question him in a letter about “the obvious clash between his testimony and the truth.” But Holder refused to respond. Only after weeks of delay did Holder finally send a response on June 19, 2013, that “failed to answer any of the Committee’s questions.”73 In fact, Holder admitted in his letter that even though the Justice Department had had no intent to prosecute Rosen, the department claimed he had committed a crime precisely because such a claim was necessary “in order to proceed under the Privacy Protection Act.” His response did not “ameliorate” the committee’s view that his testimony was “deceptive and misleading” and it took no comfort in the claim made by Holder that the department “never intended to prosecute Mr. Rosen when it labeled him a criminal suspect.”

  In fact, as the committee pointed out, the legislative history of the Privacy Protection Act makes it clear it was intended to prevent the government from searching the files of journalists for evidence against third parties. Holder’s view, that the government can search the files of a journalist as long as the government makes a pretextual showing that the journalist is involved in criminal activity, “runs exactly counter to the purpose of the PPA.”74

  There is no question that leaking classified information is a serious violation of the law that can endanger the national security of the country and the lives and safety of intelligence agents and the general public. But going after government officials is a different prospect than going after journalists engaged in First Amendment activity. The government protects classified material through strict internal controls, limiting access, and prosecuting officials who leak the information—not prosecuting the reporters who publish the leaks. Holder’s approval of a secret investigation of James Rosen is exactly the kind of abusive government action that will have a deterrent effect on reporters and particularly their sources. It is also completely unacceptable to classify reporters doing their jobs as criminals as Holder did in the FBI affidavit.

  As Michael Clemente, an executive vice president at Fox News, said, naming a reporter as “a criminal coconspirator for simply doing his job as a reporter” is “downright chilling.”75 First Amendment lawyer Charles Tobin added that “search warrants like these have a severe chilling effect on the free flow of important information to the public.”76

  The administration obviously realized it had a problem even with the generally liberal press, which has treated Barack Obama and Eric Holder with kid gloves during his presidency, after news about the AP and Rosen investigations came out. Holder held seven meetings with representatives of about thirty very concerned news organizations, after which he announced a “new” set of guidelines that would supposedly restrict Justice Department investigations into leaks involving reporters.77 But the guidelines still allow prosecutors to obtain a search warrant for a journalist’s phone and email records if he is the target of a criminal investigation—which is exactly how Holder improperly convinced a federal judge to issue a warrant against Rosen before these “new” guidelines. The guidelines also require news organizations to be notified of such a warrant unless the attorney general believes it would harm the leak investigation—which was also exactly what the law was prior to these “new” guidelines. Yet Justice failed to notify the AP and in fact asked the judge to delay notification. These “new” guidelines were obviously just face-saving propaganda created by the Justice Department PR shop that were intended to satisfy the media that Holder was taking steps to assuage their concerns even though they made no significant changes in Justice policy and helped mask Holder’s violation of the legal rights of the AP and James Rosen as well as prior internal DOJ guidelines.78

  But while the Justice Department aggressively has gone after accused low-level leakers of classified information, it has ignored the leaks of classified and sensitive information by the White House and senior administration officials. Senator Dianne Feinstein (D-CA), the chairwoman of the Senate Intelligence Committee, herself said that the White House has been behind recent national security leaks and that President Obama must understand “that some of this is coming from their ranks.”79

  At the same time that his administration threatened to prosecute a former member of SEAL Team Six, Matt Bissonnette, for his firsthand account of the May 2011 raid that killed Osama bin Laden, President Obama’s Justice Department ignored what is probably the most blatant and outrageous leak directly engineered by the Obama White House—detailed classified information about the mission by Team Six that found and killed Osama bin Laden. In fact, the reason we know it was SEAL Team Six is that Vice President Joe Biden identified them publicly at a dinner of the Atlantic Council at the Ritz-Carlton Hotel in Washington, D.C., on May 3, 2011.80 This meant that every member of Al Qaeda knew which American military unit to target and where to look for them, since they are based in Norfolk, Virginia. In fact, Karen Vaughn, the mother of one slain member of SEAL Team Six, said she was called by her son after Biden’s leak to tell her to delete all information about their family on “social media, Facebook and Twitter.” She said that she “never heard [her son] that afraid in his
life. He told me: ‘Mom, we’re picking up chatter. We’re not safe. You’re not safe. Delete everything.’ ”81

  It was only three months after bin Laden’s death that fifteen members of SEAL Team Six were among the thirty-eight service members killed in an attack on a Chinook helicopter in Afghanistan by Taliban fighters using rocket-propelled grenades, and who were “waiting on three sides for the aircraft as it approached. The Chinook was a sitting duck as it hovered in the sky. The evidence is overwhelming and disturbing: SEAL Team 6 members were ambushed.”82

  The White House not only required the CIA and the Pentagon to give special briefings to the makers of the movie Zero Dark Thirty, screenwriter Mark Boal and director Kathryn Bigelow, but according to documents obtained by Judicial Watch through a lawsuit and a Freedom of Information Act request, even revealed the classified name of the identity of a “planner, SEAL Team 6 Operator and Commander.”83

  Classified information and “scads of details” were released by the White House and the Pentagon to the filmmakers and the public about the bin Laden mission.84 In fact, while the administration was leaking this information, the Justice Department was in court arguing against attempts by organizations like Judicial Watch to obtain information about the bin Laden raid under the Freedom of Information Act. Even liberal columnist and Obama supporter Maureen Dowd admitted that this leaking to the filmmakers was done so it would “give a home-stretch boost” to the president’s tough reelection campaign.85

  In other words, “at exactly the same time that it was telling a court that the mission is too secret to permit such disclosure, the White House launched a coordinated campaign of selective media leaking that had only one purpose: to glorify the president.”86 In essence, the “Obama administration strategically leaked details of the bin Laden raid for political advantage,” says one criminal defense lawyer who represents military clients.87 He adds that “using strategic leaks for political gain, while complaining that a witness to events wrote about what he personally saw and did, really is the height of hypocrisy.” Those officially sanctioned leaks led directly to the imprisonment of the Pakistani doctor who helped locate bin Laden for U.S. forces.

  Then–Secretary of Defense Robert Gates was so concerned about these leaks coming out of the White House that he went to meet with Tom Donilon, Obama’s national security adviser. According to David Sanger of the New York Times, Gates told Donilon that he had “a new strategic communications approach to recommend.” When Donilon asked what it was, the defense secretary angrily responded: “Shut the fuck up.”88

  One final example of Holder’s selective investigation of leaks: on May 29, 2012, in the lead-up to the reelection of Barack Obama, the New York Times wrote a story disclosing the existence of the president’s secret “kill list.” This was a list of Al Qaeda and Taliban terrorist targets personally selected by the president to be killed or captured.89 The details given in the article, which include discussions President Obama had with advisers as well as descriptions of counterterrorism meetings in the White House Situation Room, make it very clear that the “leak” of this highly classified operation came from the Obama White House.

  But according to the House Judiciary Committee, it “is not aware of any Justice Department investigation into the leak of the targeted kill list.” Why would there be? This leak was obviously orchestrated by senior Obama aides in the White House for political theater as the president was campaigning, so he could show how tough he was in the war on terror. Holder allowed political considerations to intrude on his duty as the chief law enforcement officer of the United States to go after leaks of classified information.

  Through his hiring of biased, hostile lawyers and his treatment of terrorists as ordinary criminals; his orchestrated, ideological attack on the intelligence community; and his highly selective prosecutions of government leaks, Eric Holder has weakened the national security operations of the Justice Department as well as helped President Obama manipulate the president’s power as “an odious instrument for propaganda” according to Glenn Greenwald, a former columnist for The Guardian. Holder has helped the president ensure “that all embarrassing or incriminating information remains suppressed, and the only thing the public learns—and the eager, grateful press amplifies—are the informational crumbs doled out by the White House in order to glorify the leader. That’s the very definition of state propaganda.”90

  Joe Connor, whose father was killed in a criminal conspiracy by the FALN terrorists Holder helped pardon at the end of the Clinton administration, told one of the authors that he testified against Holder’s confirmation in 2009 because it was clear to him that even in matters of national security, “Holder puts political gain above the safety of the American people he is sworn to protect,” and that he “did not have the values, judgment or character to be our attorney general.” That has been shown, according to Connor, by Holder’s “insistence on trying al-Qaeda terrorists (who killed my father’s godson among the thousands on 9/11) including KSM in U.S. civilian courts, his nonexistent investigation of the Benghazi terror attacks, and his quite literal playing of Russian roulette by providing weapons to Mexican narco-terrorists that resulted in agent Brian Terry’s murder.” Conner says that “Holder’s malfeasance, though thoroughly reprehensible, is no surprise.” He asserts that Holder’s misconduct as attorney general has proven that what he, Connor, said back in 2009 was right.91 This is a damning indictment by someone whose family was twice victimized by terrorism.

  CHAPTER 9

  CORRUPTION ABROAD

  Prosecuting American Businesses but Not the Administration

  Nothing quite shows the unbridled hypocrisy of the Obama administration and prosecutorial abuse by the Holder Justice Department as does the attempted prosecutions of American companies under the Foreign Corrupt Practices Act (FCPA). The FCPA was passed by Congress in 1977 to prevent companies from bribing officials of foreign governments in “obtaining or retaining business.”1 But Congress designed the law to stop high-level bribery and corruption of foreign government officials; it was not meant to cover the low-level payments and gifts that are often routinely required in many Third World countries “to grease the wheels of bureaucracy.”2 Yet that is the type of corruption the Justice Department has pursued under dubious legal theories. When it has actually been forced to go to court by defendants unwilling to give in to the department’s intimidation tactics, the Justice Department has often lost. DOJ’s prosecutions have been dismissed due to prosecutorial abuse and other misdeeds by Eric Holder’s prosecutors.

  For the first two decades after it became law, the FCPA was a little-used statute. In 2000, there was just one prosecution under the law by the Justice Department. However, Lanny Breuer, Holder’s subordinate and the politically appointed assistant attorney general of the Criminal Division, proclaimed that the FCPA would “be a focus for the Criminal Division” and one of its “top priorities.” As Mike Koehler, a leading expert on the FCPA, has said, Breuer spoke about the FCPA with almost “religious fervor.”3 Breuer said that the United States was “in a unique position to spread the gospel of anti-corruption, because there is no country that enforces its anti-bribery laws more vigorously than we do.”4 By 2010, Breuer was bragging about the government reaching a record twenty-three settlements with companies that altogether netted $1.8 billion in fines.

  But at the very same time that the Holder Justice Department and Lanny Breuer were stepping up their enforcement of their version of the FCPA, the federal government itself was engaging in the very type of corruption that the law was intended to stop. As the New York Times reported in April 2013, “for more than a decade, wads of American dollars packed into suitcases, backpacks and, on occasion, plastic shopping bags have been dropped off every month or so at the offices of Afghanistan’s president—courtesy of the Central Intelligence Agency.”5 The tens of millions of dollars that flowed into Afghanistan was called “ghost money” by Khalil Roman, President Hamid Karzai’s deputy ch
ief of staff from 2002 to 2005, because “it came in secret, and it left in secret.” While the intent of the payments was to buy influence with Karzai, lawmakers, warlords, and bureaucrats, American officials quoted anonymously in the New York Times said that the cash has fueled corruption and that the United States was “the biggest source of corruption in Afghanistan.”

  Neither Breuer nor Holder has ever commented publicly on the fundamental unfairness of the Justice Department’s push to “spread the gospel of anti-corruption” by punishing those in the private sector whose actions don’t even come close to the outright bribery engaged in by the U.S. government. Apparently, the rules that apply to ordinary American citizens don’t apply to government bureaucrats or the White House. Breuer and Holder are not spreading “the gospel of anti-corruption” to their boss, Barack Obama, or other parts of the federal government like the Central Intelligence Agency. These prosecutions have been particularly ironic when one compares the tens of millions of dollars in cash bribes paid by the administration to the “defining feature” of enforcement against private industry under Breuer—allegations over relatively minor “items as bottles of wine, watches, cameras, kitchen appliances, business suits, television sets, laptops, tea sets, and office furniture.”6

  What is almost as bad is that the Justice Department has threatened and intimidated many companies into settling claims under the FCPA. In fact, the Criminal Division’s “success” in recent years has relied almost entirely on settlement agreements with corporations, exchanging an agreement “not to prosecute” for payment of a fine. These “Non-Prosecution Agreements” were reached by “risk-averse corporate actors” under “dubious legal theories that have never been subjected to judicial scrutiny.”7 Breuer defended the settlements by saying that without its new policy of avoiding criminal prosecutions with settlements, the government “faced a stark choice when it encountered a corporation that had engaged in misconduct—either indict or walk away.”8