JUNE 05, 2015
Secretary of State John Kerry, as has been the pattern generally for the Obama administration, is in cover-up mode for Hillary Clinton. The cover-up is illegal.
That is why on May 28, we filed a new federal lawsuit against Kerry that is designed to force him to do his job, as his oath of office requires.
Here is what we asked the Court to do: “(1) declare the Clinton emails to be records subject to the FRA; (2) declare Defendant Kerry’s failure to take any action to recover the Clinton emails as arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the FRA; (3) order Defendant Kerry to take action to recover the Clinton emails.”
On March 2, 2015, the New York Times reported then-Secretary Clinton used at least one non-“state.gov” email account to conduct official government business during her entire tenure as the secretary of state. It also was reported that Secretary Clinton stored these records on a non-U.S. government server at her home in Chappaqua, New York.
There are about 18 lawsuits, 10 of which are active in federal court, and about 160 Judicial Watch FOIA requests that could be affected by Mrs. Clinton and her staff’s use of secret email accounts to conduct official government business. In our various FOIA lawsuits, our lawyers have informed attorneys for the Obama administration that Hillary Clinton’s account and any other secret accounts used by State employees should be secured, recovered and searched.
In response to the scandal, we filed eight new FOIA lawsuits to get the truth about the Clinton email scandal. We’re even suing about her iPad and iPhone! All these lawsuits and the Clinton document shell-game mean we’ve been stonewalled, contrary to law.
You’ve probably never heard of the Federal Records Act. But it is an important transparency and accountability law that, as our lawsuit notes:
[I]mposes a direct responsibility on an agency head to take steps to recover any records unlawfully removed. Specifically, if an agency head learns of “any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency,” he or she must notify the Archivist. If the agency head “knows or has reason to believe [that records] have been unlawfully removed from [his or her] agency,” then the agency head “with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records [.]”
And we leave no doubt that Kerry has been derelict in his duty:
Defendant Kerry’s failure to notify the Archivist concerning the unlawful removal of the Clinton emails and failure to initiate action through the attorney general to recover the Clinton emails was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the FRA.
While John Kerry may have replaced Hillary Clinton at the State Department, he has proven that when it comes to complying with federal records and disclosure laws, he and Clinton are cut from the same corrupted cloth. Secretary Kerry can provide the transparency and accountability his predecessor so willfully avoided. This administration will do whatever it can, including ignoring and violating federal law, to protect her 2016 presidential prospects. The whole State Department records process has been turned on its head to help one political candidate.
Kerry’s dereliction of duty and abuse of power has led to the continued withholding of official government records from the American people. Your JW is working to break the logjam wide open with this historic action. If Kerry won’t do the right thing on his own, maybe a federal court can help him along and get us and the American people some accountability and key records on a person who seeks the highest office in the land.
Judicial Watch continues to lead on the Benghazi scandal. The Select Committee on Benghazi in the House of Representatives doesn’t seem to be doing much. Knowing how Congress works, Judicial Watch is not resting on our laurels – and we remain the go-to source for the truth about Benghazi.
U.S. Ambassador J. Christopher Stevens and U.S. Foreign Service Information Management Officer Sean Smith were both killed in the Benghazi terrorist attack on September 11, 2012. Several hours after the initial assault, a second terrorist attack took place targeting a different compound located just one mile away. Two CIA contractors, Tyrone Woods and Glen Doherty, were killed in this second attack and 10 others were injured.
We now have new State Department documents showing the Benghazi attack was called a “terrorism event” almost immediately after the attack took place. Another document suggests that Hillary Clinton tasked an official to contact the FBI, evidently not knowing that the FBI was already on the Benghazi matter under longstanding State Department counterterrorism response protocols. The new documents were forced from the U.S. State Department under court order in response to a JW FOIA lawsuit.
Our team filed a FOIA request on June 12, 2014, and subsequently a lawsuit on October 16, 2014, seeking:
Any and all activity logs, reports, or other records produced by the Diplomatic Security Command Center between September 10, 2012 and September 13, 2012 regarding, concerning, or related to the attack at the U.S. Special Mission Compound and Classified Annex in Benghazi, Libya.
In response, the State Department is slow-rolling the release of records. The Obama cover-up artists at State are not too keen to comply with the law in a timely manner, which is not surprising, because it seems with each release, the Benghazi scandal worsens. The latest batch shows that less than eight hours after the attacks, around 6 a.m. on September 12, 2012, the State Department Diplomatic Security “Command Center Team Site” sent out a “Benghazi Event Notification” to “ALCON:”
The DS Command Center is sharing the following terrorism event information for your situational awareness…
As of 0500 EST the US Mission in Benghazi has been evacuated due to ongoing attacks that resulted in the deaths of 4 Chief of Mission personnel including the U.S. Ambassador to Libya and 3 additional COM wounded. At this time everyone has been evacuated to Tripoli and is receiving medical aid and awaiting further movement.
This is an initial terrorist incident report from the DS Command Center…[emphasis original]
Among the recipients of this email was the regional security officer for the U.S. Mission to the United Nations, who received the email just before a briefing he had with then-Ambassador to the United Nations Susan Rice. At 6:24 a.m., September 12, 2012, the RSO official was given the “terrorism incident report” and responded:
It is a tragic day for us.
I expect to speak with Ambassador Susan Rice and the rest of the senior staff about this here at USUN New York in a couple of hours. I would appreciate any details we can know and share in a couple of hours, either here or on my SIPR [Secure Internet Protocol Router] account.
It so happens that the UNSC [United Nations Security Council] will discuss Libya this morning. While the meeting had been previously scheduled, the situation will certainly change the tone and timbre of those deliberations – not to mention the substance.
I will call in around 0800 for the latest as well.
Despite knowing it was an attack, the State Department, including its Security Command Center, continued to falsely tie “demonstrations” to the Benghazi terrorist assault. A prior State Department document production in this lawsuit contains a press release issued by the Diplomatic Security Command Center, on September 12, 2012, that falsely states that “violent demonstrations took place at the U.S. Embassy in Cairo, Egypt, and at the U.S. Special Mission Compound in Benghazi, Libya, resulting in damages in both locations and casualties in Benghazi.”
On the evening of the attack, a member of the State Department’s Counterterrorism (CT) Bureau complained about a request to the FBI on behalf of Hillary Clinton:
FBI just called me indicating DOS ops center [Redacted](sp?) had called FBI ops center to request FBI assistance, ala evidence response team, investigators, etc. on behalf of Secretary Clinton..
To remind, the State (CT) led Foreign Emergency Support Team (FEST) would include these folks…We should avoid multiple requests for assistance and rely on the comprehensive FEST approach, which had been used for repeated real-world events (including hostage takings) over the past 20 years.
Another State Department document lists 18 Embassy and other State Department sites in the Middle East, Africa, and UK, all but one of which are listed as being targeted by “protests.” Benghazi is the only city that has no listing of “protests,” and lists instead the situation as “Attack on US Consulate.” The document is undated but seems to have been created a few days after the Benghazi attack.
An email on September 11, 2012, from Rebecca Thompson, director of the Bureau of Public Affairs’ Rapid Response Unit, passes along an “intriguing” Internet post suggesting the Germans might have been warned days before the attack “about personalities who were officials in the Qaddafi regime and now work with Al-Qaida affiliated organizations to execute terrorist operations and explosions in Libya and outside of it…”
The following day, Thompson reported to the Command Center:
Nahla Qader, one of our media analysts, found this tweet: Mohammed Fadel Fahmy@Repent11 in Egypt says “Threat to kill all Americans in Gaza, after Libya/Egypt due to film insulting prophet Mohamed forces UN staff to bunker in and placed on curfew!”
Nahla also reports that some Twitter users in Libya and Egypt are spreading reports that attacks in Libya may not be related to the infamous film but to the killing of Al-Qaeda’s second-in-command, who is Libyan.
This information echoes the Defense Intelligence Agency report uncovered by our intrepid legal and investigative team last week that immediately tied the Benghazi terrorist attack to retaliation for the death of Libyan Abu Yahya al-Libi. The Associated Press reported that Al Qaeda leader Ayman al-Zawahri, on September 10, 2011,
[U]rged Libyans — al-Libi was born in the north African country — to attack Americans to avenge the late militant’s death, saying his “blood is calling, urging and inciting you to fight and kill the Crusaders.”
Further undermining the false claim that the Benghazi attack arose from a spontaneous protest, a September 12 email with the subject line “Benghazi Killings of USGOV personnel” from an unidentified sender notes the Benghazi “attack was a complex attack including [Redacted].”
So more proof that, within minutes of the attack, the administration, specifically Hillary Clinton, began lying to the American people by blaming an obscure Internet video. No wonder Hillary Clinton is the great destroyer of State Department emails. One can assume that Mrs. Clinton would not have stolen and destroyed emails in violation of law and various court orders if she didn’t have something to hide. And it shouldn’t take a federal court order to find out that Hillary Clinton evidently had no clue how the State Department and the FBI responded to terrorist attacks on State Department personnel.
There is no denying that the Obama administration – including Hillary Clinton and Susan Rice – knew immediately that the Benghazi assault was a terrorist attack. The State Department’s new smoking gun documents put to rest any question about what Hillary Clinton and Susan Rice knew – and when they knew it. Hillary Clinton is evading justice by trying to run for president. Susan Rice is President Obama’s national security adviser, an obvious reward for her willingness to lie to help him win reelection. Washington won’t tell you the truth about this Benghazi conspiracy gang. Judicial Watch not only tells you the truth, but we go to federal court for the truth. It is the least we can do for those four Americans killed in Benghazi.
“The Obama administration’s casual law-breaking when it comes to FOIA is a national disgrace and shows contempt for the American people’s right to know what their government is doing.”
Wouldn’t you love to tell top members of Congress that truth! Well, your Judicial Watch just did that for you. On Tuesday, June 2, I joined a distinguished group of leading journalists and activists in the Rayburn House Office Building to testify before the House Committee on Oversight and Government Reform on the D.C. transparency crisis that has reached an apex under the secretive Barack Obama. It was an honor to testify on behalf of Judicial Watch and its hundreds of thousands of active supporters. Congress must be told the truth, not only about Obama administration’s illegal secrecy, but also about Congress’ failures and hypocrisy when it comes to transparency.
I was impressed that the concerns about the lack of transparency seemed, with a few petty and silly exceptions, bipartisan. Frankly, I couldn’t tell most of the Democrats and Republicans apart during the hearing – in a good way! When confronted with an example of improper secrecy by a Republican administration, Committee Chairman Jason Chaffetz, R-Utah, was moved to exclaim, “I don’t care who’s in the White House, it’s wrong, it’s wrong, it’s wrong!”
The hearing, entitled “Ensuring Transparency Through the Freedom of Information Act,” explored the barriers erected to block access public documents under FOIA, including delays, administration backlogs and excessive redactions. Here are linksto the FOIA hearings, which made headlines (especially after an IRS FOIA official testified the whole FOIA process at that key agency had been subverted by the Obama IRS leadership). I encourage you to review the hearing videos and transcripts. In the meantime, I provide for you below my full statement to the committee:
Good morning, I am Tom Fitton, president of Judicial Watch. Judicial Watch is a conservative, non-partisan educational foundation dedicated to promoting transparency, accountability and integrity in government, politics and the law. We are the nation’s largest and most effective government watchdog group.
Judicial Watch is, without a doubt, the most active Freedom of Information Act (FOIA) requestor and litigator operating today. Thank you, Chairman Chaffetz and Congressman Cummings for allowing me to testify on this important topic. Judicial Watch used the open records laws to root out corruption in the Clinton administration and to take on the Bush administration’s penchant for improper secrecy. Founded in 1994, Judicial Watch has over 21years’ experience using FOIA to advance the public interest.
Our government is bigger than ever, and also the most secretive in recent memory. President Obama promised the most transparent administration in history, but federal agencies are often black holes in terms of disclosure. I’ve previously testified about this president’s remarkable assertions of secrecy over White House visitor logs, Fannie Mae and Freddie Mac documents, and even the photos of the dead Osama bin Laden. (The administration asserted secrecy over the photos so as to not upset al Qaeda!)
We have filed nearly 3,000 FOIA requests with the Obama administration, and our staff attorneys have been forced to file nearly 225 FOIA lawsuits in federal court against this administration. Most of these lawsuits are filed just to get a “yes or no” answer from the administration. Administratively, agencies have built additional hurdles and stonewalled even the most basic FOIA requests. The Obama administration’s casual law-breaking when it comes to FOIA is a national disgrace and shows contempt for the American people’s right to know what their government is doing.
Both the left and right agree that, on major transparency issues, the Obama administration has come down on the side of secrecy.
The Founding Fathers took transparency seriously.
James Madison wrote, “A popular government without popular information, or the means of acquiring it, is but a prologue to a Farce or a Tragedy, or perhaps both.” Unfortunately, DC is both a tragedy and a farce today – but as Thomas Jefferson said, “If we are to guard against ignorance and remain free, it is the responsibility of every American to be informed.”
Transparency is about self-government. If we don’t know what the government is doing, how is that self-government? Frankly, how is that even a republic?
Congressional oversight is sorely lacking – lacking on all fronts. Congress is like a fire department that shows up after your house burns down and shouts “fire.” Even President Obama, flailing for an excuse over his IRS’ massive oppression of his political opponents, suggested that the government was too big and he had no way of effectively monitoring his own agencies.
And, too often, the fourth estate acts as PR rep for big government and fails to do the hard work of keeping watch on government waste, fraud and abuse. And even under FOIA law, the courts have deferred to the whims of the executive branch and have applied FOIA in a way that makes it more difficult for the American people to find out how their tax dollars are being used or misused.
Now, this has all led to the transparency crisis here in D.C.
Never in our history has so much money been spent with so little accountability. Frankly, all of Congress should focus on “government reform and oversight,” instead of assigning it to one or two committees.
Americans are rightly worried they are losing their country. We have the forms of democracy – elections, campaigns, votes, political fundraising, etc. – but when Congress authorizes $1.5 trillion in spending after just three days of debate, and when the executive branch won’t tell you much unless you’re willing to make a federal court case out of an issue, that isn’t democracy, and it isn’t self-government.
But there is a way forward out of the DC transparency and corruption crisis. Judicial Watch shows that one citizen group, using the Freedom of Information Act and independent oversight, can help the American people bring their government back down to earth and under control.
Judicial Watch has succeeded in uncovering documents that had been denied to Congress.
On Benghazi, it has been a little over a year since Judicial Watch uncovered a newly declassified email showing then-White House Deputy Strategic Communications Adviser Ben Rhodes and other Obama administration public relations officials, not “intelligence officials,” putting out the lie that the Benghazi attack was “rooted in an Internet video, and not a failure of policy.” These documents had been withheld from Congress and a half-dozen or so congressional committees had been made to look foolish. As a direct result of this disclosure, Speaker Boehner reversed his opposition to a Select Committee on Benghazi.
The Select Committee, now run by Rep. Trey Gowdy (R-SC), doesn’t seem to be succeeding, to put it charitably, in getting answers or accountability. And Judicial Watch continues to be the go-to source on Benghazi facts as we continue to uncover revelation after revelation about the Benghazi terrorist attack. These revelations have not come easily and have only occurred through multiple federal lawsuits and court orders requiring the administration to comply with FOIA. Our document disclosures have led to questions about criminal violations of obstruction and perjury laws by top officials of this administration.
With respect to the IRS scandal, Judicial Watch litigation forced the agency to admit that Lois Lerner emails were supposedly lost. And it was Judicial Watch FOIA litigation that forced the IRS to admit that her emails were not actually necessarily lost. Only Judicial Watch uncovered the troubling revelation that the Obama IRS and Justice Department were collaborating on prosecuting the same groups that the IRS had lawlessly suppressed. Again, Congress has seemed to have lost interest in the IRS scandal, but JW continues to do the job of oversight and remains the key vehicle for revelations about the continuing abuse of the IRS.
And then we have perhaps one of the most egregious violations of federal transparency law since FOIA was passed nearly 50 years ago.
On March 2, 2015, The New York Times reported then-Secretary Clinton used at least one non-“state.gov” email account to conduct official government business during her entire tenure as the secretary of state.
There are at least 18 lawsuits, 10 of which are active in federal court, and about 160 Judicial Watch Freedom of Information Act (FOIA) requests that could be affected by Mrs. Clinton and her staff’s use of secret email accounts to conduct official government business. I can tell you that we dismissed several lawsuits based on lies by the State Department that it searched all of Hillary Clinton’s emails and couldn’t find anything relevant to our requests. In Judicial Watch’s various FOIA lawsuits, our lawyers have informed attorneys for the Obama administration that Hillary Clinton’s and any other secret accounts used by State employees should be secured, recovered and searched. Judicial Watch’s litigation against the State Department has already exposed key documents about both the Benghazi (as discussed above) and Clinton cash scandals.
Indeed, as with Lois Lerner’s emails, our litigation forced the State Department to publicly disclose Hillary Clinton’s secret email accounts. In a recent federal court filing we point out:
On November 12, 2014, the State Department released its production of responsive, non-exempt, records that Judicial Watch understood to be complete. In its letter, the Department stated that it located four (4) documents as a result of its search of the Office of the Secretary…On December 5, 2014, the State Department produced its draft Vaughn index pursuant to the Court’s September 15, 2014, Order…In both instances, the State Department omitted that its search did not include Secretary Clinton’s emails in the Office of the Secretary. More egregiously, the State Department omitted that Secretary Clinton had apparently just turned over 55,000 pages of her agency emails that had not been searched or included in the Department’s draft Vaughn index …These omissions are material and were apparently made in the process of settlement discussions to induce dismissal.
A supplemental search and document production is due April 2, 2015, solely because Judicial Watch requested search affidavits, surprised that that the State Department located only four responsive records – none of which are Secretary Clinton’s emails and all of which were previously produced in another litigation … Judicial Watch has no reason to believe that the State Department would have ever disclosed that its search was compromised had Judicial Watch not asked for search affidavits when it reviewed the draftVaughn index and limited production.
A statement by the State Department in a February 2, 2015, status report was the first notice to the public and the court that other records had not been searched: “[The State Department] has discovered that additional searches for documents potentially responsive to the FOIA must be conducted.”
The State Department’s early response to the scandal has not been encouraging. While new records will be searched in response to future FOIA requests, there are no plans to go back and review the accuracy of what has already been produced in response to FOIA, MarieHarf, a State Department spokeswoman has said.
The State Department is obligated to secure the accounts as soon as possible to protect classified materials, retrieve any lost data, protect other federal records, and search records as required by court orders in our various FOIA lawsuits, and in response to congressional subpoenas, etc.
Rather than allowing Hillary Clinton’s campaign advisers to review email and release material to the government, the agency should assert its ownership, secure the material and prohibit private parties from illicitly reviewing potentially classified and other sensitive material.
This is the basis for a new federal lawsuit, filed last week, against Secretary of State John Kerry. Kerry’s predecessor at the State Department, former-Secretary Clinton, conducted official government business using a secret, unsecured email server and email accounts. Her top aides and advisors also used non-“state.gov” email accounts to conduct official business.
In 2014, Clinton “unilaterally determined which of her emails were official government records and, in December 2014, returned at least a portion of these public records – as many as 55,000 pages of records – to the State Department.”
In the lawsuit, Judicial Watch argues the following:
The Clinton emails are agency records subject to the [Federal Records Act (FRA)] and the State Department’s failure to retain, manage, and search these agency records has compromised the Department’s retention of records that concern or relate to Secretary Clinton and other high level State Department officials who used non-“state.gov” email addresses.
The Federal Records Act stipulates:
Agencies may only dispose of records on terms approved by the Archivist of the United States, who is head of the National Archives and Records Administration (“NARA”). … This process is the exclusive procedure by which all federal records may be disposed of or destroyed. …
The FRA imposes a direct responsibility on an agency head to take steps to recover any records unlawfully removed.
On April 30, 2015, Judicial Watch sent a letter to Kerry “notifying him of the unlawful removal of the Clinton emails and requesting that he initiate enforcement action pursuant to the FRA,” including working through the attorney general to recover the emails.
Patrick Kennedy, under secretary of State for management, responded on Secretary Kerry’s behalf on May 14. The letter ignored Judicial Watch’s demands that the secretary comply with the FRA.
Kerry’s actions represent “an abuse of discretion” that has led to the continued withholding of official government records from the American people.
To be clear, Mrs. Clinton’s actions, and maybe the actions of other administration officials, require a serious and independent criminal investigation.
The courts are taking notice. Last month, a federal court judge did something we had never seen before – U.S. District Court Judge Reggie B. Walton reopened a Judicial Watch Freedom of Information Act (FOIA) lawsuit because of the “new” evidence of Hillary Clinton’s hidden emails.
In the meantime, Judicial Watch filed eight lawsuits (including six on one day) against the Obama administration to get answers on the Hillary Clinton email scandal.
Many, including members of both parties in Congress, ask how is it that Judicial Watch gets documents that Congress can’t get even under subpoena.
The easy answer is that FOIA is a straightforward tool that quickly gives JW, other media, and citizens’ access to the federal courts in order to ensure compliance with lawful records requests.
Congressional investigations, even with subpoenas, are political by nature and require, under the current practice, effective enforcement in court with the cooperation of a politicized Justice Department.
The Fast and Furious scandal is a perfect example. Eric Holder was charged with contempt of Congress, and President Obama made a remarkable assertion of executive privilege to protect his attorney general and thwart Congress. Rather than enforce the contempt charge, the Justice Department ignored it. Only after Judicial Watch secured key court victories separately against the Justice Department did Congress, after two years of getting nowhere, get many of the documents it had been seeking.
Of course, if the administration were transparent – all of this wouldn’t matter. Truth fears no inquiry. Crafty, corrupt politicians realize that transparency and accountability go hand-in-hand. If the Obama administration truly had nothing to hide, it would not go to such extraordinary lengths to keep information from the public.
A commitment to transparency must cut across partisan lines.
We are pleased to see renewed congressional interest in reforming FOIA. We only ask that such reforms be significant and provide more access to information to the American people. And speaking of FOIA reform, Congress should apply the freedom of information concept to itself and the courts, the two branches of the federal government exempt from the transparency laws that presidents must follow.
Founding Father John Adams was keenly aware of the relationship between secrecy and corruption – and the preservation of liberty:
Liberty cannot be preserved without a general knowledge among the people, who have a right, from the frame of their nature, to knowledge, as their great Creator, who does nothing in vain, has given them understandings, and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge; I mean, of the characters and conduct of their rulers.