DECEMBER 21, 2012
JW Disclosures of Zero Dark Thirty Leaks Spur Criminal Referral
In September 2012 the Pentagon Inspector General investigating charges the Obama administration leaked classified details to the filmmakers behind Zero Dark Thirty, a movie about the capture and killing of Osama bin Laden, made a startling criminal referral to the Holder Department of Justice (DOJ). This referral, coming just two months before the presidential election, implicated Undersecretary of Defense Michael Vickers in the improper release of classified information.
Specifically, Vickers is alleged to have improperly provided the name of at least one operative to the filmmakers. And what did Eric Holder do with this referral? As best as I can tell – absolutely nothing.
As you well know, Judicial Watch has been aggressively investigating the Zero Dark Thirty leaks, filing a Freedom of Information Act (FOIA) lawsuit against the Department of Defense (DOD) and the Central Intelligence Agency (CIA). The documents we have uncovered helped spur the Inspector General investigation and criminal referral. Again, it wasn’t the media that obtained the smoking gun documents and it wasn’t Congress – it was Judicial Watch – your independent watchdog in Washington.
But we’re not finished. And over the last week or so, as news reports emerged detailing the criminal referral against Vickers, JW filed a brief with the United States District Court for the District of Columbia. JW asked the court to force the Obama administration to release to the public the names of the five CIA bin Laden raid operatives disclosed to Kathryn Bigelow and Mark Boal, the director and writer of the film respectively.
The administration has not legally justified its withholdings. We want the information that the filmmakers were given and, given the intense public interest in the film, what virtually every other news organization wants. The Obama gang could, if they wanted, say the filmmakers shouldn’t have been given the names and the information is classified. But they haven’t done so and have danced around the issue (the administration has told the court that the names were not “classified in isolation”). They could easily end the dispute by asserting the names are now classified. But to do so would be admission of wrongdoing with the original leaks. I’ve seen a lot of FOIA litigation: the gamesmanship in this one is notable.
And don’t get me started on how the DOJ could be considering a criminal investigation on one hand while playing defense on the same issue in our case.
After all, if it is appropriate to release this information to Hollywood filmmakers, shouldn’t the American people be granted access to the same information? The Obama administration says not a chance. Consistent with its track record, the Obama administration releases details when it suits their interests and keeps them secret when it does not.
For example, documents previously uncovered by Judicial Watch reveal that the Obama administration sought to have “high visibility” into bin Laden-related projects, and granted Boal and Bigelow unusual access to agency information in preparation for their film. They wanted to assist projects that made the president appear “gutsy” in the pursuit of bin Laden.
The Obama administration officials also disclosed in sworn court documents related to this lawsuit that the sensitive information released to Bigelow and Boal could cause an “unnecessary security and counterintelligence risk” if released to the public. The admissions seem to contradict the public statement by Obama White House spokesman Jay Carney regarding the controversy: “We do not discuss classified information,” Carney told reporters.
In its reply brief filed on December 17, 2012, Judicial Watch reiterated that the Obama administration cannot have it both ways:
In its responsive brief, the government says it wanted to facilitate an accurate movie portrayal of the people involved in the hunt for bin Laden, but it still wishes to keep secret the identities of those individuals who will be accurately portrayed. These desires appear to be mutually exclusive. Just as Plaintiff predicted in its opening brief, within the past week the privacy of at least one of these government employees has been eroded by media outlets seeking to satisfy the overwhelming public interest in the making of this critically acclaimed and controversial film. This should have been foreseeable a year ago when the government agreed to allow filmmakers Kathryn Bigelow and Mark Boal to interview the men and women behind the search for bin Laden for a quasi-journalistic movie based on their efforts.
Judicial Watch’s brief also took issue with the Obama administration’s attempts to dissuade the judge from considering the film itself, as well as the ongoing Inspector General investigation into the matter, as it determines whether to order the release of the information:
Despite the government’s plea that the Court not consider Plaintiff’s evidence of Congressional or Inspector General investigations, or take notice of the movie itself in considering the remaining privacy interests, this Court can and should consider “all of the circumstances” surrounding the disclosures in deciding whether the public interest favors the release of personal information….If the public knows which names were shared with the filmmakers (and by deduction, which were not), it will shed light on how and whether the government was trying to influence the narrative of an “accurate” theatrical portrayal.
With respect to Undersecretary for Defense Michael Vickers and his role in aiding Zero Dark Thirty, McClatchy, which broke the news about the criminal referral, notes that the Holder DOJ refuses to act and refuses to explain why it is dragging its feet:
Pentagon investigators concluded that a senior Defense Department official who’s been mentioned as a possible candidate to be the next CIA director leaked restricted information to the makers of an acclaimed film about the hunt for Osama bin Laden, and referred the case to the Justice Department, according to knowledgeable U.S. officials.
The Justice Department received the case involving Undersecretary of Defense for Intelligence Michael Vickers in September, but so far it’s declined to launch a criminal prosecution, said two senior U.S. officials who requested anonymity because of the sensitivity of the matter.
So, in sum, the documents we uncovered implicate the White House, the CIA, and the Pentagon in the bin Laden movie leaks. And the fact that the Holder DOJ sat on a criminal referral until after the election is utterly disgraceful. This story is about to get even worse for this administration. Rest assured that we will continue to fight the Obama administration’s stonewalling on this scandal in federal court.
Now, in separate litigation related to the bin Laden raid, Judicial Watch again asked the United States Court of Appeals for the District of Columbia to overturn a U.S. District Court ruling and instruct the DOD and CIA to release 52 images from the raid on Osama bin Laden’s compound and the terrorist mastermind’s burial at sea. Again, the Obama crowd is happy to release information to the bin Laden filmmakers but won’t give basic information about bin Laden’s killing to the American people!
The appeals court is expected to hear oral argument on this effort to release the bin Laden photos and video on January 10, 2013, the day before the national release of the Zero Dark Thirty film.
JW Responds to First Lady Michelle Obama’s Accusations of Voter Suppression in 2012
Of all the problems with the last election cycle, so-called “voter suppression” wasn’t one of them. But don’t tell that to First Lady Michelle Obama. On the Tom Joyner Radio Show last week, Mrs. Obama actually made the outrageous statement that, “Voter suppression was in full force in so many states all over this country.”
I couldn’t let that one go unanswered. So here’s a statement I offered to the press in response:
Mrs. Obama’s accusations about minority vote suppression are racially divisive and show a dangerous disregard for the truth. We are aware of no evidence of actual voter suppression. If Mrs. Obama has some, it should be disclosed.
The fact is that early exit polls reflected a pro-Obama turnout by minorities that in some key states actually exceeded numbers seen during his historic election in 2008. As MSNBC reported, ‘Non-white voters delivered a wake-up call to Republicans Tuesday night. Turning out in droves for Obama, Latino voters alone split 71% for Obama compared to Mitt Romney’s 27%. High voter turnout by minorities reflected a huge demographic shift that Republicans ignored at their own peril.’
Voter ID requirements are widely supported and are no impediment to voting.
The first lady’s reckless remarks are part of the Obama administration’s continued assault on voter ID and election integrity. This is despite that fact that an election night survey of voters by Judicial Watch, in partnership with Breitbart.com, showed a large majority of respondents (65%) “strongly support” voters being required to show an official government ID when voting. Support cut across racial lines, with 52% of Blacks and 64% of Hispanics strongly believing that IDs should be required.
On the last point, Judicial Watch defended voter ID laws in Pennsylvania and South Carolina last year. And now these laws will take effect beginning after the New Year. We are also in the middle of a battle over a voter ID law that is now before the U.S. Supreme Court.
On December 14, we filed an amicus curiae brief with the High Court regarding the decision by the U.S. Court of Appeals for the Ninth Circuit to declare that Arizona’s Proposition 200, requiring proof of citizenship in order to register to vote, violated the NVRA.
We filed the brief on behalf of former Arizona State Senator Russell Pearce, the driving force behind Prop 200, also known as the Arizona Taxpayer and Citizen Projection Act. (You may recall, JW previously represented former State Sen. Pearce in support of another piece of legislation he authored, SB 1070, Arizona’s tough illegal immigration enforcement law. The Supreme Court upheld key provisions of that law on June 25, 2012.)
Prop 200, which passed in 2004 with 56% of the vote, provides that state election officials “shall reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship.” Such evidence can include a driver’s license, a photocopy of a birth certificate or passport, naturalization documents, or “other documents that are meant as proof that [may be] established pursuant to” federal immigration laws.
On April 17, 2012, the Ninth Circuit ruled that voter registration provisions of Arizona’s Prop 200 violated certain provisions of the National Voter Registration Act of 1993. On October 15, 2012, the Supreme Court agreed to hear Arizona v. Inter Tribal Council, a challenge to Prop 200.
With its amicus curiae brief Judicial Watch maintains that the Ninth Circuit erred when ruling that the federal law prohibited states from requiring additional documentation to protect election integrity:
The NVRA . . . does not provide that it is the exclusive authority on eligibility verification or that, as the Ninth Circuit contended, “Arizona’s only role was to make [the Federal] [F]orm available to applicants and to ‘accept and use’ it for the registration of voters.” [Emphasis added] The language of the statute not only does not prohibit additional documentation requirements, it permits states to “require . . . such identifying information . . . as is necessary to enable the appropriate State election official to assess the eligibility of the applicant . . .”
Besides express authorization for a state to “develop and use” a form compliant with the statute’s criteria, the NVRA also provides that “each State shall establish procedures to register to vote in elections for Federal office . . .”
Judicial Watch further argues that, “The Ninth Circuit also failed to give any weight to the stated goal of the NVRA to ‘protect the integrity of the electoral process’ and ‘enhance the participation of eligible citizens as voters in elections for Federal office’ as guiding purposes of the statute. [Emphasis added]… Under no sensible reading of the statute is the goal of election integrity advanced by allowing non-citizens to vote.”
Folks, this is a major case that will have ripple effects across the country.
To emphasize this point, in an October 21, 2012, story on the importance of the pending Supreme Court ruling, UPI said that “an eventual Supreme Court decision will help shape the voting landscape of the future … Seventeen states have enacted laws requiring the presentation of a government-issued photo identification, such as a driver’s license. The Brennan Center for Justice said those 17 states account for 218 of the 270 electoral votes needed to win the presidency. If the laws are implemented, the center said, millions of voters would be affected.”
There is no coherent reason for refusing to allow states to check voter identification other than a desire to circumvent the law and let non-citizens determine the results of American elections. The people of Arizona, and every other state, have the right to protect the sanctity of the ballot box. And you should note the Holder DOJ intervened against Arizona at the last minute in this litigation. It is becoming increasingly clear that the Obama administration is perfectly happy to allow ineligible aliens – both legal and illegal – to vote in our elections.
Our client Russell Pearce, the author of Prop 200 also issued a strong statement:
The Ninth Circuit Court ruling ignores the rule of law, common sense and states’ rights. This court is apparently okay with illegal votes or non-citizens voting. This ruling absolutely flies in the face of common sense and ignores the will of the people of Arizona, who overwhelmingly passed Proposition 200 in 2004. The Justice Department had given Arizona’s Proposition 200 a thumbs-up and found no conflict with the Voting Rights Act of 1965. I am pleased this case is finally going to the Supreme Court where we expect to win as we did with the Legal Arizona Workers Act in 2011 and SB1070 in 2012.
As part of its 2012 Election Integrity Project, Judicial Watch conducted an investigation demonstrating that voter rolls in the following states contained the names of individuals ineligible to vote: Mississippi, Iowa, Indiana, Missouri, Texas, Ohio, Pennsylvania, West Virginia, Florida, Alabama, and California. Judicial Watch put these states on notice that they must clean up their voter registration lists or face Judicial Watch lawsuits. Judicial Watch and True the Vote subsequently filed lawsuits against election officials in Indiana and Ohio, and prompted the state of Florida to remove dead and other ineligible voters from its registration lists.
I noted this last week, but it bears repeating. The non-partisan Pew Charitable Trust concluded in February 2012 that approximately 24 million active voter registrations throughout the United States – or one out of every eight registrations – are either no longer valid or are significantly inaccurate.
And dirty lists equal fraudulent election results. As the New York Post noted last election season, “Current voter-registration systems are flawed, with huge numbers of dead or disqualified voters still on the rolls. And, since voter-ID enforcement is poor, in many places a person can simply claim to be one of those people and vote in their name with no one the wiser.”
And this is precisely the way the Obamas and their Attorney General Eric Holder would have it. The Obama DOJ forced states to register greater numbers of voters on public assistance in 2012 (Obama’s “Food Stamp Army”), while ignoring a stipulation in the National Voter Registration Act requiring states to clean up voter registration lists. The DOJ also opposed voter ID laws and other election integrity measures that Judicial Watch fought to uphold.
This election integrity work is now one of Judicial Watch’s most important priorities moving forward. I hope you will consider joining us in this effort by making a tax-deductible donation so we can continue our work to stop voter fraud.
Best Christmas Wishes
JW got a bit of an odd Christmas present today. I learned today that New York Times best-selling book, Corruption Chronicles: Obama’s Big Secrecy, Big Corruption and Big Government, had made the Daily Beast’s “The Great Obama-Loathing Canon” of books, a list of “high-priced hardcover bile!” A slam from Tina Brown’s leftist publication is a badge of honor and one more reason to put the book on your list of things to get (or even give as a last minute Christmas gift).
The Update, unless news developments warrant, will take a break next week. In the beginning of the New Year, you can expect to receive our list of Washington’s Ten Most Wanted Corrupt Politicians.
In the meantime, on behalf of all of us here at Judicial Watch, I wish you and yours all the peace and joy of Christmas and a wonderful New Year.