Tom Fitton's Judicial Watch Weekly Update

Tom Fitton's Judicial Watch Weekly Update | November 16, 2012

11/16/12 Weekly Update: Dangerous Leaks?

Another Obama Administration Scandal Explodes into the News

Is it any wonder given what has taken place over the last four years that the Obama administration is closing out 2012 mired in massive scandals?

First, there is Benghazi-gate, where four Americans, including a U.S. Ambassador, were murdered by terrorists at the U.S. Consulate in Libya. The Obama administration knew it was a terrorist attack, yet it seems to have lied to the American people repeatedly, falsely blaming the incident on an Internet video.

I have little doubt that the cover-up was meant to help protect the president’s re-election chances. Mission accomplished there. Today (thanks largely to a compliant press) we know precious little about why the Obama administration refused to provide security on 9/11 in Benghazi and elsewhere, why they told Navy SEALs to stand down and not assist, or who is responsible for the whole sordid mess, including the scheme to deceive the American people. Obama keeps denying while JW investigates.

And now this week, another new (and related) scandal has emerged, ensnaring the nation’s top spy, retired four-star General David Petraeus. General Petraeus was forced to resign this week after news leaked of his long-term extramarital affair with Paula Broadwell, a writer and military analyst who penned a Petraeus biography.

This scandal, which is mushrooming by the minute, also ensnared the top commander in Afghanistan, four-star General John Allen. General Allen reportedly exchanged inappropriate emails with Jill Kelley, the woman whose complaint to the FBI about harassing emails eventually led to the FBI’s uncovering of the Petraeus affair.

Now, I know it’s tempting to get caught up in the salacious nature of the details. But given the sensitive nature of Petraeus’ position, and the all-too-convenient timing of the revelation, coming both after the election and just days before Petraeus was scheduled to testify on Benghazi, this scandal is about much more than sexual shenanigans.

Investigators have already searched and removed files from Broadwell’s home. And the press has focused on a speech Broadwell gave at the University of Denver last month, during which she referenced a secret prison in Libya, raising concerns she had access to classified information. “I had access to everything, it was my experience not to leak it, not to violate my mentor, if you will,” Broadwell said.

Reports also indicate that the emails turned over to the FBI from Jill Kelley include information about the CIA director’s movements, information not available to the public for obvious reasons.

Nonetheless, President Obama said in a press conference on Wednesday that he has “no evidence” classified information was leaked to Broadwell. This is hardly reassuring considering the numerous leaks flowing from the federal government on his watch. (See our next story for just one example.)

In my experience, public officials caught in sex scandals usually have abused their public office in some way to advance their personal relationships.

Regarding the timing of the announcement of Petraeus’ forced resignation, evidently Attorney General Eric Holder was aware of the affair in late summer, but his Department of Justice only got around to telling Director of National Intelligence James Clapper on Election Day. Clapper then reportedly told the president.

What took so long? Is it believable that Eric Holder, the most unethical and politically driven attorney general in a generation, would withhold news of an investigation of the CIA director from the White House for four months, until the very night of the election?

Charles Krauthammer has a theory that he expressed on Fox News. Krauthammer believes the Obama administration may have led Petraeus to believe the scandal could be kept quiet and that he might even keep his job in exchange for toeing the administration line on Benghazi when he was called before Congress to testify in the matter on September 13, 2012.

It appears General Petraeus will get a second chance today to testify to Congress, albeit behind closed doors. While many feared that the Petraeus resignation would take his testimony off of the table, the former CIA director says he is willing to testify. As if to remind General Petraeus of the risks of truth telling, the CIA announced a new inquiry into Petraeus’ conduct.

As I say, this scandal seems to run much deeper than a relationship between Petraeus and Broadwell. The whole thing is a mess and it shows, at a minimum, that Obama and his appointees are incapable of running a government that is ethical and trustworthy. At this point, we shouldn’t trust any Obama agency to “investigate” anything. This crisis of confidence is roiling Washington and is bound to launch a thousand congressional hearings that will shed more heat than light.

But you can count on JW to independently investigate this scandal. I will keep you posted.

Dangerous Leaks?

I have a shocking development to report about our lawsuit to obtain information about the Obama administration’s collusion with the filmmakers behind Zero Dark Thirty, a film about the capture and killing of Osama bin Laden. Obama administration officials have now admitted in sworn declarations that the details leaked to the filmmakers, if publicly known, would cause an “unnecessary security and counterintelligence risk.”

But as we noted in a recent countermotion for summary judgment filed with the court on November 12, 2012, in our continuing Freedom of Information Act (FOIA) lawsuit against the Obama Department of Justice (DOJ) and CIA, here’s what we know for certain: The government cannot have it both ways in this case.

“If this information were very sensitive, it would not have been shared with the filmmakers. Since the government did share the information with the filmmakers, the court should conclude that it is necessarily not sensitive … Assisting to make a movie about government accomplishments is not a necessary or important governmental function. If it were, the term for it would be political propaganda,” Judicial Watch wrote.

You can read the disclosures for yourself here, but let me just share a couple of excerpts.

Mark Herrington, Associate Deputy General Counsel for the Office of General Counsel at the Department of Defense (DOD), testified that the military officers’ “identities would be threatened” if publicly disclosed but admitted that Under Secretary of Defense Mike Vickers released one of the names to Mark Boal.

Moreover, according to sworn testimony from CIA Information Review Officer Martha Lutz, releasing this type of information could provide an “unnecessary security and counterintelligence risk”:

Nonetheless, I can represent to the Court that the absolute protection for officers’ identities that Congress provided in the CIA Act is extremely important to the functioning of the Agency and the safety and security of its employees. This is true even for the identities of officers who are not undercover, and it is also true with respect to the first names of undercover officers. While such identifying information may not be classified in isolation, the widespread public release of this information creates an unnecessary security and counterintelligence risk for the Agency and its officers.

Now, compare these declarations with the public statement to reporters by Obama White House spokesman Jay Carney regarding the controversy: “We do not discuss classified information.” The government claims that the information shared is not necessarily classified, in fact the Obama administration now claims that the leaked information is not necessarily classified “in isolation,” and implies that the information should be effectively “classified” in aggregate.

Something does not add up.

JW previously obtained records from the DOD and the CIA regarding meetings and communications between government agencies and Kathryn Bigelow, the Academy Award-winning director of The Hurt Locker, and screenwriter Mark Boal in preparation for Zero Dark Thirty. According to the records, the Obama administration sought to have “high visibility” of bin Laden related projects, and granted Boal and Bigelow unusual access to agency information in preparation for their film, now scheduled for release in January. The disclosures made to the filmmakers are now part of an investigation by the DOD Inspector General.

The DOD and the CIA have continued to withhold information concerning the names of five CIA and military operatives involved in the bin Laden operation, which were shared with the filmmakers. Judicial Watch has identified the precise emails containing the information it wishes to obtain, and in sworn declarations Obama administration officials conceded that this information was provided to Bigelow and Boal.

In its brief seeking to deny Judicial Watch access to the leaked names, the government asserts that it had protected the operatives’ confidentiality by asking the filmmakers not to share the names. In its cross motion, however, JW responds that the government has provided no evidence that it asked the filmmakers to sign a non-disclosure agreement, or any other contract that would prevent them from sharing the names as required under law. In addition, the government has provided no evidence that either Boal or Bigelow underwent background checks or received security clearances before being provided the information the DOD and CIA now claim is too sensitive for public disclosure.

The Obama administration now confirms to a federal court that it released sensitive information to help with a film that was set to portray Barack Obama as “gutsy.” If this is true, then the Obama administration was lying to the American people when it said the leaks were no big deal. The public has a right to get to the bottom of this scandal and the Obama administration should comply with the open records law and disclose the names that were leaked.

By way of review, Judicial Watch initially launched its investigation of the filmmakers’ meetings with the Obama administration following press reports suggesting that the Obama administration may have leaked classified information to the director as source material for Bigelow’s film.

In August 2011, New York Times columnist Maureen Dowd wrote that the information leak was originally designed to help the Obama 2012 presidential reelection campaign: “The White House is also counting on the Kathryn Bigelow and Mark Boal big-screen version of the killing of Bin Laden to counter Obama’s growing reputation as ineffectual. The Sony film by the Oscar-winning pair who made ‘The Hurt Locker’ will no doubt reflect the president’s cool, gutsy decision against shaky odds.”

Now we’re in court and we’ve exposed the Obama administration’s dishonesty on bin Laden leaks. Stay tuned…

JW Monitors 9/11 Terrorist Tribunals at Guantanamo Bay

More than 11 years after terrorists flew planes into the twin towers and the Pentagon, murdering 3,000 people, those responsible for this attack have yet to face justice, due largely to the incompetence of the Obama administration. (Remember, it was the president’s ludicrous idea to bring the terrorists into a civilian court in New York until public opposition forced an “about face.”

Finally, after a long wait and many delays, the military tribunal for alleged 9/11 mastermind Khalid Sheikh Mohammed co-conspirators Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi took place in Guantanamo Bay, Cuba, last month. And our senior investigator Lisette Garcia was on the ground to observe in person the military commission proceedings.

Family members of Paul Acquaviva, Andrea Haberman, Michael Noeth, Randy Scott, and Amy Toyen who were among the 2,976 Americans killed on September 11, 2001, also attended the pre-trial hearing during which 18 motions were argued, two were resolved by the parties, and seven more were held in abeyance pending a military judge’s ruling on the handling of evidence and witnesses going forward.

The following are excerpts from Lisette’s first-hand report:

On Mon., Oct. 15, 2012, U.S. Army Judge Col. James Pohl ruled on whether the defendants had to be present for all phases of the proceeding. Ultimately, Judge Pohl ruled that the defendants could waive their right to be present on a daily basis until the trial begins in earnest around the year 2014.

The order, which was later amended to allow the prisoners to change their minds at any time, was issued over the government’s objection. Chief Prosecution Counsel Brig. General Mark Martins argued vigorously for keeping the defendants in the courtroom (to the extent they were not so disruptive as to make their presence impossible) so that justice might be served in person. The judge, however, said their right to be present included a right to be excused from this phase of the trial.

On day two of the weeklong session, Judge Pohl decided whether the defendants could dress as they wished. During the defendants’ unruly arraignment in May, the Joint Task Force commander who runs the detention facility where all al Qaeda suspects are housed, had denied Khalid Sheikh Mohammed’s (KSM) request to wear either a camouflage jacket or an orange jumpsuit to court, saying the field jacket had cargo pockets that posed a security threat and that the jumpsuit was not proper courtroom attire. The defendants had also reportedly been forcefully extracted from their cells when they declined to come to court on prior occasions.

On Tues., Oct. 16, though, Judge Pohl, who is actually presiding over the trial, reviewed the warden’s decisions, allowing a camouflage vest (so long as it formed no part of a current uniform of the U.S. Armed Forces), saying a vest’s pockets were no more dangerous than those of a Western-style suit worn by Majid Khan during his entry of a guilty plea in February. However, Judge Pohl barred the jumpsuit, saying it was irrelevant to KSM’s present incarceration, where inmates wear white robes.

Taking advantage of the judge’s ruling regarding optional attendance at the hearing, agreed to come to court around 5:00 a.m. Wed., Oct. 17, then changing his mind around 9:00 a.m. while in a holding cell adjacent to the courtroom, then asking to rejoin the proceedings after midmorning prayer. Because the defendants are heavily guarded, the movement of any one accused is labor and time intensive, although the Joint Task Force guards appeared to handle each transition in a very orderly fashion.

Once in court in his preferred attire, KSM seemed unsatisfied to sit and listen. Just before 3 p.m. Wed., Oct. 17, KSM raised his hand to remark on a debate underway about the extent to which national security information relevant to the trial ought to remain secret. The judge admonished KSM to confer with his civilian attorney, David Nevin of Boise, prior to speaking out in court. Nevertheless, after a brief conference, KSM (through an interpreter) said the following:

In the name of Allah, most graceful, the government at the end of the argument gave you an advice. They told you any decision you’re going to issue you have to keep in mind the national security and to remember that there were 3,000 people killed on September 11…

When the government feels sad for the death or killing of 3,000 people who were killed on September 11, we also should feel sorry that the American government, who is represented by General Martins and others, have killed thousands of people – millions. . . . I don’t want to be long, but I can say that the president can take someone and throw him in the sea under the name of national security. And so – well, he can also legislate the killings, assassinations under the name of national security, for the American citizens. . . .

My only advice to you, that you do not get affected by the crocodile tears. Because your blood is not made of gold and ours is made out of water. . . .

Following KSM’s remarks, Judge Pohl said that “no matter how heartfelt,” he would no longer “entertain personal comments of any accused about the way things are going.” The next morning, the judge cut short a parallel statement on behalf of American victims delivered by Trial Counsel Edward Ryan.

In contrast to the patience he exhibited toward KSM, Judge Pohl told the government’s attorney: I understand this case. I understand that people died. I have got that. I am sensitive to that. I have got all that. But this is not the time to make that argument. Please restrict your argument to facts relevant to the issue before me.

Another major issue that arose as the week came to a close was whether the civil liberties guaranteed by the U.S. Constitution apply to these “unprivileged alien enemy belligerents,” despite the fact that they are being prosecuted for war crimes in a military tribunal rather than in federal court under the U.S. criminal code. General Martins hedged, refusing to answer Judge Pohl’s pointed questions directly, replying instead that it was too soon to tell. However, the judge’s five-month delay in even asking this question, as well as the government’s refusal to answer it, raised doubts about the commission’s commitment to a speedy trial.

Judicial Watch was pleased to be able to monitor these proceedings on behalf of the American people and to counterbalance the coverage of leftist special interest groups and their allies in the “mainstream” press.

Until next week…

Tom Fitton
President