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Judicial Watch, Inc., a conservative, non-partisan educational foundation, transparency, accountability and integrity in government, politics and the law.

Judicial Watch, Inc., a conservative, non-partisan educational foundation, transparency, accountability and integrity in government, politics and the law.

Because no one
is above the law!


Tom Fitton's Weekly Update

Another Benghazi Cover-Up

Another Benghazi Cover-Up
Obama Administration Violates Obamacare
Judicial Watch Exposes Government Cover-Up and Media Hypocrisy

Another Benghazi Cover-Up

Contrary to what the Obama administration had initially claimed in its public comments, top U.S. diplomatic officials knew the U.S. compound in Benghazi, Libya, was under terrorist attack on September 11, 2012. This is big. In testimony before the U.S. House Oversight Committee on October 10, 2012, Deputy Assistant Secretary of State Charlene Lamb let the cat out of the bag. Apparently, the agents within the Diplomatic Security Command Center in Washington, D.C., knew that U.S. embassy personnel were under a terrorist attack from the moment it began.

Ms. Lamb told the congressional committee the Command Center knew in “real time” that a coordinated terrorist attack was underway against U.S. facilities in Benghazi. Moreover, it was clear to top officials within the Command Center that the attack had no relationship to a controversial video. But this is not what U.N. Ambassador Susan Rice said during an appearance on NBC’s Meet the Press program on September 16, 2011. The Benghazi attack was “almost a copycat” of spontaneous demonstrations that erupted against U.S. facilities in Cairo, Egypt, in response to the video,” Rice said on the program. But her scenario is in conflict with Lamb’s testimony.

“When the attack began,” Lamb testified, “a diplomatic security agent working in the Tactical Operations Center immediately activated the Imminent Danger Notification System and made an emergency announcement over the PA. Based on our security protocols he also alerted the annex U.S. quick reaction security team stationed nearby, Libyan 17th February Brigade, Embassy Tripoli, and the Diplomatic Security Command Center in Washington. From that point on, I could follow what was happening in almost real-time.”

There is good reason to have faith in Lamb’s testimony. That’s because there was an October 9, 2012, press conference call in which a senior State Department official told reporters “The ambassador walked guests out at 8:30 or so; there was nobody on the street. Then at 9:40 they saw on the security cameras that there were armed men invading the compound.” What this means is that we have now entered the fourth year of a cover-up that demonstrates the Command Center knew a full-fledged terrorist attack was underway almost from the instant it began. Documents from the Command Center could help to further unravel information the administration has sought to conceal.

All this is why Judicial Watch filed a Freedom of Information Act lawsuit against the U.S. State Department last October.  Thanks to a court order in this lawsuit, the State Department finally started disgorging documents – the first batch of which arrived earlier this week (on January 20).

Despite knowing it was an attack, the State Department, including its Security Command Center, continued to falsely tie “demonstrations” to the Benghazi terrorist assault.  The State Department’s January 20 document production 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.”

By the way, I’m not aware of the State Department telling Congress or anyone else about another “security” cover-up we uncovered, which is that there was no licensed security force at the Benghazi special mission compound on the day of the attack.  We found those documents in another FOIA lawsuit.

We have now filed 40 FOIA requests, a Mandatory Declassification Review and eight lawsuits against the Obama administration relating to the Benghazi terrorist attack. We are the only non-governmental organization currently litigating in federal court to uncover information withheld by the administration about the events that transpired before, during and after the assault on our fellow citizens in Benghazi.

The House created a Select Committee on Benghazi as the direct result of Judicial Watch’s uncovering emails showing White House orchestration of the knowingly false narrative that the Benghazi attack was due to an Internet video and spontaneous protests. The documents were obtained through a federal court order obtained by Judicial Watch in a separate FOIA lawsuit. Exclusive disclosures by Judicial Watch include photos of the Benghazi compound attack aftermath; various records about security contracts and gaps; documents related to administration’s efforts to lie to Congress and the American people about the attack; and emails with specific reports the State Department was receiving as the attack was taking place (including a State Department email detailing intelligence that Ambassador Stevens may have been alive at a Benghazi hospital).

Judicial Watch also produced an exclusive investigative news story questioning the handling of the Benghazi investigation by outgoing House Intelligence Committee Chairman Mike Rodgers (R-MI).

In the meantime, I understand that the Select Committee on Benghazi held its third hearing (after nine months of operation) on, among other things, why the State Department is ignoring its document requests.  “Ugh,” you might say.  Just so you know, that hearing was secret.  “Double ugh,” you may also say.  Don’t worry; we will continue our lawsuits and investigations.  Your Judicial Watch will continue to be the best available means to hold the Obama administration (and corrupt alumnae such as Hillary Clinton) accountable for the Benghazi outrage.

Obama Administration Violates Obamacare

Judicial Watch lawyers took a crucial next step in one of our legal challenges to President Obama’s lawlessness.  Judicial Watch lawyers asked the full court of the U.S. Court of Appeals for the Eleventh Circuit to rehear Kawa Orthodontics LLP’s challenge against the Obama administration’s decision to ignore the Affordable Care Act (ACA) and unilaterally delay the implementation of the “employer mandate.” We believe this could have significant reverberations as it cuts to the heart of lawlessness embedded within  the Obama administration’s handling of the ACA, which widely known as Obamacare.

Back in July 2013, the Obama administration unilaterally — and without the authority of any law passed by Congress – disregarded a statutory deadline and announced that the mandate would be delayed until 2015. That should be a legal non-starter, since the law expressly requires it to take effect on January 1, 2014.  The Obama administration subsequently delayed the mandate a second time.  It is now scheduled to take effect in 2016.

We initially sued the U.S. Department of Treasury, the Internal Revenue Service, Treasury Secretary Jack Lew and the Commissioner of the IRS over the delay, on behalf of Kawa, back on October 1, 2013. This has been a tough fight.

A lower federal court in Florida initially dismissed the Kawa lawsuit for lack of standing in January 2014.  On December 2, 2014, by a 2-1 vote, a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit upheld the lower court’s decision. But thankfully, Judge Beverly Baldwin Martin, who was appointed to the federal bench by President Clinton and nominated to the Eleventh Circuit by President Obama, dissented from her colleagues.  Judge Martin noted that a business that lost money, as did Kawa Orthodontics, would indeed have standing:

Kawa has shown that it has sustained an injury as a result of the government’s decision to delay enforcement of the employer mandate. It spent money on compliance costs two years earlier than necessary, and therefore lost two years of interest on those expenditures. Under basic rules of accounting, “[a] dollar today is worth more than a dollar tomorrow …”

Here, had Kawa spent money to ensure its compliance with the employer mandate in 2015 instead of 2013, it could have earned an additional two years of interest on that money. Or, instead of earning interest, Kawa could have invested that money in other endeavors to generate two years’ worth of added profits to the company.

We clearly have the law on our side. In our en banc rehearing request, our attorneys point out that the panel’s ruling conflicts with another Eleventh Circuit ruling which granted standing to individuals who were challenging the individual mandate at the heart of the Obamacare law. This would be the Florida v. U.S. Dep’t of Health and Human Services lawsuit. We also explain how in the Florida case, the plaintiffs had also alleged anticipatory compliance costs for the individual mandate, which the Eleventh Circuit ruled was sufficient to grant standing.  Ironically, in considering theFlorida and other challenges, a deeply divided Supreme Court ultimately ruled in 2012 that Obamacare was constitutional in several key measures.

Here is the key passage from our rehearing request:

In other words, this Court has already determined that the expenditure of anticipatory compliance costs is sufficient to confer standing. In Florida, the individual plaintiffs were injured by the enactment of the law because they had to spend money to comply with the law. In the instant matter, Kawa Ortho was injured because the subsequent delay meant that it spent money too early.

Here’s the problem from a business perspective. As a “large employer,” Kawa Orthodontics, which owned by Dr. Larry Kawa, is subject to the “employer mandate.”  Kawa Orthodontics spent substantial time and money in 2013 in anticipation of the mandate taking effect in 2014.  It also incurred significant “opportunity costs” preparing for the mandate instead of pursuing other business opportunities.  Kawa Orthodontics estimates that it could have generated approximately $1.2 million in new revenue for its practice had it not spent approximately 100 hours of time determining how best to comply with the “employer mandate.”

Dr. Kawa has made the point that Obama’s lawlessness has caused damage not just to America’s constitutional system but to countless businesses across the country. That’s why it’s vital for the court to take up this case.

The basic question here is does the executive branch have the authority to ignore a clear, Congressionally-imposed deadline? If the answer is yes, we no longer live in the country that we know.

Judicial Watch Exposes Government Cover-Up and Media Hypocrisy

If there’s one thing Americans don’t like about corruption, it is the notion that politicians (and even a liberal media that would like to think it is the government) too often think they’re above the law.  Judicial Watch’s response is “Let’s keep them honest and let’s hold them accountable.”  To that end, we have, after lengthy litigation, obtained the affidavit in support of the arrest of NBC’s David Gregory in association with a gun law violation committed on December 23, 2012, on Meet the Press.  Gregory exhibited a high-capacity ammunition magazine during an interview with the National Rifle Association’s Wayne LaPierre concerning firearms policy in the United States.

In January 2013, Legal Insurrection submitted a Freedom of Information (FOIA) request to the District of Columbia Metropolitan Police Department (MPD) and the Office of the Attorney General (OAG) seeking access to records related to the Gregory incident. We then filed a FOIA lawsuit in May 2013 on behalf of William A. Jacobson, a law professor who runs the Legal Insurrection blog, in the Superior Court of the District of Columbia seeking access to records concerning the decision by the District of Columbia not to prosecute Gregory.

The District government was ordered by a local District court to turn over the supporting affidavit. It had withheld the document for over two years before finally turning over the document yesterday to Judicial Watch lawyers.  Incredibly, the District was planning to appeal the lower court ruling but settled the matter by turning over the document only after Judicial Watch promised not to seek attorney fees and costs.

“The Affidavit in Support of an Arrest Warrant” confirms that D.C. Detective Wayne Gerrish believed there was probable cause that Mr. Gregory had committed a crime and requested an arrest warrant for Gregory.  Despite the detailed request, Andrew Fois, D.C. Deputy Attorney General for Public Safety, declined to the issue the warrant.

The document shows the District police repeatedly informed NBC News that using the high-capacity magazine would be illegal.  Here’s a critical part of the affidavit.

At approximately 4:05 P.M. [December 21, 2012], NBC News Editor [Name Withheld] emailed the Metropolitan Police Department’s [Information Withheld] and stated the following:  “Meet the Press is interviewing a person on the show this Sunday in studio – Producers for the show would like have a clip (standard or high power), without the ammunition in studio to use on the show.  There will be no gun, no bullets, just clips. Is this legal?”

The District Metropolitan Police Department twice responded to this and other NBC News inquiries with the following statement:

No, possession of high capacity magazines is a misdemeanor under Title #7 of the DC code.  We would suggest utilizing photographs for their presentation.

Despite these warnings, Gregory displayed the high magazine clip on air during the December 23, 2012, episode of Meet the Press.  The police document shows that the Detective Gerrish attempted to interview Mr. Gregory but was told by Mr. Gregory to contact NBC attorneys.  NBC lawyers then told the detective that “no interviews” of Mr. Gregory would be “allowed at this time.”

The detective concluded his affidavit with a request for the “issuance of an arrest warrant for Gregory, David Michael.”

Andrew Fois, a Deputy Attorney General (for the District government), wrote “declined” on the arrest warrant request.  Fois denied the arrest warrant request on January 11, 2013.

On the same day, D.C. Attorney General Irvin B. Nathan sent a letter to NBC saying that his office would not prosecute Gregory, “despite the clarity of the violation of this important law.”  The Attorney General added, “There is no doubt of the gravity of the illegal conduct in this matter. . . .”

“In 2012, the police arrested at least 105 people for charges that included possession of a magazine that can hold more than 10 rounds. The [District’s Office of Attorney General] charged 15 of those people in cases that included a ‘high-capacity feeding device or extended clip.’” according to the Washington Times.

What does this tell us?!

The affidavit for an arrest warrant of David Gregory shows that NBC News thinks it is above the law.  Imagine what NBC News would make of a corporation whose employees violated the law despite being warned by the police!

So there are two sets of rules: one for NBC and the media elites and another for thee. It is no wonder the District government covered up its special favor for NBC News and David Gregory for two years. Liberals in the District seem to think that they should be immune from the absurd and constitutionally-suspect gun laws they like and want enforced.

Our client, Prof. Jacobson, of, summed things up nicely, “The Affidavit demonstrates the facts as to NBC News’ open defiance of the law. This was no innocent error.  The point of all this was not that we wanted David Gregory prosecuted. We didn’t. There is no reason for mere possession of an unloaded high-capacity magazine, not to be used in the commission of some other crime and far away from actual ammunition, to be a crime. But it is in D.C.  This is a nice victory for transparency and accountability for both the big media and the government.  We thank Judicial Watch attorneys Jim Peterson and Ramona Cotca, who did a great job helping our independent group of journalists beat City Hall.”

Until next week …