Mojo - May 2013

The Obama Administration Has a Long Record of Prosecuting Leakers

| Wed May 15, 2013 12:17 PM EDT

The Associated Press announced on Monday that federal agents had secretly seized two months of its phone records in what the organization called a "serious interference with the A.P.’s constitutional rights to gather and report news." Although much of the resulting furor has focused on the rights of a free press, the sweeping move by the Department of Justice also highlights the Obama administration's rough treatment of leakers and whistleblowers within its ranks.

The Obama administration has used the 1917 Espionage Act, which was originally designed to prosecute spies, to indict twice as many government officials for leaks than all other administrations combined. The Knight Center for Journalism in the Americas has assembled a list of the six current and former government officials that the Obama administration has indicted under the law:

1. Shamai K. Leibowitz, 2009

Leibowitz, a former-FBI Hebrew translator, pleaded guilty to leaking classified information to Richard Silverstein who blogs at Tikun Olam, reported AlterNet. The translator passed 200 pages of transcribed conversations recorded by FBI wiretaps of the Israeli embassy in Washington, D.C. Leibowitz was sentenced to up to 20 months in prison, according to The Washington Post.

2. Stephen Jin-Woo Kim, 2010

Kim was a nuclear proliferation expert working on a contract basis for the U.S. State Department when he was accused of leaking information about North Korea to Fox News.

The Justice Department claimed that Kim was the source behind Fox News journalist James Rosen’s 2009 report suggesting that the North would likely test another nuclear bomb in reaction to a United Nations Security Council resolution condemning its tests, reported AlterNet.

Kim pleaded not guilty to the charges. A Federal Grand Jury indicted him but the case has not gone to trial, according to The New York Times.

3. Thomas Drake, 2010

Drake worked as a senior executive at the National Security Agency when he was charged with “willful retention” of classified documents under the Espionage Act. He leaked information about government waste on digital data gathering technology to The Baltimore Sun, according to AlterNet.

At one point Drake faced up to 35 years in prison for several charges. Eventually, most of the charges were dropped and he pleaded guilty to a misdemeanor for  “exceeding authorized use of a computer.” He was sentenced to one-year probation and community service.

4. Pfc. Bradley Manning, 2010

Probably the best known of the six under indictment, Manning was the source behind the WikiLeaks and CableGate information dumps. Critics accuse the government of dragging its feet and aggressively redacting requests for public information about the trial. One journalist opined that the Guantanamo military tribunals were more transparent.

Manning faces a court martial and a harsher sentence that could include life in prison without parole, reported The New York Times. AlterNet pointed out, however, that prosecutors would have to prove Manning released the documents with the intention of harming the U.S. to win those harsher charges, something Manning denies. His trial is set for next month, June 3.

5. Jeffery Sterling, 2010

Sterling, a former-CIA official, pleaded not guilty to leaking information to New York Times journalist James Risen regarding a failed U.S. attempt to sabotage Iran’s nuclear program. The information in question was published in Risen’s book “State of War.”

Risen successfully fought several subpoenas from the federal government to reveal his sources during Sterling’s trial, according to the Committee to Protect Journalists. The Justice Department announced in the summer of 2012 that it has “effectively terminated” the case, according to the Times.

6. John C. Kiriakou, 2012

One of the few prosecuted under the Espionage act to serve jail time, Kiriakou was sentenced to 30 months in prison on Jan. 25, 2013, for leaking classified information to the media. Kiriakou pleaded not guilty to releasing the name of an undercover CIA agent to a reporter and information about the intelligence agency’s use of waterboarding, a controversial interrogation technique.

Kiriakou is the first person successfully prosecuted under the Intelligence Identities Protection Act in 27 years, according to the Times. The reporter the ex-CIA official spoke to did not publish the undercover agent’s name, although the Times pointed out that the agent’s identity appeared in a sealed legal filing and on an “obscure” website.

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Ex-IRS Director: Tea Party Groups Deserved Scrutiny, But IRS Bungled the Job

| Wed May 15, 2013 5:00 AM EDT

Among those in attendance last Friday when IRS official Lois Lerner admitted that agency staffers had systematically singled out tea partiers and other conservative groups for special scrutiny was a lawyer named Marcus Owens. Lerner's admission was shocking, and nobody realized that more than Owens. That's because he served as director of the Exempt Organizations Division from 1990 to 2000, prior to Lerner holding the job.

Owens, who has worked on tax law issues in private and public practice for almost 40 years, including 25 years at the IRS, says he has been getting a lot of calls about the scandal. The way he sees it, he told me in an interview on Tuesday, is that the IRS was right to take a close look at conservative groups applying for tax-exempt status during the 2010 and 2012 election cycles. Particularly in 2010, hundreds of new conservative groups were springing up across the country. "I think that it would be unreasonable to expect the IRS to ignore that, and to simply approve these 501(c)(4) applications from politically active organizations as if they were Scout troops or Little Leagues," he said. "That doesn't mean they should be denied exemption or that the evaluation should be overboard or overly intrusive, but there should be special evaluation."

Could Federal Seizure Be the Beginning of the End for Bitcoin?

| Tue May 14, 2013 7:03 PM EDT

In what may be the first move toward a federal shutdown of the wildly popular online currency known as Bitcoin, the Department of Homeland Security today issued an order that has restricted the transfer of funds in and out of Mt. Gox, the Bitcoin exchange that handles some 60 percent of the transactions.

A creation of bank-fearing techies, Bitcoins are now worth more than $1 billion, and consumer interest has been skyrocketing. For more background, read our Bitcoin explainer.

Elizabeth Warren to Obama Administration: Take the Banks to Court, Already!

| Tue May 14, 2013 6:34 PM EDT

On Tuesday, fierce consumer advocate and needler of banks Sen. Elizabeth Warren (D-Mass.) called out Wall Street regulators for their habit of giving tepid punishments to misbehaving banks, and asked the agencies to justify their policy of settling with the wrongdoers out of court.

Warren sent a letter to the Justice Department, as well as to the Securities and Exchange Commission and the Federal Reserve, asking them for evidence on how a settlement that doesn't require a bank to admit guilt would be better policy than taking the bad apple to trial. If regulators at least show that they are willing to play tough, she argued, it will help deter bad behavior and allow regulators to negotiate bigger fines in the event of a later settlement.

Why "Feticide" Charges Are More Complicated Than They Seem

| Tue May 14, 2013 4:38 PM EDT

Prosecutors in Ohio have indicated that they will seek murder charges against Ariel Castro, the man they believe kidnapped, tortured, and imprisoned three women in his house for roughly a decade. The murder charges stem from reports that he raped, impregnated and abused one of the women, Michelle Knight, causing her to miscarry multiple pregnancies.

"I fully intend to seek charges for each and every act of sexual violence, rape, each day of kidnapping, every felonious assault, and each act of aggravated murder for terminating pregnancies that the offender perpetrated," Cuyahoga County Prosecutor Timothy McGinty said at a news conference late last week. Ohio prosecutors are assessing whether they could seek the death penalty against Castro.

Thirty-eight states have laws on the books that make killing a fetus in a violent act a separate crime from the harm done to the pregnant woman, according to the National Conference of State Legislatures. Ohio has had a feticide law since 1996. Although there is broad agreement on the idea that Castro should be prosecuted for his alleged crimes, the use of this type of "feticide" law makes some in the world of reproductive rights and law nervous, since these laws move toward the kind of "fetal personhood" measures that anti-abortion groups have tried to push to define a fetus as a full and separate human being.

"What Castro is accused of doing is so horrendous it defies comprehension. He allegedly forced Ms. Knight to become pregnant, and then forced her to miscarry—nobody disagrees that he should be punished for this," Farah Diaz-Tello, a staff attorney at National Advocates for Pregnant Women, told Mother Jones. "But when the law treats fertilized eggs, embryos, and fetuses as legally separate from the pregnant women who carry them, the door is open to a host of problematic consequences for pregnant women."

The concern is that this sort of law could in turn be used to prosecute women for seeking an abortion or other potential or perceived harms to a fetus. And as I've reported here before, women already have been prosecuted under this type of law in some states.

Lindsey Beyerstein has a great piece at RH Reality Check looking at the legal issues at hand in the case. Michelle Goldberg also makes an elegant argument against the murder charge at The Daily Beast:

But if he is convicted of capital murder, it will ultimately be an injustice—not to him, but to the rest of us. That's because it will mean that legally, ending a pregnancy is a greater crime than keeping three human beings locked in a squalid dungeon for a decade. Such a precedent will have implications beyond this terrible case.

Emily Bazelon made a similar point about this over at Slate. As Diaz-Tello puts it, "The acts of torture Castro allegedly committed against these three women are certainly more than enough to put him away for life without going down roads that lead to locking up pregnant women."

Attorney General Eric Holder Orders Investigation of IRS

| Tue May 14, 2013 3:27 PM EDT

At a Tuesday press conference, Attorney General Eric Holder announced that he had ordered the Justice Department and FBI to investigate whether the Internal Revenue Service violated the law by subjecting tea party groups applying for tax-exempt nonprofit status to special scrutiny. Other dark money organizations that have drawn criticism from advocates of campaign finance reform, including the pro-Obama Priorities USA and Karl Rove's Crossroads GPS, have received little attention from the IRS.

The controversy, which was first reported on Friday, is the latest in a long line of alleged IRS witch hunts against specific political and religious organizations.

The New York Times reports:

The activities of I.R.S. officials are already the subject of an investigation by the agency's inspector general. The results of that inquiry, which are expected in the next several days, are likely to detail how officials at the agency selected political groups for extra scrutiny about their tax status.

...

The attorney general said there were "a variety of statutes within the I.R.S. code" that could be the basis of a criminal violation. He said officials conducting the investigation would also look at "other things in Title 18" of the United States Code. Title 18 is the overall criminal code for the federal government.

During a concurrent press conference, White House press secretary Jay Carney said that "if the reports about the activity of IRS personnel prove to be true," President Barack Obama "would find them outrageous, and he would expect that appropriate action be taken, and that people be held responsible. He has no tolerance for targeting of specific groups."

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Did the Acting IRS Commissioner Mislead Congress?

| Tue May 14, 2013 12:50 PM EDT

When Lois Lerner, a top IRS official, revealed last Friday that agency staffers had singled out conservative nonprofit groups for extra scrutiny over their potential political activities, she blamed low-level, "frontline" staffers in the agency's Cincinnati office, a hub of activity that handles tens of thousands of applications for tax-exempt status. The IRS later said no high-level officials were aware of these controversial actions.

As it turns out, the current acting IRS commissioner knew that staffers were flagging applications from certain conservative groups a year before Congress and the public found out about it. And members of Congress are steaming mad that the IRS was aware of the questionable practices of some of its staffers and didn't speak up about it. Several Republicans claim that Congress was misled by the IRS and its top brass about these actions.

The IRS said that current acting commissioner Steven Miller learned on May 3, 2012, that staffers had been picking out conservative groups for greater scrutiny than is typical. (Miller was deputy commissioner at the time.)

Yet Republican lawmakers say Miller neglected to tell Congress about the systematic singling out of conservative groups in subsequent interactions. Miller wrote two letters to Congress after his May 2012 briefing about how the IRS reviews applications for tax-exempt status, but did not mention the scrutiny of tea party groups. On July 25, 2012, Miller testified before the House ways and means oversight subcommittee on the subject of "organizational and compliance issues related to public charities." During questioning, Miller was asked about tea party groups being harassed, but not about tea partiers specifically. He did not mention having been briefed on the IRS' actions.

"It is almost inconceivable to imagine that top officials at the IRS knew conservative groups were being targeted but chose to willfully mislead the Committee's investigation into this practice," Rep. Dave Camp, chair of the ways and means committee, said in a statement.

An IRS spokesman did not respond to a request for comment.

Miller wrote in an op-ed for USA Today on Tuesday that the IRS' singling out of conservative groups showed "a lack of sensitivity to the implications of some of the decisions that were made." He added that sifting through applications for tax-exempt status was "factually complex, and it's challenging to separate out political issues from those involving education or social welfare." He did not say why he didn't tell Congress about the tea party scrutiny when he learned of it in May 2012.

Other lawmakers say they corresponded with the IRS on the tea party issue and can't understand why the agency didn't share all of what it knew. "I wrote to the IRS three times last year after hearing concerns that conservative groups were being targeted," Sen. Orrin Hatch (R-Utah), said in a statement Monday. "Yet it didn't occur to anyone at the IRS to let us know that this targeting was in fact happening? Knowing what we know now, the IRS was at best being far from forthcoming, or at worst, being deliberately dishonest with Congress. These are the facts and the questions we need answered."

They could be answered soon. On Friday, the House ways and means committee will hold a hearing on the IRS' tea party controversy. Other House and Senate committees have pledged to investigate the matter, too.

Minn. Passes Gay Marriage and Michele Bachmann Is Sad

| Tue May 14, 2013 10:37 AM EDT

Marriage equality supporters celebrate in the Minnesota capitol on Monday after the state senate voted to legalize same-sex marriage.

At 5 p.m. CST on Tuesday, Minnesota will become the 12th state to legalize same-sex marriage when Gov. Mark Dayton (D) signs into law legislation that just passed the state Senate on Monday. It's a remarkable turn of events for a state where conservatives spent much of the last decade trying to pass a Constitutional amendment to put marriage equality out of reach. (A referendum narrowly failed last November.)

This is bad news for the politician who, perhaps more than anyone else in the state, has built her career on denying full rights to same-sex couples—Rep. Michele Bachmann (R-Minn.). Bachmann's influence in her home state has been fading since her GOP presidential bid failed spectacularly in 2011. In a solidly conservative district, she squeaked past her Democratic challenger last fall by just 4,300 votes, and is now in the crosshairs of the Office of Congressional Ethics over charges that she improperly used campaign funds to promote her memoir. What political currency she has left may as well be in Bitcoin. Here's how she responded to the vote on Monday:

No kidding. As I explained in a profile for the magazine two years ago, Bachmann opposed marriage equality with a religious fervor, viewing it as a struggle for the future of society. At one point she even enlisted divine intervention on a gay colleague, Sen. Scott Dibble:

In two consecutive legislative sessions, Bachmann introduced bills to place a gay marriage ban on the ballot. Openly gay Democratic state Sen. Scott Dibble says that when he wasn't there she brought a group of conservative activists—"prayer warriors," as she called them—into the chamber to pray over his desk. She held a candlelight vigil outside the Capitol to pray for the legislation's passage and, with the Legislature scrambling to finish up its session in the spring of 2004, brought the body to a standstill through her efforts to bring the bill to the floor.

Dayton's signature will mark the end of an era in Minnesota politics. On Monday, as the Senate at last voted for marriage equality, Dibble blew a kiss to his husband in the gallery. He may as well have been bidding Bachmann farewell.

Brian Mark Peterson/Minneapolis Star Tribune/ZumaPress.com

Sen. John Cornyn Takes a Stand Against Migrant Deaths. Sort Of.

| Tue May 14, 2013 10:02 AM EDT

On Monday, Sen. John Cornyn (R-Texas) published an op-ed on Fox News detailing his recent travels in the Rio Grande Valley, where he met an undocumented immigrant from El Salvador and visited a cemetery that houses the remains of unidentified migrants who died traversing the county's scorching canyons. "As a policymaker, I have a responsibility to find real solutions to these issues that are all-too-familiar to Texans," he writes. "Anything less only perpetuates this grotesque human tragedy playing out every day on American soil." So far so good. He also released this video, which documents his trip to the cemetery with a close-up on the details (or lack thereof) on the unmarked graves:

At this point you might think that Cornyn is taking a lead role in combating the surge in migrant deaths in South Texas. But that's where things get weird.

Cornyn's video points to the increasing number of migrant deaths in Brooks County as evidence that the border isn't really secure. That's really the opposite of what's happening. Rising migrant death totals aren't a symptom of a porous border; they're a symptom of a border that's increasingly locked-down, and a testament to more effective enforcement policies in traditional migrant corridors—a point that's made in the Washington Post story Cornyn cited in the video. The idea that tougher border security makes border crossings more dangerous is well-established (this 2009 report from the American Civil Liberties Union is instructive, as is this from the American Public Health Association). Contra Cornyn's assertion in the video, Brooks County is what a secure border looks like. That's why Coalición Derechos Humanos Arizona, which works with migrants in the Sonora desert, doesn't support the enforcement-heavy bill currently being considered in the Senate.

Cornyn did vote for a successful amendment to the Senate legislation to mandate better data collection of human trafficking, inspired by this specific case in Houston. But he's pushing for a harsher security policy that would exacerbate the problems Brooks County already faces—citing, among other things, the presence of men "wearing some form of turban" crossing into South Texas. (Cornyn has introduced his own legislation focusing exclusively on border security, which he'd like to see as a prerequisite for any kind of immigration reform.) During the committee markup, Cornyn broached the subject of Brooks County's rising toll, but only to push for reimbursement for the county. On Thursday, he voted for a proposal from Sen. Jeff Sessions (R-Ala.) that would modify the Senate immigration reform bill to "strike the section that requires the Secretary of Homeland Security to issue policies governing the use of force by Department of Homeland Security personnel."

Boehner and the Benghazi Emails: Been There, Done That?

| Mon May 13, 2013 9:55 AM EDT

House Speaker John Boehner, according to Politico, is obsessed with Benghazi. And last week, after ABC News revealed the revised talking points crafted by the Obama administration following the September 11 attack that left four Americans dead, Boehner demanded that the administration release emails related to these talking points. "The truth shouldn't be hidden from the American people behind a White House firewall," Boehner declared. "Four Americans lost their lives in this terrorist attack. Congress will continue to investigate this issue, using all of the resources at our disposal." But thanks, in part, to the Republicans, the truth isn't being hidden. Boehner and his fellow Republicans had access to those emails—and used them for a public report they issued weeks ago that scooped the ABC News story.

In March, Boehner, according to a senior administration official, was invited to a White House-arranged briefing where the emails and other Benghazi-related material could be privately reviewed. Boehner did not attend; he sent staff, who attended with other House Republicans. Asked why Boehner did not participate in this session and why he did not at that time demand the release of the emails, Brendan Buck, his press secretary, says, "This is embarrassing pushback. Do you recall the report we put out in April? The committees were compiling information as part of their investigation and when the report was done, the committees requested the release of the emails." In an April 23 letter, five GOP House committee chairs did ask the White House to turn over to their committees the documents it had allowed the GOPers to review.