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Tom Blanton of the National Security Archives recently wrote the following:

"If you are circulating petitions, please do not use generalities like “the Obama administration. . . . The main reason for the increase in leaks prosecutions is that cases developed under the Bush administration “ripened” last year and this year, and the career prosecutors (abetted by one or two Obama appointees) dared the White House to intervene and risk the Nixon-era opprobrium for “political interference in prosecutions.”. "1

I do not understand this. Dates regarding the recent Espionage Act cases are as follows:

Stephen Jin-Woo Kim: Alleged disclosure: 2009. Indicted: 2010. 3

Shamai Leibowitz: Alleged disclosure: 2009. Convicted: 2009. 4,5

Cambridge Wikileaks person(s): Alleged disclosure: 2009 / 2010. Grand Jury meeting: 2011.6

Bradley Manning: Alleged disclosure: 2009. UCMJ Article 32 hearing: 2011.7

Thomas Drake: Alleged retention: 2006. William Welch put on case: 2009. Indicted: 2010. 8

Jeffrey Sterling: Alleged disclosure: 2003. Senior Litigation Counsel: William Welch. Indicted: 2010.9

Welch's subpoena of journalist James Risen, which will possibly lead to his imprisonment: 2011 10

William Welch is on these cases because of Lanny Breuer, whom Obama nominated in January 200917. The story of Mr. Welch would seem to indicate that the administration does, in fact, have some influence here.

William Welch left his position in the Public Integrity section of the Department of Justice after allegations of misconduct in October 2009. 11, 12 Why? According to Stephanie Berry at Masslive.com:

The judge chastised lawyers throughout the trial for withholding evidence from defense lawyers. More recently, officials discovered critical notes memorializing the government's star witness contradicting earlier testimony that were never turned over. 18

Mr. Breuer, Obama's Appointee, apparently did not share the judge's opinion. Mike Scarcella quoted him in the LegalTimes blog:

'Breuer called Welch an "extremely smart and thoughtful lawyer. I think he's a dedicated public servant who's devoted his entire professional life to serving the American people."'13

Mr. Welch was then allowed to take a position in the Department of Justice's Criminal Division. 12, 19 Shane Harris of the Washingtonian wrote, when Welch was appointed to the Sterling and Drake cases,

To go after Risen, Drake, and other loose-lipped antagonists, the administration has chosen a crack prosecutor.12

Mr. Welch acted in the Drake case similarly to how the prosecutors acted in the Stevens Case. For example: one document the government charged Drake with 'retaining' was actually marked "UNCLASSIFIED". Welch's team withheld this fact from the defense for 10 months. 26, 27

It was Holder that decided to drop the Stevens case, according to Carrie Johnson's Washington Post article on the subject19. If Holder had the power to drop the case, could he have at least asked that Mr. Welch stop pushing the bounds of legal propriety in his future cases? Furthermore, did Mr. Holder have no say on what tasks would be assigned to Mr. Welch in his subsequent career? Could he not have asked Mr. Breuer to, rather than assign Mr. Welch to prosecute people who give information to the media, instead assign him to prosecute mortgage fraud, which Welch has experience in12? Especially when many experts have been begging and pleading for justice for the causers of the Great Recession? 29, 30 What constituency has been begging the government to prosecute whistleblowers?

Obama's appointee, Mr. Breuer, also has some unusual interpretations of the laws regarding classified information. Jane Mayer quoted him in her New Yorker article about Thomas Drake's case in May 2011:

"Lanny Breuer, the Assistant Attorney General who supervises the department’s criminal division, told me, “You don’t get to break the law and disclose classified information just because you want to.”8

Drake did not disclose classified information, nor was he criminally charged with doing so. He was charged with "retention" of "national defense information", which is actually a very different thing, as Judge T.S. Ellis III pointed out in the 2009 resentencing hearing of Larry Franklin (of the AIPAC case).20

Contrary to Mr. Breuer's implication, there is actually no blanket law banning all disclosure of all classified information. Congress has repeatedly refused or failed to pass such a law, as pointed out the 1973 Columbia Law Review article by Harold Edgar and Benno Schmidt, and in a 2011 Congressional Research Service paper by Jennifer Elsea.14, 16 Congress and the Executive frequently disclose classified information to the media, as part of their political strategy. 21, 22 This is part of Kim's defense argument.23

Mr Breuer's comments are especially puzzling, considering that he himself defended Sandy Berger when Mr. Berger smuggled classified documents in his pants out of the National Archives.3, 8

The Kim, Leibowitz, Manning, and Cambridge Wikileaks cases did not develop under the Bush Administration. The alleged crimes, and the prosecutions, all occured while Obama was president. The Drake and Sterling cases, which did develop under President Bush, were/are prosecuted by William Welch, who is under Lanny Breuer, whom, as mentioned Obama appointed to his current high position.17

I have heard other people say that Obama has the power to make the DOJ 'not enforce DOMA', the Defense of Marriage Act 24. I have heard Obama say that he will not "look backwards" regarding prosecution of alleged torturers and torture lawyers25. As mentioned, Carrie Johnson of the Washington Post said that Eric Holder was the one who decided to drop the Stevens  case.19 POGO executive director Danielle Brian implied that their conversation with Obama about the Drake case may have influenced the dropping of charges in the case. 28

So. Does the President have the power to stop DOJ prosecutions, or not? Is the DOJ "Going Rogue" on poor President Obama, who is powerless to do anything about it? Are William Welch and the other Espionage Act prosecutors going off into the wilderness, while poor Mr. Holder can only watch in horror? Is the Army going off on it's own in the prosecution of Bradley Manning; or does the Commander in Chief have some influence in the matter? Are whistleblowers like Daniel Ellsberg31 and Jesselyn Radack32, and journalists like Jane Mayer8, Josh Gerstein33, and Shane Harris12 all wrong to use the phrase 'Obama Administration'? Who am I supposed to believe?

If someone could explain all this to me, I would appreciate it.

References

[1] Let's Not Lose Sight of Our Common Goals When it Comes to Whistleblower Protections and Government Transparency, Danielle Brian, Jun 14, 2011, POGO blog, (Project on Government Oversight)

[2] Rescind Obama’s “Transparency Award” Now!, Sibel Edmonds, boilingfrogspost.com, 2011 6 14

[3] US v. Stephen Kim: Selected Case Files, Federation of American Scientists

[4] Shamai Leibowitz charge, Federation of American Scientists

[5] Justice Dept. cracks down on leaks, Josh Gerstein, Politico, 2010 5 25

[6] WikiLeaks Grand Jury investigation widens Glenn Greenwald, Salon.com, Jun 9, 2011

[7] The United States Army v Bradley Manning Charge Sheets, Hague Justice Portal

[8] The Secret Sharer, Jane Mayer, The New Yorker, May 23 2011

[9] US v. Jeffrey Sterling: Selected Case Files, Federation of American Scientists

[10] Fifty Subpoenas Sought in Sterling Leak Case, Steven Aftergood, May 19th, 2011, Federation of American Scientists

[11] Judge Holds DOJ Prosecutors in Contempt in Stevens Case, Joe Palazzolo, Feb 17 2009, law.com

[12] Plugging the Leaks, Shane Harris, the Washingtonian, July 21 2010

[13]  DOJ Begins Search for Public Integrity Section Chief, Oct 21 2009, Mike Scarcella , LegalTimes blog.

[14] The Protection of Classified Information:  The Legal Framework
Jennifer K. Elsea , Legislative Attorney , January 10, 2011 , Congressional Research Service, via Federation of American Scientist's website.

[15] Blood Money Paid by Chiquita Shows Company's Hard Choices, November 26, 2007, Sue Reisinger

[16] The Espionage Statutes and Publication of Defense Information by Harold Edgar and Benno C. Schmidt, Columbia Law Review, May 1973, from Federation of American Scientists

[17] Lanny Breuer to Lead Justice Criminal Division Carrie Johnson, Washington Post, 2009 January 9

[18] William Welch II, prosecutor in Springfield corruption probe, in hot water over Ted Stevens case, Stephanie Barry, April 07, 2009, Masslive.com

[19] Head of embattled Justice Dept. unit is stepping down, Carrie Johnson, Washington Post, Oct 22 2009

[20] Reduction of Sentence Hearing for Larry Franklin, Judge T.S. Ellis III, US Distr. Ct. for Eastern Virginia / Alexandria, 2009, from the Federation of American Scientists

[21] Burn Before Reading, Stansfield Turner, Hyperion, 2005

[22] Drug Wars - Interview with Oliver North, PBS Frontline & NPR, 2000. WGBH Boston, Rain Media, Inc., Cam Bay Productions

[23] Letter to Assistant AG Kris and US Attorney Machen, Abbe Lowell & Kim's defense team, Oct 12 2010, from stephenkim.org

[24] Critics Call Obama DOMA Decision an Executive Power Grab, Devin Dwyer, ABC News, 2011 2 24

[25] Obama's Growing Dilemma on Torture Prosecution Mark Thompson, Apr. 22, 2009, Time.com

[26] Government Case Against Whistleblower Thomas Drake Collapses, Marcy Wheeler, The Nation, June 13, 2011

[27] Defendant's Motion to Dismiss  Count Two of the Indictment, James Wyda and Deborah Boardman, Federal Public Defenders, Feb 2011, Document 50 US v. Drake, from Federation of American Scientists website

[28] Let's Not Lose Sight of Our Common Goals When it Comes to Whistleblower Protections and Government Transparency By Danielle Brian, executive director of POGO, POGOblog, 2011 6 14

[29] Biggest Fish Face Little Risk of Being Caught Joe Nocera, New York Times, February 25, 2011

[30] Our Pecora Moment, Simon Johnson, April 17 2010, baselinescenario.com

[31] Left-Wing Icon Daniel Ellsberg 'Obama Deceives the Public', Der Spiegel interview, 06/09/2010

[32] Squeezing the Press from Both Sides: Obama's War on Reporters & Sources, Jesselyn Radack, DailyKos, 2010 9 19

[33] Despite openness pledge, President Obama pursues leakers, Josh Gerstein, Politico.com, 3/7/11

---

Odd factoid: The Kim case is prosecuted by US Attorney Jonathan Malis, who formerly prosecuted Chiqita, saying it "paid for weapons and ammunition to kill innocent people." Who was defending Chiqita? Eric Holder, now Obama's Atty. General. At the time Mr. Holder called Mr. Malis "a little too crafty . . a little deceptive." Lanny Breuer was working at the same lawfirm as Holder.15

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Comment Preferences

  •  I have no problem with many or most... (3+ / 0-)
    Recommended by:
    Actuary4Change, Nulwee, Lujane

    ...of those prosecutions, but I agree with most critics of the prosecutions (like Jesselyn) that it's the President's responsibility.  It's just lame to say this or that office operates on its own and that the President has nothing to do with it.  

    It's better to curse the darkness than light a candle. --Whoever invented blogs, c.1996

    by Rich in PA on Wed Jun 15, 2011 at 08:01:19 AM PDT

    •  For prosecutions, the President (4+ / 0-)
      Recommended by:
      Catte Nappe, Garrett, Lujane, Wee Mama

      doesn't (or at least had better not) be involved in the decisions regarding individual prosecutions.

      "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

      by Geekesque on Wed Jun 15, 2011 at 08:52:12 AM PDT

      [ Parent ]

      •  depends on the alleged offence (0+ / 0-)

        For stuff like this, whose very status as an offense is intensely political, I don't think there is anything inappropriate about the President reviewing a DOJ decision to prosecute; I just wouldn't want it to go both ways (having him decide to prosecute if the DOJ won't).

        It's better to curse the darkness than light a candle. --Whoever invented blogs, c.1996

        by Rich in PA on Wed Jun 15, 2011 at 09:05:48 AM PDT

        [ Parent ]

        •  That could also lead to protection of political (1+ / 0-)
          Recommended by:
          Lujane

          friends/allies/campaign donors.

          Just better to keep the President out of the loop on individual prosecutions.

          Of course, he can and should set broad policy parameters.

          "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

          by Geekesque on Wed Jun 15, 2011 at 09:12:27 AM PDT

          [ Parent ]

      •  I've said it before (3+ / 0-)
        Recommended by:
        Geekesque, Lujane, Wee Mama

        The Attorney General is a cabinet level position that serves at the pleasure of the President, just like the Secretary of Agriculture. And like the Secretary of Agriculture the AG meets with the President at least once a week to coordinate and inform. While I'm sure that this President does not meddle in the day to day operations of the DoJ, any more than he does the DoA, you can rest assured that from a policy point of view, both the President and the AG are on the same page.

      •  Using a model of DOJ/prosecutorial independence (1+ / 0-)
        Recommended by:
        Lujane

        just doesn't seem to work, for following legal cases and policy anywhere in the realm of secrecy/terrorism/national security/detention and the like.

  •  A fuller version of the Blanton statement: (2+ / 0-)
    Recommended by:
    Nulwee, Lujane

    Posted by POGO (Project on Government Oversight), which includes additional commentary from POGO

    It is very much worth reading for full context

  •  Holder has the power ... the WH cannot be (4+ / 0-)

    directly interfering with how the DoJ does its business.  The previous administration treated the DoJ like personal attorneys.  That said, in invoking state secrets and whatnot, that is what the President is doing directly.

    The President is responsible - and the DoJ does have power to not pursue certain cases - it is hardly unprecedented.  But yes the career lawyers need to be able to do their jobs without political interference.

    The DoJ going after the press (like Risen) though - that is definitely an area of emphasis that seems to come from the President ... there is no real impetus to sniff out press rights in the DoJ mission.

  •  All you need to know about who is calling (1+ / 0-)
    Recommended by:
    Robobagpiper

    the shots:  Holder wanted to try KSM in New York City and the White House overruled him.

    Take the pledge on Social Security

    by 2laneIA on Wed Jun 15, 2011 at 08:30:47 AM PDT

  •  It's not "going" rogue, it IS and HAS BEEN rogue (1+ / 0-)
    Recommended by:
    Lujane

    and no one and nothing is doing anything to get it back under control.

    The Juggernaut is rolling down hill of its own weight now, gathering speed, and quite possibly no one can stop it and it would be too dangerous to try. All that's left is to get as far out of the way as possible - and wait for the inevitable crash.

    If it's
    Not your body
    Then it's
    Not your choice
    AND it's
    None of your damn business!

    by TheOtherMaven on Wed Jun 15, 2011 at 09:32:19 AM PDT

  •  the WH has direction over what sort of cases (3+ / 0-)
    Recommended by:
    Garrett, redlum jak, Lujane

    the DoJ emphasizes - but not on a case by case basis.  I think that's the best way to explain where the "wall" between the two are.  Certainly Holder is pushing in the direction Obama wants ... but how individual cases are handled stays in house.  

    Obama is not responsible for the lines of reasoning or precedent Justice uses in its prosecutions I don't think.  But he does discuss with the AG what cases need how much attention.  The attack of whistleeblowers in areas of sensitive information ... is a clear Obama priority.  

  •  Thanks for lots of references, not many (0+ / 0-)

    people do it anywhere online. Could you explain why Welch is important? Also, a lot of the diary is based on the fact that lawyers say different things depending on who their current client is. It seems to be completely routine so I don't see how it's some sort of offense.

    •  Mr Welch is the link b/t Drake / Sterling + Obama (1+ / 0-)
      Recommended by:
      FG

      Guess my refs were good but if my point wasnt clear then my writing needs improvement.

      Some people argue that Obama has nothing to do with Drake and Sterling b/c they are leftovers from the Bush era.

      Im trying to show that Obama appointed Breuer, and Breuer had Welch go after Drake and Sterling.

      Even after Welch is kicked off a case for alleged misconduct, Breuer keeps him. Obama and Holder apparently have nothing to say about this.

      Even after Welch starts doing the same kind of stuff that he was kicked off of earlier cases for, Obama and Holder apparently have nothing to say about this.

      Welch is also using extraordinarily broad arguments about the powers of the government to use secrecy at a trial. Here are some of his innovations - things that have never been argued before, ever.

      1. The 1959 NSA Act allows the government to censor unclassified information at trial.

      2. Silent Witness Rule allows them to redact documents

      3. Some unclassified documents are actually classified

      4. You can charge someone under the Espionage Act for having documents that are marked UNCLASSIFIED in big bold letters

  •  Not sure I can explain anything, but (0+ / 0-)

    diary is interesting nontheless.

    I guess is who assigns this Mr. Welch? Holder or Obama?

    And is Mr. Welch originally a Bush era appointee?

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