Skip to main content

A memo from the Reagan Archives sheds some light on why the AG hasn't provided a response to questions about "Fast and Furious."

The US government delegates authority to provide exemptions to the law. It remains unclear whether, in absence of judicial oversight, there remain adequate provisions to ensure these exemption authorities are not abused.

Twitter: here.

Summation

We believe the statutory exemptions allowed DOJ, ATF and others at OPDAT to cooperate with NYPD, other law enforcement and covert intelligence entities re domestic surveillance.  The climate in DOJ does not appear to have changed since the 1990s, especially in the wake of then-DAG Holder's connection with the 2000-era IG audit findings and continued statutory exemptions re rendition, FISA violations, and prisoner abuses.

A White House-connection to programs linked with statutory exemptions strengthens the claim WH knew or should have known about US Government cooperation with NYPD domestic surveillance.

There is a potential conflict of interest between formerly assigned White House legal counsel working for DOJ and sitting Justices on the Supreme Court.  The issues below warrant review in re the Canons of Judicial Ethics, not limited to Chief Justice Reports and Justice Alito.

User/reader tip: Kw= "Update" to highlight new information added.

One of the interesting aspects of Fast and Furious is what the Department of Justice isn't talking about:

How the AG delegates authority

How DOJ approves exemptions

Part of the "backstory" related to Fast and Furious relates to wiretaps, federal laws, and covert operations.  After 9-11, the President and US government expanded their view, with DOJ OLC approvals, of what methods would be used to conduct combat, including covert operations. Those methods included harsh interrogation and FISA violations.

Alito Memo: A Culture of Exemptions re ATF (DOJ, Criminal Division)

The Reagan Archives shed light on something (indirectly) related to Fast and Furious: DOJ discussions in the 1980s related to delegation of exemption authority for ATF activities.

Consider this memo from then-DOJ OLC legal counsel Alito, where the summary says:

This order delegates authority from the Attorney General to the Assistant Attorney General in charge of the Criminal Division to review and approve exemptions from certain laws for Drug Enforcement Administration undercover operations. The Attorney General's authority to approve such exemptions has been included in the yearly Department of Justice appropriations authorization act since 1984. See, e.q., Pub. L. 99-500, 100 Stat. 1783 (1986). The delegation of authority by the Attorney General is necessary to expedite and facilitate review of exemption requests.
The Alito Memo establishes:
1. There were discussions at specific times in DOJ before Fast and Furious was created related to ATF exemptions;

2. There is a date certain when DOJ OLC legal counsel would have (or should have) reviewed the applicable DOJ reporting requirements related to those exemptions to the AG and Congress;

3. Subsequent DOJ leadership comments related to exempt programs should have properly reviewed the original exemptions and the still-applicable reporting, documentation, and audit requirements of those exempt activities;

4. All DOJ actions, reviews, comments, and memos should have been reviewed, considered, and implemented with the Supreme objective of protecting the Constitution, even against domestic enemies;

5. Specific legal counsel assigned to DOJ had a personal interest, opinion, view or position on how the legal exemptions would or would not be properly enforced, complied with, or properly administered within the Executive Branch, while still properly defending the Constitution;

6. There are some classes of documents which are not forever shielded; and that even through they are attorney work-products, are subject to "inevitable discovery," especially when they are final drafts of that memo, discussion paper, or legal review inside DOJ;

7. A proper legal counsel, review, and advice would properly form a plan, program, legal memo with the above in mind when drafting the memo, crafting the language, considering the options, and ensuring there is a proper legal compliance program to properly put that requirement into force;

8. Certain documents related to these discussion topics -- and the final DOJ decision related to that exemption delegation -- were crafted after the AG decision, and are post-decisional, and cannot be properly shielded as attorney "work" products;

9. The documents were crafted in an age after Nuremberg where it was known, or should have been known, that there are some classes of offenses that do not have a statute of limitations.  Without a perpetual shield to investigations of some classes of war crimes because there was no statute of limitations for war crimes, DOJ legal counsel knew or should have known that there was never a bonafide belief that some documents would be "forever" shielded when those documents were crafted, created, or linked with alleged plans, procedures, decisions, or other governmental-contractor-agent actions to breach the laws of war.

Part of the oversight issues related to internal DOJ conflicts:
Mr. FINE. We initially consulted with the Public Integrity Section. But before there was a prosecutive opinion by the Public Integrity Section, we decided that because of the Public Integrity Section's connection to the Criminal Division, it would be better to send this matter to the U.S. Attorney's Office.

Source

Analysis The DOJ personnel charged with reviewing issues also work for the same Criminal Division which is delegated authority to grant exemptions. Fox. Henhouse.

Criminal Division is important because CIA GC Rizzo pointed to CrimDiv review in re DOJ OLC legal memos:
Rizzo responded to Helgerson: "Based on what Chertoff told us when we gave him the heads up on this last week, the Criminal Division's decision on whether or not some criminal law was violated will be predicated on the facts you gather and present to them."  Source: Page 97 of 289
Exemptions: Contractor Liablity re DOJ Operations (FISA violations, Fast and Furious)

It's important to see an important element to these exceptions: Contractors are, or could be, liable for breaches of the law, as were some Telecom concerns re FISA breaches.

Similarly, with Fast and Furious, gun dealers were concerned that these exceptions were putting them at risk of lawsuit.

Email from cooperating gun dealer: "For us, we were hoping to put together something like a letter of understanding to alleviate our concerns of some type of recourse against us down the road for selling these items. We just want to make sure we are cooperating with ATF and that were are not viewed as selling to bad guys."

Source: P. 7 of 11

Analysis

In re FOIA and federal rules of evidence discovery, the DOJ-CrimDiv-(apparently)-granted legal exceptions to FISA, Geneva, and other federal statutes are lines of evidence outside government control: Contractor and non-government documents raising concerns about the legality of that activity; requests for immunity or protection; and government responses to those documented concerns.

AG Briefings

This section of the blog contrasts what we know Holder was told; vs what the statute requires AG and Congress to be told.

Contrast the following (in re briefings, reports to AG and/or Congress):

A.  What the statute requires;

B.  What actually happened;

C.  What exemptions existed; and

D.  How those exemptions did or did not affect the required reporting.

1. Briefings to AG

According to the FBI, the Field Intelligence Group (FIG) provides reports to the AG:

FIG Reports to AG Re Border Security, "Fast and Furious Intelligence"

"They compile the information into reports and disseminate them to FBI Headquarters, other law enforcement and intelligence agencies and key decision makers, including the President and the attorney general. (Dissemination.)"

Source

Simpson, with the ATF, was assigned to the FIG, run by the FBI.   [Refs: WaPo: "At the federal level, the FBI operates Field Intelligence Groups (FIGs) in Phoenix. . ." FBI Partnerships: "The Phoenix Field Intelligence Group (FIG) is a team of FBI agents and analysts who provide a full range of intelligence support on terrorism and criminal threats." And, "Special agents are assigned to a Field Intelligence Group (FIG), consisting of intelligence analysts, surveillance specialists, language analysts and other special agents."  See PPT Slide, quality of BATF/FBI involvement with Arizona Counter Terrorism Information Center (ACTIC), 6, 26 of 28 (Warn: PPT Slide, direct link)]

One way of discrediting Holder's statements -- that he "didn't know" about the FIG-connected intelligence re "Fast and Furious" -- relates to event planning. This document shows the information-intelligence collection and sharing.

Note this excerpt:

Intelligence functions—before, during, and after an event—are critical for event security. In addition  to drawing on local and state intelligence resources, many law enforcement agencies receive support  from the FBI’s Joint Terrorism Task Forces (JTTF) and Field Intelligence Groups (FIG). The Secret  Service may also assist with intelligence on dangerous subjects who have threatened public officials.  

Source: Planning and Managing Security for Major Special Events:  Guidelines for Law Enforcement, March 2007

For the sake of discussion, if Holder's assertion is true, and he "didn't" know, this means that the communication between local-state partners within the FIG is in question, raising doubts about the adequacy of intelligence collection and counter intelligence for national events.

However, this "gap" in national capability doesn't exist, otherwise Congress would have changed something to improve event-planning near the District and improve protection for public officials.  That hasn't happened. Thus, the only reasonable conclusion is that the AG and President -- both -- were satisfied with the FIG-reporting and exception reports related to "Fast and Furious".

It remains unclear whether the Chinese were or were not satisfied with the reports they reviewed when they hacked into the White House Military Office communications office.

FIGs were established in 2003, before Holder became AG.

However, it doesn't make sense to complain about "Fast and Furious" program while receiving intelligence from that operation.  Despite an AG reporting requirement to Congress about exceptions, it's unclear whether Congress is or isn't given enough information about the source/program providing that information.

The disclosures show the Phoenix FIG was involved:

Text: "By December 18, 2009, the case that became Fast and Furious had expanded to include 15 interconnected straw purchasers known to have purchased 500 firearms."

FootNote 6: E-mail from Kevin Simpson, Intelligence Officer, Phoenix Field Intelligence Group (FIG), ATF, to David Voth (Dec. 18, 2009).

Source

Also, there's another reference in the Joint Issa-Grassley Report to the Phoenix FIG, dated 2011, one year after Holder was informed of Fast and Furious
Text: "Avila’s purchases would eventually total fifty two under Fast and Furious."

FN 52: Chart of “Indicted targets”, [Author Redacted], A/GS Phoenix FIG, (Mar. 29, 2011).

Source: 43 of 51

Questions:

The disclosures show us that FIG (Phoenix) was emailing details in 2009.  There should have been time for those 2009 FIG-connected-emails to have been incorporated into the 2010 briefings to Holder.

A.  What was the AG doing with the reports from Phoenix FIG re "Fast and Furious intelligence"?

B. How was this information and intelligence gleaned through Fast and Furious disseminated to Members of Congress?

There's evidence Holder was briefed on other activities -- not just Fast and Furious -- in 2010, two years ago. [h/t ]  It remains to be understood how these "other programs" square with the exemptions the US government, not just DOJ, has been operating since Alito's Memo, especially after 9-11.
Issues:

(A) Was the information provided to AG part of required reports; or

(B) Were AG and Congress, in fact, in the dark on "other" programs; or

(C) Are there "other programs" which AG and/or Congress know about, but have not publicly demanded information; and

(D) How do these "known, but not disclosed" programs relate to (i) FISA-violations; (ii) NYPD-like domestic surveillance activities; or (iii) "other programs" affecting the rights of the public?

2. Some Statutory Reporting Requirements

28 USC 530D requires the AG to file a report with Congress once he decides not to enforce a law.  It's unclear, when Fast and Furious was first created and exempted, what form, if any, Congress was notified of the exceptions relevant to the Fast and Furious operation.

Moreover, given that nexus of confusion/ambiguity in what really happened between DOJ and Congress, how is that "ambiguity" possibly exploited to avoid proper oversight of other questionable, domestic activities where the public interest is greater than the national security objective.  

It cannot be strongly argued that the "public interest" demands silence or suppression of truth related to domestic violations of the law by the US government, agents, contractors or others.  We do not properly defend either the Constitution, the public, or "national security" when the laws are (certainly) breached to achieve a questionable (speculative) objective.  The days of permitting, supporting, or condoning breaches of the law to achieve a "superior" objective was (supposedly) cast to the winds with the Republic, especially in the victory over Nazism during WWII.

It may be in the "experience" of "professional" law enforcement officers that certain conduct must be ignored to achieve a greater end; but it is equally within the experience of the public that when law enforcement abuses continue without proper oversight, the Constitution, not just the public suffers.   That is not permissible.  If this abuse by law enforcement wasn't true, an issue, or of a concern, remind FBI agents explain why they are required to visit the Holocaust Memorial: To remind the agents the risks when law enforcement does abuse its power.

That reminder appears to have been lost on the current leadership within the Department of Justice. DOJ's continued operations, functioning, and legal authorities depend on Congressional grants, which can be revoked. Where those abuses are not properly revoked by Congress, the public retains the power and option to revoke the powers granted to the Federal government and regrant or redelegate them in a manner that is more protective of the rights and powers of the People.

Without proper oversight, DOJ is asking the public to choose between FBI-condoned abuses and the speculative threat of terrorism. That is a false choice. The real choice is between defending or not defending the Constitution.  That defense may require the prosecution or impeachment of public officials, even your friends.  Without either an impeachment or prosecution, the US has a difficult time it has embraced the lessons of the Founders, nor plans to use the tools the prosecutors at Nuremberg shamed the Nazi Judges for refusing to enforce: The rule of civilized law over government, leaders, military and police forces and man.

It's unclear how a review committee related to Criminal Division exceptions, possibly similar to oversight of FBI operations { see, kw=[ E. Annual Report of the Undercover Review Committee ] }, would have provided a report to the AG re Fast and Furious.

Annual Review Committee Report to AG

(2) On an annual basis, the Committee shall submit to the Director, the Attorney General, the Associate or Deputy Attorney General, and the Assistant Attorney General in charge of the Criminal Division a written report summarizing:

    (a) the types of undercover operations approved and disapproved together with the reasons for disapproval;

    (b) the major issues addressed by the Committee in reviewing applications and how they were resolved; and

    (c) any significant modifications to the operations recommended by the Committee.

Source

Analysis

This annual report applies to the FBI. It's unclear whether the Criminal Division has a similar type of reporting requirement related to exempt programs like Fast and Furious, or other activities linked with DOJ, State Department funding, or White House direction.

In 2002, ATF remained included in the reporting requirement because it was part of the DEA:
Undercover Investigative Operations Conducted by Federal Bureau of Investigation or Drug Enforcement Administration; Annual Report to Congress; Financial Audit

Pub. L. 111–117, div. B, title II, §207, Dec. 16, 2009, 123 Stat. 3139, provided that: “Notwithstanding any other provision of law, Public Law 102–395 section 102(b) [set out below] shall extend to the Bureau of Alcohol, Tobacco, Firearms and Explosives in the conduct of undercover investigative operations and shall apply without fiscal year limitation with respect to any undercover investigative operation by the Bureau of Alcohol, Tobacco, Firearms and Explosives that is necessary for the detection and prosecution of crimes against the United States.”

Source

Financial Audits: Some sort of oversight existed...right?
Issues:

A. Are financial audits completed on programs, activities, or "other things" not briefed to AG and/or Congress?

B. How was "Fast and Furious" organized without a financial audit report provided to either AG and/or Congress?

C. What "other programs" exist which, like Fast and Furious, appear to have been developed without a notification to Congress or the AG through either briefings, reports, or exception reports?

D. Despite what the AG and Congress are publicly saying, were they both, in fact, properly notified of statutory exemptions; and have they, indeed, been provided with the information related to Fast and Furious and "other programs" which are or would be matters of significant public interest, outweighing the (lesser) government claim of secrecy, privilege, or exception to reporting?

In other words, why does Congress focus on whether the AG is or isn't providing information in response to Congressional requests; and not going after the AG and others for failing to provide this information in the form of a report -- as required -- under the statute?

We're not convinced that the argument -- "Congress isn't referring this to DOJ for prosecution, because DOJ isn't going to enforce the law against its own" -- stands much water:  Because, under the laws of war, the DOJ does make the case that it "can" enforce the laws of war against it's own.  

Rather, by refusing to hold the DOJ to statotory reporting requirements and only selectively focusing on whether the AG is or isn't responding to Congressional requests, we're sending a mixed signal to the public and world.

We refuse to subject DOJ personnel to statute or impeachment, while claiming that those statutes have force of law, even for government agents, personnel, and contractors.
 This inconsistency tends to lower public confidence that the US judicial system is fair, impartial, and equally applied.

Consider the statute:

“(5)(A) The Federal Bureau of Investigation or the Drug Enforcement Administration, as the case may be, shall conduct a detailed financial audit of each undercover investigative operation which is closed in fiscal year 1996—

“(i) submit the results of such audit in writing to the Attorney General, and

“(ii) not later than 180 days after such undercover operation is closed, submit a report to the Congress concerning such audit.

“(B) The Federal Bureau of Investigation and the Drug Enforcement Administration shall each also submit a report annually to the Congress specifying as to their respective undercover investigative operations—

“(i) the number, by programs, of undercover investigative operations pending as of the end of the one-year period for which such report is submitted,

“(ii) the number, by programs, of undercover investigative operations commenced in the one-year period preceding the period for which such report is submitted, and

“(iii) the number, by programs, of undercover investigative operations closed in the one-year period preceding the period for which such report is submitted and, with respect to each such closed undercover operation, the results obtained. With respect to each such closed undercover operation which involves any of the sensitive circumstances specified in the Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations, such report shall contain a detailed description of the operation and related matters, including information pertaining to—

“(I) the results,

“(II) any civil claims, and

“(III) identification of such sensitive circumstances involved, that arose at any time during the course of such undercover operation.

Source

28 USC 533 does not expressly include this reporting requirement.

Consider this Fast and Furious timeline related to the Asst AG for Criminal Division, and note the linked document:

March 10, 2010: A memo from Assistant Attorney General for the Criminal Division Lanny A. Breuer authorizes a wire tap application as part of Operation Fast and Furious. The memo on the authorization was sent to Paul M. O’Brien, director of the Office of Enforcement Operation for the Criminal Division and to Emory Hurley, Assistant U.S. Attorney for the District of Arizona and the lead prosecutor in the operation.
Under the "exemption"-theory, and delegation to AsstAG for CimDiv, those exemptions in "Fast and Furious" appear to relate to the electronic interception and physical movement of information, resources, and people.  

It's possible, and likely, that the AG was not directly involved with the original Criminal Division exemption decisions re ATF and "Fast and Furious."

CrimDiv had likely approved exemptions not just for DEA but other DOJ-entities working with intelligence assets: NSA, CIA, ODNI, SIGINT, NRO, and allied special forces units, as audited here in this assessment report.

Other AG Authorities Delegated to Criminal Division

The Alito memo, in part, points to different classes of exemptions falling under the AG. One of those exemptions applies to how the AG delegates authority to the Criminal Division re ATF operations.

Another type of exemption under the Criminal Division relates to liaison programs with overseas prosecution and law enforcement training.  The information below points to, in part, methods of recruitment, deployment, and operations which units, personnel, and contractors indirectly assigned to DOJ -- but funded by the State Department and other government agencies -- were used to conduct harsh interrogation, rendition, and other alleged breaches of Geneva.

OPDAT: Bridge Between "Fast and Furious" Documents and other Special DOJ Programs

As "independent" confirmation of this theory -- that there is a connection between AG's non-response and US national security interests -- there are some interesting FOIA responses re "Fast and Furious".

Note the signature block, page 6 of 21:

Acting Regional Director  
Latin America & Caribbean
OPDAT
Criminal Division
US Department of Justice
Note this within that signature block:
OPDAT
That is an important office symbol, as discussed here.

Now, notice the URL to that link in your browser:

[URL: justice.gov criminal . . .opdat . . .worldact-programs . . .ctu . . . ]
Notice the title of the content at the link:
DOJ/OPDAT Counterterrorism Programs
Several things to notice with the URL, and content at the link:
A. It's part of the Criminal Division,

B. It's part of the international division, and

C. It's part of the global war on terrorism.

All those factors mean one thing: There is disclosed, within the disclosed-redacted documents, a link between (1) DOJ's international terrorism-fighting efforts; and (2) a national security interest to prevent disclosure of details related to world-wide intelligence gathering to support combat operations.

28 USC 509A creates entities for intelligence gathering purposes.  Those methods, it appears, includes rendition, FISA violations, and Fast and Furious, not just OPDAT and ICITP activity overseas.

"OPDAT" is connected, in part, to both the Fast and Furious FOIA responses; and the Counter-terrorism programs because OPDAT is part of a larger DOJ connection with intelligence gathering in support of larger, multinational combat-support operations.

Because it's part of the Criminal Division, OPDAT uses authorized exemptions to do things that breach federal statute.  It remains how those "authorized" breaches do or do not affect matters of interest to United States citizens, regardless their location.

Rendition: Intelligence collection, OPDAT Interest Area

That connection between OPDAT and counter-terrorism is strengthened when we look at documents from Libya. At this link, page 27 of 49: Shows how US and allied powers worked with the Libyans to conduct rendition with the assistance of Libyan intelligence.

OPDAT personnel would have been involved, interested, or aware of the details related to this intelligence gathering effort. It defies reason that OPDAT would be connected only with Egypt, but not Libya.

The listed aircraft [see page 27 of 49, N313P] matches the tail number used for rendition.

This suggests that through OPDAT, someone would have known about an exemption related to the disclosure of a covert operation related to personnel, resources, arms, or other things.

It remains to be understood whether an FBI "fly-team" was involved with the interrogation in Libya.  In two years, they deployed over 70-times.

The Alito Memo was written in 1986. The rendition memo from Libya is October, 2003, almost twenty (20) years after Altio supported delegation of AG authority to DOJ's CrimDiv issues related to exemptions to federal law.

And now you know of a possible reason why US interests are under attack in North Africa, and the Middle East:  OPDAT is connected with the following countries:

DOJ: "Through the Turkey Program, OPDAT has also hosted regional exchange programs focusing on counterterrorism and border security for officials from Egypt, Jordan, Lebanon, Greece, Bulgaria, Albania, and Macedonia."

Source

We believe, in part, one reason for the attack on the US consulate in Libya was the US connection with the rendition program in Libya; and the revelations that the US was connected with the disclosed DOJ-exemptions indirectly connected with OPDAT and the diplomatic relationship with Libya after 9-11 in re rendition and abuse of prisoners.

Update: Strengthening the link between OPDAT overseas operations, statutory exceptions, and intelligence operations is this tidbit:

Update

"Although ICITAP and OPDAT are part of the Department of Justice, their programs are funded by the Department of State."

Source

Analysis

State Department funding is important because of the Taft Memo [Feb 2nd, 2002], DOS GC, in re Geneva Conventions.  Despite money going through State, there were still legal restrictions on how those funds could be used; and State knew or should have known of these legal restrictions in how Geneva conventions were enforced despite US exemptions in intelligence operations.

ICITAP, as an entity under DOJ, has an important connection with the White House: It is a directly-funded entity, taking orders not from DOJ, but the National Security Council, President, and Office of the Presidency:
"Although ICITAP is part of the DOJ, ICITAP programs may be instituted at the request of the National Security Council and the Department of State (State). ICITAP does not appear as a "line item" in the DOJ budget. Rather, the majority of ICITAP funds come from project-specific funding provided by State and the U.S. Agency for International Development." Source

Analysis

To hide a White House connection with NYPD domestic surveillance, a possible funding stream isn't necessarily through the domestic intelligence operations, but through the US overseas budgets at the State Department, USAID, or through an NSC-sponsored budget item elsewhere.  And "budgetarily" hidden from disclosure because it is statutorily exempt.

Indeed, Rumsfeld, when asked about funding for contractors, pointed to AID. [Source: See 28 of 77 for this exchange]:

HARKIN: I'm quoting from this AP article. I said the AP article that came out on May 7th. That's all I'm quoting. So my question again is -- this has to do with appropriations -- how much money is going to private contractors? We can't seem to get an answer to that -- in Iraq. How many people are we talking about under these private contractors? Who screens them? Who approves their contracts? I guess my bottom line is, who's responsible? Who's responsible for all these people?

. . .

Rumsfeld (later) responds:

"The Army is the program management office executive agent. I would not say that the Army would be the one making the decisions as to what contracts ought to be let for what purposes. That would be the Coalition Provisional Authority. But then they delegate to an existing institution, the United States Army, to manage the contracting of it. In some cases it's been the Corps of Engineers. In some cases it's been the Agency for International Development. In some cases -- the way our government is organized is that those responsibilities flow down different roads."

This is a sample of the dollars flowing through AID in re Iraq. Note the large dollars make it more difficult to trace how funds could be (or are) siphoned:
DOS Cable: "IN ADDITION, THE U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT IS DONATING $206.4 MILLION IN NON-FOOD AID, INCLUDING $62.5 MILLION FOR EMERGENCY SUPPLIES AND PROGRAMS, $80 MILLION FOR RECONSTRUCTION, $3.9 MILLION FOR TRANSITION INITIATIVES
AND $60 MILLION FOR WORLD FOOD PROGRAM CONTINGENCY PLANNING."  Page 2 of 4.
The Taguba report [p. 170 of 234] identifies the mission, showing how the USAID can funnel money for "transportation" requirements for the President using contractors:
UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT
10-73. The USAID administers the President's authority to coordinate assistance in response to disasters, as declared by the ambassador within the country or a higher DOS authority. The USAID is authorized to provide assistance, notwithstanding any other provision of law. This authority allows
the USAID to expedite interventions at the operational and tactical levels
using NGOs
and other relief sources. The USAID-
• Organizes and coordinates the US disaster relief response.
• Responds to requests for disaster assistance.
• Initiates procurement of supplies, services, and transportation.
Further, OPDAT was the subject of a 1997 audit, with questions about management, funds management, and legal compliance questions. Note the delegation from the AG to CrimDiv:
Update:  "In 1994, the supervision of ICITAP was transferred from the Deputy Attorney General's office to the Criminal Division."

Source

OPDAT organizes conferences for international law enforcement:
Update:  In December 1996, Harris was hired as an OPDAT consultant to organize, moderate, and evaluate three conferences that OPDAT was planning to hold at the International Law Enforcement Academy (ILEA) in Budapest, Hungary, and to develop curriculum for other OPDAT training programs.

Source

Do not be fooled: What is happening in the Middle East isn't narrowly a work of "outrage" by Muslims, but it is fueled by something deeper and more specific: A backlash against the US for it's failure to fully conduct combat and intelligence operations within the norms of civilized society.

One issue that's surfaced is a question of whether the AG has or hasn't fully provided Congress with documents. However, under Congressional approvals, the United States leadership, including the President, is immune to prosecution for wiretaps when they are done in the interests of national security.

An effort to track gun-running between the US and Mexico could, in theory, be part of a larger US government effort to monitor how terrorists might have been planning to exploit weaknesses in the US border control.

As with the FISA violations, where the President established a secondary review, outside FISA court knowledge, it appears DOJ created a covert operation, outside the law, as permitted, to achieve a national security objective.

If this is true, it may explain, in part, why Holder hasn't responded to the subpoena: He doesn't want to disclose other, similarly-situated operations, like those within DEA, that are also delegated, and operating within approved exemptions.

Once the issue of "exemptions" surfaces, and Congress attempts to "find" those documents, knowing -- or should know -- that those "exemptions" are "authorized", it raises the question: Is the request for documents of the AG one that Congress really wants the AG to fully respond?

I don't think so.  Because to really respond to the questions about "who knew," would attach with that response information related to other exemptions which, authorized by statute, are related to national security; and the dates that Members of Congress on the Intelligence Committee were, or should have been, notified of those details.

Those "other operations" have -- as of now -- an unknown connection between the US government, foreign powers, covert agents, and US intelligence operations worldwide.

And Holder cannot publicly say this.  And Congress knows he cannot say it.

Update:  We're not surprised there was -- and remains -- ambiguity within agencies connected with the Criminal Division -- including ATF, and other agencies working with the intelligence community:

DOJ IG: "We also found that, to some extent, staff in ICITAP and OPDAT believed that their offices were somehow different and exempt from the rules that applied to employees in the rest of the Department of Justice."

Source

Update:  What makes the OPDAT-connection striking in re "Fast and Furious" is that in 2000, then DAG Holder -- now the AG -- testified regarding the IG investigation, and commented on management -level issues which appear to have resurfaced in the Fast and Furious IG report.
Update:

Holder, 2000: "I am here today with other officials from the Justice Department to testify about the Department's response to the Inspector General's report on misconduct and mismanagement in the Department's ICITAP program, and also with regard to OPDAT and the Criminal Division's Office of Administration, which was issued about a week or so ago."

Source: STATEMENT OF ERIC HOLDER, DEPUTY ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE

Holder after 2000, would have been aware of the delegation-issues between the AG, Criminal Division, and ATF; and about the management-level concerns with OPDAT-like operations were conducted with inadequate legal compliance and oversight issues.

What a nexus. It remains to be understood how AG Holder applied, should have applied -- or did not apply -- lessons from 2000 -- when he learned in 2010 the Fast and Furious operations, their connection with the ATF, combined with his knowledge as DAG [?] -- or should have known -- that CrimDiv was authorized to permit ATF exemptions to statute.

Most likely, Holder allowed the covert operations, acting outside statute, to continue after 2000, and didn't change his oversight as AG.

Update:

The following excerpts are from the 2011 Counter-drug policy, and you'll see why the vague statutory compliance-issues come into play: There are many agencies, not just DOJ, involved and exchanging intelligence. These agencies have access to the same intelligence files NYPD does in re domestic surveillance.

3.Increase judicial cooperation with Mexico

A. Utilize Mérida Initiative activities and other established programs to build cooperation

The Mérida Initiative includes several programs to improve cooperation between U.S. and Mexican counterparts, including through programs related to prosecutorial capacity building, judicial exchanges,and enhancing investigative capacities. Implementation of these programs will increase the capacity for complex investigations and prosecutions on both sides of the border against narcotics trafficking and related arms smuggling/trafficking, money laundering, and corruption. New training initiatives wil lbe developed as circumstances evolve. In addition, U.S. Government components engaged in Mérida Initiative activities should provide regular updates on those activities to law enforcement agencies along the Southwest border.

Action: DOS, DHS, DOJ/OPDAT, DOJ/USMS, TreasuryOFAC, Treasury/OTA

B. Expand bilateral enforcement and prosecution efforts with Mexico

The Controlled Substances Program (CSP) and Illicit Drug Program (IDP) were developed by ICE and CBP with Mexico’s PGR and initiated in an effort to deter criminal organizations operating on both sides of the border from utilizing the ports of entry for smuggling. The programs have fostered a stronger U.S.partnership with Mexican law enforcement and heightened collaboration with Mexican prosecutorial agencies with the goal of applying simultaneous investigative and prosecutorial pressure on both sides of the border. Originally implemented as a pilot program in Nogales, Arizona in October 2009, the CSP created a bilateral enforcement effort to combat the smuggling of controlled substances. The success of the initial CSP program led the PGR and ICE to start the IDP in El Paso, Texas, in 2010. Opportunities to expand both initiatives to new sites to enhance bilateral cooperation will be explored.

Action: DHS ICE, DHS/CBP, DOJ/DEA, DOS.

4. Attack corruption involving domestic public officials along the Southwest border

A. Conduct integrity awareness training for U.S. law enforcement agencies working along the Southwest border

Agencies will conduct and enhance integrity awareness training for the Southwest border law enforcement workforce to ensure each employee is aware of the responsibility to report allegations of misconduct. This training also will reinforce core values in employees and thereby assist in preventing corruption in the workforce.

Action: DHS/ICE, DOJ/FBI, DHS/CBP, DOJ/DEA, DOJ/ATF, Department OIGs, ONDCP/HIDTA

Source: Page 28.

There is little reason to believe DOJ employees would take the training seriously -- a duty to report allegations of misconduct -- when there is an official policy to exempt the statute.

Wikileaks Cables

Note the following on the cable, 06BAGHDAD1960:

RUEAIIA/CIA WASHDC PRIORITY
. . .
RHMFISS/WHITE HOUSE COMMUNICATION S CENTER WASHINGTON DC PRIORITY
. . .
RUEAWJA/DEPT OF JUSTICE WASHDC PRIORITY
. . .
TO RUEHC/SECSTATE WASHDC PRIORITY 4991

Source

Note this cable tag:
DOJ/CRIM/OPDAT
The above, in part, may explain why OPDAT was on the distribution list for a State Department Cable re prisoner abuse:

1. OPDAT was funded through the State Department; and

2. As part of an effort to exempt operations from oversight, prisoner detention programs were assigned, in part, with OPDAT connections.

Conclusion

Update:  There is a method for the White House and National Security Council to fund, through overseas development or the state department budgets, domestic surveillance operations coordinated between DOJ, other federal-level intelligence activities and NYPD.  Taskings would appear to flow from the White House and NSC through the ODNI to NYPD.

DOJ and ATF personnel appear well-connected to US government agencies involved with covert operations, intelligence gathering; and are authorized, in some cases, to act outside statutory guidelines.  

We believe personnel from the intelligence community, not limited to personnel connected with the CIA's directorate of operations, conduct liaison with ATF, as was done with NYPD re domestic surveillance.  

We believe ICITAP director Janice Stromsen was removed because she voiced concerns the CIA was using DOJ personnel and resources under Alito's statutory exemptions involving the Criminal Division.

The AG refusal to provide information in writing publicly is an effort to thwart enemy knowledge of other US government efforts designed to defend the United States, gather intelligence, and support warfighters.

People may die if the AG provides, in writing, information Congress already has.

However, we believe that further analysis of the exemptions would disclose important information related to US exemptions related to compliance with federal statutes which have bearing on US rendition operations, FISA violations after the Immunity Act of 2008, and additional Geneva breaches.

A can of worms, indeed.

Congress doesn't have an honest interest in getting Holder to publicly respond because Holder has an interest, with the President, to not disclose other national security-related operations.

Whether those operations are or are not lawful, under the laws of war, remains a matter of international criminal law.  Nuremberg establishes that superior orders cannot be relied upon as a defense for violating the law or imposing abuses.

It remains unclear what other "authorized exemptions" the Congress knows the US government is using; and how these activities relate to the conduct of domestic intelligence gathering, combat operations, law enforcement detentions or ODNI intelligence analysis.

The President thought it fit enough to inform Congress of FISA violations and prisoner abuses.  

However, the FISA Court is not required to be notified when the US conducts "foreign intelligence gathering" using intercepts which are "substantially" directed toward foreign powers.

Intelligence gathered against American citizens can be retained if it is "unintentionally" gathered, and there is no cause of action if the information is not used during trial or publicly disseminated.

Recommendations

1. To learn more about the documents related to "Fast and Furious":

A. Ask the Senate/House Intelligence Committees when they were notified of those "other" operations and exemptions. Those activities may include wire-tapping, outside what the FISA Court knows about, and beyond what the Congress or Courts will either impeach or prosecute; and

B. Track how DOJ responds to this FOIA lawsuit re "Fast and Furious" documents.

2. Look for signs that DOJ and other intelligence/covert entities cooperated with NYPD and other law enforcement through these statutory exemptions re domestic surveillance.

Other Information

Update:

CrimDiv is important because the prisoner abuse documents show that CrimDiv did provide an input.

Leiter, who forwarded the CrimDiv input for the DOJ statement ["draft DOJ Statement on Interrogation in War Against Terrorism (sp?)], authored, "A Comparison of the Specific Deterrent Effects of Official Sanctions Across Drug and Non-Drug Cohorts of Offenders in New York City."   The documents show a US government interest in detention of Juveniles at Guantanamo.

Leiter's name appears with the Office of Juvenile Justice and Delinquency Prevention.  In 2008, Leiter was with DOJ's "National Institute of Justice, Office of Justice Programs" providing grants for research.

Note the type of research at TD32, where data is analyzed to formulate estimates, policy recommendations.

TD32.3 A Legal Impact Study on the Sentencing of Drug Offenders in New York City: Estimating Specific Deterrence with Cox Regression Jordan H. Leiter --- US Dept. of Justice, Ntl. Inst. of Justice, 810 7th St. NW, Washington, DC 20531 , (leiterj@ojp.usdoj.gov)

A Cox survival model tests the hypothesis that incarceration specifically deters 23000 drug and non-drug offenders convicted in New York City, by estimating the relationship between length of sentence and likelihood of rearrest, controlling for prior record, crime severity, age, ethnicity, gender, casetime, and period. Results question the hypothesis.

Source

Statistics are used in DOJ, as disclosed in the Intelligence Assessment reports. [See document 39 for indications that statistics is something DOJ personnel have access to; and raises questions about the "inability" to estimate total breaches of FISA 702.]

Further, it remains unclear where this type of Justice Program analysis exists related to CrimDiv, ATF, and the impact of loose statutory compliance related to intelligence operations, prisoner detention, and other activity after 2001 re OPDAT, State, and NYPD domestic surveillance.

Using the Cox survival model, there could be -- or should have been? -- some analysis within the DOJ related to the risk of future litigation re CrimDiv waivers to ATF.

Afterward

There is a culture of secrecy and statutory exemptions within the US government. One example is how the AG delegated authority to the Criminal Division so that ATF, OPDAT, and ICITP programs are not bound to law.

It appears the culture of exemption was improperly transferred from programs to individual actions.  However, Nuremberg in re rendition and harsh interrogation does not provide for an adequate defense when superior orders "justify" individual actions which they knew or should have known were improper under Geneva.

By improperly extending statutory exemptions from general programs to individual actions, it appears the US government improperly created a climate which nurtured, if not overtly supported, improper activity under both the laws of war and domestic statutes including FISA.

Judicial Cannons

Despite these exemptions which Alito provided guidance, it remains unclear whether Supreme Court Justice Alito has or hasn't properly recused himself on related exemption issues: Domestic surveillance, prisoner treatment, rendition, and other alleged breaches of FISA and Geneva which appear to be linked to the US government in re exemptions.  

As legal counsel to the President and working for DOJ OLC, Alito was in a position to understand how the legal exemptions would or would not apply to other US government programs.  It appears improper for him to review cases related to original exemption-theories floating around the Executive branch, especially when those exemptions appear to have improperly breached FISA, Geneva, and other standards of conduct.

As a member -- now -- of a different branch of government, it remains unclear whether Justice Alito can properly review the legality of those exemptions, especially when the exemptions appear to have condoned questionable breaches of the laws of war.  We know of no legal mandate that compels a sitting justice to hear cases which he, as an attorney, was instrumental in creating a nexus for questionable conduct.

Independent review is required to examine how to properly oversee exemptions, especially when individual justices have a personal interest in the original legal exemptions.  This question -- the propriety of a sitting justice connected with DOJ reviewing programs likely exempt from statute; yet it remaining unclear whether (a) those exemptions and (b) activities were proper from the perspective of the Judiciary -- applies to Chief Justice Roberts.  

We've shown through open documents linked with Fast and Furious, that there is a "culture of exception" individual contractors, agents, and government personnel embrace as a personal right, almost immune to independent, judicial review.

It appears there is an NYPD-like liaison between DOJ and programs linked with rendition, prisoner abuse, and alleged breaches of Geneva.  It remains unclear how personnel assigned to these "exempt" DOJ-connected activities have now been assigned to NYPD or other domestic law enforcement units.

There is the real prospect that there are "other" programs under DOJ which are unrelated to Fast and Furious, rendition, prisoner abuse, and alleged breaches of FISA and Geneva. Given the demonstrated White House interest and involvement with exempted activity, its likely the information connecting the Office of the Presidency to these "other" programs is clouded, but does exist.

Once that information is identified, several legal questions come into play:

A. Is there a proper balancing test between (a) the Assertion of State Secrets; against (b) the inevitable discovery rule, where, even if evidence is unlawfully obtained, that evidence would be "inevitably" discovered because of the non-existence of a statute of limitations re war crimes?

B. To what extent can an assertion of "state secrets" or "privilege" trump a bonafide judicial interest in examining evidence related to alleged breaches of the laws of war;

C. What forum exists to properly review in a judicial forum where the party which holds the information (and can destroy it) is both a government agent controlling that information; while at the same time it acts as a legal representative for the defense?

D. At what juncture does litigation (prosecution, defense) inevitably arise as "foreseeable" compelling a good faith effort of government legal counsel to retain, preserve, safeguard, and prevent destruction of information/evidence that should be retained;

E. What measures should exist to properly sanction government officials, agents, contractors after they destroy evidence after it was foreseeable that that information, document, video, or other evidence would be instrumental/probative in a war crimes investigation?

We are concerned that, in truth, the government's legal "defenses" hinge on (improperly) withholding, hiding, shielding, or destroying information which should be retained; while at the same time not properly preparing to identify, support, and cooperate with a neutral forum where the public interest in judicial independence will properly prevail despite the government's "interest" in destroying evidence, or using questionable legal tactics to avoid a (required) war crimes investigation.

The courts are quick to preach that defendants should have the opportunity to have their defense heard before a judicial forum. That theory, if it is one the government imposes on the people, should be one that the government is willing to subject itself.

However, the double standard -- that of compelling the public to answer for false charges; while the government does not respond to bonafide concerns with FISA and Geneva violations -- tends to undermine public support in the theory that justice prevails in the United States.  Rather, the double standard paints a picture of hypocrisy: One standard for those who breach the law; and a different standard for those who are abused in the name of "protecting" them.

Funding, Oversight

Further analysis is required to understand, in the absence of legal compliance programs, which methods Congressional Staffers and the IGs did use to evaluate whether the exemptions were or were not proper; and in reviewing how those exempt programs did or did not comply with (non-exempt) requirements under the the laws of war and Geneva Conventions.

Article I Section 8 of the Constitution assigns rule-making power to Congress. Attached with the power delegated to Congress comes the exclusive power to approve budgets in the House. Appropriations are only to made according to law.

Once programs are exempt, and programs under DOJ are funded through State, it becomes unclear which Congressional Committee is primarily responsible and accountable for the oversight related to the management, operations, and use of those funds: Intelligence, Foreign Affairs, Judiciary, or Appropriations.

Further, when operations and programs are exempt for "national security" reasons, and those programs indirectly affect the rights of American citizens, it remains unclear who is primarily responsible in Congress for "pulling the leash" to ensure those exempt activities remain under some appropriate oversight.

ICITP appears well connected with prisoner abuses. Likely, there are other DOJ OLC memos the used, requested, or relied on to support the "other" activities, still not disclosed.

A review of previous IG reports shows then-DAG Holder made statements which have bearing on how we review the findings of the Fast and Furious IG report.

A culture of exemptions tends to sideline management lessons and repeat IG findings. Additional discussion is needed to review how (a) the IG reports related to these exempt activities have or have not been dovetailed with (b) changes in oversight and statute or decisions related to judicial appointments.

Updated, Sunday, Sept 23, 2012:

Summary of Updates

1. White House connection to programs directly funded through State to DOJ;

2. Then-DAG Holder's 2000 testimony re IG report re OPDAT reviews, raising further questions about whether he properly applied 2000-era lessons to DOJ oversight as AG re other cross-border operations involving statutory exemptions, and similar operations like "Fast and Furious";

3. Connection between OPDAT and ICITAP;

4. Additional IG-report information showing OPDAT had a special view of its relationship with the law because of direct funding through StateDept to OPDAT;

5. Because of statutory exemptions, indications DOJ conducted, cooperated with, and was involved with domestic intelligence operations, similar to NYPD-domestic surveillance;

6. Multi-agencies connected with DOJ, not limited to Treasury, DHS and State; and in a position to participate in operations and share intelligence re Criminal Division and OPDAT; and

7. Wikileaks Cable showing interest between State, CIA, White House, and DOJ re prisoner abuse.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site