Two leading Republican lawmakers have again voiced suspicions that the FBI is not telling everything it knows about the botched Operation Fast and Furious, in which a gun-tracing attempt by the Bureau of Alcohol, Tobacco Firearms and Explosives was linked to the death of a Border Patrol agent.
Rep. Darrell Issa of California, chairman of the House Committee on oversight and Government Reform, and Sen. Charles E. Grassley of Iowa, ranking minority member of the Senate Judiciary Committee, expressed their skepticism in a letter to FBI Director Robert Mueller, in which they asserted that the FBI has released “very little information” about the Dec. 14 death of agent Brian Terry in a shootout with Mexican bandits in Arizona, and indeed may be withholding key facts.
Their letter prompted Rep. Elijah E. Cummings of Maryland, the ranking Democrat on Issa’s committee, to accuse Issa of trying to “spin this conspiracy theory,” particularly by suggesting that three guns, not just two, that were linked to Fast and Furious were found at the scene of Terry’s death.
Issa’s and Grassley’s letter, and Cummings’ heated response, were just the latest salvos in a war of words over Fast and Furious, in which the ATF tried to trace a gun-running operation through straw buyers, then lost track of many of the weapons that wound up in Mexico.
“Does the FBI believe that a third weapon killed Agent Terry?” Issa and Grassley asked. “If so, what steps has the FBI taken to locate that weapon and what is the status of the FBI’s search?”
The letter asked that materials related to the investigation be turned over by Nov. 2 in the interests of “comity between our separate branches of government.” Issa and Grassley said they are only interested in getting at the truth, not in making “false accusations” against the Department of Justice, as a DOJ spokesman recently asserted.
Comity between the branches of government seems light-years away, at least when it comes to Fast and Furious, which has embarrassed the ATF and its parent agency, the DOJ, and triggered accusations and counter-accusations that show no sign of abating.
The Senate rejected an appropriations amendment Thursday that would have imposed a 25 percent matching requirement for anyone receiving Justice Department grants.
The amendment was part of a proposal offered by Senate Judiciary Committee ranking Republican Charles Grassley (R-Iowa), who said his plan would have built more accountability into the grant process. It was defeated 54-46.
“This amendment is a response to the lack of oversight, accountability, and responsibility for how American taxpayer dollars are spent by grant recipients” he said, adding that the department’s Inspector General has consistently listed grant administration as a problem. It would have required that the IG monitor a larger number of grants each year and would have required DOJ to recoup money from grantees who were on a list of those not eligible to receive grants.
Grassley’s plan also would have prohibited grants to any nonprofit charity that holds money in offshore accounts. Grassley said he had led an inquiry into the finances of the Boys and Girls Clubs of America and found that the organization had $54 million in offshore investment.
But Grassley said his 25 percent matching requirement was causing panic among “special interest lobbyists.”
“This provision mirrors one recently included at a Judiciary Committee markup supported by all Judiciary Committee Democrats and some Republicans,” he said, in a statement. “Matching requirements are often required by grant programs that virtually all members have supported.”
He said the provision was so controversial that he wanted to delete it to ease the passage of the rest of his plan, but that Democrats refused. “This is big money at stake with Federal grants,” he said. “Talk about special interests, the special interests have spoken. Those who oppose my amendment oppose holding grantees accountable for how they spend taxpayer dollars.”
However, Senate Judiciary Chairman Sen. Patrick Leahy (D-R.I.) called for the defeat of the Grassley plan, saying that it would have imposed a one-size-fits-all requirement on DOJ programs. He also said that many grant recipients could not afford the 25 percent matching requirement, resulting in many worthy groups not being eligible for federal programs.
In attempting to prevent a watchdog group from filing a friend of the court brief in support of indicted former Sen. John Edwards, the Justice Department highlighted inconsistency in the federal government’s policy towards the filings, according to an analysis by two lawyers in private practice.
Anthony J. Franze and R. Stanton Jones, lawyers in Arnold & Porter LLP’s appellate and Supreme Court practice group, say that while they have no connection to the Edwards case, they are concerned by how the federal government looks upon amicus curiae briefs filed on behalf of private parties in cases where the government is a party. They called on the Department of Justice to formulate a formal policy on the procedure.
“While a nongovernmental amicus generally must obtain the parties’ consent or leave of court, the United States may file an amicus brief in any case without consent or leave of court,” the two lawyers said in an article written for the Bloomberg Law Report.
“We believe that it is inappropriate for the government to oppose the participation of prominent organizations as amicus curiae in important cases in the federal courts,” Jones said in an email to Main Justice. “And we think the government’s approach in the Edwards case again firmly illustrates the need for a formal Department of Justice policy regarding nongovernment amicus briefs.”
The amicus in the Edwards case was filed by Citizens for Responsibility and Ethics in Washington after a federal judge in North Carolina granted permission for it on Oct. 17. The Justice Department opposed the brief in a Sept. 26 filing.
The watchdog group supports Edwards’ motion to dismiss charges that he illegally used campaign money to conceal pregnant mistress Rielle Hunter from the public eye during his unsuccessful 2008 presidential campaign. Both Edwards and CREW argued that the charges were the result of prosecutorial abuse of the justice system.
In its amicus brief, CREW argued the government is attempting to apply the Federal Election Campaign Act in an improper and unconstitutional manner by stretching the definition of what constitutions a campaign contribution. In a motion for leave to file the brief, CREW said the government had never before opposed the group’s filing of an amicus in support of its position.
The government argued in September that CREW’s proposed brief would not advance the legal arguments in the case and “instead consists largely of conjecture based on purported ‘facts’ gleaned from news articles.” The government added: “[T]here is no place for this form of storytelling in a criminal case.”
Franze and Jones described the government’s opposition as “wrong” and “unusual,” arguing that it was based on the “too narrow and grudging” opinion of Judge Richard A. Posner of the Seventh Circuit. The two described Posner as “the primary proponent of a restrictive amicus standard,” whose theory was subsequently disputed by Supreme Court Justice Samuel Alito while he was a federal judge on the Court of Appeals for the Third Circuit.
The Arnold & Porter attorneys also questioned the notion that the CREW amicus didn’t include “arguments and materials not discussed in Edwards’s motion to dismiss” and, even if it did, “the district court likely will spend more time comparing the two briefs in considering the government’s opposition, than if the government had simply consented to the filing.”
The two lawyers said that the government could avoid a similar litigious brouhaha in the future if the Department of Justice formulates an across-the-board policy on private parties’ amici curiae.
“The Department’s U.S. Attorney’s Manual already requires the Solicitor General’s authorization for the filing of amicus briefs on behalf of the government, but does not address policies concerning nongovernmental amicus,” Franze and Jones wrote. “The Justice Department should update the Manual to provide that the United States should grant consent for timely amicus briefs absent exceptional circumstances or an abuse of the amicus process.”
They added: “The Manual further should require divisions of the Department and U.S. Attorneys to obtain the Solicitor General’s authorization to refuse consent or oppose the filing of such briefs. This policy would help ensure consistency, comport with longstanding government amicus practice, and avoid the perception of ‘viewpoint discrimination’ by the United States.”
A federal judge handling a high-profile public corruption case in Alabama issued a blistering opinion on Thursday, calling key prosecution witnesses blatant racists motivated by a desire to suppress the black vote rather than clean up state politics, as prosecutors had portrayed them.
U.S. District Judge Myron Thompson
U.S. District Judge Myron H. Thompson also delivered a stinging assessment of Alabama politics in his ruling, saying that the racism that still exists there is as insidious as the bribery that was alleged. “Eliminating bribery will treat only one symptom of political corruption in this state. To cure the larger disease, it is essential to address with equal force the politics of racial prejudice and exclusion,” he wrote.
The high-stakes case involves VictoryLand casino owner Milton McGregor, who, the federal government charges, abandoned legitimate lobbying efforts and bribed state lawmakers in an effort to win support for a constitutional amendment that would have allowed electronic bingo machines in the state. The amendment passed the state senate in March 2010, but died shortly after that when the FBI announced its corruption investigation.
Derailing the gambling amendment was the unsavory goal of Republican lawmakers who worked with the FBI, Thompson said. Evidence showed they had decided that having a gambling referendum on the ballot would increase African-American voter turnout, since, they reasoned, blacks tend to support gambling, the judge wrote. And they believed an increase in African-American voter turnout would help Democrats, since blacks tend to vote Democratic, the judge wrote.
One casino owner and two lobbyists pleaded guilty to charges in connection with the probe, while four former state lawmakers, two government employees and two lobbyists were among those who stood trial on the charges.
During a trial in August, other defendants were acquitted on several counts and the jury could not reach a verdict on several other charges. Following the trial, legal observers in Alabama questioned DOJ’s handling of the case. The department has sought a new trial.
The case is being overseen by the Public Integrity Section based at Department of Justice headquarters in Washington, D.C. A year ago this month, Criminal Division chief Lanny Breuer held a press conference to trumpet the charges, calling the alleged bribery scheme “astonishing in scope.”
On Thursday, Thompson issued a written ruling finding that there was a preponderance of evidence that a conspiracy existed and because of that, he said he will allow transcripts to be entered into evidence for all defendants but one. While that decision was victory for prosecutors, Thompson’s questioning of the credibility of government witnesses may not help the prosecution.
As part of the probe, the federal government taped conversations that State Sens. Scott Beason, Benjamin Lewis and Rep. Barry Mask had with defendants and others. At trial, Beason said he approached the FBI after receiving threats that McGregor and another defendant would embarrass him if he didn’t accept bribes. He said he wanted to help get the “bad guys.”
Not so, Thompson said in his ruling. In reality, Beason and the others “had ulterior motives rooted in naked political ambition and pure racial bias,” he wrote. They were motivated by “purposeful, racist intent.”
Thompson referred to one conversation between one of the politicians and another politico, who warned, “Just keep in mind that if a [pro-gambling] bill passes and we have a referendum in November, every black in this state will be bused to the polls. And that ain’t gonna help.”
In another, Thompson said, Beason referred to blacks as “aborigines.”
“Beason’s and Lewis’s political objective undercuts the anti-corruption motive they advanced at trial,” Thompson wrote, saying they “singled out African-Americans for mockery and racist abuse.” Beason later apologized for the remark about aborigines.
However, the judge made it clear in the ruling that federal prosecutors did not condone or participate in racist discussions or behavior.
The Justice Department and the Federal Trade Commission Thursday released the final version of a joint policy statement providing details about how the agencies will enforce antitrust laws regarding Accountable Care Organizations (ACOs).
An ACO is an organization of health care providers that jointly offer services to reduce costs and improve the quality of patient care. Under the Affordable Care Act, ACOs will serve Medicare fee-for-service beneficiaries under the Medicare Shared Savings Program.
Under certain conditions, such organizations could harm competition and lead to lower quality care, the agencies said.
The joint statement makes it clear that the agencies will not challenge as per se illegal a Shared Savings Program ACO that jointly negotiates with private insurers to serve patients in commercial markets if the ACO satisfies certain conditions. “The ACO must comply with CMS’s eligibility criteria and use the same governance and leadership structures and clinical and administrative processes to serve patients in both Medicare and commercial markets. For ACOs that meet those criteria, the agencies will apply a rule of reason analysis in analyzing a potential antitrust violation,” the agencies said, in announcing the policies.
In addition, the agencies said, “he final policy statement also preserves an antitrust “safety zone” for certain ACOs, as described in the earlier proposed policy statement. With some exceptions, safety zone eligibility is based on the combined Primary Service Area (PSA) shares of ACO participants that provide a common service (e.g., the same physician specialty or the same inpatient service) to patients from the same PSA. To fall within the safety zone, an ACO’s independent participants that provide a common service must have a combined share of 30 percent or less of each common service in each participant’s PSA, where two or more participants provide that service to patients in that PSA.”
An Algerian and a Pakistani combined old-fashioned hatred and fanatacism with modern management techniques and computer savvy in trying to foment international jihad, the Department of Justice said Thursday.
Ali Charaf Damache, an Algerian who resided in Ireland, and Mohammad Hassan Khalid, a Pakistani citizen and U.S. lawful permanent resident who resided in Maryland, have been charged with conspiracy to provide material support to terrorists in an indictment just returned in the Eastern District of Pennsylvania, the DOJ said.
Damache, aka “Theblackflag,” 46, is charged with one count of conspiracy to provide material support to terrorists and one count of attempted identity theft to facilitate an act of international terrorism, the DOJ said. Damache was arrested in March 2010 in Ireland, where he is currently being held on unrelated charges, the DOJ said. If the DOJ succeeds in extraditing him, he faces up to 45 years in prison upon conviction.
Khalid, who has an alphabet soup of aliases and is 18, is charged with one count of conspiracy to provide material support to terrorists. He was arrested in Ellicot City, Md., on July 6 and is in custody in the Eastern District of Pennsylvania. If convicted of the charge against him, he faces up to 15 years in prison.
“The indictment alleges that, from about 2008 through July 2011, Damache and Khalid conspired with Colleen R. LaRose, Jamie Paulin Ramirez and others to provide material support and resources, including logistical support, recruitment services, financial support, identification documents and personnel, to a conspiracy to kill overseas,” the DOJ said. LaRose, also known as “Fatima LaRose” and “Jihad Jane,” and Ramirez pleaded guilty to various terrorism-related charges last winter. (Some of their earlier adventures were reported on Main Justice last year.)
Damache, Khalid and others devised and coordinated a jihad organization of men and women from Europe and the United States divided into “a planning team, a research team, an action team, a recruitment team and a finance team,” the DOJ said. Some members traveled traveled to South Asia for explosives training and returned to Europe to wage jihad, the DOJ said. Damache and Khalid also used the Internet to solicit funds for their activities and recruit “brothers” and “sisters,” especially those with European Union passports, the DOJ said.
But the would-be terrorists found time for romance, too. “Paulin-Ramirez married Damache on the day she arrived with her minor child in Europe to live and train with jihadists, even though she had never met Damache in person,” the DOJ alleged, adding that, “While living together in Europe, the couple began training Ramirez’s minor child in the ways of violent jihad.”
