Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, today blasted Attorney General Eric Holder’s defense of the Justice Department’s handling of the alleged Christmas Day bomber.
Holder on Wednesday wrote in a letter to Senate Republican leaders — including Sessions — that he made the decision to bring criminal charges against the suspect, Umar Farouk Abdulmutallab. Holder added that his decision is “fully consistent” with the practices and policies of the federal government.
That did not satisfy Sessions. “I think this letter, in terms of accuracy and professionalism, fails,” Sessions said in remarks at a Senate Judiciary Committee business meeting today. “We’re entitled to better than this.”
Conservative senators have been critical of the administration’s decision to charge the alleged bomber criminally rather than put him in military custody for interrogation. Senators have sent numerous letters to Attorney General condemning the decision to treat Abdulmutallab as a civilian. Read our previous reports on three of the letters here, here and here.
Senate Judiciary Committee Republicans yesterday demanded a hearing with Holder. Panel Chairman Patrick Leahy (D-Vt.) said one is already in the works for March.
Here are some passages from Holder’s letter that Sessions criticized:
- Holder: “I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, with the knowledge of, and with no objection from, all other relevant departments of the government.”
- Sessions: “This statement stands in stark contrast to the testimony of Homeland Security Secretary [Janet] Napolitano, Director of National Intelligence Dennis Blair, Director of the National Counterterrorism Center Michael Leiter, and FBI Director Robert Mueller, all of whom said they were not consulted on the decision. And in fact, it does appear from the letter, if you read it carefully, that the decision was made before they were notified. It had already been made and a lawyer had already been appointed and he’d clammed up.”
- Holder: “Since the September 11,2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States. The prior Administration adopted policies expressly endorsing this approach.” He added: “In fact, two (and only two) persons apprehended in this country in recent times have been held under the law of war. Jose Padilla was arrested on a federal material witness warrant in 2002, and was transferred to law of war custody approximately one month later, after his court-appointed counsel moved to vacate the warrant. Ali Saleh Kahlah Al-Marri was also initially arrested on a material witness warrant in 2001, was indicted on federal criminal charges (unrelated to terrorism) in 2002, and then transferred to law of war custody approximately eighteen months later.”
- Sessions: “These two statements cannot be reconciled.”
- Holder: “In Mr. Padilla’s case, the United States Court of Appeals for the Second Circuit found that the President did not have the authority to detain him under the law of war.”
- Sessions: “He cites the holding of the reversed Second Circuit decision—that the President lacks the authority to detain a U.S. citizen as an enemy combatant on U.S. soil—without mentioning that the Supreme Court ruled one year later, in Hamdi v. Rumsfeld, that ‘[t]here is no bar to this Nation’s holding one of its own citizens as an enemy combatant… A citizen, no less than an alien, can be part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in an armed conflict against the United States,’ … ’such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict’.”
- Holder: “[W]hen the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer. Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system.”
- Sessions: “That is a misrepresentation of the situation. He never acknowledges that he is comparing apples to oranges. Judge Mukasey didn’t grant Padilla a lawyer as part of his arrest or interrogation. He granted Padilla a lawyer much later when he was filing a petition for habeas corpus to challenge the legality of his detention, and eventually he was appointed one. But not the night of his arrest.”
- Holder: “Richard Reid, a British citizen, was arrested in December 2001 for attempting to ignite a shoe bomb while on a flight from Paris to Miami carrying 184 passengers and 14 crewmembers. He was advised of his right to remain silent and to consult with an attorney within five minutes of being removed from the aircraft … pled guilty in October 2002, and is now serving a life sentence in federal prison.”
- Sessions: “He cites how Richard Reid, the shoe bomber, was charged in the civilian criminal system, but fails to acknowledge that there was no military commission system in place at the time of his arrest in December 2001. The military commission system wasn’t brought under congressional authorization until 2006, when we passed legislation to do that.”
- Holder: “[T]he Bush Administration used the criminal justice system to convict more than 300 individuals on terrorism-related charges.”
- Sessions: “Since May 2009, [Republican] Senator [Jon] Kyl [of Arizona] and I have been asking the Attorney General to explain the basis for this most questionable claim. To date, we have received no response to our repeated requests … for this information. If this figure is valid, why is the Attorney General not willing to explain it?”
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The New York Times ombudsman in a column Sunday said former Department of Homeland Security Secretary Michael Chertoff should be more forthcoming about his relevant clients when speaking with the news media.
Chertoff, who is also a former appeals court judge and was a head of the Justice Department’s Criminal Division during the Bush administration, told the Times in recent articles that more body scanners should be installed in airports. The Times reporters, Eric Lipton and John Schwartz, were following up on the case of Umar Farouk Abdulmutallab, the accused “underwear bomber” who allegedly tried to blow up a Detroit-bound airplane on Christmas Day.
The Times reporters failed to note that Chertoff is a consultant to a manufacturer of the scanning devices, resulting in this Jan. 15 Editor’s Note.
The reporters didn’t ask Chertoff about his clients, and he didn’t volunteer the information, the Times’s public editor, Clark Hoyt, wrote. Chertoff represents a manufacturer through the Chertoff Group, a risk-management firm he formed in March, Hoyt wrote.
“I always answer when I’m asked,” Chertoff told Hoyt. “But I don’t think it is my obligation to put myself in the head of a reporter” and pose the questions.
Chertoff did tell NPR and CNN interviewers about his business relationship when they asked, Hoyt reported.
Interestingly, Chertoff wrote an Op-Ed article for The Washington Post, published New Year’s Day, that carried a one-sentence biography divulging that his clients included a scanner manufacturer — a note he said he volunteered.
“If I’m affirmatively getting out there,” [Chertoff] said, as opposed to being called by a reporter, “I make it my business to disclose.”
That’s a distinction I don’t buy. What difference does it make whether a source seeks a forum or a reporter happens to call? Knowing Washington’s culture of revolving doors and news spin, the Times reporters should have asked the obvious question. But if Chertoff had a connection he thought the public needed to know in one instance, he should have made it clear in the others.
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The U.S. intelligence community is near completion of a major assessment of the national security threat posed by international organized crime, according to administration officials and experts.
The National Intelligence Estimate, which could be finished as soon as January, was conceived more than two years ago to address the dangers posed by Eurasian criminal groups’ suspected infiltration of energy and other strategic markets.
But its focus broadened over time to include a wide swath of criminal syndicates and issues, from drug-trafficking by Mexican cartels to the relationship between terrorism and organized crime, the officials and experts said.
“Globalization has done great things for organized commerce, but it’s also helped organized criminal groups to advance as well,” said one senior Justice Department official, who spoke in general terms about the threat.
The threat was underscored in recent weeks, as reports emerged of an FBI investigation into a major cyberattack on Citibank Inc., which Citibank denies. And the Justice Department announced drug charges in New York against alleged Al-Qaeda associates arrested in Ghana during a Drug Enforcement Administration sting.
NIEs are produced under a classified process and carry the full weight of the U.S. intelligence community’s judgment. The existence of the NIE on international organized crime has not been previously reported.
The assessments are compiled by the National Intelligence Council, a research arm of intelligence community that reports directly to Director of National Intelligence Dennis Blair. The NIC incorporates in its estimates expertise from inside and outside of the federal government.
The estimate’s focus expanded over time as more agencies sought to reap the benefits of inclusion, including increased funding and more say in policy direction. In this case, the departments of Homeland Security, Justice, State and Treasury contributed to the NIE, the officials said. The National Intelligence Council is expected to release a public overview of the threat assessment, increasing its visibility and impact, experts say.
“I think it’s going to open this field up to some serious academic research and funding,” said Louise Shelley, director of the Terrorism, Transnational Crime and Corruption Center at George Mason University. “We’re going to be focusing on a whole range of issues that we haven’t thought enough about, and connecting the dots on other issues.”
A sensitive subject: Russia
One effect of broadening the NIE is that it allows the Obama administration to sidestep the diplomatically sensitive issue of Russia, where authorities have long suspected that the tentacles of organized crime reach into the government.
In 2008, then-Attorney General Michael Mukasey gave a speech that identified as the top security threat organized criminals who control significant positions in the global energy and strategic materials markets, threatening U.S. geopolitical interests.
He never mentioned Russia. But as an example, Mukasey pointed to Semion Mogilevich, who is thought to be at the pinnacle of Russian organized crime and is said to have influence over large portions of the natural gas industry in former Soviet-bloc states. (Mogilevich is wanted in the U.S. on racketeering charges, and the FBI recently placed him on its Top Ten Most Wanted list.)
Russian control of energy supplies and transport networks is a security issue for the European Union, which relies heavily on Russian natural gas. But Russia controls the spigot for pipelines that service Central and Western Europe through the former Soviet state of Ukraine. Twice since 2006, Russia has cut off gas to Ukraine in payment disputes, affecting EU supplies.
Of further concern to intelligence analysts is the murky ownership of some middleman companies crucial to European energy supplies.
In 2006, the Wall Street Journal reported that the Justice Department’s organized crime unit was investigating the ownership of a Ukrainian energy trading company named Rosukrenergo AG, half owned by Russian state company OAO Gazprom.
In response to U.S. concerns about who ultimately controlled Rosukrenergo, company representatives met with the DOJ in Washington to disclose the ownership stake of a Ukrainian businessmen with ties to Mogilevich – the suspected organized crime figure on the FBI Most Wanted list, the Wall Street Journal reported.
There’s also the case of William Browder, a U.S. native and British citizen who founded Hermitage Capital Management, once the largest foreign investment fund in Russia but now accused in Russian courts of tax evasion.
Hermitage has denied evading taxes. It has countered with allegations that a government-affiliated “criminal enterprise” siphoned off $230 million in taxes paid by Hermitage units. Browder has retained the law firm of former Attorney General John Ashcroft to investigate.
Hermitage has filed an application for judicial assistance in the Southern District of New York federal court, asking the U.S. to compel access to information it says it needs to defend itself in Russia.
In a recent declaration filed in the case, Neil Mickelswaithe, a British solicitor and outside counsel to Hermitage, said the fund is the victim of a “criminal enterprise” in Russia spanning senior offices of the Russian Interior Ministry, the Russian Federal Security Service (the successor to the KGB), senior Russian tax officers, and certain Russian court judges and “numerous private individuals in Russia, some of whom have previous criminal convictions.”
U.S. authorities have long suspected billionaire Oleg Deripaska, one of Russia’s most powerful tycoons, of having ties to Russian organized crime. Deripaska, who made his fortune in the post-Soviet aluminum industry, is close to Russian Prime Minister Vladimir Putin, often traveling with him abroad. He presides over a business empire that spans metals, finance and construction.
Deripaska, who has denied any ties to organized crime, had been barred entry to the U.S. for years. But recently, the FBI made secret arrangements to allow him into the country to seek his assistance in an ongoing criminal probe, the Wall Street Journal reported. In two visits to the U.S. this year, Deripaska also met with executives of Morgan Stanley and Goldman Sachs Group Co.
Putin and other Russian officials have raised the visa issue with their U.S. counterparts, and in the past Deripaska hired high-powered Washington lobbyists — including former Senate Majority Leader Bob Dole (R-Kan.) — to make his case for entry into the U.S.
New approach more measured
The Obama administration, in contrast, has been careful not single out any country or group. Deputy Attorney General David Ogden, in a speech and in interviews given at the Interpol General Assembly in October, noted continuing threats posed by Mexican drug cartels, South Asian heroin-trafficking syndicates, and traditional crime families from Asia and Eastern Europe.
Ogden made no mention of strategic markets. The apparent shift in message is reflected in the intelligence estimate, officials said.
Under Mukasey, the Justice Department pushed for a finished product before President George W. Bush left office. After a draft NIE was circulated late in the Bush administration, officials in the departments of Homeland Security, State, Treasury advocated a broader sweep, officials said. The recommendations were ultimately passed on to the Obama administration.
“When the Justice Department first started working on the estimate, there was much more focus on energy issues,” said George Mason’s Shelley, who was first contacted in March by government officials involved in drafting the estimate.
“They asked me what I thought was wrong with it, and I told them they needed to broaden the scope and the geographical range. There’s a tendency to stovepipe too much. When you broaden the scope, you are able to see the diversity of the problem and the relationship among
the different aspects of transnational crime,” she said.
The Obama administration has been actively highlighting fronts in the battle against international organized crime.
In November, the State Department and Immigration and Customs Enforcement co-hosted a symposium in Honolulu. The event drew attention to criminal networks that span East Asia, the Pacific and Latin America — and that engage in a broad range of criminal activity, including drug, gun and human trafficking, money laundering and corruption.
Earlier this month, officials from the departments of Commerce, Homeland Security and Justice, as well as the White House, met with entertainment industry executives to focus on intellectual property crimes. The connection between piracy and organized crime is
well-documented, particularly in Asian countries such as China.
At the event, billed as the first of its kind, Attorney General Eric Holder called on the international community to respond.
“This is a problem that the United States cannot solve by itself,” said Holder. “We want to confront these nations, quite frankly, where too much of this occurs.”
Narco-trafficking also a danger
Violent Mexican cartels, responsible for thousands of killings south of the border, have emerged as a singular threat. Their vast drug-trafficking networks reach deep into the U.S., and law enforcement officials fear a scenario in which the cartels rent their smuggling routes to terrorists.
“If you were to ask me what is the biggest organized crime threat, I would say it’s more the cartels in general and other organized crime syndicates engaged in narco-trafficking and other illicit activities,” said David Luna, director for anti-crime programs at the State Department’s Bureau for International Narcotics and Law Enforcement Affairs. “They’re not just in our backyard, they’re actually in the U.S.”
The link between terrorism and crime is also of growing concern, officials said. The case of the three alleged Al-Qaeda associates charged in New York, who are believed to be in their 30s and originally from Mali, appears to show a direct link between the terror group and drug traffickers. Authorities long maintained that Al Qaeda and the Taliban profit from the heroin trade in Afghanistan. Michael Braun, who retired as DEA’s chief of operations last year, told The Associated Press the case was “the tip of the iceberg.”
The intelligence community’s interest in international organized crime dates back more than a decade. In the mid-1990s, intelligence officials began work on a separate estimate, with the help of the FBI and other law enforcement agencies, said Jim Moody, a former FBI Deputy Assistant Director who oversaw organized crime investigations.
The estimate, he said, “helped get rid of a lot of barriers to sharing information” between the intelligence and law enforcement communities and set priorities for developing intelligence on international criminal groups.
But its impact was curtailed by the events of Sept. 11, 2001. “Given the trauma that the country faced after the 9/11 attacks, international organized crime was relegated understandably to a second-tier national security priority” as the Bush administration redistributed resources to deal with terrorist threats, the State Department’s Luna said.
Officials said they hoped the estimate would cement international organized crime as top national security priority, motivate agencies to develop stronger policies and make an argument for increased funding.
Jay Albanese, former chief of the International Center at the National Institute of Justice, the research arm of the Justice Department, was cautiously optimistic.
“Estimates are a mixed bag,” he said, adding that international organized crime is neither easily quantified, nor easily defined.
“This puts those of us in the crime businsess at a severe disadvantage,” said Albanese, a criminologist and professor at Virginia Commonwealth University. “It’s very diffcult to say with any degree of accuracy how much we should be focusing on human-trafficking versus arms-trafficking.”
Mary Jacoby contributed to this report.
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President Obama on Tuesday nominated a former U.S. Attorney to head the Customs and Border Protection agency at the Department of Homeland Security, according to a DHS news release.
Alan Bersin, who is now DHS Assistant Secretary for International Affairs and Special Representative for Border Affairs, was the U.S. Attorney for the Southern District of California from 1993 to 1998.
The CBP commissioner is responsible for leading DHS efforts to secure America’s borders. In addition, the agency oversees the enforcement of immigration, customs and drug laws. Before joining the Obama administration, Bersin in December 2006 was chairman of the San Diego County Regional Airport Authority board. In 2005, California Gov. Arnold Schwarzenegger (R) appointed Bersin as California’s Secretary of Education, a job he held until 2006.
While serving as a U.S. Attorney, Bersin from 1995 to 1998 was the DOJ’s special representative for the southwest border. In this role, Bersin oversaw the coordination of border law enforcement along the U.S.-Mexico border. He was appointed by then-Attorney General Janet Reno.
DHS Secretary Janet Napolitano applauded Obama’s nomination of Bersin. “Under Alan’s leadership over the past several months, we have forged new international and domestic partnerships along our borders to strengthen security,” Napolitano said, adding, “I look forward to continuing to work with Alan in his new position, where he will lead the Department’s efforts to implement practical, innovative solutions to protect our country from threats to our national and economic security and facilitate legitimate travel and trade.”
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The Justice Department and Immigration and Customs Enforcement are engaging in increased information-sharing to combat organized crime, the department announced today.
In two memorandums signed last week, DOJ and ICE agreed that the latter component, which is a part of the Department of Homeland Security, would become an active participant in two major law enforcement efforts — the Organized Crime Drug Enforcement Task Force (OCDETF) Fusion Center and the International Organized Crime Intelligence and Operations Center (IOC-2).
Officials said the coordination would allow law enforcement agencies to “de-conflict” their investigations, or reduce duplicative efforts and limit turf battles. An ICE spokesman said the memorandums were law-enforcement sensitive and not releasable to the public.
From the joint DOJ/ICE news release:
By becoming an active participate in the OCDETF Fusion Center as outlined in one MOU, ICE will be adding more than 25 million records, including reports of investigation, wiretap intercept information and financial investigative material, from its drug-related investigations and drug-related financial investigations to the Fusion Center. ICE will also gain access to the additional agency information available through the Fusion Center. This increased partnership will further help in the joint fight against drug trafficking organizations by all of the other Fusion Center agencies, including the FBI, the U.S. Drug Enforcement Administration (DEA) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
Similarly, ICE’s membership in IOC-2 will allow all the partner agencies to draw on its resources and collaborate on investigations that may be targeting the same syndicates. The memorandums follow agreements betwen ICE and the DEA and ICE and the ATF.
“By bringing together the agencies and personnel with existing resources and expertise we can work more effectively as partners to shut down organized crime networks, seize assets and save taxpayer dollars in the process,” said Deputy Attorney General David Ogden in statement announcing the partnership. “This agreement, coupled with recent agreements between ICE, DEA and ATF will allow new levels of cooperation and intelligence sharing.”
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John Tuchi will take the reins of the Arizona U.S. Attorney’s office until the Senate confirms a new U.S. Attorney for the district, The Arizona Daily Star reported this afternoon.
He was named the interim U.S. Attorney after Diane Humetewa stepped down yesterday. Read our post on her resignation here. The Senate has yet to consider President Obama’s nominee for the post, Phoenix lawyer Dennis Burke, a senior advisor to Janet Napolitano, secretary of the Department of Homeland Security. Click here to read more about Burke.
Tuchi, a federal prosecutor since 1998, was the office’s criminal division chief.
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The Obama administration is considering a court-room-within-a-prison complex to house and try suspected terrorists, The Associated Press reported on Sunday. The plans would combine civilian and military detention facilities under one roof, officials told the AP. The operation would be jointly run by the departments of the Defense, Homeland Security and Justice.
Possible sites include the soon-to-be-shuttered state maximum security prison in Michigan and the military penitentiary at Fort Leavenworth, Kan. White House spokesman Ben LaBolt said told the AP that no decisions have been made about the proposal. And The Washington Post reports in today’s paper that the ideas have been debated by an interagency task force examining detention policy but have not moved beyond that stage.
The administration’s plan, three government officials told the AP, calls for following measures:
- Moving all the Guantanamo detainees to a single U.S. prison. The Justice Department has identified between 60 and 80 who could be prosecuted, either in military or federal criminal courts. The Pentagon would oversee the detainees who would face trial in military tribunals. The Bureau of Prisons, an arm of the Justice Department, would manage defendants in federal courts.
- Building a court facility within the prison site where military or criminal defendants would be tried. Doing so would create a single venue for almost all the criminal defendants, ending the need to transport them elsewhere in the U.S. for trial.
- Providing long-term holding cells for a small but still undetermined number of detainees who will not face trial because intelligence and counterterror officials conclude they are too dangerous to risk being freed.
- Building immigration detention cells for detainees ordered released by courts but still behind bars because countries are unwilling to take them.
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Dennis K. Burke (Georgetown, University of Arizona Law) is nominated to replace Diane J. Humetewa as U.S. Attorney in the District of Arizona, who steps down on Aug. 2.
Burke has a political background. From 2003 to 2008, he was then-Arizona Gov. Janet Napolitano’s (D) chief of staff, and he followed her to Washington when she became secretary of the Department of Homeland Security. Burke gave $2000 to Barack Obama’s presidential campaign in January 2008, election records show.
- Born in Chicago in 1962.
- Is currently Department of Homeland Security Secretary Janet Napolitano’s senior adviser on border security and law enforcement.
- Was Napolitano’s chief of staff from 2003 to 2008, when she served governor of Arizona. Was also Napolitano’s chief deputy and a special assistant attorney general during her tenure as state attorney general.
- Was a member of Barack Obama’s presidential transition team, specializing in homeland security.
- From 1997 to 1999, was an Assistant U.S. Attorney in Arizona, prosecuting drug cases. (He has tried four cases to verdict, one as lead counsel.) He was briefly detailed to Main Justice as acting head of the Office of Legislative Affairs, where he had worked as a special counsel earlier in his career.
- Was a senior policy analyst in the Clinton White House from 1995 to 1994, working on the Domestic Policy Council.
- In his first major assignment as lawyer, Burke was majority counsel to the Senate Judiciary subcommittee on patents, copyrights and trademarks from 1989 to 1994. He also worked on the confirmations of three Supreme Court Justices — David Souter, Clarence Thomas and Ruth Bader Ginsburg.
- Has served on the boards of several non-profits, including the Arizona Economic Resource Organization, the Arizona-Mexico Commission, the Arizona Super Bowl Host Committee and the Center for Law in the Public Interest.
- Has received accolades from a range of groups, including Arizona Latino Research Enterprise (2008 Exemplary Leadership Award), Equality Arizona (2008 Individual Award) , Planned Parenthood (2007 Public Service Award), Arizona National Guard (2006 Minuteman Award), and the National Association of Police Organizations (1997 Supporter of the Year).
- In 2004, joined the Phoenix Country Club, which has a history of discrimination on the basis of race, gender, and religion. That was “many years before I became a Member, and it is quite clear no vestiges exist in policy or practice,” Burke wrote in his committee questionnaire. Except for the gender part, that is. The club was embroiled in a controversy over its separate dining facilities for men and women. Burke said he wrote to the club, voicing his objections, and lobbied to have the policy changed. He “submitted his resignation” to the club in 2008, though he said he is still technically a member until someone else buys his share. (The club recently settled a lawsuit filed by the Arizona attorney general, putting an end to separate dining.)
- Has never held a formal role in a political campaign but he has “volunteered in different capacities for numerous candidates at all levels and assisted in other party activities involving elections.”
- Lists a net worth of $576,000. He owns two rental properties and an undeveloped plot worth $260,000. And he has about $15,000 tied up in securities.
Click here for his full questionnaire.