Monthly Archives: August 2017

Column: Pence trip underscores importance of NATO and current threats – Chicago Tribune

Posted: August 3, 2017 at 11:57 pm

"We are with you, we stand with you on behalf of freedom." Vice President Mike Pence spoke those words on July 30 in Estonia, the first stop on trip that includes Georgia and Montenegro.

Given political turmoil and uncertainty in Washington, as well as Russia's military assertiveness, the visit of Karen and Mike Pence to Eastern Europe is extremely important as well as timely.

The Baltic States of Latvia and Lithuania as well as Estonia were forcibly occupied by the Soviet Union in 1940. Exile groups from the Baltics became influential in the United States, and elsewhere. All three nations became NATO members in March 2004.

Montenegro became NATO's newest member in June 2017. The tiny Balkan state had been campaigning for alliance membership for over a decade.

The rapid weakening and then collapse of the Soviet Union and communist regimes in Eastern Europe ended the Cold War, but also the relative stability of that era. President Vladimir Putin emphasizes nationalism, and has made military moves to expand Russia's territorial control.

In 2014, Russia invaded Ukraine and annexed the territory of Crimea. The overt invasion of Ukraine by Russia's army, after months of covert aid to rebel forces, generated the most serious crisis in Europe since the Balkan wars of the 1990s and perhaps since World War II.

In 2008, Russian troops invaded a portion of Georgia, following an attack by Georgian troops on South Ossetia. This territory as well as Abkhazia had declared independence from Georgia. Russia encouraged and supported these breakaway efforts, though the international community has clearly rejected them.

The end of the Cold War was a great victory for the policy of restraint and deterrence, termed "Containment," supported by every United States president from Harry Truman when the Cold War commenced to George H.W. Bush when the conflict ended.

NATO endures, for good reasons. Bureaucracies naturally seek self-perpetuation, but strategic realities provide persuasive justification. General war in Europe was avoided for a century between the final defeat of Napoleon and the outbreak of World War I. A Concert of European nations, brokered by Great Britain, helped keep the general peace.

NATO today arguably represents an approximate counterpart to the uncertain but generally effective Concert. The alliance has operated well beyond the nations of the North Atlantic region, including not only on the margins of Europe but in distant territory, including notably Afghanistan.

Article 5 of the NATO treaty states that an attack on one member amounts to an attack on all. The al Qaeda strikes on New York and Washington D.C. and in the sky over Pennsylvania triggered this clause for the first time.

Today's alliance leaders in Europe are articulate and effective, including in particular German Chancellor Angela Merkel. Chancellor Merkel is spearheading expansion of Germany's roles in international humanitarian relief. She has also provided arms to Kurds fighting Islamic extremists in Iraq.

Another outstanding leader is David Cameron, Britain's Prime Minister from 2010 to 2016. He termed Russia's aggression "unacceptable and unjustified," and bluntly stated that any efforts to appease Putin would be a repetition of the same mistakes made by British Prime Minister Neville Chamberlain in accommodating Adolf Hitler in 1938. Britain and Germany have highly effective militaries.

Since 2002, NATO has renewed practical efforts to develop rapid reaction military capabilities. The credibility of the alliance is essential. The Pences' highly visible visit is a diplomatic complement to such efforts.

Arthur I. Cyr is Clausen Distinguished Professor at Carthage College and author of "After the Cold War."

acyr@carthage.edu

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Column: Pence trip underscores importance of NATO and current threats - Chicago Tribune

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Former U.S. Sen. Kay Bailey Hutchison confirmed as NATO … – Texas Tribune

Posted: at 11:57 pm

WASHINGTON Members of the U.S. Senate confirmed a former colleague, Kay Bailey Hutchison, as its new ambassador to the North Atlantic Treaty Organization.

In this role, Hutchison will represent the United States at NATO headquarters in Belgium.

Kay has always been known for tireless advocacy on behalf of Texans and her ability to work across the aisle to get things done, U.S. Sen. John Cornyn said in a statement.She has the experience, determination, and poise to strengthen our relationships on the world stage, and Im confident shell make Texas and our country proud.

NATO was created after World War II to counter Soviet influence in Europe. Hutchison will assume this position at an increasingly tense period in the United States' relationship with Russia.

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Just last week, Congress passed sanctions against Russia for interfering in the 2016 election.President Donald Trump, who appointed Hutchison, signed the sanctions bill but had he not, he likely would have faced a veto override. Trump has actively cultivated a friendly relationship with Russian President Vladimir Putin, and a special counsel is investigating whether members of his campaign colluded with Russian intelligence during the 2016 campaign.

Hutchison, whorepresented Texas in the U.S. Senate from 1993 until 2013, reassured senatorsin her confirmation hearing that she would counter Russian aggression in this new role.

In other business, the Senate confirmed Dallas businessman Ray Washburne, a longtime GOP fundraiser, to serve as president of the Overseas Private Investment Corporation, a government agency that directs private capital into the developing world.

The Senate moved these nominations as the final votes of the summer as members were heading home for the August recess.

Disclosure: The author of this article briefly worked for Kay Bailey Hutchison more than a decade ago.

Read related Tribune coverage:

Former U.S. Sen. Kay Bailey Hutchison of Texas told a panel of Senate lawmakerson Thursday that she will take a hard line on Russia if she is confirmed as ambassador to NATO. She appears to beon track for confirmation. [link]

President Trump has nominated former U.S. Sen. Kay Bailey Hutchison to be the nation's new NATO ambassador. [link]

Former U.S. Sen. Kay Bailey Hutchison,under consideration for the NATO ambassadorship, played a key role in shepherding U.S. Secretary of State Rex Tillerson through hisSenate confirmation. [link]

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Nato says Russia ties most ‘difficult’ since Cold War – The Straits Times

Posted: at 11:57 pm

WASHINGTON (AFP) - Nato Secretary-General Jens Stoltenberg said on Thursday (Aug 3) that ties between the alliance and Moscow were at their most difficult phase since the Cold War, blaming Russia for its role in the Ukraine conflict.

Speaking after United States President Donald Trump said relations between Washington and Moscow had hit an all-time low, the alliance's chief said Russia's "destabilisation" of eastern Ukraine had helped scupper hopes of a diplomatic reset.

"I think (it) is correct to say that Nato's relationship with Russia is more difficult than it has been any time since the end of the Cold War," Stoltenberg told CNN.

"At the end of the Cold War, we hoped to develop a close partnership with Russia.

"But especially after the illegal annexation of Crimea in 2014 and the continued Russian destabilisation of eastern Ukraine, the relationship between Nato and Russia has deteriorated considerably."

Stoltenberg said that Nato was committed to avoiding a further spike in tensions and was pursuing a twin-track approach of "defense deterrence and dialogue."

"As long as we are strong, as long as we are predictable, we can also engage in political dialogue with Russia to try to avoid escalation and avoid a new Cold War," he said.

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Call for ‘military Schengen’ to get troops moving – POLITICO.eu

Posted: at 11:57 pm

NATO Secretary-General Jens Stoltenberg (L) and Dutch Defense Minister Jeanine Hennis-Plasschaert | Olivier Hoslet/EPA

Push to ease movement of military personnel and equipment across EU and NATO borders is supported by the Netherlands and top US Army general in Europe.

By David M. Herszenhorn

8/4/17, 4:07 AM CET

PAPA AIR BASE, Hungary Hold that convoy right there, general. Can we see your passport, please?

European leaders have made a priority of greater military cooperation, yet the ability of NATO forces to operate in Europe is still hindered by border restrictions and mismatched infrastructure, according to uniformed commanders and EU defense ministers.

While NATO has made substantial progress in surmounting legal hurdles to cross-border operations, lingering bureaucratic requirements such as passport checks at some border crossings and infrastructure problems, like roads and bridges that cant accommodate large military vehicles could slow or even cripple any allied response to an emerging threat, officials warned.

To lift the roadblocks, and speed coordinated military action, the Dutch defense minister, Jeanine Hennis-Plasschaert, called on EU officials to create a so-called military Schengen zone. The idea, loosely modeled on the open-border travel zone that has covered most of Europe since 1996, has also been a long-time goal of the senior United States Army commander in Europe, Lieutenant General Ben Hodges.

We must be able to move quickly to any place where there is a threat Dutch Defense Minister Jeanine Hennis-Plasschaert

We must be able to move quickly to any place where there is a threat, Hennis-Plasschaertsaid in a statement announcing her proposal at a meeting of NATO defense ministers in June.

NATO leaders insist they have addressed the most problematic obstacles to cross-border operations, but nonetheless welcomed the Dutch proposal as a way to raise political pressure and create a sense of urgency around further improving the interoperability of allied countries.

Officials say the obstacles are only apparent during peacetime exercises and planning, and that during a real military emergency, NATOs supreme allied commander for Europe based in Mons, Belgium would simply warn allies and deploy as needed.

But officials also said NATOs deterrence mission requires the alliance to constantly demonstrate its capabilities in peacetime and those capabilities are still encumbered. Moving U.S. forces to Poland from Germany, for example, requires a five-day notice period, American officials said.

And then there are infrastructure challenges: roads and bridges that potentially cannot bear the weight of heavy equipment; tunnels that are not tall enough; air strips that cannot accommodate all aircraft.

EU leadersat their June summitformally approved a plan for greater military cooperationbut the first concrete proposals will not be announced until European Commission President Jean-Claude Junckers State of the Union speech in September.

According to some officials, the military Schengen zone would be an ideal first step because there is little financial cost or basis for political disagreement.

One historic challenge is that while NATO has greater responsibility for multilateral military cooperation, the EU and its national governments retain authority over border regulations.

Hennis-Plasschaert, in putting forward her proposal, urged NATO Secretary-General Jens Stoltenberg and the EUs foreign policy chief, Federica Mogherini, to work together to overcome such barriers.

In June, Stoltenberg said much had already been done.

Last autumn, we looked at a map of Europe which showed how difficult it was to move troops from one country to another at short notice, he said during the meeting of defense ministers. We used a traffic-light analogy and we saw that large parts of the map were red.We have worked very hard since then, and made significant progress. NATO allies have cut red tape, and updated complex procedures, with the support of ministries and parliaments.

Still, he said, there was more work ahead. We are now looking at what more needs to be done, for instance regarding railways, airfields and seaports.

A NATO official said that the alliance supported the Dutch proposal, especially if it prompted the EU to take similar steps.

Overall, we are in a healthy position in terms of rapid deployment in peacetime, the official said. Efforts in the European Union to improve the cross-border movement of forces and equipment in Europe could also benefit NATO, provided that they are inclusive and complementary to NATOs work.

The Dutch proposal called on EU and NATO officials to work out the details, but its clear that copying Schengen in a literal sense is not the goal, given that not all EU countries are NATO members and not all Schengen countries belong to the EU or the alliance.

It is important to coordinate military transport in Europe, to ensure that units and equipment are in the right place at the right time, regardless of whether they are deployed in an EU or NATO context, Hennis-Plasschaert said.

A spokesman for the European Defense Agency, which helps coordinate military cooperation among EU countries, said a new joint effort with the European Commission to smooth military transport was expected to begin next month.

Hodges, a three-star general who is due to complete his tour in September, knows the limitations on military movement firsthand.

Last month, he sat in his jet on the tarmac of Papa Air base in Hungary, engines screaming in the 40-degree heat, as an aide collected the passports of the general and his entourage, including a German military attach and this reporter, and brought them to be checked by Hungarian border guards waiting in a nearby car, so that the entourage could fly on to a base in Bulgaria.

Actually, I wish that we could move across Europe as quickly as migrants do United States Army commander in Europe Lieutenant General Ben Hodges

Elsewhere on the base, 452 U.S.-led paratroopers were readying their gear to simulate an airborne operation aimed at repelling an enemy force that had occupied the territory of a NATO ally. Hours later, Hodges watched through binoculars as the paratroopers carried out their drill in Bulgaria.

At another point, during related exercises, Hodgeswas told that his Black Hawk helicopter would have to divert from its intended route in order to clear customs in Romania. Ultimately, Hodges was able to avoid the stop.

While such passport and customs checks are typically routine and not hugely time-consuming, for Hodges they symbolize a tangle of bureaucracy that poses a risk to military speed and efficiency. In Hungary, Prime Minister Viktor Orbn has put up fences to block the flow of migrants, but Hodges said that across much of Europe travel is easier for migrants than for allied military.

Actually, I wish that we could move across Europe as quickly as migrants do, Hodges said.

Of course, we should have to meet all the EU road laws, respect sovereignty, but it is a surprisingly cumbersome process in several countries to get permissions to move troops, weapons, ammunition, even just regular convoys, Hodges said.

I was nave, the general said, I just assumed, well, these are all EU countries, or NATO countries, it should be like going from Florida to Virginia on I-95. And its absolutely not the case. So theres just a variety of reasons in terms of diplomatic clearances, regulatory procedures, infrastructure.

Hodges said that investments in military transport and infrastructure also provide a convenient way for NATO allies such as Germany to meet their pledge to increase defense spending in ways that would indisputably benefit the alliance as a whole.

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Columbus State Awarded NSA Grant to Develop Cybersecurity Tool – Government Technology

Posted: at 11:57 pm

(TNS) -- Further cementing its ambitions as a national powerhouse in cybersecurity education, Columbus State University announced Tuesday that it received a $174,000 grant from the National Security Agency to develop a new tool for rapid cybersecurity training and curriculum development.

The award makes CSU one of the top universities in the nation in providing technologies for cybersecurity workforce development to universities, government and private sector across the nation, said Shuangbao Wang, a professor in CSUs TSYS School of Computer Science in a press release.

The tool will be internet-based, allowing it to be accessed anywhere in the world. Wang expects it will eventually be used by global Department of Defense installations and other private and public organizations.

A key part of the tool will be the use of visual mapping, a technology developed by researchers at the university to assist in military decision making.

We are building a tool that people across the nation can use to develop cybersecurity training, which guarantees compliance with government and industry standards for cybersecurity workforce development, said Wang.

The grant is the latest in a string of awards the university has received for developing cybersecurity programs. Earlier this month, CSU announced that it had partnered with the Muscogee County School District to develop a yearlong cybersecurity course at Rothschild Leadership Academy with the help of a $50,000 grant from the NSA.

The university also hosted a weeklong cybersecurity summer camp in June with another NSA grant, this one for $28,000.

The investments may well pay off, with worldwide spending on cybersecurity estimated to reach more than $100 billion by 2020, according to research by the International Data Corporation. That spending is butting against an expected shortage of about two million jobs by 2019.

National cybersecurity workforce development is one of the key areas of this action plan, Wang said. Upon completion, universities, government, and private sector across the nation can use the tool to quickly develop training and curriculum that otherwise would not be possible due to lack of experts, knowledge and skills.

2017 the Columbus Ledger-Enquirer (Columbus, Ga.) Distributed by Tribune Content Agency, LLC.

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The Curious Case Of Ex-NSA Inspector General George Ellard – Cato Institute (blog)

Posted: at 11:57 pm

On August 3, The American Conservative ran a lengthy piece of mine dealing with the whistleblower protection nightmare that is the Department of Defense. One of the subjects of that piece is now former NSA IG George Ellard, and because I had even more on his case than I could fit into the TAC piece, I wanted to share the rest of what I knowand dont knowabout the allegations against Ellard, the final disposition of the case, why the Obama administrations whistleblower retaliation fix is itself broken, and what might be done to actually provide meaningful protections for would-be national security whistleblowers in the Pentagon and elsewhere in the national security establishment.

Regarding what little we know about the specifics of Ellards case, I had this to say in the TAC piece:

As the Project on Government Oversight firstreportedin December 2016, a three-member interagency Inspector General External Review Panel concluded in May 2016 that the then-Inspector General of the National Security Agency (NSA), George Ellard, had, according to POGO, himself had previously retaliated against an NSA whistleblower[.] This apparently occurred during the very same period that Ellard hadclaimedthatSnowden could have come to me. The panel that reviewed Ellards case recommended he be fired, a decision affirmed by NSA Director Mike Rogers.

But there was a catch: the Secretary of Defense had the final word on Ellards fate. Outgoing Obama administration Defense Secretary Ash Carter, apparently indifferent to the magnitude of the Ellard case, left office without making a decision.

In the months after Donald Trump became president, rumors swirled inside Washington that Ellard had, in fact, escaped termination. One source, who requested anonymity, reported that Ellard had been seen recently on the NSA campus at Ft. Meade, Maryland. That report, it turns out, was accurate.

On July 21, in response to the authors inquiry, the Pentagon public affairs office provided the following statement:

NSA followed the appropriate procedures following a whistleblower retaliation claim against former NSA Inspector General George Ellard. Following thorough adjudication procedures, Mr. Ellard continues to be employed by NSA.

After Id finished the TAC piece, Ellards attorney, Terrence ODonnell of the Washington mega law firm of Williams & Connolly, sent me the following statement about his client, George Ellard:

The Office of the Assistant Secretary of Defense (ASD) examined and rejected an allegation that former NSA Inspector General, George Ellard, had retaliated against an NSA employee by not selecting that employee to fill a vacancy in the OIGs Office of Investigations.

In a lengthy, detailed, and well-reasoned memorandum, the ASD concluded that Dr. Ellard had not played a role in that personnel decision or, in the terms of the applicable laws and regulations the ASD cited, Dr. Ellard did not take, fail to take, or threaten to take or fail to take any action associated with the personnel decision.

This judgment echoes the conclusion reached by the Department of Defenses Office of the Inspector General. An External Review Panel (ERP) later came to the opposite conclusion, leading to the ASD review. The ASD concluded that the evidence cited in the ERP report as reflective of [Dr. Ellards] alleged retaliatory animus toward Complainant is of a character so circumstantial and speculative that it lacks probity.

In assessing Dr. Ellards credibility and in rendering its decision, the ASD also considered Dr. Ellards distinguished career of public service, spanning more than 21 years of service across the executive, legislative, and judicial branches, culminating in almost 10 years of service as the NSA IG. Dr. Ellard, the ASD noted, has been entrusted to address some of our nations most challenging national security issues; successive NSA Directors have consistently rated Dr. Ellards performance as Exceptional Results and Outstanding; and he has been commended by well-respected senior officials with whom [he has] worked closely over the years for [his] ability and integrity.

Dr. Ellard is serving as the NSA Chair on the faculty of the National War College, a position he held prior to the ERP review.

Quite a bit to unpack in that statement. Lets start with the ASDs decision to overrule the External Review Panel (ERP), a key component of the Obama-era PPD-19, the directive designed to prevent in all government departments or agencies the very kind of thing Ellard allegedly did. Here are the key paragraphs of PPD-19 with respect to ERP recommendations:

If the External Review Panel determines that the individual was the subject of a Personnel Action prohibited by Section A while an employee of a Covered Agency or an action affecting his or her Eligibility for Access to Classified Information prohibited by Section B, the panel may recommend that the agency head take corrective action to return the employee, as nearly aspracticable and reasonable, to the position such employee would have held had the reprisal not occurred and that the agency head reconsider the employees Eligibility for Access to Classified Information consistent with the national security and with Executive Order 12968. (emphasis added)

An agency head shall carefully consider the recommendation of the External Review Panel pursuant to the above paragraph and within 90 days, inform the panel and the DNI of what action he or she has taken. If the head of any agency fails to so inform the DNI, the DNI shall notify the President. (emphasis added)

Taking the ERPs recommendations is strictly optional.

Whats so significant about the ERP recommendation in Ellards case was that the ERP not only apparently believed that the whistleblower in question should be given a fair chance at getting the position he or she originally applied for within the IG itself, but that Ellards actions werein the view of three non-DoD IGs who examined the caseso severe that they recommended he be terminated.

ODonnell quoted from a Pentagon memo clearing Ellard that is not public. The ERPs findings, along with their record of investigation, are not public. Nor do we know how thoroughor cursorythe ASDs review of the Ellard case was prior to the decision to clear Ellard. Given all of that, who are we to believe?

There are some key facts we do know that lead me to believe that the ERPs recommendations were not only likely soundly based, but that the whistleblower retaliation problem inside the Pentagon is deeply entrenched.

ODonnells statement also claimed that the ASDs decision to reverse the ERP and clear Ellard of wrongdoing echoes the conclusion reached by the Department of Defenses Office of the Inspector General. But its the DoD IG itself, as an institution, that is also under a major cloud because of other whistleblower retaliation claims coming from former NSA or DoD IG employeesspecifically former NSA senior executive service member Thomas Drake and for DoD Assistant Inspector General John Crane. As Ive noted previously, the independent Office of Special Counsel found adequate evidence of whistleblower retaliation and document destruction to refer the matter to the Justice Departments own IG; Cranes case is getting a look from the Government Accountability Office (GAO), Congresss own executive branch watchdog.

The DoD and NSA IGs have clear conflicts of interest when employees from within their own ranks are implicated in potential criminal wrongdoing. PPD-19 was supposed to be the answer to such conflicts of interest, but its lack of teeth from an enforcement standpoint renders it a badly flawed remedy for an extremely serious integrity problem.

And what about Congress? PPD-19 speaks to that as well:

On an annual basis, the Inspector General of the Intelligence Community shall report the determinations and recommendations and department and agency head responses to the DNI and, as appropriate, to the relevant congressional committees.

But Congress doesnt need to wait for the IC IG to tell it what is already publicly known about the Ellard, Drake, and Crane cases. It has ample cause to not only investigate these cases, but to take action to replace PPD-19 with a whistleblower protection system that actually protects those reporting waste, fraud, abuse, or criminal conduct and punishes those who attempt to block such reporting. Two options that deserve consideration are 1) empowering OSC to examine these kinds of cases and issue unreviewable summary judgments itself or 2) revive the expired Independent Counsel statute, rewritten with a focus on whistleblower reprisal case investigations.

One thing is beyond dispute. The PPD-19 process is not the answer for protecting whistleblower and punishing those who retaliate against them. We need a credible system that will do both. The only question now is whether anybody in the House or Senate will step up to the task of building a new one.

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Judge sides with prosecution in NSA leak case – The Augusta Chronicle

Posted: at 11:57 pm

A federal judge has sided with prosecutors in the case against former Fort Gordon contractor Reality Winner, finding that her defense team should be muzzled from speaking about any information deemed classified by the government, even if it has been widely reported in local, national and international media publications.

Winner has pleaded not guilty to a single count of violating a provision of the espionage act. She is accused of leaking a classified document to online media news publication, The Intercept.

That document was extensively reported on by The Intercept and numerous other news media organizations in stories on Winner, who is accused of leaking a national security document she allegedly obtained through her job with a NSA contractor on Fort Gordon.

The document is an analysis of the extent of Russias efforts to hack into state election boards. Russian meddling is the subject of U.S. Senate and House intelligence committees investigations and a special prosecutor who is looking into possible collusion between Trump supporters and the Russians during last years presidential campaign.

In his order released Thursday, Magistrate Judge Brian K. Epps wrote that determining what is classified information is a function of the executive branch of government, not the judicial branch.

Just because the defense team has expressed concern of accidentally mishandling classified information is no reason to relax the strict procedures required, Epps wrote. The defense is not prohibited in using classified information in Winners defense, but it must follow the strict procedures, he wrote.

Both sides have until Aug. 16 to weigh in on Epps proposed protective order that describes the closely guarded handling of materials in the case. A classified information security officer is in charge of ensuring such information is handled only by those on the defense team who have obtained security clearance, and only in a secured location.

The defense is to have free access to that location during regular business hours, although other times may be allotted with proper notice and consultation with the U.S. Marshals Service, according to the order.

Any notes or other papers the defense may create using classified information is not allowed outside of the security location. Any document filed with the court that contains or might contain classified information must be filed under seal. Only those portions deemed not classified by the classified information security officer will be unsealed for public review.

At the end of the case any such defense-prepared material will be destroyed by the classified information security officer. The confines of the protective order are a lifetime commitment and any violation is punishable not only by a finding of contempt but criminal prosecution.

The publication of any classified information does not change the classified status unless a member of the executive branch of government with the proper authorization declares the information to be declassified.

Winners trial is tentatively set to begin in October.

Reach Sandy Hodson at sandy.hodson@augustachronicle.com or (706) 823-3226

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Why Robert Mueller’s Grand Jury Isn’t a Big DealYet – TIME

Posted: at 11:56 pm

Legal experts warn not to read too much into a report that special counsel Robert Mueller has impaneled a grand jury as part of his probe into Russian interference in the 2016 election.

The decision was likely made for practical reasons, such as making it easier to call witnesses to testify, and does not necessarily indicate that the former FBI chief is ready to issue indictments, experts say.

When conducting an investigation, prosecutors commonly work with a grand jury, said Melinda Haag, former U.S. Attorney in San Francisco. Because of its significant legal power and investigative reach, Haag says, impaneling of a grand journey can happen at almost any point during an investigationnot just near the end.

The use of grand juries, which serve as forums for testimony and evidence gathering before a potential trial, is not uncommon in federal cases. Its a unique environment with special rules: because there are no defendants, legal counsel is not present, and the prosecutor has significant control over the proceedings. The process can lead to indictments if criminal evidence comes to light.

In part because it echoes the events of Watergate, Muellers decision to specially impanel a grand jury has been seen as revealing. That means that Mueller opted not to use a sitting grand jury to handle the case, or continue using the grand jury in Alexandria, Va., that had been used by federal prosecutors to investigate former national security advisor Michael Flynn.

But while the special formation of the jury is a highly visible and certainly important move in the ongoing investigation, it may be less dramatic than it initially appears.

Given the nature of the things that Mueller is investigating, it would be odd for him not to use a grand jury in the District of Columbia, said David Sklansky, a co-director at Stanford's Criminal Justice Center, adding that it would be weird for Mueller to rely on a standing jury for the investigation.

There are a number of reasons for that. Under law, grand juries are held to a certain term length and sometimes called to multiple cases, so for a complicated and potentially lengthy investigation it makes sense for a prosecutor to convene a new jury that can devote its entire term and attention to a single case.

And a sitting jury would not have been screened for participation in a high-profile and high intensity case like this one. A dedicated grand jury will be an administrative convenience, in a case that could involve numerous documents and participants, said Robert Weisberg, a criminal justice expert at Stanford Law School.

At an extreme, the formation of the jury could mean that Mueller believes he hasor could soon haveenough evidence to issue an indictment that could lead to a criminal case, says Hadar Aviram, a law professor at UC Hastings. But it could also simply mean the Mueller is hoping to utilize the powerful evidence-gathering machinery that a grand jury provides.

Aviram calls the grand jury process a powerful mechanism that has the capability of generating more evidence through its powers of subpoena, meaning the prosecutor can compel testimony and the handing over of documents. The latter is particularly potent, because, unlike with testimony, its nearly impossible for documents to be protected under the Fifth Amendment. And Weisberg points out that because those who testify are under oath and could end up as defendants in a later trial, and prosecutors can grant immunity in exchange for testimony, the grand jury tends to be a productive environment for revealing testimony and naming of further witnesses.

But Haag emphasizes that the impaneling may simply mean that Mueller plans to start subpoenaing documentsand, even if they are at a stage where they want to take testimony from one or more people, that, too doesnt mean theyre reaching the end of the investigation.

Regardless of the strategy behind the formation of the grand jury, many aspects of it will be mysteries for some time. The proceedings could be lengthy and are legally protected under strict rules of secrecythough witnesses are free to talk about their participation. If witnesses do choose to disclose their involvement, or any details of the subpoenas are leaked, it could provide clues into the shape of the investigation.

But for now, were mostly in the dark.

Everything is just a kind of tea leaf reading at this point, Wesiberg saidadding that any conclusions should be drawn with caution.

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Why Robert Mueller's Grand Jury Isn't a Big DealYet - TIME

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Case Note: Allen and Conti – JD Supra (press release)

Posted: at 11:56 pm

This case, from the U.S. Federal Appeals Court, considers the applicability of the Fifth Amendments privilege against self-incrimination in relation to testimony compelled by a foreign government, on the present facts the UKs Financial Conduct Authority. It will therefore no doubt influence how the DOJ operates and interacts with UK investigatory authorities in the future.

The U.S. Court of Appeals for the Second Circuit, in a decision published on 19 July1, reversed the convictions of Anthony Allen and Anthony Conti. Allen and Conti (the Defendants) had previously been tried and convicted before the District Court (Southern District of New York) for wire fraud and related conspiracy offences, concerning the alleged manipulation of LIBOR. The appeal focused on the defendants claim that their privilege against self-incrimination under the Fifth Amendment had been violated. It was argued that the testimony of Paul Robson, a key witness in the case, had been tainted by statements the Defendants had made in compelled interviews with the UKs Financial Conduct Authority (FCA). The FCA had disclosed the transcripts of the Defendants interviews to Robson, pursuant to the regulatory proceedings against him. Robson had reviewed the transcripts prior to cooperating with the DOJ.

In reversing the District Courts decision, the Appeals Court held that the Government had failed to prove (as required under the Kastigar doctrine2) that Robsons evidence had been derived from a source wholly independent of the compelled testimony. In addition, the Appeals Court addressed a more fundamental issue which the District Court had previously declined to consider: whether the Fifth Amendment is even engaged by testimony compelled by a foreign government. Given the increasing prevalence of cross-border investigations this question was evidently important to resolve. The Appeals Court concluded that the protection offered by the Fifth Amendment applied to the use of all compelled testimony, irrespective of whether it had been obtained by a foreign Government. This blog piece summarises both elements of the Appeal Courts decision.

Application of the Fifth Amendment to foreign compelled testimony

In a previous blog post we analysed the competing arguments raised on behalf of the Government and the Defendants, before the District Court, on whether the Fifth Amendment applied to foreign compelled testimony. We concluded that it was difficult to reconcile the Governments position with Federal Appellate authority. The Appeals Court decision is not therefore overly surprising.

The decision emphasizes that the Self-Incrimination Clausewhich enshrines a right not to testify against oneselfprovides a personal trial right to an accused in any US criminal case. A violation of the Clause therefore occurs only when the statement is used at trial, not at the point of its compulsion. In short, compelled testimony cannot be used to secure a conviction in an American Court.3

The Appeals Court rejected a policy argument raised by the Government in support of adopting a restrictive scope of the Fifth Amendments application. The Government suggested that foreign authorities could frustrate US prosecutions by publicizing compelled testimony, thereby submitting the US Government to the burden raised by Kastigar. The Appeals Court dismissed these concerns. Negligent publication, the Court held, seemed increasingly unlikely given the trend towards closer and earlier coordination between U.S. and foreign agencies. The tide of international criminal enforcement, the Court reasoned, bolstered the argument for having the Fifth Amendment apply to foreign compelled testimony:

If as a consequence of joint investigations with foreign nations we are to hale foreign men and women in to the courts of the United States to fend for their liberty we should not do so while denying them the full protection of a trial right we regard as fundamental and absolute.4

The Appeal Courts decision appears to resolve this issue unequivocally and will presumably inhibit recent attempts made by the DOJ to rely on foreign compelled testimony. In June, the DOJ requested the District Court for Northern California grant a subpoena for the production of a transcript of testimony compelled by the UKs Financial Reporting Council (FRC).5 Following the Allen and Conti decision it is hard to see how the FRC evidence could be deemed admissible, and therefore satisfy the preconditions for being the object of a subpoena.

Application of the Kastigar doctrine

Under Kastigar, where an individual is compelled to testify he is protected by use and derivative use immunity: neither his testimony, nor any evidence derived (directly or indirectly) from it, can be used as evidence against him in criminal proceedings. The prohibition on use is total. The testimony cannot, for example, be used as a basis to commence an investigatory enquiry. Kastigar also espouses a test by which the protection is enforced: the Government bears the burden of proving that all the evidence it proposes to rely upon was derived from legitimate sources, wholly independent from the compelled testimony. The burden is significant and must be proved by a preponderance of the evidence (in UK terms on the balance of probability).

In the present case, the Appeal Court reversed the District Courts conclusion that the Government had met its Kastigar burden. It emphasized that the presence of evidence which corroborated Robsons account was insufficient to meet the applicable standard.6 Instead the Government was required to prove that Robsons exposure to the compelled testimony had not shaped, altered or affected the information he had provided and which the Government had used. Such an analysis could be conducted effectively where a witness testimony is memorialized (or canned) prior to their exposure to any compelled statements.7

Here, Robson had himself provided testimony to the FCA prior to exposure. Far from assisting the Government, a comparative analysis of Robsons accounts (his compelled statement to the FCA and his trial testimony) revealed marked discrepancies. Furthermore, the level of material exposure appeared substantial, the Government accepted that many of the topics discussed by Robson in his testimony also featured in the Defendants compelled statements. Notwithstanding this Robson had not claimed, at any stage during his testimony, that he could segregate the effects of his exposure.8 These findings, and other aspects of Robsons evidence, undermined any suggestion that Robsons exposure to the Defendants compelled statements had not shaped, altered or affected his own testimony. The Appeal Court held that generalized and self-serving denials of any taint was an inadequate basis on which the Government could satisfy its burden under Kastigar.9

It remains to be seen how often foreign compelled testimony will give rise to a Kastigar motion in US criminal proceedings. This decision of the Appeals Court makes it more incumbent on US Federal agencies to interact closely with foreign governments and to coordinate cross-border investigations at their outset. Where a Kastigar claim can be foreseen the US prosecuting authority will need to consider how it can protect against potential witnesses being exposed to the compelled testimony of a suspect / defendant. Where a risk of exposure still exists, for example through the imminent publication of compelled testimony, the authority will need to move quickly in order to memorialize a witness account.

1www.pbwt.com/content/uploads/2017/07/USA-v-Allen.pdf 2Kastigar v. United States, 406 U.S. 441 (1972) 3 See pages 35-38 of the decision. 4 See pages 54-5 of the decision. 5 See Global Investigations Review, 19 June 2017- DOJ pursues ex-Autonomy directors compelled testimony. 6 See pages 60-1 of the decision. 7 See pages 61-2 of the decision. 8 This formulation was taken from the case of Poindexter, 951 F.2d at 376. 9 See page 63 and 70 of the decision.

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Case Note: Allen and Conti - JD Supra (press release)

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Symposium: Millions of tiny constables Time to set the record … – SCOTUSblog (blog)

Posted: at 11:55 pm

Alan Butler is senior counsel for the Electronic Privacy Information Center, which filed amici briefs in support of petitioner David Riley in Riley v. California and in support of respondent Antoine Jones in United States v. Jones.

The Supreme Courts Fourth Amendment opinions, especially those involving new surveillance technologies, are well stocked with metaphors and similes. Lower courts are faced with the challenge of applying abstract contours of constitutional law to techniques unimaginable when previous cases were decided. Usually courts reach for similes first this new technique is like the old technique considered in that famous case several decades ago in hopes of maintaining consistency. But, more recently, the Supreme Court has relied on new metaphors to explain how to adapt old doctrine to new facts. These doctrinal course corrections are necessary where the routine application of old rules to new facts produces absurd results. We will likely see a similar correction in Carpenter v. United States.

Multiple appellate courts, including the lower court in this case, have held that cellphone location records are not protected under the Fourth Amendment because they are similar to the logs of dialed numbers that were at issue in Smith v. Maryland. The Supreme Court granted certiorari in Carpenter, despite the lack of a circuit split, to address this important Fourth Amendment question. Now the court has an opportunity to set the record straight, and should avoid the conceptual pitfalls that have bedeviled lower courts over the last decade. The court should build upon its unanimous judgments in Jones and Riley to establish strong constitutional protection for location data.

The facts in Carpenter are similar to other recent location-data cases. Law-enforcement investigators obtained several months of the defendant Timothy Carpenters cellphone location records without a warrant. These records were obtained from Carpenters cellphone providers, and included a historical log showing which cellphone towers the target phones were connected to when they made or received calls during a six-month period. Unlike some other cellphone-tracking cases, this case does not involve real time location tracking or the use of GPS data.

The Supreme Court has made a point in its recent decisions in Jones and Riley to reject the wooden application of decades-old Fourth Amendment precedents to modern problems. In Riley, the court declined to apply the traditional search incident to arrest exception to permit the warrantless search of a cellphone in the defendants possession at the time of arrest. In a unanimous decision, the court dismissed the notion that a cellphone was materially indistinguishable from a cigarette pack or a wallet (That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.). Instead, the court found that the search of a cellphone is even more revealing than the search of a home.

In Jones, the Supreme Court considered whether the attachment and use of a GPS device to track the location of the defendants car was a search under the Fourth Amendment. The court had previously held in a pair of cases in the 1980s that the use of radio beepers to track the movement of a car on public roads over a month-long period was not a search. Some lower courts had found that a GPS tracker was like a beeper and that use of the device therefore would not trigger the Fourth Amendment. But the court unanimously rejected that conclusion, albeit under two distinct rationales. Four justices joined Justice Antonin Scalias majority opinion finding that the attachment of a GPS device was a physical trespass, akin to a constables concealing himself in the targets coach. Three justices joined Justice Samuel Alitos concurring opinion, which found that the tracking violated a reasonable expectation of privacy. Alito was skeptical of the usefulness of Scalias metaphor, because it would have required either a gigantic coach, a tiny constable, or both, but nevertheless agreed that prolonged location tracking triggered the Fourth Amendment.

In both Jones and Riley, the Supreme Court re-evaluated long held assumptions in light of new technological developments. The result in both cases was the unanimous conclusion that digital tracking and surveillance techniques trigger close Fourth Amendment scrutiny because they are more intrusive than their physical analogs. The collection of cellphone location data at issue in Carpenter v. United States is another example of changing technology that has enabled a level of intrusiveness that was impossible in an analog world. If officers can warrantlessly track every phone, then they can essentially deputize millions of tiny constables, hiding in our pockets and constantly recording our movements. Under the courts rationale in Jones, such extensive tracking is unreasonable, but lower courts have continued to apply analog cases to this new digital problem.

Lower courts have struggled for more than a decade to determine what Fourth Amendment and statutory protections apply to cellphone location data. In particular, courts have grappled with intersecting provisions in the Electronic Communications Privacy Act (the Stored Communications Act and Pen Register Statute) and with technological developments that have continually increased the precision of location-tracking methods. Three general trends have emerged from these cases. First, some courts have drawn a distinction between historical and prospective location data, finding that warrants are only required for prospective (or real time) tracking. Second, courts have focused on the precision of the location-tracking method in order to measure the degree of intrusiveness or the privacy interest at stake. Finally, courts have relied on the holding in Smith and the content/non-content distinction to find that location data are not protected by the Fourth Amendment.

None of the concepts used by lower courts real time vs. historical, precise vs. imprecise, and content vs. non-content provides a principled basis for crafting a Fourth Amendment rule. The Supreme Court would be wise to avoid these distinctions because they all present major pitfalls.

First, while some courts have assumed that real-time location tracking is inherently more intrusive than collecting historical data, the opposite is actually true. Historical data is more frequently used in criminal cases because it is inherently more revealing historical tracking can reveal patterns, associations, behaviors and other personal details that cannot be so easily derived from records in real time. It is the duration and extent of the tracking, not its temporal relationship to an investigation, that matters. Alito reached a similar conclusion in his concurring opinion in Jones, noting that the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.

Second, attempts to distinguish cases based on the precision of the location-tracking methods at issue have been inconsistent and arbitrary. The government has argued that collection of cellphone-tower data should not trigger Fourth Amendment scrutiny because the data do not reveal the users precise location. Many courts have assumed that cell-tower data are necessarily less precise than GPS data (the type of data at issue in Jones). But that assumption is wrong in many cases (tower data can be more precise than GPS data in urban areas) and is inherently short-sighted. The precision of location-tracking methods has only increased over time and will continue to do so as the density of cellphone towers increases and data analysis methods evolve. Indeed, federal law requires all cellphone providers to develop the capability to locate 911 callers precisely in an emergency.

Third, the traditional distinction between content and non-content (or metadata) does not map well onto location data because it does not provide a useful analytical framework for evaluating the privacy interests at stake. The Supreme Court protected the contents of the phone call in Katz v. United States even though those contents had been disclosed to another person (the recipient of the call). The fact that cellphone location records are held by a third party does not mean they are not entitled to protection. Indeed, Justice Potter Stewart recognized in his dissenting opinion in Smith that even the mere numbers dialed can reveal private facts, and thus are not without content. But the data generated by modern communications bear no resemblance to the minimal billing data generated by the analog telephone system in 1979.

Lower courts refusal to protect cellphone location data is especially troubling when, as here, Congress has already established higher privacy standards for location data in some contexts. When Congress enacted the Communications Assistance for Law Enforcement Act in 1994 at the behest of the FBI, it prohibited law enforcement from obtaining location data with a pen register (the same type of device at issue in Smith). But rather than view this statutory protection as an indication that individuals have a reasonable expectation of privacy in their location information, courts have held that cellphone-tower data are similar to the call records at issue in Smith and thus are not protected.

A better way to resolve the issue in this case is to re-evaluate Smith in light of the changes in our communications systems since 1979. Justice Sonia Sotomayor alluded to the need to do so in her concurring opinion in Jones, positing that the rule adopted in Smith is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. Even Alitos concurring opinion in Jones implicitly recognized that long-term tracking was fundamentally different from the short-term, analog tracking methods in the 1980s beeper cases. If the Supreme Court rejects the conclusion that all personal data held by modern service providers are unprotected, and that the world has fundamentally changed since Smith was decided, then lower courts and Congress can finally begin to adopt appropriate digital-privacy rules.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Featured, Merits Cases

Recommended Citation: Alan Butler, Symposium: Millions of tiny constables Time to set the record straight on the Fourth Amendment and location-data privacy, SCOTUSblog (Aug. 3, 2017, 10:50 AM), http://www.scotusblog.com/2017/08/symposium-millions-tiny-constables-time-set-record-straight-fourth-amendment-location-data-privacy/

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Symposium: Millions of tiny constables Time to set the record ... - SCOTUSblog (blog)

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