Tag: Law

Finally accepting his untenable position to remain in office, tough guy, Representative Michael Grimm (R-NY11) has decided to resign his House seat sparing the people of Staten Island and Brooklyn the embarrassment of having a convicted felon representing them. Mr. Grimm spoke yesterday with House Speaker John Boehner (R-OH) who obviously laid out the grim options (pardon the pun).

House rules dictate that a member convicted of a crime for which a prison sentence of two years or more may be imposed should not participate in committee meetings or vote on the floor until winning re-election. The stricture could have left Mr. Grimm’s 11th district effectively disenfranchised until 2016.

After sources leaked the news of the resignation to The New York Daily News early Monday, Mr. Grimm released a statement at midnight that he had changed his mind and would not stay in Congress, stating that he would resign on January 5th.

New York Governor Andrew Cuomo will set a date for a special election.

The judge should throw the book at him for deceiving the voters and using his office as a bargaining chip for a lighter sentence, as expalained by Blake Zeff at Salon:

It will take some time, specifically until the announcement of his criminal sentence, to fully appreciate the snow job Michael Grimm just pulled on Staten Island voters. But we already know plenty enough to call it a criminal’s virtuoso parting heist.

Grimm, you’ll recall, ran for reelection last month as a two-term GOP incumbent in socially conservative Staten Island, with a 20-count indictment on his back. The charges, largely misunderstood by the voters (and media, for that matter), essentially amounted to this: He ran a restaurant some years back, and in an effort to skirt payroll taxes, paid workers under the table and submitted a fake payroll to the feds. He was then caught lying about it when a “real” payroll was discovered by prosecutors in his computer records.

This last part is important because it tells you what Grimm knew: he had lied to federal officers (a crime that never gets ignored), and they had the goods on him. In other words, he was very likely going to prison – and he knew it. [..]

The congressman was clearly never going to serve out his term, nor would he take his case to trial, as he had assured voters.

But he had a very good reason to convince voters otherwise.

If you’re headed to prison but want to cop a deal with the feds, you need a chip you can bargain in exchange for a lighter sentence. And for a politician, there are few chips more valuable than a seat you can resign. If Grimm lost his race last November, he’d have been a disgraced former congressman with no seat to give up and, likely, real prison time. If he won, he’d have the golden House seat to drop in exchange for – he hoped – leniency.

It is the NYT article best sums up the end of this sad affair:

Whoever takes Mr. Grimm’s seat will be unlikely to match his track record as a source of national fascination, or satire. A tough-talking politician with a clenched jaw and an intense stare, a fondness for dark-tailored suits and Brooklyn wine bars, Mr. Grimm brought with him a reputation for controversy, including the time – back in his law enforcement days – when he reportedly waved a gun around a Queens nightclub. He carried himself with a bravado that was on display until the end.

Mr. Grimm knew this was coming when he was indicted for tax evasion last April. Instead of admitting it then and withdrawing from the race, he decided to arrogantly stand his ground and lie about his guilt, bringing unwanted attention to Staten Island and, now, costing NY tax payers millions for a special election. Never mind the money that his supporters donated to his campaign, they should have seen the handwriting on the wall. The IRS and FBI do not bring these charges unless they can win. Remember Al Capone?

But too many Staten Island voters still love the tough guy image and swagger, hopefully this time they will make a better choice.

In a predictable fashion, convicted felon and admitted liar, Representative Michael Grimm refused to resign from his seat representing Staten Island and part of Brooklyn in New York’s Congressional District 11.

Representative Grimm said he had no intention of stepping down. “Absolutely not,” he said.

He sounded equally resolute when he declared himself “guilty” to Judge Pamela K. Chen of United States District Court in Brooklyn, who accepted his plea and noted that it included his signing of a “statement of facts” in which he acknowledged committing perjury, hiring illegal immigrants and committing wire fraud.

Judge Chen then commanded Mr. Grimm to return to court for sentencing on June 8. Federal prosecutors, who along with the Federal Bureau of Investigation and Internal Revenue Service have investigated Mr. Grimm for years, are seeking a penalty of at least two years in prison. His lawyers, some of whom joined the proceedings via conference call from Florida, are asking for a more lenient sentence and will almost certainly recommend probation.

However, Judge Chen didn’t sound like she would be considering probation:

“Do you understand all of the possible consequences of your guilty plea?” she asked.

“I do, Your Honor,” he said.

Judge Chen warned that she could “depart upward or downward” from sentencing guidelines. Mr. Grimm said he understood, and also acknowledged that he had forfeited his right to appeal any sentence less than 33 months in jail.

Mr. Grimm still doesn’t have the decency to resign. Nor did 54% of Staten Island voters have the decency to reject him, even though it was clear in November that Mr. Grimm would at least be convicted of the tax evasion charge. The IRS rarely loses. Now, not only was he guilty of tax evasion but admitted that he lied and that the other charges were fact. How fitting that the red district of NYC should be represented by a Crook and a liar.

It took MSNBC’s Rachel Maddow two segments to highlight just how embarrassing this will be for the GOP to have a felon serving in congress and Sadly, the few options to pressure Mr. Grimm to resign.

Tuesday’s Rachel Maddow Show started off with a brief review of crimers in Congress. It’s not as long a list as you might think! She focuses on California Republican Jay Kim, who was convicted of campaign fraud in 1998 and became the first – and so far, only – member of Congress who walked its hallowed halls wearing a monitoring bracelet attached to his ankle. Kim’s estranged wife said he was “the most crime-committing person I know.” He lost his primary that year and soon became the footnote he was destined to be.

Actual felons in Congress are something of a rarity, Maddow notes, because of a reassuring human tendency to eventually do the right thing – either the convicted Congressturds resign or the voters pick someone else.

In a laughable editorial, the conservative Staten Island Advance Editorial Board, with its usual right wing slant that this was a political witch hunt, has suggested that Mr. Grimm to step down:

Just two months ago, the Staten Island Advance urged voters to elect Michael Grimm to a third term in the Congress.

That while he faced a 20-count federal indictment in connection with a health food restaurant he owned prior to entering political life.

Voters overwhelmingly agreed.

Today, we think Mr. Grimm would be right to step down from his position in the United States Congress. [..]

We have little doubt that legions of Mr. Grimm’s supporters will stand by him, and defend him.

But we also have little doubt that many on Staten Island are feeling their trust was misplaced and they were betrayed.

Over almost half a century, three different Staten Island representatives to the United States Congress have surrendered their better judgment, squandering their own significant talents that, in each instance, could have brought pride to our borough.

Instead, they brought embarrassment.

There are certain people who must be held to high standards in America. In recent months, we have seen so many examples of that. Police immediately come to mind. So does the mayor of New York.

People with whom we place our trust.

A United States congressman must be at, or certainly near, the top of that list.

Mr. Grimm the restaurateur didn’t let us down when he played fast and loose with the books. Mr. Grimm the Staten Island congressman did, when he played fast and loose with the truth.

This isn’t going away until Mr. Grimm goes away, hopefully, to prison where perhaps he’ll learn a little humility.

As David Dayen puts it, “it isn’t prison” but the consequences are at least a bit satisfying.

Finally, a Financial Executive Is Sacked for His Company’s Misdeeds

By David Dayen, The New Republic

Lets say you run a company whose misdeeds are splashed across the pages of the business section on an almost weekly basis. you might reasonably expect to be fired without delay. But then let’s stipulate that you’re in the financial service industry. Recent history suggest that you’ll be able to keep your job and your handsome bonus, and that even if law enforcement decide to penalize the company for improprieties, somebody else – like your shareholders – will pay those fines, leaving you to continue your charmed life unscathed.

William erbey, the billionaire chairman of the mortgage serving giant Ocwen, probably thought that would be his fate as well, but he didn’t anticipate the determination of New York Superintendent of Financial Services Benjamin Lawsky. On Monday, Lawsky announced that Erbey would step down from Ocwen and four related businesses, as part of the settlement of an investigation into the companies sad enduring legacy of ripping off homeowners.

The consequences for Erbey have been huge financial losses as Ocwen shares dropped 31% “after agreeing to a settlement that prevents it from acquiring mortgage-servicing rights until the company makes improvements to satisfy New York regulators.” The company must also provide $150 million for relief to homeowners and hire a monitor who will approve the appointment of two independent directors to Ocwen’s board and continue to oversee the business.

According to Forbes, poor Erbey is no longer a billionaire:

Erbey, according to Forbes’s Real Time Wealth Rankings for billionaires, lost over $300 million on Monday causing his net worth to fall to around $800 million and knocking him out of the billionaire ranks. He was worth as much as $2.5 billion in March when we published our annual listing of the world’s wealthiest. [..]

Forbes now calculates Erbey’s net worth at $802 million, as of late afternoon trading.

As Atrios said, “it’s sad that this is all we’ll get.”  

Up Date 6:00 PM ET: Rep/ Grimm announced that he will not resign his House seat despite now being a convicted felon and possibly facing up to 3 years in prison.

Up Date 3:00 PM ET 12/23/14: Rep. Micheal Grimm Brooklyn Federal Court to a count of felony tax fraud. He issued the plea before Judge Pamela K. Chen shortly after 1:30 PM ET.

His status in Congress and whether or not he resigns was not part of the plea deal.

He could face a worst-case scenario of 24 to 30 months in prison.

Sentencing was scheduled for June 8 at 10:30 a.m.

Sources told the press this afternoon that Staten Island’s Repubkican Representative Michael Grimm (NY-11) will plead guilty to a single felony count of tax evasion.

Mr. Grimm, a former Marine and agent with the Federal Bureau of Investigation who first ran for office as a law-and-order corruption fighter, is scheduled to appear in federal court in Brooklyn at 1 p.m. on Tuesday for a plea hearing, according to the docket sheet in his case, which provides no further detail.

He has said he would immediately resign if he were convicted. “If things don’t go my way, right? And I had to step down in January, then there will be a special election, and at least the people of Staten Island and Brooklyn can then have qualified candidates to choose from,” he told the radio talk-show host Geraldo Rivera in October.

After a lengthy investigation into allegations of campaign finance improprieties, federal prosecutors obtained a 20-count indictment in April charging Mr. Grimm with underreporting wages and revenue while he was running a restaurant on the Upper East Side of Manhattan called Healthalicious.

The charge carries a a penalty of up to three years in prison. However, as a first offender the judge may wave prison. Mr. Grimm has been very careful to couch his statements about stepping down if he was convicted. At his debate with Democratic Challenger Dominic Recchia, he was asked if he would resign if found guilty. He cautiously responded, “”Certainly, if I was not able to serve then of course I would step aside and there would be a special election.” If the judge is lenient, as many expect is likely, it would be up to the Republican led House to expel him.

Just prior to his latest legal predicament, Mr. Grimm displayed his bad temper when he threatened to throw NY-1 reporter, Michael Scotto, off the balcony of the Capitol Rotunda after President Barack Obama’s State of the Union address. After a lot of negative press he apologized to Mr. Scotto, who said he would not press charges.

From the New York Times article, Mr. Grimm’s troubles are not over. He is still under federal investigation for his campaign finances, the potential mob ties of one of his business associates and the illegal activities of another.

Mr. Grimm continues to be an embarrassment to the Republican Party and people he represents, even though many of them still support him. He should just resign and slink away.

In this chapter of the Obama administration’s war on freedom of the press, the cast of character are:

Jeffrey Alexander Sterling, an former employee of the CIA, was indicted, arrested, and charged with violating the Espionage Act in 2010.

James Risen, a Pulitzer Prize-winning American journalist for The New York Time, is the author of the book State of War: The Secret History of the CIA and the Bush Administration, which was discussed CIA operations, specifically Operation Merlin.

Mr. Risen was subpoenaed to testify at Mr. Sterling’s trial and would have been asked if Mr. Sterling was the source for the Operation Merlin. He refused and fought the subpoena through the courts. In July 2013, the Fourth Circuit Court of Appeals ruled that Mr. Risen would have to testify. The Supreme Court refused to hear the case. Mr. Risen said that he would not comply and was willing to go to jail. That was not the end of Mr. Risen’s fight to protect a confidential source.

Then in October 2014, Attorney General Eric Holder stated “no reporter’s going to jail as long as I’m attorney general.” On December 10, a federal court judge told prosecutors that they had a week to decide whether they enforce the subpoena.  On this Tuesday, it was announced that Mr. Risen would be subpoenaed to answer questions before the trial but there is some confusion about what those questions are:

Prosecutors say they will not ask James Risen if ex-CIA man Jeffrey Sterling was his anonymous source for part of the 2006 book “State Of War” that detailed a botched CIA effort to cripple Iran’s nuclear program. However, they do want to know if the two had a prior, on-the-record source relationship.

Risen’s lawyer, Joel Kurtzberg, said at Tuesday’s hearing that he is not sure whether his client is willing to answer the questions that prosecutors want to pose.

Furthermore, defense attorneys indicated they may also have their own questions, which puts Risen at risk of being found in contempt of court if he refuses to answer. {..}

On Tuesday, though, as prosecutors detailed what they would seek from Risen, it was unclear whether Risen would agree to the limitations. And it became equally clear that Risen may have as much to fear, if not more, from defense lawyers, who would be free to cross-examine Risen and could even seek to subpoena him themselves.

Edward MacMahon, one of Sterling’s lawyers, told Brinkema that “the notion we can sanitize this by limiting (his testimony) to two or three questions is hard for us to fathom.”

He declined comment after the hearing on whether he may seek to subpoena Risen.

Prosecutor James Trump said there is much more uncertainty about the questions Risen might face from the defense than there is about what prosecutors will seek.

Democracy Now‘s Amy Goodman and Juan González spoke to Marcy Wheeler, investigative blogger who runs EmptyWheel.net and writes for ExposeFacts.org.

In Plan for Risen Subpoena, Government Raises Sixth Amendment Interests of Jeffrey Sterling

Marcy Wheeler, Expose the Facts

December 16, 2014

The government has now submitted its explanation for the limited information it will seek from James Risen in the Jeffrey Sterling trial and pre-trial hearings.

It will ask him to confirm that:

•    He has  confidentiality agreement with his source or sources on the Merlin story (though they will not ask who those sources are)
•    He authored the Merlin chapter of his book State of War, but also one article in which he explicitly and another the government claims he relied on Sterling as a source
•    He worked with Sterling for one of those earlier stories in a non-confidential relationship

[..]

The last line of the filing, however, suggests ExposeFacts may have correctly predicted their plan. The government raises the possibility Risen will refuse to answer Sterling’s questions.

It’s obvious that the DOJ is behind the eight ball and is praying that the they will not be the reason Mr. Risen ends up behind bars.

Not to make any excuses for this man’s complicity in the commission of war crimes but former Deputy Assistant U.S. Attorney John Yoo tossed his former bosses. President George W. Bush et al,  under the bus to cover his butt just in case they are all indicted for the crimes that they committed in our names after 9/11.

Even Torture Memo Author John Yoo Thinks Rectal Feeding Was Illegal

As former Vice President Dick Cheney argued on Sunday that the CIA’s aggressive interrogation of terrorism suspects did not amount to torture, the man who provided the legal rationale for the program said that in some cases it had perhaps gone too far.

Former Justice Department lawyer John Yoo said the sleep deprivation, rectal feeding and other harsh treatment outlined in a U.S. Senate report last week could violate anti-torture laws. [..]

As Deputy Assistant U.S. Attorney General in the Office of Legal Counsel in 2002, Yoo co-wrote a memo that was used as the legal sanction for what the CIA called its program of enhanced interrogation techniques after the Sept. 11 attacks.

The memo said only prolonged mental harm or serious physical injury, such as organ failure, violated the Geneva Convention’s ban on torture. Aggressive interrogation methods like waterboarding fell short of that mark.

Prosecute John Yoo, Says Law School Dean Erwin Chemerinsky

By John Weiner, The Nation

Torture is a crime, a violation of the Federal Torture Act. Those who engaged in the torture documented in such exhaustive detail in the Senate Intelligence Committee’s torture report should be prosecuted, and those who conspired in that torture should also be prosecuted. They include UC Berkeley law professor John Yoo, says Erwin Chemerinsky, Dean of the Law School at the University of California Irvine.

Yoo was co-author of the infamous “torture memo” of 2002, when he was Deputy Assistant US Attorney General in the Office of Legal Counsel of the Bush Justice Department. In the memo he declared that-in the words of Jane Mayer in her book The Dark Side-“cruel, inhumane, and degrading treatment of detainees could be authorized, with few restrictions.” [..]

The Federal Torture Act defines torture broadly, as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering…upon another person within his custody or physical control.” The penalty for violating the Torture Act is imprisonment “for not more than 20 years.”

Most important for the case of John Yoo, the Federal Torture Act specifically includes conspiracy, stating that “a person who conspires to commit an offense under this section shall be subject to the same penalties…as the penalties prescribed for the offense.” That means Yoo could be sentenced to up to twenty years in prison if found guilty.

If upholding the law is too hard for Barack Obama and Eric Holder, then they are among the ranks of the accused torturers and should just resign.

UN Expert Calls For Prosecution Over U.S. Torture

All senior U.S. officials and CIA agents who authorized or carried out torture like waterboarding as part of former President George W. Bush’s national security policy must be prosecuted, top U.N. officials said Wednesday.

It’s not clear, however, how human rights officials think these prosecutions will take place, since the Justice Department has declined to prosecute and the U.S. is not a member of the International Criminal Court.

Zeid Raad al-Hussein, the U.N. high commissioner for human rights, said it’s “crystal clear” under international law that the United States, which ratified the U.N. Convention Against Torture in 1994, now has an obligation to ensure accountability. [..]

However, a Justice Department official said Wednesday the department did not intend to revisit its decision to not prosecute anyone for the interrogation methods. The official said the department had reviewed the committee’s report and did not find any new information that would cause the investigation to be reopened.

UN Official: Prosecute “Systematic Crimes and Gross Violations of International Human Rights Law”

Jim White, emptywheel

Ben Emmerson is the UN’s Special Rapporteur on counterterrorism and human rights. His statement released yesterday in response to the SSCI torture report points out the clear responsibilities that the US has under the Convention Against Torture and other international human rights laws to prosecute not only those who carried out torture, but those who designed the torture program and gave orders for its implementation. [..]

Emmerson doesn’t say that those responsible for the crimes should be brought to justice. He says outright that they MUST be brought to justice. Emmerson further points out that being authorized at a high level in the government gives no protection. Further, he notes a “conspiracy” to carry out the crimes.

Emmerson then goes on to destroy Barack Obama’s “look forward” bullshit and John Durham’s coverup disguised as an investigation:

   International law prohibits the granting of immunities to public officials who have engaged in acts of torture. This applies not only to the actual perpetrators but also to those senior officials within the US Government who devised, planned and authorised these crimes.

   As a matter of international law, the US is legally obliged to bring those responsible to justice. The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction. States are not free to maintain or permit impunity for these grave crimes.

Obama, Holder and Durham simply cannot grant immunity for these crimes. International law forbids it. More specifically, the Convention Against Torture, to which the US is a signatory, prohibits it. Similarly, the Convention on Enforced Disappearances also comes into play in the crimes committed by the US and also prevents the granting of immunity that Obama has tried to orchestrate.

(emphasis mine)

Mark Udall Says The CIA Is Still Lying

By Matt Sledge, Huffington Post

The CIA is still lying about its post-9/11 torture program, even in the face of a devastating Senate report, Sen. Mark Udall (D-Colo.) said Wednesday.

In a dramatic floor speech during his final month in the Senate, Udall said the CIA’s lies have been aided and abetted by President Barack Obama’s White House and called on the president to “purge” his administration of CIA officials who were involved in the interrogation program detailed in the report.

“It’s bad enough to not prosecute these officials, but to reward and promote them is incomprehensible,” Udall said. “The president needs to purge his administration.”

Udall said the lies are “not a problem of the past,” citing the CIA’s response to the 6,000-page torture report. He said the agency took seven months to write a formal comment after the Senate Intelligence Committee approved the report in December 2012 — and when it did, it was full of lies and half-truths meant to justify the agency’s actions.

MSNBC’s “All In” host Chris Hayes questions Pres. Obama’s premise that we are a “nation of laws”

A Staten Island grand jury returned a no bill of indictment against New York City police officer Daniel Pantaleo, in the strangle hold death of Eric Gardner, an African American, during a struggle with police when they attempted to arrest him for what was essentially a misdemeanor.

Only 17 July, police stopped the heavy-set father of six on Staten Island under suspicion of peddling untaxed “loose” cigarettes. Garner had been arrested previously for selling untaxed cigarettes, marijuana possession and false impersonation.

A video shot by an bystander shows Garner resisting arrest as a plainclothes officer attempts to to handcuff him. Backing away from the office, Garner tells him: “This stops today,” which has become a rallying cry for protesters in New York.

A struggle ensues. Eight-year NYPD veteran Daniel Pantaleo responds by putting his arm around Garner’s neck in a chokehold – banned under police policy – and wrestling the asthmatic man to the ground with the aid of several officers. Garner gasps “I can’t breathe” until his 350lb body goes limp. He was later pronounced dead at a hospital. [..]

The NYPD outlawed chokeholds over two decades ago, exactly because they can be deadly if administered inappropriately or carelessly. Still, between January 2009 and June 2014, the city’s Civilian Complaint Review Board, an independent agency that investigates police misconduct, received 1,128 civilian complaints involving chokehold allegations. Of these, only a small fraction of the cases are ever substantiated, just ten over the five and a half year window.

In the days after Garner’s death, Bratton said all 35,000 officers would be retrained on the department’s use of force policy.

The family has sued the city and the police department, as well as several officers involved in the incident.

Unlike the shooting of Michael Brown, the struggle that resulted in Mr. Garner’s death was caught on video that went viral.

This just another instance of the failure of prosecutors around the country to hold police accountable for the deaths of mostly black and mentally ill civilians. This needs to end.

We don’t know who set fire to the buildings in Ferguson, Missouri last week but we do know who fired the first shot, one of several that killed an unarmed African American teenager, Michael Brown, on a hot August day. We also know that a grand jury that was impaneled to determine if the white police officer, Darren Wilson, 28, should be charged, was misled by the prosecutors in the case. At the very start that were handed to laws that applied to the case. One of those laws, a 1979 Missouri statute, was found to be unconstitutional by the US Supreme Court in 1985.

MSNBC host Lawrence O’Donnell blasted St. Louis County assistant district attorney Kathy Alizadeh on Wednesday for taking weeks to tell the grand jury in the Darren Wilson case she made a major mistake regarding police officers’ right to use legal force.

“With prosecutors like this, Darren Wilson never really needed a defense lawyer,” he said.

O’Donnell said that early on in the jurors’ deliberations, Alizadeh handed them a copy of a 1979 Missouri statute saying police were “justified in the use of such physical force as he or she reasonably believes is immediately necessary to effect the arrest or prevent the escape from custody.” However, he explained, the Supreme Court found those kinds of statutes to be unconstitutional six years later. [..]

The worst part of Alizdeh’s actions, O’Donnell said, was that she did not explain how the Supreme Court decision struck the state statute down after letting jurors carry it with them for weeks.

“You will not find another legal proceeding in which jurors and grand jurors are simply handed a law, and then weeks later, handed a correction to that law,” he said. “Then the grand jurors are simply left to figure out the difference in the laws by themselves. That is, actually, something you would do in a law class.”

O’Donnell said that early on in the jurors’ deliberations, [Assistant D.A. Kathy] Alizadeh handed them a copy of a 1979 Missouri statute saying police were “justified in the use of such physical force as he or she reasonably believes is immediately necessary to effect the arrest or prevent the escape from custody.” However, he explained, the Supreme Court found those kinds of statutes to be unconstitutional six years later….

“She was taking the hurdle that Darren Wilson had to get over in his testimony, and flattening it,” O’Donnell argued. “She was making it impossible for Darren Wilson to fail in front of this grand jury.”

This was just one of many stunning events, called “errors” and “failures” by the mainstream media, but smack of a conspiracy to protect a white police officer from prosecution.

1. Wilson washed away blood evidence.

In an interview with police investigators, Wilson admitted that after the shooting he returned to police headquarters and washed blood off his body — physical evidence that could have helped to prove or disprove a critical piece of Wilson’s testimony regarding his struggle with Brown inside the police car. He told his interrogator that he had blood on both of his hands. “I think it was his blood,” Wilson said referring to Brown. He added that he was not cut anywhere. [..]

2. The first officer to interview Wilson failed to take any notes.

The first supervising officer to the scene, who was also the first person to interview Wilson about the incident, didn’t take any notes about their conversation. In testimony more than a month after the incident, the officer offered his account from memory. He explained that he hadn’t been equipped with a recorder and hadn’t tried to take any written notes due to the chaotic nature of the situation. He also didn’t write up any notes soon after the fact. [..]

3. Investigators failed to measure the likely distance between Brown and Wilson.

An unnamed medical legal examiner who responded to the shooting testified before the grand jury that he or she had not taken any distance measurements at the scene, because they appeared “self-explanatory.”

“Somebody shot somebody. There was no question as to any distances or anything of that nature at the time I was there,” the examiner told the jury. [..]

4. Investigators did not test Wilson’s gun for fingerprints.

Talking with police investigators and before the grand jury, Wilson claimed that Brown had grabbed at Wilson’s gun during the initial incident in the police car and that Brown’s hand was on the firearm when it misfired at least once. [..]

5. Wilson did not immediately turn his weapon over to investigators after killing Brown.

A detective with the St. Louis County Police Department, who conducted the first official interview of Wilson, testified to the grand jury that Wilson had packaged his own service weapon into an evidence envelope following his arrival at the police station in the wake of the shooting. [..]

6. An initial interview with investigators was delayed while Wilson traveled to the hospital with his superiors.

The same St. Louis County Police Department detective also testified that while he had intended to conduct his initial interview with Wilson at the Ferguson police station, a lieutenant colonel with the Ferguson Police Department decided that Wilson first needed to go to the hospital for medical treatment. [..]

7. Wilson’s initial interview with the detective conflicts with information given in later testimony.

In his first interview with the detective, just hours after Brown’s death, Wilson didn’t claim to have any knowledge that Brown was suspected of stealing cigarillos from a nearby convenience store. The only mention of cigarillos he made to the detective was a recollection of the call about the theft that had come across his radio and that provided a description of the suspect.

Law professors and legal the manner in which St. Louis County Prosecutor Robert McCulloch conducted this grand jury, questioning the unusual press conference presentation of the non-indictment and legal procedures were followed appropriately, adequately or fairly.

Ben Trachtenberg, an associate professor of law at the University of Missouri School of Law, said the entire announcement “read like a closing argument for the defense,” while Susan McGraugh, an associate professor at the Saint Louis University School of Law, said she was “furious” when she watched it.

“Bob McCulloch took a very defensive posture,” McGraugh said. “It was a poor choice to be so confrontational in presenting a grand jury verdict that he had to know would upset a large number of people. He should have left out the editorializing.” [..]

The astonishing rarity of a grand jury declining to indict a suspect has led many to believe that McCulloch did not make a sincere effort to prove probable cause.

“The prosecutor did not want an indictment, and he passed the buck to the grand jury to make that decision,” said Cohn, who is also a former president of the National Lawyers’ Guild. “It was clear the prosecutor was partisan in this case, and not partisan in the way prosecutors usually are, which is to get people indicted.” [..]

Even Supreme Court Antonin Scalia understands the purpose of the grand jury should not be a trial in secret.

Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, explained what the role of a grand jury has been for hundreds of years.

   It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

This passage was first highlighted by attorney Ian Samuel, a former clerk to Justice Scalia.

In contrast, McCulloch allowed Wilson to testify for hours before the grand jury and presented them with every scrap of exculpatory evidence available. In his press conference, McCulloch said that the grand jury did not indict because eyewitness testimony that established Wilson was acting in self-defense was contradicted by other exculpatory evidence. What McCulloch didn’t say is that he was under no obligation to present such evidence to the grand jury. The only reason one would present such evidence is to reduce the chances that the grand jury would indict Darren Wilson.

Political analyst and author, Earl Ofari Hutchinson suggested that President Barack Obama take cue from one of his predecessors Pres, George H. W. Bush and look no further than Rodney King:

In August 1992, nearly three months to the day after the four LAPD officers that beat black motorist Rodney King were acquitted on nearly all charges by a jury with no blacks on it, Lourdes G. Baird, the United States Attorney for California’s Central District, stepped before a battery of news cameras and reporters and announced that three of the officers would face federal charges. The charges were violating King’s Fourth Amendment protection against unreasonable arrest and with depriving him of his 14th Amendment due-process rights during his March, 1991 arrest. The four would face up to 10 years in prison and $250,000 in fines if convicted.

The Justice Department’s decision to prosecute rested squarely on two compelling legal and public interest points, neither of which significantly involved any need to proof racial animus. The legal charges were that the officers who beat King acted under the color of the law. This violated a near century old federal statute that makes it a crime to deprive any person of a Constitutional right under the color of law. The statute specifically targeted police officers and public officials who abuse their authority and violate public trust by physically victimizing citizens. [..]

Brown as was King was unarmed. Brown and King were not charged with a crime when detained. Brown as King received injuries after he ceased resisting. Brown as King was abused during an official stop. These, as they were with King, are compelling civil rights violations.

This is not about race, although I do believe it was a factor in this case based on Off. Wilson’s description of Mr. Brown own testimony. It is, however, about police excessive of force and law and for that there is a strong case against Off. Wilson. The Question is does Pres. Obama have the spine to give Michael Brown the justice he deserves.

The Senate was briefly in session this week where it took cloture votes on two note worthy bills. One to approve the Keystone XL pipeline and the second called the USA Freedom Act, would vaguely reform the NSA by limiting their ability to spy on Americans. Both bill failed.

Regardless of the denials by the Democratic leadership, the Keystone bill was brought to a vote in a vain attempt to save Louisiana’s Senator Mary Landrieu’s seat. While the Republicans would have bee gleeful of it had passed, the bill failed to reach cloture by one vote. The incoming leadership has vowed to bring it to the floor one more time.

The USA Freedom Act was another deal. Since the the likelihood this bill would never see the light of day in the next session, it was thought there were enough votes for cloture. There weren’t. It was roundly shouted down by Republicans because the Islamic state is coming to kill us.

NSA Reform Bill Dies As Republicans Hype Threats From Islamic State

Dan Froomkin, The Intercept

Supporters of the USA Freedom Act, including privacy groups and technology companies, had considered it an essential first step toward ending the NSA’s overreach. But Senate Minority Leader Mitch McConnell set the tone for the day in the morning, actively encouraging his caucus to block the measure, citing concerns that it would hurt the fight against such groups as the Islamic State. Republicans also took their cues from an op-ed in the Wall Street Journal, in which former CIA and NSA director Michael Hayden and former attorney general Michael Mukasey described the bill as NSA Reform That Only ISIS Could Love.

With Republicans taking control of the Senate in January, a vote during the current lame-duck session was widely considered the bill’s last, best shot.

The USA Freedom Act would have ended the government’s bulk collection of domestic phone records, forcing officials to make specific requests to phone companies. It would also have ended the law-enforcement monopoly on arguments before the secretive surveillance court by creating a role for a special advocate. And it would have required that significant court opinions be made public.

Writing for The Guardian, Trevor Timm thinks that the Republican may have shot themselves in the foot by opposing the bill:

But the Republicans – and NSA supporters everywhere – may have made a mistake that will come back to haunt them. They killed a measure that many reformers were holding their nose while supporting, and six month from now – by the middle of 2015 – they may have several even bigger fights on their hands. [..]

(T)he legislation Republicans just blocked also would have effectively shut down several promising lawsuits against the NSA in federal court and another case where National Security Letters were already ruled unconstitutional.

Now many of those cases, already in the appeals stage, may be decided within the next six months, and if the oral arguments are any indication, the US government may be in trouble. Indeed, the conservative justices may be willing to do more for your privacy than conservative lawmakers, as Judge Richard Leon proved last year when he ruled that the NSA’s phone surveillance program is likely unconstitutional.

But here’s the real reason the the USA Freedom Act’s failure could backfire on its biggest supporters: As I’ve mentioned before, Section 215 of the USA Patriot Act – the law that was re-interpreted in secret to allow for mass phone metadata surveillance in the first place – comes up for renewal next summer. It has to be reauthorized before June, or it will disappear completely.

And even though the Republicans will be in control next year, they won’t be able to pull the same stunts they did on Tuesday. Everyone knows getting “no” votes is a lot easier than getting a “yes”. And this time they’ll need 60 “yes” votes, plus the support of the House of Representatives, where we know already there are likely enough votes to kill an extension of the Patriot Act.

At the New York Times, Charles Savage found a little noticed provision in the Patriot Act that grandfathered on going investigations even if section 215 sunsets:

   The law says that Section 215, along with another section of the Patriot Act, expires on “June 1, 2015, except that former provisions continue in effect with respect to any particular foreign intelligence investigation that began before June 1, 2015, or with respect to any particular offense or potential offense that began or occurred before June 1, 2015.”

   Michael Davidson, who until his retirement in 2011 was the Senate Intelligence Committee’s top staff lawyer, said this meant that as long as there was an older counterterrorism investigation still open, the court could keep issuing Section 215 orders to phone companies indefinitely for that investigation.

   “It was always understood that no investigation should be different the day after the sunset than it was the day before,” Mr. Davidson said, adding: “There are important reasons for Congress to legislate on what, if any, program is now warranted. But considering the actual language of the sunset provision, no one should believe the present program will disappear solely because of the sunset.”

   Mr. Davidson said the widespread assumption by lawmakers and executive branch officials, as well as in news articles in The New York Times and elsewhere, that the program must lapse next summer without new legislation was incorrect.

   The exception is obscure because it was recorded as note accompanying Section 215; while still law, it does not receive its own listing in the United States Code. It was created by the original Patriot Act and was explicitly restated in a 2006 reauthorization bill, and then quietly carried forward in 2010 and in 2011.

While over at The Intercept, journalist and author, Glenn Greenwald found watching the Senate debate was “like watching a repeat of some hideously shallow TV show”. As he noted, congress is irrelevant on mass surveillance and points out what really matters:

The entire system in D.C. is designed at its core to prevent real reform. This Congress is not going to enact anything resembling fundamental limits on the NSA’s powers of mass surveillance. Even if it somehow did, this White House would never sign it. Even if all that miraculously happened, the fact that the U.S. intelligence community and National Security State operates with no limits and no oversight means they’d easily co-opt the entire reform process. That’s what happened after the eavesdropping scandals of the mid-1970s led to the establishment of congressional intelligence committees and a special FISA “oversight” court-the committees were instantly captured by putting in charge supreme servants of the intelligence community like Senators Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and “Dutch” Ruppersberger, while the court quickly became a rubber stamp with subservient judges who operate in total secrecy. [..]

In pretty much every interview I’ve done over the last year, I’ve been asked why there haven’t been significant changes from all the disclosures. I vehemently disagree with the premise of the question, which equates “U.S. legislative changes” with “meaningful changes.” But it has been clear from the start that U.S. legislation is not going to impose meaningful limitations on the NSA’s powers of mass surveillance, at least not fundamentally. Those limitations are going to come from-are now coming from -very different places:

1) Individuals refusing to use internet services that compromise their privacy. The FBI and other U.S. government agencies, as well as the U.K. Government, are apoplectic over new products from Google and Apple that are embedded with strong encryption, precisely because they know that such protections, while far from perfect, are serious impediments to their power of mass surveillance. To make this observation does not mean, as some deeply confused people try to suggest, that one believes that Silicon Valley companies care in the slightest about people’s privacy rights and civil liberties. [..]

2) Other countries taking action against U.S. hegemony over the internet. Most people who claim nothing has changed from the Snowden disclosures are viewing the world jingoistically, with the U.S. the only venue that matters. But the real action has long been in other countries, acting individually and jointly to prevent U.S. domination of the internet. [..]

3) U.S. court proceedings. A U.S. federal judge already ruled that the NSA’s domestic bulk collection program likely violates the 4th Amendment, and in doing so, obliterated many of the government’s underlying justifications. Multiple cases are now on appeal, almost certainly headed to the Supreme Court. None of this was possible in the absence of Snowden disclosures. [..]

4) Greater individual demand for, and use of, encryption. In the immediate aftermath of the first Snowden reports, I was contacted by countless leading national security reporters in the U.S., who work with the largest media outlets, seeking an interview with Snowden. But there was a critical problem: despite working every day on highly sensitive matters, none of them knew anything about basic encryption methods, nor did their IT departments. Just a few short months later, well over 50 percent of the journalists who emailed me did so under the protection of PGP encryption. Today, if any journalist emails me without encryption, they do so apologetically and with embarrassment. [..]

The changes from the Snowden disclosures are found far from the Kabuki theater of the D.C. political class, and they are unquestionably significant. That does not mean the battle is inevitably won: The U.S. remains the most powerful government on earth, has all sorts of ways to continue to induce the complicity of big Silicon Valley firms, and is not going to cede dominion over the internet easily. But the battle is underway and the forces of reform are formidable-not because of anything the U.S. congress is doing, but despite it.

The USA Freedom Act would have made little difference to the unlawful NSA. What matters now is what the courts and we do to preserve our rights.