As Rhodes tells it, “If the history and character of a man is to be judged by what he creates and how that organization functions within and for the benefit of society, then it is imperative that the Court give great deference to Mr. Rhodes for the 12 years of service and dedication of the Oath Keepers, as evinced through the organizations’ [sic] history of community involvement and volunteerism in times of natural disasters and civil unrest.”  The revisionist history that follows that statement is belied by the many lawless anti-government actions that have been the hallmark of the Oath Keepers over the last decade.

The Oath Keepers self-describe as “a non-partisan association of current and formerly serving military, police, and first responders … who pledge to fulfill the oath all military and police take to ‘defend the Constitution against all enemies, foreign and domestic,’” while declaring that they “will not obey unconstitutional orders.”  Led by Rhodes, the paramilitary organization has frequently mobilized—heavily armed—against what they apparently have deemed “unconstitutional orders.”

This includes participating in the armed standoff against federal agents in Bunkerville, Nevada in 2014 to forcibly prevent the Bureau of Land Management (BLM) from removing rancher Cliven Bundy’s cattle from federal lands where they had been illegally grazing for decades. The standoff ended with federal agents backing down in the face of sniper rifles trained at their heads.

The record of the Oath Keepers also includes the armed defense of two gold miners in Oregon to whom BLM had issued notice that their mining was not an allowed use of the property.  The record includes the paramilitary group’s armed defense of miners in Montana after the Forest Service raised concerns about the miners’ claim and their unapproved construction on Forest Service land.  And it includes participating in the 41-day armed occupation of the Malheur Wildlife Refuge in Oregon in 2016 in opposition to the imprisonment of two ranchers convicted of arson for setting fire to federal lands.  That standoff resulted in the death of one of the leaders of the occupation, and the Oath Keepers threatening the federal government with civil war.

But you wouldn’t know about any of this armed opposition to federal authorities by reading Rhodes’s sentencing memorandum.  Instead, you’d read about the Oath Keepers participating in “humanitarian and security efforts” in Texas after Hurricane Harvey, and “providing security details and services” during civil unrest in Ferguson, Missouri, after the police killing of Michael Brown. Never mind that private, unsanctioned militias have no authority to engage in law enforcement functions, or that, in Ferguson, local authorities were forced to intervene and demand that the Oath Keepers stop their  operations after they began “walking the rooftops of businesses” with “semi-automatic rifles,” in violation of county ordinances.

You also wouldn’t know from Rhodes’s memorandum that in the midst of the first impeachment proceedings against Donald Trump, Rhodes used Twitter to argue that under the U.S. Constitution, “the militia (that’s us) can be called forth ‘to execute the Laws of the Union, suppress Insurrections and repel Invasions.’ … “All he has to do is call us up. We WILL answer the call.” Another tweet made clear that the Oath Keepers’ “favorite rifle is the AR 15.”

Rhodes’s insurrectionist ideology wasn’t new.

In 2018, he launched a “Spartan Training Group program” to create “a pool of trained, organized volunteers who will be able to serve as the local militia under the command of a patriotic governor loyal to the Constitution, or if called upon by President Trump to serve the nation.”  By early 2020, concerned that Virginia’s newly “blue” state legislature would pass gun regulations, Rhodes announced that the  Oath Keepers would “deploy” to Virginia to help sheriffs “raise and train an official armed posse in each county” to resist the allegedly unconstitutional actions of the Democratic governor. (For more on the historical record, see the letter we submitted to the federal court for the purpose of sentencing.)

In light of this history, it is no surprise that Rhodes led the Oath Keepers in pre-planning and attempting an insurrection at the U.S. Capitol when their preferred candidate failed to win enough electoral votes.  He should get no credit for founding the very organization that has repeatedly taken up arms against the government and threatened law enforcement authorities.

Photo credit: Department of Justice 

The post Stewart Rhodes Should Get No Leniency For Leading Anti-Government Paramilitary Group appeared first on Just Security.

Editor’s note: The video below is also available on C-SPAN.

IMAGE: Investigators who worked on the January 6th Committee, including Mary B. McCord (L) and Jacob Glick (R) speak at the Georgetown University Law Center about the ongoing threat of violent domestic extremism on Feb. 23, 2023. (via C-SPAN) 

The post Video: January 6th Investigators Speak About Ongoing Threats of Violent Extremism appeared first on Just Security.

Photo credit: An armed member of the Boogaloo militia shows off ammunition to the media in front of the State Capital in Concord, New Hampshire on January 17, 2021 (Joseph Prezioso/AFP via Getty Images)

The post January 6th Report Exposes Ongoing, Converging Threat of Anti-Democracy Schemes and Paramilitary Violence appeared first on Just Security.

That said, just two of the five Oath Keepers who were tried on the seditious conspiracy charge were found guilty of it, although all five were convicted of obstructing an official government proceeding, as well as other offenses, that carry the same maximum 20-year sentence as seditious conspiracy. One might ask, then, whether it really was a victory for the Justice Department when three defendants were found not guilty of the lead charge. One might similarly ask why the government even bothered charging seditious conspiracy when the obstruction offense, which does not require proof of a conspiracy or proof of the use of force, is arguably easier to prove.

According to Department of Justice Guidance, before seeking charges, prosecutors must determine whether the prosecution would serve a substantial federal interest. This can hardly be in question for an attack on the seat of federal government, against the two houses of the legislative branch meeting in a joint session to count the Electoral College ballots that determine the presidency. Department guidance further requires, when a decision to prosecute is made, that “the government should charge and pursue the most serious, readily provable offenses.” The government must believe that the admissible evidence will probably be sufficient to prove every element of the offenses charged beyond a reasonable doubt.

It can be a tough decision for the Department to charge seditious conspiracy despite strong evidence that would prove the crime, because the Department’s track record is simply not good when it comes to charging this offense against domestic paramilitary and white nationalist organizations. A prosecution against a Christian nationalist militia in a federal court in Michigan in 2012 foundered at trial. The indictment alleged the group, called the “Hutaree,” were conspiring to kill a law enforcement officer in order to draw additional law enforcement officers from across the nation to the funeral, where the Hutaree would use explosives to attack them and thereby catalyze a more widespread uprising against the government. The plot was thwarted before any law enforcement officers were killed, and the trial judge dismissed the case after trial, concluding that the government’s evidence of speeches by the group’s leader and participation in military-style training were largely protected speech and association, and that their plot against local law enforcement was insufficient to establish a conspiracy to forcibly oppose the authority of the United States government. Going further back, the Justice Department’s seditious conspiracy charges against members of the KKK and Aryan Nations for plotting to overthrow the government and establish an all-white nation in the Pacific Northwest resulted in acquittals after a jury trial in Arkansas in 1988 (although the defendants were serving long sentences for other violent crimes related to their white-supremacist activities). And going much further back, a jury in New York in 1940 acquitted members of the “Christian Front,” an anti-Semitic paramilitary organization founded by the Reverend Charles E. Coughlin to engage in warfare against Communists and Jews. (Seditious conspiracy charges against Islamist extremists who plotted violent jihad against the United States, on the other hand, have fared better.)

The Department of Justice made the right choice in charging seditious conspiracy — despite the three acquittals and despite the fact that the offenses for which all were found guilty carry the same penalty. First, we know that this jury spent three days carefully parsing the evidence against each of the five defendants charged with multiple felony offenses. It is not surprising to prosecutors that jurors sometimes use their verdicts to align their own judgments about relative culpability in a conspiracy, even when evidence is sufficient to prove the charges against all defendants. Although we may never know for sure, as jury deliberations are secret unless the jurors themselves choose to discuss them, it would not be outrageous for them to determine that the evidence of seditious conspiracy was strongest against the Oath Keepers leader, Stewart Rhodes, and the Florida chapter leader, Kelly Meggs. The acquittals of three, especially in light of the multiple felony guilty verdicts against all five, do not signal that the Department was wrong to bring seditious conspiracy charges.

Second, as mentioned above, seditious conspiracy best fits the evidence of what led to and culminated on January 6. The evidence the government introduced showed coordination and planning starting right after the 2020 election. And importantly, unlike the case against the Hutarees in 2012, the evidence did not leave the jury guessing whether the defendants were just engaging in violent hyperbole with no intent to act upon it. To the contrary, the defendants did what they planned to do—they engaged in a forcible attack on the U.S. Capitol that did both “hinder” and “delay” the execution of the laws of the United States. The counting of the electoral ballots was halted for approximately six hours while members of both the House and Senate, including Vice President Mike Pence, fled the House chambers and took cover in safer locations. It was only after the National Guard assisted local law enforcement in clearing the Capitol of attackers and re-establishing order that Congress could resume its constitutionally required duty.

And third, at least as to Rhodes, it was important to hold him accountable for exactly what he has been advocating, training, and conspiring to do for years. Putting aside his and the Oath Keepers’ involvement in armed standoffs against federal agents over federal land management in Bunkerville, Nevada, in 2014, and elsewhere in the western states, Rhodes has been agitating for violence against the government on a different scale in recent years. In October 2019, as the U.S. House of Representatives was investigating the events that led to the first impeachment of President Trump, the Oath Keepers publicly announced their intent to come to Trump’s defense should there be an attempt to remove him from office. Rhodes told the Oath Keepers’ 24,000 Twitter followers that all the president needed to do was call them up: “We WILL answer the call,” he tweeted. He also threatened violence, stating that the Oath Keepers’ “favorite rifle is the AR 15.” When Trump suggested in a tweet that his removal could cause a civil war and that the impeachment proceedings were a “COUP,” Rhodes urged his Twitter followers to read Trump’s tweets, arguing: “This is where we are. We ARE on the verge of a HOT civil war.” Rhodes’s meaning was clear—even if the impeachment process established by the U.S. Constitution were to result in conviction by the Senate, Rhodes was prepared to command his unauthorized paramilitary organization to violently wage war against those attempting to carry out the president’s removal from office.

By early 2020, just after a fall 2019 election in which Democrats won the governorship and both houses of the Virginia state legislature, Rhodes was encouraging insurrection against the state government should there be an attempt to enforce new gun-safety legislation. The Oath Keepers announced in January 2020 that the group was deploying to Virginia to “focus on helping Sheriffs raise and train an official armed posse in each county, under command of the Sheriff, and on organizing, training, and equipping official county militia, under the authority of the county government.” Never mind that there is no authority under federal or state law for private groups or counties to create their own militias operating outside the command of the governor; Rhodes expected these militias to forcibly oppose the governor. On a now-deleted webpage, the Oath Keepers claimed these county-level militias would be in “resistance to the unconstitutional and dangers[sic] actions of the Governor” and urged every county to create one because “when a town or county government stands up, that pits one government entity against another.”

It’s no wonder, then, that Rhodes would be at the forefront of organizing to forcibly oppose the execution of U.S. laws when Trump sought to remain in office after losing the 2020 election. On November 10, 2020, Rhodes told Alex Jones, of Infowars, that the Oath Keepers already had men “stationed outside D.C. as a nuclear option in case they attempt to remove the president illegally.” By early December, Rhodes encouraged Trump to invoke the Insurrection Act, pledging that the Oath Keepers and their allies would otherwise have to take matters into their own hands. As January 6 drew closer, Rhodes announced that the Oath Keepers would “show Congress that we the people will not stand for the election to be stolen to plant an imposter Chicom puppet in the White House. Stand now, or kneel forever.”

We now know, thanks to the evidence introduced at the Oath Keepers trial, as well as the work of the House Select Committee to Investigate the January 6th Attack on the United States Capitol, that the Oath Keepers, under Rhodes’s leadership and direction, did indeed take matters into their own hands. Trump never invoked the Insurrection Act (not that it would have been legal for him to manufacture an insurrection and then invoke the Act to call up private paramilitary organizations operating outside of governmental control), but the Oath Keepers violently assaulted the Capitol nonetheless, hindering and delaying the counting of the Electoral College ballots. Rhodes’s comments after the attack were among the most incriminating: “My only regret is that they should have brought rifles,” to which he added, “We could have fixed it right there and then.”

Indeed, the Rhodes prosecution is a template for the trial of Proud Boys leader Enrique Tarrio, who surely understands the significance of the Oath Keepers verdicts. The evidence expected to be introduced against Tarrio and his group is at least as compelling. Among the incriminating statements by Tarrio is his posting a message following a Proud Boys member asking at 2:39 p.m. on January 6, “Are we a militia yet?” “Yep,” Tarrio responded, followed by “Make no mistake … ” and “We did this ….”

The government rightly charged Stewart Rhodes and other Oath Keepers with exactly what they did: “knowingly conspire, confederate, and agree . . . by force to prevent, hinder, and delay the execution of any law of the United States.” Rhodes finally, and rightly, is being held to account. The Justice Department is on the right track to hold others to account in the coming weeks.

Photo credit: U.S. Attorney General Merrick Garland, alongside Department leadership, delivers remarks regarding verdict in the trial of several Oath Keepers leaders and members, at the Department on Justice on November 30, 2022 (Pete Marovich/Getty Images)

The post The Government Was Right to Charge Seditious Conspiracy appeared first on Just Security.

A year after the January 6 attack on the U.S. Capitol, the United States remains politically and culturally polarized. Recent polling suggests alarming numbers of Americans believe that violence against the government may be justified. Many factors have led to this, requiring many different solutions, but one of the most dangerous developments has been the proliferation of unauthorized paramilitary organizations. Such organizations have been a significant contributor to the growing perception that political violence is acceptable, if not inevitable. The growth of these groups is also a result of these public sentiments, creating a vicious cycle. The threat posed by unauthorized paramilitary organizations—frequently referred to as “militias”—is an identifiable problem that can be addressed at least in part through federal legislation. Now is the time for Congress to enact a federal prohibition on unauthorized paramilitary activity.

The Growing Threats to Public Safety

A federal law would serve important public safety and national security purposes.  Increasingly since the 2017 Unite the Right rally in Charlottesville, Virginia, heavily armed, unauthorized private militias have used shows of force and paramilitary tactics to intimidate and coerce. They have risen up against governmental authorities by storming statehouses in opposition to pandemic-related public health measures, terrorizing lawmakers and constituents seeking to participate in the democratic process. They have usurped legitimate law enforcement functions by providing unauthorized and unrequested armed security at public demonstrations, intimidating others from exercising their freedoms of expression and peaceful assembly. And as the allegations in the seditious conspiracy indictment of 11 members of the Oath Keepers make plain, they have recruited, trained, planned, and used violence in an attempt to prevent the peaceful transfer of power from one president to the next.

The ideology of unauthorized militias does not stack up on only one side of the political spectrum. In Charlottesville, the efforts of heavily armed private militias to protect the white nationalists protesting the removal of confederate monuments were met with heavily armed private militia members seeking to protect those of opposing views. In Louisville, Kentucky, unauthorized heavily armed rival militias faced off against each other during demonstrations for racial justice after the police shooting of Breonna Taylor, with police donning riot gear to keep them separate. Although the protesters and counterprotesters demonstrating in Charlottesville, Louisville, and at the U.S. Capitol have a right to make their views known, they do not have a right to deploy in public as private armies, arrogating to themselves when and under what circumstances to use lethal force.

Within Reach of the Law

Notwithstanding the mythology promoted by unauthorized militia organizations, there is no federal or state authority for groups of individuals to form their own private armies. The “well regulated Militia” referenced in the Second Amendment has since before the founding meant regulated by the government, not private actors, as early militia laws in the colonies made very clear. The constitutions of 48 states memorialized this understanding, providing that in all cases the military must be strictly subordinate to civilian governmental authority.  And the U.S. Constitution further solidified these institutional relationships, giving Congress the authority “[t]o provide for calling forth the Militia” and “[t]o provide for organizing, arming, and disciplining, the Militia,” while reserving the appointment of officers and training to the states. Congress then exercised its authority to create the state National Guard system while also authorizing the states to form additional state militias as necessary. Over the years, states have exercised their authority by enacting legislation establishing the state militias and making them answerable to the governor as commander in chief. But there is simply no authority—under federal or state law—for private groups to form their own militias.

Nor does the Second Amendment protect private militias. The Supreme Court has been clear since the 1886 case of Presser v. Illinois that the government must be able to prohibit private paramilitary organizations as “necessary to the public peace, safety, and good order.” Upholding an Illinois statute barring groups of men from associating together as military organizations or drilling or parading with arms in public, the Court said it was clear that the statute did “not infringe the right of the people to keep and bear arms,” and, indeed, that “[m]ilitary organization and military drill and parade under arms … are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers.” The 1886 decision has maintained its validity to this day with its central premise reiterated in the Court’s 2008 decision in District of Columbia v. Heller, which held for the first time that the Second Amendment protects an individual right to bear arms for self-defense. The Court pointedly contrasted that result with private militia groups, restating that the Second Amendment “does not prevent the prohibition of private paramilitary organizations.”

State Law Prohibitions

Indeed, all 50 states have prohibitions on private paramilitary activity. They do this through the strict subordination clauses in their constitutions; anti-militia statutes like the one upheld in Presser, which remain on the books in 29 states; and anti-paramilitary-activity laws in 25 states that generally bar teaching, demonstrating, instructing, training, and practicing in the use of firearms, explosives, or techniques capable of causing injury or death for use during or in furtherance of civil disorder. Some states also prohibit falsely assuming the functions of law enforcement or wearing military uniforms or uniforms confusingly similar to military uniforms.

The Need for Federal Legislation

With this robust body of state law, one might ask why a federal law is necessary. Simply put, with rare exceptions, these state laws are not used. There are likely many reasons for this.

First, state officials responsible for public safety may be unaware of provisions of their state constitutions that subordinate all military organizations to the civilian governmental authority. These provisions often date to the founding of the states and have received very little attention. Moreover, even if state officials are aware that their state constitution does not permit rogue militias, they may question whether implementing legislation is needed for enforcement. Although recent precedent in Virginia and New Mexico confirms that the strict subordination clauses in those states’ constitutions are self-executing, there is little, if any, case law making that clear elsewhere.

Similarly, state public safety officials may not be aware of their own state’s anti-militia or anti-paramilitary-activity laws. The anti-militia laws date to the late nineteenth and early twentieth centuries and have been used only infrequently in the last 50 years. The anti-paramilitary-activity laws had their genesis in the proliferation of Ku Klux Klan (KKK) training camps in the 1970s and 1980s and, although used successfully after their passage, gathered dust on the shelf as KKK activity waned.

Moreover, these laws are criminal statutes, which require local law enforcement resources to investigate and prosecute. They are not the bread-and-butter of most local law enforcement, whose work includes a steady diet of drug, assault, and property crimes. Resource-strapped police departments, sheriffs’ offices, and prosecutors’ offices may prioritize building the kinds of cases with which they are most familiar and know how to prove at trial. Although it would be logical for state attorneys general to launch investigations into paramilitary organizations operating in their states, many state attorneys general do not have general criminal law enforcement authority. And although some of the most recent successful uses of these laws have been in civil cases seeking injunctive relief (i.e., court orders to prohibit the unauthorized activity in the future), the use of criminal statutes as a basis for civil enforcement remains relatively novel.

Finally, politics undoubtedly plays a role. The enforcement of state laws is the responsibility of elected prosecutors, elected sheriffs, and police chiefs either elected or appointed by local elected officials. Where their constituents support unauthorized militias—as is often the case in jurisdictions where anti-government ideology predominates and the population is heavily in favor of expansive gun rights—it is no surprise that local officials would choose not to enforce the anti-militia laws they have available. Worse, in some areas of the country, elected sheriffs who call themselves “constitutional sheriffs,” in reference to their view that they answer to no one except the constitution as they interpret it, openly support unauthorized militia activity as necessary to counter the purported tyranny of government as they see it.

Even if none of these barriers to state and local enforcement existed, there would still be a compelling need for federal action. As the mobilizations from well before Charlottesville have shown, unauthorized paramilitary organizations regularly travel across state lines, join with other paramilitary organizations in their armed activity, and create a public safety and national security threat that transcends the boundaries of any local or state jurisdiction. When Cliven Bundy called for help after the federal government attempted to seize his cattle for non-payment of decades of grazing fees on federal lands in Nevada in 2014, hundreds of unauthorized militia members came from multiple states. The armed standoff, during which militia members trained their rifles on federal agents, ended with the federal government relinquishing the cattle and retreating. Unauthorized militia members acted similarly a few years later, traveling from across the country to take over the Malheur Wildlife Refuge in Oregon in protest against the imprisonment of a father and son convicted of arson for setting fires on federal land more than a decade earlier. The ensuing standoff ended only after a militia member fleeing law enforcement was shot and killed.

The list goes on and on. Militia members from states as far away as Washington traveled to Charlottesville to join with others who used their paramilitary tactics and assault-style rifles to interpose themselves between protesters and counterprotesters. Members of an accelerationist militia trained in Georgia, built a machine gun in Delaware, and planned to start a civil war in Virginia to hasten their effort to create a white ethno-state in the Pacific Northwest. Militia members from multiple states conducted planning in Ohio and trained in Michigan to kidnap Michigan Governor Gretchen Whitmer because of public health measures she ordered in response to the COVID-19 pandemic. Militia members from Texas, Florida, Ohio, Alabama, Georgia, Virginia, and Arizona trained for, traveled to, and assaulted the U.S. Capitol, while also manning an arsenal of weapons for a Quick Reaction Force just outside Washington, D.C. The threat involves interstate activity, and the response requires the superior resources and capacity of the federal government.

Designing a New Federal Statute

A federal statute prohibiting unauthorized paramilitary activity should provide not only criminal penalties, but perhaps more importantly, civil enforcement mechanisms. Criminal prosecutions, while necessary for accountability, apply solely to the individuals or entities who are prosecuted. They do not provide the kind of forward-looking relief that civil enforcement can provide. A federal statute should authorize the U.S. Attorney General and U.S. Attorneys nationwide to institute a civil action for preventive relief, including by injunction or restraining order, against those engaged in prohibited paramilitary activity. Moreover, people who have been injured as a result of unlawful paramilitary activity should have a cause of action for preventive relief, monetary damages, or both.

Congress has the power under the Commerce Clause as well as the Militia Clauses and Necessary and Proper Clause to enact such legislation. It should bar people—while armed and in conjunction with an unauthorized paramilitary organization—from publicly patrolling, drilling, or engaging in paramilitary techniques; interfering with government proceedings; asserting authority over others without legal right; intimidating others in the exercise of their constitutional rights; or training to do any of these acts.  These prohibitions would not infringe the Second Amendment’s individual right to bear arms for self-defense. Nor would prohibitions on conduct infringe First Amendment rights; even if the conduct contains elements of speech or expression, it may be regulated as long as the restriction is tailored to further an important government interest.

The government interests here are obvious and paramount. Unauthorized paramilitary organizations, regardless of ideology, threaten the constitutional rights and physical safety of members of the public, elected officials, law enforcement officers, and even the military. Congress should act now to defuse the powder keg of violence these militias present.

The post Congress Can and Should Address the Threat from Unauthorized Paramilitary Activity appeared first on Just Security.

So, shot by shot, angle by angle, clip by clip, and timestamp by timestamp, this is what we saw on the video:

There was an angry group gathering outside of the American building;

Members of the group appeared fired-up and seething with contempt and pure hatred;

Some wore clothing with distinct and clear markings;

Most did not cover their faces;

Some were carrying oversized flags that depicted their ideology;

Some had firearms, many did not;

They chanted in unison with fists raised in the air;

They stormed the American facility with ease;

At first, they strolled around the compound, seemingly surprised that they made it into this sacred place, and then they appeared nonchalant and arrogant;

We saw the attackers destroying everything in sight with abandon;

Vigorously smashing windows;

Forcefully kicking in doors;

Ravaging offices and rooms; and

Some of the attackers stole items from the buildings, including laptops belonging to American officials, highly sensitive material, and souvenirs of their attack.

During the course of the investigation, we learned that while American officials were holed up in safe rooms, they placed several calls pleading for the U.S. government to send help.

We learned that the individuals entrusted with safeguarding the occupants inside the building were overwhelmed and outnumbered.

We learned that enthusiastic allies had traveled from different parts of the country to participate in the attack.

We learned that the mob that attacked the American facility did so because their leaders falsely believed that the actions of the occupants inside were “illegal.”

Immediately after the attack took place, there were questions from the press, politicians, and the international community about the terrorist attack:

The media seemed to know more than government officials about what had happened;

The politicians set up select committees to investigate how it could have happened;

International leaders expressed alarm and concern that this could happen to the United States;

All questioned why the security forces were so ill-prepared.

Sound familiar?

This was the attack on the American facilities in Benghazi, Libya on September 11, 2012.

Just like after that attack on the U.S. mission in Benghazi, there must be accountability for the January 6 attack on the U.S. Capitol. Accountability for the failure of law enforcement to use the intelligence available to it to adequately prepare, leading to the loss of multiple lives. Accountability for those who engaged in acts of violence, destruction of property, and insurrection.  And accountability for those who incited it. Prosecutors and FBI agents are going to be spending a lot of time with the video, just as we did.

Photo credit: A “Call to Action” rally held by various conservative organizations on the grounds of the U.S. Capitol, marking the one year anniversary of the attacks on the U.S. compound in Benghazi September 11, 2013 (Win McNamee/Getty Images)

The post Lessons from Benghazi: Accountability for the U.S. Capitol Attack appeared first on Just Security.

At the end of March, the Justice Department’s Inspector General published a report providing interim results in his ongoing audit of the FBI’s procedures for obtaining secret warrants under the Foreign Intelligence Surveillance Act (FISA). In collaboration with the Reiss Center on Law and Security at NYU School of Law, Just Security asked a group of four leading experts to answer specific questions about the report. We are grateful to this outstanding group whose individual responses are provided below:

Liza Goitein, Director of the Brennan Center for Justice’s Liberty and National Security Program
Andrew McCabe, former Acting Director and Deputy Director of the Federal Bureau of Investigation; CNN Legal Analyst
Mary McCord, former Acting U.S. Assistant Attorney General for National Security; Legal Director and Visiting Professor, Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection
Julian Sanchez, Senior fellow at CATO Institute and a founding editor of Just Security

Background

In December 2019, Inspector General Horowitz issued a report finding serious errors and omissions in the FBI’s warrants against Carter Page. Following the Office of Inspector General (OIG) report, Just Security published a series of articles by former government officials and civil society experts–including George Croner, Liza Goitein, Julian Sanchez, Andrew Weissmann–and the Reiss Center and Just Security convened a live panel event on the topic of FISA reform.

Meanwhile, the OIG continued to engage in a broader audit of FISA warrant applications to review the FBI’s compliance with its “Woods Procedures”—an internal process meant to ensure, in the absence of a traditional adversarial process, that there is supporting documentation for all of the factual assertions made in the application for a FISA warrant before the federal court.

In its March interim report, the OIG examined the Woods Files for a sample of 29 FISA applications, including both counterintelligence and counterterrorism investigations, selected from more than 700 applications from eight field offices over the period from October 2014 to September 2019. The OIG’s findings were sobering: four out of the 29 FISA applications were fully missing their required Woods Files; each of the remaining 25 contained “apparent errors or inadequately supported facts,” with an average of 20 errors per application. The OIG also reviewed 34 separate “accuracy review reports” conducted by the FBI and Department of Justice’s National Security Division, covering the same time period and sample of field offices. Despite the deficiencies uncovered by those agency checks, the OIG found that the FBI did not act on them to “help assess the FBI’s compliance with its Woods Procedures.” In response, the Foreign Intelligence Surveillance Court (FISC) ordered the government to provide it with further information on the 29 applications and to assess the materiality of the discovered problems.

We posed four questions to our experts, asking them to respond to at least two of the questions. The following provides their full responses, organized by topic question. 

1. The OIG says it “[does] not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy, or that the process is working as it was intended to help achieve the ‘scrupulously accurate’ standard for FISA applications.” How serious are the deficiencies that the OIG identifies in this recent report? Are there mitigating factors or limits to the conclusions that can be drawn from this memo—for example, what should we make of the fact that the IG has not assessed the materiality or significance of the numerous errors it identified?

GOITEIN: The IG’s findings are unquestionably significant, and deeply concerning. The IG reviewed 29 FISA Title I applications, prepared and submitted by eight different FBI field offices, to see whether each factual assertion in the applications was supported by documentation in the associated Woods Files. This documentation requirement is the primary mechanism by which the FBI attempts to ensure “scrupulous accuracy” in its FISA applications. Yet, in four of the 29 cases, the FBI could not locate any Woods File. In every single one of the remaining 25 cases, there were multiple factual assertions in the application that were either not supported by, or were inconsistent with, the Woods File documents. The IG found an average of 20 “issues” per application reviewed, with one application containing 65 problems. According to the IG, routine audits conducted by the FBI and the Justice Department’s National Security Division over the past five years had uncovered a similar level of error.

There are no silver linings in the report. True, the IG did not attempt to determine whether the factual assertions in question were material, or whether they had evidentiary support that simply didn’t make it into the file. But the IG’s more extensive review of the Carter Page applications didn’t reveal much in the way of mitigating factors—and there is simply no reason to imagine that the Page applications were atypical. After all, the IG found no evidence whatsoever that the FBI’s investigation of Page was motivated by political bias. If anything, the IG found that the National Security Division exercised increased oversight of the Page application process.

MCCABE: It is serious any time the FBI fails to comply with its own policies, and especially serious when the policy directly implicates FISA accuracy.  The intrusive nature of FISA surveillance demands that the applications for authorization be, in all material respects, absolutely accurate — which is why we need to know more than what the interim IG report tells us. Most policies are designed to ensure that an agency meets its legal and ethical obligations in a consistent and effective way. The Woods policy is no different.  It requires documentation of the facts presented to the court in order to ensure the FBI meets the legal requirement of presenting a factually accurate request. It is important to note that the IG report does not find that the applications they reviewed were factually inaccurate, but simply that they contained facts not adequately documented in the Woods file. The IG’s review was extremely narrow – the review focused exclusively on comparing the FISA application to the Woods file. The IG did not review the whole case file — which may very well have contained the documents that were lacking in the Woods file. The failure to maintain a good Woods file is serious, but not nearly as serious as making misrepresentations to the court. This report does not tell us if that happened. The answer is something we still don’t know and need to know.

We also don’t know if the facts the IG found not to have adequate Woods documentation were actually material to the application. The IG report points out that standard DOJ accuracy reviews of FISA applications and their Woods files typically uncover errors, but rarely ever find errors that are considered “material.” These reviews include a robust exchange between the case agent, her supervisor, and the DOJ reviewer.  They include not just the Woods file, but the entire case file and all the information known to the case agent. 

Admittedly, the IG may be correct that the FBI’s comprehensive, strategic examination of these accuracy reviews “would have put the FBI on notice that the Woods Procedures were not consistently executed thoroughly and rigorously.” But that does not say as much it sounds. It just brings us full circle. Even if the FBI were on notice for such inconsistencies, we still don’t know whether that points ultimately to material errors and to misrepresentations made to courts, or instead to nonmaterial, even trivial, errors and clerical mistakes in failing to put the right documents in the right place.

Bottom line: policy compliance failures are serious, especially those involving the use of FISA.  Faulty Woods files are a bad sign for FISA accuracy. But we won’t know if there were serious errors in FISA applications until someone reviews the complete case file for each request. That said, we now know better where to look and what questions to ask thanks to the IG’s efforts. 

MCCORD: The deficiencies that the OIG identified in the March 2020 Management Advisory Memorandum (MAM) are significant because they suggest that the serious lapses that the OIG identified in its December 2019 report on the Carter Page FISA applications were not unique to those applications, but instead were indicative of systematic problems in the FBI’s and DOJ’s procedures for ensuring that applications made to the Foreign Intelligence Surveillance Court (FISC) are scrupulously accurate. Although the audit that led to the March report was limited to review of compliance with the FBI’s Woods procedures, the purpose of those procedures is to ensure there is a factual basis for every assertion made in a FISA application and that any pertinent information about a cooperating human source is included.  Moreover, although the March report was based on a relatively small sample size of only 29 applications, those came from 8 different FBI field offices, and problems were identified in all of them.  

This is a Brady moment for FISA. 

By that, I’m referring to the U.S. Supreme Court’s seminal case of Brady v. Maryland, which established that prosecutors must disclose to criminal defendants material information that is exculpatory (meaning it tends to suggest the defendant is not guilty) or impeaching (meaning it tends to undermine the prosecution’s evidence). The botched 2008 trial of former senator Ted Stevens (R-Alaska), after which it was determined that trial prosecutors had intentionally concealed documents that would have helped Stevens defend himself, led the Justice Department to revamp its policies to require prosecutors to take a broad view of materiality and err on the side of more disclosure rather than less. The Department implemented this policy by issuing new guidance to prosecutors, requiring yearly mandatory training, and making a serious push to change the culture. It was a paradigm shift. 

Although the OIG did not assess the materiality of the deficiencies it found in the Woods procedures—and it is possible that most were immaterial—the deficiencies identified by the OIG in both recent reports suggest that a similar paradigm shift is warranted in the FISA application process. The FBI and DOJ already are implementing process changes and training that should address some of the obvious sloppiness in complying with the very procedures designed to ensure accuracy, including in identifying material exculpatory and impeaching information that should be disclosed in any FISA application. That means both information that tends to suggest the target is not an agent of a foreign power as well as information that tends to undermine the basis on which the government is relying to establish probable cause that he or she is. The FISC is right to demand such procedural reforms in light of the OIG revelations, and to require personal accountability from agents and DOJ attorneys.

SANCHEZ: Justice Department Inspector General Michael Horowitz’s blistering report the on the error-riddled Foreign Intelligence Surveillance Act process used to wiretap former Trump campaign advisor Carter Page left a critical question unanswered: Were the problems Horowitz documented an outlier—products of aberrant recklessness or political bias—or were they symptomatic of more pervasive failures in the FISA process?

The preliminary results of Horowitz’s follow-up audit, as documented in the recently released “advisory memorandum”—strongly suggest the latter. The IG’s office reviewed, or attempted to review, the FBI’s compliance with the “Woods Procedures” designed to ensure the accuracy of factual information in applications submitted to the Foreign Intelligence Surveillance Court by looking at a sample of 29 applications for surveillance of U.S. persons submitted between October 2014 and September 2019. They did so by examining the “Woods file” that should have been generated during the review of each application, compiling documentary support for each factual representation made to the court. What they found was, to put it mildly, not encouraging.

In 4 of the 29 instances, the IG’s office “could not review original Woods Files” because the FBI was unable to locate them, and in 3 of those cases was uncertain they had ever existed. That amounts to an admission that they can’t be sure a meaningful factual review was done at all for 10 percent of the sample they audited—or at the very least, that whatever was done, was done by a reviewer who did not understand one of the most basic elements of how the review process was supposed to be executed.

Every one of the applications for which the IG was able to locate a Woods file was riddled with unsupported or inaccurate claims: “an average of about 20 issues per application reviewed, with a high of approximately 65 issues in one application and less than 5 issues in another application.”

That implies that, strictly with regards to the Woods Procedures issues, the Carter Page applications were actually significantly better than average. The appendix to the IG’s report on the Page investigation identifies eight distinct Woods failures—cases where the Woods file either failed to support or actively contradicted representations in the application—in the initial FISA application targeting Page, rising to 16 by the final renewal application. 

A raw count, of course, does not in itself tell us how serious the inaccuracies were, and the IG’s memo explicitly makes no effort to pass judgment on the “materiality” of the inaccuracies they found. The Woods errors identified in the Carter Page applications included several that were arguably trivial—claims that were probably true even though not documented in the Woods file, or would be of relatively little importance even if they had been inaccurate, such as the exact dollar amount a confidential FBI source had been compensated. But, as with the Page applications, the sloppiness implied by the sheer quantity and prevalence of inaccuracies in itself belies the Bureau’s commitment to “scrupulous accuracy” in its representations to the court: If the review process is so systematically faulty, there is no reason to imagine that only insignificant errors would slip through the cracks.

Nor should these problems distract from the fact that Woods failures were not, ultimately, the most serious problems identified in the IG’s review of the Page investigation. Rather, the most egregious failures were omissions of new information, especially in the later renewal applications, that tended to undermine or contradict the FBI’s theory of the case. Woods review is designed to ensure that what’s in a FISA application is accurate; it does not establish whether critical facts the Court should be aware of have been left out entirely. Or, in the rather understated phrasing of the IG memo, the Woods Procedures “are not focused on affirming the completeness of the information in FISA applications.” Thus we still have no idea how many errors of omission mar the applications in the IG’s sample, above and beyond the Woods failures identified.

The memo also confirms that some of the institutional sources of the problems in the Page investigation were not limited to that probe. One clear trend the IG found there was that the defects in successive applications grew more serious over time. While the initial application and renewals were all flawed to varying degrees, it was only with respect to the final two renewal applications that the Department of Justice ultimately assessed the problems to be so serious that they acknowledged probable cause did not exist for the surveillance orders that ultimately issued. 

One reason for this pattern, the IG report indicated, was that notwithstanding official FBI policy, renewal applications were typically scrutinized only for the accuracy of new factual representations. Claims already accepted by the court in prior applications did not receive similarly scrupulous review to see whether they were still tenable in light of new information the investigation had uncovered. Thus one of the most serious omissions in the later Page applications: the failure to document contradictions between initial reporting from former British intelligence officer Christopher Steele and later FBI interviews with Steele’s sources.  

Horowitz found a similar practice reported by agents interviewed during his audit, noting: “we were told by the case agents who prepared the renewal applications that they only verified newly added statements of fact in renewal applications because they had already verified the original statements of fact when submitting the initial application.”

2. Both the FBI and the Office of the Deputy Attorney General provided replies to the memo in which they agree to both of the IG’s two recommendations. Yet overall, they indicate that mitigation steps are already being taken as part of the changes ordered in response to the IG’s initial report—in essence, that things are already moving in the right direction. What is your view of what needs to be done, and what the FBI and DOJ are already doing? What would you recommend the IG take up in his next steps in this ongoing investigation of the FISA process?

MCCABE: The steps outlined by the FBI address the concerns raised in the recent IG report by essentially raising the stakes of accountability on the current requirements. New training initiatives, a revised Woods form and the inclusion of the Woods file in the electronic case file are all good steps, but none fundamentally change the process of documenting each fact in the Woods file.

It also seems the FBI has not addressed some of the bigger issues raised in the first IG FISA report (released last December). For example, detecting and correcting errors of omission remains a systemic challenge. When a case agent collects information during the course of an investigation that might contradict facts presented to the court in an earlier FISA application, she must make an important judgement about whether that needs to be brought to the attention of her supervisor and the DOJ attorney drafting the application. These investigative developments, and the consequential judgements that follow, can happen hundreds of times across the scope of a fast paced, stressful investigation. The decisions are rarely, if ever, black and white. DOJ and the FBI need to change the process to get the attorneys more involved in assessing the investigative facts to reduce the chances of errors of omission. Simply requiring the case agent to sign an additional certification will put more stress on an already overtasked agent, but is unlikely to alter the way these factual/legal questions are being resolved.

MCCORD: The mitigation measures that the FBI and DOJ are implementing are important steps in the right direction, but as the chief judge of the FISC, U.S. District Judge James Boasberg, determined in his March 5 and April 3 Orders, more is needed.  Forms and checklists are useful tools, but it takes a cultural change so that FBI agents and DOJ attorneys are socialized from the outset to be equally diligent in seeking and presenting “Brady” information as they are in seeking and presenting any evidence of probable cause. Part of this will come with more procedures and training, and part will come with pressure from the FISC.  When the courts started asking federal prosecutors far more questions about their Brady obligations in criminal cases, and holding prosecutors accountable for lapses, the culture within the Department  changed. Now that the OIG has brought the issues to light in the FISA realm, the same pressures that drove culture change in criminal prosecutions are likely to drive change in FISA applications. 

3. What should be the role of the courts now? What about Congress?

GOITEIN: The FISA Court can no longer trust the accuracy of FISA Title I applications. Until the Department’s own audits (including follow-up IG audits) show that the problem has been resolved, the Court might need to conduct its own review of the Woods Files—or perhaps even the case files—before issuing Title I surveillance orders, at least where U.S. persons are the target. Alternatively, the Court could appoint amici to conduct this review. Either way, this review will slow the process considerably, but the alternative is for the Court to authorize surveillance that might well violate the Fourth Amendment. 

Other courts also have a duty to respond. In criminal cases where the government has notified the defendant that evidence was obtained or derived from a FISA order, the court may disclose the FISA application and supporting materials to the defendant, “under appropriate security procedures and protective orders … only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” Courts have consistently found that such disclosure is unnecessary, and that they can rely on the application materials themselves. That must now change. Courts must give defendants a chance to identify the errors that they are best positioned to detect, in order to assess whether the applications were so deeply flawed as to render the surveillance unlawful.

Finally, Congress must legislate reforms. In May, the Senate is scheduled to vote on a House bill reauthorizing three provisions of FISA that expired on March 15. That legislation provides only weak civil liberties protections; the IG’s report makes clear that stronger safeguards are necessary. Among other things, the Senate should amend the House bill to strengthen the role of amici (for instance, they could be tasked with reviewing FISA Title I applications targeting U.S. persons); to bolster the requirement that criminal defendants be notified of FISA surveillance (currently, the government can evade this requirement through a practice known as “parallel construction”); and to ensure that defendants have access to FISA applications and materials so they can challenge the lawfulness of surveillance. 

MCCORD: As noted, I expect the FISC to be significantly more active in questioning FBI agents and DOJ attorneys about compliance with Woods procedures and whether anything in the FBI’s case file tends to undermine probable cause. Judge Boasberg’s March Order requires the FBI declarant and DOJ attorney to attest that “to the best of [his or her] knowledge,” all information “that might reasonably call into question the accuracy of the information or the reasonableness of any FBI assessment in the application, or otherwise raise doubts about the requested findings,” be brought to light and included in the application. This type of personal accountability, certified to the court, is something that agents and DOJ attorneys can be expected to take very, very seriously. And Congress, should it choose to do so, could memorialize these and other requirements in the statute.

4. The IG’s initial findings as related to the Carter Page/Crossfire Hurricane investigation became part of a political narrative on both sides of the aisle. What will be the political ramifications of the findings described in this memo, if any?

MCCORD: There will no doubt be some who say that the FBI can’t be trusted and that FISA should be scaled back significantly. But FISA remains a critical tool to combat terrorism and other national security threats. That’s why it is important for the serious deficiencies identified by the OIG to be addressed so that the FISA court can have well-founded confidence in the accuracy of the applications brought before it.

SANCHEZ: These recent findings weigh heavily against the optimistic notion that the defects in the Carter Page investigation were some kind of extraordinary anomaly—the product of an extraordinary and rushed investigation, or subconscious political bias, or (most outlandishly) a deliberate conspiracy against Donald Trump by some sort of Deep State cabal within the FBI and Justice Department. The IG audit looked at FISA applications from eight different field offices. The period examined fell half within the Obama administration, half within the Trump administration. The cases were a mix of counterterrorism and counterintelligence cases, most presumably with no particular connection to domestic politics. And on average the sample included more Woods procedure errors than were found in even the most error-riddled of the Page applications. 

While it’s doubtful this will significantly disrupt the politically convenient narrative of an anti-Trump vendetta as the fountainhead of all the FISA ills diagnosed by the inspector general, it ought to. It is further evidence that there is something badly, systematically broken in even the component of FISA—Title I—that most closely resembles the traditional criminal warrant process, and which on its face appears to have the most rigorous and multilayered oversight. And it is a strong indicator of the urgent need to continue turning over rocks. 

5. Other thoughts/comments?

GOITEIN: I was particularly struck by the IG’s observations about the internal audits (“accuracy reviews”) conducted by the FBI and the National Security Division (NSD). Over the course of five years, these audits consistently revealed an intolerable level of error in FISA Title I applications: 390 errors in the 39 applications reviewed. Although the reviews found that none of the 390 errors was material—a finding the IG did not attempt to corroborate—it is hard to imagine that the cumulative effect of roughly 10 errors per application would not affect the overall soundness of the package. 

And yet, the FBI made no systemic changes in response to these findings. It did not use the audits to hold individuals accountable, to revamp its trainings, to assess the efficacy of the Woods Procedures, or to examine more broadly the problem of accuracy in FISA applications. (The NSD reported that it uses the audit results in its trainings, although the IG did not follow up on this.) It is possible that case agents in FBI field offices or attorneys within the NSD took steps to correct the errors in the flagged applications; the IG did not make inquiries on this point. But at least within FBI headquarters, it appears that these audits were just a box-checking exercise—oversight for its own sake.

The FBI’s failure to make any changes to its systems in response to the consistently poor audit results raises concerns about how effective such internal audits are in other contexts. Secretive intelligence programs, in general, tend to rely heavily on internal oversight measures. Intelligence officials often point to the multiple layers of review within agencies as evidence that Americans’ civil liberties are well-protected. Clearly, however, the mere existence of audits is insufficient. Oversight will not lead to improved compliance unless it is paired with accountability. This is a key lesson to remember whenever Congress or an executive branch agency proposes additional oversight as a solution to a civil-liberties concern. 

MCCORD: Just as in the Brady context in criminal cases, there are usually three possible explanations for why exculpatory or impeaching information is not provided in a FISA application. One is actual bad faith on the part of the FBI agent or DOJ attorney—a deliberate attempt to mislead the court. The OIG reports did not find such bad faith, and I expect it would be the rare explanation. Another is mistake—the agent who learns the information fails to get it into the case file or share it with the case agent. The OIG reports certainly bear out that this has happened repeatedly. And the last is failure to recognize the significance of the information. In the realm of criminal cases, a simple illustration of this might involve four eyewitnesses to a crime, three of whom identify the defendant and one who doesn’t. The prosecutor might rationalize away the significance of the non-identifying witness. Maybe that witness’s view was obstructed and the other witnesses were closer and had clear views; maybe that witness observed the defendant only for a split second and the other witnesses saw the defendant for longer or were familiar with the person; maybe that witness’s description of the entire event differed significantly from the other three witnesses and therefore seemed incredible. The prosecutor might conclude that the non-identifying witness must be mistaken and his or her information is not material.  But DOJ’s policies appropriately require disclosure of the non-identifying witness’s information to the defendant. The same type of illustration can be conjured in the FISA context—some piece of information might be easily and erroneously discounted as not actually undermining probable cause. The key, as with Brady, is to take a broader view of materiality and disclose the information anyway.  That means the FBI, DOJ, and the FISC all will have the tools necessary to determine whether the application should be made and whether it should be granted. 

Editor’s note: with special thanks to Alexander Potcovaru for his contributions to this project.

The post Top Experts Analyze Inspector General Report Finding Problems in FBI Surveillance appeared first on Just Security.

Over the weekend, President Donald Trump suggested that he trusted North Korean leader Kim Jong Un to “keep his promise” to Trump about the country’s nuclear program more than he trusted his own national security officials who have warned him about that program. It was just the latest example of Trump demonstrating disdain for the U.S. intelligence community and broader national security apparatus, but it came on the heels of a perhaps even scarier one. Trump’s decision last week to hand over unilateral authority to declassify America’s intelligence secrets to an attorney general who continues to act as if he’s Trump’s personal lawyer threatens to endanger intelligence sources, frighten our allies, and irreparably harm our national security.

Late Thursday, at Attorney General William Barr’s request, the president granted him carte blanche not only to obtain all “assistance and information” he desires from the intelligence community in support of his “review” of intelligence activities related to the 2016 election, but also to declassify any information he chooses to—even if that information was originally classified not by the Justice Department but by, say, the Central Intelligence Agency or National Security Agency. Barr doesn’t even have to consult with the head of the intelligence agency or department whose information is at stake unless he deems it “practicable.” Trump’s approach is out of sync with proper executive branch leadership and, more importantly, dangerous to American security.

Barr was not in government in early 2016 when red flags started to flutter about Russia’s successful attempts to meddle in our election, warnings that included Russian efforts to contact people associated with Trump. And he wasn’t in government when those red flags were straining against their moorings. He wasn’t part of any discussions or decisions, made in real time, about how to address the threat posed to the core of this country’s very democracy: free and fair elections without foreign influence. Now, rather than respectful deference to the women and men who had to make those decisions in the moment, Barr has demanded—and been handed—the power to rummage through classified materials, second-guessing the judgment calls of those who have spent decades combatting foreign intelligence threats. It’s clear he intends to use that power for the benefit of his political patron, President Trump

Barr, in his first three months as attorney general, has demonstrated that he is more interested in being Trump’s lawyer than he is in being the American people’s lawyer. He released a four-page letter to Congress misleadingly summarizing the “principal conclusions” of the Mueller report, which even the circumspect Robert Mueller objected to as threatening a central purpose of his probe. On the morning of the redacted report’s release, he held an unprecedented press conference defending the president’s obstructive abuses described in the Mueller report as the reasonable actions of a “frustrated” man. He did everything he could to lend the authority of the Justice Department to Trump’s main political talking points of “no collusion” and “no obstruction.” And he stoked the “witch hunt” flames long fanned by Trump by telling Congress he thought that “spying” on the President’s campaign had occurred and promising to interrogate the origins of that intelligence inquiry. Now he appears prepared to fulfill that promise using the unprecedented and dangerous new powers given to him by Trump.

To be clear, oversight of the intelligence community’s activities is critical. But that oversight has happened. Indeed, it continues to happen. Both the Senate and House have reviewed extensively the origins of the investigation into Russian election interference, and their probes continue. The Justice Department’s Office of Inspector General is nearing completion of its review of the investigation, especially as related to U.S. persons such as Carter Page, who briefly was a foreign policy advisor to the Trump campaign. If the inspector general’s report turns up something worthy of continued investigation, then a decision about next steps should be made at that time. But what need could there be for Barr to get ahead of his own Justice Department’s inspector general? It’s hard to fathom a reason other than the purely partisan one of keeping alive the president’s “witch hunt” theme amidst an ongoing oversight battle with Congress and heading into the 2020 election. Now, it seems, Trump’s efforts in both arenas will be supported by selectively declassifying and disclosing whatever materials might tend to make the president look a bit better, while withholding those that don’t.

This is just the latest manifestation of Trump’s dismal view of our nation’s intelligence community. Time and again, he has shown disregard and disrespect for the assessments of intelligence professionals. Recall the president’s Helsinki meeting with Vladimir Putin, where Trump publicly embraced the position of the Russian leader that no interference had occurred over the contrary opinions of his own intelligence community. Or remember his bizarre personal letters exchanged with Kim Jong Un. To its credit, the intelligence community has generally stood firm in its views despite Trump’s preference for the promises of foreign dictators.

That history underscores what last week’s order reveals about Trump’s view of Barr. As a practical matter, the order gives Barr supremacy over the intelligence community by allowing him to declassify their secrets at will. As a conceptual matter, the order may be even more extraordinary by empowering Barr to “direct the declassification” of the intelligence community’s secrets. Trump is thus making one cabinet member—Barr—superior to his fellow cabinet members on the matters of their own agencies. If this involved the exercise of their statutory authorities, it would be clearly unlawful. However, because this is a delegation of the president’s own authority to classify and declassify—as implemented via earlier executive orders—it may be lawful. But it’s a terrible and dangerous approach to governance. Trump is rewarding the cabinet member who’s been most political, most “loyal,” most obedient, by elevating him over other cabinet members who have been providing nonpartisan intelligence assessments to keep our country safe.

As alarming as last week’s order must have been to the U.S. intelligence community, imagine what our foreign allies must think. On Friday, Trump made clear that he wants Barr to use his review to “look at” the role British and Australian intelligence services played in the Russia probe, “because there was a hoax that was perpetrated on our country.” This represents an extraordinary threat to the intelligence these and other countries share with us and often help us to acquire and protect, as well as to the people gathering that intelligence. It—quite reasonably—seems certain to decrease their trust in Washington’s will to protect sources, methods, and intelligence; in turn, it’s likely to decrease how much they share. Ultimately, politically driven declassification and a decrease in intelligence sharing by U.S. partners—and especially the combination—could endanger the lives of Americans. Although Director of National Intelligence Dan Coats has expressed confidence that the attorney general “will work with the IC in accordance with the long-established standards to protect highly-sensitive classified information that, if publicly released, would put our national security at risk,” it’s unclear if those standards will in fact be respected by Barr, given that the order requires him to consult with the intelligence community about declassification only, as noted above, if Barr himself deems it “practicable.”

To our closest allies, and to the women and men who have risked their lives—and in some cases, died—to acquire intelligence to protect our nation, the president’s order says a lot about his view of national security: not as a sacred responsibility of an American president, but as something that can be exploited for political advantage. That’s a terrible price for the rest of us to pay.

The post Bill Barr’s Dangerous New Powers appeared first on Just Security.

Fast forward to 2016. By then, the United States had seen a resurgence of white nationalism fueled by “anti-other” rhetoric during the presidential campaign. Hate crimes rose dramatically.  Between 2016 and 2017, the number of hate crimes reported to the FBI (believed to significantly undercount those crimes because of the voluntary nature of the reporting) rose 17 percent to more than 7,000 incidents.

Neo-Nazis, Neo-Confederates, KKK, and Skinheads—many of whom previously had confined their hate-filled rants to the internet—recognized that the new political environment was permissive enough that they could step out of their chat rooms and into the physical space.  And they were joined by a new cadre of white supremacists who deemed themselves the “alt-right.” Through speeches by the likes of Richard Spencer and Milo Yiannopoulos, and recruitment on college campuses by European far-right groups like Identity Evropa and Atomwaffen, this movement sought to normalize white nationalism among college-aged white males.

And that was how Jason Kessler, a relative nobody who previously had participated in the far-left “Occupy Wall Street” movement, was able to bring these groups together in the biggest racist, anti-Semitic white supremacist rally this country had ever seen. Dubbed “Unite the Right,” the rally ostensibly was organized to protest a decision by the city of Charlottesville, Virginia, to remove Confederate statues in two of its downtown parks. But in reality, Unite the Right was a deliberate attempt by the white supremacist movement to flex its muscle, incite fear, and provoke violence.

What we saw on Aug. 12, 2017, was a militaristic show of force and violence. Medieval-looking battalions of mostly white men with shields, helmets, clubs, and flagpoles marched through the small city’s streets, flying their banners and engaging in hand-to-hand combat, protected by heavily armed private militias. The day culminated with the death of Heather Heyer, killed when one of the rally-goers, James Fields, plowed his car into a group of counter-demonstrators in an act of domestic terrorism.

First and Second Amendment Myths

As video of the melee spread across the globe, many commentators in the U.S. suggested that the protest was protected by the First Amendment and the arms-bearing was permitted by the Second Amendment. But the First Amendment does not protect violence or incitement to violence, and the Second Amendment, while protecting an individual right to bear arms for one’s own self-protection, has never been held to allow private citizens to band together to create their own armed militias, wholly unaccountable to the civilian government.

This is important, for in the immediate aftermath of the Unite the Right rally, Kessler and other prominent white supremacist figures went beyond pronouncing the event’s resounding success in showing the world that the movement was more than a meme. They also vowed to return to Charlottesville, as often as necessary, to avenge what they decried as the city’s violation of their rights when it declared an unlawful assembly, cutting short the opportunity for additional bloodshed.

But while Kessler thought he could weaponize the First Amendment, we at the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown Law, knew that he could not. State constitutional and statutory provisions in nearly every state prohibit private paramilitary activity like what occurred at Unite the Right.

Indeed, 48 states have a provision in their constitutions requiring the military to be “strictly subordinate” to civilian authorities. Twenty-eight states have statutes barring private individuals from organizing as military units, parading, or drilling with firearms in public. And 25 states, including Virginia, have statutes that prohibit two or more people from assembling to train in or practice the use of firearms or “techniques” capable of causing bodily injury or death in furtherance of civil disorder.

The discovery of these legal tools—thanks to a Lawfare post by University of Virginia history professor Phillip Zelikow—gave us the idea for a lawsuit. Not a lawsuit for money damages incurred by the victims of Unite the Right, but a forward-looking lawsuit seeking a court injunction preventing individuals and groups from returning to Charlottesville to engage in prohibited paramilitary activity.

This would be a content-neutral lawsuit based on conduct, not speech.  As such, it would not infringe on First Amendment rights to peaceably assemble and express viewpoints even as reprehensible as those of the white supremacists. Nor would it trample anyone’s Second Amendment right to carry a firearm for individual self-protection. But what it could prevent was a repeat of the violence of the 2017 rally.

Conduct Prohibited Under Virginia Law

By viewing and listening to hundreds of hours of video and podcasts, searching hundreds of photographs, combing through thousands of private chats on the Discord platform (a free voice and text chat platform built for gamers, but used by right-wing extremist groups to plan for Unite the Right), and interviewing numerous people who had been at Unite the Right, we identified the individuals and groups whose conduct fell most clearly within the prohibitions of Virginia’s anti-private-militia and anti-paramilitary provisions. These included four of the prominent far-right groups that participated in the rally—Vanguard America, Traditionalist Worker Party, National Socialist Movement, and League of the South—as well as many of their leaders.

The groups also included several of the most heavily armed self-professed militias, such as the Pennsylvania Light Foot Militia, the New York Light Foot Militia, and the III% People’s Militia of Maryland, which claimed to have been there not to espouse white supremacist ideology, but instead to protect the First Amendment rights of the protesters. The groups also included a left-wing militia, Redneck Revolt, that believes in armed community defense and deployed to Charlottesville to provided heavily armed protection to counter-protesters. Finally, they included the organizers of the rally, Jason Kessler and Elliott Kline (a.k.a. Eli Mosley).

The city of Charlottesville, anxious to take action to prevent a reprise of the rally that had caused so much physical and emotional pain and tarnished the city’s image, readily signed on as a plaintiff, as did a number of small local businesses and neighborhood associations. The lawsuit was filed two months to the day after the rally. It sought injunctive relief under the state constitution, the state anti-paramilitary statute, the common law of public nuisance, and a state statute barring the false assumption of the duties of law enforcement officers (something that the self-professed militias and Redneck Revolt had done).

The lawsuit was met with outrage by the defendants, vows to fight it in court on First and Second Amendment grounds, and fundraising campaigns for attorney’s fees. But as the case progressed, many of the defendants were unable to secure legal representation, and even among those who did, many became disenchanted with the idea of participating in a second Unite the Right rally, as Kessler continued to promise. This was likely the result of many factors, particularly infighting and fractures in the alliances between right-wing groups whose interests did not align perfectly and a plethora of other lawsuits against many of them seeking money damages.

Consent Decrees

Within eight months of filing suit, all but two of the defendants (individuals, organizations, and their successor organizations) had voluntarily entered into consent decrees by which they agreed, permanently, not to return to Charlottesville “as part of a unit of two or more persons acting in concert while armed with a firearm, weapon, shield, or any item whose purpose is to inflict bodily harm, at any demonstration, rally, protest, or march.” The Court signed these consent decrees, giving them the force and effect of court orders, the violation of which is prosecutable civilly or criminally.

In June 2018, less than two months before the one-year anniversary of the rally—the date for which Kessler had sought a permit for Unite the Right 2.0—the case was heard by Charlottesville Circuit Court Judge Richard Moore on the remaining defendants’ demurrers, otherwise known as motions to dismiss. The demurrers argued that the case should not be permitted to go to trial, then scheduled for July 31, because the relief sought would violate the First and Second Amendments, there was no right to sue for injunctive relief based on state constitutional provisions and criminal statutes, and other arguments.

But these arguments were rejected by Judge Moore in an opinion issued on July 7, 2018.  Notably, the judge wrote, “I cannot find that the City must sit idly by and wait for [the defendant] groups to show up and break the law and cause (or increase the risk of) harm, fear, injury, or death.”

Within days of the issuance of Judge Moore’s opinion, the remaining two defendants—including Unite the Right organizer Jason Kessler himself—entered into consent decrees, providing the city and the other plaintiffs with exactly what they had sought when bringing the lawsuit and obtaining some measure of assurance that a repeat of the violence of the Unite the Right rally would not occur again in Charlottesville. Indeed, not long thereafter, Kessler called off his plans for a repeat rally in Charlottesville, instead moving the rally to Washington, D.C., where his small cohort was overwhelmed by thousands of counter-protesters and no violence ensued.

Are there other uses for the state anti-private-militia and anti-paramilitary laws? You bet. They can be the legal basis for content-neutral time, place, and manner restrictions during protests and rallies where there is reason to believe violence may break out. Cities like Murfreesboro, Tennessee, have used them successfully as the grounds for prohibiting weapons and paramilitary activity from demonstrations on public property.  And the threat of a lawsuit can also be a deterrent. Local jurisdictions can and should look to these state-law sources as one legal tool to protect public safety while also protecting constitutional rights.

IMAGE: Demonstrators march near the University of Virginia campus in Charlottesville, Virginia, on Aug. 11, 2018, one year after the violent white nationalist rally that left one person dead and dozens injured. (Photo by LOGAN CYRUS/AFP/Getty Images)

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