December 2017

Trump Should Order Sessions to Drop Bundy Prosecution

Townhall.com

Bob Barr

12/27/2017 12:01:00 AM – Bob Barr

There are many resolutions the federal government should be making for the New Year; with cutting spending at or near the very top of the list. With Republicans controlling both the White House and Congress (for the time being at least), resolutions this year actually could amount to more than just empty words on a quickly-forgotten list.  There is one resolution, in fact, that would be easy to implement, would require no help from any Democrat or slippery Republican in the Senate, and that would signal to the country that President Trump truly intends to reinvigorate the sense of justice at the Department of Justice.

Trump should immediately direct Attorney General Jeff Sessions to halt the lengthy and unfair prosecution of Nevada rancher Cliven Bundy.  The nearly four-year old prosecution of Bundy, his sons, and a number of their many supporters, has been more than a prosecution.  It has been a crusade; begun under former Attorney General Eric Holder in 2014, continued all this past year by an interim career prosecutor in Las Vegas, and abetted by a federal judge appointed by Obama and whose animus toward Bundy is palpable.

The dispute between Bundy and the federal government goes back decades; rooted in the long-standing effort by the Bureau of Land Management (BLM), to force the cattle rancher to pay Uncle Sam more than $1 million in disputed “grazing fees.”So intense has been the desire by BLM to squeeze money out of Bundy, that the agency was able to obtain a court order to seize his cattle (and in so doing, strangle Bundy’s livelihood). Bundy, a Mormon rancher whose land has been in his family for generations, still refused to pay the disputed “fees.”

Bundy’s intransigence led BLM agents in the spring of 2014 to start rounding up Bundy’s cattle, and sending heavily armed agents to his ranch to enforce its actions. To further justify its extreme actions against the Bundy family, BLM (part of the Department of the Interior) asserted – with a straight face – that such action was justified because the grazing bovines threatened the habitat of the “endangered” desert tortoise. The ridiculous and heavy-handed attack on the Bundy clan prompted a symbolic (but no less real and dangerous) “range war” between federal agents and pro-Bundy “Sagebrush Rebels” who rushed to his support and to defend against the BLM power grab.

The stand-off, which was heavily covered by the media as it unfolded over several days, eventually de-escalated with nary a shot being fired.  Despite the peaceful resolution of the confrontation, and apparently nursing a bruised ego because its agents “backed down,” almost two years later Cliven Bundy, two of his sons, and numerous other supporters were indicted by a federal grand jury.  Bundy was arrested, and has been held in jail ever since because the U.S. Attorney’s office in Nevada, backed by Judge Gloria Navarro, asserts without any evidence that he poses a flight risk and is a “danger” to the community.

The latest chapter in the government’s crusade against Bundy ended just last week in a mistrial, following a disclosure that the government deliberately had withheld potentially exculpatory evidence from the defense lawyers. The startling evidence surfaced only thanks to the actions of a BLM whistleblower who previously was involved in the Bundy investigation.

The just-revealed evidence paints a chilling picture of government agents running amok in their zeal to attack Bundy and others who shared his belief that the federal government was overstepping its powers.  According to the allegations outlined by the whistleblower, government agents exhibited a “widespread pattern of bad judgment, lack of discipline, incredible bias, unprofessionalism and misconduct, as well as likely policy, ethical and legal violations among senior and supervisory staff.”  The standoff that ensued from such behavior easily could have resulted in deaths or serious injuries.

That the government insisted – and continues to this day to do so — on pressing forward with prosecutions in the face of that peaceful resolution, and even knowing of the internal misconduct by its investigators, constitutes a blatant disregard for fairness, sound judgment, and respect for the law and the Bill of Rights. Although this latest egg on the face of the Department of Justice appears to have prompted Session to order an internal investigation – an investigation that ought to encompass not only the BLM and any other federal law enforcement agency involved, but the U.S. Attorney’s office itself – an immediate halt to the entire Bundy prosecution clearly is called for.

It appears that if justice is to be had, it falls to the President to mete it out; as he did in another politically-motivated prosecution this year – that of former Maricopa County, Arizona Sheriff Joe Arpaio. Hopefully, the same Donald Trump who exhibited the backbone to take on the Justice Department and pardon Arpaio, will quickly do the same with regard to the Bundy family and its supporters.

Rep. Barr: Intelligence in the Age of Trump

As published in MerionWest

This is a president who openly and personally attacks the leaders and employees of the agencies in the Intelligence Community. In turn, some of them respond by attacking him, and on it goes.

Despite Henry Stimson’s naïve and dangerous attitude against intelligence gathering, reflected in his pre-World War II statement that, “gentlemen don’t read each other’s mail,” intelligence gathering always has been an accepted and vital component of our nation’s conduct of military and foreign affairs. This was recognized clearly by George Washington, who during his service as Commander in Chief of the Colonial forces during our War for Independence, relied often upon secret writings secured by a handful of brave colonial spies in his decision-making. Washington also punished severely those who betrayed that trust.

Four factors more than any other reside at the heart of a country’s successful foreign intelligence apparatus: cunning, training, patience and trust.  These are the factors on which a credible intelligence product is built. America’s top policy makers, including ultimately the president himself, rely on making choices affecting the lives of the country’s men and women and perhaps the nation’s very survival.

The contemporary world in which massive amounts of data are gathered continually from technology, including from insect-sized drones to phenomenally-sophisticated satellites circling the planet, can go only so far in equipping those decision-makers with credible information on which to assess intentions of their foreign counterparts.  Technology provides facts; the other half of the equation—intentions—ultimately comes from human intelligence in both collection and analysis.

Yet, whatever the source of the information offered to our commander-in-chief, the value of that product depends on the perspective not so much of the presenters, as on that of the consumer, but on the president himself.  This has not always been a smooth process.  Disputes or disagreements between these two entities—the Intelligence Community that gathers, analyzes, prepares and presents the intelligence to the president, and the president—have been not uncommon since World War II. However, such arguments were usually handled quietly, behind closed doors and not in the public domain.

This unwritten agreement that internal disputes concerning intelligence analysis were best handled within the confidential confines of the executive branch (and, to an extent since the late 1970s, also with the House and Senate intelligence committees), was based on the professional and accurate understanding that public disputes between our intelligence agencies and our policy makers – especially the president himself – offered to our adversaries a perhaps invaluable tool with which to “play” or manage their respective decisions and intelligence operations vis-a-vis the United States.

If, for example, a foreign, adversarial intelligence service sees that our top decision-makers and even the president himself have little faith in the intelligence being provided and our leader publicly downplays or rejects outright such information and the process that produced it, then our enemy can (and would) use that knowledge to craft their moves accordingly.

Such public airing of intra-executive branch disputes over the very efficacy of our own intelligence agencies and their work product reveals important fissures to our adversaries, undercuts our own sources and methods, and places our decision-makers at a serious disadvantage.

Unfortunately, the current atmosphere in our nation’s capital, in which political and policy-making discourse is conducted within the Congress, between the Congress and the President, within the Executive Branch, and between government and the media – an environment poisonous to civil discourse and immune to professional disagreement – has infected the Intelligence Community.  A president-elect and then a president openly and personally attacks and belittles the leaders and employees of the agencies comprising the Intelligence Community. In turn, some of them respond by attacking him, and on it goes. Some former heads of the CIA have been launching personal attacks.

This tawdry process accomplishes nothing positive for the presidency, the Intelligence Community, or the country; and in fact undercuts the entire national security decision-making process and buttresses and emboldens one or both of our primary world adversaries (Russia and China) by implied comparison.  It is historically unprecedented.  And, despite occasional superficial efforts to smooth things over (such as President Trump’s post-inaugural visit to CIA headquarters) the damage already done is likely not short-term.

Certainly questions need to be asked, and real answers need to be provided to fact-finders on Capitol Hill, primarily to members of the intelligence committees on each side of the Rotunda.  But such hearings will only exacerbate the problems already manifest, if they are conducted in the highly-charged, open, politically-based environment that has characterized the process thus far.

It is certainly true, as several members in both political parties have stated repeatedly, that “the public has a right to know” if the Kremlin deliberately and actually interfered in our electoral process, or if one or more of our foreign or domestic intelligence agencies was duped by a “fake” dossier possibly contrived or furthered deliberately by persons within our own government.  The public also has a right to know if the billions of their tax dollars devoted to foreign intelligence activities are being spent wisely or are being squandered on false leads or political agendas here at home.  And, the citizenry also has a right to be confident that the process within the executive branch according to which foreign intelligence is being produced and considered, is wise and professional.

The process by which answers to vital questions are posed is itself two-pronged.  First, hearings must be held confidentially to determine the facts, in such manner that further damage to the “sources and methods” on which intelligence product is based is not done.  This fact-finding process cannot be accomplished properly in the white heat of current political discourse.  Then, and only then, can decisions going forward be made by elected representatives in the Congress to right the intelligence ship.

Ultimately, however, there is only so much such a process can do.  Without a group of men and women at the helms of our intelligence agencies who understand the complex and historically-sound nature of the intelligence business, and who are girded to do battle to preserve that environment against strong political forces seeking to further politicize the process, we are doomed to witness further erosion of what has been and should be one of the world’s elite intelligence services.  But, the same understanding must necessarily be held and exhibited by those at the other end of Pennsylvania Avenue.

Bob Barr served in the United States House of Representatives from 1995 to 2003, representing Georgia’s 7th Congressional District. Mr. Barr also served for eight years in the CIA during the 1970s.

Massive Fraud in Net Neutrality Process is a Crime Deserving of Justice Department Attention

Bob Barr

12/20/2017 12:01:00 AM – Bob Barr

If one was expecting to have a reasoned, adult debate over “Net Neutrality” in the lead-up to the Federal Communications Commission’s vote last week to roll-back the Obama-era regulations, they were surely disappointed. Rather than a logical look at the current state of how the internet works today (much of the anti-FCC rhetoric was not based in such a reality), or even a practical discussion about how the internet has evolved freely and robustly absent of such regulations, most of the “discussion” was a digital shouting match of partisan and anti-capitalism rhetoric. That, and a massive amount of fraud.

As I wrote earlier this month, hundreds of thousands of comments were submitted to the FCC in spikes during the public comment period about its proposal to eliminate the 2015 “Open Internet Order”; and, upon further investigation, were found to have been written not by humans, but by artificial intelligence programs using “natural language generators.” Wired.com reports that “over a third of the nearly 22 million comments that poured into the [FCC] . . . included one of seven identical messages,” and “more than half were associated with duplicate or temporary emails.” Additionally, the New York Attorney General is also investigating reports that as many as two-million fraudulent submissions used the names and addresses of real people, both living and dead, from multiple states in a scheme to sway the FCC’s vote.

In a political environment in which violence and intimidation are now routinely used to push agendas and silence critics, it is easy to write off public commentary “spam” as an annoying, but nonetheless trivial, offense. However, as a former federal prosecutor, the use of fraudulent means to influence government policy is a crime that warrants serious scrutiny from the Department of Justice.

The use of fraudulent comments to sway the FCC easily fits into what prosecutors call a “1001 violation.” According to Title 18, Section 1001 of the United States criminal code, it is illegal to “knowingly and willfully” use “any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.” There is no doubt the use of fake email addresses, other people’s names and addresses, and computer programs to simulate human speech, is such a violation of Section 1001.

I also believe these fake comments qualify under the federal criminal code (Title 18) as wire fraud; specifically Sections 1342 and 1343, in which fraudulent schemes are perpetrated using any form of electronic communication. Add to this if multiple individuals are involved in the fraud, which very easily could be the case, and it would amount to a Section 371 violation for conspiring to defraud the federal government. Depending on what is discovered in the investigation, this could just be the start.

Although initial investigations reveal most spam as favoring the FCC’s decision to rescind the 2015 regulations, there is evidence of massive fraud on both sides of the issue. There is also the possibility that favoring the FCC’s proposed plan was deceptive as well, hoping that it would cast a broad cloud over the entire process, and possibly delay it altogether; a good bet since that was precisely what Democrats in Congress called for when reports first surfaced of the suspicious commentary. It may also be an issue for an impending battle in the Senate over net neutrality, as Democrats attempt to use the Congressional Review Act to stop the FCC’s decision.

This speaks to the point I made two weeks ago. The damage caused by fraud to such a crucial element of participatory democracy – the public’s feedback on rules proposed by an otherwise unelected body of regulators – is very real, and offers government officials a viable excuse to ignore public input, and do as they please. This is unacceptable.

The Justice Department should immediately launch a full investigation into this fraud to discover who are the perpetrators; not only because the crimes are serious, and not just because they threaten to shroud the final net neutrality decision in controversy, but because as long as individuals, groups and organizations feel safe launching campaigns of fraud to influence government officials, the problem will only get worse. And, before too long, the voices of real people, expressing genuine opinions on regulations, will be drowned out and ignored all together by those in power.

Shaver Shooting a Wake-Up Call for Reforms

Bob Barr

12/13/2017 12:01:00 AM – Bob Barr

Daniel Shaver did not deserve to die. He made an otherwise innocuous mistake, as people often do, especially in high pressure situations and after having consumed alcohol. But he did not deserve to die for it. Shaver could have been any one of our twenty-something children or siblings.

The events of the night in which 25-year old Shaver died nearly two years ago, are not in dispute. Shaver was drinking with two companions in a Mesa, Arizona La Quinta Inn. At one point that evening, likely showing off, Shaver pointed a pellet rifle he used for his job in pest control out of the fifth-floor window, prompting a report to the police from someone who observed this foolhardy act. When police arrived, things escalated .  .  . quickly.

The ensuing encounter between Shaver and at least two police officers armed with assault rifles was captured on police body cameras, but it essentially shows a sobbing and scared Shaver doing his best to cooperate with police barking confusing orders at him, all while threatening that he may be killed for not obeying perfectly. “If you make a mistake, another mistake, there is a very severe possibility that you’re both going to get shot,” police shouted at Shaver, who apologized through his tears for the slips, and begging the police not to shoot him.

Then it happened; as Shaver was attempting to obey one officer’s orders to crawl toward a fellow officer (who already had cuffed Shaver’s female companion), he reached back in what looks like an instinctive attempt to keep his gym shorts from falling off him. That movement prompted Officer Philip Brailsford, who had his AR-15 trained on Shaver, to instantly fire five shots, killing Shaver.

Last week, Brailsford was acquitted of charges in Shaver’s 2016 death, claiming the motion Shaver made to reach for his waistband looked as if he was reaching for a weapon; an argument with which the jury apparently agreed. As I have written previously, police are – rightfully – given broad latitude in their use of deadly force, which courts are reluctant to second guess. Brailsford’s judgement in taking lethal action that night, as incomprehensible, regrettable, and excessive as it may have been in light of what we see from the body cam, nevertheless arguably falls within this intentionally constructed safe harbor. But, whether Brailsford was legally culpable for the shooting of Shaver is not so much the point — the situation should never have escalated to where Brailsford felt the need to pull the trigger.

The problem goes well beyond any individual officer or incident.

It is unlikely that when Brailsford arrived at the La Quinta Inn that night, his objective was to kill someone. However, a perfect storm of trends in policing today make it more likely that confrontations end in such a manner. The phenomenon of increasing “militarization” of community police, fear of terrorism, and over-criminalization have run head-on into cultural problems, such as blatant disrespect of police and a rise in mass-casualty crimes, that understandably put police more on edge. Add to this dangerous brew officers who are either poorly trained, or not trained at all in de-escalation tactics, especially when in contact with individuals who possess (legally, or otherwise) firearms, and it is less a matter of if, than of when, deadly confrontations occur.

Conservatives are reasonably reluctant to call-out this critical issue for fear of appearing to pile-on to the disgusting rudeness shown to police from the Left, but this is an issue that cannot be ignored. Shaver was not some menacing thug with a rap sheet and an illegal gun; he was a young, working-class father with a pellet gun in an open carry state. And, let us not forget Corey Jones, a concealed carry permit holder who was killed by police after his car broke down in a bad neighborhood; Andrew Scott, who answered a knock at his door late at night armed with a pistol, and was killed in his own home by the officer who failed to identify himself; and Corey Crawford, who was killed by police in a Walmart while holding a BB-gun he picked up off the shelf.

And, these are just the more obvious cases.

Police deserve our support and respect, but this should not preclude us from demanding reforms to a problem in which exercising Second Amendment rights – either intentionally, passively, or in the case of Shaver and Crawford, not at all – exposes gun owners to greater risks of deadly confrontations with police. Whether it is better training for police, demanding politicians reverse the trend of over-criminalization, or a broad cultural movement to treat officers with respect in everyday encounters; we can, and must, find a way to do better as a society that values both liberty and justice .  .  .  and the very lives of our fellow citizens.

‘Digital Shouting Matches’ Undermining Rule-Making Process

Bob Barr

12/6/2017 12:01:00 AM – Bob Barr

The “internet poll” has become a familiar device with which to solicit reader feedback and drive engagement on topics from sports and entertainment to law and politics. But, with obvious flaws in polling methodology (e.g., random sampling, representative samples), not to mention vulnerability to fraud, the results of such polls carry little if any scientific value. They are a marketing tool only; except, it seems, when it comes to formulating federal regulations.

Providing a public comment period before federal regulations can be finalized is a legal and long-standing component of federal rulemaking. Typically the window for public comments is 30 to 60 days; during which time anyone – from Joe Six-Pack to high-paid industry consultants – can submit commentary used in considering the adoption of a proposed rule. Federal regulatory agencies increasingly prefer that public comments be submitted digitally, “so that [people’s] input on a proposed rule or other document is more easily available to the public” and easier to organize for agency review. Therein lies the problem.

Electronic commentary makes it extremely easy to “stuff the ballot box” with canned commentary from armies of online activists with the click of a mouse; or even millions of computer “bots” forging the identities of real people – dead or alive. In either case, it is becoming difficult (if not impossible) to seriously consider such feedback, particularly as the Federal Communications Commission seeks to repeal Obama-era regulations involving access to the internet.

The underlying problem is that the use of modern technology in this way has reduced public input on regulatory rule-making to little more than “digital shouting matches” between organizations on one side supporting a particular proposed rule change, and those on the other side opposing the change.

According to reports from a third-party company tapped to process and catalog public commentary submitted electronically to the FCC regarding its proposal to reverse the so-called “Open Internet Order” (more commonly known as “net neutrality”), pushed by the Obama administration, a troubling pattern has emerged in which massive surges of comments (in the hundreds of thousands, if not millions) are received electronically by the agency in a matter of days.

In this case, the comments, while often appearing unique and cogent on the surface, were subsequently determined to have been created by artificial bots using a natural language generator. Worse still, it appears some of these bots borrowed the identities of real people in order to submit comments to the Federal Register; a violation of state law the New York Attorney General now is investigating.

Overall, Wired.com reports that “over a third of the nearly 22 million comments that poured into the [FCC] .  .  . included one of seven identical messages,” and “more than half were associated with duplicate or temporary emails.” And, while bot activity is seen heavily in responses supporting FCC Chairman Ajit Pai, who is leading the drive to repeal net neutrality, both sides appear to be impacted; undermining the credibility of all comments.

There is also the issue of form-letter commentary, popular among activist organizations that send a call-to-arms to their many members, each of who can within a few seconds submit commentary for, or against, an issue. Even though the responses come from real people, and reflect a real sentiment, it is hard to consider such a lazy way to flood commentary requests genuine in the spirit of public comment; especially when the scheme is followed quickly by gloating fundraising appeals.

To his credit, Chairman Pai indicated the volume of responses is less important to the rulemaking process for reversing the net neutrality rule than the quality of the comments; offering at least some relief from the optics-obsessed previous administration in which this might have been spun a different way to support another government power grab.

However, the ease with which these bots and activist organizations can flood public commentary, and the sophistication with which bots can mimic human communication, raises difficult questions about the effectiveness of digital comment submissions; not to mention the threat it poses to rulemaking by weaker-willed agencies that are more susceptible to perceived public pressure. More practically as well, are the additional taxpayer-financed resources it takes to identify, sort, and catalog millions of public comments.

Regardless of whether these digital shenanigans result in actual fraud prosecutions by state or federal authorities, the damage they are causing to an important element of participatory democracy is very real and makes it far easier than it should be for regulatory officials to simply ignore the public altogether and do as they please.