NSA whistleblower Edward Snowden and Pulitzer Prize-winning journalists Glenn Greenwald and Chris Hedges discuss mass surveillance, government secrecy, Internet freedom and U.S. attempts to extradite and prosecute Wikileaks founder Julian Assange. They spoke together on a panel moderated by Amy Goodman at the virtual War on Terror film festival after a screening of “Citizenfour” — the Oscar-winning documentary about Snowden by Laura Poitras.
As the NSA and GCHQ hail the 75th anniversary of their alliance, successive presidents refuse to pardon #EdwardSwowden and a growing number of convicted whistleblowers. Were they traitors to their country, or is there another reason?
Capt. Brett Crozier, fired this week from command of the aircraft carrier USS Theodore Roosevelt, joins a growing list of Navy officers who attempted to raise concerns about the safety of their ships and crew, only to pay with their jobs.
Crozier wrote a letter dated March 30 warning that an outbreak of the coronavirus on his ship was a threat to his crew of some 4,000 sailors unless they disembarked and quarantined.
“We are not at war, and therefore cannot allow a single sailor to perish as a result of this pandemic unnecessarily,” Crozier wrote. “Decisive action is required now.”
We do not know all the facts that prompted the letter. But we know that once it was published in the San Francisco Chronicle, the acting secretary of the Navy, Thomas Modly, relieved Crozier of command. Crozier, 50, had been a rising star in the officer corps. He will remain in the Navy at his current rank, though his career future is uncertain. In viral videos, Crozier’s sailors can be seen cheering him loudly as he disembarks the Roosevelt, alone, before driving away.
Navy experts believe that the cumulative effects of the service’s decisions over the past several years to punish those who speak out will result in silencing sailors with legitimate concerns about their health and safety.
“This may have the effect of chilling the responses of other commanding officers because it will be perceived, fairly or not, as a shoot the messenger scenario,” said James Stavridis, a retired admiral and former head of the United States Naval Institute, who called for an investigation into the circumstances surrounding the dismissal.
The Navy’s top officer, Adm. Mike Gilday, initially praised Crozier’s attempt to warn his superiors. But the next day, Thursday, Modly, the Navy’s civilian boss, reversed course, telling reporters that he fired Crozier because he lost confidence in the officer for not using a secure email network to properly route his complaint.
Crozier’s unclassified email wound up with 20 or 30 other individuals and at some point was provided to the Chronicle reporters. Modly said the public airing of the complaint had unnecessarily alarmed sailors and provided enemies with information that exposed weaknesses on one of the country’s most important warships.
As part of our 2019 investigation into the incidents in the Navy’s 7th Fleet, its largest overseas presence, ProPublica found repeated instances of frontline commanders warning superiors of risks the fleet was facing — a lack of training, exhausted crews, deteriorating ships and equipment. Those warnings, all sent through the normal chain of command, were met with indifference.
Disaster in the fleet struck in June 2017, after the USS Fitzgerald, a destroyer, collided with a cargo ship in the Sea of Japan. Two months later, a second destroyer, the USS John S. McCain, collided with an oil tanker in the Singapore Strait. The two accidents cost the Navy 17 sailors — the biggest loss of life in maritime collisions in more than 40 years.
Navy investigations laid blame on nearly the entire chain of command in the 7th Fleet, punishing commanders and sailors for failing to properly train and equip its crews and ships.
Adm. Joseph Aucoin, the head of the 7th Fleet, was fired. Vice Adm. Thomas Rowden, who oversaw training, was forced from his job. Cmdr. Bryce Benson, captain of the Fitzgerald, was recommended for court-martial.
But ProPublica reported that all three men had repeatedly tried to warn higher-ups of dangerous safety issues in the vaunted fleet, based at Yokosuka, Japan. They argued to their superiors that the Navy was running ships in the 7th Fleet too hard, too fast. Their warnings were dismissed.
Benson, the Fitzgerald commander whose court-martial case was dismissed, said that Crozier “was right to strongly advocate for the safety of his crew and it was wrong for the SecNav [secretary of the Navy] to fire him for doing so.”
Senior leaders “continue to under-resource ships at sea and are slow to respond to commanders’ pleas for assistance,” said Benson, who is now retired. “From one tragedy to the next, senior Navy leaders continue to break faith with the fleet.”
Dismissing Crozier, Benson said, “sends a clear message to commanders: The authority and responsibility that you enjoy is yours alone and an absolute liability even when under resourced and thinly supported.”
Modly emphasized that he did not intend his actions to discourage officers from coming forward to report their concerns through the chain of command.
“I have no doubt in my mind that Capt. Crozier did what he thought was in the best interests of the safety and well-being of his crew. Unfortunately, it did the opposite,” Modly said at a press conference.
But Crozier’s firing has raised alarm anew that the Navy is more interested in its public image than in fixing problems raised by its sailors. It did not go unnoticed by fellow officers that Crozier was dismissed within two days of his letter becoming public. Such haste is unusual, and raised questions about the due process afforded to Crozier.
Some now believe that the cumulative effects of the Navy’s decisions over the past several years to punish those who speak out will silence sailors who have legitimate concerns about their health and safety.
“His removal sends a really strong message that coming forward will end people’s careers,” said Mandy Smithberger, a military expert at the Project on Government Oversight. “Before this I’d say that risk was more so implied through both social and professional retaliation. This is much more explicit.”
Crozier’s firing comes amid increased concern that the Pentagon is not acting quickly enough to protect whistleblowers. Glenn Fine, the principal deputy inspector general for the Defense Department, testified that the agency has shown a reluctance to punish officials who take punitive action against whistleblowers.
“We have seen a disturbing trend in the DoD disagreeing with the results of our investigations or not taking disciplinary action in substantiated reprisal cases without adequate or persuasive explanations,” Fine testified in January to the House Committee on Oversight and Reform. “Failure to take action sends a message to agency managers that reprisal will be tolerated and also to potential whistleblowers that the system will not protect them.”
Navy commanders may be fired at any time by their superiors. And the captains of Navy ships are uniquely responsible for any mishaps on their ships.
A study published earlier this year of more than 2,000 disciplinary cases found that Navy commanders were historically dismissed for “crimes of command” — such as a ship colliding with another vessel or running aground.
More lately, however, the study documented that it has become harder to tell if those punished are being disciplined less because of their performance and more because they had either internally or publicly called the Navy out for neglect.
“In the modern Navy,” wrote Capt. Michael Junge in the Naval War College Review, “a commander is most likely to be removed for personal misconduct or when the crime of command includes one or all of the following elements: death, press coverage, or significant damage to the Navy, whether materially or to its reputation.”
William Barr had returned to private life after his first stint as attorney general when he sat down to write an article for The Catholic Lawyer. It was 1995, and Mr. Barr saw an urgent threat to religion generally and to Catholicism, his faith, specifically. The danger came from the rise of “moral relativism,” in Mr. Barr’s view. “There are no objective standards of right and wrong,” he wrote. “Everyone writes their own rule book.”
And so, at first, it seemed surprising that Mr. Barr, now 69, would return after 26 years to the job of attorney general, to serve Donald Trump, the moral relativist in chief, who writes and rewrites the rule book at whim.
But a close reading of his speeches and writings shows that, for decades, he has taken a maximalist, Trumpian view of presidential power that critics have called the “imperial executive.” He was a match, all along, for a president under siege. “He alone is the executive branch,” Mr. Barr wrote of whoever occupies the Oval Office, in a memo to the Justice Department in 2018, before he returned.
Now, with news reports that his review into the origins of the Russian investigation that so enraged Mr. Trump has turned into a full-blown criminal investigation, Mr. Barr is arousing fears that he is using the enormous power of the Justice Department to help the president politically, subverting the independence of the nation’s top law enforcement agency in the process.
Why is he giving the benefit of his reputation, earned over many years in Washington, to this president? His Catholic Lawyer article suggests an answer to that question. The threat of moral relativism he saw then came when “secularists used law as a weapon.” Mr. Barr cited rules that compel landlords to rent to unmarried couples or require universities to treat “homosexual activist groups like any other student group.” He reprised the theme in a speech at Notre Dame this month.
Barr uses the same language and ideas in an article and speech separated by decades.
Article in The Catholic Lawyer, “Legal Issues in a New Political Order”
Highlighted text appears in both quotations
Remarks to the Law School and the de Nicola Center for Ethics and Culture at the University of Notre Dame
In 1995 and now, Mr. Barr has voiced the fears and aspirations of the conservative legal movement. By helping Mr. Trump, he’s protecting a president who has succeeded in confirming more than 150 judges to create a newly conservative judiciary. The federal bench now seems more prepared to lower barriers between church and state and reduce access to abortion — a procedure that Mr. Barr, in his 1995 article, included on a list of societal ills that also included drug addiction, venereal diseases and psychiatric disorders.
In his unruffled and lawyerly way, Mr. Barr emerged as the president’s most effective protector in the spring, when he limited damage from the special counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential election by shaping the public narrative of the Mueller report before he released any of it.
In his pursuit of investigating the investigators, he even traveled to Britain and Italy to meet with intelligence officials there to persuade them to help it along. Now it is possible the Justice Department could bring charges against its own officials and agents for decisions they made to investigate Trump campaign advisers in the fraught months around the 2016 election, when the Russian government was mounting what the Mueller report called “a sweeping and systematic” effort to interfere.
This criminal investigation seems ominous in the context of Mr. Barr’s other moves.
His Justice Department recently declined to investigate a whistle-blower’s complaint that the president was “using the power of his office to solicit interference from a foreign country in the 2020 U.S. election” and advised the acting director of national intelligence not to send the complaint to Congress. Last week, dozens of government inspectors general warned in a letter to the Justice Department that its position “could seriously undermine the critical role whistle blowers play in coming forward to report waste, fraud, abuse and misconduct across the federal government.”
So while Rudolph Giuliani is freelancing American diplomacy as the president’s personal lawyer, often leaving bedlam in his wake, and Mick Mulvaney flails as acting chief of staff, Mr. Barr has used the Justice Department, with precision, on the president’s behalf. The New York City Bar Association complained a few days ago that Mr. Barr “appears to view his primary obligation as loyalty to the president individually rather than to the nation.”
William Barr (Billy, when he was young) grew up in an apartment on Riverside Drive in Manhattan with a framed Barry Goldwater presidential campaign poster in the foyer, according to Vanity Fair. His mother, who was of Irish descent, taught at Columbia University. His father, a Jew who converted to Catholicism, taught at Columbia, too, and then became the headmaster of the elite Dalton School, leaving after 10 years amid criticism over his authoritarian approach to student discipline.
He went to high school at the equally elite Horace Mann and to college at Columbia, where he majored in government and then got a master’s degree in government and Chinese studies. Mr. Barr went to work for the C.I.A. in Washington in 1973 and attended George Washington University Law School at night.
He joined the Reagan White House in 1982, where he sought to curb regulation. After George H.W. Bush was elected president in 1988, he became director of the Office of Legal Counsel in the Justice Department, which provides legal advice to the president and all executive agencies.
It didn’t take long for Mr. Barr to express his views on executive power. He warned in one of his early opinions, in July 1989, of congressional “encroachments” on presidential authority. “Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved,” he wrote. Some of his Republican colleagues remember being taken aback.
“Bill’s view on the separation of powers was not overlapping authority keeping all branches in check, but keeping the other branches neutralized, leaving a robust executive power to rule. George III would have loved it,” said Douglas Kmiec, a law professor at Pepperdine who preceded Mr. Barr as head of the Office of Legal Counsel.
Mr. Barr also argued that the president had the “inherent authority” to order the F.B.I. to abduct people abroad, in violation of an international treaty principally written by the United States. This view reversed the position that the Office of Legal Counsel had taken nine years earlier. When Congress asked to see Mr. Barr’s opinion, he refused, even as the government defended the abduction of a man in Mexico accused of participating in the killing of a Drug Enforcement Administration agent. The charges against the man were dismissed. It took four years for his opinion to come to light.
“You have a secret opinion that violated the internal rules of the Justice Department” and “diminished America’s reputation as a country that operates by the rule of law,” said Harold Hongju Koh, a Yale law professor who worked in the Office of Legal Counsel and advised the State Department. “At the time, we thought that was as bad as it was going to get.”
After becoming deputy attorney general in 1990, he continued to push the limits on questions of presidential power. He told the first President Bush that he didn’t need congressional approval to invade Iraq. Mr. Bush asked for it anyway.
Mr. Barr, who took over the department in the fall of 1991, also urged Mr. Bush to pardon all six of the Reagan administration officials who faced criminal charges in an arms-for-hostages deal at the heart of the Iran-contra scandal. The president took his advice.
When Mr. Bush lost his bid for re-election, Mr. Barr went back into private practice before taking jobs as the general counsel first for GTE and then Verizon. He served on the boards of several religious groups, including the Catholic Information Center, a self-described “intellectual hub,” affiliated with the ultraconservative order Opus Dei.
Those groups include other conservative Washington insiders, such as Leonard Leo, the executive vice president of the Federalist Society. Mr. Leo has also served on the board of the Catholic Information Center and he came out strongly in favor of Mr. Trump’s nomination of Mr. Barr for attorney general.
In a sense, both Mr. Barr and Mr. Leo have found parallel ways to use the Trump administration as a vehicle for their causes. Mr. Leo has enormous influence from outside the government on the selection of judicial nominees. And from the inside, Mr. Barr plays a role in federal judicial appointments and has supported a Justice Department task force set up to look for cases of religious discrimination.
When Mr. Barr undercut the Mueller report, he lost some supporters. While delaying its release, he presented the conclusions as far less damning for President Trump than Mr. Mueller found them to be. (For example, Mr. Barr said that the special counsel did not find sufficient evidence of a crime when in fact Mr. Mueller had not exonerated Mr. Trump of wrongdoing.)
“Not in my memory has a sitting attorney general more diminished the credibility of his department on any subject,” wrote Benjamin Wittes, the editor in chief of Lawfare.
Despite criticism, Mr. Barr has continued to champion the presidency — and this president. But on Friday, a federal judge in Washington ruled against the Justice Department’s effort to block Congress from getting grand jury evidence obtained in the Mueller investigation. The department has also asked a federal judge to block a subpoena from the Manhattan district attorney for eight years of Mr. Trump’s personal and corporate tax returns.
“From my perspective,” Mr. Barr told Jan Crawford of CBS News in May, “the idea of resisting a democratically elected president and basically throwing everything at him and, you know, really changing the norms on the grounds that ‘we have to stop this president,’ that is where the shredding of our norms and our institutions is occurring.”
In other words, amazingly, it wasn’t President Trump, or Attorney General Barr, who was violating the norms of American governance. It was their critics.
Since Watergate, a crucial norm of Justice Department independence has prevented presidents from ordering or meddling in investigations for partisan reasons.
In 2001, Mr. Barr praised the first President Bush for leaving the Justice Department alone. Mr. Bush’s White House “appreciated the independence of Justice,” Mr. Barr said. “We didn’t lose sight of the fact that there’s a difference between being a government lawyer and representing an individual in his personal capacity in a criminal case.”
Now, Mr. Barr seems hard-pressed to maintain a semblance of those boundaries. The criminal investigation of the origins of the Russia investigation that he ordered is official government business. It’s headed by an experienced prosecutor, John H. Durham, the United States attorney for Connecticut, and it’s supposed to be on the up and up.
But when Mr. Barr told Congress in April that he thought “spying” on the Trump campaign by American intelligence agencies occurred — the F.B.I. director, Christopher Wray, told Congress that “spying” was “not the term I would use” — he echoed President Trump’s conspiracy theory of being a victim of the “deep state.” And in the last month, Mr. Barr has found his review mixed up with the machinations of Mr. Giuliani, who was directed by Mr. Trump to investigate the 2016 election and the Biden family in Ukraine.
Mr. Trump made the overlap explicit when he lumped Mr. Giuliani and Mr. Barr together in his July phone call with Ukraine’s president, Volodymyr Zelensky. “I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call,” Mr. Trump told Mr. Zelensky, according to notes released by the White House. Mr. Barr was reportedly “surprised and angry” by the president’s reference, and a Justice Department representative has denied he had any contacts with Mr. Zelensky.
Then, Mr. Mulvaney, the acting White House chief of staff, brought up Mr. Barr’s review of the Russia investigation at his news conference on Oct. 17 in defense of Mr. Trump’s request to Mr. Zelensky for “a favor” and information. (“So you’re saying the president of the United States, the chief law enforcement person, cannot ask somebody to cooperate with an ongoing public investigation into wrongdoing?” Mr. Mulvaney asked.)
The White House’s use of the Justice Department as a shield in the Ukraine scandal risks leaving Mr. Barr’s review “hopelessly compromised,” tweeted the Harvard Law School professor Jack Goldsmith, an alumnus of the Office of Legal Counsel who has defended Mr. Barr.
And in blockbuster testimony before Congress last Tuesday, the top American diplomat in Ukraine, William Taylor, said that he and Gordon Sondland, the ambassador to the European Union, who was conveying Mr. Trump’s orders concerning Ukraine, discussed the possibility that Ukraine’s prosecutor would make a public statement about “investigations, potentially in coordination with Attorney General Barr’s probe.” Either people in the president’s circle are using Mr. Barr as a pawn, or he’s in deeper than he has said.
Either way, maybe the lesson is the same one that applies throughout the administration: The fallout from the president’s maneuvering taints the people around him. The longer Mr. Barr stays in office, the more that Mr. Trump will look for the attorney general to do for him.
When Mr. Mueller closed up shop, he left several cases pending with the Justice Department,including charges against the Trump operative Roger Stone, which could end with disclosures at trial that damage the president (Mr. Stone has pleaded not guilty). What if Mr. Trump would rather make cases like these go away, with pardons or other inducements? Will Mr. Barr go along?
During the Bush administration, in a more moderate time, Mr. Barr worked for a buttoned-down president who called for a “kinder” and “gentler” strain of Republicanism. Now he has a boss who calls the impeachment process “a lynching,” Republican critics “human scum” and the news media “the enemy of the American people.”
As the buttons fly off, Mr. Barr still seems unperturbed. He’s the perfect attorney general for President Trump. Not so much, it seems, for the country.
No matter how much the president loves them, the government can only enforce nondisclosure agreements for classified information.Part of the outrage on the president’s part seems to be over Manigault Newman breaking what Trump saw as a promise not to talk about her time working for him. White House counselor Kellyanne Conway told ABC News: “We have confidentiality agreements in the West Wing — absolutely we do.” And Manigault Newman claims in her book that Trump’s reelection campaign offered her a $15,000-a-month salary in exchange for signing a confidentiality agreement... I have reviewed one document that is purportedly a version of the White House NDA. It appeared to be nothing more than a Trump Organization document that was modified to apply to White House staff — in fact, it still had a provision that in any litigated dispute, the parties agreed that New York state law would apply, language that no standard federal document would ever have used... It was also publicly reported that one early draft of a White House NDA contained a provision that imposed a $10 million fine to be paid to the federal government if the signatory shared confidential information... While the term “confidential” in D.C. parlance is part of the national security classification framework, in these NDAs, it referred to potentially derogatory and unclassified information pertaining to the president... These NDAs also ignored earlier guidance from the Office of Management and Budget that any NDAs should contain whistleblower protection provisions, clauses that would be contrary to the clear message desired by this administration... his campaign entity, Donald J. Trump for President Inc., rather than the U.S. government, has reportedly filed for arbitration against Manigault Newman seeking millions for a violation of a 2016 NDA... The NDA allegedly required her to keep proprietary information about the president, his companies or his family confidential and to never “disparage” the Trump family “during the term of your service and at all times thereafter.” This clause is in direct conflict with the legal precedents governing federal employees, but how an arbitration body will interpret constitutional questions is anyone’s guess... In an April 2016 interview with The Washington Post, the future president said he supported making federal employees sign NDAs.“I think they should,” Trump said. “. . . When people are chosen by a man to go into government at high levels, and then they leave government and they write a book about a man and say a lot of things that were really guarded and personal, I don’t like that.”
.. In 1961, President John F. Kennedy said the “very word ‘secrecy’ is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings.”