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Tuesday, September 22, 2015

Proper and Improper Closing Argument by BY STEPHEN A. SALTZBURG

Proper and Improper Closing Argument by BY STEPHEN A. SALTZBURG

IG: Feds didn’t pass polygraph evidence of child abuse to investigators BY By Marisa Taylor - McClatchy Washington Bureau

IG: Feds didn’t pass polygraph evidence of child abuse to investigators BY By Marisa Taylor - McClatchy Washington Bureau.

The nation’s spy satellite agency failed to notify authorities when some employees and contractors confessed during lie detector tests to crimes such as child molestation, an intelligence inspector general has concluded.

In other cases, the National Reconnaissance Office delayed reporting criminal admissions obtained during security clearance polygraphs, possibly jeopardizing evidence in investigations or even the safety of children, according to the inspector general report released Tuesday , almost two years after McClatchy’s reporting raised similar concerns.

In one instance, one of the agency’s top lawyers told colleagues not to bother reporting confessions by a government contractor of child molestation, viewing child pornography and sexting with a minor, the inquiry by the inspector general for the intelligence community revealed.

“Doubt we have enough to interest the FBI,” the agency’s then -assistant general counsel told another official in an email, adding, “the alleged victim is fourteen years old and fully capable of calling the police herself.” Neither party in the email was identified by name.

After the other official insisted on reporting it, the confession was eventually investigated and it turned out that the girl was still in contact with the contractor who’d confessed to the crimes. It took almost five weeks for the Department of Justice to be informed.

When confronted with the lapses by the inspector general’s investigators, the National Reconnaissance Office’s then-top lawyers said they “were not legally obligated . . . to report child sexual abuse to DOJ or law enforcement organizations because child abuse is a state crime, not a federal crime,” the report said.

“Therefore they generally chose not to report those crimes unless the admissions also involved federal crimes such as possession of child pornography.”

The conclusions confirm an investigation by McClatchy in July 2012 that found law enforcement officials were not being told of some criminal confessions obtained during the National Reconnaissance Office’s security clearance polygraphs.

“It’s hard to understand why the NRO failed to report crimes involving children immediately . . . ,” said Sen. Charles Grassley, an Iowa Republican, who demanded the inquiry after reading McClatchy’s stories. “The NRO showed a complete lack of common sense in failing to require reporting of serious state crimes of this sort.”

The inspector general said that as a result of McClatchy’s reporting and congressional interest, the spy agency had improved its reporting of crimes.

McClatchy, however, learned that a second inquiry of the same polygraph division recently documented other problems. The National Reconnaissance Office’s inspector general found “significant shortcomings” in the agency’s polygraph program that it says “may result in potential negative national security implications originating at the NRO.”

That inspector general declined to immediately provide a copy of the unclassified andrecently completed report, but McClatchy was able to obtain details of its conclusions. The report quotes an NRO official as saying the polygraph program was “terribly broken” and would require a “paradigm shift” to address shortcomings. The official added that the “current status of the NRO polygraph program is bleak.”

The NRO had been warned as early as 2010 about possible problems with crime reporting by the National Security Agency’s inspector general after an outside routine review that intelligence inspectors general conduct. In an unusual arrangement, the NRO is staffed by both the CIA and Air Force employees.

While the inspector general for the intelligence community confirmed that the NRO wasn’t legally required to report certain state crimes such as child molestation, it noted that the agency wasn’t prevented from reporting them, especially when “an imminent danger” to others may exist.

The NRO polygraphed more than 30,000 people from 2009 to 2012. Less than 1 percent in the first half of 2013 made admissions that would jeopardize security clearances or trigger criminal investigations, the intelligence inspector general’s report said.

The NRO, however, did not report some alleged federal crimes that it was required to, such as possession of child pornography, in part because of “inconsistent and inaccurate advice” by the agency’s then top lawyers, the inspector general for the intelligence community found. Those lawyers are not named and are no longer in their positions, but the report did not say whether they’d moved or been fired because of the reporting problems.

Delays as long as several months, meanwhile, meant “individuals could continue the criminal activity or tamper with or destroy evidence in the interim,” said the inspector general’s office, which said it referred for investigation seven admissions related to child porn or child abuse that the NRO didn’t report.

To prosecute a polygraph confession, criminal investigators often must collect more evidence or get an admission to a crime during a separate interrogation, because polygraph confessions are not admissible in most courts as evidence against defendants.

Yet McClatchy reported that the NRO hadn’t told law enforcement agencies that an Air Force lieutenant colonel admitted in 2010 during a lie detector test that he’d touched a child in a sexual way and had downloaded child pornography on his Pentagon computer.

McClatchy determined that he later retired and was still collecting retirement benefits. The inspector general for the intelligence community confirmed that the NRO didn’t notify authorities who could have investigated the case, reporting it only to the Air Force division that handles security clearances.

After McClatchy’s report, investigators with the Department of Homeland Security looked into it. The report released Tuesday doesn’t say what resulted from that inquiry, but the officer still held a security clearance as of earlier this month, Grassley said.

“The NRO has made important strides in reducing the time it takes to report crimes from over 100 days to an average of three days, but quite frankly, sometimes that’s still too long,” Grassley said. “It’s unacceptable to give a person who has admitted to viewing child pornography or of sexually abusing children any time to destroy evidence or strike again.”

McClatchy also reported that Escondido, Calif., police and school district officials said they weren’t informed when a former substitute teacher in their region confessed in 2010 to the NRO that he’d molested a former student.

The federal contractor said that if he were asked, “Have you ever molested a nine-year-old?’ I’d have to say yes,” an internal document obtained by McClatchy said.

At the time, the NRO, the Justice Department and the FBI refused to comment on the case.

The inspector general determined that the NRO had reported it to the Justice Department and the FBI’s Innocent Images International Task Force. The NRO said it was told the matter had been referred to local law enforcement.

The Escondido police, however, said they’d scoured their records looking for any notification and found nothing. The department is not part of that FBI task force but is part of other bureau task forces, a spokesman said. School officials hadn’t heard about it until a McClatchy reporter called them in 2012.

At that point, the Escondido police launched a criminal investigation but couldn’t locate a victim and the former substitute teacher refused to be questioned.

“We went to great lengths to investigate this guy, but ultimately we could not file a case with the district attorney,” Neal Griffin, a lieutenant with the Escondido police department, said last week. “The extensive delay in reporting made for a major stumbling block.”

The inspector general noted there were signs of similar problems at other intelligence agencies. “It’s my view this issue is systemic,” said I. Charles McCullough III, the inspector general for the intelligence community. The FBI did not immediately respond to questions Tuesday.

McClatchy also reported that the NRO polygraphers had accused their agency of pressuring them to collect information during the lie detector tests that was against Pentagon policy. The Pentagon permits the NRO to ask direct questions during security clearance investigations only about intelligence matters.

Polygraphers told McClatchy they were being pressured to go after prohibited personal matters during security clearance polygraphs, including, in one case, interrogating a longtime contractor about her molestation as a child. The Pentagon has told the NRO it doesn’t have the authority to ask directly about crimes during its polygraph screenings. It’s supposed to directly ask only about national security issues such as spying and terrorism, the Pentagon has said.

Polygraphers said they were being rewarded with bonuses or penalized based on the number of admissions they obtained. McClatchy reviewed orders given to polygraphers that confirmed they were told in some cases to collect the more personal information. The polygraphers said it was not a written policy, but an off-the-books requirement.

The NRO’s inspector general found instances in which polygraphers went beyond those limits, but it blamed “inefficient testing practices.”

That inspector general accused McClatchy of taking facts “out of context.”

“While these instances may lend to perceptions that the NRO is exceeding its authority in asking questions beyond the scope . . . we found no evidence of programmatic directives or policies expressly instructing examiners to do so,” the inspector general’s office concluded in its separate inquiry.

The inspector general, however, found 1,800 people with current or previous NRO access who never underwent polygraph exams. More than 600 people didn’t get polygraphed within a year of gaining access to classified information.

“These shortfalls diminish the integrity of the NRO polygraph program and may cast uncertainty onto particular test results,” the inspector general’s office said.

Although the inspectors general for the NRO and intelligence community confirmed aspects of allegations raised by polygraphers who talked to McClatchy, one of the polygraphers was denied whistle-blower status by a third inspector general.

Former NRO polygrapher Mark Phillips resigned after objecting to the agency’s practices. He told the Pentagon inspector general he was retaliated against as a result of blowing the whistle.

His lawyer said he tried to persuade the Pentagon to look more deeply into the overall allegations, but officials there refused. The Pentagon inspector general’s office noted that NRO supervisors’ knowledge of Phillips’ complaints prior to the disciplinary action “could demonstrate that the disclosures were a contributing factor” but ultimately concluded that Phillips was punished for other legitimate reasons.

“In some ways, these reports are vindication of a whistle-blower who has been retaliated against and ignored,” said Mark Zaid, Phillips’ lawyer. “At the same time, this shows there needs to be legitimate oversight of the intelligence community’s polygraph programs and that review needs to come from Congress in public hearings.”

How FBI Lies Can Damage Civil Society, by CONOR FRIEDERSDORF

How FBI Lies Can Damage Civil Society

                                     FBI Director James Comey Kevin Lamarque/Reuters
The FBI lies a lot.
Sometimes that's fully justified. Brave agents risk their lives to infiltrate terrorist cells, organized crime, and child-pornography rings. Subterfuge is vital to these operations, and needn't harm the country if done correctly. But there are certain kinds of lies and untruths that the FBI should carefully avoid. FBI Director James Comey isn't always able to identify them.

Consider his remarks on three separate subjects.

The first is the debate about whether Apple, Google, and other device manufacturers should build security vulnerabilities into their devices so that the tiny subset that police want to search can be compromised after a warrant is obtained. Comey went on 60 Minutes and misled its audience about whether a warrant is always needed to read your email. He "clarified" his remarks during a subsequent speech at the Brookings Institution. But key details of that speech turned out to be misleading too. Perhaps these were untruths spoken out of ignorance and lack of preparation rather than lies. Either way, an FBI director should take special care to speak accurately when engaged in public debate about important matters of public policy. Comey keeps failing that standard.

Subject No. 2 concerns an FBI lie that everyone acknowledges to be deliberate. Agents in Las Vegas suspected an illegal gambling ring was being run out of a few fancy hotel rooms. But they didn't have enough evidence for a search warrant. The law forbade them from entering unless the inhabitants let them in voluntarily.

The agents hatched a scheme. They would shut off the room's Internet connection as if it had broken, pose as hotel employees coming to fix the problem, and thereby gain the "consent" of the inhabitants to come in and look around. This is an affront to the Fourth Amendment and the concept of consent. The lawyer for the defendants capably articulates why Americans should object to the FBI's logic by sketching the society that we'd have if it was used more often:

The next time you call for assistance because the Internet service in your home is not working, the "technician" who comes to your door may actually be an undercover government agent. He will have secretly disconnected the service, knowing that you will naturally call for help and—when he shows up at your door, impersonating a technician—let him in. He will walk through each room of your home, claiming to diagnose the problem. Actually, he will be videotaping everything and everyone inside. He will have no reason to suspect you have broken the law, much less probable cause to obtain a search warrant. But that makes no difference, because by letting him in, you will have "consented" to an intensive search of your home.

The next time our telephone service goes out, the "repairman" who responds may actually be an FBI agent who cut the line himself. The next time your cable service goes fuzzy, your plumbing backs up, or your lights go dark, caveat emptor: the source of the problem may actually be the government agent lurking in his car down the street, waiting for you to call for help—thereby unknowingly "consenting" to him using a secret camera to record you and the most private spaces in your home.

Even if you think that the next service outrage in your home is real, so that an actual technician has responded, don't be too sure. Your consent is just as valid when the undercover agent lies to your face to falsely reassure you—even when he misleads you by holding realistic sounding telephone calls with made-up colleagues about what is actually a nonexistent problem. So, every time any technician or service provider comes to your door, you will feel the palpable dread that by opening it you are "consenting" to the government secretly spying on you and your family—with no basis whatever. Or at least that is inevitably the government's astonishing position before this Court, because those are the appalling facts of this case.

Imagine if every government agency, from the FBI to the IRS to the local police force to the municipal code department, adopted this approach and the courts went along. Yet after The New York Times flagged this case in an editorial about problematic lies told by the FBI, Comey defended it as "acting responsibly and legally."

He also defended another case mentioned in the same editorial, where the FBI posed as a journalistic organization. Comey himself recounts the gambit that was used:

In 2007, to solve a series of bomb threats and cyberattacks directed at a Seattle-area high school, an F.B.I. agent communicated online with the anonymous suspect. Relying on an agency behavioral assessment that the anonymous suspect was a narcissist, the online undercover officer portrayed himself as an employee of The Associated Press, and asked if the suspect would be willing to review a draft article about the threats and attacks, to be sure that the anonymous suspect was portrayed fairly.

The suspect agreed and clicked on a link relating to the draft “story,” which then deployed court-authorized tools to find him, and the case was solved. No actual story was published, and no one except the suspect interacted with the undercover “A.P.” employee or saw the fake draft story. Only the suspect was fooled, and it led to his arrest and the end of a frightening period for a high school.

That outcome is great—there's no reason to feel sorry for the perpetrator here. But of all the sorts of subterfuge that could've been used did they have to use journalism? Jack Shafer explains the problem:

What’s so special about journalists and journalism?

I hope my explanations don’t sound like special-interest pleading when I state that such acts corrupt the very existence of journalism. Whenever police officers masquerade as journalists, they introduce doubt into the public’s mind about whether the next person purporting to be a journalist is actually a police officer or the stories in the news are really bait set by police. It won’t take too many acts of imposture like the FBI’s in Seattle before the credibility of the press and the willingness of news sources to speak to reporters begins to fall, plugging the flow of information that nourishes a free society.

The FBI has institutional needs and a law-enforcement mission. But it ought not think so narrowly of its agenda, the consequences be damned. When FBI leaders participate in policy debates, they have a civic obligation to speak truthfully and accurately. Agents trying to catch bad guys have a legal obligation to respect the Fourth Amendment, and should refrain from bringing about a society with pervasive mistrust of anyone claiming to be a Wi-Fi repairman or an investigative journalist.

Given the FBI's long history of immoral and illegal conduct (it doesn't get much worse than urging Martin Luther King Jr. to commit suicide after threatening to expose his sex life to the public) you'd hope it would try to err on the side of caution. Comey claims that the FBI's use of deception "is subject to close oversight, both internally and by the courts that review our work." If so, the oversight isn't enough.