by Tom Fitton –
There are some major new developments in the strange case of Sgt. Bowe Bergdahl that cry out for transparency – under law – from the Obama administration. The circumstances surrounding Bergdahl’s disappearance and subsequent capture have become the subject of intense controversy – and an equally intense cover-up, requiring Judicial Watch to file five separate Freedom of Information Act (FOIA) lawsuits to ferret out the truth.
Bergdahl, you will recall, was released on May 31, 2014, as part of a prisoner exchange by the Obama administration for five Taliban cutthroat terrorist leaders who were held at the detention center at Guantanamo Bay, Cuba. The National Defense Authorization Act for Fiscal Year 2014 says that all prisoner transfers from Guantanamo Bay require 30 days’ notice to Congress.
Such notice was not provided in Bergdahl’s case, leading the Government Accountability Office to declare that the Obama administration violated “clear and unambiguous” law in the prisoner swap. (For more details on this criminality, I encourage you to review the “Did Obama Commit a Crime?” Weekly Update.)
In light of last week’s scandalously delayed announcement that Bergdahl is set to be charged with desertion and misbehavior before the enemy, which could carry the death penalty, we took the opportunity to remind the public of Obama’s unlawful cover-up of this scandal by announcing the filing of our fifth lawsuit to pry information from the Obama administration.
We filed the lawsuit (Judicial Watch v U.S. Department of Defense (No. 1:15-cv-00212)) several weeks ago after the Obama Defense Department ignored our FOIA request submitted on October 22, 2014, asking for:
Any and all records of communications, including by not limited to, emails and text messages, from or to (as either a direct recipient, “Cc” or Bcc”) Secretary of Defense Chuck Hagel, and the following members of the Joint Chiefs of Staff: the Chairman of the Joint Chiefs of Staff; the Military Service Chiefs of the Army, Navy, Air Force and Marine Corps; and the Chief of the National Guard Bureau, regarding, concerning, or related to the ‘initial report’ of the Army’s review of the disappearance of Bowe Bergdahl from his post and his subsequent capture by Taliban forces. The time frame of the records sought is September 1, 2014 to October 28, 2014.
This is the latest in a series of lawsuits filed by Judicial Watch concerning the controversial prisoner exchange for Bergdahl. On November 18, 2014, Judicial Watch filed lawsuits against the U.S. Departments of Defense and State to obtain records concerning arrangements made between the U.S. government with third parties or other states regarding agreements and monetary payments to secure the release of Bergdahl from captivity in Afghanistan. On January 2, 2015, Judicial Watch filed a FOIA lawsuit against the U.S. State Department seeking access to the bilateral Memorandum of Understanding between the U.S. and Qatar relating to the terrorist release.
The initial report on Bergdahl’s behavior was completed in 2009. The Army’s fact-finding “investigation” concluded late last year. The announcement of proposed charges was last week, but the Obama Defense Department announced that reports about Bergdahl would remain secret.
Given the confirmation of Bergdahl’s contemptible behavior, we now know why the Obama gang would keep so much information secret about his desertion. The Obama administration lied and violated the law in releasing five terrorist leaders from captivity in exchange for Bergdahl, and is violating federal open records law to cover its tracks. Susan Rice, the president’s Benghazi cover-up co-conspirator, said that Bergdahl served with “honor and distinction.” Even assuming Bergdahl is innocent until proven guilty, Rice’s comment had no relation to the truth. But this was part of Obama’s bizarre PR effort to justify his parleying with terrorists and violating the law.
I’ve personally concluded that the Bergdahl swap was pushed to help with Obama’s dangerous obsession with freeing the terrorists held at Gitmo. Investor’s Business Daily captured the point, too:
Truth is, Obama used Bergdahl as a pretext for doing what he always sought to do – empty out Gitmo, national security be damned. The freed Taliban leaders were among the nearly 40 prisoners at Gitmo classified as “indefinite detainees” – too dangerous to release. To shutter the Cuban prison, Obama first had to whittle down that list, starting with the Taliban Five.
His scheme is working as planned, as one dangerous detainee after another is freed on the argument that the Taliban Five set a precedent for the release of others. The recent release of al-Qaida assassin Muhammad al-Zahrani, for one, was based on that precedent. “We have demonstrated that Mr. al-Zahrani represents a lower threat than the (Taliban) detainees that have been released,” his defense team argued.
Obama also had several chances to rescue Bergdahl on the ground, but he reportedly ignored them all. Why? He wanted a terrorist trade to help close down Gitmo. Don’t be fooled: This is what Bergdahl was all about.
By the way, the swap occurred despite warnings that the terrorists would get back to work trying to murder Americans. Catherine Herridge of Fox News reported that indeed “at least three of the five Taliban prisoners exchanged for Bergdahl have tried to reunite with their terrorist networks.”
Many Americans may be disappointed in the behavior of some of our military’s leadership. The untoward delay of justice by the Obama Pentagon is unseemly at best, and – as the decision was conveniently delayed well past the November elections – one must wonder if politics trumped military discipline and order among the Pentagon leadership who should know better. How terrible it is to see Obama’s Chicago Way at work in the Pentagon.
Open Borders for Terrorists?
Reports are that the misnamed Department of Homeland Security (DHS) has, incredibly, a “hands off list” that makes it possible for individuals with unsavory and even dangerous terrorist connections to make their way into the U.S. And that’s why on February 13, 2015, Judicial Watch filed a Freedom of Information Act (FOIA) lawsuit against the DHS to obtain a copy of an Office of Inspector General (OIG) report concerning this “hands off list.” This lawsuit also asks for any and all records of former DHS Inspector General Charles Edwards regarding the OIG report.
On May 6, 2014, Senator Charles Grassley (R-IA) released internal DHS emails revealing an alleged terrorist “hands off list” allowing individuals with potential terrorist ties into the United States. The emails were attached to a letter Grassley sent to DHS Secretary Jeh Johnson inquiring about the “hands off list” in general, and specifically seeking information about an unnamed individual DHS may have admitted into the country using this list.
The DHS emails included a 2012 email chain between U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) asking whether to admit the unnamed individual with ties to various terrorist groups. The person was believed to be a member of the Muslim Brotherhood and a close associate and supporter of Hamas, Hezbollah, and the Palestinian Islamic Jihad, according to the email exchange obtained by Grassley’s office.
In his letter to Johnson, Grassley quotes an email from an ICE official to a CBP official saying, “I’m puzzled how someone could be a member of the Muslim Brotherhood and unindicted co-conspirator in the Holy Land Foundation trial, be an associate of [redacted], say that the US is staging car bombings in Iraq and that [it] is ok for men to beat their wives, question who was behind the 9/11 attacks, and be afforded the luxury of a visitor visa and de-watchlisted.”
On May 19, 2014, Chairman of the House Homeland Security Committee Mike McCaul (R-TX) told Breitbart News that that the “terrorist hands off list” emails released by Grassley had been under investigation by the newly appointed DHS IG John Roth for over three months. McCaul added, “The new IG has inherited this matter. He’s a new IG. He’s pretty decent-well respected. Obviously, his predecessor was not.”
Roth’s predecessor was Charles Edwards, who left office after a series of allegations that he had softened reports to avoid embarrassing the Obama administration. According to an April 24, 2014, report from an oversight panel of the Senate Homeland Security and Government Operations Committee, Edwards “failed to uphold the independence of the OIG … and directed that reports be altered or delayed to accommodate senior DHS officials.”
According to Grassley, at least one terrorist benefited from the “hands off” policy. Who was the person? We don’t know. How did the terrorist associate make it onto the list? We don’t know. Did any politician in the White House, DHS, or even Congress pull strings to give this person “amnesty” for his prior terrorist leanings in order to allow him entry into the United States? How many other dubious foreign nationals have been allowed into the United States thanks to this “hands off” policy? This list, if indeed it exists, is a threat to our national security and may get innocents killed.
If there were answers that would help the Obama administration, you can bet we would not have had to sue in federal court to obtain them. And why is the DHS OIG, in light of that office’s record of corruption, participating in this unlawful cover-up by refusing to turn over this basic information?
Even when it comes to protecting our borders from known terrorists, the Obama administration places secrecy and politics above national security and the rule of law. Our nation has reached a dangerous pass.
Obama Amnesty is Threat to Public Safety
The liberal media and Establishment Washington (heavily populated by members of both parties) would have you believe that President Obama’s evisceration of our nation’s immigration laws is a political game. Most Democrats defend Obama’s despotism on this issue. Many Republicans, while complaining about Obama’s lawlessness, are happy to fund it with your tax dollars.
But tens of thousands of the illegal aliens released by this administration (in contravention of law) are dangerous criminals. Obama’s lawbreaking, and Republican complicity in it, will kill or harm innocent American – and we have the documents to prove it.
Once again, it was your Judicial Watch that forced the truth from the Department of “Homeland Security” (DHS), which is responsible for releasing hundreds of thousands of criminal illegal aliens into the country. Those quotation marks around “Homeland Security” should be fixed in every news piece referencing the agency from this point forward in light of what your JW has just uncovered.
JW recently released to the public 76 pages of DHS documents showing that as of April 26, 2014, the Immigration and Customs Enforcement (ICE) agency, a division of DHS, had released 165,900 convicted criminal aliens into the United States at taxpayers’ expense, both in terms of money and security. This figure includes criminal aliens convicted of homicide, sexual assault, kidnapping, and aggravated assault.
The documents we have just released were obtained through a July 21, 2014, Freedom of Information Act (FOIA) lawsuit we filed after DHS failed to respond to a FOIA request issued earlier that year.
Specifically, we asked for records of communications to and from personnel in the office of the principal deputy assistant secretary of Immigration and Customs Enforcement, including its component offices, from May 1 to May 15, 2014, concerning a report published by the Center for Immigration Studies (CIS) relating to the release of 36,000 criminal aliens – the total known criminal release for 2014 alone.
The ICE documents we released confirmed the key findings of that CIS report. ICE freed 36,007 convicted criminal aliens, who had nearly 88,000 convictions including 193 homicide convictions, 426 sexual assault convictions and 303 kidnapping convictions. This is chilling.
The shocking numbers were known by the Obama gang more than one year ago, but had been kept secret until our litigation. A DHS “Overview of ICE” document marked “FOR OFFICIAL USE ONLY” reveals the details:
• Non-Detained Final Order Convicted CRIMINAL 165,950
• Non-Detained Final Order NON CRIMINAL 706,950
• Non-Detained Final Order TOTAL 872,900
Please keep in mind that the term “Final Order” means that the illegal aliens were ordered to leave the country – but the Obama administration decided to let them stay anyway.
Throughout his two terms as president, President Obama’s appointees have been recklessly permissive in his policies toward illegal aliens who could be dangerous to the country. Back in May 2013, your JW obtained documents showing that the U.S. Citizenship and Immigration Services (USCIS) ignored required background checks in 2012 and instead pursued “lean and lite” procedures to keep pace with the avalanche of amnesty applications that flowed out of President Obama’s Deferred Action for Children Arrivals (DACA) directive, which grants illegal aliens a two-year deferment from deportation.
The fact that we need JW’s expert team of attorneys to sue in federal court to obtain information about the 165,950 convicted criminal aliens now free to prowl America’s streets shows how duplicitous and dishonest the Obama administration has been on this issue. The deportation of illegal aliens, who are a real and present danger to innocent Americans, is the lowest possible priority now for Obama administration appointed officials and the faceless bureaucrats who do their bidding.
This new batch of documents JW has obtained also demonstrates that the contempt for our nation’s immigration laws includes local politicians who also think they are above the law. The “amnesty politicians” create state and local “sanctuary policies” that undermine federal immigration law.
An email dated May 2, 2014, for example, highlights how such policies in Montgomery County, Maryland, (right next door to D.C.) made it impossible for immigration officials to gain access to an illegal alien who was “in state custody on rape charges.” The lawlessness on immigration is so extreme that its proponents in one of the wealthiest counties in the nation would protect illegal alien rape suspects from scrutiny!
Not all is lost. More than two dozen states have at least challenged the most egregious Obama amnesty measures (though more than a few of them have sanctuary policies just like Montgomery County’s!). The court fight has been successful thus far, if you value the U.S. Constitution and the principle that President Obama is not a king. Judicial Watch is in the thick of this important legal battle and is bringing the issue of public safety (and the Obama gang’s lies about the issue) to the attention of the courts.
Last week, we filed an amicus curiae brief in the U.S. Court of Appeals for the Fifth Circuit opposing the Department of Justice’s (DOJ) “emergency” motion to allow President Obama’s unilateral “executive actions” on illegal immigration to go forward (State of Texas, et al., v. United States, et al. (No. 15-40238)).
Our lawyers counter the Obama administration’s argument that the injunction against its mass amnesty program “interferes with [its] ability to protect the Homeland and secure our borders” by helping it distinguish criminals and other high priority aliens for removal. Citing other records we obtained under the Freedom of Information Act, Judicial Watch pointed out that the Obama amnesty is unlikely to have anything to do with finding criminals for removal:
Through a Freedom of Information Act request, Judicial Watch obtained records showing that DHS is failing to conduct required, comprehensive background checks on aliens who apply for Appellants’ original deferred action program, known as Deferred Action for Childhood Arrivals (“DACA”), in order to accelerate the processing of application. See Press Release, Documents Reveal DHS Abandoned Illegal Alien Background Checks to Meet Amnesty Requests Following Obama’s DACA, Judicial Watch, Inc. (June 11, 2013) Specifically, the records reveal that DHS abandoned rigorous checks of DACA applicants’ backgrounds for minimal, “lean and lite” background checks. Id. In early March 2015, it was reported that 23 DACA beneficiaries were picked up in a nationwide sweep of criminal aliens, 15 of which are current DACA recipients.
Because there is evidence to suggest that comprehensive backgrounds checks are not being performed, allowing the DAPA [Deferred Action for Parents of American and Lawful Permanent Residents] program to take effect pending Appellants’ appeal of the District Court’s preliminary injunction is unlikely to assist DHS in distinguishing criminal and other high priority aliens from non-criminal aliens.
On February 23, 2015, in its drive to fulfill Obama’s wish to circumvent established immigration law the Obama Justice Department, on behalf of the Department of Homeland Security, attempted to get around normal legal procedure, filing a motion for a stay in the Appeals Court before U.S. District Court Judge Andrew Hanen has ruled. In its brief Judicial Watch argues that the Obama administration is improperly seeking intervention from the higher court in contravention of law:
If this Court were to grant Appellants’ motion, it would cast aside decades-old immigration laws passed by Congress and signed by the President. These laws have been in place for almost 30 years. In seeking a stay pending appeal, Appellants fail to demonstrate why destroying 30 years of status quo and undermining duly enacted laws is necessary at this immediate date. None of the reasons cited by Appellants in their motion answer the question: why today?
According to Federal Rules of Appellate Procedure, a motion for a stay pending appeal filed in the Appellate Court “must state that, a motion having been made, the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action.” Judicial Watch notes that the DOJ’s “sole argument for seeking relief from this Court before the District Court has ruled is their ‘view of the urgency of obtaining a stay of the preliminary injunction.'”
On March 9, 2015, Judge Hanen issued an order that he would rule on the request for a stay after a March 19, 2015, hearing. Judicial Watch sees no obvious reason in the court’s record that suggests that the District Court will not rule shortly, so there is no lawful reason for asking for the appellate relief other than pure politics. As The New York Times reported, the administration’s appeal to the Fifth Circuit was seen as a way to send “a message to immigration advocates, many of whom have been frustrated by the Justice Department’s [actions].” The Obama gang, catering to amnesty extremists, is asking for special favors from the courts just so illegal alien radicals and their advocates won’t give them political trouble. The president’s overturning of our nation’s immigration laws isn’t enough; the courts must now bend a knee to this despotic administration!
It is not credible for anyone to suggest that President Obama’s amnesty program is about protecting the public safety. Whether it is releasing dangerous criminal illegal aliens onto an unsuspecting public – or simply refusing to do basic background checks on beneficiaries of its amnesty programs – the Obama administration will guarantee that innocent Americans suffer a high price indeed for its lawlessness.
Tom Fitton – President