by Tom Fitton –
We all know the old saw, “What happens if a tree falls in the forest and nobody hears it?” But, with the latest Judicial Watch release of internal State Department documents, the far more important and pressing question is, “What happens if a warning is given three months before a deadly terrorist attack on a U.S. Consulate, and no one in the Obama administration – including the president and his Secretary of State, Hillary Clinton – chooses to heed it?”
On September 10, we released stunning new documents revealing that nearly three months before the terrorist attack on the U.S. Special Mission in Benghazi, Libya – in which four Americans, including Ambassador Chris Stevens were killed – top State Department officials were explicitly warned that security guards were abandoning their posts “out of fear of their safety.” The documents also warned that an explosion outside the compound wall had “created a fear factor when it came to working the night shift.”
In short, the State Department was told in no uncertain terms that the U.S. Special Mission in Benghazi was unsafe. And, in fact, it was very likely a death trap. Despite this and other warnings, (Ambassador Stevens himself requested more help in July, two months before the attack, but his request was turned down by both the State and Defense Departments), the Obama administration unforgivably essentially left our people to fend for themselves in Benghazi. As Chris Hicks, who served Deputy Chief of Mission at the U.S. Embassy in Tripoli from July 31 to December 7, 2012, explained in the Wall Street Journal:
When I arrived in Tripoli on July 31, we had over 30 security personnel, from the State Department and the U.S. military, assigned to protect the diplomatic mission to Libya. All were under the ambassador’s authority. On Sept. 11, we had only nine diplomatic security agents under Chris’s authority to protect our diplomatic personnel in Tripoli and Benghazi.
Given all this background, you can imagine the honor and sadness Judicial Watch had announcing the release of these new documents at Capitol Hillpress conference with the family members of Benghazi hero Ty Woods, including his father Charles Woods.
The internal State Department documents at issue were obtained by Judicial Watch thanks to a February 25, 2013, Freedom of Information Act (FOIA) lawsuit, Judicial Watch v. U.S. Department of State (No. 13-1559) seeking:
Any and all records regarding, concerning, or related to the $387,413.68 contract awarded by the Department of State to an unidentified foreign awardee for ‘Security Guards and Patrol Services.’ According to the record of this expenditure on USASpending.gov, the contract was signed on February 17, 2012 and May 3, 2012, and is identified by Award ID SAQMMA12C0092.
According to the documents we forced out of the Obama State Department, on June 30, 2012 – nearly three months before the fatal Benghazi terrorist attack – a Quality Assurance Compliance Report from Blue Mountain Group (BMG) Libya to Department of State Contract Specialist Neal Kern warned that the number of local security guards leaving their posts had put the U.S. Benghazi Mission at risk:
Due to the amount of local guard force members leaving out of fear of their safety and the long process to security check individuals, it makes it very difficult to quickly react to a large drop in staff in quick succession as has been occurring with all the incidents especially when additional staff is requested.
The same June 30 report advised that an explosion on the perimeter wall of June 6 had “promoted a fear factor” with a “lasting effect” on the security staff:
On the shift 2200-0600 hours on 11.06.2012 [Redacted] emergency staff did not attend for his shift and gave no prior warning of absence, a replacement was not able to be sourced due to the time of evening and the bank staff members not answering their phones. It is believed that the explosive device set off on the compound perimeter wall had a lasting effect on certain members of the staff; this promoted a fear factor when it came to working the nightshift. [Emphasis added]
Additional emails confirmed that in the months leading up to the terrorist attack, State Department officials were repeatedly informed of the Benghazi security staffing problems. A July 2, 2012, memo from David Oliveria, the Temporary Duty Officer in Benghazi at the time, contained the following warning about “manpower issues”:
Per our conversation, the original A&E request for guard service was to run from June 6th to June 18th. Unfortunately, due to manpower issues and unforeseen last minute resignations of BMGs guard staff, US Mission Benghazi were only provided the below guards (see email) through the 12th (starting 11th at 2200).
An email from BMG to State Department official Kern reveals that not only was the undermanned Benghazi Mission security detail afraid for its life, the situation there caused serious dissension among top security staffers:
Between the 18th – 30th April a Guard Commander was not provided due to the current Guard Commander [REDACTED] being relieved of his position due to an altercation with the NTC/QRF at the US compound. A new Guard Commander has been selected and will begin on the 3rd of May.
On the 22nd April a guard for Shift Charlie [REDACTED] failed to turn up for duty at 2359 hours, we were unable to replace this guard due to [REDACTED] not giving any prior warning that he would not be working. Unfortunately the shift carried out their 8 hour shift with only 4 men.
These documents show that our U.S. Special Mission at Benghazi was a sitting duck and that the State Department’s local militia “security” feared for their own safety and wouldn’t even show up to provide necessary protection. All security indicators were flashing red and, perhaps, with a show of strength to secure the Benghazi mission, U.S. Ambassador J. Christopher Stevens, Sean Smith, Glen Doherty and Tyrone Woods might be alive today. Once again, our independent work continues to shed more light on Benghazi than anything done by the media or Congress.
By the way, you may have noticed that the documents we obtained cover the period from March 1 through August 31, 2012. It is significant that the State Department provided no documents for the time period in September immediately leading up to the September 11 attack that took the lives of four brave Americans. In short, the Obama administration Benghazi cover-up continues – and so do our relentless efforts to ferret out the truth – more on that, next week.
Judicial Watch Pushes House Leadership on Ethics Watchdog
Last week, JW joined with government watchdog groups and experts from across the ideological spectrum in urging House leaders to extend the life the Office of Congressional Ethics (OCE), which charged with probing congressional misconduct. In a letter to House Speaker John Boehner (R-OH), Majority Leader Kevin McCarthy (R-CA.), Minority Leader Nancy Pelosi (D-CA) and Minority Whip Steny Hoyer (D-MD), we told them that ethics watchdog “has significantly improved the House ethics process.” And they therefore needed “to publicly and expeditiously announce” that they would extend the OCE into the next Congress.
Here is the complete text of letter Judicial Watch co-signed:
Dear Speaker Boehner, Leader Pelosi, Majority Leader McCarthy and Minority Whip Hoyer:
We are writing to urge you to publicly and expeditiously announce your intent to continue the Office of Congressional Ethics (OCE) for the 114th Congress. The OCE has amassed an outstanding record of bipartisan ethics enforcement and has significantly improved the House ethics process. While we are aware that you will no doubt hear from some skeptics in both of your caucuses who would prefer to do away with the OCE, we urge you to reject this short-sighted viewpoint which is exactly the “above-the-law” attitude that helps fuel public distrust of a Congress whose approval levels have hit record lows. We urge the bipartisan leadership of the House to release a joint statement well in advance of the convening of the next Congress in which you confirm your joint intent to reconstitute the Office and rename its Board next year.
The OCE has played an important role in helping protect the integrity of the House and its members. Not only has the Office established a record of fair investigations and bipartisan cooperation, it has provided a credible means for unfounded allegations of violations by Members and staff to be investigated and, if warranted, dismissed. The public record shows that 64 percent of complaints that the OCE has received have either been dismissed or closed before conclusion of the process.
Further, OCE reports that, of the 49 reviews that have resulted in further referrals to the Committee on Ethics, 46 are a matter of public record and reflect a transparency not before seen in the ethics process. The OCE’s breadth of public investigations includes questions surrounding earmarks, travel allowances, permissible uses of legal expense funds, potential lobbying disclosure act violations, the combined efforts of which has generated significant improvement in legislative transparency.
At a time of historically low Congressional approval ratings, the OCE has continued to receive positive reviews from both the public and the press in publications as diverse as The Washington Times and The New York Times. While the Office would be best served by further strengthening, we believe at this juncture it is most important that the bipartisan leadership of the House demonstrate your continued commitment to the OCE and publicly commit to its continued operation in the next Congress.
Campaign Legal Center
Citizens for Responsibility and Ethics in Washington (CREW)
League of Women Voters
Project on Government Oversight (POGO)
The Sunlight Foundation
Taxpayers for Common Sense
Why is it important that leaders of both parties commit to continuing to support this ethics watchdog in the House of Representatives? I think we all know the answer to that, don’t we? And it is all summed up in the words you see at the top of the page every time you go to the Judicial Watch website: “Because no one is above the law!”
We could have added “including Congress” or, perhaps, “especially Congress” – because, as I pointed out in the statement I released to the press after the letter was sent, Congress has reached a point of such low esteem that the American people now think that an astounding 75% of politicians are corrupt and that 70% of politicians use their political power to help their friends and hurt their enemies. In fact, a recent Public Policy Polling nationwide survey indicated that a stunning 85% of Americans now have an “Unfavorable” opinion of Congress. And, though it may seem amusing, the sad fact is, 56% have a higher opinion of root canals than they do Congress.
If you have been a Judicial Watch supporter for some time, you will recall that in 2008, we worked with then-Speaker Pelosi’s Special Task Force on Ethics Enforcement to push for an independent body to help handle ethics investigations of House members. This effort led to the establishment of the Office of Congressional Ethics, which has since been attacked by both Democrats and Republicans for, frankly, being too effective in trying to enforce ethics in the House. In fact, JW helped persuade Republicans not to gut the Office when they took control of the House in 2010.
The Office of Congressional Ethics is a little-known office that keeps Congress a bit more honest and, if appropriately utilized, could increase public confidence in the House of Representatives. Leaders of both parties should commit to keeping this watchdog in place and, surely, to committing that corrupt conduct by Members of Congress is addressed in a manner that increases transparency and accountability.
Holding President Obama Accountable to the Rule of Law
Earlier this week, we held a timely educational event that focused on how to effectively address President Obama’s lawlessness. The panel guests included House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Andrew C. McCarthy of the National Review Institute discuss various approaches, including a planned lawsuit by the House of Representatives, to challenge President Obama’s series of unilateral “executive actions” that may violate federal law and exceed his constitutionally-enumerated powers. It was a high-quality discussion and I’ve provided a link here. To give you a bit to read about, I’ve provided you much of the text of my opening remarks below:
Of course, holding politicians accountable to the rule of law is the core of Judicial Watch’s mission. Simply put, there is a rule of law crisis in this town. President Obama has displayed an astounding lack of respect for the U.S. Constitution, the other branches of government and the American people. Barack Obama is undermining the U.S. Constitution and turning it into what the Founding Fathers feared most – a mere “parchment barrier” being ripped to shreds by a power-hungry chief executive – what they referred to as a “monarchist.” In the words of Thomas Jefferson: “To appoint a monarchist to conduct the affairs of a Republic is like appointing an atheist to the priesthood.”
President Obama’s monarchical proclivities are most apparent in his refusal to accept the process of working to build consensus to pass legislation in Congress. He blusters that if Congress won’t act as he sees fit, he will. As he told a Joint Session of Congress during his 2014 State of the Union Address: “I’m eager to work with all of you. But America does not stand still – and neither will I. So wherever and whenever I can take steps without legislation…that’s what I’m going to do.”
It isn’t as if we hadn’t been warned. In the run up to his 2012 reelection, Obama pushed an executive power grab under the guise of a “We Can’t Wait” campaign. Between October 2011 and the end of his first term, President Obama undertook approximately eleven “executive actions” as part of his We Can’t Wait campaign.
Whether using unilateral executive actions to violate and thwart laws against illegal immigration, enact a mortgage relief program, revamp the student-loan debt program, strengthen the FDA’s power to ration prescription drugs or unilaterally amend the historic, bipartisan welfare reform law enacted under President Clinton and House Speaker Newt Gingrich, Mr. Obama has shown neither reticence nor reluctance in undermining the system of checks and balances that have served this country so well for so long.
In the words of James Madison in FEDERALIST NO. 58, “An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”
Madison notes in FEDERALIST NO. 51: “In republican government, the legislative authority necessarily predominates.” All presidents must come to grips with this fundamental principle of American democracy.
President Obama is not the first and he will not be the last president to use “a pen and a phone” to work his way around a Congress that does not share the chief executive’s governing vision. But his assault on our republican form of government is historic.
Even the left-leaning constitutional law professor Jonathan Turley writing in a March 9, 2014, commentary for the Los Angeles Times recognizes the slippery slope Obama has placed the nation on and said the president’s contempt for Congress would have “shocked the framers of the Constitution”:
Obama is not a dictator, but there is a danger in his aggregation of executive power… The United States is at a constitutional tipping point: The rise of an uber-presidency unchecked by the other two branches.
Mr. Obama’s aggressive executive directives and unrestrained agency rulemaking are overshadowing Congress’s constitutional role in making law. And to its great shame, Congress is making this presidential usurpation of congressional powers easier by largely ignoring its constitutional obligation to defend congressional prerogatives and check an over-reaching president acting in clear violation of his oath of office.
Let’s look more specifically at the president’s attack on our immigration laws that he took an oath, twice, “to faithfully execute.” For years, the Obama administration had been quietly imposing a stealth-amnesty scheme for illegal aliens in defiance of Congress. Then, on June 15, 2012, that stealth effort was institutionalized in the open when then-Homeland Security Secretary Janet Napolitano issued a memorandum formally establishing the Deferred Action for Childhood Arrivals (DACA) program without any statutory basis and in direct defiance of Congress’s earlier refusal to enact the so-called DREAM Act into law. (This law would have permitted certain illegal immigrant students who grew up in the U.S. to apply for temporary legal status and eventually to obtain permanent legal status and become eligible for U.S. citizenship if they go to college or serve in the U.S. military, and it would have eliminated a federal law that penalizes states that provide in-state tuition without regard to immigration status.)
DACA directs U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE) to practice “prosecutorial discretion” toward some individuals who immigrated illegally to the United States as children – in other words to decide unilaterally which part of the law the Obama administration will enforce. On June 6, 2013, the U.S. House of Representatives voted to defund the illicit DACA program but the U.S. Senate did not follow suit.
This is a good example of the “new normal” under President Obama. Rather than the Congress legislating and the president signing or vetoing, as the Constitution provides for, in Obamaland first the president establishes programs, and then Congress is forced to repeal them if it doesn’t like what the president has done. Executive action first, legislative action afterward. The president is ignoring the law, failing to enforce the law and otherwise “rewriting” the law at whim and then saying to Congress: “Catch me if you can.”
Since DACA’s inception, nearly 600,000 illegal aliens have been granted this Obama amnesty in plain violation of the law.
Not only does this usurpation of congressional authority undermine the Constitution; it also weakens security on the nation’s border with Mexico.
In practice, if an illegal immigrant can make it across the border (or even to our border), there is little chance of being deported by this administration. This amnesty lawlessness has led to more illegal immigration, the current border crisis and, ironically, has prevented – at least for now – this president from abusing his office further with other amnesty executive actions.
President Obama can’t even be bothered to follow his signature achievement, the Affordable Care Act (also known as Obamacare). By some counts, he has violated his own law two dozen times. To paraphrase Ulysses S. Grant, the best way to ensure the repeal of a bad law is to enforce it vigorously. Certainly, Obama understands this, which is why he systematically has ignored key provisions in Obamacare, such as the employer mandate. The employer mandate, which subjects certain large employers to tax penalties if they do not offer “affordable,” “minimum essential” health insurance coverage to their employees, is “one of the pillars” of Obamacare. By law, the mandate was required to take effect January 1, 2014. On July 2, 2013, however, the Obama administration officially postponed the mandate until 2015 and then, earlier this year, delayed it again until 2016.
I could go on and on about this president’s lawlessness, which is a challenge to our system of governance.
Again, the question for this panel is how to restrain this lawlessness and hold this president accountable to the law.
Direct legal challenges can certainly work. The Supreme Court has brushed this president back repeatedly on his overreach, most notably on his abuse of the recess appointment power. The High Court ruled 9-0 that this president abused his authority. He couldn’t even manage to get the votes of his two appointees.
Judicial Watch is in the midst of a legal challenge to the violation of the law on the employer mandate on behalf of Kawa Orthodontics. The lawsuit was rejected by a lower court on standing grounds but we are confident that the US Court of Appeals for the Eleventh Circuit (which will hear arguments in the matter next month) will find that our client has standing, and this lawsuit will force the Obama administration to follow the law.
Under our Constitution, the Congress has a variety of ways of holding a president accountable to the law. Funding, oversight, appointments, legislation, and, of course, impeachment are only part of the tool chest available to a Congress united in trying to check a president.
Recently, the U.S. House of Representatives voted to try the Judicial Watch way and authorized a lawsuit in federal court over the illegal delay of Obamacare. This historic action may or may not survive court scrutiny, but it should be noted that never before, as best I can tell, has an entire house of Congress challenged a president’s lawlessness in federal court. Does the House, as a body, have standing to challenge a president in court over this lawlessness? Or is the House dodging its constitutional responsibilities by refusing, for political reasons, to use oversight, the power of the purse or the impeachment power in an aggressive fashion?
Of course, one way to police a president is to demand and enforce transparency. We’ve filed nearly 3,000 Freedom of Information Act requests with the Obama administration and over 160 lawsuits to demand that the administration follow the law and produce documents about what it is up to. Between just Benghazi and the IRS, little ol’ Judicial Watch has done more than the Department of Justice, the media, and Congress to expose key facts in those scandals – scandals of a nature, by the way, that might have caused previous presidents to resign or be removed from office.
Again, I encourage you to view the panel in its entirety. And you can track our efforts to hold this president accountable to the rule of law every day at our Judicial Watch website, www.judicialwatch.org.
Tom Fitton – President