The following excerpt is from the Department of Justice website:
Tuesday, March 20, 2012
Former Chief Financial Officer of Taylor, Bean & Whitaker Pleads Guilty to Fraud Scheme
WASHINGTON – Delton de Armas, a former chief financial officer (CFO) of Taylor, Bean & Whitaker Mortgage Corp. (TBW), pleaded guilty today to making false statements and conspiring to commit bank and wire fraud for his role in a more than $2.9 billion fraud scheme that contributed to the failures of TBW and Colonial Bank.
The guilty plea was announced today by Assistant Attorney General Lanny A. Breuer of the Criminal Division; U.S. Attorney Neil H. MacBride for the Eastern District of Virginia; Christy Romero, Deputy Special Inspector General, Office of the Special Inspector General for the Troubled Asset Relief Program (SIGTARP); Assistant Director in Charge James W. McJunkin of the FBI’s Washington Field Office; David A. Montoya, Inspector General of the Department of Housing and Urban Development (HUD-OIG); Jon T. Rymer, Inspector General of the Federal Deposit Insurance Corporation (FDIC-OIG); Steve A. Linick, Inspector General of the Federal Housing Finance Agency (FHFA-OIG); and Rick A. Raven, Acting Chief of the Internal Revenue Service Criminal Investigation (IRS-CI).
De Armas, 41, of Carrollton, Texas, pleaded guilty before U.S. District Judge Leonie M. Brinkema in the Eastern District of Virginia. De Armas faces a maximum penalty of 10 years in prison when he is sentenced on June 15, 2012.
“As TBW’s chief financial officer, Mr. de Armas concealed a massive $1.5 billion deficit in TBW’s funding facility and another large deficit on TBW’s books,” said Assistant Attorney General Breuer. “He tried to conceal the gaping holes by falsifying financial statements and lying to investors as well as the government. Ultimately, Mr. de Armas’ criminal conduct, along with that of his co-conspirators, contributed to the collapse of TBW and Colonial Bank. With today’s guilty plea, Mr. de Armas joins seven other defendants – including the former chairman of TBW Lee Bentley Farkas – who have been convicted of participating in this massive fraudulent scheme.”
“When Mr. de Armas learned of a hole in Ocala Funding’s assets, he used his position as CFO to cover it up and mislead investors,” said U.S. Attorney MacBride. “Today’s plea is the eighth conviction in one of the nation’s largest bank frauds in history. As CFO, Mr. de Armas could have put a stop to the fraud the moment he discovered it. Instead, the hole in Ocala Funding grew to $1.5 billion on his watch, and as it grew, so did his lies to investors and the government.”
According to court documents, de Armas joined TBW in 2000 as its CFO and reported directly to its chairman, Lee Bentley Farkas, and later to its CEO, Paul Allen. He admitted in court that from 2005 through August 2009, he and other co-conspirators engaged in a scheme to defraud financial institutions that had invested in a wholly-owned lending facility called Ocala Funding. Ocala Funding obtained funds for mortgage lending for TBW from the sale of asset-backed commercial paper to financial institutions, including Deutsche Bank and BNP Paribas. The facility was managed by TBW and had no employees of its own.
According to court records, shortly after Ocala Funding was established, de Armas learned there were inadequate assets backing its commercial paper, a deficiency referred to internally at TBW as a “hole” in Ocala Funding. De Armas knew that the hole grew over time to more than $700 million. He learned from the CEO that the hole was more than $1.5 billion at the time of TBW’s collapse. De Armas admitted he was aware that, in an effort to cover up the hole and mislead investors, a subordinate who reported to him had falsified Ocala Funding collateral reports and periodically sent the falsified reports to financial institution investors in Ocala Funding and to other third parties. De Armas acknowledged that he and the CEO also deceived investors by providing them with a false explanation for the hole in Ocala Funding.
De Armas also admitted in court that he directed a subordinate to inflate an account receivable balance for loan participations in TBW’s financial statements. De Armas acknowledged that he knew that the falsified financial statements were subsequently provided to Ginnie Mae and Freddie Mac for their determination on the renewal of TBW’s authority to sell and service securities issued by them.
In addition, de Armas admitted in court to aiding and abetting false statements in a letter the CEO sent to the U.S. Department of Housing and Urban Development, through Ginnie Mae, regarding TBW’s audited financial statements for the fiscal year ending on March 31, 2009. De Armas reviewed and edited the letter, knowing it contained material omissions. The letter omitted that the delay in submitting the financial data was caused by concerns its independent auditor had raised about the financing relationship between TBW and Colonial Bank and its request that TBW retain a law firm to conduct an internal investigation. Instead, the letter falsely attributed the delay to a new acquisition and TBW’s switch to a compressed 11-month fiscal year.
“With our nation in a housing crisis, de Armas, as chief financial officer of TBW, one of the country’s largest mortgage lenders, papered over a gaping hole in the balance sheet of TBW subsidiary Ocala Funding and lied to regulators and investors to cover it up,” said Deputy Special Inspector General Romero for SIGTARP. “The fraud provided cover to others at TBW to misappropriate more than $1 billion in Ocala funds and sell fraudulent, worthless securities to conspirators at Colonial BancGroup. SIGTARP and its law enforcement partners stopped $553 million in TARP funds from being lost to this fraud and brought accountability and justice that the American taxpayers deserve.”
“Mr. de Armas has admitted that, during his tenure at TBW, he purposefully misled investors in a massive scheme to defraud financial institutions,” said FBI Assistant Director in Charge McJunkin. “The actions of Mr. de Armas and his co-conspirators contributed to the financial crisis and led to the collapse of one of the country’s largest commercial banks. The FBI and our partners remain vigilant in investigating such fraudulent activity in our banking and mortgage industries.”
“The guilty plea of Mr. de Armas is one small measure in our continued efforts to restore the trust and confidence of the general public and of investors in our financial system,” said HUD Inspector General Montoya. “In response to the many recent articles of mortgage fraud and misconduct, the mortgage industry needs to do much to rethink their values and their idea of client service in order to help rebuild a stronger economy and to restore the confidence of American homeowners.”
“The Federal Deposit Insurance Corporation Office of Inspector General is pleased to have played a role in bringing to justice yet another senior official in a position of trust who was involved in one of the biggest and most complex bank fraud schemes of our time,” said FDIC Inspector General Rymer. “The former chief financial officer of Taylor, Bean & Whitaker is the latest participant who will be held accountable for seeking to undermine the integrity of the financial services industry. Even as the financial and economic crisis seems to be easing, we reaffirm our commitment to ensuring that those contributing to the failures of financial institutions and corresponding losses to the Deposit Insurance Fund will be punished to the fullest extent of the law.”
“Mr. de Armas and his colleagues committed an egregious crime,” said FHFA Inspector General Linick. “FHFA-OIG is proud to be part of the team that continues to protect American taxpayers.”
In April 2011, a jury in the Eastern District of Virginia found Lee Bentley Farkas, the chairman of TBW, guilty of 14 counts of conspiracy, bank, securities and wire fraud. On June 30, 2011, Judge Brinkema sentenced Farkas to 30 years in prison. In addition, six individuals have pleaded guilty for their roles in the fraud scheme, including: Paul Allen, former chief executive officer of TBW, who was sentenced to 40 months in prison; Raymond Bowman, former president of TBW, who was sentenced to 30 months in prison; Desiree Brown, former treasurer of TBW, who was sentenced to six years in prison; Catherine Kissick, former senior vice president of Colonial Bank and head of its Mortgage Warehouse Lending Division (MWLD), who was sentenced to eight years in prison; Teresa Kelly, former operations supervisor for Colonial Bank’s MWLD, who was sentenced to three months in prison; and Sean Ragland, a former senior financial analyst at TBW, who was sentenced to three months in prison.
The case is being prosecuted by Deputy Chief Patrick Stokes and Trial Attorney Robert Zink of the Criminal Division’s Fraud Section and Assistant U.S. Attorneys Charles Connolly and Paul Nathanson of the Eastern District of Virginia. This case was investigated by SIGTARP, FBI’s Washington Field Office, FDIC-OIG, HUD-OIG, FHFA-OIG and IRS-CI. The Financial Crimes Enforcement Network (FinCEN) of the Department of the Treasury also provided support in the investigation. The Department would also like to acknowledge the substantial assistance of the U.S. Securities and Exchange Commission in the investigation of the fraud scheme.
Tuesday, March 20, 2012
STATEMENT OF SECRETARY OF STATE CLINTON ON REDUCED USE OF IRANIAN OIL
The following excerpt is from a U.S. State Department e-mail:
Statement on Significant Reductions of Iranian Crude Oil Purchases
Press Statement Hillary Rodham Clinton
Secretary of State Washington, DC
March 20, 2012
I am pleased to announce that an initial group of eleven countries has significantly reduced their volume of crude oil purchases from Iran -- Belgium, the Czech Republic, France, Germany, Greece, Italy, Japan, the Netherlands, Poland, Spain, and the United Kingdom. As a result, I will report to the Congress that sanctions pursuant to Section 1245 of the National Defense Authorization Act for 2012 (NDAA) will not apply to the financial institutions based in these countries, for a renewable period of 180 days.
The actions taken by these countries were not easy. They had to rethink their energy needs at a critical time for the world economy and quickly begin to find alternatives to Iranian oil, which many had been reliant on for their energy needs. The ban on all new purchases of Iranian crude oil by the European Union countries as of January 23, and phase out of existing contracts by July 1, demonstrates their solidarity and their commitment to holding Iran accountable for its failure to comply with its international obligations. Japan’s significant reductions in crude oil purchases is also especially noteworthy considering the extraordinary energy and other challenges it has faced over the past year. We commend these countries for their actions and urge other nations that import oil from Iran to follow their example.
Only two months after the passage of the National Defense Authorization Act for 2012, we have made progress in shrinking Iran’s oil export markets, and isolating its Central Bank from the world financial system. The United States is leading an unprecedented international coalition of partners that has brought to bear significant pressure on the Iranian regime to change its course. Diplomacy coupled with strong pressure can achieve the long-term solutions we seek and we will continue to work with our international partners to increase the pressure on Iran to meet its international obligations.
WHITE HOUSE SAYS HEALTH REFORM HAS HELPED MILLIONS OF WOMEN WITH PREVENTIVE CARE
The photo and excerpt are from the White House website:
President Obama’s health reform law requires that new health insurance plans cover preventive services with no co-pay or deductible. In the last 18 months, approximately 20.4 million women with private health insurance have received preventive health services such as mammograms and pap smears at no additional cost because of this provision in the Affordable Care Act.
Besides improving access to services that help women stay healthy and detect health problems early on, health reform helps women in many other ways. For example, health insurance companies can no longer discriminate against women by charging them higher premiums than they charge men. Insurance companies are banned from imposing a limit on the amount of care they’ll cover over a woman’s lifetime, and are now required to spend at least 80 percent of premium dollars on care—not overhead.
Women who have been unable to purchase health insurance because of a pre-existing condition such as cancer or having been pregnant now have an option to obtain the insurance they need through the new Pre-Existing Condition Insurance Plan.
Beginning in 2014, the Affordable Care Act will be fully implemented and offer even greater protection for women and their health care, including a ban on denying care based on pre-existing conditions, and the removal of annual limits on care.
CHAIRMAN OF THE HOUSE WAYS AND MEANS COMMITTEE ADDRESSES INFLATION IN NEWSLETTER
The following excerpt is from Congressman Dave Camp's website:
Highlights from the House: Constituents' Concerns
Congressman Dave Camp met with constituents across Michigan last week to hear their concerns, answer questions about the economic uncertainty that continues to threaten our nation’s recovery. Michiganders continue to voice concerns over the failed energy policies of the Obama Administration that have caused the price of gas to double, rising from a national average of $1.83 when President Obama took office to $3.75 today.
Gas is not the only price increase Americans are facing, according to a recent USA Today article, electricity bills have also skyrocketed. Under the Obama Administration, the average family income is down by more than $1,000, and the cost of eggs has increased by 30 percent, fruit by 14 percent, and meat by 18 percent. With the cost of living continuing to rise and wages remaining low, it comes as little surprise that nearly half of the U.S. feels worse off financially today than they did one year ago, according to a recent Gallup poll.
Relief, especially relief from high gas prices, does not appear to be on the horizon from President Obama. A White House aide recently confirmed that the president lobbied Senate Democrats to vote against the Keystone XL pipeline. If passed, the Keystone XL pipeline would increase our domestic crude supply by an estimated 302 million barrels per year (830,000 barrels a day), $20 billion of private sector investment would be injected into the American economy, 20,000 direct jobs would be created and $5 billion in taxes to local communities would be collected over the project’s lifetime.
GENERAL ALLEN TELLS CONGRESS TROOP WITHDRAWAL SHOULD NOT BE STEPPED UP
The following excerpt is from a Department of Defense American Forces Press Service e-mail:
Allen: Troops Will Accomplish Afghan Mission
By Jim Garamone
American Forces Press Service
American Forces Press Service
WASHINGTON, March 20, 2012 - Recent incidents have been deplorable, but they will not stand in the way of accomplishing goals in Afghanistan, the International Security Assistance Force commander said here.
Marine Corps Gen. John R. Allen also said the incidents do not represent the actions of the vast majority of U.S. military personnel who have served in Afghanistan.
Three incidents have been lumped together, the general said: desecration of corpses, the accidental burning of Qurans and the murder of 16 Afghans in Kandahar province. "It's important to understand that while tragic, these few incidents do not represent who we are," Allen said during an interview. "The Afghan people know that, the Afghan government knows that, and more importantly, the Afghan national security forces know who we are."
Allen emphasized that U.S. and Afghan forces have been working together for years, and many Afghans and Americans have close working relationships.
"We have a sound campaign plan that is developed jointly by the Afghan national security forces and the International Security Assistance Force," he said. "It is a good plan and we are executing that plan. I think we can accomplish our objectives, without question."
It is important to remember that considerable progress has taken place in Afghanistan, Allen said. "Security in many places in Afghanistan is near normal," he added, citing the city of Herat as a prime example of a place "on a very positive trajectory."
The civil government, the Italian-led ISAF forces, the Afghan national security forces and the population as a whole are combining to create a peaceful, stable area in and around Herat, where economic progress provides opportunities, the general said.
The Afghan capital of Kabul is jammed with cars and is known for the "hustle and bustle of a city where the people are going about their way on a moment-to-moment basis free from the oppression of the Taliban, free from the threat of terrorist attack," he said.
Kabul is virtually incident-free, Allen said, and Afghan forces provide security for the region. Still, he acknowledged, he taps on wood when he talks of security, because "it is the great ambition of the Taliban to terrorize the Afghan people, to cause fear and disruption in their daily lives."
Afghan forces are the difference, Allen said. "In places like Herat, in Kabul, in the south in Kandahar and the Helmand River Valley, the [Afghan forces] have created an environment of security by which the Afghan people can now, in many places, go about their normal daily lives," the general said.
Afghan forces already protect more than 50 percent of the Afghan people, and that number will grow in the months ahead. NATO nations, contributing countries and Afghan leaders agreed to the transition process at NATO's November 2010 summit in Lisbon, Portugal. Two "tranches" of areas have transitioned to Afghan security control already, Allen noted. "We are working on a third tranche now," he said. "We'll have the fourth by the end of the year, and a fifth by the end of the summer of 2013."
Addressing war-weariness among Americans for the conflict in Afghanistan, Allen said people must remember why U.S. forces are there.
"We should remember why we're in Afghanistan, which was 9/11," he said. "On the 11th of September 2001, more than 3,000 people were killed by terrorist attacks on the homeland of the United States. Those attacks were planned and ultimately executed out of Kandahar by al-Qaida, sheltered by the Taliban."
At the time, Kandahar was a dying city totally under the thumb of religious radicals who stoned people to death for singing in the street and refused medical care to women. Today, Allen said, it is a bustling city where security is measurable and led by the Afghan national forces.
No further attacks on the United States have taken place since 9/11, Allen noted. "The effects of our forces over this period of time has kept the United States safe, kept the Western world safe, kept Afghanistan safe," he said, "and it has expelled al-Qaida largely from Afghanistan, and it is now in fact, reducing the ability of the Taliban to terrorize Afghan citizens and [has] expelled them from the population."
This is significant progress, the general said, noting the American people "should be tremendously proud of their sons and daughters who have fought this war now for going on 11 years."
More than 800,000 Americans have deployed to Afghanistan since the war began. With very few exceptions, Allen said, these young service members "have upheld the standards of this country."
"While there have been some moments of tragedy and some actions of very few that have complicated the campaign and our objectives, I would say the thousands and thousands of American young men and women who passed through Afghanistan have demonstrated respect for Islam and respect for the Afghan people," the general said. They have fought shoulder-to-shoulder with the Afghans for the freedom of the country, he added.
"That's why we're there," he said. "And if Afghanistan becomes safe, America becomes safer. It's a direct-line relationship, and we should never forget that."
ON ANNIVERSARY OF U.S. INVASION OF IRAQ PRESIDENT OBAMA "PROCLAIMS NATIONAL DAY OF HONOR"
The following excerpt is from a Department of Defense American Forces Press Service e-mail:
President Proclaims 'National Day of Honor'
American Forces Press Service
WASHINGTON, March 19, 2012 - On the ninth anniversary of U.S. forces moving into Iraq, President Barack Obama has proclaimed today to be "A National Day of Honor."
Here's is the text of the president's proclamation:
Nine years ago, members of the United States Armed Forces crossed the sands of the Iraq-Kuwait border and began one of the most challenging missions our military has ever known. They left the comforts of home and family, volunteering in service to a cause greater than themselves. They braved insurgency and sectarian strife, knowing too well the danger of combat and the cost of conflict. Yet, through the dust and din and the fog of war, they never lost their resolve. Demonstrating unshakable fortitude and unwavering commitment to duty, our men and women in uniform served tour after tour, fighting block by block to help the Iraqi people seize the chance for a better future. And on December 18, 2011, their mission came to an end.
Today, we honor their success, their service, and their sacrifice. In one of our Nation's longest wars, veterans of Operation Iraqi Freedom and Operation New Dawn wrote one of the most extraordinary chapters in American military history. When highways became mine fields and uncertainty waited behind every corner, service members rose to meet the task at hand with unmatched courage and determination. They learned languages and cultures, taking on new roles as diplomats and development experts to improve the communities where they served. Their strength toppled a tyrant, and their valor helped build opportunity in oppression's place. Across nearly 9 years of conflict, the glory of their service -- as well as the contributions of other members of the U.S. Government and our coalition partners -- always shone through.
The war left wounds not always seen, but forever felt. The burden of distance and the pain of loss weighed heavily on the hearts of millions at home and overseas. Behind every member of our military stood a parent, a spouse, or a son or daughter who proudly served their community and prayed for their loved one's safe return. For wounded warriors, coming home marked the end of one battle and the beginning of another -- to stand, to walk, to recover, and to serve again. And, in war's most profound cost, there were those who never came home. Separated by time and space but united by their love of country, nearly 4,500 men and women are eternally bound; though we have laid them to rest, they will live on in the soul of our Nation now and forever. To them, to their families, and to all who served, we owe a debt that can never be fully repaid.
When we returned the colors of United States Forces-Iraq and the last of our troops set foot on American soil, we reflected on the extraordinary service and sacrifice of those who answered our country's call. Their example embodied that fundamental American faith that tells us no mission is too hard, no challenge is too great, and that through tests and through trials, we will always emerge stronger than before. Now, our Nation reaffirms our commitment to serve veterans of Iraq as well as they served us -- to uphold the sacred trust we share with all who have worn the uniform. Our future is brighter for their service, and today, we express our gratitude by saying once more: Welcome home.
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim March 19, 2012, as a National Day of Honor. I call upon all Americans to observe this day with appropriate programs, ceremonies, and activities that commemorate the return of the United States Armed Forces from Iraq.
TWO FINANCIAL ADVISERS CHARGED BY SEC WITH INSIDER TRADING WITH CONFIDENTIAL MERGER INFORMATION
The excerpt below is from the SEC website:
March 14, 2012
The Securities and Exchange Commission announced that, on March 13, 2012, it charged two financial advisors and three others in their circle of family and friends with insider trading for more than $1.8 million in illicit profits based on confidential information about a Philadelphia-based insurance holding company’s merger negotiations with a Japanese firm.
The SEC’s complaint, filed in U.S. District Court for the Eastern District of Pennsylvania, charges Timothy J. McGee, of Malvern, Pa., Michael W. Zirinsky, of Schwenksville, Pa., Robert Zirinsky, of Quakertown, Pa. and Hong Kong residents Paulo Lam and Marianna sze wan Ho with violating Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. The complaint also names as relief defendants Michael Zirinsky’s wife Kellie F. Zirinsky, sister Jillynn Zirinsky, mother Geraldine A. Zirinsky, and grandmother Mary L. Zirinsky for the purpose of recovering illegal profits in their trading accounts. Lam and Ho have each agreed to settle the SEC’s charges and pay approximately $1.2 million and $140,000 respectively.
The SEC’s complaint alleges that McGee and Michael Zirinsky, who are registered representatives at Ameriprise Financial Services, illegally traded in the stock of Philadelphia Consolidated Holding Corp. (PHLY) based on nonpublic information about the company’s impending merger with Tokio Marine Holdings. The complaint alleges that McGee misappropriated the inside information from a PHLY senior executive who was confiding in him through their relationship at Alcoholics Anonymous (AA) about pressures he was confronting at work. McGee then purchased PHLY stock in advance of the merger announcement on July 23, 2008, and made a $292,128 profit when the stock price jumped 64 percent that day.
The complaint further alleges that McGee tipped Michael Zirinsky, who purchased PHLY stock in his own trading account as well as those of his wife, sister, mother, and grandmother. Zirinsky tipped his father Robert Zirinsky and his friend Paulo Lam, who in turn tipped another friend whose wife Marianna sze wan Ho also traded on the nonpublic information. The complaint alleges that the Zirinsky family collectively obtained illegal profits of $562,673 through their insider trading. Lam made an illicit profit of $837,975 and Ho profited by $110,580.
The complaint seeks a final judgment ordering disgorgement of ill-gotten gains together with prejudgment interest from the defendants and relief defendants, and permanent injunctions and penalties against the defendants.
Lam and Ho have each consented, without admitting or denying the SEC’s allegations, to the entry of a final judgment permanently enjoining them from violating Section 10(b) of the Exchange Act and Rule 10b-5. Lam agreed to pay $837,975 in disgorgement, $123,649 in prejudgment interest, and a penalty of $251,392. Ho has agreed to pay $110,580 in disgorgement, $16,317 in prejudgment interest, and a penalty of $16,587. The settlements are subject to court approval.
The SEC’s investigation was conducted by Philadelphia Regional Office enforcement staff Brendan P. McGlynn, Patricia A. Paw and Daniel L. Koster. The SEC’s litigation will be led by Scott A. Thompson, Nuriye C. Uygur, and G. Jeffrey Boujoukos.
NEW FROG SPECIES FOUND IN NEW YORK CITY
The following excerpt is from the National Science Foundation website:
March 14, 2012
In the wilds of New York City--or as wild as you can get that close to skyscrapers--scientists have found a new leopard frog species.
For years, biologists mistook it for a more widespread variety of leopard frog.
While biologists regularly discover new species in remote rainforests, finding this one in ponds and marshes--sometimes within view of the Statue of Liberty--is a big surprise, said scientists from the University of California, Los Angeles; Rutgers University; the University of California, Davis and the University of Alabama.
"For a new species to go unrecognized in this area is amazing," said UCLA biologist Brad Shaffer, formerly at UC Davis.
Shaffer's research is funded by the National Science Foundation's (NSF) Division of Environmental Biology.
In recently published results in the journal Molecular Phylogenetics and Evolution, Shaffer and other scientists used DNA data to compare the new frog to all other leopard frog species in the region.
"Many amphibians are secretive and very hard to find, but these frogs are pretty obvious animals," said Shaffer.
"This shows that even in the largest city in the U.S., there are still new and important species waiting to be discovered."
The researchers determined the frog is an entirely new species. The unnamed frog joins a crowd of more than a dozen distinct leopard frog species.
The newly identified wetland species likely once lived on Manhattan. It's now only known from a few nearby locations: Yankee Stadium in the Bronx is the center of its current range.
Lead paper author Cathy Newman, now of Louisiana State University, was working with Leslie Rissler, a biologist at the University of Alabama, on an unrelated study of the southern leopard frog species when she first contacted scientist Jeremy Feinberg at Rutgers University in New Jersey.
Feinberg asked if she could help him investigate some "unusual frogs" whose weird-sounding calls were different from those of other leopard frogs.
"There are northern and southern leopard frogs in that general area, so I was expecting to find one of those that for some reason had atypical behaviors or that were hybrids of both," Newman said.
"I was really surprised and excited once I started getting data back strongly suggesting it was a new species. It's fascinating in such a heavily urbanized area."
Feinberg suspected that the leopard-frog look-alike with the peculiar croak was a new creature hiding in plain sight.
Instead of the "long snore" or "rapid chuckle" he heard from other leopard frogs, this frog had a short, repetitive croak.
As far back as the late 1800s, scientists have speculated about these "odd" frogs.
"When I first heard these frogs calling, it was so different, I knew something was very off," Feinberg said.
"It's what we call a cryptic species: one species hidden within another because we can't tell them apart on sight. Thanks to molecular genetics, people are picking out species that would otherwise be ignored."
The results were clear-cut: the DNA was distinct, no matter how much the frogs looked alike.
"If I had one of these three leopard frogs in my hand, unless I knew what area it was from, I wouldn't know which one I was holding because they all look so similar," Newman said. "But our results showed that this lineage is very clearly genetically distinct."
Mitochondrial DNA represents only a fraction of the amphibian's total DNA, so Newman knew she needed to do broader nuclear DNA tests to see the whole picture and confirm the frog as a new species. She performed the work at UC Davis.
Habitat destruction, disease, invasive species, pesticides and parasites have all taken a heavy toll on frogs and other amphibians worldwide, said Rissler, currently on leave from the University of Alabama and a program director in NSF's Division of Environmental Biology.
Amphibians, she said, are great indicators of problems in our environment--problems that could potentially impact our health.
"They are a good model to examine environmental threats or degradation because part of their life history is spent in the water and part on land," Rissler said. "They're subject to all the problems that happen to these environments."
The findings show that even in densely-populated, well-studied areas, there are still new discoveries to be made, said Shaffer. And that the newly identified frogs appear to have a startlingly limited range.
"One of the real mantras of conservation biology is that you cannot protect what you don't recognize," Shaffer said. "If you don't know that two species are different, you can't know whether either needs protection."
The newly identified frogs have so far been found in scattered populations in northern New Jersey, southeastern mainland New York and on Staten Island.
Although they may extend into parts of Connecticut and northeastern Pennsylvania, evidence suggests they were once common on Long Island and other nearby regions.
They went extinct there in just the last few decades. "This raises conservation concerns that must be addressed," said ecologist Joanna Burger of Rutgers University.
"These frogs were probably once more widely distributed," Rissler said. "They are still able to hang on. They're still here, and that's amazing."
Until scientists settle on a name for the frog, they refer to it as "Rana sp. nov.," meaning "new frog species."
NASA'S NEW INFRARED ATLAS AND CATALOG SHEDS LIGHT ON THE UNIVERSE
The following excerpt is from the NASA website:
WASHINGTON -- NASA unveiled a new atlas and catalog of the entire infrared sky today showing more than a half billion stars, galaxies and other objects captured by the Wide-field Infrared Survey Explorer (WISE) mission. "Today, WISE delivers the fruit of 14 years of effort to the astronomical community," said Edward Wright, WISE principal investigator at UCLA, who first began working on the mission with other team members in 1998. WISE launched Dec. 14, 2009, and mapped the entire sky in 2010 with vastly better sensitivity than its predecessors. It collected more than 2.7 million images taken at four infrared wavelengths of light, capturing everything from nearby asteroids to distant galaxies. Since then, the team has been processing more than 15 trillion bytes of returned data. A preliminary release of WISE data, covering the first half of the sky surveyed, was made last April. The WISE catalog of the entire sky meets the mission's fundamental objective. The individual WISE exposures have been combined into an atlas of more than 18,000 images covering the sky and a catalog listing the infrared properties of more than 560 million individual objects found in the images. Most of the objects are stars and galaxies, with roughly equal numbers of each. Many of them have never been seen before. WISE observations have led to numerous discoveries, including the elusive, coolest class of stars. Astronomers hunted for these failed stars, called "Y-dwarfs," for more than a decade. Because they have been cooling since their formation, they don't shine in visible light and could not be spotted until WISE mapped the sky with its infrared vision. WISE also took a poll of near-Earth asteroids, finding there are significantly fewer mid-size objects than previously thought. It also determined NASA has found more than 90 percent of the largest near-Earth asteroids. Other discoveries were unexpected. WISE found the first known "Trojan" asteroid to share the same orbital path around the sun as Earth. One of the images released today shows a surprising view of an "echo" of infrared light surrounding an exploded star. The echo was etched in the clouds of gas and dust when the flash of light from the supernova explosion heated surrounding clouds. At least 100 papers on the results from the WISE survey already have been published. More discoveries are expected now that astronomers have access to the whole sky as seen by the spacecraft. "With the release of the all-sky catalog and atlas, WISE joins the pantheon of great sky surveys that have led to many remarkable discoveries about the universe," said Roc Cutri, who leads the WISE data processing and archiving effort at the Infrared and Processing Analysis Center at the California Institute of Technology in Pasadena. "It will be exciting and rewarding to see the innovative ways the science and educational communities will use WISE in their studies now that they have the data at their fingertips." NASA's Jet Propulsion Laboratory (JPL) in Pasadena, Calif., manages and operates WISE for NASA's Science Mission Directorate in Washington. The mission was competitively selected under NASA's Explorers Program, which is managed by NASA's Goddard Space Flight Center in Greenbelt, Md. The science instrument was built by the Space Dynamics Laboratory in Logan, Utah, and the spacecraft was built by Ball Aerospace and Technologies Corp., in Boulder, Colo. Science operations, data processing and archiving take place at the Infrared Processing and Analysis Center at the California Institute of Technology in Pasadena. Caltech manages JPL for NASA.
SEC CHARGES SENIOR EXECUTIVES WITH PERPETRATING STOCK LENDING SCHEME
The following excerpt is from the SEC website:
March 16, 2012
SEC Charges Senior Executives at California-Based Firm in Stock Lending Scheme
The Securities and Exchange Commission today charged two senior executives and their California-based firm with defrauding officers and directors at publicly-traded companies in an elaborate $8 million stock lending scheme.
The SEC alleges that Argyll Investments LLC’s purported stock-collateralized loan business is merely a fraud perpetrated by James T. Miceli and Douglas A. McClain, Jr. to acquire publicly traded stock from corporate officers and directors at a discounted price from market value, separately sell the shares for full market value in order to fund the loan, and use the remaining proceeds from the sale of the collateral for their own personal benefit. Miceli, McClain, and Argyll typically lied to borrowers by explicitly telling them that their collateral would not be sold unless a default occurred. However, since Argyll had no independent source of funds other than the borrowers’ collateral, Argyll often sold the collateral prior to closing the loan and then used the proceeds to fund it.
Also charged in the SEC’s complaint filed in U.S. District Court for the Southern District of California is a broker through which Argyll attracted potential borrowers. The SEC alleges that AmeriFund Capital Finance LLC and its owner Jeffrey Spanier violated the federal securities laws by brokering numerous transactions for Argyll while not registered with the SEC.
The SEC alleges that Miceli and McClain induced at least nine corporate officers and directors since 2009 to transfer ownership of millions of shares of stock to Argyll as collateral for purported loans. Miceli and McClain promised to return the stock to the borrowers when the loans were repaid. However, rather than retaining the collateral shares as required, they sold the shares without the borrowers’ knowledge before or soon after funding the loans. In many cases, they used the proceeds from the collateral sales to fund the loans. Because Argyll typically loaned the borrowers 30 to 50 percent less than the current market value of the shares, the company retained substantial proceeds even after funding the loans. As a result of the scheme, Argyll reaped more than $8 million in unlawful gains that Miceli and McClain used in part toward their personal expenses.
In addition to the fraud charges against Miceli, McClain, and Argyll, the SEC alleges that they violated the federal securities laws by improperly selling the collateral shares — all of which were restricted securities — into the public markets in unregistered transactions. They also failed to register with the SEC as brokers or dealers.
The SEC’s complaint alleges that Miceli, McClain, and Argyll violated Sections 10(b) and 15(a) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, and Sections 5(a) and 5(c) of the Securities Act of 1933, and that Spanier and AmeriFund violated Section 15(a) of the Exchange Act. The SEC is seeking permanent injunctions, disgorgement of ill-gotten gains with prejudgment interest, and financial penalties.
The SEC’s investigation was conducted by Jacob D. Krawitz, Anthony S. Kelly, and Anik Shah, and supervised by Julie M. Riewe. The SEC’s litigation effort will be led by Dean Conway.
The SEC thanks the U.S. Attorney’s Office for the Southern District of California and the Federal Bureau of Investigation for their assistance with this matter.
MANAGEMENT CONSULTANT CHARGED WITH INSIDER TRADING IN NBTY INC STOCK
The following excerpt is from the SEC website:
On March 15, 2012, the Securities and Exchange Commission charged a Chicago-based management consultant with insider trading based on confidential information about his client’s impending takeover of a Long Island-based vitamin company.
Sherif Mityas, a partner and vice-president at a global management consulting firm has agreed to pay more than $78,000 to settle the SEC’s charges. The proposed settlement is subject to the approval of Chief Judge Carol B. Amon of the U.S. District Court for the Eastern District of New York. In a parallel action, the U.S. Attorney’s Office for the Eastern District of New York today announced the unsealing of criminal charges against Mityas.
The SEC’s complaint, filed in federal court in Brooklyn, alleges that Mityas and others at his were retained by Washington, D.C.-based private equity firm The Carlyle Group to provide strategic advice related to the acquisition of NBTY Inc. That same month, Mityas purchased NBTY stock and subsequently tipped a relative who also bought NBTY shares. After Carlyle publicly announced its acquisition of NBTY, Mityas and his relative sold their NBTY stock for a combined profit of nearly $38,000.
According to the SEC’s complaint, Mityas’s firm was retained by Carlyle in May 2010. Only five days after being told during a May 17 conference call that NBTY was Carlyle’s acquisition target, Mityas moved $50,000 from a bank account he shared with a relative into a brokerage account they shared. On May 27, he transferred $49,000 from that brokerage account to a different relative’s brokerage account that he controlled as custodian and then used those funds to purchase 1,300 shares of NBTY at a cost of more than $44,000. On July 7, based on a tip from Mityas, yet another relative bought 440 shares of NBTY stock. That same relative also bought an additional 210 shares on July 14. Carlyle’s acquisition of NBTY was publicly announced the following day. Mityas sold all of his shares only three hours after the announcement was made, for an illegal profit of $25,896. The relative held the shares purchased on July 7 and 14 through the completion of the merger, and sold all of the shares on October 1 for an illicit profit of $12,035.
The SEC’s complaint charges Mityas with violating Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. The settlement, which is subject to court approval, would require Mityas to pay disgorgement of his and his relative’s ill-gotten gains totaling $37,931, plus prejudgment interest of $2,375.39, and a penalty of $37,931. The settlement also would bar Mityas from serving as an officer or director of a public company and permanently enjoin him from future violations of these provisions of the federal securities laws.
Monday, March 19, 2012
NSF SAYS GLOBAL SEA LEVEL COULD RISE 70 FEET
The photo ( credit NASA) and excerpt are from the National Science Foundation website:
Global Sea Level Likely to Rise as Much as 70 Feet in Future Generations
March 19, 2012
Even if humankind manages to limit global warming to 2 degrees Celsius (3.6 degrees Fahrenheit)--as the Intergovernmental Panel on Climate Change recommends--future generations will likely have to deal with a completely different world.
One with sea levels 40 to 70 feet higher than at present, according to research results published this week in the journalGeology.
The scientists, led by Kenneth Miller of Rutgers University, reached their conclusion by studying rock and soil cores taken in Virginia, New Zealand and the Eniwetok Atoll in the north Pacific Ocean.
They looked at the late Pliocene epoch, 2.7 million to 3.2 million years ago, the last time the carbon dioxide level in Earth's atmosphere was at its current level and when atmospheric temperatures were 2 C higher than they are now.
"The difference in water volume released is the equivalent of melting the entire Greenland and West Antarctic Ice Sheets, as well as some of the marine margin of the East Antarctic Ice Sheet," said H. Richard Lane, program director in the National Science Foundation's Division of Earth Sciences, which funded the work.
"Such a rise of the modern oceans would swamp the world's coasts and affect as much as 70 percent of the world's population."
"You don't need to sell your beach real estate yet, because melting of these large ice sheets will take centuries to millennia," Miller said.
"The current trajectory for the 21st century global rise of sea level is 2 to 3 feet due to warming of the oceans, partial melting of mountain glaciers and partial melting of Greenland and Antarctica."
Miller said, however, that the results highlight the sensitivity of Earth's great ice sheets to temperature change, suggesting that even a modest rise in temperature would result in a large sea-level rise.
"The natural state of the Earth with present carbon dioxide levels is one with sea levels about 70 feet higher than now," he said.
Imagine what the future may well look like on a very blue planet.
Rutgers colleagues James Wright, James Browning, Yair Rosenthal, Sindia Sosdian and Andrew Kulpecz join Miller in the research.
Other co-authors are Michelle Kominz of Western Michigan University; Tim Naish of Victoria University of Wellington in New Zealand; Benjamin Cramer of Theiss Research in Eugene, Oregon; and W. Richard Peltier of the University of Toronto.
SMACK-DOWN: CONGRESSMAN RON PAUL VS ATTORNEY GENERAL ERIC HOLDER OVER "DUE PROCESS"
The following excerpt is from a Congressman Ron Paul e-mail:
Congressman Paul's Texas Straight Talk: Demolishing Due Process
“It is ironic but perhaps sadly appropriate that Attorney General Eric Holder would choose a law school, Northwestern University, to deliver a speech earlier this month in which he demolished what was left of the rule of law in America.
In what history likely will record as a turning point, Attorney General Holder bluntly explained that this administration believes it has the authority to use lethal force against Americans if the President determines them to be a threat to the nation. He tells us that this is not a violation of the due process requirements of our Constitution because the President himself embodies “due process” as he unilaterally determines who is to be targeted. As Holder said, “a careful and thorough executive branch review of the facts in a case amounts to ‘due process.’” That means that the administration believes it is the President himself who is to be the judge, jury, and executioner…”
For clarification the speech given by Attorney general Eric Holder at Northwestern University can be read in it's entirety below as posted on the U.S. Department of Justice website:
Attorney General Eric Holder Speaks at Northwestern University School of LawChicago ~ Monday, March 5, 2012
As prepared for delivery
Thank you, Dean [Daniel] Rodriguez, for your kind words, and for the outstanding leadership that you provide – not only for this academic campus, but also for our nation’s legal community. It is a privilege to be with you today – and to be among the distinguished faculty members, staff, alumni, and students who make Northwestern such an extraordinary place.
For more than 150 years, this law school has served as a training ground for future leaders; as a forum for critical, thoughtful debate; and as a meeting place to consider issues of national concern and global consequence. This afternoon, I am honored to be part of this tradition. And I’m grateful for the opportunity to join with you in discussing a defining issue of our time – and a most critical responsibility that we share: how we will stay true to America’s founding – and enduring – promises of security, justice and liberty.
Since this country’s earliest days, the American people have risen to this challenge – and all that it demands. But, as we have seen – and as President John F. Kennedy may have described best – “In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger.”
Half a century has passed since those words were spoken, but our nation today confronts grave national security threats that demand our constant attention and steadfast commitment. It is clear that, once again, we have reached an “hour of danger.”
We are a nation at war. And, in this war, we face a nimble and determined enemy that cannot be underestimated.
Like President Obama – and my fellow members of his national security team – I begin each day with a briefing on the latest and most urgent threats made against us in the preceding 24 hours. And, like scores of attorneys and agents at the Justice Department, I go to sleep each night thinking of how best to keep our people safe.
I know that – more than a decade after the September 11th attacks; and despite our recent national security successes, including the operation that brought to justice Osama bin Laden last year – there are people currently plotting to murder Americans, who reside in distant countries as well as within our own borders. Disrupting and preventing these plots – and using every available and appropriate tool to keep the American people safe – has been, and will remain, this Administration’s top priority.
But just as surely as we are a nation at war, we also are a nation of laws and values. Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals. Not only is this the right thing to do – history has shown that it is also the most effective approach we can take in combating those who seek to do us harm.
This is not just my view. My judgment is shared by senior national security officials across the government. As the President reminded us in 2009, at the National Archives where our founding documents are housed, “[w]e uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps us safe. Time and again, our values have been our best national security asset.” Our history proves this. We do not have to choose between security and liberty – and we will not.
Today, I want to tell you about the collaboration across the government that defines and distinguishes this Administration’s national security efforts. I also want to discuss some of the legal principles that guide – and strengthen – this work, as well as the special role of the Department of Justice in protecting the American people and upholding the Constitution.
Before 9/11, today’s level of interagency cooperation was not commonplace. In many ways, government lacked the infrastructure – as well as the imperative – to share national security information quickly and effectively. Domestic law enforcement and foreign intelligence operated in largely independent spheres. But those who attacked us on September 11th chose both military and civilian targets. They crossed borders and jurisdictional lines. And it immediately became clear that no single agency could address these threats, because no single agency has all of the necessary tools.
To counter this enemy aggressively and intelligently, the government had to draw on all of its resources – and radically update its operations. As a result, today, government agencies are better postured to work together to address a range of emerging national security threats. Now, the lawyers, agents and analysts at the Department of Justice work closely with our colleagues across the national security community to detect and disrupt terrorist plots, to prosecute suspected terrorists, and to identify and implement the legal tools necessary to keep the American people safe. Unfortunately, the fact and extent of this cooperation are often overlooked in the public debate – but it’s something that this Administration, and the previous one, can be proud of.
As part of this coordinated effort, the Justice Department plays a key role in conducting oversight to ensure that the intelligence community’s activities remain in compliance with the law, and, together with the Foreign Intelligence Surveillance Court, in authorizing surveillance to investigate suspected terrorists. We must – and will continue to – use the intelligence-gathering capabilities that Congress has provided to collect information that can save and protect American lives. At the same time, these tools must be subject to appropriate checks and balances – including oversight by Congress and the courts, as well as within the Executive Branch – to protect the privacy and civil rights of innocent individuals. This Administration is committed to making sure that our surveillance programs appropriately reflect all of these interests.
Let me give you an example. Under section 702 of the Foreign Intelligence Surveillance Act, the Attorney General and the Director of National Intelligence may authorize annually, with the approval of the Foreign Intelligence Surveillance Court, collection directed at identified categories of foreign intelligence targets, without the need for a court order for each individual subject. This ensures that the government has the flexibility and agility it needs to identify and to respond to terrorist and other foreign threats to our security. But the government may not use this authority intentionally to target a U.S. person, here or abroad, or anyone known to be in the United States.
The law requires special procedures, reviewed and approved by the Foreign Intelligence Surveillance Court, to make sure that these restrictions are followed, and to protect the privacy of any U.S. persons whose nonpublic information may be incidentally acquired through this program. The Department of Justice and the Office of the Director of National Intelligence conduct extensive oversight reviews of section 702 activities at least once every sixty days, and we report to Congress on implementation and compliance twice a year. This law therefore establishes a comprehensive regime of oversight by all three branches of government. Reauthorizing this authority before it expires at the end of this year is the top legislative priority of the Intelligence Community.
But surveillance is only the first of many complex issues we must navigate. Once a suspected terrorist is captured, a decision must be made as to how to proceed with that individual in order to identify the disposition that best serves the interests of the American people and the security of this nation.
Much has been made of the distinction between our federal civilian courts and revised military commissions. The reality is that both incorporate fundamental due process and other protections that are essential to the effective administration of justice – and we should not deprive ourselves of any tool in our fight against al Qaeda.
Our criminal justice system is renowned not only for its fair process; it is respected for its results. We are not the first Administration to rely on federal courts to prosecute terrorists, nor will we be the last. Although far too many choose to ignore this fact, the previous Administration consistently relied on criminal prosecutions in federal court to bring terrorists to justice. John Walker Lindh, attempted shoe bomber Richard Reid, and 9/11 conspirator Zacarias Moussaoui were among the hundreds of defendants convicted of terrorism-related offenses – without political controversy – during the last administration.
Over the past three years, we’ve built a remarkable record of success in terror prosecutions. For example, in October, we secured a conviction against Umar Farouk Abdulmutallab for his role in the attempted bombing of an airplane traveling from Amsterdam to Detroit on Christmas Day 2009. He was sentenced last month to life in prison without the possibility of parole. While in custody, he provided significant intelligence during debriefing sessions with the FBI. He described in detail how he became inspired to carry out an act of jihad, and how he traveled to Yemen and made contact with Anwar al-Aulaqi, a U.S. citizen and a leader of al Qaeda in the Arabian Peninsula. Abdulmutallab also detailed the training he received, as well as Aulaqi’s specific instructions to wait until the airplane was over the United States before detonating his bomb.
In addition to Abdulmutallab, Faizal Shahzad, the attempted Times Square bomber, Ahmed Ghailani, a conspirator in the 1998 U.S. embassy bombings in Kenya and Tanzania, and three individuals who plotted an attack against John F. Kennedy Airport in 2007, have also recently begun serving life sentences. And convictions have been obtained in the cases of several homegrown extremists, as well. For example, last year, United States citizen and North Carolina resident Daniel Boyd pleaded guilty to conspiracy to provide material support to terrorists and conspiracy to murder, kidnap, maim, and injure persons abroad; and U.S. citizen and Illinois resident Michael Finton pleaded guilty to attempted use of a weapon of mass destruction in connection with his efforts to detonate a truck bomb outside of a federal courthouse.
I could go on. Which is why the calls that I’ve heard to ban the use of civilian courts in prosecutions of terrorism-related activity are so baffling, and ultimately are so dangerous. These calls ignore reality. And if heeded, they would significantly weaken – in fact, they would cripple – our ability to incapacitate and punish those who attempt to do us harm.
Simply put, since 9/11, hundreds of individuals have been convicted of terrorism or terrorism-related offenses in Article III courts and are now serving long sentences in federal prison. Not one has ever escaped custody. No judicial district has suffered any kind of retaliatory attack. These are facts, not opinions. There are not two sides to this story. Those who claim that our federal courts are incapable of handling terrorism cases are not registering a dissenting opinion — they are simply wrong.
But federal courts are not our only option. Military commissions are also appropriate in proper circumstances, and we can use them as well to convict terrorists and disrupt their plots. This Administration’s approach has been to ensure that the military commissions system is as effective as possible, in part by strengthening the procedural protections on which the commissions are based. With the President’s leadership, and the bipartisan backing of Congress, the Military Commissions Act of 2009 was enacted into law. And, since then, meaningful improvements have been implemented.
It’s important to note that the reformed commissions draw from the same fundamental protections of a fair trial that underlie our civilian courts. They provide a presumption of innocence and require proof of guilt beyond a reasonable doubt. They afford the accused the right to counsel – as well as the right to present evidence and cross-examine witnesses. They prohibit the use of statements obtained through torture or cruel, inhuman, or degrading treatment. And they secure the right to appeal to Article III judges – all the way to the United States Supreme Court. In addition, like our federal civilian courts, reformed commissions allow for the protection of sensitive sources and methods of intelligence gathering, and for the safety and security of participants.
A key difference is that, in military commissions, evidentiary rules reflect the realities of the battlefield and of conducting investigations in a war zone. For example, statements may be admissible even in the absence of Miranda warnings, because we cannot expect military personnel to administer warnings to an enemy captured in battle. But instead, a military judge must make other findings – for instance, that the statement is reliable and that it was made voluntarily.
I have faith in the framework and promise of our military commissions, which is why I’ve sent several cases to the reformed commissions for prosecution. There is, quite simply, no inherent contradiction between using military commissions in appropriate cases while still prosecuting other terrorists in civilian courts. Without question, there are differences between these systems that must be – and will continue to be – weighed carefully. Such decisions about how to prosecute suspected terrorists are core Executive Branch functions. In each case, prosecutors and counterterrorism professionals across the government conduct an intensive review of case-specific facts designed to determine which avenue of prosecution to pursue.
Several practical considerations affect the choice of forum.
First of all, the commissions only have jurisdiction to prosecute individuals who are a part of al Qaeda, have engaged in hostilities against the United States or its coalition partners, or who have purposefully and materially supported such hostilities. This means that there may be members of certain terrorist groups who fall outside the jurisdiction of military commissions because, for example, they lack ties to al Qaeda and their conduct does not otherwise make them subject to prosecution in this forum. Additionally, by statute, military commissions cannot be used to try U.S. citizens.
Second, our civilian courts cover a much broader set of offenses than the military commissions, which can only prosecute specified offenses, including violations of the laws of war and other offenses traditionally triable by military commission. This means federal prosecutors have a wider range of tools that can be used to incapacitate suspected terrorists. Those charges, and the sentences they carry upon successful conviction, can provide important incentives to reach plea agreements and convince defendants to cooperate with federal authorities.
Third, there is the issue of international cooperation. A number of countries have indicated that they will not cooperate with the United States in certain counterterrorism efforts — for instance, in providing evidence or extraditing suspects – if we intend to use that cooperation in pursuit of a military commission prosecution. Although the use of military commissions in the United States can be traced back to the early days of our nation, in their present form they are less familiar to the international community than our time-tested criminal justice system and Article III courts. However, it is my hope that, with time and experience, the reformed commissions will attain similar respect in the eyes of the world.
Where cases are selected for prosecution in military commissions, Justice Department investigators and prosecutors work closely to support our Department of Defense colleagues. Today, the alleged mastermind of the bombing of the U.S.S. Cole is being prosecuted before a military commission. I am proud to say that trial attorneys from the Department of Justice are working with military prosecutors on that case, as well as others.
And we will continue to reject the false idea that we must choose between federal courts and military commissions, instead of using them both. If we were to fail to use all necessary and available tools at our disposal, we would undoubtedly fail in our fundamental duty to protect the Nation and its people. That is simply not an outcome we can accept.
This Administration has worked in other areas as well to ensure that counterterrorism professionals have the flexibility that they need to fulfill their critical responsibilities without diverging from our laws and our values. Last week brought the most recent step, when the President issued procedures under the National Defense Authorization Act. This legislation, which Congress passed in December, mandated that a narrow category of al Qaeda terrorist suspects be placed in temporary military custody.
Last Tuesday, the President exercised his authority under the statute to issue procedures to make sure that military custody will not disrupt ongoing law enforcement and intelligence operations — and that an individual will be transferred from civilian to military custody only after a thorough evaluation of his or her case, based on the considered judgment of the President’s senior national security team. As authorized by the statute, the President waived the requirements for several categories of individuals where he found that the waivers were in our national security interest. These procedures implement not only the language of the statute but also the expressed intent of the lead sponsors of this legislation. And they address the concerns the President expressed when he signed this bill into law at the end of last year.
Now, I realize I have gone into considerable detail about tools we use to identify suspected terrorists and to bring captured terrorists to justice. It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.
This principle has long been established under both U.S. and international law. In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.
Our legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan. We are at war with a stateless enemy, prone to shifting operations from country to country. Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan. Our government has both a responsibility and a right to protect this nation and its people from such threats.
This does not mean that we can use military force whenever or wherever we want. International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally. But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.
Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.
Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.
Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted. But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans. Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.
The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process. Where national security operations are at stake, due process takes into account the realities of combat.
Here, the interests on both sides of the scale are extraordinarily weighty. An individual’s interest in making sure that the government does not target him erroneously could not be more significant. Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.
Any decision to use lethal force against a United States citizen – even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land – is among the gravest that government leaders can face. The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws. So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.
Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States. As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties. Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack. Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.
Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question. It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel. Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack. In that case, our government has the clear authority to defend the United States with lethal force.
Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force. The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.
These principles do not forbid the use of stealth or technologically advanced weapons. In fact, the use of advanced weapons may help to ensure that the best intelligence is available for planning and carrying out operations, and that the risk of civilian casualties can be minimized or avoided altogether.
Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.
The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history. Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments – all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time. The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.
That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight. Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.
Now, these circumstances are sufficient under the Constitution for the United States to use lethal force against a U.S. citizen abroad – but it is important to note that the legal requirements I have described may not apply in every situation – such as operations that take place on traditional battlefields.
The unfortunate reality is that our nation will likely continue to face terrorist threats that – at times – originate with our own citizens. When such individuals take up arms against this country – and join al Qaeda in plotting attacks designed to kill their fellow Americans – there may be only one realistic and appropriate response. We must take steps to stop them – in full accordance with the Constitution. In this hour of danger, we simply cannot afford to wait until deadly plans are carried out – and we will not.
This is an indicator of our times – not a departure from our laws and our values. For this Administration – and for this nation – our values are clear. We must always look to them for answers when we face difficult questions, like the ones I have discussed today. As the President reminded us at the National Archives, “our Constitution has endured through secession and civil rights, through World War and Cold War, because it provides a foundation of principles that can be applied pragmatically; it provides a compass that can help us find our way.”
Our most sacred principles and values – of security, justice and liberty for all citizens – must continue to unite us, to guide us forward, and to help us build a future that honors our founding documents and advances our ongoing – uniquely American – pursuit of a safer, more just, and more perfect union. In the continuing effort to keep our people secure, this Administration will remain true to those values that inspired our nation’s founding and, over the course of two centuries, have made America an example of strength and a beacon of justice for all the world. This is our pledge.
Thank you for inviting me to discuss these important issues with you today.
Congressman Paul's Texas Straight Talk: Demolishing Due Process
“It is ironic but perhaps sadly appropriate that Attorney General Eric Holder would choose a law school, Northwestern University, to deliver a speech earlier this month in which he demolished what was left of the rule of law in America.
In what history likely will record as a turning point, Attorney General Holder bluntly explained that this administration believes it has the authority to use lethal force against Americans if the President determines them to be a threat to the nation. He tells us that this is not a violation of the due process requirements of our Constitution because the President himself embodies “due process” as he unilaterally determines who is to be targeted. As Holder said, “a careful and thorough executive branch review of the facts in a case amounts to ‘due process.’” That means that the administration believes it is the President himself who is to be the judge, jury, and executioner…”
For clarification the speech given by Attorney general Eric Holder at Northwestern University can be read in it's entirety below as posted on the U.S. Department of Justice website:
Attorney General Eric Holder Speaks at Northwestern University School of LawChicago ~ Monday, March 5, 2012
As prepared for delivery
Thank you, Dean [Daniel] Rodriguez, for your kind words, and for the outstanding leadership that you provide – not only for this academic campus, but also for our nation’s legal community. It is a privilege to be with you today – and to be among the distinguished faculty members, staff, alumni, and students who make Northwestern such an extraordinary place.
For more than 150 years, this law school has served as a training ground for future leaders; as a forum for critical, thoughtful debate; and as a meeting place to consider issues of national concern and global consequence. This afternoon, I am honored to be part of this tradition. And I’m grateful for the opportunity to join with you in discussing a defining issue of our time – and a most critical responsibility that we share: how we will stay true to America’s founding – and enduring – promises of security, justice and liberty.
Since this country’s earliest days, the American people have risen to this challenge – and all that it demands. But, as we have seen – and as President John F. Kennedy may have described best – “In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger.”
Half a century has passed since those words were spoken, but our nation today confronts grave national security threats that demand our constant attention and steadfast commitment. It is clear that, once again, we have reached an “hour of danger.”
We are a nation at war. And, in this war, we face a nimble and determined enemy that cannot be underestimated.
Like President Obama – and my fellow members of his national security team – I begin each day with a briefing on the latest and most urgent threats made against us in the preceding 24 hours. And, like scores of attorneys and agents at the Justice Department, I go to sleep each night thinking of how best to keep our people safe.
I know that – more than a decade after the September 11th attacks; and despite our recent national security successes, including the operation that brought to justice Osama bin Laden last year – there are people currently plotting to murder Americans, who reside in distant countries as well as within our own borders. Disrupting and preventing these plots – and using every available and appropriate tool to keep the American people safe – has been, and will remain, this Administration’s top priority.
But just as surely as we are a nation at war, we also are a nation of laws and values. Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals. Not only is this the right thing to do – history has shown that it is also the most effective approach we can take in combating those who seek to do us harm.
This is not just my view. My judgment is shared by senior national security officials across the government. As the President reminded us in 2009, at the National Archives where our founding documents are housed, “[w]e uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps us safe. Time and again, our values have been our best national security asset.” Our history proves this. We do not have to choose between security and liberty – and we will not.
Today, I want to tell you about the collaboration across the government that defines and distinguishes this Administration’s national security efforts. I also want to discuss some of the legal principles that guide – and strengthen – this work, as well as the special role of the Department of Justice in protecting the American people and upholding the Constitution.
Before 9/11, today’s level of interagency cooperation was not commonplace. In many ways, government lacked the infrastructure – as well as the imperative – to share national security information quickly and effectively. Domestic law enforcement and foreign intelligence operated in largely independent spheres. But those who attacked us on September 11th chose both military and civilian targets. They crossed borders and jurisdictional lines. And it immediately became clear that no single agency could address these threats, because no single agency has all of the necessary tools.
To counter this enemy aggressively and intelligently, the government had to draw on all of its resources – and radically update its operations. As a result, today, government agencies are better postured to work together to address a range of emerging national security threats. Now, the lawyers, agents and analysts at the Department of Justice work closely with our colleagues across the national security community to detect and disrupt terrorist plots, to prosecute suspected terrorists, and to identify and implement the legal tools necessary to keep the American people safe. Unfortunately, the fact and extent of this cooperation are often overlooked in the public debate – but it’s something that this Administration, and the previous one, can be proud of.
As part of this coordinated effort, the Justice Department plays a key role in conducting oversight to ensure that the intelligence community’s activities remain in compliance with the law, and, together with the Foreign Intelligence Surveillance Court, in authorizing surveillance to investigate suspected terrorists. We must – and will continue to – use the intelligence-gathering capabilities that Congress has provided to collect information that can save and protect American lives. At the same time, these tools must be subject to appropriate checks and balances – including oversight by Congress and the courts, as well as within the Executive Branch – to protect the privacy and civil rights of innocent individuals. This Administration is committed to making sure that our surveillance programs appropriately reflect all of these interests.
Let me give you an example. Under section 702 of the Foreign Intelligence Surveillance Act, the Attorney General and the Director of National Intelligence may authorize annually, with the approval of the Foreign Intelligence Surveillance Court, collection directed at identified categories of foreign intelligence targets, without the need for a court order for each individual subject. This ensures that the government has the flexibility and agility it needs to identify and to respond to terrorist and other foreign threats to our security. But the government may not use this authority intentionally to target a U.S. person, here or abroad, or anyone known to be in the United States.
The law requires special procedures, reviewed and approved by the Foreign Intelligence Surveillance Court, to make sure that these restrictions are followed, and to protect the privacy of any U.S. persons whose nonpublic information may be incidentally acquired through this program. The Department of Justice and the Office of the Director of National Intelligence conduct extensive oversight reviews of section 702 activities at least once every sixty days, and we report to Congress on implementation and compliance twice a year. This law therefore establishes a comprehensive regime of oversight by all three branches of government. Reauthorizing this authority before it expires at the end of this year is the top legislative priority of the Intelligence Community.
But surveillance is only the first of many complex issues we must navigate. Once a suspected terrorist is captured, a decision must be made as to how to proceed with that individual in order to identify the disposition that best serves the interests of the American people and the security of this nation.
Much has been made of the distinction between our federal civilian courts and revised military commissions. The reality is that both incorporate fundamental due process and other protections that are essential to the effective administration of justice – and we should not deprive ourselves of any tool in our fight against al Qaeda.
Our criminal justice system is renowned not only for its fair process; it is respected for its results. We are not the first Administration to rely on federal courts to prosecute terrorists, nor will we be the last. Although far too many choose to ignore this fact, the previous Administration consistently relied on criminal prosecutions in federal court to bring terrorists to justice. John Walker Lindh, attempted shoe bomber Richard Reid, and 9/11 conspirator Zacarias Moussaoui were among the hundreds of defendants convicted of terrorism-related offenses – without political controversy – during the last administration.
Over the past three years, we’ve built a remarkable record of success in terror prosecutions. For example, in October, we secured a conviction against Umar Farouk Abdulmutallab for his role in the attempted bombing of an airplane traveling from Amsterdam to Detroit on Christmas Day 2009. He was sentenced last month to life in prison without the possibility of parole. While in custody, he provided significant intelligence during debriefing sessions with the FBI. He described in detail how he became inspired to carry out an act of jihad, and how he traveled to Yemen and made contact with Anwar al-Aulaqi, a U.S. citizen and a leader of al Qaeda in the Arabian Peninsula. Abdulmutallab also detailed the training he received, as well as Aulaqi’s specific instructions to wait until the airplane was over the United States before detonating his bomb.
In addition to Abdulmutallab, Faizal Shahzad, the attempted Times Square bomber, Ahmed Ghailani, a conspirator in the 1998 U.S. embassy bombings in Kenya and Tanzania, and three individuals who plotted an attack against John F. Kennedy Airport in 2007, have also recently begun serving life sentences. And convictions have been obtained in the cases of several homegrown extremists, as well. For example, last year, United States citizen and North Carolina resident Daniel Boyd pleaded guilty to conspiracy to provide material support to terrorists and conspiracy to murder, kidnap, maim, and injure persons abroad; and U.S. citizen and Illinois resident Michael Finton pleaded guilty to attempted use of a weapon of mass destruction in connection with his efforts to detonate a truck bomb outside of a federal courthouse.
I could go on. Which is why the calls that I’ve heard to ban the use of civilian courts in prosecutions of terrorism-related activity are so baffling, and ultimately are so dangerous. These calls ignore reality. And if heeded, they would significantly weaken – in fact, they would cripple – our ability to incapacitate and punish those who attempt to do us harm.
Simply put, since 9/11, hundreds of individuals have been convicted of terrorism or terrorism-related offenses in Article III courts and are now serving long sentences in federal prison. Not one has ever escaped custody. No judicial district has suffered any kind of retaliatory attack. These are facts, not opinions. There are not two sides to this story. Those who claim that our federal courts are incapable of handling terrorism cases are not registering a dissenting opinion — they are simply wrong.
But federal courts are not our only option. Military commissions are also appropriate in proper circumstances, and we can use them as well to convict terrorists and disrupt their plots. This Administration’s approach has been to ensure that the military commissions system is as effective as possible, in part by strengthening the procedural protections on which the commissions are based. With the President’s leadership, and the bipartisan backing of Congress, the Military Commissions Act of 2009 was enacted into law. And, since then, meaningful improvements have been implemented.
It’s important to note that the reformed commissions draw from the same fundamental protections of a fair trial that underlie our civilian courts. They provide a presumption of innocence and require proof of guilt beyond a reasonable doubt. They afford the accused the right to counsel – as well as the right to present evidence and cross-examine witnesses. They prohibit the use of statements obtained through torture or cruel, inhuman, or degrading treatment. And they secure the right to appeal to Article III judges – all the way to the United States Supreme Court. In addition, like our federal civilian courts, reformed commissions allow for the protection of sensitive sources and methods of intelligence gathering, and for the safety and security of participants.
A key difference is that, in military commissions, evidentiary rules reflect the realities of the battlefield and of conducting investigations in a war zone. For example, statements may be admissible even in the absence of Miranda warnings, because we cannot expect military personnel to administer warnings to an enemy captured in battle. But instead, a military judge must make other findings – for instance, that the statement is reliable and that it was made voluntarily.
I have faith in the framework and promise of our military commissions, which is why I’ve sent several cases to the reformed commissions for prosecution. There is, quite simply, no inherent contradiction between using military commissions in appropriate cases while still prosecuting other terrorists in civilian courts. Without question, there are differences between these systems that must be – and will continue to be – weighed carefully. Such decisions about how to prosecute suspected terrorists are core Executive Branch functions. In each case, prosecutors and counterterrorism professionals across the government conduct an intensive review of case-specific facts designed to determine which avenue of prosecution to pursue.
Several practical considerations affect the choice of forum.
First of all, the commissions only have jurisdiction to prosecute individuals who are a part of al Qaeda, have engaged in hostilities against the United States or its coalition partners, or who have purposefully and materially supported such hostilities. This means that there may be members of certain terrorist groups who fall outside the jurisdiction of military commissions because, for example, they lack ties to al Qaeda and their conduct does not otherwise make them subject to prosecution in this forum. Additionally, by statute, military commissions cannot be used to try U.S. citizens.
Second, our civilian courts cover a much broader set of offenses than the military commissions, which can only prosecute specified offenses, including violations of the laws of war and other offenses traditionally triable by military commission. This means federal prosecutors have a wider range of tools that can be used to incapacitate suspected terrorists. Those charges, and the sentences they carry upon successful conviction, can provide important incentives to reach plea agreements and convince defendants to cooperate with federal authorities.
Third, there is the issue of international cooperation. A number of countries have indicated that they will not cooperate with the United States in certain counterterrorism efforts — for instance, in providing evidence or extraditing suspects – if we intend to use that cooperation in pursuit of a military commission prosecution. Although the use of military commissions in the United States can be traced back to the early days of our nation, in their present form they are less familiar to the international community than our time-tested criminal justice system and Article III courts. However, it is my hope that, with time and experience, the reformed commissions will attain similar respect in the eyes of the world.
Where cases are selected for prosecution in military commissions, Justice Department investigators and prosecutors work closely to support our Department of Defense colleagues. Today, the alleged mastermind of the bombing of the U.S.S. Cole is being prosecuted before a military commission. I am proud to say that trial attorneys from the Department of Justice are working with military prosecutors on that case, as well as others.
And we will continue to reject the false idea that we must choose between federal courts and military commissions, instead of using them both. If we were to fail to use all necessary and available tools at our disposal, we would undoubtedly fail in our fundamental duty to protect the Nation and its people. That is simply not an outcome we can accept.
This Administration has worked in other areas as well to ensure that counterterrorism professionals have the flexibility that they need to fulfill their critical responsibilities without diverging from our laws and our values. Last week brought the most recent step, when the President issued procedures under the National Defense Authorization Act. This legislation, which Congress passed in December, mandated that a narrow category of al Qaeda terrorist suspects be placed in temporary military custody.
Last Tuesday, the President exercised his authority under the statute to issue procedures to make sure that military custody will not disrupt ongoing law enforcement and intelligence operations — and that an individual will be transferred from civilian to military custody only after a thorough evaluation of his or her case, based on the considered judgment of the President’s senior national security team. As authorized by the statute, the President waived the requirements for several categories of individuals where he found that the waivers were in our national security interest. These procedures implement not only the language of the statute but also the expressed intent of the lead sponsors of this legislation. And they address the concerns the President expressed when he signed this bill into law at the end of last year.
Now, I realize I have gone into considerable detail about tools we use to identify suspected terrorists and to bring captured terrorists to justice. It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.
This principle has long been established under both U.S. and international law. In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.
Our legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan. We are at war with a stateless enemy, prone to shifting operations from country to country. Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan. Our government has both a responsibility and a right to protect this nation and its people from such threats.
This does not mean that we can use military force whenever or wherever we want. International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally. But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.
Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.
Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.
Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted. But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans. Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.
The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process. Where national security operations are at stake, due process takes into account the realities of combat.
Here, the interests on both sides of the scale are extraordinarily weighty. An individual’s interest in making sure that the government does not target him erroneously could not be more significant. Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.
Any decision to use lethal force against a United States citizen – even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land – is among the gravest that government leaders can face. The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws. So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.
Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States. As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties. Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack. Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.
Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question. It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel. Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack. In that case, our government has the clear authority to defend the United States with lethal force.
Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force. The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.
These principles do not forbid the use of stealth or technologically advanced weapons. In fact, the use of advanced weapons may help to ensure that the best intelligence is available for planning and carrying out operations, and that the risk of civilian casualties can be minimized or avoided altogether.
Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.
The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history. Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments – all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time. The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.
That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight. Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.
Now, these circumstances are sufficient under the Constitution for the United States to use lethal force against a U.S. citizen abroad – but it is important to note that the legal requirements I have described may not apply in every situation – such as operations that take place on traditional battlefields.
The unfortunate reality is that our nation will likely continue to face terrorist threats that – at times – originate with our own citizens. When such individuals take up arms against this country – and join al Qaeda in plotting attacks designed to kill their fellow Americans – there may be only one realistic and appropriate response. We must take steps to stop them – in full accordance with the Constitution. In this hour of danger, we simply cannot afford to wait until deadly plans are carried out – and we will not.
This is an indicator of our times – not a departure from our laws and our values. For this Administration – and for this nation – our values are clear. We must always look to them for answers when we face difficult questions, like the ones I have discussed today. As the President reminded us at the National Archives, “our Constitution has endured through secession and civil rights, through World War and Cold War, because it provides a foundation of principles that can be applied pragmatically; it provides a compass that can help us find our way.”
Our most sacred principles and values – of security, justice and liberty for all citizens – must continue to unite us, to guide us forward, and to help us build a future that honors our founding documents and advances our ongoing – uniquely American – pursuit of a safer, more just, and more perfect union. In the continuing effort to keep our people secure, this Administration will remain true to those values that inspired our nation’s founding and, over the course of two centuries, have made America an example of strength and a beacon of justice for all the world. This is our pledge.
Thank you for inviting me to discuss these important issues with you today.
ROBONAUT 2 LENDS A HAND TO GENERAL MOTORS
While Robonaut 2 has been busy testing its technology in microgravity aboard the International Space Station, NASA and General Motors have been working together on the ground to find new ways those technologies can be used. The two groups began working together in 2007 on Robonaut 2, or R2, which in 2011 became the first humanoid robot in space. NASA and GM now are developing a robotic glove that auto workers and astronauts can wear to perform their respective jobs, while reducing the risk of repetitive stress injuries. Officially, it’s called the Human Grasp Assist device, but generally it’s called the K-Glove or Robo-Glove. In this image, Robonaut and a spacesuit-gloved hand are extended toward each other to demonstrate the collaboration between robots and humans in space. Image Credit: NASA
The above photo and excerpt are from the NASA website:
COURT ORDERS STOCK BROKER TO PAY OVER $500,000 IN FRAUD CASE
The following excerpt is from the SEC website:
The Securities and Exchange Commission announced that a federal judge in Massachusetts entered a final judgment on March 14, 2012 ordering defendant James J. Konaxis, formerly a registered representative of Beverly-based broker-dealer Sentinel Securities, Inc., to disgorge more than $483,000 in commissions earned over a two-year period by defrauding a former customer who was left widowed by the September 11, 2001 terrorist attacks. Together with prejudgment interested and a civil penalty, Konaxis has been ordered to pay a total of $514,954. In granting the Commission’s motion for monetary remedies, Judge Denise L. Casper found that Konaxis was liable in the amount of all commissions earned from three of the victim’s accounts over a two-year period because he “misled the victim into thinking her investments were safe, while churning (e.g., excessively trading) her funds in a manner contrary to her interests[.]”
According to the Commission’s complaint, Konaxis violated Section 17(a) of the Securities Act of 1933 (“Securities Act”) and Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 thereunder by excessively trading his customer’s funds while knowingly or recklessly disregarding her interests. During a two-year period, the Commission alleges that the value of his customer’s accounts (funded by payments made to the victim and her family by the September 11th Victim Compensation Fund) decreased from approximately $3.7 million to approximately $1.6 million, much of which was due to Konaxis’s investments and the resulting commissions paid to Konaxis.
At the time the Commission’s complaint was filed, Konaxis entered into a partial settlement with the Commission, in which he consented to be enjoined from future violations of the antifraud provisions of the Securities Act and Exchange Act, and to be barred from participating in any offering of penny stock. In addition, as part of the settlement, Konaxis agreed to be barred in related administrative proceedings from any future association with any broker, dealer, investment adviser, municipal securities dealer, or transfer agent. However, the Commission also filed a motion with the Court seeking disgorgement of ill-gotten gains plus pre-judgment interest, and the imposition of a civil penalty, which Konaxis opposed.
After a hearing on March 1, 2012, Judge Denise L. Casper issued an order granting the Commission’s motion for monetary remedies, including disgorgement in the full amount of Konaxis’ commissions earned over a two-year period from the three accounts churned, totaling $483,460.23, prejudgment interest in the amount of $31,494.44, and a civil penalty of $10,000, for a total of $514,954.
DARK MATTER IN GALAXY CLUSTER ABELL 383
Two teams of astronomers have used data from NASA's Chandra X-ray Observatory and other telescopes to map the distribution of dark matter in a galaxy cluster known as Abell 383, which is located about 2.3 billion light years from Earth. Not only were the researchers able to find where the dark matter lies in the two dimensions across the sky, they were also able to determine how the dark matter is distributed along the line of sight.
Dark matter is invisible material that does not emit or absorb any type of light, but is detectable through its gravitational effects. Several lines of evidence indicate that there is about six times as much dark matter as "normal," or baryonic, matter in the Universe. Understanding the nature of this mysterious matter is one of the outstanding problems in astrophysics.
Galaxy clusters are the largest gravitationally-bound structures in the universe, and play an important role in research on dark matter and cosmology, the study of the structure and evolution of the universe. The use of clusters as dark matter and cosmological probes hinges on scientists' ability to use objects such as Abell 383 to accurately determine the three-dimensional structures and masses of clusters.
The recent work on Abell 383 provides one of the most detailed 3-D pictures yet taken of dark matter in a galaxy cluster. Both teams have found that the dark matter is stretched out like a gigantic football, rather than being spherical like a basketball, and that the point of the football is aligned close to the line of sight.
The X-ray data (purple) from Chandra in the composite image show the hot gas, which is by far the dominant type of normal matter in the cluster. Galaxies are shown with the optical data from the Hubble Space Telescope (HST), the Very Large Telescope, and the Sloan Digital Sky Survey, colored in blue and white.
Both teams combined the X-ray observations of the "normal matter" in the cluster with gravitational lensing information determined from optical data. Gravitational lensing -- an effect predicted by Albert Einstein -- causes the material in the galaxy cluster, both normal and dark matter, to bend and distort the optical light from background galaxies. The distortion is severe in some parts of the image, producing an arc-like appearance for some of the galaxies. In other parts of the image the distortion is subtle and statistical analysis is used to study the distortion effects and probe the dark matter.
A considerable amount of effort has gone into studying the center of galaxy clusters, where the dark matter has the highest concentration and important clues about its behavior might be revealed. Both of the Abell 383 studies reported here continue that effort.
The team of Andrea Morandi from Tel Aviv University in Israel and Marceau Limousin from Université de Provence in France and University of Copenhagen in Denmark concluded that the increased concentration of the dark matter toward the center of the cluster is in agreement with most theoretical simulations. Their lensing data came from HST images.
The team led by Andrew Newman of the California Institute of Technology and Tommaso Treu of University of California, Santa Barbara (UCSB) used lensing data from HST and the Japanese telescope Subaru, but added Keck observations to measure the velocities of stars in the galaxy in the center of the cluster, allowing for a direct estimate of the amount of matter there. They found evidence that the amount of dark matter is not peaked as dramatically toward the center as the standard cold dark matter model predicts. Their paper describes this as being the "most robust case yet" made for such a discrepancy with theory.
The contrasting conclusions reached by the two teams most likely stem from differences in the data sets and the detailed mathematical modeling used. One important difference is that because the Newman et al. team used velocity information in the central galaxy, they were able to estimate the density of dark matter at distances that approached as close as only 6,500 light years from the center of the cluster. Morandi and Limousin did not use velocity data and their density estimates were unable to approach as close to the cluster's center, reaching to within 80,000 light years.
Another important difference is that Morandi and Limousin used a more detailed model for the 3-D map of dark matter in the cluster. For example, they were able to estimate the orientation of the dark matter "football" in space and show that it is mostly edge-on, although slightly tilted with respect to the line of sight.
As is often the case with cutting-edge and complex results, further work will be needed to resolve the discrepancy between the two teams. In view of the importance of resolving the dark matter mystery, there will undoubtedly be much more research into Abell 383 and other objects like it in the months and years to come.
If the relative lack of dark matter in the center of Abell 383 is confirmed, it may show that improvements need to be made in our understanding of how normal matter behaves in the center of galaxy clusters, or it may show that dark matter particles can interact with each other, contrary to the prevailing model.
The Newman et al. paper was published in the February 20, 2011 issue of the Astrophysical Journal Letter and the Morandi and Limousin paper has been accepted for publication in the Monthly Notices of the Royal Astronomical Society. Other members of the Newman et al. team were Richard Ellis from Caltech, and David Sand from Las Cumbres Global Telescope Network and UCSB.
Credits: X-ray: NASA/CXC/Caltech/A.Newman et al/Tel Aviv/A.Morandi & M.Limousin; Optical: NASA/STScI, ESO/VLT, SDSS
SECRETARY OF STATE HILLARY CLINTON'S MEETINGS IN NORTHERN IRELANDAND
The following excerpt is from a U.S. State Department e-mail:
Remarks With First Minister of Northern Ireland Peter Robinson and Deputy First Minister of Northern Ireland Martin McGuiness Before Their Meeting
Remarks Hillary Rodham Clinton
Secretary of State Treaty Room
Washington, DC
March 19, 2012
SECRETARY CLINTON: Well, it’s a great pleasure to welcome back to Washington and here to the State Department the first minister and the deputy first minister from Northern Ireland. I have had the great honor of working with these gentlemen for a number of years and have been so impressed at the progress that they are making together. And we look forward to a very close and continuing relationship, and I just can’t thank you both enough for the leadership and the great example that you are setting for the people who you represent but also far beyond.
Peter.
FIRST MINISTER ROBINSON: Well, again, we’re delighted to accept Secretary Clinton’s hospitality. She’s been a very good friend of Northern Ireland. Martin and I are particularly glad to be here because there was an election between when we last met, her and I, and we’ve come back with a reinforced mandate. We’re looking forward to giving details to the Secretary of State of the progress that we’re making in Northern Ireland. We’ve agreed our Programme for Government, our budget, our investment strategy, our economic strategy. We’ve got major reforms on the way and help for local government and in education.
So, it’s normal foreign politics and boring is good for Northern Ireland.
SECRETARY CLINTON: That’s good.
FIRST MINISTER ROBINSON: So we’re making real progress and we look forward to continuing our discussions with the Administration.
SECRETARY CLINTON: As well, that’s exactly right.
Martin.
DEPUTY FIRST MINISTER MCGUINESS: This is also a great opportunity for Peter and myself to express our deepest thanks and appreciation for the incredible support that we’ve received from Secretary of State Clinton and also from President Obama. They have been very staunch supporters of the peace process. And it’s great for us, in the aftermath of the election that Peter has just spoken about, to be able to come and record the fact that both the peace process and the political process has been considerably strengthened as a result of that election last year.
And as Peter has also said, we are very involved in the very important work of the economy, the great challenges that exist obviously worldwide but how that impacts on us, a very small part of the world, and the need for us to ensure that we are continuing to engage with our friends here in North America who have been incredibly supportive. The number of (inaudible) jobs that we have brought into the north from companies like the New York Stock Exchange, the Chicago Mercantile, HBO, Citigroup, Allstate – all of these have been providing much needed employment for our people, and that is something for which we are deeply grateful.
Of course, you can’t (inaudible) any of that from the very important economic investment conference that Secretary Clinton hosted here for us not too long ago. So, very important to come here and say how much we admire this woman as a leader and admire her as a true friend of peace and political progress in our part of the world.
SECRETARY CLINTON: Thanks to you both. Thank you all.
FRAUD AND TAX EVASION COST FORMER ARIZONA STATE REP. $140,000
The following excerpt is from the Department of Justice website:
Wednesday, March 14, 2012
Former Arizona State Representative Pleads Guilty to Wire Fraud and Tax Evasion Related to the Misuse of More Than $140,000 in Charity Funds
WASHINGTON – Richard David Miranda, a former Arizona state representative, pleaded guilty today in the U.S. District Court for the District of Arizona to a two-count information charging him with defrauding a charity of more than $140,000 and evading income tax related to those unlawfully obtained funds.
The guilty plea was announced by Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division; Special Agent in Charge James L. Turgal of the FBI’s Phoenix Field Office; and Special Agent in Charge Dawn Mertz of the Internal Revenue Service-Criminal Investigation (IRS-CI) Phoenix office.
“Mr. Miranda, a former member of the Arizona legislature and executive director of a non-profit organization, pleaded guilty today to using over $140,000 of the charity’s funds for his personal expenses, and then failing to disclose the extra income on his tax return,” said Assistant Attorney General Breuer. “Having admitted this illegal conduct, Miranda will now face the consequences of his actions. This Justice Department will continue to hold elected officials, just like ordinary citizens, accountable for their crimes.”
“The Federal Bureau of Investigation, the Internal Revenue Service and the Department of Justice remain steadfast in our efforts to combat public corruption at all levels of government by investigating and prosecuting those who deliberately abuse the public’s trust by using their office for personal gain stated,” said FBI Special Agent in Charge James L. Turgal Jr. “The FBI and our law enforcement partners are committed to holding our elected officials accountable from intentionally engaging in schemes to profit from fraudulent activity and exploiting the faith placed in them by the American public.”
“It is an embarrassment to the state and its people when a state representative deceives those he was elected to represent,” said IRS Special Agent in Charge Mertz. “Former Representative Miranda selfishly defrauded a charity that was established to assist disadvantaged members of the community and used the profits for his own benefit. Those in public office should be held to a higher standard and are not exempt from criminal prosecution.”
Miranda, 55, of Tolleson, Ariz., served as a member of the Arizona House of Representatives for the 13th District from 2011 until his resignation, effective Feb. 20, 2012. Miranda previously served as a member of the Arizona State Senate from 2002 until 2011, and the Arizona House of Representatives from 1999 until 2002. According to court documents, since July 2002, Miranda also served as executive director of Centro Adelante Campesino Inc. (Centro), a non-profit charitable organization that provided food, clothing and educational assistance to persons in need, including migrant farm workers, in and around Maricopa County, Ariz.
According to court documents, in May 2005, Miranda initiated a scheme to wind down Centro, sell Centro’s sole remaining asset (a building), and use the proceeds of the sale for personal expenses. To do so, Miranda removed the charity’s longstanding volunteer accountant as an authorized signer on the charity’s bank and credit union accounts, and assumed sole control of the charity’s accounts and financial records. He also told the volunteer accountant that the proceeds of the sale would be used to fund scholarships. In March 2007, the building was sold for $250,000, and on March 7, 2007, a significant portion of the profits of that sale – $144,576 – were wired across state lines into Centro’s credit union account.
According to court documents, within one week of the wire transfer, Miranda began to withdraw the proceeds from Centro’s credit union account without the authorization or knowledge of Centro’s board of directors. For example, Miranda obtained two checks payable to himself totaling $37,000, and paid off personal credit card debts totaling more than $60,000. By Dec. 31, 2007, Miranda had withdrawn the remaining proceeds (approximately $46,836) using checks, withdrawals and electronic funds transfers, and used the funds to pay off additional personal debts and make numerous purchases for personal travel, services, clothing, food and household items. Miranda also failed to report the proceeds of the sale as income on his IRS Form 1040 for calendar year 2007.
The charge of wire fraud carries a maximum penalty of 20 years in prison and a $250,000 fine, or twice the amount gained or lost in the scheme. The charge of attempt to evade or defeat tax carries a maximum penalty of five years in prison and a $100,000 fine. Sentencing has been scheduled for June 5, 2012.
The case is being prosecuted by Trial Attorneys Edward T. Kang, Monique T. Abrishami and Brian A. Lichter of the Criminal Division’s Public Integrity Section, and Assistant U.S. Attorney Frederick A. Battista of the District of Arizona. The case is being investigated by agents from the FBI Phoenix Field Office and IRS-CI Phoenix Office.
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