Month: July 2021

Declaring opponents of a regime “enemies of the state” is a long tradition in authoritarian governments. Shockingly, the concept is being deployed by the Biden Administration.

On June 15, the White House announced a “National Strategy for Countering Domestic Terrorism.” While there is general agreement that terrorism is, of course, a bad thing, the use of the label “domestic terrorist” to subdue those who merely oppose, ideologically and without violence, a current administration is an instrument of oppression.  

In the opening months of the Obama-Biden Administration, “Operation Vigilant Eagle” was commenced, labelling returning veterans from the Afghanistan and Iraq wars as potential terrorists. That Administration failed to provide convincing evidence that veterans were any more prone to terrorism than any other group.  What is clear, however, is that military personnel were more prone to have political views contrary to the then-White House than others.

Despite having proven to be a public relations disaster in 2009, the same biased and politically charged concept is again being deployed as a means to intimidate political opponents. This time, “white supremacy” is being used as the excuse to label and intimidate those who have differing views, even if there is no evidence of violence or racial bias. Increased use of the term “Domestic Terrorist” is not confined to racial matters by some individuals and journalistic outlets. Those who believe there was fraud in the 2020 election have also been informally given the label. Additionally, the use of phrase has been employed to describe those who don’t subscribe to the environmental policies of the left.

There is a clear lack of actual, specific statistics, as opposed to anecdotal accounts and broad statements, about the existence of a persistent and wide-scale terror threat from those operating under what Progressives label white supremacy, anti-climate change regulation, or other relevant motivations, although isolated acts of violence have occurred and some organizations exist.

Stunningly, however, there is a great reluctance to treat and governmentally respond to left-wing organizations, more ideologically aligned with the Biden Administration, such as Antifa and Black Lives Matter, as terrorists, despite massive evidence. These organizations have frequently burned buildings, looted stores, attacked individuals (including journalists covering their activities,) assaulted federal courthouses, and occupied police stations. That have established “autonomous zones” within U.S. cities.  These activities are neither rare, commonplace, or unusual for the groups.  Indeed, they are their centralized focus.

Mike Gonzalez, writing in City Journal in September, noted:

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“…the leaders of the Black Lives Matter organizations … were trained by self-described Marxist revolutionaries who have long used the plight of black Americans as justification for overthrowing America’s constitutional order. They frankly admit that such “organizing” is the key to their goal of world revolution…These facilitators of anti-white struggle sessions disdain the capitalist system and seek its replacement—and the mainstream media cheers them on.”

Antifa shares both BLM’s Marxist roots and its emphasis on violence.  Seth Jones, in a report for the Center for Strategic and International Studies gives an example: “One of the most common symbols used by Antifa combines the red flag of the 1917 Russian Revolution and the black flag of 19th century anarchists.”

Biden’s “National Strategy,” however, essentially ignores these very real, substantive, and continuous threats, while concentrating on anecdotal, infrequent, and largely disorganized examples of what the media generally portrays as “right-wing” violence. This is not surprising, considering the mind-set of the current Administration. Kamala Harris, for example, expressed support for a nonprofit called the Minnesota Freedom Fund (MFF), which pays criminal bail and immigration bonds, and encouraged her supporters to donate to it during BLM protests last summer.

America, with its unique First Amendment protecting free speech, has been reluctant to deal with domestic terrorist organizations as groups, while willing to prosecute individuals from those groups that commit acts of violence. That may be changing, as the Biden Administration appears to have more affinity with other nation’s examples than American precedent.

Its “National Strategy” document notes: “We can learn from our international partners’ challenges and successes in disrupting plots and responding to attacks, integrating that expertise into our own planning.”

Photo: Pixabay

As the Pentagon deals with a budget that, after inflation, cuts the military’s funding ability, and as politicized service chiefs concentrate on issues of gender and race, the ability of the armed forces to protect the nation rapidly deteriorates. A new report outlines the diminished capability of the U.S. Navy. We present the Executive Summary of the worrisome analysis.

A Report on the Fighting Culture of the U.S. Navy

Lieutenant General Robert E. Schmidle, USMC, ret., Rear Admiral Mark Montgomery, US Navy, Ret.

This review was conducted at the direction of Senator Tom Cotton and Congressmen Mike  Gallagher, Jim Banks, and Dan Crenshaw as a strictly nonpartisan exercise in Congressional  oversight. The authors of this review conducted long-form interviews with numerous active-duty  and recently retired or detached officers and enlisted personnel about their insights into the  culture of the United States Navy following a series of high-profile and damaging operational  failures in the Navy’s Surface Warfare community. The discussion below is intended to inform  Congress of the findings of these interviews, with an emphasis on subjects including funding,  maintenance planning, administrative management, and operational employment. 

The review did not focus on any single failure, each of which has been thoroughly investigated  by the appropriate authorities, but rather examined the broader question of whether the episodes  taken as a whole indicate any underlying systemic problems affecting the performance of the  surface Navy. The incidents that formed the impetus for this review included the catastrophic fire  on the USS Bonhomme Richard pier-side in San Diego, the collision of the USS McCain in the  South China Sea, the collision of the USS Fitzgerald off the coast of Japan, and the surrender of  two small U.S. Navy craft to the Iranian Revolutionary Guard Corps Navy in the Arabian Gulf.  The direction from members of Congress was to establish if these incidents were part of a series  of isolated, unit-level breakdowns, or if they instead indicate larger institutional issues that are  degrading the performance of the entire naval surface force. 

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Interviews were conducted both by Congressional staff and outside experts. Interviewers were directed to apply an iterative long-form interview process to a wide variety of individuals and to  present members of Congress with a compendium detailing their findings. The review team was  directed to employ a high-touch, iterative approach that proceeded without reliance on an  interview subject’s chain of command in order to encourage nuance and candor on the part of  interviewees–as opposed to wider-reach, lower-touch survey methods that are typically used in  military climate assessments. 77 unique and formal interviews were conducted with Navy  personnel via an extensive hour-long process to establish a common controlled approach to the  questions at hand. The interviewees represented a cross-section of Navy personnel at varying  ranks and in varying occupational specialties across a broad period of time —though  interviewers did exercise a moderate prejudice for speaking to personnel with service in the  surface Navy, to officers, and to those with significant time at sea. 

By conducting lengthy conversations with knowledgeable subject matter experts and subjects  with direct experience in or with the surface Navy, including with ship captains in command,  deep and substantive common insights were captured that escape mathematical surveys.  Moreover, by conducting the interviews from outside the chain of command via the exercise of  the Congress’s Title I oversight authority, and by pledging anonymity to participants,  interviewers enjoyed a significant level of candor in these conversations. Ultimately the process  was able to identify trends that, by the admission of those interviewed, would not normally be  shared with their own chain of command. 

The results of this project are unambiguous. There was a broad consensus across interviewees on numerous cultural and structural issues that impact the morale and readiness of the Navy’s  surface force. These include: an insufficient focus on warfighting skills, the perception of a zero defect mentality accompanied by a culture of micromanagement, and over-sensitivity and responsiveness to modern media culture. Structural issues identified include lack of resources  and consistency in surface warfare training programs, and the Navy’s underwhelming commitment to surface ship maintenance—a problem that spans decades.  

Concern within the Navy runs so high that, when asked whether incidents such as the two  destroyer collisions in the Pacific, the surrender of a small craft to the IRGC in the Arabian Gulf,  the burning of the Bonhomme Richard and other incidents were part of a broader cultural or  leadership problem in the Navy, 94% of interviewees responded “yes,” 3% said “no,” and 3%  said “unsure.” And when asked if the incidents were directly connected, 55% said “yes,” 16%  said “no,” and 29% said “unsure.” This sentiment, that the Navy is dangerously off course, was  overwhelming.

Photo: SOUTH CHINA SEA (July 12, 2021) The Arleigh Burke-class guided-missile destroyer USS Benfold (DDG 65) sails through the South China Sea while conducting routine underway operations. Benfold is forward-deployed to the U.S. 7th Fleet area of operations in support of a free and open Indo-Pacific.

CYBER ATTACKS

The U.S. Department of State’s Rewards for Justice (RFJ) program, which is administered by the Diplomatic Security Service, is offering a reward of up to $10 million for information leading to the identification or location of any person who, while acting at the direction or under the control of a foreign government, participates in malicious cyber activities against U.S. critical infrastructure in violation of the Computer Fraud and Abuse Act (CFAA). Since its inception in 1984, the program has paid in excess of $200 million to more than 100 people across the globe who provided actionable information that helped prevent terrorism, bring terrorist leaders to justice, and resolve threats to U.S. national security.

RELIGIOUS FREEDOM

Each year the Secretary of State speaks at the annual International Religious Freedom Summit. Secretary of State Tony Blinken was invited to speak this year but decided to skip the event, which was held from July 13-15, in Washington, DC. The State Spokesperson said that Blinken already has spoken about religious freedom when asked about the change. It left some in Washington’s policy circles concerned about the lack of importance the Biden Administration places on religious freedom, especially in minority areas such as China’s Xinjiang Autonomous Region where many of its Muslim Uyghur population have been detained in detention camps without trial for extended periods of time.

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IRAN

The US condemned Iran’s attempt last week to kidnap a US citizen on US soil.  State Department Spokesperson Ned Price, in responding to a reporter’s question about the attempt, bridged the conversation to the Iran nuclear deal and blamed the Trump Administration for the problems with Iran. It became more contentious when the frustrated reporter responded: “You said that it’s gotten worse, the situation has gotten worse since the previous administration pulled out. And yet, since this administration took office, while it’s been getting worse and while the Iranian violations of the JCPOA are becoming more profound, you guys have not imposed any additional penalties on Iran. In fact, you’ve removed some, and I’m not talking about yesterday and the money the South Korean – I’m not talking about that. I’m talking about Treasury removing specific people that you called good sanctions hygiene – remember – so in fact, the amount of pressure that this administration is putting on is less than what it was before. How does that – how do you square that?” Price answered that “ diplomacy presents the best means to control verifiably and permanently Iran’s nuclear program.” The Biden Administration has not been successful in resolving Iran’s ongoing nuclear violations. This week Iran announced it has the capability to enrich nuclear fuel to military grade level of 90%.

CUBA

“We remain deeply concerned by the Cuban Government’s, quote, “call to combat” and by the images of violence that we have seen over the past two days. We call for calm and we condemn any violence against those protesting peacefully, and we equally call on the Cuban Government to release anyone detained for peaceful protest,” said Price at a State Department briefing for reporters. He added that human rights are important to the Administration and “we are always considering options available to us that would allow us to support the Cuban people, to support their humanitarian needs, which are indeed profound, and they are profound because of not anything the United States has done, but from the actions and inactions, mismanagement, corruption of the Cuban regime.” A State Department policy review is ongoing, according to Price. He said the US is “engaging a wide range of stakeholders.” The Spokesperson did not address the protestors calls for freedom, but simply noted that “These protests are about many things, but certainly the suffering of the Cuban people that is – has been made all the more acute during the pandemic. It’s top of mind.” The Biden Administration has not taken strong actions to support the tens of thousands of Cuban’s who marched in Havana’s main promenade.

A few decades ago, China was a grain-importing nation unable to grow enough food to feed its own population. The PLA navy lacked the advanced technologies, including “over-the-horizon” radar, required for blue water operations and it owned no aircraft carriers. Before 2000, “informationized” (信息化, xinxi hua) warfare was only a concept left for future generations to develop. The last two decades, as President Xi Jinping likes to call them, have served as a unique “window of opportunity” for Beijing to catch up militarily and surpass the West. American politicians ignored the speed at which the communist giant was modernizing its military capabilities and developing new ones. The result: today democratic nations face an existential threat from the aggressive communist giant. Xi expects his legacy to be that he remade the world in China’s image.

China is moving quickly from a brown-water navy operating only in its littoral waters to a blue water navy now ranked third behind only the US, Great Britain, and France. Its artificial intelligence today is world-class and a significant threat if China chooses to use it. According to James Barker, of the Jamestown Foundation, “China’s emphasis on AI can be considered a ‘whole of government’ approach, which has important ramifications for the People’s Liberation Army (PLA). Specifically, China’s ‘military-civil fusion’ (军民融合, jun min ronghe) strategy is intended to facilitate transfers of technology and expertise between the commercial and military sectors, including in the field of AI.”

Last week Rear Admiral Mike Studeman, Director of Intelligence, J2, US Indo-Pacific Command was speaking with a Vice President of INSA (Intelligence and National Security Alliance) when he quoted General MacArthur, who once said that war can be summed up in two words: “too late.” It may be close to the time when we should resurrect and pay attention to his prescient words.

During the last two decades, PLA doctrine has focused on enabling “informationized” (信息化, xinxi hua) warfare. It’s a model of network-centric operations acquired from the American military. Barker believes that over the past five years, China has moved forward the idea that military AI or “intelligentization” (智能化, zhineng hua), “the development and inheritance of military informationization,” is the most likely form of future warfare and where it is best to commit its resources. 

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AI is emerging as one of the most promising areas of research for the PLA, with machine learning currently being applied to teach computers how to envision the world. By tearing down the wall between the public and private sector, China has created a highly successful “military-civilian fusion” program. It speeds the transfer of technology between the commercial and military sectors, including the most sophisticated AI, which is being applied to “military target recognition” (军事目标识别, junshi mubiao zhi bie), according to Barker. He added that in the three-year period from 2016-2019 Chinese journal publications discussing adding “eyes” and “ears” to the PLA’s weapons, increased by an average of 20%. 

Washington and the rest of the democratic world need to recognize that China is applying AI technology to train neural networks to identify US military aircraft, ships, and armored vehicles; processing images for cruise missiles to improve their ground target detection; and enhancing software already capable of sorting identified threats with above a 90% accuracy level. China still has a long way to go but the distance it has covered since 2000 has dramatically cut the length of the path it still must travel to surpass the United States. The world can no longer call the PLA backward, no can it ignore the strides it is making in the most advanced areas of research. Once America was safely three-to-four generations of technology ahead of the communist giant. That is no longer the case. In May Admiral James Stavridis, who served as the 16th Supreme Allied Commander of NATO, said the military gap is closing and “over the next decade… if the U.S. does not respond [it] will favor China.” Simply stated, Washington cannot allow that to happen if we are to retain our way of life.

DARIA NOVAK served in the United States State Department during the Reagan Administration, and currently is on the Board of the American Analysis of News and Media Inc., which publishes usagovpolicy.com and the New York Analysis of Policy and Government.  Each Friday, she presents key updates on China.

Subversion has a new, expanded meaning in Moscow this week. The first update of Russia’s 2015 National Security Strategy was signed by President Putin last Friday. It places a new emphasis on information warfare, cyber security, and has the dual goals of reducing outside influences on its domestic population and greatly expanding Moscow’s influence warfare capabilities against democratic nations in the coming years. 

Russia has long viewed itself as a victim of Western operations against its critical infrastructure, military, and security organizations. Putin sees these activities as an enduring threat to the Motherland. To counter the perceived peril, he has mandated in the revised, 44-page document that the FSB, SVR, along with the GRU’s information offices, expand their activities. This strategy officially elevates information and cyber threats to an existential level and defines them as a challenge to Russia’s long-term survival. While the document outlines “symmetrical and asymmetrical measures” Russia should take in responding to “unfriendly actions that threaten the sovereignty and territorial integrity,” there also are implications world at large. Russians grey zone tactics are intensifying but designed to operate below the threshold requiring a military response from the West. 

Russia scholar Mark Galeotti wrote in the Moscow Times. “Let’s put aside the slight of pen that manages to lump the State Department, al Qaeda, Human Rights Watch, and Facebook in the same array of hostile forces. This in effect reclassifies the modern world and all the social and economic revolutions that are reshaping it as a threat.” The revised Russian National Security Strategy effectively puts Russia on a war footing with the Western world. US relations with Russia already were at a post-Cold War low since Moscow’s 2014 invasion of the Crimean Peninsula and due to its massive hacking operations aimed at American businesses and government sites, election interference, along with other unfriendly acts. Putin has put the West on notice that Russia is not backing down or playing by Western rules. Is it a sign of increasing desperation in the Kremlin?

During Putin’s annual call-in TV show this week he said that “The world is undergoing a radical change” and blamed it on the West. He pointed to the United States as Russia’s greatest and most imminent threat although he could not offer viable examples. In a recent interview with Defense One, Dartmouth professor William Wohlforth suggested the strategy document includes “a long list of behavior by non-state actors that are said to be undermining Russian values and the stability of the state.” Russia considers Twitter, Facebook and other social media dangerous.

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Ivana Stradner, a fellow at the American Enterprise Institute, told Patrick Tucker of Defense One, that “The declaration of a ‘safe information space’ as a core national interest underscores the importance of information war to the Russian government. This is a continuation of the Russian government’s pathological self-victimhood. These claims, like Russia’s threats to ban Twitter this past spring, are aimed at bolstering Russian claims of ‘digital sovereignty’ through which President Vladimir Putin believes he can stave off the types of ‘color revolutions’ that have toppled other dictators in post-Soviet nations.” Putin’s posturing in the revised strategy document calls into question his political strength at home.

Since the annexation of the Crimea, Russia has lost a defense industrial relationship and major arms market in the Ukraine. India, once planning to purchase naval vessels from Russia is using work arounds to avoid dealing with Russia by obtaining marine engines through Rolls Royce. According to a RAND Report, “In April, the FBI added an intelligence officer for Russia’s Foreign Intelligence Service, who was working as a UEC executive, to its most-wanted list for allegedly conspiring to steal trade secrets from a Western aerospace company.” Western sanctions effectively have stopped Russia’s production of a civilian aircraft. China, while friendly to Russia, is building its own planes and expanding its arms exports to markets once controlled by Russia. This does not bode well for Putin’s treasury which serves as source of power for the dictator. The National Security Strategy document, if Putin is cornered in the future, could portend his willingness to move in a more dangerous direction to achieve his goal of reviving the Russian Empire.

DARIA NOVAK served in the United States State Department during the Reagan Administration, and currently is on the Board of the American Analysis of News and Media Inc., which publishes usagovpolicy.com and the New York Analysis of Policy and Government.  Each Thursday, she presents key updates on Russia.

Illustration: NATO

John Wilson, a former Judge and prosecutor, reviews the controversial Cosby decision.

In April of 2018, then-80 year old actor and comedian Bill Cosby was found guilty of three counts of Aggravated Indecent Assault by a Pennsylvania Jury.  The allegations involved “a former employee with Temple University women’s basketball team….(who) testified that Cosby, a powerful trustee at Temple, drugged her and sexually assaulted her when she visited his home to ask for career advice” in 2004,  14 years earlier.

At the time of Cosby’s conviction, CNN noted that this “was the first celebrity sexual assault trial since the #MeToo movement began last fall, and many saw it as a test of whether the cultural shift the movement has brought about would translate in court…’What was revealed through this investigation was a man who had spent decades preying on women that he drugged and sexually assaulted, and a man who evaded this moment right here far too long,’ Montgomery County District Attorney Kevin Steele told reporters. ‘He used his celebrity, he used his wealth, he used his network of supporters to help him conceal his crimes.’” 

While DA Steele’s comments may be the absolute truth, he neglected to mention one disturbing fact – Steele’s predecessor, Bruce Castor, had issued a press release in which he publicly declined to prosecute Cosby for these same allegations.  In fact, according to the ABA Journal, “Castor…said there was insufficient evidence to charge Cosby after he learned of the incident in 2005…(he) noted that (the witness) continued to talk with Cosby on the phone and to meet him in person after the incident, which could harm her credibility. He also reasoned that recordings (she) made in an attempt to get Cosby to make incriminating statements could be interpreted as an attempt to get money…Castor…decline(d) to prosecute. He told Cosby’s attorney that he thought his decision meant that Cosby could not assert the Fifth Amendment in a subsequent civil suit” brought by the witness, and subsequently settled for more than three million dollars.

After being sentenced to a maximum term of ten years in prison, Cosby’s lawyers appealed his conviction, asserting that the defendant had the right to rely upon former DA Castor’s promises.  Last month, the Pennsylvania Supreme Court agreed.

“’This is justice’…Cosby’s rep, Andrew Wyatt, said in a statement…’This is the justice Mr. Cosby has been fighting for.”     But not everyone thought the reversal of Cosby’s conviction was the right result.  

As reported by The Guardian, “the reversal prompted several expressions of grief after a hard-won victory for #MeToo supporters. ‘Heartbreaking for all survivors. #MeToo lasts forever,’ tweeted Ellen Barkin…’To every woman who was sexual assaulted [sic] by #BillCosby my heart hurts for you today and I am full fury. It’s horrifying,’ tweeted Debra Messing…’On today’s episode of ‘How the Justice System Fails Victims’: Bill Cosby released on a technicality,’ tweeted the former California congresswoman Katie Hill.” 

Many of you reading this article may agree with Ellen Barkin and DA Steele – Cosby was a predator, using his fame and wealth to avoid prosecution for his crimes.  But a review of the basis for the reversal of his conviction reveals a more fundamental issue – the right of the accused -any accused, no matter who they might be – to due process and fundamental fairness.

In their opinion, the Pennsylvania Supreme Court took great pains to explain the deal granted to Cosby by DA Castor.  “Mr. Castor testified that he signed the press release…in order to bind the Commonwealth so it ‘would be evidence that they could show to a civil judge that Cosby is not getting prosecuted…I operated under the certainty that a civil suit was coming and set up the dominoes to fall in such a way that Mr. Cosby would be required to testify…I concluded that the best way to achieve justice was to create an atmosphere where [the witness] would have the best chance of prevailing in a civil suit against Cosby… , I intentionally and specifically bound the (DA’s office) that there would be no state prosecution of Cosby in order to remove from him the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing him to sit for a deposition under oath…” 

As DA Castor anticipated, Cosby was deposed, and during his sworn testimony, he admitted to many of the allegations made by the witness against him.  

DA Castor made his decision in 2005.  Cosby was charged by Castor’s successor, DA Steele, approximately 10 years later, after the civil case was settled.  What changed?  

“The #MeToo phrase was first coined in 2006 by Tarana Burke, an advocate for women in New York. Burke wanted a way to empower women who had endured sexual violence by letting them know that they were not alone—that other women had suffered the same experience they had…(t)hen, in 2017, the phrase was reintroduced by actress Alyssa Milano as a way to encourage women and men to share their stories as part of an anti-sexual harassment movement…Milano had no idea how quickly one small idea would catch on, prompting the phrase to be used more than 12 million times over the next few weeks…For people who worked with survivors of sexual assault and harassment on a daily basis, the response was beyond what they could comprehend. Finally, the issue they had been working tirelessly to address was gaining some traction and garnering national attention.” 

The MeToo movement had some powerful targets, including movie producer Harvey Weinstein and NBC News anchor Matt Lauer.   But as discussed in the California Law Review, “Modern polls show there is significant concern regarding the potential downsides of the #MeToo movement and skepticism regarding the movement’s benefits…  the legal profession is not immune to these same avoidance behaviors. Young female associates are reporting that ‘men don’t want to take women on the road with them, go out to dinner or have one-on-one meetings with the door closed because they are fearful their actions can be misconstrued.’” 

In this environment, DA Steele learns that his predecessor gave a non-prosecution deal to a rich and powerful celebrity, who has subsequently admitted, under oath, that he committed the acts for which he was accused.  What is an elected official to do?

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He ignores the integrity of his office, and goes back on the deal DA Castor struck.  All to appease the #MeToo mob.

According to the Pennsylvania Supreme Court, however, DA Steele was duty bound to stand by the decision of his predecessor.  “(W)hen a prosecutor makes an unconditional promise of non-prosecution,” the Court wrote in its opinion, ” and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced.”  Citing to cases involving defendants who entered into guilty pleas under promises made by prosecutors,  “courts (are obligated) to hold prosecutors to their word, to enforce promises, to ensure that defendants’ decisions are made with a full understanding of the circumstances, and to prevent fraudulent inducements of waivers of one or more constitutional rights….(t)he law is clear that…prosecutors generally are bound by their assurances, particularly when defendants rely to their detriment upon those guarantees.”

In Cosby’s case, “the due process implications arise because Cosby detrimentally relied upon (DA Castor’s) decision, which was (Castor’s) ultimate intent in issuing the press release. There was no evidence of record indicating that D.A. Castor intended anything other than to induce Cosby’s reliance. Indeed, the most patent and obvious evidence of Cosby’s reliance was his counseled decision to testify in four depositions in (the) civil case without ever invoking his Fifth Amendment rights.”

In other words, because Cosby acted against his own interests in reliance on the promise made to him by DA Castor, DA Steele could not go back on DA Castor’s promise.

Does this seem like the invocation of a “technicality”, as the Court’s decision is described by former California congresswoman Katie Hill?  Far from it.  As the Pennsylvania Supreme Court explains, “(t)he right to refuse to incriminate oneself is an “essential mainstay” of our constitutional system of criminal justice…(t)he privilege constitutes an essential restraint upon the power of the government, and stands as an indispensable rampart between that government and the governed. The Fifth Amendment’s self-incrimination clause ‘is not only a protection against conviction and prosecution but a safeguard of conscience and human dignity and freedom of expression as well.’”  (case citations omitted)

The Court continued; “Cosby was entitled to invoke the Fifth Amendment. No court could have forced Cosby to testify in a deposition or at a trial so long as the potential for criminal charges remained. Here, however, when called for deposition, Cosby no longer faced criminal charges. When compelled to testify, Cosby no longer had a right to invoke his right to remain silent… Cosby did not invoke the Fifth Amendment before he incriminated himself because he was operating under the reasonable belief that D.A. Castor’s decision not to prosecute him meant that ‘the potential exposure to criminal punishment no longer exist[ed].’” 

Thus, “Cosby reasonably relied upon the Commonwealth’s decision for approximately ten years. When he announced his declination decision…District Attorney Castor knew that Cosby would be forced to testify based upon (Castor’s) assurances. Knowing that he induced Cosby’s reliance, and that his decision not to prosecute was designed to do just that, D.A. Castor made no attempt in 2005 or in any of the ten years that followed to remedy any misperception or to stop Cosby from openly and detrimentally relying upon that decision. In light of these circumstances, the subsequent decision by successor D.A.s to prosecute Cosby violated Cosby’s due process rights. No other conclusion comports with the principles of due process and fundamental fairness to which all aspects of our criminal justice system must adhere.”

Still uncomfortable?  Still believe that a guilty man “got away” with sexual assault?

Then you do not understand our system of justice.

In the famous words of Benjamin Franklin, from a letter written in 1785, “it is better 100 guilty Persons should escape than that one innocent Person should suffer.”  This is an ancient principle of our common law, going back to Voltaire (who in 1749 said, “’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent”) and Blackstone (who wrote in his Commentaries on the Laws of England, “For the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.”) 

Or, as Matthew Schmitz writes in The New York Post, “even the most hateful people have rights. We can’t abridge them simply because a national mood commands us to do so. That is why the Pennsylvania Supreme Court has overturned Cosby’s conviction…(v)indicating justice requires rejecting the mistakes of #MeToo.”

But maybe one of the most important results of this case is the utter lack of credibility which now attaches to DA Steele and his office.  What defendant can trust in the deal he struck with one prosecutor, if 10 years later, his successor bows to public pressure and goes back on that promise?  

 Illustration: Pixabay

Judge John Wilson (ret.) served as a Judge in New York City.

Are you starting to notice the pattern here?  Where the New York Appellate Division has issued an interim suspension of an attorney’s law license, a recent sampling of opinions show that such a suspension was issued where the attorney had either been convicted of a “serious crime,” or had failed to cooperate with the Discipline Committee’s investigation.  In the later case, you will note the court waited more than a year before issuing the interim suspension for failure to cooperate.

Neither of these factors is present in Matter of Giuliani – the former Mayor of New York has not been convicted of any “serious crime,” nor has he failed to cooperate with any investigation. 

The first issue raised by Mr. Giuliani is one that would naturally occur to anyone hearing about this decision – “the…investigation into (Giuliani’s) conduct violates his First Amendment right of free speech.”  But as obvious as this defense would seem, the Court makes short work of this argument.   “It is long recognized that ‘speech by an attorney is subject to greater regulation than speech by others’… (w)hile there are limits on the extent to which a lawyer’s right of free speech may be circumscribed, these limits are not implicated by the circumstances of the knowing misconduct that this Court relies upon in granting interim suspension in this case.”  

The Court than makes a detailed examination of the statements made by Mr. Giuliani before courts in Pennsylvania, Georgia, Arizona, as well as a series of comments made by the former Mayor in various TV and radio appearances.  After this review, the Court notes that “claims of misconduct alone will not provide a basis for interim suspension, unless there is a concomitant showing of an immediate threat to the public interest.”

And here, quite frankly, is where the Appellate Division goes off the rails.

“We recognize that this case presents unique circumstances” the Court writes.  “Violation of the Rules of Professional Conduct in and of themselves necessarily means that there is harm to the public.”  Following this logic, then wouldn’t every established violation of the rules lead to an interim suspension, no matter how minor the infraction?  

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“Even where there are no actual incidents of continuing misconduct, immediate harm threatening the public can be based on the risk of potential harm when considered in light of the seriousness of the underlying offense.”  The Court bootstraps this weak argument with a comparison to cases involving the “mishandling of money,” something not alleged anywhere in Matter of Giuliani.  

From this base of sand, the Court concludes that the “broader principle to be drawn…is that when the underlying uncontroverted evidence of professional misconduct is very serious, the continued risk of immediate harm to the public during the pendency of the underlying disciplinary proceeding is unacceptable.”  Got that?

The Court then reveals its real basis for the interim suspension of former Mayor Giuliani’s law license;    “The seriousness of respondent’s uncontroverted misconduct cannot be overstated. This country is being torn apart by continued attacks on the legitimacy of the 2020 election and of our current president, Joseph R. Biden. (footnote omitted) The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society.”

In essence, five New York Appellate Judges have declared it their job to protect a federal election from allegations of voter fraud and intimidation made on TV, radio and several states other than New York.

 The Court also declares it to be its job to halt Mr. Giuliani from overthrowing the US government:  “One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021 at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections…respondent’s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol…(t)his event only emphasizes the larger point that the broad dissemination of false statements, casting doubt on the legitimacy of thousands of validly cast votes, is corrosive to the public’s trust in our most important democratic institutions.”

If this reasoning sounds familiar, you may recall that in November of 2020, Slate published an article calling for sanctions on Donald Trump’s legal team.  “As scholars who have devoted the better part of our professional lives to the study of legal ethics,” the authors intone, “we believe, based on the records publicly available to date, that the disciplinary case against certain of Trump’s lawyers is strong… Lawyers cross fundamental professional boundaries… when they file cases that make unsubstantiated allegations of election fraud and heedlessly assist their client’s calculated effort to erode trust in our democratic system… These frivolous lawsuits are expressly engineered to undermine the public’s faith in core democratic processes…Courts and state bars have power to punish and deter such misconduct.” 

Looks like somebody at the Attorney Grievance Committee and the Appellate Division have been reading Slate.

On June 24, 2021, the New York State Appellate Division for the First Department issued a blistering, and ultimately controversial opinion in Matter of Giuliani a disciplinary proceeding brought against the former Mayor and personal counsel to Donald Trump.  “(W)e conclude that there is uncontroverted evidence that respondent (Giuliani) communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee.” 

The public reaction was immediate.  Katie Phang of MSNBC crowed that “Giuliani’s ticket to play in the legal arena has been punched and he’s out of the game. The very loud and very clear message being sent by this interim suspension should be heeded by all attorneys — but especially those current and prospective lawyers for clients like Donald Trump.”  CNBC called the decision “a stunning blow to the 77-year-old Giuliani, a former New York mayor who was once a top Justice Department official and U.S. attorney in Manhattan.” 

According to CNN senior legal analyst Elie Honig, an interim suspension “does not happen every day by any stretch. This is a very rare thing and a very extreme thing for the court to do.”  But let’s pause a minute here and examine that assertion.  

My search of the records of decisions from the New York State Appellate Division revealed 323 interim suspensions issued between June 2010 and June of 2021.  Given the hundreds, if not thousands of discipline proceedings brought annually in New York State, 323 is not a large number.  But here are some examples of recent instances where the New York State Appellate Division issued an interim suspension of an attorney’s license to practice law:

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 In Matter of Talcott, decided by the Second Department on June 30, 2021, “this Court…immediately suspended the respondent from the practice of law…based upon his conviction of a serious crime.”  In Matter of Fox, decided by the First Department on June 29, 2021, an attorney was “immediately suspended” when the attorney “partially cooperated by producing some of his bookkeeping records and appearing for a deposition…he has not produced the bulk of the records, including his ledger, and other documents as directed by judicial subpoena and repeatedly requested by the Committee since 2019.”    

These decisions were issued shortly after Mr. Giuliani’s suspension.  Several days before, on June 22, 2021, in Matter of DeGrace-D’Aliasi, the respondent attorney was ordered to “submit to a medical and psychiatric examination by a qualified expert or experts” based upon “respondent’s irrational conduct during and after a medical malpractice trial in which she represented herself…includ(ing) trying to relitigate issues already decided at trial and harassing and profane telephone calls and voice messages to the defendant doctors and their counsel. Respondent also left a disturbing voice mail message for (Attorney Grievance Committee) staff counsel.”  The First Department ruled that  “based on her failure to submit to the examination directed by our prior order of September 6, 2019,” the respondent’s license was suspended pending further order of the court. 

Then, in Matter of Foncillas, in an order dated May 13, 2021, the First Department referenced an order dated June 25, 2020, in which “this Court determined that respondent was convicted of a ‘serious crime,’ (and) immediately suspended him from the practice of law.”   

The Report Concludes Tomorrow

AFGHANISTAN

When questioned at a State Department briefing about the American abandonment of Afghanistan, State Department  Spokesman Ned Price, responded that the US is “not leaving the Afghan people.”  He said the US is “committed to the people of Afghanistan. We – the hard-won gains of the Afghan people over the past 20 years, the amount of suffering that the Afghan people have endured over the past 40 years, this – these are gains that we are going to do everything we can to help preserve.” Price suggested that the US will continue its diplomatic efforts. Price admitted that the US will not be helping all the Afghan interpreters who want to leave their country due to safety concerns, although the Administration is trying to shorten the 12-step SIV visa process.

NORTH KOREA

Recently, South Korean determined that its nuclear research center was believed hacked by North Korea. Price commented that “North Korea’s malicious cyber activities threaten the United States, they threaten our allies and partners, countries around the world. North Korea poses a significant cyber threat to financial institutions, it remains a cyber espionage threat, it retains the ability to conduct disruptive cyber activities as we’ve seen it do in recent years.” He called on the international community, including network defenders and the public, to stay vigilant and to work together to mitigate the cyber threat posed by North Korea. 

HAITI

The US is expecting to receive a formal request for defense equipment from the Haitian government and is standing ready to receive them, according to the State Department. The Spokesman declined to comment when asked about the possibility that one of the presidential assassins was an American.

IRAN

Iran recently hosted the Taliban and an Afghan official for talks concerning the conditions in Afghanistan. When asked by a reporter about the talks, the State Spokesman said “when it comes to the Iran-hosted talks, we’re of course aware that Iran has hosted a meeting between the Taliban and the Islamic Republic negotiating teams. This is what we’ve always said, that Afghanistan’s neighbors and countries in the region, they too have a stake in Afghanistan’s future.” Price added that the US is neither hopeful nor pessimistic about Iran’s involvement. He added that Washington hopes Iran acts responsibly.

CHINA

Kurt Campbell, the Biden Administration’s Indo-Pacific Coordinator, said that any Chinese move against Taiwan would be catastrophic and that this administration is sending a clear message of deterrence. China’s Foreign Ministry, according to Price, responded by warning the US to “tread carefully” on this issue. Price added that the United States will “continue to support a peaceful resolution of cross-strait issues, consistent with the longstanding wishes and the best interests of the people on Taiwan.” He noted that Washington has repeatedly urged Beijing to cease its military, its diplomatic, its economic pressure against Taiwan and instead to engage in meaningful dialogue with Taiwan.   

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When asked if the Biden Administration supports China’s decision to curtail freedom of political expression when it comes to social media groups, such as WeChat, Price would not condemn the Chinese decision but instead delivered a vague answer saying that “Freedom of expression is something that we protect and that we promote around the world. The right of people everywhere to live in safety and security is also something we believe deeply in. When it comes to US social media companies or internet service providers, I’d have to refer you to them to speak to their policies.” The Biden Administration has consistently avoided strong actions against China, instead opting for language suggesting that change is needed. To date there is no change coming out of Beijing in response to Washington.

REPORTER VS. STATE DEPARTMENT SPOKESMAN

During the Tuesday press briefing a reporter attempted several times to obtain a response from the Department Spokesman concerning false stories coming out of the Administration, claiming it had not gone back on agreements concluded by the Trump Administration. Below is the verbatim text of the back-and-forth repartee. If US foreign policy continues to be based on reversing the stabilizing policies of the previous administration, the American people can expect to witness additional violence in the future.

MR PRICE: Yes, we changed quite a few U.S. policies across a number of fronts, but I think you would be hard-pressed to find an international agreement that the United States signed on to during the last administration that this administration has jettisoned, done away with. This is the point that we have made in any number of different — 

REPORTER’S QUESTION: How about the Geneva protocol on the anti-abortion stuff?

MR PRICE: This was the point that we have made on any number of steps about the importance of the durability of American foreign policies – American foreign policy across administrations.

REPORTER’S QUESTION: How about the agreements with the Northern Triangle, with Mexico and the Northern Triangle? Those are international agreements that you guys jettisoned. I mean, you just challenged me to come up with an international agreement that the previous administration signed that you guys have walked away from, and I just gave you, I think, three.

MR PRICE: The previous administration had its own policies. This administration has different policies across a number of fronts.

DARIA NOVAK served in the United States State Department during the Reagan Administration, and currently is on the Board of the American Analysis of News and Media Inc., which publishes usagovpolicy.com and the New York Analysis of Policy and Government.  Each Saturday, she presents key updates on U.S. foreign policy from the State Department.

Illustration: Pixabay

Chinese intelligence assets in America resemble a “large school of fish swimming freely in the sea gobbling up bits of food.” That is how one Chinese official described its covert activities inside the United States. China’s influence operations have long tenacles and run deep inside the corridors of power in Washington and among the Biden Administration’s inner circle. Having close business links to the communist state improves Beijing’s ability to influence US policy, even when the official is a US patriot and not intentionally aiding China’s efforts. In recent decades Beijing has been much more successful at creating “old friends” with American officials than the Soviet Union was during the Cold War era. China’s aim today is to penetrate, compromise, and use leverage to achieve the communist giant’s long-term goals. So, who are these individuals with links to China and what positions of influence do they hold in Washington?

After the election when the Biden Administration was searching for Cabinet Members, William Burns’ name was discussed as a possible Secretary of State. He previously served as head of the liberal-leaning Carnegie Endowment for International Peace (CEIP) and as a US Ambassador to Russia. Last fall a Russian publication, Kommersant, cited sources inside the “state structure” of the Russian government as saying that Burns would “be the most advantageous for Moscow of all the five cited” at the time for the Secretary of State Cabinet position. Burns later was named Director of the Central Intelligence Agency. His China connection, among others, includes getting CEIP programs, according to media reports, underwritten with up to $2 million from Chinese Communist Party-tied businessmen and think tanks. It is a connection but below the level of a conviction. Beijing knew that too overt a tie would take Burns out of the running.

President Biden chose Tony Blinken instead as his Secretary of State. He also is tightly-linked to Beijing having co-founded WestExec Advisors, a consultancy that aids corporations and academic institutions in pursuing their interests in China. One versed in Chinese relationship building knows that business consulting “friendships” in China are defined by their give and-take nature. We may never know how Blinken balanced his relationship debts to his Chinese business colleagues. Blinken also served as the managing director of the Penn Biden Center, which is backed by the University of Pennsylvania. 

The University, it appears, received anonymous funding from China that runs into the 10’s of millions of dollars, which represents a very large increase over the range of its previous donations. Again, a strong connection to China but not a conviction of Blinken. Biden’s National Security Advisor Jake Sullivan, Mira Rapp-Hooper who serves as the senior advisor on China on the State Department’s Policy Planning staff, and Undersecretary of Defense for Policy Colin Kahl, all served as strategic consultants at the Penn Biden Center.

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According to the Project on Government Oversight, Kurt Campbell who was selected to serve as Biden’s Asia “Czar,” also has deeply troubling China connections. His twice amended Form 278 Public Financial Disclosure Reports were submitted incomplete. What is known is that he served on Board of the Chinese-funded Confucius Institute, which was shut down in part for spying activities inside the United States. He also worked with The Asia Group (TAG), a “shadow lobbying” firm that operates in DC just below the level requiring registration. TAG helps companies navigate Asian and Chinese political relationships. A spokesperson for TAG admitted to POGO, a government watchdog organization, that “The Asia Group is a strategic advisory firm that focuses on US companies seeking access to and leveling the playing field in the countries of the Indo-Pacific.” During the transition in January Campbell served on the National Security Council as the deputy assistant to the president and coordinator for Indo-Pacific affairs, making him the most senior official inside the White House crafting American trade and economic policies toward China,” according to Biden transition team officials at the time. Not enough to convict but again it raises serious questions.

The list of Chinese connected officials inside the inner circle of the Biden Administration is longer than space permits. A few other Biden officials include Thomas Zimmerman, a Special Assistant to the President for Presidential Personnel was at the Shanghai Academy of Social Sciences, which the FBI has identified as having close ties to China’s spy agency. Biden’s United Nations Ambassador Linda Thomas-Greenfield who often speaks favorably about China, including at a recent Confucius Institute event, was a senior vice president at the Stonebridge Group. This Washington, DC strategic advisory firm identifies China as its “largest single country” group. The head of the Stonebridge Group previously worked for the Chinese government.

According to Ben Weingarten, a Fellow at the Claremont Institute, “The CCP touches these individuals and institutions through developing direct relationships, lavishing money on them and leveraging dupes, useful idiots and witting assets of the CCP.” The President and his immediate family also have known, close financial ties to China. Perhaps, not enough to convict, but it warrants scrutiny given Chinese President Xi Jinping and the CCP’s operating style and stated goal to make China the dominant Middle Kingdom of the 21^st century.