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Presidential Pardons: Obama Picks Up The Pace On Commutations

Presidential Pardons: Obama Picks Up The Pace On Commutations

Reprinted with permission from ProPublica.

Near the start of his second term, President Obama had granted clemency at a lower rate than any president in recent history. He had pardoned 39 people and denied 1,333 requests. He had used his power to commute a prisoner’s sentence just once.

But as Obama enters the final days of his administration, he has dramatically picked up the pace. He’s now issued commutations to 1,176 people since entering office — more than George W. Bush, Bill Clinton and Ronald Reagan put together. In December, Obama commuted the sentences of 231 people in a single day.

Much of Obama’s increased activity can be attributed to an initiative begun in 2014 to shorten sentences of non-violent offenders who would likely have received less time for their crimes under current law and who had already served at least 10 years of their prison sentences. Low-level drug offenders have received most of the commutations, part of a broader push by the administration to reform sentencing guidelines.

“Historically, clemency has been used to heal national wounds after a war,” said Mark Osler, a law professor at the University of St. Thomas in Minnesota who started the first federal commutations law clinic. “There was a big batch of grants during and after the Civil War, after World War I, World War II, the Korean War, the Vietnam War — and in a way, Obama is doing it after the War on Drugs.”

While Obama’s commutation numbers have accelerated, they do not, as the White House has put in press releases, exceed those of the last 11 presidents combined, Osler pointed out. Gerald Ford put together a clemency board in 1974 specifically looking to pardon Vietnam War draft dodgers. In just a year, the board reviewed 31,500 petitions and recommended clemency for 13,603.

Presidents have broad power to forgive federal offenses. Pardons and commutations don’t erase convictions, but pardons “forgive” a crime and can restore rights such as voting and remove hiring barriers. Commutations reduce sentences but do not restore rights such as voting.

To determine who receives clemency, Obama, like his predecessors, relies on recommendations from the Office of the Pardon Attorney, the arm of the Justice Department that reviews applications. A would-be petitioner is eligible for a pardon after a five-year waiting period and must fill out a lengthy petition. Clemency petitions makes their way through seven different layers of review and four separate federal buildings. As he’s granted almost 1,200 requests for commutations, Obama has denied 14,485, according to Department of Justice statistics.

It’s a slow process that’s not designed to handle the current federal prison population, said New York University School of Law professor Rachel Barkow, who serves as a member of the U.S. Sentencing Commission. That’s one reason Obama’s clemency push has fallen short of Ford’s.

“I think he tried to use the existing structure to do something that really hadn’t been done before, and it think the structure just struggled,” Barkow said. “There’s not enough people to deal with it, there was too much bureaucracy and it shouldn’t be in the DOJ. It’s asking too much to ask prosecutors to rethink what they already did.”

Paul Larkin, who directs the Heritage Foundation’s project on criminal law, suggested that Obama first tried to address the problem of mandatory minimums by sending guidelines through Congress. The legislative efforts resulted in the 2010 Fair Sentencing Act, which increased the thresholds of drug amounts to trigger mandatory minimum sentences.

But the act didn’t apply retroactively, so Obama has turned to clemency.

“He waited until way too late to start,” Larkin said. “He should have started right then and there exercising his clemency power.”

Larkin, too, suggested moving the clemency process out of the Department of Justice — away from prosecutors who brought cases against the petitioners in the first place — and putting it in the White House, headed by the vice president.

Obama pardoned 78 people one day last month, but has still issued fewer pardons than his predecessors. Likely, Osler said, the pardon attorney’s resources have been taken up with commutations. Obama also has so far sidestepped pardon requests for Edward Snowden and Chelsea Manning, the most politically charged cases likely to cross his desk. He has given no indication that he’ll grant pardons to either.

The pardons process came under scrutiny in a 2011 ProPublica investigation which found that white applicants seeking presidential pardons were four times as likely to get them as minorities, even when applicants had committed similar crimes. An analysis of about 500 pardons issued during the George W. Bush’s administration found that advocacymade a difference, especially by those with political connections. Support from a member of Congress substantially increased the chance of a pardon.

In one case, our investigation found, the former Pardon Attorney, Ronald Rodgers, had left out crucial evidence in his recommendation to the Bush administration to deny one petitioner’s appeal for a commutation. Rodgers was replaced as pardon attorney and the prisoner’s sentence was commuted in 2014.

After ProPublica’s investigation, the Department of Justice funded a study to examine the role of race in the pardons process. The results were supposed to have been released in 2015. DOJ officials did not respond to multiple requests for comment about the status of the study, saying only that new pardons data was under review and “a report should be available in fall 2017.”

The incoming Trump administration seems unlikely to continue Obama’s push to commute sentences of low-level drug offenders. Alabama Sen. Jeff Sessions, Trump’s pick to head the DOJ, has vocally supported mandatory minimums and harsh drug laws. Trump spokeswoman Hope Hicks did not respond to a request for comment.

IMAGE: U.S. President Barack Obama speaks to reporters during his visit to the El Reno Federal Correctional Institution outside Oklahoma City in this July 16, 2015 file photo.  REUTERS/Kevin Lamarque/Files

Justice Department Charges NSA Contractor Stole Secret Data

Justice Department Charges NSA Contractor Stole Secret Data

By Julia Edwards

WASHINGTON (Reuters) – A National Security Agency contractor has been arrested and charged with stealing highly classified information, authorities said on Wednesday, a data breach that could mark a damaging new leak about the U.S. government’s surveillance efforts.

Harold Thomas Martin, 51, who worked for Booz Allen Hamilton, was taken into custody in Maryland in August, said a U.S. official, speaking on condition of anonymity. Booze Allen is the consulting firm that employed Edward Snowden when he revealed the collection of metadata by the NSA in 2013.

Booz Allen said in a statement that when the company “learned of the arrest of one of its employees by the FBI,” they immediately fired the employee and offered full cooperation to the FBI.

The same month Martin was arrested, some of the NSA’s most sophisticated hacking tools were dumped onto public websites by a group calling itself Shadow Brokers.

The company’s stock was down 3.7 percent to $30.33 a share, following the report.

The U.S. Justice Department charged Martin, who had top secret national security clearance, with theft of classified government material, according to a criminal complaint unsealed on Wednesday.

Word of the arrest followed a New York Times report that the Federal Bureau of Investigation was investigating whether he stole and disclosed highly classified computer “source code” developed to hack into the networks of Russia, China, Iran, North Korea and other countries.

It was the latest disclosure of details of cyber spying by the U.S. government since Snowden stole and released a vast trove of documents that exposed the reach of the NSA’s surveillance programs at home and abroad. It comes at a time of growing concern over the cyberhacking of federal agencies and American political parties.

According to the complaint, documents found in Martin’s possession contained sensitive intelligence.

“These six documents were produced through sensitive government sources, methods, and capabilities, which are critical to a wide variety of national security issues,” the complaint said. It said Martin had the ability to access U.S. government property that was not permitted to leave its authorized location.

Martin’s lawyer could not immediately be reached for comment.

The Justice Department’s chief national security prosecutor, John Carlin, declined to comment on the specifics of the case.

He said, however, that insider threats have long posed a challenge to the government.

“I’m sure the trusted professionals I work with across the community will take a hard look at anything they can learn from this case, whether it’s about contractors or other issues to see whether they can better defend our systems from others who might try to steal from them,” Carlin said in an interview on CSPAN.

Martin faces up to 10 years in prison if convicted on the most serious charges.

The leak of the NSA hacking tools coincided with U.S. officials saying they had concluded that Russia or its proxies were responsible for hacking political party organizations in the run-up to the Nov. 8 presidential election. The Russian government has denied involvement.

Eric Holder Has Changed His Mind About Edward Snowden

Eric Holder Has Changed His Mind About Edward Snowden

A year after leaving office, former U.S. Attorney General Eric Holder is singing a different tune about Edward Snowden, the former National Security Agency contractor who leaked 1.7 million documents back in 2013 and exposed alarming details about the government’s surveillance methods abroad and on its own citizens.

Holder was the head of the Justice Department when the leak occurred. Back then, he maintained that Snowden had to return home and plead guilty, and that the Obama White House was not willing to consider “the notion of clemency.”

But now it seems that Holder has changed his mind. In a conversation with David Axelrod on The Axe Files podcast, which is produced by CNN and the University of Chicago Institute of Politics, Holder said that while he still believes Snowden’s actions and the way he carried them out were “inappropriate and illegal,” he thinks that Snowden deserves some credit for shining a light on secret surveillance techniques that he did not even know about, and starting a debate about the importance of individual privacy.

“I think that he actually performed a public service by raising the debate that we engaged in and by the changes that we made,” Holder told Axelrod.

Holder stated that Snowden should still come back to the U.S. and stand trial, but that any future judge should take the “usefulness of having had that national debate” into account when deciding on a sentence.

Snowden joined the discussion on Twitter to comment on Holder’s change of heart by highlighting the different stands the government has taken on the leak throughout the years:

The whistleblower, who has lived in Russia under political asylum since 2013, faces espionage charges that could hold a punishment of up to 30 years.
Snowden appeared via video at an event at a University of Chicago Institute of Politics, which produces the Axes Files podcast, earlier this month and said he has always wanted to come back to the U.S. and make his case to a jury, but only if the government guarantees a fair trial. For Snowden, a “fair trial” means being allowed a public interest defense, which is not currently allowed under the Espionage Act.
Excerpt: ‘Rogue Justice: The Making Of The Security State’

Excerpt: ‘Rogue Justice: The Making Of The Security State’

The War on Terror has transformed the Department of Justice into an arm of the intelligence community— hijacking an institution charged with upholding the Constitution and the rule of law and using it as legal cover for mass surveillance and torture. No one has detailed that monumental shift in policy like Karen Greenberg, Director of the Center on National Security at Fordham’s School of Law. Greenberg’s Rogue Justice is a deeply-reported expose of the architects of the War on Terror at every level of government. What follows is an exclusive excerpt from the book:

The most unusual thing about the case argued in federal court in Providence, Rhode Island, on June 19, 2008, was not that the court convening it, the FISA Court of Review, had met only once be­fore in its thirty-year history. It wasn’t the way technicians had swept the room for bugs and cut it off from the Internet, turning Court­room 3 temporarily into a Sensitive Compartmented Information Facility (SCIF). It wasn’t the briefcases full of classified informa­tion that the three Justice Department lawyers had physically held on to for the hours-long trip from Washington, or even the intrigue surrounding their journey, which had led at least one of them to lie to his wife about his destination that day. And it certainly wasn’t the argument itself, in which a government lawyer once again asserted that the war on terror could not be fought without restricting Fourth Amendment rights, while his opponent countered that to take away civil liberties in the name of national security was to compromise the very principles for which the war on terror was being waged.

No, the strangest thing was that the lawyer worrying over constitutional rights, Marc Zwillinger, was not from the ACLU or the Center for Constitutional Rights; nor was he representing de­tainees or tortured prisoners. Instead, he represented a large Ameri­can corporation: the Internet company Yahoo! The issue at hand was a government order forcing Yahoo! to “assist in warrantless surveillance of certain customers” by turning over records of their communications. Yahoo! had so far failed to comply with this order, a defiance that was about to cost the company $250,000 a day in fines. But Zwillinger’s argument in court that day wasn’t about the cost or difficulty of supplying the government information about the private communications that passed through its servers in Califor­nia. And it was only a little bit about the consequences to its bot­tom line should its customers discover the breach. Mostly Yahoo!’s objection rose above petty corporate interests and invoked the basic principles of American jurisprudence. The government, Zwillinger told the three-judge panel, was compelling his company “to partici­pate in surveillance that we believe violates the Constitution of the United States.” It was refusing to supply the data on principle. It was evidently one thing for a corporation to amass huge amounts of data on its customers to sell to other corporations—which was, after all, Yahoo!’s business model—and another for that company to be required to provide its information to intelligence agencies. But while the court at least listened to the constitutional argu­ment, it wasn’t buying it. In August, it upheld Walton’s decision. The bar for domestic surveillance might once have been high, but that was before 9/11, the Patriot Act, and the Protect America Act, and, wrote Judge Selya, “that dog will not hunt” any longer. “The inter­est in national security is of the highest order of magnitude,” he ex­plained. So long as the “purpose involves some legitimate objective beyond ordinary crime control,” he continued, there is a “foreign intelligence exception to the Fourth Amendment’s warrant require­ment.” Under this reasoning, the president’s authorization “at least approaches a classic warrant” and thus preserves enough of the in­tent of the Fourth Amendment to be considered constitutional. It would be another five years before Americans—including, pre­sumably, Judge Selya and Solicitor General Garre—were alerted by Edward Snowden to how misplaced their trust was.

Adapted from ROGUE JUSTICE: THE MAKING OF THE SECURITY STATE Copyright © 2016 by Karen Greenberg. Published by Crown Publishers, an imprint of Penguin Random House LLC.