Colonel Shane Cohen, the third military judge to preside over the 9/11 military commission at Guantanamo, left the bench on April 24, but not before compounding the tribunal’s erroneous approach to whether and when violence between the United States and al Qaeda rose to the level of an armed conflict. This “hostilities question” is the lynchpin of the military commission’s personal and subject-matter jurisdiction, and it forms an element of each offense triable by military commission. Simply put, without a determination that the United States and al Qaeda engaged in an armed conflict on or before September 11, 2001, the military commission could neither try nor convict the defendants in the United States v. Mohammad et. al. case.
Shortly before leaving the bench, Colonel Cohen completed a three-year evolution, involving both of his predecessors, resolving that the hostilities question is simultaneously a non-justiciable political question for pre-trial purposes and a mixed question of fact and law, subject to the Tadić standard, to be determined at trial.
The military commission’s dichotomous approach to the hostilities has the benefit of being jurisdiction preserving. It defers the fact-intensive inquiry into whether and at what point the armed violence between the United States and al Qaeda was sufficiently intense, and al Qaeda sufficiently organized, to constitute a non-international armed conflict. But the military commission’s approach is also fundamentally incoherent and incorrect in law. And, in preserving its own jurisdiction, the tribunal has elected to pick-and-choose among political acts, ignoring contrary political acts that cut against its jurisdiction, and worryingly settling on one so late in time—so divorced from contemporaneous legal consequences that give acts jure belli significance in the first place—that it smacks of revisionism and injustice.
Who Cares about Armed Conflicts?
It is easy to lose sight of the fact that the military commissions at Guantanamo Bay are war-time tribunals, established to adjudicate violations of the laws of war. The military commissions’ personal and subject-matter jurisdiction—and the culpability of the defendants—all turn on the question of whether and when “hostilities” existed between the United States and al Qaeda. The 2009 Military Commissions Act (MCA) defines “hostilities” as “any conflict subject to the laws of war.” In other words, “hostilities” under the 2009 MCA and “armed conflict” are identical terms. In the 9/11 case, the defendants are alleged to be members of al Qaeda, a non-state armed group; so, for purposes of that case, “armed conflict” necessarily means “non-international armed conflict.”
So, the question of whether or when the United States and al Qaeda engaged in a non-international armed conflict is of at least threshold importance to all the Guantanamo military commission cases. In the 9/11 case, as in the U.S.S. Cole case, the hostilities question takes on especial significance because the defendants’ alleged conduct took place before the United States invaded Afghanistan on October 7, 2001 and before the terrorist acts of September 11, 2001. Thus, to convict the defendants at trial, the prosecution must prove beyond a reasonable doubt both that the United States and al Qaeda were engaged in a non-international armed conflict and that the defendants’ conduct took place in “the context of and associated with” that armed conflict. Consequently, the prosecution has implausibly argued that the U.S.-al Qaeda armed conflict began with bin Laden’s “declaration of war” on August 23, 1996 or no later than when the United States briefly bombarded supposedly al-Qaeda-associated targets on August 20, 1998.
Through a series of decisions on personal jurisdiction beginning in 2017 and culminating in the AE502UUUU Ruling on March 25 of this year, the 9/11 military commission has resolved that the hostilities question is both (1) a non-justiciable political question for purposes of personal jurisdiction; and (2) a question of fact to be resolved by the panel (a sort of jury) at trial under the Tadić standard in light of evidence adduced at trial for purposes of subject-matter jurisdiction and culpability. The Tadić standard, developed by the International Criminal Tribunal for the former Yugoslavia, established a fact-intensive, two-pronged analysis of (a) the intensity of a conflict and (b) the organization of the parties to determine whether there existed protracted, organized armed violence sufficient to constitute a non-international armed conflict (see para. 70, here). The military commission’s inconsistent position relies on a misperception, at odds with law of armed conflict jurisprudence, that courts are incompetent to assess the existence or not of an armed conflict.
How the 9/11 Military Commission Got into this Mess
The 9/11 military commission’s decision in AE502UUUU that the existence of an armed conflict, for purposes of personal jurisdiction, is a non-justiciable political question represents the last stop of a confusing, three-year journey. In 2017, defendants Mustafa al Hawsawi and Ammar al Baluchi both challenged the military commission’s personal jurisdiction, arguing that the United States and al Qaeda were not engaged in an armed conflict prior to 9/11. In the wake of the Court of Military Commission Review’s interlocutory appellate decision in the Nashiri case, the military commission determined that the hostilities-based personal jurisdiction challenge must be resolved before trial and ordered an evidentiary hearing to do so. (See Marty Lederman and Steve Vladeck’s Just Security article for a discussion of the history of the Nashiri decision and its treatment of subject-matter jurisdiction.)
Despite the similarity of their ultimate arguments, Mr. Hawsawi and Mr. al Baluchi took very different approaches. Whereas Mr. Hawsawi argued, essentially, the absence of an armed conflict as a matter of law, Mr. al Baluchi intended to take a fact-based approach to demonstrating the absence of an armed conflict prior to the United States’ invasion of Afghanistan on 7 October 2001. Based on the difference in their approaches, Mr. Hawsawi and Mr. al Baluchi produced markedly different witness lists—Mr. Hawsawi sought examination of a single expert witness; Mr. al Baluchi sought examination of more than 100 fact witnesses. As a result, the military commission bifurcated the evidentiary hearing, taking testimony with respect to Mr. Hawsawi in December 2017 but reserving proceedings with respect to Mr. al Baluchi. For its part, the prosecution put on two FBI agent witnesses in an effort to satisfy a fact-based, Tadić-like standard for the existence of hostilities based on the panel instructions from the 2008 Hamdan military commission.
In April 2018, the military commission (Military Judge Pohl, presiding) denied Mr. Hawsawi’s motion. In its ruling, the tribunal determined Congress’ use of the term “laws of war” in the 2009 Military Commissions Act to be ambiguous. Based on that supposed ambiguity, the military commission resorted to the Act’s legislative history and found that, because Congress intended that the 9/11 defendants be tried by military commission, the military commission must have personal jurisdiction over the defendants. Thus, whatever the meaning of “hostilities,” it could not preclude the existence of an armed conflict between the United States and al Qaeda prior to September 11. Moreover, the military commission determined that it owes “great deference” to the political branches’ repeated determinations that an armed conflict between the United States and al Qaeda exists presently.
In March 2019, as a result of a series of motions-to-compel hostilities-related discovery, the military commission (Military Judge Parrella, presiding) ordered briefing on whether the existence of hostilities, as a requisite common element of each crime under the Military Commissions Act, is a non-justiciable political question. All parties agreed that the existence of hostilities, as a common element of each crime under the Military Commissions Act, is not a non-justiciable political question. The military commission also adopted the Tadić test as the standard by which to determine the existence of hostilities in the course of the 9/11 trial and it suggested that the panel instructions from the Hamdan and Bahlul military commissions are faithful interpretations thereof. (It is worth noting that, at this juncture—and contrary to its previous ruling—the military commission found no ambiguity in the meaning of the “laws of war” as used in the Military Commissions Act.)
In April 2019, the military commission extended its personal jurisdiction determination respecting Mr. Hawsawi to the other four defendants. At that time, the military commission held that the 2009 Military Commissions Act itself represents a determination by the political branches that an armed conflict existed between the United States and al Qaeda “for some time before” 9/11, and that the tribunal owes “great deference” to the political branches’ in their foreign policy and national security decision making.
Mr. al Baluchi, who was never allowed to present his fact-based case demonstrating the absence of pre-9/11 hostilities, moved for reconsideration. But, in AE502UUUU, the military commission denied his request and ruled that, rather than merely owing great deference to political branch determinations, the military commission lacks competence to resolve the question of hostilities because—for personal jurisdiction purposes alone—it is a non-justiciable political question.
What’s Wrong with Deference?
The military commission’s deference to the political branches as to the existence of an armed conflict between the United States and al Qaeda is incoherent, incorrect in law, and unsupported by the history of American political acts vis-à-vis al Qaeda.
First, there is an inherent tension in the military commission’s position that the existence-of-hostilities question is a political question for personal-jurisdiction purposes but a question of fact for merits purposes. The discordance in these two approaches to the same question, within the same trial, is underscored by the military commission’s repeated adoption of the Tadić test for determining the existence of hostilities and its elaboration of that test in the form of panel instructions. Not only has the military commission repeatedly identified a judicially cognizable standard for determining whether and when hostilities between the United States and al Qaeda existed, it has done so within the very same decisions in which it decided that, for personal jurisdiction alone, the question is judicially unresolvable.
Second, American law does not require courts to defer to political branch determinations as to the existence of an armed conflict.
As an initial matter, the Constitution assigns to the political branches the responsibility of waging war and deciding whether the United States should go to or end a war by treaty, as a policy matter. The Constitution does not assign to the political branches the exclusive responsibility of determining whether or when a war or armed conflict exists. In one way or another, throughout American history, courts have been called on to assess the existence or not of an armed conflict and U.S. courts have not shrunk from this responsibility. In making those determinations, courts have looked to political acts as evidence of the existence of an armed conflict just as they have looked to tangible or objective indicia of war. In some circumstances, contemporaneous political acts, supported by tangible facts, have provided conclusive evidence of the existence of a war. But it has not been the practice of American courts to accept belated political acts as the definitive answer on the earlier existence of a war or armed conflict.
Of course, U.S. courts accord the political branches wide deference in their conduct of foreign relations but, as Justice Brennan observed, writing for the majority in Baker v. Carr, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” In Baker, the Supreme Court’s seminal political question doctrine case, the Court, quoting from Coleman v. Miller, explained that “‘In determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.’” The Baker Court specifically identified the “date or duration of hostilities” as a category of question that does not necessarily escape judicial review.
In reviewing earlier episodes in which it avoided making determinations as to the date or duration of hostilities, the Court in Baker identified “isolable reasons for the presence of political questions, underlying this Court’s refusal to review the political departments’ determination of when or whether a war has ended. Dominant is the need for finality in the political determination, for emergency’s nature demands ‘[a] prompt and unhesitating obedience.’” But the Court warned that “deference rests on reason, not habit.” And, more importantly, the Court determined that “clearly definable criteria for decision may be available. In such case the political question barrier falls away: ‘[A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. … [It can] inquire whether the exigency still existed upon which the continued operation of the law depended.’”
In the context of the 9/11 military commission, the question is not whether or when a war ended but whether or when an armed conflict existed. Indeed, the question for the military commission is whether from August 23, 1996 to October 7, 2001, a period in which the United States failed to use force against al Qaeda on 99.95% of days, the United States and al Qaeda were engaged in an armed conflict. The judicial policy impetus for deference to the political branches—that the need for war powers may persist after the end of active hostilities (see Baker)—simply is not present when the government seeks to retroactively identify an armed conflict in a period in which it used none of its war powers.
More to the point, the military commission itself has not only already identified “clearly definable criteria for deci[ding]” whether an armed conflict existed between the United States and al Qaeda prior to September 11, 2001—the Tadić standard—the military commission has applied those criteria in rendering decisions (here and AE642N Order, issued in February but not yet available on the military commission’s website) on the discoverability of evidence in the government’s possession.
Moreover, the case law that purportedly supports the position that the existence of a war or armed conflict is a political question simply does not do so. Historically, U.S. courts have engaged with the question of whether an armed conflict or war existed across a diverse range of legal disciplines. Indeed, neither of the two cases—Johnson v. Eisentrager and The Prize Cases—cited for the proposition that the existence of war is a non-justiciable political question come close to that holding.
The Johnson Court did not consider—or, more to the point, did not refuse to consider—whether the United States was at war during World War II, nor did it express any opinion about its authority to entertain that question. The war’s existence was simply not at issue in that case. Instead, the passage of the Johnson opinion cited for the non-justiciability of determinations of the existence of an armed conflict addresses only whether “the presence of the military forces of the United States in China at the times in question was unconstitutional or, if lawfully there, that they had no right under the Constitution to set up a Military Commission on Chinese territory.” The Court answered that it is not the role of the judiciary to examine “the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region.”
The Prize Cases is more instructive. In that case, the Court was actually called to consider the existence of a war or armed conflict in order to determine the lawfulness of President Lincoln’s blockade. The Court explained that “[t]o legitimate the capture of a neutral vessel or property on the high seas, a war must exist de facto.” And, rather than describing the question as non-justiciable, the Court determined to “enquire whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force.” The Court even defined war.
As was the case in Johnson, it was not determining the existence of a war that was beyond The Prize Cases Court’s consideration, but the propriety of policy choices concerning the armed conflict, including whether to recognize the belligerency of rebels or insurrectionists. Instead, the Court accepted its responsibility to determine the existence in fact of a war between the United States and the rebels. Indeed, Justice Grier posed the existence of a war as a threshold question to the lawfulness of the blockade: “Let us enquire whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force.” After defining war as the “state in which a nation prosecutes its right by force,” he foreshadowed modern analysis of non-international armed conflict by explaining that:
A civil war is never solemnly declared; it becomes such by its accidents — the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war.
… As a civil war is never publicly proclaimed, eo nomine against insurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and to know.
The true test of its existence, as found in the writing of the sages of the common law, may be thus summarily stated: ‘When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.’
In that light, Justice Grier took foreign declarations of neutrality to be ipso facto evidence of a war between the United States and the rebels. And, Grier held that “Whether the President in fulfilling his duties, as Commander in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him … ‘He must determine what degree of force the crisis demands.’” Thus, “the proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.”
Significantly, Grier reasoned that Lincoln’s imposition of a blockade was both justified by the existence of war, as demonstrated by tangible facts, and conclusive evidence of that war. The President could not enforce a blockade—could not use the rights of a belligerent—against an American state if that state were not engaged in insurrection so intense it rose to the level of war. Nor would the President seek to use belligerent rights against an American state unless such a war existed.
Moreover, the United States’ recourse to belligerent rights vis-à-vis the states in rebel carried with it the legal effects of recognizing their belligerent status and conferring upon them the rights of belligerency, as well.
But examples of the competence of U.S. courts to resolve questions of armed conflict and peace are not limited to a handful of dusty if significant cases. Much like it did in the Military Commissions Acts, Congress directed courts to determine the existence or not of armed conflicts by including an act-of-war exception in the Anti-Terrorism Act. This exception limits compensation under the Act to terroristic acts occurring outside of an armed conflict and, thereby, requires courts to determine the existence or not of an armed conflict (see e.g. Kaplan v. Cent. Bank of the Islamic Republic of Iran). The same is true of courts martial and certain provisions of the Uniform Code of Military Justice that are subject to enhanced penalties during wartime.
Third, the 9/11 military commission’s decisions turn on deference to select political acts, unsupported by the broader history of American political decisions vis-à-vis al Qaeda. Throughout the rulings discussed here, the military commission defers to the 2009 and 2006 Military Commissions Acts (MCAs) as the relevant determination by the political branches than an armed conflict between the United States and al Qaeda predated the 9/11 attacks. But, in contrast to the blockade at issue in the Prize Cases, for example, the 2009 and 2006 MCAs are not contemporaneous policy choices made to address an extant emergency carrying contemporaneous legal effects. Instead, the 2009 and 2006 MCAs are ex post policy choices intended to bring about a particular end, which requires, rather than reflects certain legal circumstances.
In contrast to the situation before the 9/11 military commissions, the Prize Cases Court pointed to Lincoln’s blockade proclamation as evidence that the United States had employed its belligerent rights vis-à-vis the Confederacy by implementing the blockade and, therefore, an armed conflict existed as of the proclamation’s issuance. In this case, the military commission points to the October 2006 Military Commissions Act for the proposition that an armed conflict between the United States and al Qaeda preceded either the U.S. invasion of Afghanistan on October 7, 2001 or the terrorist acts of September 11, 2001. Of course, the 2006 Military Commission Act was enacted specifically to enable the prosecution by military commission of the five men on trial before the 9/11 military commission for that day’s terrorist acts. Thus, the military commission’s deference is simply the last segment in a tautology.
Moreover, in contrast to the Prize Cases, to the extent that the 2006 Military Commission Act expresses the political branches’ determination that an armed conflict between the United States and al Qaeda began prior to 9/11, it does so despite—not because of—contemporaneous facts. Prior to September 11, 2001, al Qaeda had attacked the United States twice, once in August 1998 and once in October 2000. The United States responded militarily to the August 1998 East Africa embassy bombings through a circumscribed expression of its inherent right to self-defense, but refused to use military force in response to the October 2000 U.S.S. Cole bombing.
Further—and as just one example of contrary political acts not acknowledged or discussed by the military commission—in the immediate aftermath of the U.S.S. Cole bombing, in reference to that terrorist attack, President Clinton expressly proclaimed the United States to be a nation at peace, which is to say, a nation not engaged in an armed conflict.
So, whereas the Court in the Prize Cases and even Johnson v. Eisentrager, referred to contemporaneous objective indicia of war that at least accorded with the political branches’ view, the military commission in the 9/11 case ignores contemporaneous objective facts as well as contemporaneous political acts. Thus, under the guise of deference, the military commission is anything but deferential—in order to preserve its own jurisdiction, it ignores the judgment of the President at the time in favor of that of his successors.
Worse, the D.C. Circuit already rejected the military commission’s specific view that the existence of hostilities between the United States and al Qaeda is a settled political question in In re Nashiri. In 2016, based on the debate within the Supreme Court’s Hamdan decision, the Court of Appeals for the D.C. Circuit found that “whether hostilities against al Qaeda existed at the time of Al-Nashiri’s alleged [pre-September 11, 2001] offenses, and whether Al-Nashiri’s conduct in Yemen took place in the context of those hostilities, are open questions.”
Conclusion: Rewriting History
In an apparent effort to preserve its own jurisdiction while proceeding towards trial, the 9/11 military commission has made a hash of its armed conflict jurisprudence. It has invested itself with incoherence, treating the existence of hostilities as simultaneously beyond its competence and subject to a well-developed, fact-based standard. Worryingly, it has preserved its own jurisdiction by cherry picking helpful ex post political acts unmoored from facts while ignoring contrary contemporaneous ones—and ignoring a superior court’s contrary determination. But most concerningly, in twisting its armed-conflict jurisprudence up, the military commission has lent its imprimatur to efforts to rewrite history and create, retroactively, armed conflict where there plainly was none. What confidence can future lawyers and courts have in the decisions of such a tribunal?
Editor’s Note: Benjamin R. Farley is a trial attorney and law-of-war counsel at the U.S. Department of Defense, Military Commissions Defense Organization and is assigned to the team representing Ammar al-Baluchi. The views expressed do not reflect the views of the Department of Defense, the United States Government, or any agency or instrumentality thereof.
Image – A sign reading, “Office of Military Commissions Expeditionary Legal Complex Guantanamo Bay, Cuba” stands close to where pre-trial hearings are being held for the detainees at the military prison on June 25, 2013 in Guantanamo Bay, Cuba. (EDITORS NOTE: Image has been reviewed by the U.S. Military prior to transmission.)
This was a Continuing Education course offered by Nationally recognized - West LegalEdcenter, entitled - "After the Bubble Bursts" which taught Lawyers with Lender clients how to defend the legal wave of mortgage and securities fraud lawsuits. The Content Partner for the course - The Boston BAR Association. The GUEST SPEAKERS brought in to help TEACH the course included - (1) THE US ATTORNEY'S OFFICE (MA); (2) THE MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL; and (3) NELSON MULLINS RILEY & SCARBOROUGH PARTNER - JEFFREY S. PATTERSON, Esq., who was former CO-COUNSEL with current Counsel - DAVID E. FIALKOW, Esq.,
Honourable Judge Goldstone & Honourable Judge Wolf, I have recently been acknowledged by the International Criminal Court #ICC for such a case against 7 “natural persons” (for now) for #warcrimes & #crimesagainsthumanity in #Australia.
I now await the #ICC further instruction.
There is NO AVENUE TO REMEDY IN AUSTRALIA!
The two judges explained that the lack of laws does not necessarily cause grand corruption, as there are “187 nations party to the United Nations Convention Against Corruption.”
“Almost all of them have laws prohibiting extortion, bribery, #moneylaundering, and #misappropriation of national resources.
They also have an #international #obligation to #enforce those laws against their #corrupt #leaders,” judges Goldstone and Wolf wrote.
The problem is, however, that “kleptocrats enjoy impunity in their own countries because they control the administration of justice,” and will not permit the prosecution and punishment of their collaborators and themselves.
“#Imprisonment of #corrupt #leaders will create opportunities for them to be #replaced by #honest #officials who are #dedicated to #serving #their #citizens.
It will also deter other kleptocrats tempted by ...
Whistle Blower of McCarthy & Holthus, “My job is to Create Title Where None Exists To Foreclose On Homes.”POWERS V. THE BANK OF NEW YORK MELLON ETAL·FRIDAY, APRIL 26, 2019117 ReadsWalk participants are approached and confronted by McCarthy & Holthus employees. Participants attempt to get the employees of the law firm to identify themselves, answer to the questions regarding false documents and the loss of so many homes, the employees declined to answer anything, even declining handshakes and peaceful introductions. The alleged attorney would not even give his name.“It is my belief that McCarthy & Holthus is creating documents to steal homes and unjustly enrich themselves!”, Whistle Blower continues to tell Powers and William Wagener.Powers was contacted privately with a message, “i think i can help your case.” and help this Whistle Blower has. This whistle blower helps all of us! Have you had McCarthy & Holthus/Quality Loan Service Corp. on your paperwork? Did they “create” documents to steal your home too?
Yesterday survivors of Financial Crimes gathered for a walk that started at The Can of Worms aka McCarthy & Holthus Lawfirmat 411 Ivy Street in San Diego California. Interesting fact, the building was once the county morgue! And their mail division is now in the basement where all the dead bodies were kept on ice. The building was also one that housed “First American Title Company” back in the day and our Charles Koppa told of having worked with the firm back then.William Wagener and Matt from the 28er’s filmed the walkand it was also covered by Rose Davis who writes for Indian Voices paper. Participants were treated very poorly by the law firm employees who confronted them. The employees were aggressive in behavior and the participants were not provoking them at all, employees who have no dress code other than not to dress like they work at a law firm. Powers was approached, while waiting for other walk participants to arrive, aggressively by a young woman with long brown hair, no make up and looking as if she were out running errands rather than working at a law firm. This young lady rudely insisted Powers give hername, though refused her name or title as an employee of the firm, and demanded Powers tell her what the people were all doing. Powers sees the women coming out of the back of the building heading their way in this photo.
Powers backed off surprised at the aggressive behavior stating she had no reason to have to answer to the young woman, but gave her name and said they were all taking a walk together. The young girl and 3 other women walked back into the building as if they had just met their opponents in agame, the employees created a hostile environment that could have been very peaceful on both sides if the employees had acted peacefully themselves.Powers asks, "so, you create documents to record here and those documents take thehomes?, employee says he did not say that, but he did not deny that is what is happening either. He did say, "we file documents here"...he is on video.As the group walked the direction of West Ivy 2 men and the same young woman who confronted Powers moments before came out. One of the men had a badge and it said Dave Owen(s) (on the left in the green shirt), he would not introduce himself but his badge identified him. He claimed to be in charge but would not answer further. As he was asked to please allow Powers to introduce herself both he and the second man refused.The second man (black shirt and jeans in above photo) who claimed to be an attorney for the law firm would not identify himself either, but did say that they
record documents from that location and wenton to give false claims of William not being able to film him in the public. (he ridiculously jumped onto the grass at the building to say he was standing on private property so he could not be filmed). William asked if they’d invite the participants in for coffee and to talk but that was declined. The group then began chanting slogans such as “Please quit stealing homes”. The group continued their walk and stopped at the back parking area (on the public sidewalk) of the building to discuss the remedy forthe crimes and the cases of Brashears v United States and Powers v BONYM et al. The two cases are for all people, including the hundreds of interested parties who have come forward. The information given is hard facts of the Financial Crimes and how the two cases are the First Impression cases that bring every case in America together. (there is a letter writing campaign that includes sending in a Form 95 for damages into these cases. www.facebook.com/events/630040930783307/Send in your letters and claim for damages and have your evidence seen and heard! Judge Carter will not be able to destroy any this time. )Homeowners and survivors of Financial Crimes are well aware of the fraudulent documents stealing our lands, estates, homes and lives. Well aware of identity theft, RoboSigning, cut and paste, back dating, MERS fraud and more. Homeowners are also aware that someone is paid to do these jobs and yesterday one paid to “create” a file to foreclose on homes, maybe even yours, came forward to tell all.Meeting and sharing with other survivors of the Financial Crimes is very healing for survivors.
We have a short segment to release and it is shocking truth. Will Foreclosure Mills survive the Whistle Blowers now coming forward apologizing and realizing their work led to the theft of homes? This information is going to Congresswoman Maxine Waters and the DOJ directly, stay tuned folks as the truth this Whistle Blower is sharingis enough to shut down the Mills and even the judges who know they are ruling “under the color of law with fraud upon the court presented”.Keep the Faith!(video of whistle blower and the walk will be uploaded and added soon!)www.disleague.com www.abolishthebankers.comWilliam Wagener YouTube: California 18 by Wagener: www.youtube.com/results?search_query=cal...+william+wagenerMore from Wagener: www.youtube.com/channel/UCxl2DRyoAJdd0kFz2z_E5dQThe 28er’s are working to end Bankers hold on America and you! 28ers.org/Photos Courtesy of Rose Davis/ www.indianvoices.net/
OFFICE OF INSPECTER GENERAL Renee Wyler complaint 1584643269858
March 19, 2020
My name is Darla Goulla,
I would like to add support to Renee Wyler complaint 1584643269858. Many Homeowners need support and are so beat down over repeated reports to CFPB, DOJ, FTC, Office of Inspector General.
I can share my own experience of filing a complaint previously with Office of Inspector General and NOTHING BECAME OF IT.
The Banks who have committed FRAUD know that we are complaining They are not concerned anything will become of our complaints, we are joining together and taking on the crooked banks and those who do nothing about our claims of MERIT.
If you need details of our claims see Rene Powers REMONSTRANCE.
Memo to National Association of Whistleblowers Newport Beach
Jayde Perera was aware of the FBI investigations into, amongst other things, complainants about his colleague Ms Jeannie Pakula, such as Mr Elliot Sgargetta. Perera's CEO Mr McGarvie informed the Victorian Liberl Party State leader and Counterterrorism Minister that he and Mr Howard Bowles were unaware of the US investigations even though Mr Perera and Ms Claire Marshall and Mr Howard Bowles were.
Vanessa Iococo at the legal services was the contact for Michael McGarvie and was aware of the FBI & SEC investigations into the Commonwealth Bank case that was prosecuted by President Obama's national security prosecutor Ms Eileen Decker. Was also aware of the Assoc Profssor Dr Doherty who's in Exhibit J at the US Secret Service in Sacramento and with the Governor from the hamlet that the lsbc was reported as 'spying on'. Was also aware of the US Organised crime task force investigations into Keila Ravelo's transnational narcotics ring that the lsbc was advised by Associate Professor Dr Doherty was not delusional. Ravelo was subsequently convicted and disbarred on the application of those the lsbc were - very informatively - 'spying on'. News reports say the Royal Commission into Mokbel figures may look at the legal profession too.
And Jamal Khashoggi's widowed fiancee will be at the Portugal Conference with the preeminent expert on those RICO laws that McGarvie claimed to his Opposition Minister for Counterterrorism & Police Robert Clark he was unaware of even though his files refer to the CBA and the Ravelo Racket.
By now, you may have read a myriad of articles on the mandatory requirement for public and large private companies to implement and publish a Whistleblower Policy by 1 January 2020.
But it wasn’t until ASIC released Regulatory Guide 270: Whistleblower Policies (RG270) in mid-November 2019, that the regulator’s expectations on how to comply became clear.
What’s also clear is just how much confusion remains on key elements such as what’s disclosable, what qualifies for the whistleblower (WB) protections, and how organisations are expected to manage communications.
This article busts some of the common myths that we’ve been hearing.
myth #1: We don’t have to provide WB protections if the disclosure doesn’t state that it is being made under the Whistleblower policy?
Remember that cliché, if it looks like a duck? Well the same applies to a WB disclosure.
If an ‘eligible discloser’ (such as an employee or a supplier), makes a disclosure about a ‘disclosable matter’ to an ‘eligible recipient’ (which may be internal or external) then they will qualify for WB protections regardless of whether the disclosure is marked or labelled with any special words.
A ‘disclosable matter’ relates to ‘misconduct’ or an ‘improper state of affairs’ in relation to an entity or its related bodies corporate.
This carries two inherent difficulties for companies:
‘Disclosable matters’ is intentionally broad to cover a wide range of matters that may affect organisations and some disclosures may prima facie appear not to be a WB disclosure. It may include circumstances or conduct that don’t break any laws.
An ‘eligible recipient’ is not just the authorised person identified in the WB policy. It can be an officer, a senior manager or even an auditor, in addition to a relevant regulatory body such as ASIC, APRA and the ATO.
To avoid an inadvertent breach of WB protections, we recommend:
Senior staff training – All senior management level employees (and above) should receive specific training to identify a WB complaint, and know their obligations when one has been disclosed;
Triage checklist – Have an easy to use checklist available to assist the recipient to assess the substance of the report and whether it qualifies for WB protections;
Referral process – If the receiver is unsure, have a clear procedure as to how the matter is to be referred, potentially for external legal advice, before the matter is dismissed.
myth #2: I’m being bullied by my boss. I’ll use the WB laws to make them pay.
WB policies do not cover personal work-related grievances such as interpersonal conflicts between team members or hiring decisions. The Act and ASIC do not regulate disputes that are purely employment related and this has not changed with the introduction of WB protections. In fact, there is a specific carve out.
A general rule of thumb for any employee is that if the matter only affects them as an individual then it will be unlikely to fall within WB protections, unless there is victimisation involved.
Companies need to take care in relation to what is known as a ‘mixed report’. For example, a disclosure that deals with a personal work-related grievance and includes information about a ‘disclosable matter’, such as:
allegations of misconduct – noting that misconduct is expressly defined in the Act as ‘fraud, negligence, default, breach of trust and breach of duty’;
breaches of commonwealth employment or other laws that are punishable by a period of imprisonment of 12 months or more;
reports of an ‘improper state of affairs or circumstances’ – this is intended to cover systemic issues that should be known by the regulator or may cause harm to the public (therefore not likely to cover workplace matters that only affect one individual).
Remember that complainants may be emotional, and the subject matter of the complaint may involve a multitude of things. It could take some time to unpack it and identify which issues are ‘disclosable matters’ and which ones are not.
We anticipate that very few workplace disputes will qualify for WB protections. Federal employment laws (except for the Work Health and Safety Act 2011 (Cth)) do not provide for criminal sanctions or terms of imprisonment. WB protections will apply to employees who make allegations of criminal misconduct such as fraud or sexual assault and any contraventions of the specified legislation such as the Act.
To avoid employees incorrectly using the WB policy to air personal work-related grievances, in addition to the earlier recommendations, we suggest that:
Companies update their ancillary HR policies to ensure there is cohesion between all relevant policies;
Choice of authorised ‘eligible recipients’ – When choosing who to name in your WB policy as a person eligible to receive WB complaints, think carefully about that person’s interpersonal skills and whether they are likely to be well-equipped for the role;
Senior staff training – Should include training on ‘mixed reports’ and identify the other tools (such as a Triage Checklist) available to them to assist in identifying whether these contain a ‘disclosable matter’ or elements of victimisation. Training should identify appropriate avenues and responses for different elements of a complaint, and the other applicable company policies that may need to be followed, if the WB Policy does not apply.
General awareness training – Staff at all levels should receive general awareness training of what is, and (importantly) what isn’t a matter to be dealt with under the WB policy. This may assist in curbing over-use of the policy.
myth 3#: I’m anonymous so I can say what I like!
Individuals can report anonymously under WB protections and are entitled to remain anonymous through the course of their disclosure.
On one hand, recipients of disclosures have positive obligations to:
Permit an individual to remain anonymous if they choose, including receiving complaints made via anonymous emails or letters;
Maintain the confidentiality of the discloser’s identity, including redaction of any information that may likely lead to their identification;
Ensure that no action is undertaken which may result in detriment to the discloser (e.g. Westpac’s alleged demotion of their compliance officer for advising the board of their failure to declare payments under anti-money laundering laws).
But this doesn’t grant free licence to the discloser to say what they like.
The Whistleblower is only eligible for protection arising from a legitimate WB disclosure. If their report is a ‘mixed report’, then WB protections may not apply to the entirety of their disclosures. False or vexatious disclosures will not receive the available protections, and could expose a discloser to liability or other consequences of any misconduct they have engaged in during their employment.
Given the time it can take to determine if a report is false, companies are far better to err on the side of caution before opening themselves up to criminal liability for failing to extend WB protections.
A breach of confidentiality for a legitimate WB discloser is an offence which may result in criminal liability.
Any WB Policy and staff training programs need to specifically address how confidentiality and anonymity will be retained.
myth #4: The Company can decide whether to communicate with Whistleblowers
WB disclosures that qualify for protection are required to be investigated and WB policies must stipulate how the investigation will proceed.
ASIC have now clearly communicated that (whenever possible) companies are encouraged to communicate with a discloser throughout the course of any investigation, including providing progress updates, and clarifying in the policy how investigation findings will be documented and reported (either internally or to the discloser).
Notably though, the Act does not require companies to continuously communicate with the discloser or provide them with updates on the investigation, particularly if this communication may jeopardise the confidentiality of the discloser or overall investigation.
Continuous communication with disclosers is a discretionary matter for each company to consider on a case-by-case basis. We do not recommend that companies enshrine such an obligation in a policy, as it may be impractical, and in some cases, may jeopardise an organisation’s ability to provide required protections.
As a practical matter, Companies should be aware that WB disclosers will expect action, and a failure to communicate with the discloser may result in an attempt to make the complaint external.
Do not enshrine communication obligations in a policy;
Setting expectations on how the investigation procedure will work (in each case) and the level of communication a discloser can expect to receive from the outset (following a disclosure) will help to mitigate the risk of further action;
Companies should keep a detailed record of each complaint and investigation undertaken so they can be prepared to respond to any enquiries from a regulator.
myth #5: The new laws mean that whistleblowers can go to the media or use social media to blow the whistle.
Disclosers will not be afforded WB protections if they go straight to the media.
To receive WB protections, a discloser must meet the requirements of the Act in relation to a ‘public interest’ or ‘emergency’ disclosure – meaning the discloser must:
have made a previous disclosure of the information to the company or other ‘eligible recipient’; and
have either:in the case of an ‘emergency disclosure’ reasonable grounds to believe that ‘the information concerns a substantial and imminent danger to the health or safety of one or more persons or the natural environment’; or
in the case of a ‘public interest disclosure’, the discloser has waited 90 days since their previous disclosure and has reasonable grounds to believe that no action is being taken, and that making a further disclosure is in the public interest;
notified the body to which the previous disclosure was made with sufficient information to ascertain the previous disclosure, and state that they intend to make a ‘public interest’ or ‘emergency’ disclosure under the Act;
make the disclosure to a journalist or a member of the Parliament of the Commonwealth, state or legislature of a Territory; and
disclose information that ‘must be no greater than what is necessary to inform the recipient’ of the improper state of affairs or misconduct (in the case of a public interest disclosure) or the substantial and imminent danger (in the case of an emergency disclosure).
Ultimately, a discloser will have to jump through these hoops before they can go straight to the media with a complaint. These reasonably high thresholds ensure that companies have an opportunity to take appropriate and measured responses to complaints, without being held to ransom by threats of premature public disclosure.
Ensuring that potential whistleblowers understand the types of disclosures that may receive protections, and in what circumstances, is an important feature of staff ‘general awareness’ training;
Consider whether your organisation’s social media policy needs to be amended and cross-refer to its WB Policy to guard against inappropriate use of social media;
Whistleblowers are recommended to follow the procedures identified in the WB Policy or contact the relevant regulator before resorting to a disclosure to the media.
If someone is adamant about making a public disclosure, we recommend seeking prior independent legal advice about how to access the legal protections available, or to understand the potential consequences if the protections do not apply.
WB policies were never intended to be a one size fits all policy and each company will need to adopt their own procedures that suit the needs of the company.
After 127 days of public hearings and dozens of high profile witnesses, a royal commission into turncoat gangland lawyer Nicola Gobbo is set to wrap up.
The inquiry into Victoria Police's use of Lawyer X as an informer will end on Friday, but will continue to investigate policy issues surrounding management of informers with legal obligations.
Commissioner Margaret McMurdo is due to hand down a report on her findings on July 1.
The inquiry has examined Ms Gobbo's three periods as a registered police informer.
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She was first recruited as a law student in 1995 when she turned on a former boyfriend for drug dealing.
In 1999 she was registered again while trying to offer police tips on fellow lawyers she accused of money laundering.
Her longest stint ran from 2005 until 2009 when she gave evidence against clients, including drug kingpin Tony Mokbel and underworld killer Carl Williams.
Ms Gobbo admitted she had acted as an agent for police instead of in the best interest of her clients.
"Was I accumulating information and, on one level, trying to impress people? Yes I was," she said.
"Do I regret it now? Yes. Every day."
The inquiry has heard from more than 100 witnesses, most of whom gave evidence in the public hearings.
Among them were former chief commissioners Simon Overland, Christine Nixon and Ken Lay, prominent gangland investigators including former Purana Taskforce boss Jim O'Brien and detective Stuart Bateson, and a number of handlers who directly managed Ms Gobbo and her tips.
Ms Gobbo was one of the last witnesses to give evidence, ordered to appear despite efforts to be excused on health grounds.
Crooks previously represented by Ms Gobbo - some who turned informer on her advice - also gave evidence.
Inspector John Nolan and former detective senior sergeant Shane O'Connell are expected to be the final witnesses on Friday, when lawyers will also make closing remarks.
Australia: TGIF: Out of the shadows: ASIC investigation of insolvent trading results in prison sentence for shadow director
19 February 2020
by Cameron Cheetham , Mark Wilks and Craig Ensor
Corrs Chambers Westgarth
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This week's TGIF considers ASIC's efforts to pursue enforcement action against three former directors of the Kleenmaid group, resulting in the first sentence of imprisonment for a 'shadow director'.
The Kleenmaid group was a whitegoods distributor, founded in 1980.
Administrators were appointed to the group in April 2009, at which point the group's debts amounted to approximately $96 million.
Shortly after, ASIC commenced an investigation into the group's affairs, focussing on three individuals who were or had previously served as directors: Andrew Eric Young, his brother Bradley Young, and Gary Collyer Armstrong.
In 2014, the three individuals were indicted on charges of fraud and insolvent trading in breach of section 588G(3) of the Corporations Act 2001 (Cth).
Notably, while Armstrong and Bradley Young were directors for all or part of the period during which the conduct occurred, Andrew Eric Young resigned as a director prior to November 2007. Regardless, he was an equal focus of ASIC's investigation, and was ultimately found by a jury in the District Court of Queensland to be a 'shadow director' within the meaning of the Corporations Act 2001 (Cth).1
This marks the first occasion on which a shadow director has been convicted and sentenced to prison for insolvent trading charges.
The District Court proceeding
ASIC's case against Andrew Young culminated with him being found guilty of nineteen offences, including:
seventeen counts of criminal insolvent trading in relation to debts exceeding $4 million (incurred after he had resigned); and
one count of fraud arising from dishonestly removing $330,000 from a company bank account, to an account of an unrelated entity from which he stood to benefit, two days prior to the appointment of administrators in April 2009.
Last week, Mr Young was sentenced to nine years with a non-parole period of four years in relation to the fraud offences and an additional three years for the insolvent trading offences to commence from his parole eligibility date, of which he must serve at least 12 months.
He will now join the other Kleenmaid directors who are serving similar lengthy sentences for fraud and insolvent trading offences.
ASIC's 'why not litigate'? mantra has been the subject of numerous headlines in the aftermath of the FSRC. Whilst those under the regulatory microscope have included the banks, financial planners & advisers, the pursuit in this instance serves as a warning to directors, executives and their advisors of the reach & 'new-found' conviction of the regulator.
Typically, a breach of the duty to prevent insolvent trading can lead to significant civil liability. The corporate veil is lifted, personal assets are at stake and reputations are on the line. However, it should not be forgotten that, should the incurring of the debt be considered dishonest, criminal penalties can apply under s588G(3).
Mr Young will now serve the next five years (at least) in prison.
Government's top lawyer knew about Gobbo's informer role in 2010, inquiry hears
By Tammy Mills
January 31, 2020 — 5.28pm
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The Victorian government’s head lawyer and the son of a former premier knew gangland barrister Nicola Gobbo was a police informer years earlier than he claims, Victoria Police’s chief lawyer has told a public inquiry.
Though John Cain, the son of the former Labor premier and the current state coroner, says he was “astounded” when he found out about Ms Gobbo’s secret role in 2015, Victoria Police’s legal services director Fin McRae has told a public inquiry Mr Cain would have found out in a series of high-level meetings years earlier.
Victoria Police legal services director Fin McRae arrives at the royal commission on Friday.
Victoria Police legal services director Fin McRae arrives at the royal commission on Friday. Credit:AAP
Mr McRae, in his second day giving evidence to a royal commission into Ms Gobbo’s use as Informer 3838, said it was an open secret among lawyers that one of their own was a registered informer.
Speculation was rife in 2010 because Ms Gobbo sued Victoria Police over their handling of her as a witness in a failed murder case against former drug squad detective Paul Dale.
Ms Gobbo had secretly taped a conversation with Mr Dale and that became the centrepiece of the prosecution's case.
“The whole of the criminal, legal community knew of her status by then,” Mr McRae said.
“The gossip around the bar and through connections was rife, an open secret that she was assisting police.”
His evidence shows the inquiry is focused not only on police, but the legal fraternity. Though it appears some of the state’s most experienced lawyers knew, it would take another eight years for the scandal to come out that Ms Gobbo had given police information about her own clients.
Mr McRae met with Mr Cain, then head of the Victorian Government Solicitor's Office, and Michael Strong, the director of the now defunct Office of the Police Integrity, in a briefing ahead of a settlement for the civil lawsuit with Ms Gobbo in 2010.
Lead Counsel Chris Winneke asked Mr McRae if at the meeting "it was discussed openly that she was an informer".
"Oh yes," Mr McRae replied.
In his statement to the commission, Mr Cain said he did not find out Ms Gobbo was an informer until 2015.
"I was completely astounded. I did not have any knowledge of this during my time as VGS [Victorian Government Solicitor]," Mr Cain said.
Mr McRae said Mr Cain must have forgotten he was told she was an informer, with the meeting focused on the mediation with Ms Gobbo for the case that is understood to have settled for just under $3 million.
“I’d spoken to John Cain – because this is a matter of such high public importance, that we’re proposing to settle a matter that involves a defence practitioner who has been a human source and it involves the government,” Mr McRae said.
He said the former Labor police minister Bob Cameron was briefed about Ms Gobbo and the settlement in 2010, but he didn’t know if he was told the lawyer was an informer.
Mr McRae backed away from his claim on Thursday he worked “relentlessly” to expose the scandal, but maintained on Friday that he did not find out Ms Gobbo gave up her own clients until 2012 and helped to kick-start a review into her use.
Lead counsel Chris Winneke QC said he had an “ample basis” to find out from the moment he knew she was an informer in 2010 and there had been suggestions the civil settlement was an attempt to hide Ms Gobbo’s role.
The public hearings continue next week with Ms Gobbo expected to give her highly anticipated evidence from Tuesday.
Ms Gobbo – whose current location is unknown – is arguing she should be able to give her evidence over the phone, and not over video, despite appearing in a recent television interview with the ABC’s 7.30.
An unimpressed head of the inquiry, Commissioner Margaret McMurdo, asked her lawyer Rishi Nathwani on Friday to find out from his client whether she planned to give any more interviews before she decides on Monday how Ms Gobbo will give her evidence.
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Tammy Mills is the legal affairs reporter for The Age.
33 Case 1:18-cr-00457-AMD Document 126 Filed 02/13/20 Page 33 of 56 PageID #: 1381 response to the investigation, HUAWEI and HUAWEI DEVICE USA made efforts to move witnesses with knowledge about HUAWEI’s Iran-based business to the PRC, and beyond the jurisdiction of the U.S. government, and to destroy and conceal evidence in the United States of HUAWEI’s Iran-based business. By impeding the government’s investigation, HUAWEI and HUAWEI DEVICE USA sought to avoid criminal prosecution with respect to HUAWEI’s Iran-based activities, which would subject HUAWEI and its U.S. affiliates and subsidiaries, including HUAWEI DEVICE USA, to the threat of economic harm. COUNT ONE (Racketeering Conspiracy) 88. The allegations contained in paragraphs one through 87 are realleged and incorporated as if fully set forth in this paragraph.
The former chief of Antigua’s Financial Services Regulatory Commission (FSRC) has pleaded guilty for his role in connection with the Stanford International Bank (SIB) Ponzi scheme.
Assistant Attorney General Brian A. Benczkowski of the Justice Department’s Criminal Division and U.S. Attorney Ryan K. Patrick of the Southern District of Texas made the announcement.
Leroy King, 74, of Dickerson Bay, Antigua, was the last remaining defendant in the SIB scheme. Today, he pleaded guilty to one count of conspiracy to obstruct justice and one count of obstruction of justice for his role in obstructing the Securities and Exchange Commission (SEC) investigation into SIB. He was extradited to the United States in November 2019.
King is a dual citizen of the United States and Antigua. Beginning in approximately 2002, he served as the administrator and CEO of the FSRC, an agency of the Antiguan government. As part of his duties, he was responsible for Antigua’s regulatory oversight of Stanford International Bank Limited’s (SIBL) investment portfolio, including the review of SIBL financial reports and the response to requests by foreign regulators, including the SEC, for information and documents about SIBL’s operations.
In or about 2005, the SEC began investigating R. Allen Stanford and Stanford Financial Group (SFG) and made official inquiries with the FSRC regarding the value and content of SIBL’s purported investments. From 2005 through February 2009, Stanford, James Davis, King and others conspired to obstruct the SEC’s investigation of SFG, SIBL and their related entities. From at least 2003 through February 2009, Stanford made regular secret corrupt payments of thousands of dollars in cash and gifts to King in order to obtain his assistance in hiding the truth about SFG and SIBL from the SEC and other regulatory agencies.
Over the course of the conspiracy, Stanford’s cash payments to King totaled approximately $520,963.87. Stanford also provided King tickets to both Super Bowl XXXVIII in Houston, Texas (2004) and Super Bowl XL in Detroit, Michigan (2006). Stanford also provided King with repeated flights on private jets Stanford or SFG entities owned.
King later denied the SEC’s request for help, and he wrote that the FSRC “had no authority to act in the manner requested and would itself be in breach of law if it were to accede to your request.” In reality, the FSRC did have this authority and failed to exercise such because of the payments and other benefits Stanford gave to King.
A federal jury found Stanford guilty in June 2012 for his role in orchestrating a 20-year investment fraud scheme in which he misappropriated $7 billion from SIB to finance his personal businesses. He is serving a 110-year prison sentence. Five others were also convicted for their roles in the scheme and received sentences ranging from three to 20 years in federal prison.
U.S. District Judge David Hittner of the Southern District of Texas accepted the plea today and set sentencing for April 24.
The FBI’s Houston Field Office, IRS Criminal Investigation and the U.S. Postal Inspection Service investigated the case. Trial Attorney Brittain Shaw of the Criminal Division’s Fraud Section and Assistant U.S. Attorney John Pearson of the Southern District of Texas are prosecuting the case.
The Justice Department extends its gratitude to the government of Antigua for its cooperation and assistance.
The year 2020 marks the 150th anniversary of the Department of Justice. Learn more about the history of our agency at www.Justice.gov/Celebrating150Years.
Criminal - Criminal Fraud Section
USAO - Texas, Southern
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Paul Oosting from GetUp at Parliament House in Canberra. Picture: Kym Smith
Paul Oosting from GetUp at Parliament House in Canberra. Picture: Kym Smith
FEDERAL POLITICAL CORRESPONDENT
11:43PM February 12, 2020
A charity set up by senior GetUp officials, which is being investigated by the Australian Charities and Not-for-profits Commission, has appointed the left-wing activist group’s former campaign director to its board.
The Australian can reveal Commons Library Limited, launched by GetUp staff including national director Paul Oosting in 2014 as GetUp Commons Limited, was notified on October 22 that it was under investigation by the ACNC.
The investigation was sparked following reports in The Australian in August last year revealing links between GetUp and the Commons Library, including personnel and shared office space.
Party ceasefire is holding, for now
Despite being aware of the ACNC probe, the Commons Library appointed former GetUp campaigns director Django Merope-Synge to its board in January, replacing Benjamin Brandzel.
Mr Brandzel was a founding board member at the New York-based Avaaz.org, which made three donations to GetUp between 2013 and 2017 totalling more than $268,000.
Charities and Electoral Matters Assistant Minister Zed Seselja told The Australian the “links between GetUp and this charity are becoming clearer and clearer”.
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“It is absolutely appropriate the commissioner investigate these links to ensure integrity in the charity sector, and it is critical that GetUp, who preach transparency, publicly outline the extent of this relationship,” he said.
Senator Seselja wrote to ACNC commissioner Gary Johns on August 20 asking him to formally examine the “very close links” between the Commons Library and GetUp.
Senator Seselja told Mr Johns it was important that organisations with charitable status were “complying with their obligations and fulfilling their charitable purpose, and not being used as de facto political campaigners”.
An ACNC spokeswoman said the commission was not legally allowed to provide details on the status of investigations.
The Australian previously revealed senior officials at GetUp — which publicly claims “we don’t have or want charity status” — were involved in setting up the Commons Library, which had worked out of the offices of the left-wing group.
As a registered charity, the Commons Library is endorsed for “GST concession and income tax exemption” and as a “deductible gift recipient”.
On his LinkedIn account, Mr Merope-Synge said he was GetUp’s campaigns director between 2016 to October last year. He was previously communications co-ordinator of the NSW Greens and a senior adviser to Tasmanian independent MP Andrew Wilkie.
The Australian last year revealed Mr Merope-Synge — who led GetUp’s push to oust former prime minister Tony Abbott in Warringah — was a director of Climate Leaders, which was linked to Zali Steggall’s campaign.
A GetUp spokeswoman said Mr Merope-Synge had finished with GetUp on October 4 and that the group had “no role in the operation of the Commons”.
A Commons Library spokeswoman said they were an “independent social change library for the benefit of the Australian public”. “Our focus is broad and we have supportive relationships with many stakeholders in civil society. Commons materials are available for viewing and download by anyone with an internet connection.”
The “social change library” previously said GetUp had “no involvement in the operation of the Commons Library” and was an “independent organisation”.
The Commons Library says its vision is based on an Australia “that has well-informed, skilled, collaborative and effective movements for social and ecological justice”.
The online “public library” includes collections of articles, manuals, training materials and practical guides to “inform and equip” Australians to influence public policy and engage in “political structures”. “The Commons is committed to being accessible to the breadth of the Australian public,” the Commons Library says. “We aim to overcome barriers to access, including those related to ability, education levels, language, income, racism, sexism, homophobia, transphobia and any other oppression or systemic disadvantage.”
Federal Political Correspondent
Geoff Chambers is The Australian’s Federal Political Correspondent. He was previously The Australian’s Canberra Bureau Chief and Queensland Bureau Chief. Before joining the national broadsheet he was News Edito... Read more
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