On Monday, the Department of Justice Office of the Inspector General released a report on its review of the four FISA applications and other aspects of the FBI's Crossfire Hurricane Investigation, which explored any possible coordination or connection between the Trump campaign and Russian efforts to interfere with the 2016 election. The document is available here and below.

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Topics: 

• Documents, 
• The Russia Connection

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• FISA, 
• Mueller Investigation, 
• DOJ Office of the Inspector General, 
• FBI, 
• Federal Bureau of Investigation (FBI)

National Defense Authorization Act for Fiscal Year 2020

Members of the House and Senate conference committee on the fiscal year 2020 National Defense Authorization Act (NDAA) have agreed on a final version of the bill. The summary and bill are available below.

Summary of NDAA for FY2020









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NDAA for FY 2020





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Senate passes $738B defense bill, including Space Force

SEE  https://plawiuk.blogspot.com/search?q=DEFENSE

Armed Militias Are Taking Trump’s Civil War Tweets Seriously

By Mary B. McCord Wednesday, October 2, 2019


Oathkeepers members at the 2017 Unite the Right Rally
in Charlottesville, Virginia (Source: Flickr/Anthony Crider)

Over the weekend, the pre The president sent a tweet that seemed to warn of civil war if he were to be impeached and removed from office:

....If the Democrats are successful in removing the President from office (which they will never be), it will cause a Civil War like fracture in this Nation from which our Country will never heal.” Pastor Robert Jeffress, @FoxNews

— Donald J. Trump (@realDonaldTrump) September 30, 2019


Although the president was quoting Pastor Robert Jeffress’s comments on Fox News, he was adopting them as his own.

It might seem tempting to dismiss this language as of a piece with President Trump’s typical Twitter rhetoric. But it is worth paying particular attention to this tweet—because among the people who read it were militia groups enthusiastic about exactly what Trump portended. And while no violence has yet resulted from the president’s tweet, it would be foolish to underestimate the power of Trump’s comments to call rogue militias to action, particularly if there is an impeachment and he continues to use this rhetoric to fan the flames. In the days after his civil war tweet, he went on to use similarly incendiary language, referring to impeachment proceedings as a “COUP.”

Consider the Oath Keepers group, a far-right armed militia. Calling on its 24,000 Twitter followers to read the president’s whole tweet thread, the Oath Keepers account posted:

Here’s the money quote from that thread. This is the truth. This is where we are. We ARE on the verge of a HOT civil war. Like in 1859. That’s where we are. And the Right has ZERO trust or respect for anything the left is doing. We see THEM as illegitimate too.@StewartRhodesOK https://t.co/DjB8TY0vCo

— Oath Keepers (@Oathkeepers) September 30, 2019



Before this tweet, the Oath Keepers account tweeted that, under the U.S. Constitution, “the militia (that’s us) can be called forth ‘to execute the Laws of the Union, suppress Insurrections and repel Invasions.’ ... “All he has to do is call us up. We WILL answer the call.” Other Oath Keeper tweets also hint at violence: One states that “their favorite rifle is the AR 15.”

According to the Oath Keepers’s webpage, the organization is “a non-partisan association of current and formerly serving military, police, and first responders, who pledge to fulfill the oath all military and police take to ‘defend the Constitution against all enemies, foreign and domestic,’” while declaring that they “will not obey unconstitutional orders.” The Anti-Defamation League, by contrast, describes the group as “an anti-government right-wing fringe organization” whose members have appeared “as self-appointed armed guards” at various places around the country, in defiance of what they deem to be unconstitutional government action. Last month, the group sought “security volunteers” from their membership and “other capable patriots” to escort Trump supporters attending a New Mexico rally “to protect them from potential leftist violence.” And last year, the Oath Keepers announced its “Spartan Training Group program,” with the goal of “form[ing] training groups in as many states as possible” to create “a pool of trained, organized volunteers who will be able to serve as the local militia under the command of a patriotic governor loyal to the Constitution, or if called upon by President Trump to serve the nation” (emphasis in original).

The Oath Keepers are far from the only militia group that vocally supports deploying potential force in aid of the president. In November 2018, after Trump pledged to send up to 15,000 U.S. troops to the border to deal with the approaching caravan of Central American migrants, the militia group known as “The Minuteman Project” published an “URGENT CALL FOR TEXAS BORDER OBSERVATION DUTY” to cover the 2,000-mile border from San Diego to Brownsville, Texas. According to U.S. Army documents obtained by Newsweek at the time, the military expressed its concern internally about the presence of unauthorized militias along the border, warning that protests occurring at points of entry historically had been peaceful, “unless extreme right or left groups attend.” The Minuteman Project’s co-founder, Jim Gilchrist, cautioned potential volunteers that their adversaries were “US-based PROPAGANDA organizations like the American Civil Liberties Union, the Southern Poverty Law Center, People without Borders” and many more groups like them. He further warned members to “use extreme caution when confronted by mainstream media” because “they are not your friends.”

Earlier this year, after Trump’s reelection campaign repeatedly ran ads quoting Trump’s references to an “invasion” on the southern border, another group—the United Constitutional Patriots—set up camp at the New Mexico/Mexico border. Without any legal authorization, this group assumed the duty of U.S. Customs and Border Protection to stop and detain migrants, all while heavily armed and dressed in military fatigues. In March and April 2019, a spokesperson for the group, Jim Benvie, regularly posted livestream videos on Facebook showing militia members chasing and capturing migrants while armed with assault rifles, and detaining them until they could be turned over to U.S. officials. In other posts, the United Constitutional Patriots described themselves as combatants in a “war” raging along the border due to migrants’ “invasion” of the country and actively sought to recruit people with military or law enforcement experience to join them. One such recruit, upon observing migrants while on “patrol” at the border, reportedly grabbed his AR-15 and asked his fellow militia member, “Why are we just apprehending them and not lining them up and shooting them?” In April, after the group’s “national commander” was arrested on unrelated charges and the Union Pacific Railroad ordered the group off of its property, significant media attention exposed the militia’s activities and it reconstituted itself as the Guardian Patriots, decamped to private land with the owners’ consent, and closed its public Facebook account.

Both of these armed militias took action at least in part in response to Trump’s rhetoric about the need to secure the southern border. Now that the president has invoked the idea of civil war, there is a risk that armed groups will take heed of this language too, whenever the president suggests that it is time.

Federal criminal law prohibits “rebellion or insurrection against the authority of the United States or the laws thereof,” including incitement or assistance to such rebellion or insurrection. It also prohibits conspiring to overthrow the U.S. government, levy war against it or oppose its authority by force. Based on the organization’s declared mission, there’s little doubt that the Oath Keepers would view any impeachment action by congress as “unconstitutional” and therefore not to be obeyed. Although the group’s current tweets come close to calling for rebellion or insurrection should that happen, there’s been no indication that the U.S. Department of Justice is investigating. Are the militias drawing up plans for possible civil war, for example? Are they training? Are they stockpiling weapons? These are things that law enforcement should be investigating, whether under federal law or state law.

Although it is widely believed that the Second Amendment protects the right to form private militias, it does no such thing. The Supreme Court made this clear in its 2008 decision in District of Columbia v. Heller, explicitly reaffirming its own 1886 holding that “the Second Amendment ... does not prevent the prohibition of private paramilitary organizations.” Indeed, they are prohibited by state constitutional provisions or statutes in all 50 states.

The constitutions of 48 states include provisions that require the military to be at all times subordinate to the civil authority. That means that private, unregulated and unauthorized militias—operating wholly outside of the civilian governmental authority and public accountability—are prohibited by state law. There is good reason for this. As prominent historian and scholar A.E. Dick Howard wrote in 1974 in “Commentaries on the Constitution of Virginia,” the Virginia constitution’s ban on private militias “ensures the right of all citizens ... to live free from the fear of an alien soldiery commanded by men who are not responsible to law and the political process.”

Notably, Virginia was the first state to adopt its own constitution, known then as a Declaration of Rights, in June 1776. According to the operative language in Virginia’s constitution, illustrative of the language used in 47 other state constitutions, “[I]n all cases the military should be under strict subordination to, and governed by, the civil power.” Last year, in a successful lawsuit against the private militias that usurped legitimate law enforcement authority during the 2017 Unite the Right rally in Charlottesville, Virginia, a state judge ruled that, based on this “strict subordination” clause in Virginia’s constitution, “[t]here appears to be no place or authority for private armies or militia apart from the civil authorities and not subject to and regulated by the federal, state, or local authorities.” The case resulted in court orders prohibiting the defendant militias from returning to Charlottesville as part of coordinated, armed groups during rallies, protests, demonstrations and marches.

Other state law criminal provisions also prohibit various types of militia activity. Twenty-eight states prohibit groups of people from associating together as a military unit or parading or drilling together in public with firearms. (It was one of these statutes that the U.S. Supreme Court upheld in 1886 against a Second Amendment challenge in Presser v. Illinois.) Similarly, 25 states prohibit assembling together to teach, demonstrate, train or practice with firearms, explosives or “techniques” capable of causing injury or death, knowing and intending to further a civil disorder. And another state criminal statute, found in some variation in 12 states (and in the U.S. Code), prohibits the false assumption of the duties of a law enforcement or peace officer or the unauthorized wearing of military uniforms or close imitations thereof. The United Constitutional Patriots’s spokesperson, Jim Benvie, is currently charged in federal court with violations of the federal statute based on his false assumption of the duties of the U.S. Customs and Border Patrol. And this summer, the Virginia attorney general issued an opinion that heavily armed militias, dressed in fatigues and other military accessories, acting in a coordinated fashion and patrolling a line of citizens waiting to engage with their elected legislators before a special session on gun safety legislation, violate Virginia’s prohibition on the false assumption of law enforcement functions.

The Oath Keepers and other militia organizations are in violation of some of these laws right now. Their existence as private paramilitary units in states with “strict subordination” clauses is prohibited, as it is in states with statutes that prohibit associating together as a military unit or company. Training, instructing or practicing in paramilitary techniques for use in a “civil war” or other uprising is also currently banned in many states. And to the extent the armed militias are showing up in public places asserting authority they don’t have, they are violating state and federal laws criminalizing the false assumption of law enforcement duties.

Some observers may say that the tweets of both the president and the Oath Keepers are simply hyperbole. But the militia movement has shown that it will take action based on the president’s statements. His “civil war” comments were phrased conditionally—dependent on “the Democrats” attempting to remove him from office. State officials and law enforcement, however, do not have to wait for that condition to be fulfilled—or for the president to post new tweets that militias may interpret as calling them to arms—to tackle the potential threat posed by militias. Governors may issue cease and desist orders based on their state constitutions, law enforcement may initiate investigations based on federal and state criminal statutes, and the public may report instances of current law-breaking by militia members. Authorities would not sit idly by while foreign forces prepare for potential violence against other Americans, and they should not sit idly by while rogue private armies do the same.



Mary B. McCord is currently Legal Director and Visiting Professor of Law at the Institute for Constitutional Advocacy and Protection at Georgetown University Law School. She is the former Acting Assistant Attorney General and Principal Deputy Assistant Attorney General for National Security at the U.S. Department of Justice and was a long-time federal prosecutor in the U.S. Attorney’s Office for the District of Columbia.

ALL THE NEWS THAT FITS --- LAWFARE BLOG 

First Amendment
What’s in a Name? Quite a Bit, If You’re Talking About Section 230

Jeff Kosseff Thu, Dec 19, 2019, 1
As Congress decides whether to change the legal underpinnings of the internet, we need a better understanding of why it passed Section 230 of the Communications Decency Act in the first place.

Social Media  

AS SEEN ON RACHEL MADDOW, MSNBC, FRIDAY DECEMBER 20, 2019
The Biggest Social Media Operation You’ve Never Heard of 

Is Run Out of Cyprus by Russians

 Lisa Kaplan Wed, Dec 18, 2019
What the heck is TheSoul Publishing, and how did it get tens of of millions of followers on YouTube and Facebook? And what is it doing with them?

• Reflecting on Torture After ‘The Report’

  Steven M. Kleinman Dec 16, 2019

• On the Cliff Edge of a New Stage of the Libyan Conflict

  Frederica Saini Fasanotti Dec 20, 2019
• Federal Judge Rules Trump Cannot Spend Emergency Funds on Border Wall

Jacob Schulz   Wed, Dec 11, 2019, 11:30 AM
A judge in the U.S. District Court for the Western District of Texas ruled that President Donald Trump's border wall emergency proclamation, which gave the administration the ability to use funding for other activities to pay for construction of the border wall, was unlawful. The ruling also permanently enjoined the heads of the Department of Defense, the Department of Homeland Security, the Department of the Interior and the Treasury Department from using emergency construction funds for the wall other than those appropriated by Congress in the 2019 Consolidated Appropriations Act.

INTERNATIONAL CRIMINAL COURT (ICC)

ISRAELI ATTORNEY GENERAL CHALLENGES ICC JURISDICTION IN PALESTINE

Gordon Ahl   Fri, Dec 20, 2019, 10:22 AM

The Office of the Attorney General for the state of Israel released a detailed memorandum to explain why the International Criminal Court (ICC) has no jurisdiction over Palestine. The memo argues that Palestine has failed to meet the necessary precondition of possessing criminal jurisdiction over its territory since a sovereign Palestinian state does not exist at this time. The memo is available here and below.





DOCUMENTS

Judge Rules Snowden Cannot Profit From Book

Jacob Schulz   Wed, Dec 18, 2019, 11:09 AM
A judge in the U.S. District Court for the Eastern District of Virginia ruled that the government can collect the proceeds from Edward Snowden's new book because the book contains disclosures that violate Secrecy Agreements that Snowden had signed with the CIA and the NSA. The ruling can be found here and below.

• CONGRESS

  National Defense Authorization Act for Fiscal Year 2020

  Gordon Ahl   Tue, Dec 10, 2019, 3:08 PM

  Members of the House and Senate conference committee on the fiscal year 2020 National Defense Authorization Act (NDAA) have agreed on a final version of the bill. The summary and bill are available below.

  Summary of NDAA for FY 2020

• DOJ OFFICE OF THE INSPECTOR GENERAL
• Justice Department Inspector General Releases Report on the Russia Investigation
• Mikhaila Fogel   Mon, Dec 9, 2019, 2:03 PM

  On Monday, the Department of Justice Office of the Inspector General released a report on its review of the four FISA applications and other aspects of the FBI's Crossfire Hurricane Investigation, which explored any possible coordination or connection between the Trump campaign and Russian efforts to interfere with the 2016 election. The document is available here and below.     

• THE UKRAINE CONNECTION

  Office of Management and Budget Issues a Memo on Withholding Ukraine Aid

  Mikhaila Fogel   Thu, Dec 12, 2019, 3:32 PM
  
  
  The Office of Management and Budget has released a memo defending the legality of its decision to withhold military aid to Ukraine–about which questions have been raised in connection with the impeachment inquiry. The memo is available here and below.

Rush, Newspeak and Fascism: 
An Exegesis By David Neiwert 
1 Introduction
 Is fascism an obsolete term? 
Even if it resurrects itself as a significant political threat, can we use the term with any effectiveness? My friend John McKay, discussing the matter at his weblog archy [http://johnmckay.blogspot.com/], wonders if the degraded state of the term has rendered it useless. After all, it has in many respects become a catchall for any kind of totalitarianism, rather than the special and certainly cause-specific phenomenon it was. Anyone using the word nowadays is most often merely participating in this degradation. Nonetheless, I think Robert O. Paxton has it right in his essay “The Five Stages of Fascism”: We cannot give up in the face of these difficulties. A real phenomenon exists. Indeed, fascism is the most original political novelty of the twentieth century, no less. … If we cannot examine fascism synthetically, we risk being unable to understand this century, or the next. We must have a word, and for lack of a better one, we must employ the word that Mussolini borrowed from the vocabulary of the Italian Left in 1919, before his movement had assumed its mature form. Obliged to use the term fascism, we ought to use it well. The following essay is devoted to that idea. Its purpose is, if nothing else, to give the reader a clear understanding of fascism not merely as an historical force but a living one. The essay originally appeared as a series of posts at my weblog Orcinus [http://dneiwert@blogspot.com], sparked by an erroneous report of something Rush Limbaugh reportedly had told his radio audience. The error was soon corrected, but the remarks had in any event stirred me to write about my concerns about the way the political climate in America is heading, based on material and information I’d been gathering on a variety of issues pertaining to the radical right and its increasing ideological traffic with mainstream conservatism. Because Orcinus is generally intended as an actual journal — a place for me to work out writing ideas and to post original source material on news stories and events that interest me — much of what appeared on the blog was in many ways a rough draft. Moreover, since it is a public enterprise, I obtained much feedback during the course of writing it, some of which affected the content and nature of the essay and appears in the current text. The version that appears before you is, of course, considerably edited and rewritten. There is a good deal of new material that did not appear anywhere on the blog. Whole sections have been rearranged and edited down, and the order of the argument is not exactly what appears on the blog. In this respect, it may be an instructive exercise for anyone interested in the writing process to compare the two; but in any event, this version is the definitive edition, since a number of errors and repetitions, as well as logical missteps, can be found in the rough draft, naturally. While I establish early in the essay that this is an attempt at a “scholarly” discussion of fascism, I should however clarify that I am in fact merely a journalist, not a scholar, nor do I pretend to be one. The following essay is more in the way of a journalistic survey of the academic literature regarding fascism, and an attempt at a kind of lay analysis of the literature’s contents as it relates to the current political context. However, none of the ideas regarding the core of fascism, nor its many accompanying traits, are my own. “Rush” is mostly drawn from a body of scholarly work on fascism that’s broadly accepted as the important texts on the subject, and I’ll urge anyone interested in examining the matter seriously to read them. There’s a bibliography at the end.

CHAPTER ONE 
Some Issues in the Intellectual History of Fascism

FOR ABOUT three-quarters of a century, almost all academic discussion concerning Mussolini’s Fascism 1 has tended to imagine the movement it animated, and the regime it informed, as entirely lacking a reasoned rationale. It early became commonplace to attribute to Fascism a unique irrationality, accompanied by a ready recourse to violence. Fascism, it has been argued, was full of emotion, but entirely empty of cognitive content. Fascists were, and are, understood to have renounced all rational discourse, in order to “glorify the non-rational.” Their ideology, movement, revolution, and behavior were made distinctive by the appeal to two, and only two, “absolutes”: “violence and war.”2 Before the advent of the Second World War, some analysts had gone so far as to insist that “fascism” was the product of “orgasm anxiety,” a sexual dysfunction that found release only in “mystic intoxication,” homicidal hostility, and the complete suppression of rational thought.3 Marxists and fellow travelers argued that since Fascism was “the violent attempt of decaying capitalism to defeat the proletarian revolution and forcibly arrest the growing contradictions of its whole development,” it could not support itself with a sustained rationale. Its conceptions were “empty and hollow,” finding expression in “deceitful terminology” consciously designed to conceal the “realities of class-rule and class-exploitation.”4 For many, “Fascism [was] essentially a political weapon adopted by the ruling class . . . that takes root in the minds of millions . . . [appealing] to certain uncritical and infantile impulses which, in a people debarred from a rational, healthy existence . . . tend to dominate their mental lives.” Fascism, in general, constituted a “flight from reason,” advancing “the
claims of mysticism and intuition in opposition . . . to reason . . . and glorifying the irrational.”5 While there were some serious treatments of Fascist thought that made their appearance between the two world wars,6 all objectivity dissolved in the alembic of the Second. By the time of the Second World War, Fascism had simply merged into Hitler’s National Socialism—and discussants spoke of “nazi-fascism” as though the two were indissolubly one.7 Generic fascism was the enemy of “Western ideals,” of the “Enlightenment tradition,” as well as of the sociopolitical and philosophical aspirations of the French Revolution. It was the unregenerate agent of evil, driven by an irrational mysticism, and committed to mayhem and gross inhumanity. By the end of the 1990s, there were those who could insist that “fascism shuffles together every myth and lie that the rotten history of capitalism has ever produced like a pack of greasy cards and then deals them out.” As with Angelo Tasca, such a notion is advanced in support of a contention that the only use Fascism, like Mussolini, had “of ideas was to dispense with ideas.”8

FOOTNOTES
1 When the term “fascism” is employed in lowercase, it refers to a presumptive, inclusive,
generic fascism. When the term is capitalized, it refers to the movement, revolution, and
regime associated with Benito Mussolini. 
2 Mark Neocleous, Fascism (Minneapolis: University of Minnesota Press, 1997), pp. x,
13, 14, 17.
 3 Wilhelm Reich, The Mass Psychology of Fascism (1933; reprint, New York: Orgone
Institute, 1946), pp. 110–11.
 4 R. Palme Dutt, Fascism and Social Revolution (1934; reprint, San Francisco: Proletarian Publishers, 1974), pp. 198–99.      
5 R. Osborn, The Psychology of Reaction (London: Victor Gollancz, 1938), pp. 5, 238, 239. 6 The best of these included that of Herbert W. Schneider, Making the Fascist State (New York: Oxford University Press, 1928). 
7 See, for example, Eduardo Haro Tecglen, Fascismo: Genesis y desarrollo (Madrid: CVS Ediciones, 1975). 
8 Dave Renton, Fascism: Theory and Practice (London: Pluto Press, 1999), pp. 27–28.

(New) FascismContagion, Community, MythNidesh Lawtoo
Coda Fascism Now and Then: William Connolly and Nidesh Lawtoo in Conversation 
William Connolly and I started discussing emerging (new) fascist movements back in the spring of 2016, at Johns Hopkins University. Donald Trump’s campaign was beginning to gain traction in the primaries and, as I mentioned in the introduction, we shared a concern with the aff ective and contagious power of his rhetoric. As we had the occasion to meet again, a year later, this time in Weimar, Germany, in the summer of 2017, we naturally resumed the conversation. We had kept in regular touch, and while I had written a few articles on new fascism, Connolly was at work on a short book titled Aspirational Fascism—we were already into material, so to speak.

"Ur-Fascism can come back under the most innocent of disguises. Our duty is to uncover it and to point our finger at any of its new instances—every day, in every part of the world."

 Umberto Eco, “Ur-Fascism”

SEE  https://plawiuk.blogspot.com/search?q=fascism 

"I Saw Mommy Kissing Yog-Sothoth" and other Cthulhuian Yuletide classic
Oh tidings of madness and woe. Gather ’round the Necronomicon, little cultists, and let’s all sing these beloved holiday odes to Elder Gods. All the classics are here: “I Saw Momm…

U.S. Documents Spark National Debate on Canada’s War in Afghanistan

By Preston Lim
Tuesday, December 17, 2019,

On Dec. 9, the Washington Post published a trove of U.S. government documents on the war in Afghanistan. Starting in 2014, an American agency, the Office of the Special Inspector General for Afghanistan Reconstruction (SIGAR), interviewed more than 600 people in an attempt to “diagnose policy failures in Afghanistan.” SIGAR published some of their findings, but, according to the Post, left out the “harshest and most frank criticisms from the interviews.” The Post filed two Freedom of Information Act lawsuits and eventually gained access to interview transcripts. The documents show that “U.S. officials acknowledged that their warfighting strategies were fatally flawed and that Washington wasted enormous sums of money trying to remake Afghanistan into a modern nation.”

As one reporter notes, the Post documents contained “several references to Canada,” which is unsurprising given the size and duration of Canada’s contribution to the war in Afghanistan. Between 2001 and 2014, more than 40,000 Canadian Armed Forces (CAF) members served in the Afghan theater of operations. In the opening months of the war, Canadian troops served in Kandahar, before redeploying to Kabul in summer 2003. Canadian troops would return to Kandahar in 2005, with the number of Canadian troops swelling to 2,300. In 2008, then-Prime Minister Stephen Harper pledged to withdraw all Canadian troops from Afghanistan in 2011, save for a few advisers. Accordingly, Canada ended its combat role in Afghanistan in 2011, though a small contingent of CAF personnel was stationed in Kabul to train Afghan security services. The last Canadian troops left Afghanistan in 2014.

The Post investigation has sparked a heated discussion about Canada’s contribution to the conflict. Scott Gilmore, who worked in Afghanistan as a “diplomat, consultant and NGO worker,” wrote that “few failures have been as large as Canada’s misadventures in Afghanistan.” Gilmore wrote that “everyone knew we were losing.” He concluded that, in light of the Post reporting, “it would still be worth it for us to start talking about Afghanistan again.” Others cast the Canadian contribution in a more positive light. Defense Minister Harjit Sajjan, for example, who completed three tours in Afghanistan “as an intelligence liaison and later as an adviser to American commanders,” noted that “our understanding of our situation was extremely high” and argued that the “work that has been done on the ground has had a significant impact.”

Several commentators have called for a review of Canada’s military activity in Afghanistan. David Mulroney, a former deputy minister who was responsible for the government's interdepartmental Afghanistan Task Force, has called for a review that would explain “why Canada went where it did and how it performed.” One writer has suggested that the Canadian Senate ought to conduct a study of Canada’s involvement in Afghanistan.

Recent reviews of Canada’s role in the Afghan conflict have already demonstrated that the government mishandled aspects of the war in Afghanistan, though the government has not yet conducted a holistic review of Canada’s war effort. According to a recent military ombudsman report, the government failed to take adequate care of Canada’s language and culture advisers—Canadian citizens who had recently immigrated from Afghanistan and who deployed to Afghanistan alongside Canadian troops. As the Canadian Broadcasting Corporation noted, these advisers carried out some of the “most dirty and dangerous assignments” during the war, but upon their return, they were not properly “cared for by the government that sent them to war.”

In Other News

The Federal Court, a national court below the Supreme Court, recently approved a $900 million class-action settlement for employees of the Department of National Defense (DND) and CAF who have experienced sexual harassment, sexual assault or discrimination in connection with their employment with DND and CAF. The majority of the funds are set aside for the CAF class, with $100 million set aside for DND employees. The settlement provides for “payments of between $5,000 and $55,000 for victims of sexual misconduct,” though victims who experienced exceptional harm “and have been denied Veterans Affairs benefits could be eligible for up to $155,000.”

Preston Lim is a first-year student at Yale Law School. He holds a Bachelor’s degree in Near Eastern Studies from Princeton and a Master’s in Global Affairs from Tsinghua University, where he studied as a Schwarzman Scholar.

Canada’s Attorney General Blocks Disclosure of Evidence in National Security Case 

" This is the first time the federal government has ever issued a security certificate, a legal mechanism that allows the attorney general to block the disclosure of information if disclosure would harm Canada’s national security interests. 

THE CASE INVOLVES A CANADIAN SELLING SECRETS TO CHINA 

"Federal authorities arrested Huang in late 2013 and charged him with “conspiracy to provide Canadian military secrets” to the Chinese government. Huang previously worked as an engineer for Lloyd’s Register Canada Ltd., a subcontractor to Irving Shipbuilding, which builds vessels for the Royal Canadian Navy."

By Preston Lim
Tuesday, December 17, 2019,

Canadian Attorney General David Lametti (Source: Flickr/Sebastiaan ter Burg)

Last month, Canadian Attorney General David Lametti issued a security certificate in the ongoing case of R. v. Qing (Quentin) Huang. This is the first time the federal government has ever issued a security certificate, a legal mechanism that allows the attorney general to block the disclosure of information if disclosure would harm Canada’s national security interests. Federal authorities arrested Huang in late 2013 and charged him with “conspiracy to provide Canadian military secrets” to the Chinese government. Huang previously worked as an engineer for Lloyd’s Register Canada Ltd., a subcontractor to Irving Shipbuilding, which builds vessels for the Royal Canadian Navy.

Court documents have since provided a fuller picture of Huang’s activities and the government’s pursuit of Huang. In March 2013, the Canadian Security Intelligence Service (CSIS)—Canada’s national intelligence service—obtained authorization from the Federal Court—Canada’s national trial court—to intercept “telephone calls to and from a CSIS target at the PRC [Chinese] Embassy in Ottawa.” CSIS operators were not targeting Huang at the time but “incidentally intercepted” a conversation between Huang and the Chinese Embassy in May 2013. CSIS then provided the transcripts and recordings of the intercepted conversation to the Royal Canadian Mounted Police (RCMP)—Canada’s federal police service—which arrested Huang in December 2013, charging him under the Security of Information Act.

Parliament created the Security of Information Act “as a set of amendments to the Official Secrets Act in the immediate aftermath of 9/11.” Huang isn’t the first person to be charged under the act. Jeffrey Delisle, a sub-lieutenant in the Royal Canadian Navy, was convicted under the act in 2013 for communicating and attempting to communicate safeguarded information to the Russian military. This past September, the RCMP arrested Cameron Ortis, formerly director-general of the service’s National Intelligence Coordination Center, and charged him under the Security of Information Act for offering to sell classified RCMP information to Vincent Ramos. Ramos was the CEO of Phantom Secure, a company that sold encrypted phones to criminal organizations.

Federal authorities charged Huang under sections 16(1) and 22(1) of the act. Section 16(1) establishes communication to a “foreign entity or to a terrorist group [of] information that the Government of Canada or of a province is taking measures to safeguard” as a criminal offence. The accused must believe or be “reckless as to whether … the information is information that the Government of Canada or of a province is taking measures to safeguard.” The accused must also intend “to increase the capacity of a foreign entity or a terrorist group to harm Canadian interests” or be “reckless as to whether … communication of the information” would increase the capacity of a foreign entity or terrorist group to “harm Canadian interests.” Section 22(1) covers preparatory acts, that is, “anything that is specifically directed towards or specifically done in preparation of the commission of the offence.” In other words, even if Huang did not provide intelligence to the Chinese, his alleged preparations to hand over information could still land him in jail.

Since CSIS found out about Huang’s activities, many of the court proceedings since 2013 have focused on the appropriate scope of disclosure of CSIS documents. Several weeks ago, a judge on the Federal Court ordered the disclosure to Huang of a CSIS affidavit. The attorney general deemed disclosure of that information to be “sensitive or potentially injurious.” Under Section 38.13 of the Canada Evidence Act, the attorney general may “personally issue a certificate that prohibits the disclosure of information in connection with a proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity … or for the purpose of protecting national defence or national security.” On Nov. 14, the attorney general did just that, allowing the release of most of the CSIS affidavit, but blocking the disclosure of six paragraphs he deemed to be too sensitive to national security for release. How Lametti’s actions will affect Huang’s trial remains to be seen, though one legal commentator has noted that “it may be hard for the trial judge … to conclude that Mr. Huang’s fair-trial rights can be adequately protected without the disclosure of the withheld information.” Huang’s case is clearly an historic one. Since this is the first time the Canadian government has issued a security certificate, all eyes will be on the court as it sets precedent on key national security questions.



Preston Lim is a first-year student at Yale Law School. He holds a Bachelor’s degree in Near Eastern Studies from Princeton and a Master’s in Global Affairs from Tsinghua University, where he studied as a Schwarzman Scholar.