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  • Charles Ponzi created a new topic ' Presidential Emergency Orders' in the forum.
    eas

    What Trump Could Do If He Declares a State of Emergency
    President Donald Trump holds up a pen during a signing ceremony of the "Cybersecurity and Infrastructure Security Agency Act," in the Oval Office of the White House, Friday, Nov. 16, 2018, in Washington.

    By Elizabeth Goitein Program Director, Brennan Center Read bio

    December 8, 2018

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    A president’s emergency powers are extensive, and largely unchecked.

    In the weeks leading up to the 2018 midterm elections, President Donald Trump reached deep into his arsenal to try to deliver votes to Republicans.

    Most of his weapons were rhetorical, featuring a mix of lies and false inducements—claims that every congressional Democrat had signed on to an “open borders” bill (none had), that liberals were fomenting violent “mobs” (they weren’t), that a 10 percent tax cut for the middle class would somehow pass while Congress was out of session (it didn’t). But a few involved the aggressive use—and threatened misuse—of presidential authority: He sent thousands of active-duty soldiers to the southern border to terrorize a distant caravan of desperate Central American migrants, announced plans to end the constitutional guarantee of birthright citizenship by executive order, and tweeted that law enforcement had been “strongly notified” to be on the lookout for “ILLEGAL VOTING.”

    These measures failed to carry the day, and Trump will likely conclude that they were too timid. How much further might he go in 2020, when his own name is on the ballot—or sooner than that, if he’s facing impeachment by a House under Democratic control?

    More is at stake here than the outcome of one or even two elections. Trump has long signaled his disdain for the concepts of limited presidential power and democratic rule. During his 2016 campaign, he praised murderous dictators. He declared that his opponent, Hillary Clinton, would be in jail if he were president, goading crowds into frenzied chants of “Lock her up.” He hinted that he might not accept an electoral loss. As democracies around the world slide into autocracy, and nationalism and antidemocratic sentiment are on vivid display among segments of the American populace, Trump’s evident hostility to key elements of liberal democracy cannot be dismissed as mere bluster.

    The moment the president declares a “national emergency”—a decision that is entirely within his discretion—he is able to set aside many of the legal limits on his authority.
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    It would be nice to think that America is protected from the worst excesses of Trump’s impulses by its democratic laws and institutions. After all, Trump can do only so much without bumping up against the limits set by the Constitution and Congress and enforced by the courts. Those who see Trump as a threat to democracy comfort themselves with the belief that these limits will hold him in check.

    But will they? Unknown to most Americans, a parallel legal regime allows the president to sidestep many of the constraints that normally apply. The moment the president declares a “national emergency”—a decision that is entirely within his discretion—more than 100 special provisions become available to him. While many of these tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader bent on amassing or retaining power. For instance, the president can, with the flick of his pen, activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts. Other powers are available even without a declaration of emergency, including laws that allow the president to deploy troops inside the country to subdue domestic unrest.

    This edifice of extraordinary powers has historically rested on the assumption that the president will act in the country’s best interest when using them. With a handful of noteworthy exceptions, this assumption has held up. But what if a president, backed into a corner and facing electoral defeat or impeachment, were to declare an emergency for the sake of holding on to power? In that scenario, our laws and institutions might not save us from a presidential power grab. They might be what takes us down.

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    The premise underlying emergency powers is simple: The government’s ordinary powers might be insufficient in a crisis, and amending the law to provide greater ones might be too slow and cumbersome. Emergency powers are meant to give the government a temporary boost until the emergency passes or there is time to change the law through normal legislative processes.

    Unlike the modern constitutions of many other countries, which specify when and how a state of emergency may be declared and which rights may be suspended, the U.S. Constitution itself includes no comprehensive separate regime for emergencies. Those few powers it does contain for dealing with certain urgent threats, it assigns to Congress, not the president. For instance, it lets Congress suspend the writ of habeas corpus—that is, allow government officials to imprison people without judicial review—“when in Cases of Rebellion or Invasion the public Safety may require it” and “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

    Nonetheless, some legal scholars believe that the Constitution gives the president inherent emergency powers by making him commander in chief of the armed forces, or by vesting in him a broad, undefined “executive Power.” At key points in American history, presidents have cited inherent constitutional powers when taking drastic actions that were not authorized—or, in some cases, were explicitly prohibited—by Congress. Notorious examples include Franklin D. Roosevelt’s internment of U.S. citizens and residents of Japanese descent during World War II and George W. Bush’s programs of warrantless wiretapping and torture after the 9/11 terrorist attacks. Abraham Lincoln conceded that his unilateral suspension of habeas corpus during the Civil War was constitutionally questionable, but defended it as necessary to preserve the Union.

    The Supreme Court has often upheld such actions or found ways to avoid reviewing them, at least while the crisis was in progress. Rulings such as Youngstown Sheet & Tube Company v. Sawyer, in which the Court invalidated President Harry Truman’s bid to take over steel mills during the Korean War, have been the exception. And while those exceptions have outlined important limiting principles, the outer boundary of the president’s constitutional authority during emergencies remains poorly defined.

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    Presidents can also rely on a cornucopia of powers provided by Congress, which has historically been the principal source of emergency authority for the executive branch. Throughout the late 18th and 19th centuries, Congress passed laws to give the president additional leeway during military, economic, and labor crises. A more formalized approach evolved in the early 20th century, when Congress legislated powers that would lie dormant until the president activated them by declaring a national emergency. These statutory authorities began to pile up—and because presidents had little incentive to terminate states of emergency once declared, these piled up too. By the 1970s, hundreds of statutory emergency powers, and four clearly obsolete states of emergency, were in effect. For instance, the national emergency that Truman declared in 1950, during the Korean War, remained in place and was being used to help prosecute the war in Vietnam.

    Aiming to rein in this proliferation, Congress passed the National Emergencies Act in 1976. Under this law, the president still has complete discretion to issue an emergency declaration—but he must specify in the declaration which powers he intends to use, issue public updates if he decides to invoke additional powers, and report to Congress on the government’s emergency-related expenditures every six months. The state of emergency expires after a year unless the president renews it, and the Senate and the House must meet every six months while the emergency is in effect “to consider a vote” on termination.

    By any objective measure, the law has failed. Thirty states of emergency are in effect today—several times more than when the act was passed. Most have been renewed for years on end. And during the 40 years the law has been in place, Congress has not met even once, let alone every six months, to vote on whether to end them.

    As a result, the president has access to emergency powers contained in 123 statutory provisions, as recently calculated by the Brennan Center for Justice at NYU School of Law, where I work. These laws address a broad range of matters, from military composition to agricultural exports to public contracts. For the most part, the president is free to use any of them; the National Emergencies Act doesn’t require that the powers invoked relate to the nature of the emergency. Even if the crisis at hand is, say, a nationwide crop blight, the president may activate the law that allows the secretary of transportation to requisition any privately owned vessel at sea. Many other laws permit the executive branch to take extraordinary action under specified conditions, such as war and domestic upheaval, regardless of whether a national emergency has been declared.

    This legal regime for emergencies—ambiguous constitutional limits combined with a rich well of statutory emergency powers—would seem to provide the ingredients for a dangerous encroachment on American civil liberties. Yet so far, even though presidents have often advanced dubious claims of constitutional authority, egregious abuses on the scale of the Japanese American internment or the post-9/11 torture program have been rare, and most of the statutory powers available during a national emergency have never been used.

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    But what’s to guarantee that this president, or a future one, will show the reticence of his predecessors? To borrow from Justice Robert Jackson’s dissent in Korematsu v. United States, the 1944 Supreme Court decision that upheld the internment of Japanese Americans, each emergency power “lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

    2. AN INTERNET KILL SWITCH?

    Like all emergency powers, the laws governing the conduct of war allow the president to engage in conduct that would be illegal during ordinary times. This conduct includes familiar incidents of war, such as the killing or indefinite detention of enemy soldiers. But the president can also take a host of other actions, both abroad and inside the United States.

    These laws vary dramatically in content and scope. Several of them authorize the president to make decisions about the size and composition of the armed forces that are usually left to Congress. Although such measures can offer needed flexibility at crucial moments, they are subject to misuse. For instance, George W. Bush leveraged the state of emergency after 9/11 to call hundreds of thousands of reservists and members of the National Guard into active duty in Iraq, for a war that had nothing to do with the 9/11 attacks. Other powers are chilling under any circumstances: Take a moment to consider that during a declared war or national emergency, the president can unilaterally suspend the law that bars government testing of biological and chemical agents on unwitting human subjects.

    The president could seize control of U.S. internet traffic, impeding access to certain websites and ensuring that internet searches return pro-Trump content as the top results.

    One power poses a singular threat to democracy in the digital era. In 1942, Congress amended Section 706 of the Communications Act of 1934 to allow the president to shut down or take control of “any facility or station for wire communication” upon his proclamation “that there exists a state or threat of war involving the United States,” resurrecting a similar power Congress had briefly provided Woodrow Wilson during World War I. At the time, “wire communication” meant telephone calls or telegrams. Given the relatively modest role that electronic communications played in most Americans’ lives, the government’s assertion of this power during World War II (no president has used it since) likely created inconvenience but not havoc.

    We live in a different universe today. Although interpreting a 1942 law to cover the internet might seem far-fetched, some government officials recently endorsed this reading during debates about cybersecurity legislation. Under this interpretation, Section 706 could effectively function as a “kill switch” in the U.S.—one that would be available to the president the moment he proclaimed a mere threat of war. It could also give the president power to assume control over U.S. internet traffic.

    The potential impact of such a move can hardly be overstated. In August, in an early-morning tweet, Trump lamented that search engines were “RIGGED” to serve up negative articles about him. Later that day the administration said it was looking into regulating the big internet companies. “I think that Google and Twitter and Facebook, they’re really treading on very, very troubled territory. And they have to be careful,” Trump warned. If the government were to take control of U.S. internet infrastructure, Trump could accomplish directly what he threatened to do by regulation: ensure that internet searches always return pro-Trump content as the top results. The government also would have the ability to impede domestic access to particular websites, including social-media platforms. It could monitor emails or prevent them from reaching their destination. It could exert control over computer systems (such as states’ voter databases) and physical devices (such as Amazon’s Echo speakers) that are connected to the internet.

    To be sure, the fact that the internet in the United States is highly decentralized—a function of a relatively open market for communications devices and services—would offer some protection. Achieving the level of government control over internet content that exists in places such as China, Russia, and Iran would likely be impossible in the U.S. Moreover, if Trump were to attempt any degree of internet takeover, an explosion of lawsuits would follow. Based on its First Amendment rulings in recent decades, the Supreme Court seems unlikely to permit heavy-handed government control over internet communication.

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    But complacency would be a mistake. Complete control of internet content would not be necessary for Trump’s purposes; even with less comprehensive interventions, he could do a great deal to disrupt political discourse and hinder effective, organized political opposition. And the Supreme Court’s view of the First Amendment is not immutable. For much of the country’s history, the Court was willing to tolerate significant encroachments on free speech during wartime. “The progress we have made is fragile,” Geoffrey R. Stone, a constitutional-law scholar at the University of Chicago, has written. “It would not take much to upset the current understanding of the First Amendment.” Indeed, all it would take is five Supreme Court justices whose commitment to presidential power exceeds their commitment to individual liberties.

    3. SANCTIONING AMERICANS

    Next to war powers, economic powers might sound benign, but they are among the president’s most potent legal weapons. All but two of the emergency declarations in effect today were issued under the International Emergency Economic Powers Act, or IEEPA. Passed in 1977, the law allows the president to declare a national emergency “to deal with any unusual and extraordinary threat”—to national security, foreign policy, or the economy—that “has its source in whole or substantial part outside the United States.” The president can then order a range of economic actions to address the threat, including freezing assets and blocking financial transactions in which any foreign nation or foreign national has an interest.

    In the late 1970s and ’80s, presidents used the law primarily to impose sanctions against other nations, including Iran, Nicaragua, South Africa, Libya, and Panama. Then, in 1983, when Congress failed to renew a law authorizing the Commerce Department to control certain exports, President Ronald Reagan declared a national emergency in order to assume that control under IEEPA. Subsequent presidents followed his example, transferring export control from Congress to the White House. President Bill Clinton expanded IEEPA’s usage by targeting not just foreign governments but foreign political parties, terrorist organizations, and suspected narcotics traffickers.

    President George W. Bush took matters a giant step further after 9/11. His Executive Order 13224 prohibited transactions not just with any suspected foreign terrorists, but with any foreigner or any U.S. citizen suspected of providing them with support. Once a person is “designated” under the order, no American can legally give him a job, rent him an apartment, provide him with medical services, or even sell him a loaf of bread unless the government grants a license to allow the transaction. The patriot Act gave the order more muscle, allowing the government to trigger these consequences merely by opening an investigation into whether a person or group should be designated.

    Designations under Executive Order 13224 are opaque and extremely difficult to challenge. The government needs only a “reasonable basis” for believing that someone is involved with or supports terrorism in order to designate him. The target is generally given no advance notice and no hearing. He may request reconsideration and submit evidence on his behalf, but the government faces no deadline to respond. Moreover, the evidence against the target is typically classified, which means he is not allowed to see it. He can try to challenge the action in court, but his chances of success are minimal, as most judges defer to the government’s assessment of its own evidence.

    Americans have occasionally been caught up in this Kafkaesque system. Several Muslim charities in the U.S. were designated or investigated based on the suspicion that their charitable contributions overseas benefited terrorists. Of course if the government can show, through judicial proceedings that observe due process and other constitutional rights, that an American group or person is funding terrorist activity, it should be able to cut off those funds. But the government shut these charities down by freezing their assets without ever having to prove its charges in court.

    In other cases, Americans were significantly harmed by designations that later proved to be mistakes. For instance, two months after 9/11, the Treasury Department designated Garad Jama, a Somalian-born American, based on an erroneous determination that his money-wiring business was part of a terror-financing network. Jama’s office was shut down and his bank account frozen. News outlets described him as a suspected terrorist. For months, Jama tried to gain a hearing with the government to establish his innocence and, in the meantime, obtain the government’s permission to get a job and pay his lawyer. Only after he filed a lawsuit did the government allow him to work as a grocery-store cashier and pay his living expenses. It was several more months before the government reversed his designation and unfroze his assets. By then he had lost his business, and the stigma of having been publicly labeled a terrorist supporter continued to follow him and his family.

    Despite these dramatic examples, IEEPA’s limits have yet to be fully tested. After two courts ruled that the government’s actions against American charities were unconstitutional, Barack Obama’s administration chose not to appeal the decisions and largely refrained from further controversial designations of American organizations and citizens. Thus far, President Trump has followed the same approach.

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    That could change. In October, in the lead-up to the midterm elections, Trump characterized the caravan of Central American migrants headed toward the U.S. border to seek asylum as a “National Emergency.” Although he did not issue an emergency proclamation, he could do so under IEEPA. He could determine that any American inside the U.S. who offers material support to the asylum seekers—or, for that matter, to undocumented immigrants inside the United States—poses “an unusual and extraordinary threat” to national security, and authorize the Treasury Department to take action against them.

    Americans might be surprised to learn just how readily the president can deploy troops inside the United States.

    Such a move would carry echoes of a law passed recently in Hungary that criminalized the provision of financial or legal services to undocumented migrants; this has been dubbed the “Stop Soros” law, after the Hungarian American philanthropist George Soros, who funds migrants’-rights organizations. Although an order issued under IEEPA would not land targets in jail, it could be implemented without legislation and without affording targets a trial. In practice, identifying every American who has hired, housed, or provided paid legal representation to an asylum seeker or undocumented immigrant would be impossible—but all Trump would need to do to achieve the desired political effect would be to make high-profile examples of a few. Individuals targeted by the order could lose their jobs, and find their bank accounts frozen and their health insurance canceled. The battle in the courts would then pick up exactly where it left off during the Obama administration—but with a newly reconstituted Supreme Court making the final call.

    4. BOOTS ON MAIN STREET

    The idea of tanks rolling through the streets of U.S. cities seems fundamentally inconsistent with the country’s notions of democracy and freedom. Americans might be surprised, therefore, to learn just how readily the president can deploy troops inside the country.

    The principle that the military should not act as a domestic police force, known as “posse comitatus,” has deep roots in the nation’s history, and it is often mistaken for a constitutional rule. The Constitution, however, does not prohibit military participation in police activity. Nor does the Posse Comitatus Act of 1878 outlaw such participation; it merely states that any authority to use the military for law-enforcement purposes must derive from the Constitution or from a statute.

    The Insurrection Act of 1807 provides the necessary authority. As amended over the years, it allows the president to deploy troops upon the request of a state’s governor or legislature to help put down an insurrection within that state. It also allows the president to deploy troops unilaterally, either because he determines that rebellious activity has made it “impracticable” to enforce federal law through regular means, or because he deems it necessary to suppress “insurrection, domestic violence, unlawful combination, or conspiracy” (terms not defined in the statute) that hinders the rights of a class of people or “impedes the course of justice.”

    Presidents have wielded the Insurrection Act under a range of circumstances. Dwight Eisenhower used it in 1957 when he sent troops into Little Rock, Arkansas, to enforce school desegregation. George H. W. Bush employed it in 1992 to help stop the riots that erupted in Los Angeles after the verdict in the Rodney King case. George W. Bush considered invoking it to help restore public order after Hurricane Katrina, but opted against it when the governor of Louisiana resisted federal control over the state’s National Guard. While controversy surrounded all these examples, none suggests obvious overreach.

    And yet the potential misuses of the act are legion. When Chicago experienced a spike in homicides in 2017, Trump tweeted that the city must “fix the horrible ‘carnage’ ” or he would “send in the Feds!” To carry out this threat, the president could declare a particular street gang—say, MS‑13—to be an “unlawful combination” and then send troops to the nation’s cities to police the streets. He could characterize sanctuary cities—cities that refuse to provide assistance to immigration-enforcement officials—as “conspiracies” against federal authorities, and order the military to enforce immigration laws in those places. Conjuring the specter of “liberal mobs,” he could send troops to suppress alleged rioting at the fringes of anti-Trump protests.

    How far could the president go in using the military within U.S. borders? The Supreme Court has given us no clear answer to this question. Take Ex parte Milligan, a famous ruling from 1866 invalidating the use of a military commission to try a civilian during the Civil War. The case is widely considered a high-water mark for judicial constraint on executive action. Yet even as the Court held that the president could not use war or emergency as a reason to bypass civilian courts, it noted that martial law—the displacement of civilian authority by the military—would be appropriate in some cases. If civilian courts were closed as a result of a foreign invasion or a civil war, for example, martial law could exist “until the laws can have their free course.” The message is decidedly mixed: Claims of emergency or necessity cannot legitimize martial law … until they can.

    Presented with this ambiguity, presidents have explored the outer limits of their constitutional emergency authority in a series of directives known as Presidential Emergency Action Documents, or PEADS. PEADS, which originated as part of the Eisenhower administration’s plans to ensure continuity of government in the wake of a Soviet nuclear attack, are draft executive orders, proclamations, and messages to Congress that are prepared in advance of anticipated emergencies. PEADS are closely guarded within the government; none has ever been publicly released or leaked. But their contents have occasionally been described in public sources, including FBI memorandums that were obtained through the Freedom of Information Act as well as agency manuals and court records. According to these sources, PEADS drafted from the 1950s through the 1970s would authorize not only martial law but the suspension of habeas corpus by the executive branch, the revocation of Americans’ passports, and the roundup and detention of “subversives” identified in an FBI “Security Index” that contained more than 10,000 names.

    Less is known about the contents of more recent PEADS and equivalent planning documents. But in 1987, The Miami Herald reported that Lieutenant Colonel Oliver North had worked with the Federal Emergency Management Agency to create a secret contingency plan authorizing “suspension of the Constitution, turning control of the United States over to fema, appointment of military commanders to run state and local governments and declaration of martial law during a national crisis.” A 2007 Department of Homeland Security report lists “martial law” and “curfew declarations” as “critical tasks” that local, state, and federal government should be able to perform in emergencies. In 2008, government sources told a reporter for Radar magazine that a version of the Security Index still existed under the code name Main Core, allowing for the apprehension and detention of Americans tagged as security threats.

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    Since 2012, the Department of Justice has been requesting and receiving funds from Congress to update several dozen PEADS first developed in 1989. The funding requests contain no indication of what these PEADS encompass, or what standards the department intends to apply in reviewing them. But whatever the Obama administration’s intent, the review has now passed to the Trump administration. It will fall to Jeff Sessions’s successor as attorney general to decide whether to rein in or expand some of the more frightening features of these PEADS. And, of course, it will be up to President Trump whether to actually use them—something no previous president appears to have done.

    5. KINDLING AN EMERGENCY

    What would the Founders think of these and other emergency powers on the books today, in the hands of a president like Donald Trump? In Youngstown, the case in which the Supreme Court blocked President Truman’s attempt to seize the nation’s steel mills, Justice Jackson observed that broad emergency powers were “something the forefathers omitted” from the Constitution. “They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation,” he wrote. “We may also suspect that they suspected that emergency powers would tend to kindle emergencies.”

    In the past several decades, Congress has provided what the Constitution did not: emergency powers that have the potential for creating emergencies rather than ending them. Presidents have built on these powers with their own secret directives. What has prevented the wholesale abuse of these authorities until now is a baseline commitment to liberal democracy on the part of past presidents. Under a president who doesn’t share that commitment, what might we see?

    Imagine that it’s late 2019. Trump’s approval ratings are at an all-time low. A disgruntled former employee has leaked documents showing that the Trump Organization was involved in illegal business dealings with Russian oligarchs. The trade war with China and other countries has taken a significant toll on the economy. Trump has been caught once again disclosing classified information to Russian officials, and his international gaffes are becoming impossible for lawmakers concerned about national security to ignore. A few of his Republican supporters in Congress begin to distance themselves from his administration. Support for impeachment spreads on Capitol Hill. In straw polls pitting Trump against various potential Democratic presidential candidates, the Democrat consistently wins.

    Trump reacts. Unfazed by his own brazen hypocrisy, he tweets that Iran is planning a cyber operation to interfere with the 2020 election. His national-security adviser, John Bolton, claims to have seen ironclad (but highly classified) evidence of this planned assault on U.S. democracy. Trump’s inflammatory tweets provoke predictable saber rattling by Iranian leaders; he responds by threatening preemptive military strikes. Some Defense Department officials have misgivings, but others have been waiting for such an opportunity. As Iran’s statements grow more warlike, “Iranophobia” takes hold among the American public.

    Proclaiming a threat of war, Trump invokes Section 706 of the Communications Act to assume government control over internet traffic inside the United States, in order to prevent the spread of Iranian disinformation and propaganda. He also declares a national emergency under IEEPA, authorizing the Treasury Department to freeze the assets of any person or organization suspected of supporting Iran’s activities against the United States. Wielding the authority conferred by these laws, the government shuts down several left-leaning websites and domestic civil-society organizations, based on government determinations (classified, of course) that they are subject to Iranian influence. These include websites and organizations that are focused on getting out the vote.

    Lawsuits follow. Several judges issue orders declaring Trump’s actions unconstitutional, but a handful of judges appointed by the president side with the administration. On the eve of the election, the cases reach the Supreme Court. In a 5–4 opinion written by Justice Brett Kavanaugh, the Court observes that the president’s powers are at their zenith when he is using authority granted by Congress to protect national security. Setting new precedent, the Court holds that the First Amendment does not protect Iranian propaganda and that the government needs no warrant to freeze Americans’ assets if its goal is to mitigate a foreign threat.

    Protests erupt. On Twitter, Trump calls the protesters traitors and suggests (in capital letters) that they could use a good beating. When counterprotesters oblige, Trump blames the original protesters for sparking the violent confrontations and deploys the Insurrection Act to federalize the National Guard in several states. Using the Presidential Alert system first tested in October 2018, the president sends a text message to every American’s cellphone, warning that there is “a risk of violence at polling stations” and that “troops will be deployed as necessary” to keep order. Some members of opposition groups are frightened into staying home on Election Day; other people simply can’t find accurate information online about voting. With turnout at a historical low, a president who was facing impeachment just months earlier handily wins reelection—and marks his victory by renewing the state of emergency.

    This scenario might sound extreme. But the misuse of emergency powers is a standard gambit among leaders attempting to consolidate power. Authoritarians Trump has openly claimed to admire—including the Philippines’ Rodrigo Duterte and Turkey’s Recep Tayyip Erdoğan—have gone this route.

    Of course, Trump might also choose to act entirely outside the law. Presidents with a far stronger commitment to the rule of law, including Lincoln and Roosevelt, have done exactly that, albeit in response to real emergencies. But there is little that can be done in advance to stop this, other than attempting deterrence through robust oversight. The remedies for such behavior can come only after the fact, via court judgments, political blowback at the voting booth, or impeachment.

    By contrast, the dangers posed by emergency powers that are written into statute can be mitigated through the simple expedient of changing the law. Committees in the House could begin this process now by undertaking a thorough review of existing emergency powers and declarations. Based on that review, Congress could repeal the laws that are obsolete or unnecessary. It could revise others to include stronger protections against abuse. It could issue new criteria for emergency declarations, require a connection between the nature of the emergency and the powers invoked, and prohibit indefinite emergencies. It could limit the powers set forth in PEADS.

    Congress, of course, will undertake none of these reforms without extraordinary public pressure—and until now, the public has paid little heed to emergency powers. But we are in uncharted political territory. At a time when other democracies around the world are slipping toward authoritarianism—and when the president seems eager for the United States to follow their example—we would be wise to shore up the guardrails of liberal democracy. Fixing the current system of emergency powers would be a good place to start.

    Elizabeth Goitein is co-director of the Liberty & National Security Program at the Brennan Center for Justice at NYU School of Law. Full bio


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    20 hours 6 minutes ago
  • Victim of the bank and of the 'theft' of files by the legal ethics people, writes Tess Lawrence about undercover ops on cover ups

    independentaustralia.net/life/life-displ...abuser-priests,11972

    Contributing editor-at-large Tess Lawrence conducted research in the mid-1990s into the Catholic clergy and the confessional, she organised for researchers to pose as priests, Christian brothers and lay teachers to enter the confessional box to "confess" they had sexually abused children.

    “BLESS ME FATHER, it is a week since my last confession. I am a priest and I have been raping little boys and girls and forcing them to masturbate me and suck my cock and I have penetrated their vaginas and anuses, sometimes with foreign objects, including the crucifix.”

    “Perhaps we should meet and discuss this in person,” says the confessor to the penitent.

    Both priests agree to later meet in person. Not for spiritual or other counselling. Or pastoral guidance. Not at all. And certainly not to persuade the penitent to go to the police. But rather to exchange names and grooming techniques of their respective child victims. And to get their rocks off recounting sexual exploits.

    Unlikely? More common than we think. How do I know? Please read on.
    CHURCH RESISTS BREAKING SEAL OF CONFESSION MORE THAN
    BREAKING THE SEAL OF VIRGINITY OF LITTLE CHILDREN

    It is distressing writing about child sex abuse, as it is reading about it. So how distressing must it be for those who have actually been the victims of it. Free from some of the shackles of the past, we are long overdue for truth telling.

    The scenario above is but one of the codex of communications between paedophile clergy. It is not apocrypha.

    While it is not the only reason of course, it is one of the internecine reasons why the Catholic Church continues to resist calls to break the Seal of Confession more earnestly than it does for the breaking of the seal of virginity of little children.
    LAWRENCE RESEARCHERS POSE AS SEX ABUSER PRIESTS IN CONFESSION

    In critical forensic research and intelligence gathering I conducted in the mid-1990s into Catholic clergy and the confessional, I organised for researchers to pose as priests, Christian brothers and lay teachers to enter the confessional box to "confess" they had sexually abused children.

    I make no apology for doing so.

    On occasion, we kept the "confession" oblique – impure deeds perpetrated upon children, impure thoughts, inability to control one's desire – plagued by impure thoughts about children. Confession by rote.

    Other times, the "confession" was explicit and unambigious. Sometimes, the script mentioned excessive drinking, drug taking and plying young people with these as well.
    CONFESSOR INVARIABLY BLAMED THE DEVIL AND NOT PERPETRATOR

    It was certainly not a large survey and research was confined to Victoria but findings were disturbing.

    Almost to a man, the priest invoked the name of the Devil, shifting the onus of responsibility for the abuse onto the Black Prince rather than the perpetrator. Get behind me Satan. The Devil made me do it. That sort of thing.

    The priest would say something like: “That is the Devil's way of hurting Christ through you.”
    LITTLE CONCERN FROM PRIESTS ABOUT THE SAFETY OF THE CHILD VICTIMS

    The emphasis was on capitulating to Satan and temptation. Little concern or compassion was ever expressed about the health, welfare and safety of the children. Or the gravity and consequences of such criminal activity.

    Nor was there any attempt to counsel the penitent to seek psychiatric help, or give himself up to police, consult the school principal, or leave the school and the priesthood, et cetera.
    SEX ABUSE "PERPETRATORS" ABSOLVED FROM SINS
    CHURCH RUBBER STAMPING CONFESSIONAL'S CODE OF OMERTA

    In all instances, penitents were asked if they were truly sorry and told not to sin again. And, in all instances, were granted absolution.

    Basically, the Church was rubber-stamping the seal of approval on the confessional's code of omerta.

    In interviews with clergy, I learned that “pedo” priests knew one another and, in some instances, were friends with Anglican priests and other denominational leaders, such pedo rings a squalid version of ecumenism.
    CONFESSION A GET-OUT-OF GOAL CARD FOR PEDO PRIESTS

    As it stands, the Confessional remains not only a sort of speed dating and baiting conduit for paedophile priests, but it's also a get-out-of goal card for lone wolf predators including those who travel to parishes far away from their own in order to confess their recidivist sins to a "stranger" priest — a perverse parody that might well be called "The Gospels of Clergical Sex Abuse of Children according to the Apostles of Predators".

    The only Catholic Church-specific recommendation from the Royal Commission into Institutional Responses to Child Sex Abuse that the Church has rejected is this one:

    Recommendation 16.10

    The Australian Catholic Bishops Conference should request the Holy See to amend canon law so that the pontifical secret does not apply to any aspect of allegations or canonical disciplinary processes relating to child sexual abuse.

    We hear clergy, their lawyers and apologists euphemise rape and sexual abuse of children. The raw ugliness of these crimes is still coddled in terms designed to mollify the gravity and extent of sexual abuse. Churches/religions/institutions of all creeds and none are guilty of this.

    We need to know and give utterance to what the phrase "inappropriate behaviour" actually means in each case. We need to tell it as it was and as it is. Now and forever. Amen.
    TO EUPHEMISE SEX ABUSE IS TO EUTHANISE PAIN, SUFFERING OF VICTIMS

    To euphemise sex-abuse is to euthanise the enduring pain, suffering and suicides of victims and their families; the physical and mental excoriation that sex abuse has on those directly involved and the wider community.

    If a priest/brother/nun/lay teacher confesses to the priest that he/she "behaved inappropriately" with a child/student it could mean anything from giving students too much homework, or plying them with drugs and alcohol and sexually abusing them.

    Likewise phrases used in the confessional, that imply sexual misdeeds and are familiar to Catholics include the likes of having 'impure thoughts' and committing “impure deeds.” These phrases could mask anything from lusting after someone to committing rape.

    So when the Church sends a known paedophile priest or brother to another state or school, it must bear the consequences of its squalid actions in both a criminal and pastoral sense. Given that the Church has become little more than a product and a brand, knowingly manufacturing faulty goods, unfit for purpose.

    While the Church continues to mouth platitudes about love, compassion, reconciliation and feigns reaching out to victims and families, we see few acts of contrition, do we not?

    CHURCH BEHAVES UNDER SEIGE BECAUSE IT IS UNDER SEIGE

    It behaves as if under seige because it is under seige. There is no turning of the other cheek.

    The "brand" must still be protected at any cost. There are too many money men in the temples.

    The Church fights its own flock with lawyers and spin doctors. It laughingly refers to itself as "Mother Church" or the Bride of Christ. It takes the names of mothers and brides in vain. These terms are early examples of spin, febrile attempt to assuage the all-male mysogynistic heirachy that imposed celibacy on priests to stop women and heirs from inheriting land and property, and diluting its obscene wealth.

    Better to call itself "Father Church". For that is what it is. And yes, the curia is comprised of mostly white men.

    In the Vatican's take on celibacy, you won't find many women quoted or any serious writings about the real reason for celibacy technically known as the "law of continence". Another euphemism.

    However the Vatican's shrewdness in engaging a female to deflect its fear and loathing of women is pertinent.

    In her article on its website, the late Maria Adelaide Raschini, writing when Professor of Theoretical Philosophy at the University of Genoa, argued against assertions of the Church's misogyny. I didn't understand it. I'd be worried if I did. Please decide for yourself.
    PARLOUS AND PITILESS DEEP STATE OF THE CATHOLIC CHURCH

    The parlous and pitiless deep state of the Catholic Church, its cover-up and corrupt attendance to the industrial strength sexual abuse and cruelty towards children has diminished its authority.

    On an international scale the various royal commissions, grand jury inquiries and other legal and political jurisdictions have implicated and indicted the Catholic Church.

    Globally, including in Australia, it has responded with little more than platitudes and insincere mea culpa. It baulks at the criminal and compensatory aspects of this scourge.
    POPE FRANCIS CALLS HIS BISHOPS TO ROME FOR SEX ABUSE SUMMIT

    Pope Francis, still wincing from the tepid reception he got on his recent visit to Ireland has summoned all his Bishops to attend a summit in Rome in February next year, specifically to discuss sex abuse and no doubt celibacy and the seal of confession.

    When he spoke at the Melbourne Press Club last month, His Grace Peter Comensoli, the newly appointed Archbishop of Melbourne was questioned about the seal of confession.

    From the ABC's Ben Knight:

    Asked if he would forgive a Catholic priest who confessed to sexual abuse, Archbishop Comensoli did not hesitate.

    "Absolutely yes," he said.

    "And not just then forgiveness — then I will see what we can do in terms of the action that goes with that forgiveness."

    Archbishop Comensoli also ruled out breaking the seal of the confessional and was asked what he would do if a child reported sexual abuse in the confessional.

    "I would immediately take the child outside the confessional and talk to them a little bit about the matter they have raised with me — and ask what steps can I take to help get you to safety," he said.

    EILEEN PIPER SHOWS COMENSOLI PHOTO OF DEAD DAUGHTER

    At our table, eminent lawyer, writer and campaigner Dr Judy Courtin and myself were flanked by the extraordinary Eileen Piper and Chrissie Foster, both mothers whose children were sexually abused by Catholic priests. Both mothers whose children had suicided as a result. Both mothers who, despite being brutalised and mauled by the abrasive tactics of the Catholic Church, continue to relentlessly fight for justice for their children and the children of others, many of those, of course, now adults, parents and grandparents.

    Chrissie Foster and her husband Anthony, who died last year, are pivotal figures in the ongoing fight for justice for victims, survivors and families.

    In an Independent Australia tribute to Anthony in May last year, I wrote

    For decades, Anthony and his beloved Chrissie have fought for justice, not only for their two daughters who, as little girls, were repeatedly raped by a Catholic priest while attending a Catholic school, but also for the thousands of other victims/survivors of industrial strength child sex abuse, perpetrated by the church's crack SAS (Sexual Abuse Squad) army of career paedophiles...

    Disarmingly and brutally honest about the nature of crimes against their own and other children, they made one likewise determined not to euphemise the facts or euthanise the truth.

    This couple lived with the anguish of knowing that the serial sex offender Father Kevin O'Donnell repeatedly raped their daughters, Emma and Katie at Oakleigh's Sacred Heart Primary School.

    Emma was later to suicide from an overdose when she was 26 years old, found dead on her bedroom floor clutching the teddy bear her parents had given her when she was a little baby.

    Like her big sister, Katie had also spiralled out of control and, after drinking heavily, she walked into a car travelling at high speed and is now permanently impaired — both mentally and physically....

    Disarmingly and brutally honest about the nature of crimes against their own and other children, they made one likewise determined not to euphemise the facts or euthanise the truth.

    This couple lived with the anguish of knowing that the serial sex offender Father Kevin O'Donnell repeatedly raped their daughters, Emma and Katie at Oakleigh's Sacred Heart Primary School.

    Emma was later to suicide from an overdose when she was 26 years old, found dead on her bedroom floor clutching the teddy bear her parents had given her when she was a little baby.

    Like her big sister, Katie had also spiralled out of control and, after drinking heavily, she walked into a car travelling at high speed and is now permanently impaired — both mentally and physically.

    Three months earlier in IA, Judy Courtin also wrote about her now 93 year old client, Eileen Piper. Her daughter Stephanie suicided in 1994 after having been repeatedly raped by Catholic priest Father Gerard Mulvale, of the Pallottine order in Victoria's suburb of Syndal – yet another Catholic male entity that couches itself in female terms, describing itself as Regina Mundi – Queen of the World.

    Our foreword to Courtin's compelling article included this:

    'The Catholic Church have conspired to trash her daughter's reputation — and hold fast to the findings of the church's farcical self-investigation decades ago.'

    COMENTSOLI SPEAKS WITH GRIEVING EILEEN, ACCEPTS COURTIN'S DOSSIER

    Now at the MPC function, Judy Courtin took the microphone to ask His Grace if he would accept a legal dossier outlining Piper's case. In an emotionally charged and powerful scene, a grieving and shaking Eileen stood up and showed Comensoli a photo of her dead 32 year old daughter Stephanie, in her coffin.

    It was a heart wrenching moment.

    Eileen Piper, clutching a photo of her late daughter in her coffin, just wants an apology from the Catholic Church. t.co/5ySuvvHuvi
    — Ben Schneiders (@benschneiders) August 30, 2018

    Comensoli came to our table at the rear of the room and spoke with Piper and Foster and agreed to accept Courtin's dossier to review Eileen's case.
    EILEEN PIPER'S "ME TOO" MOMENT, DAUGHTER SLUT-SHAMED BY CHURCH

    In the Age, Ben Schneiders and Royce Millar quoted Courtin:

    Ms Piper would like the the church to see this, and to see what the church ultimately drove her daughter to do...Your grace, this is Stephanie Piper's 'me too' moment.

    ...Stephanie was told the alleged sex crimes never happened and that basically she was a liar... Stephanie was threatened, untruths were manufactured, seriously tarnishing her character or, using the present day vernacular, there was victim-blaming and slut-shaming.

    I wondered then, as I do now, to whom did serial sex offenders Fathers Gerard Mulvale and Kevin O'Donnell confess ?
    RATHER THAN ASK CONFESSOR, ASK PEDO PRIESTS
    WHO HEARD THEIR CONFESSiON? WHO ABSOLVED THEIR SINS?

    I have a suggestion to make for police and prosecutors, regardless of the Confessor's seal, questions could be put to the alleged perpetrator and convicted perpetrators. Did you confess your sins? To whom did you confess? How many times did you confess? Were you absolved of the sin of child sex abuse?

    Not so much an inquisition, but certainly an interrogation is warranted.

    And rather than skirt around hypotheticals to Archbishops and other priests, asking what they would do if someone came to them and confessed they were abusing children, it is time to ask them directly, if they have heard confessions from sex abusers? And what did they do about it?

    God and not the Devil is in the detail. Let us leave no fire and brimstone unturned.

    As Arthur Miller wrote in his ever prescient allegorical play The Crucible:

    '... remember, until an hour before the Devil fell, God thought him beautiful in Heaven.'

    The Synod of Bishops is meeting in Rome from 3 to 28 October.

    Please seek help from Lifeline on 13 11 14 if matters mentioned in this article causes any distress.

    DISCLOSURE: Tess Lawrence has worked for the Christian Brothers in Victoria. Lawrence is a prolapsed Catholic.

    AFFIRMATION: There are many, many wonderful people in the Catholic Church, and many wonderful priests and brothers and I know some of them.

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    2 days ago
  • Shirley Joseph is in the complaint by George W Bush' friends in Mildura Australia.

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    3 days ago
  • Charles Ponzi replied to the topic Tina Stagliano's Case with Badawi Mokbel? in the forum
    Is this place in Grove Street and owned by a immigrant builder called "Badawi Mokbel"?


    Victoria Police royal commission: Tony Mokbel’s cook spilt the beans
    Victoria Police chief commissioner Graham Ashton at a news conference in Melbourne yesterday. Picture: Jake Nowakowski
    Victoria Police chief commissioner Graham Ashton at a news conference in Melbourne yesterday. Picture: Jake Nowakowski

    Chip Le Grand
    Victorian Chief Reporter
    @Melbchief
    11:00PM December 3, 2018

    Within the blood-soaked history of Melbourne’s gangland war, he never fired a shot nor ordered a hit. His was never a household name; no one would remember him from the Underbelly series.

    Yet, when it came to making speed, the drug that fuelled so much of the murder and lawlessness of that time, he could cook like no one else. He wasn’t just a cook, he was the cook, Tony ­Mokbel’s cook.

    To understand the story of Lawyer X, an extraordinary scandal that has plunged the Victoria Police and judiciary into crisis and forced the Andrews government to establish a royal commission into the potentially corrupt use of police informants, it is best to start with Cookie. Lawyer X was Cookie’s lawyer. She was also his friend, or so he thought. She applied for him to get bail, she babysat his kids. She helped organise his 40th birthday party.
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    He became obsessed with her. One day, while working at one of Mokbel’s suburban meth labs, he described in explicit terms what he wanted to do to her, unaware he was being recorded by a hidden listening device. Perhaps blinded by his obsession, he told her things he never should have about his drug dealings and associates. He was also blind to the fact she was passing on this information to police. He never suspected his own lawyer was conspiring with police to set him up.

    Within the gang-busting Purana Taskforce, Lawyer X was known as registered human source 3838. She was first registered as a police informant in 2005 but, by her own admission, she had been providing information to police since the taskforce was formed in 2004 to bring to an end the gangland war.

    She was a volatile, socially gregarious and highly talented barrister who enjoyed the company of crooks and cops. She understood how the system worked. She knew how to cut deals for her clients and, apparently, was prepared to throw others under a bus. For police trying to break apart this treacherous sub-culture, she was the ultimate double agent. She is also at the centre of an episode which, in the judgment of the High Court, has “debased fundamental premises of the criminal justice system’’.

    In a fateful moment in September 2005, Cookie told Lawyer X about an address in Coburg, in Melbourne’s north, where he and other members of The Company, Mokbel’s cartel, were manufacturing drugs. Lawyer X told police the location of the lab. In the raids that followed, Cookie was ­arrested and charged. The first person he called was Lawyer X. She went to the St Kilda Road Police Complex, where the Purana Taskforce was housed, and talked at length to her client. That same day, she told her police handlers Cookie had agreed to rat on other members of The Company. He would eventually stand as a star witness against Mokbel, ­another client of Lawyer X.

    Cookie’s co-operation was ­essential to bringing down The Company and securing a 30-year prison term against Mokbel, the Purana Taskforce’s most celebrated scalp. A further six Mokbel ­associates, including Cookie, were convicted. The High Court has now found those convictions were corrupted by what Lawyer X did and what senior figures in Victoria Police encouraged her to do.

    Why would any defence lawyer betray her own clients? In ­secret testimony provided to the Victorian Supreme Court in February last year, Lawyer X said she feared being charged with being an accessory to crimes if she did not provide information to police. She later contradicted this testimony under cross-examination, saying her sole motivation was to rid her life of the cartel and get the “Mokbel monkey’’ off her back.

    In earlier correspondence with police, Lawyer X claimed to be acting for altruistic reasons. In a 2015 letter to Victoria Police ­assistant commissioner Steve Fontana, Lawyer X described her frustration at the failure of police to collar those responsible for massive drug operations, murders, bashings and money-laundering. She denied receiving payment for information or being threatened with criminal prosecution by police.

    In the same letter, she claims 386 people were arrested on information she provided. The list includes: Mokbel’s brothers Horty and Milad; the central figures in a conspiracy to import 4.4 tonnes of ecstasy pills in tomato tins, Pasquale Barbaro, Robert Karam and John Higgs; Carlton Crew identity Mick Gatto; Victor Pierce’s assassin Frank Orman; and another gangland killer who in turn became a supergrass witness and cannot be identified.

    Two of those figures, Tony Mokbel and Karam, have already taken steps to challenge their convictions on the basis of Lawyer X’s secret life as an informer. Lawyers for Mokbel have lodged a freedom of information request with the Office of Public Prosecutions for any documents that refer to her as a police informant. Karam has initiated appeal proceedings.

    Within police and Melbourne’s criminal networks, not everyone trusted Lawyer X. Carl Williams liked her and talked to her regularly but, as the walls closed in around him and trusted allies began disappearing into witness protection, he warned Tony Mokbel that Lawyer X might be playing both sides of the street. At police headquarters, at least one detective was willing to call out the arrangement with Lawyer X for what it was.

    In 2009, the most expensive investigation in Victoria Police history was on the brink of collapse. The Briars taskforce had been established two years earlier to investigate the links between the killing of Shane Chartres ­Abbott, a male prostitute who claimed to be a 200-year-old vampire, and corrupt police. Despite an exhaustive investigation involving a hugely expensive surveillance operation, taskforce detectives had been unable to corroborate critical evidence of the star witness — a murderer and perjurer who, like Lawyer X, had become a police informant.

    In a desperate decision, deputy police commissioner Simon Overland requested the lead investigator, experienced homicide detective Ron Iddles, take a statement from Lawyer X about who was at a certain pub on a particular night. Iddles refused and ­issued what now stands as a prophetic warning. “I rang back to the office here and said ‘do you realise what you are asking me to do?’’’ Iddles told The Australian in 2014. “I said you’d better tell Simon this is a bad, bad move.’’

    Iddles believes that if Lawyer X had become a witness in the case, Briars would have triggered a royal commission. Lawyer X was also prescient on this point. She was convinced she would be killed if she was ever exposed as a police informant.

    “If this gets out, say nice things at my eulogy, because I will be gone,” she told her police handlers at one point. “And enjoy the royal commission.’’

    Now that a royal commission is being established, it is likely to delve beyond the activities of registered human source 3838 and into one of the darkest corners of the gangland war: the way in which murderers, rapists, violent career criminals and inveterate liars were offered preferential treatment, financial inducements, heavily reduced sentences and lifelong protection from public scrutiny to provide select evidence to secure convictions.

    Some convicted gangland killers have served their time and are back in the community due to the generous agreements they struck with the police and OPP. Where a properly conducted royal commission might end and who it might ensnare are impossible to predict.

    Lawyer X’s unethical conduct and the Victoria Police decision to use her as a registered informant have already been examined by an Independent Broad-Based Anti-Corruption Commission investigation conducted by retired Supreme Court judge Murray Kellam QC, a separate review by former police chief commissioner Neil Comrie, Victorian Supreme Court judge Timothy Ginnane, three judges of the Court of Appeal and seven of the High Court.

    There remains, however, a long list of people who haven’t yet ­explained what they knew about Lawyer X and why they didn’t put a stop to an arrangement with the potential to compromise the ­entire criminal justice system. Police chief commissioners Christine Nixon and Overland are at the top of that list, along with prosecutors who agreed to run cases built on information reports she provided to police.

    One of them is the lawyer who has battled for two years against Victoria Police in the courts to bring the Lawyer X scandal to light: former director of public prosecutions John Champion SC. His successor, Kerri Judd, yesterday wrote to 20 crooks informing them their defence barrister, Lawyer X, was a police informant who might have provided information against their interests. One of them is a member of The Company who, in 2011, was convicted of trafficking a commercial quantity of methamphetamine and sentenced to a minimum of nine years in jail. He cannot be identified for legal reasons.

    Three years ago, this drug trafficker wrote a letter to Kellam ­expressing concern that his conviction might be unsafe. In the letter, he raised the prospect that Champion should not be involved in reviewing his case because he prosecuted it. The letter goes on to describe how Cookie, a prosecution witness whose identity is still protected by court orders, massaged his testimony to police over nearly 40 separate statements. “He and others were coached by police in what to say,’’ the criminal wrote. “(Cookie) would give one version of events in one proceeding against an ­accused and a different version of events against another accused in a different hearing. His evidence was akin to ordering updated versions of computer software.’’

    This phenomenon — constantly shifting evidence from compromised, gangland witnesses — runs like a virus through the transcripts of the major drug and murder cases which followed the end of gangland war.

    The star witness of the royal commission will be Lawyer X. Her relationship with police soured in 2009. Since then she has refused to enter police protection and become locked in a bitter dispute over how police handled her and failed to conceal her identity as a registered informant. In a 2014 letter to chief commissioner Ken Lay, she made clear her distress at public disclosures about her secret role, led by the Herald Sun. “I am not prepared to entrust everything personal to me and my children as well as our privacy, safety and wellbeing to the very organisation that promised and assured me that my assistance over a number of years would ­always remain confidential, yet failed so appallingly in protecting my status and, indeed, has put my life as well as the life of my children at risk.’’

    In a 2010 text message to a friend, Lawyer X was more blunt: “I’m looking forward to cross-­examining Simon and his band of dishonest, perjuring clowns. They’ve picked the wrong person to f. k over, that much I promise.’’

    For all the help that Lawyer X provided police over many years, they can expect none from her.
    Chip Le Grand
    Victorian Chief Reporter
    Chip Le Grand is chief reporter for The Australian in Melbourne and author of The Straight Dope: The inside story of sport's biggest drug scandal, published by Melbourne University Press.

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    5 days ago
  • Charles Ponzi replied to the topic Aussie 'Whistleblowers' go to washington in the forum
    www.afr.com/news/politics/national/austr...duct-20181202-h18m7u

    Australian whistleblowers turn to US authorities to report misconduct
    By Elouise Fowler and Tom McIlroy02 Dec 2018 — 11:00 PM

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    Forty-five Australian whistleblowers have tipped off a US corporate regulator about suspected misconduct and may be financially rewarded for their actions.

    The Australian whistleblowers were among 650 people outside of the US who complained to the US Securities and Exchange Commission Office of the Whistleblower.

    The SEC has a reward program for whistleblowers whose tip-offs lead to successful sanctions which attract penalties exceeding $US1 million ($1.37 million).

    Australian whistleblowers were among 650 people outside of the United States who complained to the US Securities and Exchange Commission Office of the Whistleblower.

    A report by the US commission revealed Australia to be the third-largest source of international complaints behind Canada and Britain.

    It's likely these complaints are from employees working for US-listed firms or companies with headquarters in the US.
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    A cross-party Australian parliamentary committee recommended a similar financial reward scheme for corporate sector whistleblowers but the government has so far ignored the advice in its latest proposed law, listed for debate in the Senate this week.

    Griffith University professor of public policy and law A.J. Brown, who headed an expert panel advising the government on whistleblower reforms, said a reward scheme needed further work but warned Australia should avoid simply following the US.

    "A key aspect to any reward scheme would be that it confirms the value of whistleblowing but we need to consider a scheme that would be appropriate for Australia," he said.

    "But I see this reform to whistleblowing laws as the first step in an ongoing process. A reward system is something to be considered in the future."



    Institute of Company Directors general manager of advocacy Louise Petschler said the organisation did not support a US-style system.

    "The issue of bounties could be considered if the compensation model for whistleblowers doesn't work," she said. "We would like to see the compensation model tested first."

    The proposed laws, which dramatically overhaul whistleblower protection in the corporate sector, would make it easier for whistleblowers to claim compensation for damages through the courts but whistleblowers would not be directly rewarded – given a bounty – for successful prosecutions.

    The laws expand the type of people, beyond an employee, who can blow the whistle. This includes contractors, former employees, and family.

    Independents Cathy McGowan, Kerryn Phelps and Rebekha Sharkie are pressuring the government over an anti-corruption commission. Alex Ellinghausen

    The types of permitted tip-offs have been extended too, from a vague definition of general corporate wrongdoing to offences including fraud and compliance breaches.

    One of the most significant aspects of the reform relates to when a whistleblower can go public, including speaking to the media or an MP.

    "If they blow the whistle at least to a regulator, and nothing is happening in 90 days, it's relatively simple for them to go public," Professor Brown said

    He described the changes as "Australia's most powerful driver yet, not just for companies to improve their culture and compliance, but for regulators like ASIC to change their previous lax ways".

    The plan also requires companies to create comprehensive whistleblowing policies which will need to spell out exactly how they plan to support and protect those who speak up, as well as how to make a tip-off and the processes by which the issue will be addressed.

    Finance Sector Union national secretary Julia Angrisano said the impact on whistleblowers was enormous.

    The union represents 35,000 financial service workers across the banking and insurance industries

    "Speaking up about misconduct is often detrimental to the whistleblower's career and their wellbeing," she said.

    While the government's proposed laws ignored the parliamentary committee's call to establish an office of the whistleblower, a proposal for a new national anti-corruption commission championed by crossbench MPs takes up the proposal.

    The bill released by Indi MP Cathy McGowan would establish a new whistleblower protection commissioner role, designed to ensure individuals who report corruption are not made to suffer consequences or face victimisation.

    The commissioner would be charged with receiving and investigating disclosures of wrongdoing; providing advice, assistance, guidance and support to people reporting wrongdoing and keep secret the identity of whistleblowers when required.

    "These proposed new laws need to be properly enforced and it's important to establish this authority sooner rather than later," Professor Brown said.

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    6 days ago
  • Charles Ponzi created a new topic ' Howard Bowles' PAC Cases with Clinton' in the forum.
    Charles Ortel reports, Californian charity regulators are picking through Clinton Foundation books in a bid to understand why the declared numbers in required filings don’t add up and, presumably, how cash listed on one set of books underwent a remarkable shrinkage before being listed in another. Ortel, a former merchant banker and forensic accountant, writes:

    The Clinton Foundation’s 2016 federal filing poses additional problems. Total revenues declared in Part VIII, line 1h, were just $63 million, or $14 million less than the amount declared on the California RRF-1 filing — and a whopping $154 million less than the figure independently confirmed by auditor CohnReznick.

    Why so many large discrepancies?

    The largest recipient of grants and contributions seems to be a separate entity called Clinton Health Access Initiative Inc. (CHAI)

    In total, Australia sent some $88 million the Clintons’ way, the most notable resulting public good being Julia Gillard’s frequent absences from the country in her capacity as chairperson of the Clintons’ Global Partnership for Education. This must have been very exciting for Ms Gillard, who got to rub shoulders with pop star Rihanna and explain Wayne Swan-style mathematics to Malawian children. Do notice the “3 – 0 =0” on the blackboard in the picture atop this post.

    Some two weeks after Hillary Clinton’s inevitable triumph in the 2016 US presidential election proved to be anything but, Australia stopped contributing the annual millions of dollars it had been donating to Clinton charities since Julia Gillard first opened the national purse strings. The uncharitable might have been inspired to see the move as especially cynical. It is one thing to support a couple whose female half was generally and confidently reckoned to be a shoo-in for a stint in the Oval Office, quite another to be adding bottom-line heft to the treasure chest of a bitter loser with no power nor influence to peddle and investigators picking through her various charities’ and foundations’ books.

    Just what Australia hoped to achieve for its taxpayers’ money has never been entirely clear. The Clinton Foundation, for example, ran “health programs” in Papua-New Guinea which Australia’s cash helped underwrite. Why was it necessary to direct money via the circuitous route of the Clintons’ coffers when the intended beneficiaries were just up the road, so to speak?

    If that question intrigues, know that others are also fascinated by what the Clintons did or didn’t do with vast sums of other people’s money. As journalist Charles Ortel reports, Californian charity regulators are picking through Clinton Foundation books in a bid to understand why the declared numbers in required filings don’t add up and, presumably, how cash listed on one set of books underwent a remarkable shrinkage before being listed in another. Ortel, a former merchant banker and forensic accountant, writes:

    The Clinton Foundation’s 2016 federal filing poses additional problems. Total revenues declared in Part VIII, line 1h, were just $63 million, or $14 million less than the amount declared on the California RRF-1 filing — and a whopping $154 million less than the figure independently confirmed by auditor CohnReznick.

    Why so many large discrepancies?

    The largest recipient of grants and contributions seems to be a separate entity called Clinton Health Access Initiative Inc. (CHAI)

    In total, Australia sent some $88 million the Clintons’ way, the most notable resulting public good being Julia Gillard’s frequent absences from the country in her capacity as chairperson of the Clintons’ Global Partnership for Education. This must have been very exciting for Ms Gillard, who got to rub shoulders with pop star Rihanna and explain Wayne Swan-style mathematics to Malawian children. Do notice the “3 – 0 =0” on the blackboard in the picture atop this post.

    For more on the Clinton investigations, follow this link or the one below.

    Read More

    quadrant.org.au/clintons-australias-cash...oBuuEqlpGu1tFN1mYl2g

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    1 week ago
  • Charles Ponzi created a new topic ' Hayne Pain by Richard Glyas' in the forum.
    The nation’s bankers and regulators have learned from bitter experience since March that the ordeal of appearing before the financial services royal commission continues long after former High Court judge Kenneth Hayne uncages them from the witness box.

    What comes next is a verdict handed down in the equally hostile court of public opinion.

    “There’s only two outcomes — you’re either dead or you’re not dead,” one executive says.
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    Stephen Brook

    For many witnesses, a session or two with commissioner Hayne’s crack team of lawyers, who were armed with thousands of documents the authors never expected would see daylight, has been the most terrifying experience of their professional lives.

    AMP’s avuncular head of advice, Jack Regan, who went through a gruelling examination in the commission’s April hearings on financial advice, has not returned to work and it’s unlikely he ever will, at least not in a senior leadership role.

    Regan accepted under cross-examination that AMP made 20 misleading statements or misrepresentations to the corporate regulator.

    These and other revelations caused a board clean-out at the wealth-management giant, including the resignation of chairman Catherine Brenner and the accelerated departure of chief executive Craig Meller. The once-venerated company has shed more than $6 billion in value since its innards were exposed.

    Ian Narev fared little better. While he never graced the witness box, a cloud hangs over the former Commonwealth Bank chief executive after his successor, Matt Comyn, said Narev told him to “temper your sense of justice” over the bank’s sale of junk insurance products.

    The good news for the harried financial services sector, which is the nation’s largest contributor to GDP at $140 billion and employs 450,000 people, is that the public hearings are now over.

    In its 68 days of examining witnesses, 7500 pages of transcript were generated. Hayne’s massive dragnet — often deployed late on a Friday when it would cause maximum disruption — hauled in 820,000 documents.

    Infuriatingly for some, the commission heard from only 27 customers, but Hayne stressed from the beginning that he did not propose to run a forum for bank victims; case studies would be carefully chosen to identify where the system fell down and what should be done about it.

    In the next eight weeks or so, the tempo changes as Hayne hunkers down to meet the February 1 deadline for his final report. Then, on February 2, he is largely forgotten as the bureaucratic machine cranks into gear.

    A taskforce in the federal Treasury led by James Kelly, chief adviser in the department’s financial system division, has already been established to help develop the government’s response.

    “It’s where the rubber hits the road,” a Canberra source says. “It’s going to be part of the (federal election) campaign, so the report isn’t going to sit on the shelf.”

    Suffice it to say that the government’s response will have to be ­extremely carefully calibrated to avoid significant unintended consequences.

    Heading the list of dangers is the prospect of the current credit squeeze escalating into a damaging crunch, or even a recession, if Hayne’s demonstrated interest in non-compliance with responsible lending obligations translates into a crackdown.

    Already, the flow of credit into the housing market has slowed due to speed limits on investor lending imposed by the prudential regulator.

    The banks, however, have anticipated a tougher responsible lending framework post-Hayne, asking for detailed information about customers’ living expenses instead of widespread reliance on statistical benchmarks like the household expenditure measure.

    ANZ chief executive Shayne Elliott has said home-lending growth was likely to halve next year to 2.5 per cent, but ­investment bank UBS is much gloomier, predicting zero growth if responsible lending is strictly ­enforced.

    Reserve Bank deputy governor Guy Debelle highlighted earlier this month that Elliott’s forecast was for “slower growth, not going backwards”.

    “I think it’s tightening up but it’s in an environment where the economy’s going along fine — household income is growing and unemployment is falling,” Debelle told The Weekend Australian after a business lunch.

    The Morrison government is well aware that fiddling with ­responsible lending carries very high stakes indeed. Treasurer Josh Frydenberg has noted that Hayne has brought into focus the twin ­issues of responsible lending and misconduct.

    “While both issues are important, I do see them to some extent as separate with different responses required,” Frydenberg said.

    “Great care needs to be taken around any further changes to responsible lending in order to prevent an unnecessarily restrictive approach to credit.”

    Opinion is divided about Hayne’s likely recommendation.

    One possibility is to lift the bar on responsible lending so that credit contracts have to be “suitable” for the customer instead of the current “not unsuitable” requirement. But as one commission participant said, that would amount to a lawyer (Hayne) instructing the banks how to lend.

    “The commissioner won’t want his legacy to be the Hayne recession,” he said.

    Beyond responsible lending, there’s an extensive list of issues for the commissioner to consider in his final report.

    They range from the regulatory system’s shortcomings, conflicts of interest in the financial services industry, the link between variable remuneration and misconduct, the role and duties of mortgage brokers, a drive for simplification of the law instead of more regulation, and the right response to the endemic problem of institutions charging billions of dollars in fees but not bothering to provide the contracted service, such as financial advice.

    Hayne was aghast at evidence that Commonwealth Bank, AMP and National Australia Bank had charged fees to dead people.

    This extraordinary practice led Hayne’s searing executive summary in his interim report in September, in which he asked why all the misconduct had occurred.

    “Too often the answer seems to be greed — the pursuit of short-term profit at the expense of basic standards of honesty,” Hayne said. “How else is charging continuing advice fees to the dead to be explained?”

    The industry-wide fees-for-no-service debacle is widely tipped as a possible source of criminal charges. A civil case started in September against National Australia Bank.

    Ominously, in August, Hayne asked Nicole Smith, chairwoman of NAB’s trustee company Nulis, if she’d ever wondered whether “taking money to which there was no entitlement raised a question of the criminal law”.

    “I didn’t,” Smith responded.

    Hayne has also taken AMP and NAB to task over dishonest or misleading dealings with the corporate regulator, the Australian Securities & Investments Commission.

    This is not to say that Hayne has been at all happy with ASIC’s performance, or with that of the Australian Prudential Regulation Authority.

    He scorched ASIC in his interim report for rarely seeking the deterrence value of public denunciation and punishment through the court system. APRA, he said, never went to court.

    The regulators have stiffened their spines and have promised to do better.

    ASIC supervisors are now embedded in the banks and Frydenberg came to the party earlier this month, shelling out $51.5 million in extra funding for commonwealth prosecutors and the Federal Court to process more civil and criminal matters.

    Despite Hayne’s withering criticism of ASIC and APRA, Treasury appears to have taken off the table any prospect of a significant change in the regulatory architecture, saying in its submission on the interim report that a clear case for upheaval “has not yet been made”.

    Treasury was like-minded with the commission on simplification of the law.

    However, any serious attempt at reform would have to spread over the medium term to ensure attempts at a rewrite did not add to the problem.

    Hayne’s view in the interim report was that pursuit of the dollar was the root of all evil in the financial system.

    “All the conduct identified and criticised in this report was conduct that provided a financial benefit to the individuals and entities concerned,” he said.

    “The governance and risk-management practices of the entities did not prevent the conduct occurring.

    “The culture and conduct of the banks was driven by, and was reflected in, their remuneration practices and policies.”

    Treasury and Hayne are in heated agreement over pay.

    The commissioner displayed a virulent dislike of incentives linked to sales or short-term profitability, particularly for customer-facing staff, where the interests of the customer often come a distant second to the deal.

    Macquarie Group chief executive Nicholas Moore, who confirmed that 80 per cent of his own profit share was deferred for up to seven years, breezed through his appearance at the commission.

    It’s beyond doubt that pay frameworks in the financial services industry will be significantly reformed, including the adoption of deferred pay.

    The Banking Executive Accountability Regime, which was introduced this year, has cracked down on sales and profit-driven cultures, requiring bankers by law to defer a proportion of their pay.

    Treasury said consideration should be given to extending BEAR to other industries regulated by APRA, such as superannuation and insurance. A senior executive could have explicit accountability for ensuring that remuneration principles and policies set by the board were cascaded through the organisation.

    The mortgage broking industry, which settles about 55 per cent of residential home loans, is also set for a revolution, along with other financial intermediaries.

    Instead of charging a fee, brokers typically receive upfront and trail commissions, setting up a conflicted remuneration model that can result in significant financial harm to consumers.

    Hayne said predictions of annihilation for the mortgage broking industry should be “examined with special care”.

    According to Treasury, consideration could be given to the introduction of a duty on brokers to act in the interests of consumers.

    The commission’s terms of ­reference obliged it to maintain an exclusive focus on the sprawling financial services industry. Despite this, the ripple effects will be far-reaching, partly because of the media exposure and the level of public interest.

    Hayne has succeeded in democratising finance, or financial misconduct at the very least.

    While it was ASIC that came up with the term fees-for-no-­service, it was the commissioner who reframed financial concepts and brought them into the ­nation’s living rooms.

    He did this many times, but most notably when he asked Nulis executive Smith in his characteristically rasping tone if she’d ever thought about a criminal aspect to the institution’s conduct. The exchange sent shockwaves through the corporate community.

    “The royal commission was already a serious issue, but it became a really, really serious issue,” a close observer says. “Everyone now has a sense of what these (episodes of misconduct) look like once they’re in the public gaze.

    “This is going to change the face of corporate Australia.”
    Richard Gluyas
    Business Correspondent

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    1 week ago
  • Charles Ponzi created a new topic ' Alan Kohler reviews Submissions Glass Steagall' in the forum.
    If you made a submission to the royal commission on Glass-Steagall, you have made the news! Alan Kohler reports in The Australian today that banking separation dominated public submissions, and says 'an Australian version of Glass Steagall' would stop banks returning to their bad ways

    Alan Kohler, Australia's top finance commentator, in The Australian today (3 December):

    "I have been opening a random sample of the 10,140 submissions — just short ones from individuals. Without exception they called for the banks to be broken up and most of them, surprisingly, used the term 'Glass Steagall' – suggesting that the now-repealed American law that used to forcibly separate banking from insurance and investment banking be introduced into Australia. That would certainly be a fertile field for the royal commissioner to plough, although most of the banks have already announced plans to break themselves up along those lines so perhaps such a recommendation would lack drama. But Westpac says it will keep its insurance and wealth management division and AMP and Macquarie have not announced any plans to get rid of their banks, so an Australian version of Glass Steagall would make it uniform and would make sure they didn’t slide back into their bad old 'one stop shop' ways in future."

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    1 week ago
  • Charles Ponzi created a new topic ' Supportive Residents & Securrency Bribes' in the forum.
    Seven years and millions of dollars later, Australia's biggest bribery prosecution finally revealed

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    By Richard Baker & Nick McKenzie
    28 November 2018 — 11:02am

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    A landmark corruption prosecution that reached the very top of Australia’s financial system and had links to powerful officials across the globe has dramatically ended, almost 10 years after it began, with a guilty plea by a kingpin of the bribery scheme.

    It can now be revealed that two companies owned by the Reserve Bank of Australia, Securency and Note Printing Australia, were fined a record $21.6 million in 2012 for their criminal conduct.

    However, the cases against four accused individuals have collapsed after bungling by law enforcement agencies.
    Clifford John Gerathy (second from right) leaves the Supreme Court in Melbourne earlier this year.

    Clifford John Gerathy (second from right) leaves the Supreme Court in Melbourne earlier this year.Credit:AAP

    The lifting of long-standing suppression orders which for seven years cloaked the Securency case in secrecy enables the public to learn for the first time that two Reserve Bank of Australia companies pleaded guilty to bribing overseas officials to win bank note printing contracts.
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    Until today, the existence of the suppression orders themselves was also not to be published so no aspects of the case could be revealed.
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    But the resolution of the scandal leaves a mixed scorecard for the Australian Federal Police and prosecutors, with eight guilty pleas, but the collapse of four other prosecutions in the High Court this month over serious procedural errors.

    The final act in the prosecution of banknote firms Securency and Note Printing Australia was a guilty plea by former banknote executive Christian Boillot in the Victorian Supreme Court this week.

    Boillot's plea paved the way for the lifting of suppression orders that have prevented the Australian public from being informed about progress of the bribery prosecution, which began in 2011, was argued all the way to the High Court, and cost the taxpayer millions.

    Most notably, Securency and NPA pleaded guilty in 2012 to bribing, or conspiring to bribe, foreign officials in Indonesia, Vietnam and Malaysia in order to secure banknote contracts, and the companies, whose boards were overseen by senior RBA officials, paid record fines under proceeds of crime legislation.
    Noteworthy ... Myles Curtis, the former managing director of Securency.

    Noteworthy ... Myles Curtis, the former managing director of Securency.

    These historic guilty pleas had the companies hit with a record Australian proceeds of crime penalty of $21.6 million. Despite the guilty plea and massive fine, no directors of Securency or NPA – which included former senior RBA officials – were ever investigated by Australia's corporate regulator ASIC for alleged breaches of the Corporations Act.

    The RBA said in a statement this morning that its companies had entered guilty pleas at the earliest opportunity. Governor Philip Lowe said: "The RBA accepts there were shortcomings in its oversight of these companies, and changes to controls and governance have been made to ensure that a situation like this cannot happen again."

    The RBA statement also said the Commonwealth Director of Public Prosecutions had accepted the boards of Securency and NPA had no involvement in, or knowledge of, the bribery.

    Prosecutors were only presenting cases for breaches of Australia's foreign bribery laws, not breaches of the Corporations Act.

    Individuals to enter guilty pleas to bribery or false accounting offences include Securency managing director Myles Curtis, former sales executive Cliff Gerathy, former finance boss John Ellery and one-time Indonesian agent Radius Christanto.

    The RBA accepts there were shortcomings in its oversight of these companies, and changes to controls and governance have been made.
    Reserve Bank of Australia Governor Philip Lowe

    Despite the guilty pleas, not a single person charged in Australia has been sentenced to jail for crimes which can attract up to 10 years imprisonment.

    In the UK, former senior Securency sales boss, Peter Chapman, spent months in jail after being found guilty in 2016 of authorising $205,000 in bribes to a Nigerian mint official to secure banknote contracts.

    ASIC has never explained why it failed to act on a police referral of alleged breaches of the Corporations Act by certain former Securency and NPA directors. This left it to the media, parliamentary committees and individual MPs such as Liberal MP Tony Smith and Greens MP Adam Bandt to provide scrutiny.

    The Age is now also free to report a serious blunder involving the Australian Criminal Intelligence Commission (ACIC) and the Australian Federal Police in the early stages of the investigation which led to the High Court this month ordering a permanent stay on charges against four other former banknote executives.
    David John Ellery, former company secretary for Securency in 2012.

    David John Ellery, former company secretary for Securency in 2012. Credit:Arsineh Houspian

    The court found that the ACIC had acted “unlawfully” when it used its special coercive powers to help AFP investigators question the four suspects, giving the prosecution an unfair advantage in the case.

    Under its coercive powers, ACIC can force a suspect to answer questions or face prosecution. In this case, several banknote executives suspected of involvement in bribery had exercised their legal right not to answer questions by Federal Police.

    “The ACC [as it was known at the time] had not conducted a special investigation into the matters the subject of the AFP investigation,” a statement by the High Court noted. “[The ACC] acted at all times simply as the facility for the AFP to cross examine the appellants under oath for the AFP’s own purposes.

    "The prosecution ... derived a forensic advantage, which the examinations were expressly calculated to achieve, of compelling the appellants to answer questions that they had lawfully declined to answer and thereby locking them into a version of events from which they could not credibly depart at trial.”
    Peter Chapman, a former manager of Australian banknote company Securency.

    Peter Chapman, a former manager of Australian banknote company Securency.Credit:Nick Miller

    The High Court’s unanimous decision is a bitter blow for law enforcement authorities and Commonwealth prosecutors, who have grappled with the complexity of Australia’s foreign bribery laws for years to keep the landmark case alive.

    The Securency scandal has become a leading case study for those advocating for a national integrity commission, including independent MP Cathy McGowan.

    The case has also been a catalyst in the push for Australia to introduce whistleblower protection laws in relation to financial crime, with the two key whistleblowers who brought the banknote bribery scandal to life, former Securency sales executive James Shelton, and former NPA company secretary, Brian Hood, sacked after raising questions.

    Both men said on Wednesday that putting their careers on the line to report corruption had been an extremely difficult experience, particularly with the length of the court case and suppression orders.
    Whistleblower Brian Hood, whose life has been damaged by his decision to report wrongdoing.

    Whistleblower Brian Hood, whose life has been damaged by his decision to report wrongdoing.Credit:Simon Schluter

    Mr Hood said it had been hard to get employment in the corporate sector because the suppression orders prevented the public from knowing his decision to blow the whistle had been vindicated by guilty pleas.

    Both he and Mr Shelton remained bewildered that no RBA official or director of the banknote firms had been held to account for the widespread bribery that occurred on their watch.

    Mr Shelton said he was staggered the case had taken this long to conclude and that protections for whistleblowers in the corporate sector remained virtually non-existent even though more than 10 years had passed since he began raising bribery concerns at Securency.

    "But I'd do the same again. I don't regret. You see serious criminal conduct and you can't just walk past it," he said.

    Australia’s first prosecution of any person or company for the offence of foreign bribery came after Federal police and the Reserve Bank failed to adequately act on whistleblower concerns. A taskforce was only launched after revelations in The Age in 2009 which detailed multi-million-dollar payments made by Securency and Note Printing Australia to politically connected middlemen in Africa and Asia.
    Corruption whistleblowers, Brian Hood
    and James Shelton.

    Corruption whistleblowers, Brian Hood
    and James Shelton.Credit:Jason South

    The early failures led the AFP to overhaul its approach to tackling foreign bribery and appoint a new senior investigator to manage the investigation, Rohan Pike. Mr Pike, who is no longer with the police and runs his own anti-corruption advisory business, said the convictions were an important first for Australia.

    They showed police could investigate complex corruption cases when given proper resources, training and leadership. Mr Pike, who received a commendation from the AFP Commissioner for his foreign bribery work, said there was merit in Australia having a "stand alone" fraud agency, such as the Serious Fraud Office found in the UK and New Zealand.

    The scandal badly damaged the RBA’s reputation at home and abroad. So prominent were some of the alleged overseas targets of the companies’ bribery that the Department of Foreign Affairs and Trade successfully sought a suppression order on the identities on the foreign politicians and officials. They included powerful figures – among them an arms dealer and a suspected spy chief –with connections to overseas prime ministers and presidents.
    Former AFP officer Rohan Pike.

    Former AFP officer Rohan Pike.Credit:Eddie Jim

    The suppression order itself became a cause for controversy after it was revealed that one of the names suppressed was that of Indonesian president Susilo Bambang Yudhoyono, even though there was never a suggestion that he had been part of any wrongdoing. Ex Malaysian prime minister Najib Razak was also implicated.
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    1 week ago
  • How a meeting in a cafe with a journalist prompted Australia's biggest foreign bribery case
    By Richard Baker & Nick McKenzie
    30 November 2018 — 3:00pm

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    The story of Australia's first foreign bribery prosecution began in 2008 when a whistleblower and a journalist met in a cafe behind The Age’s old brown brick headquarters in Melbourne’s Spencer Street.

    Waiting at a table was a well-dressed, clean shaven man with a full head of salt and pepper hair. His name was James Shelton. He had been part of the sales team at the Reserve Bank of Australia's currency firm, Securency, for about two years and had seen some troubling things.
    Corruption whistleblowers Brian Hood
    and James Shelton.

    Corruption whistleblowers Brian Hood
    and James Shelton.Credit:Jason South

    Shelton was nervous about talking to a journalist. He had a black note book before him on the table. In it, he said, were names of Securency overseas agents who he believed had received multimillion-dollar payments for brokering suspect deals with politicians and central bank officials.

    Shelton said he was talking to a journalist as a last resort. He had taken the same information and more to the AFP six months earlier, in April 2008. But it appeared the police were not going to do anything with it. AFP Commissioner Tony Negus later said he regretted this failure to act.
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    It took another eight months of digging and work by the newspaper's investigative team before a detailed story could be published about Securency’s massive commission payments to a host of middlemen in corruption-prone countries. One of those was a suspected senior Vietnamese intelligence officer who was having an affair with Australia’s top trade official in Hanoi.

    The night before the May 2009 story came out, then deputy governor of the Reserve Bank, Ric Battelino, rang The Age’s investigative team. “You’re not going to publish this are you?” a worked-up Battelino asked.

    He went on to say the RBA had made it clear to Securency and Note Printing Australia that they were not to pay bribes via their agents and middlemen. In any case, Battelino said the RBA had no inkling that bribery may have occurred, and that questions would now be asked of Securency.

    The day the story was published, the RBA did something it should have done two years earlier and called in the AFP to investigate.

    It turned out Battelino knew more than he was letting on. But it took another whistleblower to step forward to reveal the extent of the RBA’s true knowledge of corruption concerns and the great lengths it went to keep them in-house.

    Over many meetings across two years, NPA’s former company secretary Brian Hood slowly shared with The Age and The Sydney Morning Herald details of his own investigation into admissions by the company’s Malaysian agent – whose other job was arms dealing – that he had used his commissions to bribe government officials.
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    Hood had detailed his evidence and concerns in an explosive memo to the RBA deputy in 2007. Hood's memo had prompted the RBA to order Note Printing Australia to cease using its agents. But for some reason the RBA has never explained, sister-firm Securency was able to continue using its own middle men in corrupt countries, including the Malaysian arms dealer.

    If Shelton’s whistleblowing unearthed the scandal, then Hood’s evidence blew the lid off it. And it gave Battelino and his boss, then RBA governor Glenn Stevens, a credibility problem.

    Both had told parliamentary committees the RBA’s knowledge of corruption concerns really began with the initial 2009 story in The Age. In fact, the RBA had decided a year earlier in 2008 to ask law firm Freehills to advise on its subsidiaries’ exposure to foreign bribery laws, rather than alert police to Hood's discoveries.

    It is important to remember that none of this would be known had it not been for the combination of whistleblowers and journalists. Shelton’s first attempt to alert the AFP to bribery went nowhere. The RBA did all in its power to keep Hood's corruption discoveries a secret.

    Both men paid a heavy price for doing the right thing, losing their jobs after asking questions of their bosses, and experiencing years of anxiety as prosecution witnesses while the court cases stalled and shrouded in blanket suppression orders.


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  • Charles Ponzi created a new topic ' Scott Stafne on Unrepresented Litigants' in the forum.
    The Royal Commission should look into the research papers at the back of Stafne's paper.

    www.academia.edu/37890338/CHURCH_OF_THE_...YP2c0j95pxQia2je_DTk

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    1 week ago
  • Charles Ponzi replied to the topic Khashoggi 2015-2018 in the forum
    CIA Intercepts Underpin Assessment Saudi Crown Prince Targeted Khashoggi
    Conclusion that Prince Mohammed bin Salman ‘probably ordered’ killing relies in part on 11 messages he sent to adviser who oversaw hit squad around time it killed journalist
    The CIA’s Evidence Linking Saudi Crown Prince to Khashoggi Killing
    The CIA’s Evidence Linking Saudi Crown Prince to Khashoggi Killing
    How did the CIA conclude that journalist Jamal Khashoggi was killed on the orders of Saudi Crown Prince Mohammed bin Salman? WSJ’s Warren P. Strobel has an exclusive look at the secretive evidence behind the assessment. Photo: Reuters
    210 Comments
    By Warren P. Strobel
    Updated Dec. 1, 2018 1:33 a.m. ET

    WASHINGTON—Saudi Crown Prince Mohammed bin Salman sent at least 11 messages to his closest adviser, who oversaw the team that killed journalist Jamal Khashoggi, in the hours before and after the journalist’s death in October, according to a highly classified CIA assessment.

    The Saudi leader also in August 2017 had told associates that if his efforts to persuade Mr. Khashoggi to return to Saudi Arabia weren’t successful, “we could possibly lure him outside Saudi Arabia and make arrangements,” according to the assessment, a communication that it states “seems to foreshadow the Saudi operation launched against Khashoggi.”

    Mr. Khashoggi, a critic of the kingdom’s leadership who lived in Virginia and wrote columns for the Washington Post, was killed by Saudi operatives on Oct. 2 shortly after entering the Saudi consulate in Istanbul, where he sought papers needed to marry his Turkish fiancée.

    Excerpts of the Central Intelligence Agency’s assessment, which cites electronic intercepts and other clandestine information, were reviewed by The Wall Street Journal.

    The CIA last month concluded that Prince Mohammed had likely ordered Mr. Khashoggi’s killing, and President Trump and leaders in Congress were briefed on intelligence gathered by the spy agency. Mr. Trump afterward questioned the CIA’s conclusion about the prince, saying “maybe he did; and maybe he didn’t.”

    The previously unreported excerpts reviewed by the Journal state that the CIA has “medium-to-high confidence” that Prince Mohammed “personally targeted” Khashoggi and “probably ordered his death.” It added: “To be clear, we lack direct reporting of the Crown Prince issuing a kill order.”

    The electronic messages sent by Prince Mohammed were to Saud al-Qahtani, according to the CIA. Mr. Qahtani supervised the 15-man team that killed Mr. Khashoggi and, during the same period, was also in direct communication with the team’s leader in Istanbul, the assessment says. The content of the messages between Prince Mohammed and Mr. Qahtani isn’t known, the document says. It doesn’t say in what form the messages were sent.

    It is unclear from the excerpts whether the 2017 comments regarding luring Mr. Khashoggi to a third country cited in the assessment are from Prince Mohammed directly, or from someone else describing his remarks.

    Saudi Arabia has acknowledged Mr. Khashoggi was murdered in the consulate. But it has denied Prince Mohammed had any role and blamed the operation on rogue operatives. The Saudi Public Prosecutor’s office last month announced charges against 11 Saudis in connection with Mr. Khashoggi’s death, saying it would seek the death penalty in five cases. The office didn't release their names.

    The U.S. Treasury Department in mid-November slapped sanctions on 17 Saudis whom it linked to the killing. But Mr. Trump, in a statement days later, said he intended to maintain strong relations with the crown prince because of Saudi Arabia’s opposition to Iran, its investments in the U.S. and its role in the oil market.

    The Trump administration’s posture has angered many in Congress, and the intercepts and intelligence gathered by the CIA may complicate Mr. Trump’s efforts to maintain relations with Prince Mohammed, the de facto leader one of the world’s biggest oil producers. The two are among the world’s leaders meeting this weekend in Buenos Aires for a summit of Group of 20 nations.

    Earlier this week, the Senate voted to begin consideration of a resolution to withdraw U.S. support for a Saudi-led military coalition fighting against Houthi rebels in Yemen, with senators venting their frustration over Mr. Trump’s reluctance to hold Prince Mohammed responsible for Mr. Khashoggi’s death.
    Saudi journalist Jamal Khashoggi, seen here in London on Sept. 29, days before he was killed at the Saudi consulate in Istanbul.
    Saudi journalist Jamal Khashoggi, seen here in London on Sept. 29, days before he was killed at the Saudi consulate in Istanbul. Photo: Middle East Monitor/Reuters

    Secretary of State Mike Pompeo, who met with senators Wednesday to try to forestall the resolution, has said that he had read every piece of U.S. intelligence regarding Mr. Khashoggi’s killing and that the agency didn’t find a so-called smoking gun. “There is no direct reporting connecting the crown prince to the order to murder Jamal Khashoggi,” Mr. Pompeo told reporters.

    The judgment on Prince Mohammed’s likely culpability, the CIA assessment says, is based on the crown prince’s personal focus on Mr. Khashoggi, his tight control over the Saudi operatives sent to Istanbul to kill him, “and his authorizing some of the same operators to violently target other opponents.”

    Mr. Qahtani has led Prince Mohammed’s efforts to crack down on dissent internally and abroad. He is one of the 17 sanctioned by the Treasury.

    After this article’s initial publication online, a Saudi official, responding to an earlier request for comment to the Saudi Embassy in Washington, said, “HRH the Crown Prince communicates regularly with various senior officials within the Royal Court on different matters. At no time did HRH correspond with any Saudi officials in any government entity on harming Jamal Khashoggi, a Saudi citizen. We continue to categorically reject any accusations based on speculations.”

    A CIA spokesman declined to comment on the report. A White House official said Friday the White House doesn’t comment on intelligence matters. Mr. Qahtani didn’t respond to a request for comment.

    Mr. Trump last week said the CIA only had “feelings” about Prince Mohammed’s involvement, a statement that irked current and former U.S. intelligence officials. U.S. intelligence assessments are rarely black-and-white, often relying on fragments of information gathered clandestinely.

    The highly classified CIA assessment says that the Saudi team sent to kill Mr. Khashoggi was assembled from Prince Mohammed’s top security units in the Royal Guard and in an organization run by Mr. Qahtani, the Center for Studies and Media Affairs at the Royal Court, the Saudi royal court’s media department.

    “We assess it is highly unlikely this team of operators…carried out the operation without Muhammed bin Salman’s authorization,” it says.

    The document says that Mr. Qahtani “explicitly requested the Crown Prince’s permission when he pursued other sensitive operations in 2015, which reflects the Crown Prince’s command and control expectations.”

    Mr. Qahtani was fired by King Salman, the crown prince’s father, in the aftermath of the murder. But Mr. Qahtani informally continued some of his former functions as royal-court adviser, such as issuing directives to local journalists and brokering meetings for the crown prince, according to people familiar with the matter.

    A U.S. official said that the U.S. government has recently developed information that under Mr. Qahtani, personnel from the Center for Studies and Media Affairs have for two years engaged in the kidnapping—sometimes overseas—and detention and harsh interrogation of Saudis whom the monarchy perceives as a threat. The interrogations have led to repeated physical harm to the detainees, the official said.

    The CIA assessment said that since 2015 Prince Salman “has ordered Qahtani and CSMARC to target his opponents domestically and abroad, sometimes violently.”

    Five employees of the center were involved in the Khashoggi operation, the assessment says. All five were also involved in abusive treatment of prominent Saudis detained at Riyadh’s Ritz-Carlton hotel in the fall of 2017 as part of what the Saudi government described as an anticorruption drive, it says.

    —Margherita Stancati in Beirut contributed to this article.

    Write to Warren P. Strobel at This email address is being protected from spambots. You need JavaScript enabled to view it.

    Appeared in the December 1, 2018, print edition as 'CIA Intercepted Saudi Prince’s Messages.'

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    Wayne Styles

    Look up : Khoshaba Precedent. Also: Violet Home Loans Pty Ltd v Schmidt & Anor [2013] VSCA 56. Also: NSW Supreme Court - PerpetualTrustee Co. Ltd V Alexander Kotevski (2009)
    NSWSC 1228 16th Nov. 2009. In the recent decision of three cases heard together, Permanent Trustee Company Limited v O’Donnell; Permanent Trustee Company Limited v Di Benedetto; Tonto Home Loans Australia Pty ltd v Tavares [2009] NSWSC 902, the Supreme Court held that the broker was the agent of the lender and in the circumstances these cases the contracts were unjust within the meaning of the Contracts Review Act 1980 (NSW) and declared void.

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  • Charles Ponzi created a new topic ' Dr Peter Branson and Geoff Shannon in News' in the forum.
    'It's not even scratched the surface': bank victims demand royal commission 2.0

    Victims of misconduct say the royal commission has only just begun the work of exposing problems in the financial system

    Martin Farrer and Gareth Hutchens

    Fri 30 Nov 2018 21.08 GMT
    Last modified on Fri 30 Nov 2018 21.16 GMT

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    Banking bosses at royal commission: the most galling and maddening moments – video

    After 68 hours of hearings, 134 witnesses, 400 witness statements and 6,500 documents, the banking royal commission has come to an end. The big end of town will breathe a sigh of relief that the slow torture at the hands of senior counsels Rowena Orr and Michael Hodge, which has comprehensively trashed the industry’s reputation and business model, is finally over. They can get back to their towers and hope that the damage from Kenneth Hayne’s final report in February is not too bad.

    But the clamour for a royal commission 2.0 is already starting to build among victims of misconduct in the financial services industry. They are unanimous in saying that the inquiry – although thorough and on occasions a brutal expose of the industry’s shortcomings – heard from only 27 customers and did not go nearly far enough.
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    Geoff Shannon, who set up a group to help victims of bank misconduct several years ago, said the commission had only just begun the work of exposing problems in the financial system.

    “It’s not even scratched the surface in terms of bank scandals. The industry think they are just about off the hook but we are only just at the beginning,” said Shannon, a former Bankwest customer whose business became embroiled in the controversial takeover of the lender by the Commonwealth Bank 10 years ago.

    Another campaigner, Peter Brandson, agreed that the commission needed to carry on investigating the financial industry but with increased powers to expose misconduct.
    Timeline: banking scandals in Australia since 2009
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    “Even now the royal commission is not looking at the most serious offences,” said Brandson, who set up Bank Reform Now after fighting a loan dispute with NAB. “There has been criminal fraud, forged documents, asset-stripping and millions of dollars of assets have been taken from people.”

    Both activists have held numerous meetings with the banks and politicians but say there is still not enough recognition of the damage done by what they claim is decades of misconduct.

    With the Labor party backing calls for a renewed investigation, it is not inconceivable that a change of government in Canberra next year could put the banks, wealth managers, super funds and insurance companies on the interrogatory rack again.

    Before that point is reached, however, Hayne will recommend widespread changes to how the banks operate, especially how they manage risk and compliance. Both regulators, the Australian Securities and Investments Commission and the Australian Prudential Regulatory Authority, have endured repeated humiliation at the commission for their lack of oversight, and have both vowed to get tough.
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    The industry concedes the need for reform and is making changes. The acting boss of wealth manager AMP, Mike Wilkins, revealed this week that the firm, which lost its chief executive and chair at the height of commission-driven scandals, was spending $780m on a “fix and rebuild program” involving 150 full-time staff. The NAB chief, Andrew Thorburn, has promised to reverse a drift away from customers.

    Some analysts and investors say the “golden age” of banking, with the big four of Commonwealth, Westpac, NAB and ANZ making up more than 20% of the value of the Australian stock market value, is over.

    Michael Wayne, of the investment firm Medallion Financial in Sydney, said the commission would have a lasting impact on the way banks went about their business because it would force them to change focus from profits to compliance and risk management.

    “They are going to move from capitalist drivers to a risk framework,” he said. “And that means fewer resources for sales that drive revenues and profits. Non-interest revenue such as fees are also under pressure and that starts to eat into their income.”

    Hayne has been withering about the culture inside the industry, which he noted in his interim report was driven by greed and short-term profits. But how far the banks are able or willing to go to change the culture, which is underpinned by a remuneration system based on sales commissions and bonuses, remains to be seen.

    The commission has exposed a complacent and incompetent culture inside the boardrooms of Australia’s major banks, where very high pay is the norm and where little heed appears to have been given to what might be in the interests of customers.

    Worst, it has revealed the weakness of the people on the boards of Australia’s biggest, most profitable companies, even though they are drawn from the cream of Australian business elites.

    The NAB chairman, Ken Henry, a former treasury secretary and Reserve Bank director, lamented this week that it could take a decade to change the culture at the bank. Many observers felt that was too long, but it had the effect of turning the spotlight on the board members whose job it is to police the executive team. In telling testimony, he revealed how the board appeared unable to persuade Thorburn to force through pay cuts despite an Apra report critical of the company’s remuneration policy.

    But while the banks embark on reforms, customers are left with tough choices about what to do with their money and how to obtain credit at a time when the banks will try to cushion the blow of increased spending on compliance by increasing the cost of borrowing.
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    The impact of the commission has been quite marked already in the superannuation industry, where people have woken up to some of the depredations wreaked on their savings.

    With the royal commission exposing how the managers of some retail funds (run by major banks) have been deliberately ripping off customers with dodgy advice and exorbitant fees, Australians have been shifting their savings en masse into industry super funds (run by not-for-profits), taking billions of dollars with them.

    For bank customers, the royal commission has had some affect on their choices, but it’s not as pronounced.

    An Essential Media poll, commissioned by the Customer-Owned Banking Association in May, found the commission had made Australians more receptive to switching their banking.

    One in three people are more likely to consider switching their banking institution thanks to the royal commission, it found. Eight out of 100 have already changed their provider, while 17% said the commission had led them to consider changing. Another 18% were not sure if they would consider changing.

    Given how notoriously difficult it is to get Australians to switch their bank, those figures were considered noteworthy. But they are still not very high.

    The Productivity Commission places much blame on “behavioural barriers” faced by customers that manifest in inertia and lack of switching. Certain cognitive biases – such as a preference for the status quo, or an overestimation of the costs of switching – can override bad news about one’s bank. One in two people still bank with their first-ever bank, with switching least likely among those who have a home loan with a major bank.

    The commission also blames the structure of the banking system. It says Australia has an “oligopolistic system” in which the big banks regularly exploit the inertia of customers, maintain their market position with persistently opaque pricing, conflicted advice and remuneration arrangements, and a lack of easily accessible information that induces customers to maintain loyalty to unsuitable products.

    But some things will help. Scott Morrison has hailed new rules that mean from July next year banks will have to start sharing more information on credit and debit cards, and deposit and transaction accounts, to allow customers to make better-informed choices.

    “Open banking will be a game-changer,” the prime minister said. “More choice, more competition and importantly, more power.”

    Nathan Rees, the former NSW Labor premier who now heads the Finance Sector Union, says that will be a big deal. He says open data, the growth of micro-banks, and the Productivity Commission’s urge to keep chipping away at the “Four Pillars” policy will help the industry become more competitive, for consumers’ benefit.

    But for now the big four still dominate, with their market shares highest (over 75%) in housing loans, personal deposits, credit cards and loans to small business.

    Even with their once-unimpeachable reputation in tatters, the sheer size of Australia’s banks may mean they can regroup and carry on without too much hindrance – especially if decision-makers in Canberra decide the punishment has been enough.

    Peter Brandson is determined to make sure that doesn’t happen and vows to continue petitioning and lobbying government to extend the royal commission.

    “The banks need to start treating people with more respect. They have to make less profit and pay less in bonuses. These guys are not neurosurgeons or rocket scientists. They are running utilities and what they earn is disproportionate,” he said, referring to the sky-high pay packets that have been part of the commission’s focus.

    “We want an extended royal commission to expose the whole story. If that is exposed then people will be demanding a change to the whole system.”

    Susan Henry, who runs the campaign group HNAB-AG, said the agitation for further hearings would continue until victims felt that they had been given a fair hearing.

    “Victims do not feel they have been given the opportunity to be heard at this royal commission – very little of the human cost and ramifications, across all aspects of life for years or decades, has been revealed,” she said. “Victims should be at the heart of any royal commission.”

    www.theguardian.com/australia-news/2018/...0q4UMS-Chu5Q1ytHD_vE

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