HIS HONOUR: "I’ve sat and listened to what’s said to be an explanation of some powers of a group said to be called the International Treasury Control organisation. I’ve received documents from someone, purporting to be a representative of that organisation. The submissions that have been made are replete with complex legal language and complex legal ideas. However, they make no real sense to anybody who has studied or practised the law. They proceed on some common themes that we see employed by confidence tricksters. They rely upon the ideas that this is secret and high level, thus explaining why ordinary lawyers, even those quite learned in the law, know nothing of it and fail to grasp what it is said to mean, or fail to understand it as a plausible or rational legal argument. It plays upon the idea that the Castles have become a part of an elite group within society filled with special powers and privileges. It proceeds upon a common trick of shifting the obligation for establishing any rights or entitlements into an obligation upon others to disprove bizarre claims, constantly phrased by way of an obligation upon others to verify these bizarre claims that are made about the Castles, and, as occurs in this case, by way of quite impractical means, for example, requiring or demanding of others to verify the Castles’ claims with Her Majesty Queen Elizabeth. It also proceeds upon threats that rejection is an affront to a powerful and elite group, in order to attempt to dissuade those who would reject these bizarre claims from doing so, for fear that they themselves may be at risk from some secret and powerful elite within society.
I find it very sad that the Castles have been taken in by these confidence tricksters, and have been taken in to such an extent that it presents now almost as some form of psychosis – a bizarre belief that is unshakeable, even by the obvious difficulties that the arguments present. I do not accept the arguments. I reject them entirely, and I see no purpose to be served by hearing evidence from somebody to further put forward such bizarre and obviously unsustainable claims."
Deutsche Bank Settles Over Ignored Red Flags on Jeffrey Epstein
The German lender repeatedly overlooked suspicious transactions, including payments to people a New York regulator described as his co-conspirators.
The settlement is the latest punishment that Deutsche Bank, with headquarters in Frankfurt, has faced for violating anti-money-laundering laws and rules.
The settlement is the latest punishment that Deutsche Bank, with headquarters in Frankfurt, has faced for violating anti-money-laundering laws and rules.Credit...Felix Schmitt for The New York Times
Matthew Goldstein
By Matthew Goldstein
July 7, 2020
Updated 4:48 p.m. ET
Payments to his alleged co-conspirators. Money wired to Russian models. A cash withdrawal of $100,000 for “tips and household expenses.”
When Jeffrey Epstein moved his money, Deutsche Bank didn’t ask many questions.
In a $150 million settlement announced on Tuesday, the New York Department of Financial Services said Mr. Epstein, a convicted sex offender, had engaged in suspicious transactions for years, even though Deutsche Bank deemed him a “high risk” client from the moment he became a customer in summer 2013.
“Despite knowing Mr. Epstein’s terrible criminal history, the bank inexcusably failed to detect or prevent millions of dollars of suspicious transactions,” Linda A. Lacewell, the department’s superintendent, said in a statement.
A year and a day after Mr. Epstein was arrested on federal sex-trafficking charges, the settlement described how bank employees had relied on informal meetings and institutional momentum to allow suspicious activity to proceed largely unchecked. Instead of performing appropriate due diligence on Mr. Epstein and the activity in his accounts, regulators wrote, the bank was focused on his potential to “generate millions of dollars of revenue as well as leads for other lucrative clients.”
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Deutsche Bank acknowledged that it had erred in taking Mr. Epstein on as a client and that its processes had been weak. “Our reputation is our most valuable asset and we deeply regret our association with Epstein,” a bank spokesman, Daniel Hunter, said in a statement.
In a message to employees on Tuesday, the bank’s chief executive, Christian Sewing, said taking Mr. Epstein on was a “critical mistake and should never have happened.” He urged them to read the settlement document and “learn the appropriate lessons” from the bank’s past conduct.
“We all have to help ensure that this kind of thing does not happen again,” Mr. Sewing wrote.
The settlement — the first regulatory action taken against a financial institution in connection with Mr. Epstein — provides a glimpse into the mysterious finances of the self-described tax guru and financial adviser.
According to regulators, Mr. Epstein, who killed himself in a jail cell in New York last year while awaiting trial, sent $2.65 million in 120 wire transfers through accounts established in the name of an entity called the Butterfly Trust. Some of those payments — as well as money from other accounts — went to three people who had been named as co-conspirators in suits by Mr. Epstein’s accusers that were related to his 2008 guilty plea to prostitution charges in Florida.
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Regulators did not name the co-conspirators in the settlement document. The settlement, citing published reports over those suits, describes the first two as having invoked their Fifth Amendment rights and the third as having been accused of recruiting girls for Mr. Epstein.
Four women were named as potential co-conspirators in the nonprosecution agreement Mr. Epstein reached with federal prosecutors that led to his plea to state charges in 2008. Another woman — Ghislaine Maxwell, a longtime confidante and business associate of Mr. Epstein — was charged last week by federal prosecutors in Manhattan with helping him recruit and groom teenage girls he abused at his lavish residences in New York, Florida and New Mexico.
Upon his death, Mr. Epstein left behind an estate valued at more than $600 million that is the subject of litigation by the attorney general of the United States Virgin Islands, where Mr. Epstein had lived and worked for nearly two decades. The attorney general, Denise George, has sued the estate, alleging that a company Mr. Epstein established there, Southern Trust, was a sham operation that he used to mislead the territory and receive a lucrative tax break.
It was Southern Trust — and a similarly named subsidiary, Southern Financial — that opened the first of Mr. Epstein’s accounts with Deutsche Bank in 2013. Over the next five years, Mr. Epstein, his related entities and his associates opened more than 40 accounts with the bank, the settlement said.
ImageGeoffrey Berman, then the U.S. attorney for the Southern District of New York, announcing charges against Jeffery Epstein last year.
Geoffrey Berman, then the U.S. attorney for the Southern District of New York, announcing charges against Jeffery Epstein last year.Credit...Stephanie Keith/Getty Images
Over the years, activities in those accounts were repeatedly questioned by Deutsche Bank employees, who were ignored by their superiors.
According to the settlement, an unnamed executive emailed the manager in charge of the relationship with Mr. Epstein in 2013, before any accounts were opened. The executive said that he had spoken to two other top bank officials and that neither had suggested that a relationship with Mr. Epstein required a risk review.
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Bank officials frequently pointed to that email as a reason to keep him as a client or accommodate his wishes, the settlement said. That included setting up the Butterfly Trust accounts for him in 2014, even though, the settlement said, the accounts’ connection to the alleged co-conspirators created a “very real risk” that payments could be used to further or cover up criminal activity.
In 2015, after a specialist in the anti-money-laundering department raised concerns about the bank’s continued relationship with Mr. Epstein, a department manager and the executive who wrote the email two years earlier met with Mr. Epstein at his Manhattan townhouse to discuss new allegations of abuse contained in civil suits. The settlement said that bank officials had “appeared to be satisfied by Mr. Epstein’s response” and that the relationship had continued.
When the bank later set conditions for monitoring Mr. Epstein’s activity, the settlement said, they were poorly communicated, creating confusion. Anti-money-laundering specialists interpreted the guidance to mean that unusual activity should be flagged only if it was unusual for Mr. Epstein — which led to an alert about payments to a Russian model and a Russian publicity agent being dismissed because the transactions were “normal for this client,” according to an email cited in the settlement.
At the end of 2018 — after The Miami Herald published details of Mr. Epstein’s nonprosecution agreement with federal prosecutors from a decade earlier — the bank decided it could no longer keep Mr. Epstein as a client. But an unnamed bank employee who managed the institution’s relationship with him still drafted reference letters to send to other banks, on Deutsche Bank letterhead, according to the settlement.
“Banks are the first line of defense with respect to preventing the facilitation of crime through the financial system, and it is fundamental that banks tailor the monitoring of their customers’ activity based upon the types of risk that are posed by a particular customer,” said Ms. Lacewell, the regulator’s superintendent.
The settlement on Tuesday also covered compliance failures unrelated to Mr. Epstein. The department found that Deutsche Bank had not properly monitored transactions with Danske Bank Estonia and FBME Bank, a Tanzanian institution. As part of the agreement, Deutsche Bank promised to continue its work with an independent monitor — in place since 2017 — to improve its compliance systems.
While the settlement described a long list of missteps by Deutsche Bank, it praised the bank for its “exemplary cooperation.” It also said the bank had cut ties with other high-risk clients.
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In a statement, the bank said it had invested nearly $1 billion in training and oversight, and had beefed up its anti-financial-crime division.
“It is our duty and our social responsibility to ensure that our banking services are used only for legitimate purposes,” Mr. Sewing said in his message to employees. “That’s exactly why we should always examine things critically, ask questions and speak up.”
The settlement is just the latest black eye for Deutsche Bank over legal and regulatory mistakes. Those include punishments by federal and state regulators, as well as the British authorities, for failing to stop Russian money laundering. And in 2015, Deutsche Bank agreed to pay $2.5 billion in penalties to settle accusations that it had manipulated the London interbank offered rate, or LIBOR.
Deutsche Bank has also attracted scrutiny for its relationship with President Trump and his family. It has been the long-running lender for Mr. Trump and has been the target of subpoenas from congressional investigators and state prosecutors.
Some of the payments Mr. Epstein made from his Deutsche Bank accounts were “inherently suspicious,” regulators wrote. Those included multiple settlement payments totaling more than $7 million and payments totaling more than $6 million for what regulators said appeared to be legal expenses for himself and for people the settlement identified as co-conspirators.
Other transactions — even if harmless — should have raised alarms, regulators wrote.
One of Mr. Epstein’s personal lawyers made $800,000 in withdrawals for Mr. Epstein over a four-year period. Regulators said the bank never got a good explanation for those withdrawals, except that Mr. Epstein needed the money for travel, expenses and paying tips.
According to the settlement, the unnamed lawyer twice asked bank officials how much money could be withdrawn without triggering some kind of alert. Suspicious that he was trying to circumvent federal regulations that require cash transactions of $10,000 or more to be reported to the government, bank employees spoke to the lawyer.
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The settlement said the lawyer denied trying to avoid such a report, and bank officials allowed him to continue making withdrawals on Mr. Epstein’s behalf — including taking out $100,000 at a branch on Park Avenue, not far from Mr. Epstein’s townhouse.
GRAHAM: OK. You were -- where were you on September the 11th, 2001?
KAVANAUGH: I was in -- initially I was in my then office in the EOB, and then after the first -- as I recall, for the first building was hit, I was in the counsel's Office in the second floor of the West Wing for the next few minutes.
Then we were all told to go down to the bottom of the West Wing, and then we were all evacuated and I think -- I think the thought was Flight 93 might be headed for the White House, it might've been heading here. And Secret Service, we were being hustled out and then -- then kind of panic, started screaming at us.
Sprint run, and we sprinted out. My wife was a few steps ahead of me, she was President Bush's personal aide at the time, and we sprinted out. She was wearing a black and white checked shirt, I remember, and she -- we sprinted out the front gate kind of into Lafayette Park and no -- no iPhones or anything like that, Blackberries at that point in time.
[12:10:00]
We didn't have that, and our cellphones didn't work so we were all just kind of out there. I remember somehow ending up seeing on TV down more on Connecticut Avenue, there were TV's out -- Mayflower Hotel, I remember I was with Sara Taylor who worked at the White House and we watched -- we were watching as the -- standing with her when the two -- when the two buildings -- when the buildings fell. GRAHAM: So when somebody says post-9/11 that we've been at war and it's called the War on Terrorism, do you generally agree with that concept?
KAVANAUGH: I do Senator because Congress passed the Authorization for Use of Military Force, which is still in effect and that was passed of course on September 14th, 2001, three days later.
GRAHAM: Let's talk about the law in war. Is there a body of law called the law of armed conflict?
KAVANAUGH: There is -- there is such a body, Senator.
GRAHAM: Is there a body of law that's called the basic criminal law?
KAVANAUGH: Yes, Senator.
GRAHAM: Are there differences between those two bodies of law?
KAVANAUGH: Yes, Senator.
GRAHAM: From an American citizen's point of view, do your constitutional rights follow you? If you're in Paris, does the Fourth Amendment protect you as an American from your own government?
KAVANAUGH: From your own government, yes.
GRAHAM: OK. So if you're in Afghanistan, do your constitutional rights protect you against your own government?
KAVANAUGH: If you're an American if Afghanistan, you have constitutional rights against the U.S. government.
GRAHAM: Is there a long-standing...
KAVANAUGH: That's -- that's long-settled law.
GRAHAM: Isn't there also a long-settled law that -- it goes back to Eisentrager case, I can't remember the name of it.
KAVANAUGH: Yes, Johnson vs. Eisentrager.
GRAHAM: Right -- that American citizens who collaborate with the enemy have considered enemy combatants?
KAVANAUGH: They can be.
GRAHAM: Can be.
KAVANAUGH: They can be. They're often -- some -- they're sometimes criminally prosecuted, sometimes treated in the military sense.
GRAHAM: Well let's talk about can be. I think the ...
KAVANAUGH: Under a Supreme Court precedent ...
GRAHAM: Right.
KAVANAUGH: Just want to make -- yeah.
GRAHAM: There's a Supreme Court decision that said that American citizens who collaborated with Nazi saboteurs were tried by the military. Is that correct?
KAVANAUGH: That is correct.
GRAHAM: I think a couple of them were executed.
KAVANAUGH: Yeah.
GRAHAM: So if anybody doubts there's a long-standing history in this country that your constitutional rights follow you wherever you go, but you don't have a constitutional right to turn on your own government and collaborate with the enemy of the nation.
You'll be treated differently. What's the name of the case, if you can recall, that reaffirmed the concept that you could hold one of our own as an enemy combatant if they were engaged in terrorist activities in Afghanistan? Are you familiar with that case?
KAVANAUGH: Yeah, Hamdi.
GRAHAM: OK. So the bottom line is on every American citizen, though you have constitutional rights but you do not have a constitutional right to collaborate with the enemy. There's a body of law well developed long before 9/11 that understood the difference between basic criminal law and the law of armed conflict.
Do you understand those differences?
KAVANAUGH: I do -- I do understand the -- there are different bodies of law, of course, Senator.
GRAHAM: OK. If you're confirmed, and I believe you will be, what is your hope when all of this is said and done and your time is up, how would you like to be remembered?
KAVANAUGH: A good Dad, a good Judge...
FEINSTEIN: A good husband.
GRAHAM: I think he's getting there.
(LAUGHTER)
KAVANAUGH: Good husband.
(LAUGHTER)
GRAHAM: Thanks Dianne, you helped him a lot.
(LAUGHTER) Going to be better for you tonight.
(LAUGHTER)
KAVANAUGH: Good -- I owe you -- I owe you.
(LAUGHTER)
Good son, I'll quickly add.
(LAUGHTER)
A good friend. I think -- I think about the pillar -- the pillars of my life are being a Judge of course, being a teacher -- I've done that and I'm -- either way this ends up I'm going to continue teaching. Coaching, as I mentioned, is a huge part of my life, try to continue that.
Senator Kennedy advised me when we met to make sure you keep coaching, even if you get -- I'm going to follow that. Volunteering and being a Dad and a son and a husband and being a friend. You know, I talked about my friends yesterday, I didn't really expect -- I got a little choked up talking about my friends, but ...
GRAHAM: That was well said, you got to tighten it up cause I just ran out of time.
KAVANAUGH: OK.
(LAUGHTER)
Thank you, Senator. I can go on, as you know, but I'll stop there.
And, Lorie Cole, what are the consequences if charities received funds without complying with the requirement to publically disavow human trafficking and child prostitution?
And do the Clinton Health Initiatives comply, Mr Michael Smiths News?
Colonel Shane Cohen, the third military judge to preside over the 9/11 military commission at Guantanamo, left the bench on April 24, but not before compounding the tribunal’s erroneous approach to whether and when violence between the United States and al Qaeda rose to the level of an armed conflict. This “hostilities question” is the lynchpin of the military commission’s personal and subject-matter jurisdiction, and it forms an element of each offense triable by military commission. Simply put, without a determination that the United States and al Qaeda engaged in an armed conflict on or before September 11, 2001, the military commission could neither try nor convict the defendants in the United States v. Mohammad et. al. case.
Shortly before leaving the bench, Colonel Cohen completed a three-year evolution, involving both of his predecessors, resolving that the hostilities question is simultaneously a non-justiciable political question for pre-trial purposes and a mixed question of fact and law, subject to the Tadić standard, to be determined at trial.
The military commission’s dichotomous approach to the hostilities has the benefit of being jurisdiction preserving. It defers the fact-intensive inquiry into whether and at what point the armed violence between the United States and al Qaeda was sufficiently intense, and al Qaeda sufficiently organized, to constitute a non-international armed conflict. But the military commission’s approach is also fundamentally incoherent and incorrect in law. And, in preserving its own jurisdiction, the tribunal has elected to pick-and-choose among political acts, ignoring contrary political acts that cut against its jurisdiction, and worryingly settling on one so late in time—so divorced from contemporaneous legal consequences that give acts jure belli significance in the first place—that it smacks of revisionism and injustice.
Who Cares about Armed Conflicts?
It is easy to lose sight of the fact that the military commissions at Guantanamo Bay are war-time tribunals, established to adjudicate violations of the laws of war. The military commissions’ personal and subject-matter jurisdiction—and the culpability of the defendants—all turn on the question of whether and when “hostilities” existed between the United States and al Qaeda. The 2009 Military Commissions Act (MCA) defines “hostilities” as “any conflict subject to the laws of war.” In other words, “hostilities” under the 2009 MCA and “armed conflict” are identical terms. In the 9/11 case, the defendants are alleged to be members of al Qaeda, a non-state armed group; so, for purposes of that case, “armed conflict” necessarily means “non-international armed conflict.”
So, the question of whether or when the United States and al Qaeda engaged in a non-international armed conflict is of at least threshold importance to all the Guantanamo military commission cases. In the 9/11 case, as in the U.S.S. Cole case, the hostilities question takes on especial significance because the defendants’ alleged conduct took place before the United States invaded Afghanistan on October 7, 2001 and before the terrorist acts of September 11, 2001. Thus, to convict the defendants at trial, the prosecution must prove beyond a reasonable doubt both that the United States and al Qaeda were engaged in a non-international armed conflict and that the defendants’ conduct took place in “the context of and associated with” that armed conflict. Consequently, the prosecution has implausibly argued that the U.S.-al Qaeda armed conflict began with bin Laden’s “declaration of war” on August 23, 1996 or no later than when the United States briefly bombarded supposedly al-Qaeda-associated targets on August 20, 1998.
Through a series of decisions on personal jurisdiction beginning in 2017 and culminating in the AE502UUUU Ruling on March 25 of this year, the 9/11 military commission has resolved that the hostilities question is both (1) a non-justiciable political question for purposes of personal jurisdiction; and (2) a question of fact to be resolved by the panel (a sort of jury) at trial under the Tadić standard in light of evidence adduced at trial for purposes of subject-matter jurisdiction and culpability. The Tadić standard, developed by the International Criminal Tribunal for the former Yugoslavia, established a fact-intensive, two-pronged analysis of (a) the intensity of a conflict and (b) the organization of the parties to determine whether there existed protracted, organized armed violence sufficient to constitute a non-international armed conflict (see para. 70, here). The military commission’s inconsistent position relies on a misperception, at odds with law of armed conflict jurisprudence, that courts are incompetent to assess the existence or not of an armed conflict.
How the 9/11 Military Commission Got into this Mess
The 9/11 military commission’s decision in AE502UUUU that the existence of an armed conflict, for purposes of personal jurisdiction, is a non-justiciable political question represents the last stop of a confusing, three-year journey. In 2017, defendants Mustafa al Hawsawi and Ammar al Baluchi both challenged the military commission’s personal jurisdiction, arguing that the United States and al Qaeda were not engaged in an armed conflict prior to 9/11. In the wake of the Court of Military Commission Review’s interlocutory appellate decision in the Nashiri case, the military commission determined that the hostilities-based personal jurisdiction challenge must be resolved before trial and ordered an evidentiary hearing to do so. (See Marty Lederman and Steve Vladeck’s Just Security article for a discussion of the history of the Nashiri decision and its treatment of subject-matter jurisdiction.)
Despite the similarity of their ultimate arguments, Mr. Hawsawi and Mr. al Baluchi took very different approaches. Whereas Mr. Hawsawi argued, essentially, the absence of an armed conflict as a matter of law, Mr. al Baluchi intended to take a fact-based approach to demonstrating the absence of an armed conflict prior to the United States’ invasion of Afghanistan on 7 October 2001. Based on the difference in their approaches, Mr. Hawsawi and Mr. al Baluchi produced markedly different witness lists—Mr. Hawsawi sought examination of a single expert witness; Mr. al Baluchi sought examination of more than 100 fact witnesses. As a result, the military commission bifurcated the evidentiary hearing, taking testimony with respect to Mr. Hawsawi in December 2017 but reserving proceedings with respect to Mr. al Baluchi. For its part, the prosecution put on two FBI agent witnesses in an effort to satisfy a fact-based, Tadić-like standard for the existence of hostilities based on the panel instructions from the 2008 Hamdan military commission.
In April 2018, the military commission (Military Judge Pohl, presiding) denied Mr. Hawsawi’s motion. In its ruling, the tribunal determined Congress’ use of the term “laws of war” in the 2009 Military Commissions Act to be ambiguous. Based on that supposed ambiguity, the military commission resorted to the Act’s legislative history and found that, because Congress intended that the 9/11 defendants be tried by military commission, the military commission must have personal jurisdiction over the defendants. Thus, whatever the meaning of “hostilities,” it could not preclude the existence of an armed conflict between the United States and al Qaeda prior to September 11. Moreover, the military commission determined that it owes “great deference” to the political branches’ repeated determinations that an armed conflict between the United States and al Qaeda exists presently.
In March 2019, as a result of a series of motions-to-compel hostilities-related discovery, the military commission (Military Judge Parrella, presiding) ordered briefing on whether the existence of hostilities, as a requisite common element of each crime under the Military Commissions Act, is a non-justiciable political question. All parties agreed that the existence of hostilities, as a common element of each crime under the Military Commissions Act, is not a non-justiciable political question. The military commission also adopted the Tadić test as the standard by which to determine the existence of hostilities in the course of the 9/11 trial and it suggested that the panel instructions from the Hamdan and Bahlul military commissions are faithful interpretations thereof. (It is worth noting that, at this juncture—and contrary to its previous ruling—the military commission found no ambiguity in the meaning of the “laws of war” as used in the Military Commissions Act.)
In April 2019, the military commission extended its personal jurisdiction determination respecting Mr. Hawsawi to the other four defendants. At that time, the military commission held that the 2009 Military Commissions Act itself represents a determination by the political branches that an armed conflict existed between the United States and al Qaeda “for some time before” 9/11, and that the tribunal owes “great deference” to the political branches’ in their foreign policy and national security decision making.
Mr. al Baluchi, who was never allowed to present his fact-based case demonstrating the absence of pre-9/11 hostilities, moved for reconsideration. But, in AE502UUUU, the military commission denied his request and ruled that, rather than merely owing great deference to political branch determinations, the military commission lacks competence to resolve the question of hostilities because—for personal jurisdiction purposes alone—it is a non-justiciable political question.
What’s Wrong with Deference?
The military commission’s deference to the political branches as to the existence of an armed conflict between the United States and al Qaeda is incoherent, incorrect in law, and unsupported by the history of American political acts vis-à-vis al Qaeda.
First, there is an inherent tension in the military commission’s position that the existence-of-hostilities question is a political question for personal-jurisdiction purposes but a question of fact for merits purposes. The discordance in these two approaches to the same question, within the same trial, is underscored by the military commission’s repeated adoption of the Tadić test for determining the existence of hostilities and its elaboration of that test in the form of panel instructions. Not only has the military commission repeatedly identified a judicially cognizable standard for determining whether and when hostilities between the United States and al Qaeda existed, it has done so within the very same decisions in which it decided that, for personal jurisdiction alone, the question is judicially unresolvable.
Second, American law does not require courts to defer to political branch determinations as to the existence of an armed conflict.
As an initial matter, the Constitution assigns to the political branches the responsibility of waging war and deciding whether the United States should go to or end a war by treaty, as a policy matter. The Constitution does not assign to the political branches the exclusive responsibility of determining whether or when a war or armed conflict exists. In one way or another, throughout American history, courts have been called on to assess the existence or not of an armed conflict and U.S. courts have not shrunk from this responsibility. In making those determinations, courts have looked to political acts as evidence of the existence of an armed conflict just as they have looked to tangible or objective indicia of war. In some circumstances, contemporaneous political acts, supported by tangible facts, have provided conclusive evidence of the existence of a war. But it has not been the practice of American courts to accept belated political acts as the definitive answer on the earlier existence of a war or armed conflict.
Of course, U.S. courts accord the political branches wide deference in their conduct of foreign relations but, as Justice Brennan observed, writing for the majority in Baker v. Carr, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” In Baker, the Supreme Court’s seminal political question doctrine case, the Court, quoting from Coleman v. Miller, explained that “‘In determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.’” The Baker Court specifically identified the “date or duration of hostilities” as a category of question that does not necessarily escape judicial review.
In reviewing earlier episodes in which it avoided making determinations as to the date or duration of hostilities, the Court in Baker identified “isolable reasons for the presence of political questions, underlying this Court’s refusal to review the political departments’ determination of when or whether a war has ended. Dominant is the need for finality in the political determination, for emergency’s nature demands ‘[a] prompt and unhesitating obedience.’” But the Court warned that “deference rests on reason, not habit.” And, more importantly, the Court determined that “clearly definable criteria for decision may be available. In such case the political question barrier falls away: ‘[A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. … [It can] inquire whether the exigency still existed upon which the continued operation of the law depended.’”
In the context of the 9/11 military commission, the question is not whether or when a war ended but whether or when an armed conflict existed. Indeed, the question for the military commission is whether from August 23, 1996 to October 7, 2001, a period in which the United States failed to use force against al Qaeda on 99.95% of days, the United States and al Qaeda were engaged in an armed conflict. The judicial policy impetus for deference to the political branches—that the need for war powers may persist after the end of active hostilities (see Baker)—simply is not present when the government seeks to retroactively identify an armed conflict in a period in which it used none of its war powers.
More to the point, the military commission itself has not only already identified “clearly definable criteria for deci[ding]” whether an armed conflict existed between the United States and al Qaeda prior to September 11, 2001—the Tadić standard—the military commission has applied those criteria in rendering decisions (here and AE642N Order, issued in February but not yet available on the military commission’s website) on the discoverability of evidence in the government’s possession.
Moreover, the case law that purportedly supports the position that the existence of a war or armed conflict is a political question simply does not do so. Historically, U.S. courts have engaged with the question of whether an armed conflict or war existed across a diverse range of legal disciplines. Indeed, neither of the two cases—Johnson v. Eisentrager and The Prize Cases—cited for the proposition that the existence of war is a non-justiciable political question come close to that holding.
The Johnson Court did not consider—or, more to the point, did not refuse to consider—whether the United States was at war during World War II, nor did it express any opinion about its authority to entertain that question. The war’s existence was simply not at issue in that case. Instead, the passage of the Johnson opinion cited for the non-justiciability of determinations of the existence of an armed conflict addresses only whether “the presence of the military forces of the United States in China at the times in question was unconstitutional or, if lawfully there, that they had no right under the Constitution to set up a Military Commission on Chinese territory.” The Court answered that it is not the role of the judiciary to examine “the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region.”
The Prize Cases is more instructive. In that case, the Court was actually called to consider the existence of a war or armed conflict in order to determine the lawfulness of President Lincoln’s blockade. The Court explained that “[t]o legitimate the capture of a neutral vessel or property on the high seas, a war must exist de facto.” And, rather than describing the question as non-justiciable, the Court determined to “enquire whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force.” The Court even defined war.
As was the case in Johnson, it was not determining the existence of a war that was beyond The Prize Cases Court’s consideration, but the propriety of policy choices concerning the armed conflict, including whether to recognize the belligerency of rebels or insurrectionists. Instead, the Court accepted its responsibility to determine the existence in fact of a war between the United States and the rebels. Indeed, Justice Grier posed the existence of a war as a threshold question to the lawfulness of the blockade: “Let us enquire whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force.” After defining war as the “state in which a nation prosecutes its right by force,” he foreshadowed modern analysis of non-international armed conflict by explaining that:
A civil war is never solemnly declared; it becomes such by its accidents — the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war.
… As a civil war is never publicly proclaimed, eo nomine against insurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and to know.
The true test of its existence, as found in the writing of the sages of the common law, may be thus summarily stated: ‘When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.’
In that light, Justice Grier took foreign declarations of neutrality to be ipso facto evidence of a war between the United States and the rebels. And, Grier held that “Whether the President in fulfilling his duties, as Commander in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him … ‘He must determine what degree of force the crisis demands.’” Thus, “the proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.”
Significantly, Grier reasoned that Lincoln’s imposition of a blockade was both justified by the existence of war, as demonstrated by tangible facts, and conclusive evidence of that war. The President could not enforce a blockade—could not use the rights of a belligerent—against an American state if that state were not engaged in insurrection so intense it rose to the level of war. Nor would the President seek to use belligerent rights against an American state unless such a war existed.
Moreover, the United States’ recourse to belligerent rights vis-à-vis the states in rebel carried with it the legal effects of recognizing their belligerent status and conferring upon them the rights of belligerency, as well.
But examples of the competence of U.S. courts to resolve questions of armed conflict and peace are not limited to a handful of dusty if significant cases. Much like it did in the Military Commissions Acts, Congress directed courts to determine the existence or not of armed conflicts by including an act-of-war exception in the Anti-Terrorism Act. This exception limits compensation under the Act to terroristic acts occurring outside of an armed conflict and, thereby, requires courts to determine the existence or not of an armed conflict (see e.g. Kaplan v. Cent. Bank of the Islamic Republic of Iran). The same is true of courts martial and certain provisions of the Uniform Code of Military Justice that are subject to enhanced penalties during wartime.
Third, the 9/11 military commission’s decisions turn on deference to select political acts, unsupported by the broader history of American political decisions vis-à-vis al Qaeda. Throughout the rulings discussed here, the military commission defers to the 2009 and 2006 Military Commissions Acts (MCAs) as the relevant determination by the political branches than an armed conflict between the United States and al Qaeda predated the 9/11 attacks. But, in contrast to the blockade at issue in the Prize Cases, for example, the 2009 and 2006 MCAs are not contemporaneous policy choices made to address an extant emergency carrying contemporaneous legal effects. Instead, the 2009 and 2006 MCAs are ex post policy choices intended to bring about a particular end, which requires, rather than reflects certain legal circumstances.
In contrast to the situation before the 9/11 military commissions, the Prize Cases Court pointed to Lincoln’s blockade proclamation as evidence that the United States had employed its belligerent rights vis-à-vis the Confederacy by implementing the blockade and, therefore, an armed conflict existed as of the proclamation’s issuance. In this case, the military commission points to the October 2006 Military Commissions Act for the proposition that an armed conflict between the United States and al Qaeda preceded either the U.S. invasion of Afghanistan on October 7, 2001 or the terrorist acts of September 11, 2001. Of course, the 2006 Military Commission Act was enacted specifically to enable the prosecution by military commission of the five men on trial before the 9/11 military commission for that day’s terrorist acts. Thus, the military commission’s deference is simply the last segment in a tautology.
Moreover, in contrast to the Prize Cases, to the extent that the 2006 Military Commission Act expresses the political branches’ determination that an armed conflict between the United States and al Qaeda began prior to 9/11, it does so despite—not because of—contemporaneous facts. Prior to September 11, 2001, al Qaeda had attacked the United States twice, once in August 1998 and once in October 2000. The United States responded militarily to the August 1998 East Africa embassy bombings through a circumscribed expression of its inherent right to self-defense, but refused to use military force in response to the October 2000 U.S.S. Cole bombing.
Further—and as just one example of contrary political acts not acknowledged or discussed by the military commission—in the immediate aftermath of the U.S.S. Cole bombing, in reference to that terrorist attack, President Clinton expressly proclaimed the United States to be a nation at peace, which is to say, a nation not engaged in an armed conflict.
So, whereas the Court in the Prize Cases and even Johnson v. Eisentrager, referred to contemporaneous objective indicia of war that at least accorded with the political branches’ view, the military commission in the 9/11 case ignores contemporaneous objective facts as well as contemporaneous political acts. Thus, under the guise of deference, the military commission is anything but deferential—in order to preserve its own jurisdiction, it ignores the judgment of the President at the time in favor of that of his successors.
Worse, the D.C. Circuit already rejected the military commission’s specific view that the existence of hostilities between the United States and al Qaeda is a settled political question in In re Nashiri. In 2016, based on the debate within the Supreme Court’s Hamdan decision, the Court of Appeals for the D.C. Circuit found that “whether hostilities against al Qaeda existed at the time of Al-Nashiri’s alleged [pre-September 11, 2001] offenses, and whether Al-Nashiri’s conduct in Yemen took place in the context of those hostilities, are open questions.”
Conclusion: Rewriting History
In an apparent effort to preserve its own jurisdiction while proceeding towards trial, the 9/11 military commission has made a hash of its armed conflict jurisprudence. It has invested itself with incoherence, treating the existence of hostilities as simultaneously beyond its competence and subject to a well-developed, fact-based standard. Worryingly, it has preserved its own jurisdiction by cherry picking helpful ex post political acts unmoored from facts while ignoring contrary contemporaneous ones—and ignoring a superior court’s contrary determination. But most concerningly, in twisting its armed-conflict jurisprudence up, the military commission has lent its imprimatur to efforts to rewrite history and create, retroactively, armed conflict where there plainly was none. What confidence can future lawyers and courts have in the decisions of such a tribunal?
Editor’s Note: Benjamin R. Farley is a trial attorney and law-of-war counsel at the U.S. Department of Defense, Military Commissions Defense Organization and is assigned to the team representing Ammar al-Baluchi. The views expressed do not reflect the views of the Department of Defense, the United States Government, or any agency or instrumentality thereof.
Image – A sign reading, “Office of Military Commissions Expeditionary Legal Complex Guantanamo Bay, Cuba” stands close to where pre-trial hearings are being held for the detainees at the military prison on June 25, 2013 in Guantanamo Bay, Cuba. (EDITORS NOTE: Image has been reviewed by the U.S. Military prior to transmission.)
This was a Continuing Education course offered by Nationally recognized - West LegalEdcenter, entitled - "After the Bubble Bursts" which taught Lawyers with Lender clients how to defend the legal wave of mortgage and securities fraud lawsuits. The Content Partner for the course - The Boston BAR Association. The GUEST SPEAKERS brought in to help TEACH the course included - (1) THE US ATTORNEY'S OFFICE (MA); (2) THE MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL; and (3) NELSON MULLINS RILEY & SCARBOROUGH PARTNER - JEFFREY S. PATTERSON, Esq., who was former CO-COUNSEL with current Counsel - DAVID E. FIALKOW, Esq.,
Honourable Judge Goldstone & Honourable Judge Wolf, I have recently been acknowledged by the International Criminal Court #ICC for such a case against 7 “natural persons” (for now) for #warcrimes & #crimesagainsthumanity in #Australia.
I now await the #ICC further instruction.
There is NO AVENUE TO REMEDY IN AUSTRALIA!
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The two judges explained that the lack of laws does not necessarily cause grand corruption, as there are “187 nations party to the United Nations Convention Against Corruption.”
“Almost all of them have laws prohibiting extortion, bribery, #moneylaundering, and #misappropriation of national resources.
They also have an #international #obligation to #enforce those laws against their #corrupt #leaders,” judges Goldstone and Wolf wrote.
The problem is, however, that “kleptocrats enjoy impunity in their own countries because they control the administration of justice,” and will not permit the prosecution and punishment of their collaborators and themselves.
“#Imprisonment of #corrupt #leaders will create opportunities for them to be #replaced by #honest #officials who are #dedicated to #serving #their #citizens.
It will also deter other kleptocrats tempted by ...
Whistle Blower of McCarthy & Holthus, “My job is to Create Title Where None Exists To Foreclose On Homes.”POWERS V. THE BANK OF NEW YORK MELLON ETAL·FRIDAY, APRIL 26, 2019117 ReadsWalk participants are approached and confronted by McCarthy & Holthus employees. Participants attempt to get the employees of the law firm to identify themselves, answer to the questions regarding false documents and the loss of so many homes, the employees declined to answer anything, even declining handshakes and peaceful introductions. The alleged attorney would not even give his name.“It is my belief that McCarthy & Holthus is creating documents to steal homes and unjustly enrich themselves!”, Whistle Blower continues to tell Powers and William Wagener.Powers was contacted privately with a message, “i think i can help your case.” and help this Whistle Blower has. This whistle blower helps all of us! Have you had McCarthy & Holthus/Quality Loan Service Corp. on your paperwork? Did they “create” documents to steal your home too?
Yesterday survivors of Financial Crimes gathered for a walk that started at The Can of Worms aka McCarthy & Holthus Lawfirmat 411 Ivy Street in San Diego California. Interesting fact, the building was once the county morgue! And their mail division is now in the basement where all the dead bodies were kept on ice. The building was also one that housed “First American Title Company” back in the day and our Charles Koppa told of having worked with the firm back then.William Wagener and Matt from the 28er’s filmed the walkand it was also covered by Rose Davis who writes for Indian Voices paper. Participants were treated very poorly by the law firm employees who confronted them. The employees were aggressive in behavior and the participants were not provoking them at all, employees who have no dress code other than not to dress like they work at a law firm. Powers was approached, while waiting for other walk participants to arrive, aggressively by a young woman with long brown hair, no make up and looking as if she were out running errands rather than working at a law firm. This young lady rudely insisted Powers give hername, though refused her name or title as an employee of the firm, and demanded Powers tell her what the people were all doing. Powers sees the women coming out of the back of the building heading their way in this photo.
Powers backed off surprised at the aggressive behavior stating she had no reason to have to answer to the young woman, but gave her name and said they were all taking a walk together. The young girl and 3 other women walked back into the building as if they had just met their opponents in agame, the employees created a hostile environment that could have been very peaceful on both sides if the employees had acted peacefully themselves.Powers asks, "so, you create documents to record here and those documents take thehomes?, employee says he did not say that, but he did not deny that is what is happening either. He did say, "we file documents here"...he is on video.As the group walked the direction of West Ivy 2 men and the same young woman who confronted Powers moments before came out. One of the men had a badge and it said Dave Owen(s) (on the left in the green shirt), he would not introduce himself but his badge identified him. He claimed to be in charge but would not answer further. As he was asked to please allow Powers to introduce herself both he and the second man refused.The second man (black shirt and jeans in above photo) who claimed to be an attorney for the law firm would not identify himself either, but did say that they
record documents from that location and wenton to give false claims of William not being able to film him in the public. (he ridiculously jumped onto the grass at the building to say he was standing on private property so he could not be filmed). William asked if they’d invite the participants in for coffee and to talk but that was declined. The group then began chanting slogans such as “Please quit stealing homes”. The group continued their walk and stopped at the back parking area (on the public sidewalk) of the building to discuss the remedy forthe crimes and the cases of Brashears v United States and Powers v BONYM et al. The two cases are for all people, including the hundreds of interested parties who have come forward. The information given is hard facts of the Financial Crimes and how the two cases are the First Impression cases that bring every case in America together. (there is a letter writing campaign that includes sending in a Form 95 for damages into these cases. www.facebook.com/events/630040930783307/Send in your letters and claim for damages and have your evidence seen and heard! Judge Carter will not be able to destroy any this time. )Homeowners and survivors of Financial Crimes are well aware of the fraudulent documents stealing our lands, estates, homes and lives. Well aware of identity theft, RoboSigning, cut and paste, back dating, MERS fraud and more. Homeowners are also aware that someone is paid to do these jobs and yesterday one paid to “create” a file to foreclose on homes, maybe even yours, came forward to tell all.Meeting and sharing with other survivors of the Financial Crimes is very healing for survivors.
We have a short segment to release and it is shocking truth. Will Foreclosure Mills survive the Whistle Blowers now coming forward apologizing and realizing their work led to the theft of homes? This information is going to Congresswoman Maxine Waters and the DOJ directly, stay tuned folks as the truth this Whistle Blower is sharingis enough to shut down the Mills and even the judges who know they are ruling “under the color of law with fraud upon the court presented”.Keep the Faith!(video of whistle blower and the walk will be uploaded and added soon!)www.disleague.com www.abolishthebankers.comWilliam Wagener YouTube: California 18 by Wagener: www.youtube.com/results?search_query=cal...+william+wagenerMore from Wagener: www.youtube.com/channel/UCxl2DRyoAJdd0kFz2z_E5dQThe 28er’s are working to end Bankers hold on America and you! 28ers.org/Photos Courtesy of Rose Davis/ www.indianvoices.net/
OFFICE OF INSPECTER GENERAL Renee Wyler complaint 1584643269858
March 19, 2020
My name is Darla Goulla,
I would like to add support to Renee Wyler complaint 1584643269858. Many Homeowners need support and are so beat down over repeated reports to CFPB, DOJ, FTC, Office of Inspector General.
I can share my own experience of filing a complaint previously with Office of Inspector General and NOTHING BECAME OF IT.
The Banks who have committed FRAUD know that we are complaining They are not concerned anything will become of our complaints, we are joining together and taking on the crooked banks and those who do nothing about our claims of MERIT.
If you need details of our claims see Rene Powers REMONSTRANCE.
Helen Edwards, Whistleblower/Complainer to the Australian Law Reform Commission's Inquiry into holding corporate executives personally responsible, documents are part of the material at this financialservices.house.gov/news/documen...px?DocumentID=406382
Memo to National Association of Whistleblowers Newport Beach
Jayde Perera was aware of the FBI investigations into, amongst other things, complainants about his colleague Ms Jeannie Pakula, such as Mr Elliot Sgargetta. Perera's CEO Mr McGarvie informed the Victorian Liberl Party State leader and Counterterrorism Minister that he and Mr Howard Bowles were unaware of the US investigations even though Mr Perera and Ms Claire Marshall and Mr Howard Bowles were.
Vanessa Iococo at the legal services was the contact for Michael McGarvie and was aware of the FBI & SEC investigations into the Commonwealth Bank case that was prosecuted by President Obama's national security prosecutor Ms Eileen Decker. Was also aware of the Assoc Profssor Dr Doherty who's in Exhibit J at the US Secret Service in Sacramento and with the Governor from the hamlet that the lsbc was reported as 'spying on'. Was also aware of the US Organised crime task force investigations into Keila Ravelo's transnational narcotics ring that the lsbc was advised by Associate Professor Dr Doherty was not delusional. Ravelo was subsequently convicted and disbarred on the application of those the lsbc were - very informatively - 'spying on'. News reports say the Royal Commission into Mokbel figures may look at the legal profession too.
And Jamal Khashoggi's widowed fiancee will be at the Portugal Conference with the preeminent expert on those RICO laws that McGarvie claimed to his Opposition Minister for Counterterrorism & Police Robert Clark he was unaware of even though his files refer to the CBA and the Ravelo Racket.
By now, you may have read a myriad of articles on the mandatory requirement for public and large private companies to implement and publish a Whistleblower Policy by 1 January 2020.
But it wasn’t until ASIC released Regulatory Guide 270: Whistleblower Policies (RG270) in mid-November 2019, that the regulator’s expectations on how to comply became clear.
What’s also clear is just how much confusion remains on key elements such as what’s disclosable, what qualifies for the whistleblower (WB) protections, and how organisations are expected to manage communications.
This article busts some of the common myths that we’ve been hearing.
myth #1: We don’t have to provide WB protections if the disclosure doesn’t state that it is being made under the Whistleblower policy?
Remember that cliché, if it looks like a duck? Well the same applies to a WB disclosure.
If an ‘eligible discloser’ (such as an employee or a supplier), makes a disclosure about a ‘disclosable matter’ to an ‘eligible recipient’ (which may be internal or external) then they will qualify for WB protections regardless of whether the disclosure is marked or labelled with any special words.
A ‘disclosable matter’ relates to ‘misconduct’ or an ‘improper state of affairs’ in relation to an entity or its related bodies corporate.
This carries two inherent difficulties for companies:
‘Disclosable matters’ is intentionally broad to cover a wide range of matters that may affect organisations and some disclosures may prima facie appear not to be a WB disclosure. It may include circumstances or conduct that don’t break any laws.
An ‘eligible recipient’ is not just the authorised person identified in the WB policy. It can be an officer, a senior manager or even an auditor, in addition to a relevant regulatory body such as ASIC, APRA and the ATO.
recommendations
To avoid an inadvertent breach of WB protections, we recommend:
Senior staff training – All senior management level employees (and above) should receive specific training to identify a WB complaint, and know their obligations when one has been disclosed;
Triage checklist – Have an easy to use checklist available to assist the recipient to assess the substance of the report and whether it qualifies for WB protections;
Referral process – If the receiver is unsure, have a clear procedure as to how the matter is to be referred, potentially for external legal advice, before the matter is dismissed.
myth #2: I’m being bullied by my boss. I’ll use the WB laws to make them pay.
WB policies do not cover personal work-related grievances such as interpersonal conflicts between team members or hiring decisions. The Act and ASIC do not regulate disputes that are purely employment related and this has not changed with the introduction of WB protections. In fact, there is a specific carve out.
A general rule of thumb for any employee is that if the matter only affects them as an individual then it will be unlikely to fall within WB protections, unless there is victimisation involved.
Companies need to take care in relation to what is known as a ‘mixed report’. For example, a disclosure that deals with a personal work-related grievance and includes information about a ‘disclosable matter’, such as:
allegations of misconduct – noting that misconduct is expressly defined in the Act as ‘fraud, negligence, default, breach of trust and breach of duty’;
breaches of commonwealth employment or other laws that are punishable by a period of imprisonment of 12 months or more;
reports of an ‘improper state of affairs or circumstances’ – this is intended to cover systemic issues that should be known by the regulator or may cause harm to the public (therefore not likely to cover workplace matters that only affect one individual).
Remember that complainants may be emotional, and the subject matter of the complaint may involve a multitude of things. It could take some time to unpack it and identify which issues are ‘disclosable matters’ and which ones are not.
We anticipate that very few workplace disputes will qualify for WB protections. Federal employment laws (except for the Work Health and Safety Act 2011 (Cth)) do not provide for criminal sanctions or terms of imprisonment. WB protections will apply to employees who make allegations of criminal misconduct such as fraud or sexual assault and any contraventions of the specified legislation such as the Act.
recommendations
To avoid employees incorrectly using the WB policy to air personal work-related grievances, in addition to the earlier recommendations, we suggest that:
Companies update their ancillary HR policies to ensure there is cohesion between all relevant policies;
Choice of authorised ‘eligible recipients’ – When choosing who to name in your WB policy as a person eligible to receive WB complaints, think carefully about that person’s interpersonal skills and whether they are likely to be well-equipped for the role;
Senior staff training – Should include training on ‘mixed reports’ and identify the other tools (such as a Triage Checklist) available to them to assist in identifying whether these contain a ‘disclosable matter’ or elements of victimisation. Training should identify appropriate avenues and responses for different elements of a complaint, and the other applicable company policies that may need to be followed, if the WB Policy does not apply.
General awareness training – Staff at all levels should receive general awareness training of what is, and (importantly) what isn’t a matter to be dealt with under the WB policy. This may assist in curbing over-use of the policy.
myth 3#: I’m anonymous so I can say what I like!
Individuals can report anonymously under WB protections and are entitled to remain anonymous through the course of their disclosure.
On one hand, recipients of disclosures have positive obligations to:
Permit an individual to remain anonymous if they choose, including receiving complaints made via anonymous emails or letters;
Maintain the confidentiality of the discloser’s identity, including redaction of any information that may likely lead to their identification;
Ensure that no action is undertaken which may result in detriment to the discloser (e.g. Westpac’s alleged demotion of their compliance officer for advising the board of their failure to declare payments under anti-money laundering laws).
But this doesn’t grant free licence to the discloser to say what they like.
The Whistleblower is only eligible for protection arising from a legitimate WB disclosure. If their report is a ‘mixed report’, then WB protections may not apply to the entirety of their disclosures. False or vexatious disclosures will not receive the available protections, and could expose a discloser to liability or other consequences of any misconduct they have engaged in during their employment.
recommendations
Given the time it can take to determine if a report is false, companies are far better to err on the side of caution before opening themselves up to criminal liability for failing to extend WB protections.
A breach of confidentiality for a legitimate WB discloser is an offence which may result in criminal liability.
Any WB Policy and staff training programs need to specifically address how confidentiality and anonymity will be retained.
myth #4: The Company can decide whether to communicate with Whistleblowers
WB disclosures that qualify for protection are required to be investigated and WB policies must stipulate how the investigation will proceed.
ASIC have now clearly communicated that (whenever possible) companies are encouraged to communicate with a discloser throughout the course of any investigation, including providing progress updates, and clarifying in the policy how investigation findings will be documented and reported (either internally or to the discloser).
Notably though, the Act does not require companies to continuously communicate with the discloser or provide them with updates on the investigation, particularly if this communication may jeopardise the confidentiality of the discloser or overall investigation.
Continuous communication with disclosers is a discretionary matter for each company to consider on a case-by-case basis. We do not recommend that companies enshrine such an obligation in a policy, as it may be impractical, and in some cases, may jeopardise an organisation’s ability to provide required protections.
As a practical matter, Companies should be aware that WB disclosers will expect action, and a failure to communicate with the discloser may result in an attempt to make the complaint external.
recommendations
Do not enshrine communication obligations in a policy;
Setting expectations on how the investigation procedure will work (in each case) and the level of communication a discloser can expect to receive from the outset (following a disclosure) will help to mitigate the risk of further action;
Companies should keep a detailed record of each complaint and investigation undertaken so they can be prepared to respond to any enquiries from a regulator.
myth #5: The new laws mean that whistleblowers can go to the media or use social media to blow the whistle.
Disclosers will not be afforded WB protections if they go straight to the media.
To receive WB protections, a discloser must meet the requirements of the Act in relation to a ‘public interest’ or ‘emergency’ disclosure – meaning the discloser must:
have made a previous disclosure of the information to the company or other ‘eligible recipient’; and
have either:in the case of an ‘emergency disclosure’ reasonable grounds to believe that ‘the information concerns a substantial and imminent danger to the health or safety of one or more persons or the natural environment’; or
in the case of a ‘public interest disclosure’, the discloser has waited 90 days since their previous disclosure and has reasonable grounds to believe that no action is being taken, and that making a further disclosure is in the public interest;
notified the body to which the previous disclosure was made with sufficient information to ascertain the previous disclosure, and state that they intend to make a ‘public interest’ or ‘emergency’ disclosure under the Act;
make the disclosure to a journalist or a member of the Parliament of the Commonwealth, state or legislature of a Territory; and
disclose information that ‘must be no greater than what is necessary to inform the recipient’ of the improper state of affairs or misconduct (in the case of a public interest disclosure) or the substantial and imminent danger (in the case of an emergency disclosure).
Ultimately, a discloser will have to jump through these hoops before they can go straight to the media with a complaint. These reasonably high thresholds ensure that companies have an opportunity to take appropriate and measured responses to complaints, without being held to ransom by threats of premature public disclosure.
recommendations
Ensuring that potential whistleblowers understand the types of disclosures that may receive protections, and in what circumstances, is an important feature of staff ‘general awareness’ training;
Consider whether your organisation’s social media policy needs to be amended and cross-refer to its WB Policy to guard against inappropriate use of social media;
Whistleblowers are recommended to follow the procedures identified in the WB Policy or contact the relevant regulator before resorting to a disclosure to the media.
If someone is adamant about making a public disclosure, we recommend seeking prior independent legal advice about how to access the legal protections available, or to understand the potential consequences if the protections do not apply.
WB policies were never intended to be a one size fits all policy and each company will need to adopt their own procedures that suit the needs of the company.
After 127 days of public hearings and dozens of high profile witnesses, a royal commission into turncoat gangland lawyer Nicola Gobbo is set to wrap up.
The inquiry into Victoria Police's use of Lawyer X as an informer will end on Friday, but will continue to investigate policy issues surrounding management of informers with legal obligations.
Commissioner Margaret McMurdo is due to hand down a report on her findings on July 1.
The inquiry has examined Ms Gobbo's three periods as a registered police informer.
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She was first recruited as a law student in 1995 when she turned on a former boyfriend for drug dealing.
In 1999 she was registered again while trying to offer police tips on fellow lawyers she accused of money laundering.
Her longest stint ran from 2005 until 2009 when she gave evidence against clients, including drug kingpin Tony Mokbel and underworld killer Carl Williams.
Ms Gobbo admitted she had acted as an agent for police instead of in the best interest of her clients.
"Was I accumulating information and, on one level, trying to impress people? Yes I was," she said.
"Do I regret it now? Yes. Every day."
The inquiry has heard from more than 100 witnesses, most of whom gave evidence in the public hearings.
Among them were former chief commissioners Simon Overland, Christine Nixon and Ken Lay, prominent gangland investigators including former Purana Taskforce boss Jim O'Brien and detective Stuart Bateson, and a number of handlers who directly managed Ms Gobbo and her tips.
Ms Gobbo was one of the last witnesses to give evidence, ordered to appear despite efforts to be excused on health grounds.
Crooks previously represented by Ms Gobbo - some who turned informer on her advice - also gave evidence.
Inspector John Nolan and former detective senior sergeant Shane O'Connell are expected to be the final witnesses on Friday, when lawyers will also make closing remarks.
