As we noted last week while covering the tragic death of Anastasia Adair, who accidentally killed herself with a new assault rifle,
Larimer County Sheriff Justin Smith and 54 colleagues have joined a
complaint against newly passed Colorado gun-control laws, including a
ban of all magazines that can hold more than fifteen rounds and a
requirement for universal background checks on gun purchases. What are
the arguments against them? The Independence Institute's Dave Kopel, who
helped assemble the document (it's on view below), lays out the
sheriffs' concerns.
According to Kopel, the two laws, known as HB 1224 and HB 1229,
"violate the Second Amendment and the Fourteenth Amendment" of the U.S.
Constitution, as well as "the Americans with Disabilities Act" -- hence,
the decision to file in United States District Court, where the case
will be handled by Judge Marcia Krieger.
Judge Marcia Krieger.
The magazine restrictions are particularly onerous when applied to the disabled, Kopel believes.
"The ADA requires state and local governments to make accommodations
for disabled people, particularly in regard to major life activities,"
he says. "And many disabled people have less ability when they're
attacked in their home to retreat to a point of safety or get behind
cover from which they can change a magazine. They may have less
mobility, or some might have only one arm, for example.
"So it's more difficult for them to change magazines than do other
people -- and therefore, even if the magazine ban were constitutional in
general, which we argue it is not, the people with relevant
disabilities are entitled to reasonable accommodations to larger
magazines."
Of course, exceptions for the disabled wouldn't be necessary if both laws are struck down.
What troubles Kopel about the magazine ban? First and foremost, he
maintains that while the bill on the subject seems to only prohibit mags
that support more than fifteen rounds, it actually "bans almost all
magazines."
A thirty-round magazine.
The
reason? A line in the bill nixing magazines that can be readily
converted to fit more rounds. Since such magazines are used for
semi-automatic handguns and rifles -- and because an estimated 82
percent of handguns and at least one-third of rifles manufactured in the
U.S. fit in this category -- he sees the result as "a de facto gun ban
even broader than the one that was struck down in D.C. v. Heller," a
Supreme Court case that tackled prohibitions against handguns in the
District of Columbia.
We've included the D.C. v. Heller decision below, as well as a 9News report about the issue originally broadcast in March that Kopel recommends.
As Kopel points out, "The governor's office and the sponsor of the
bill both agree that the magazine ban outlaws all magazines that have
removable base plates or floor plates" -- e.g., the kind that can be
adapted for more rounds. And while Governor John Hickenlooper is relying
on guidance from the office of Colorado Attorney General John Suthers
to apply the rule narrowly, such an approach doesn't bring with it any
guarantees that the interpretation will stand for all time."
Why not?
"It's not binding on anyone," Kopel says. "You can't force the Denver
Police Department to enforce what they would have if the bill had been
less aggressively drafted. The words of the statute are what they are,
and it can be changed at any time by any future attorney general. If
[Democratic state senator] Morgan Carroll is attorney general two years
from now, there's no guarantee it will stick around. So our view is, the
guidance does not solve the problem of the small magazine ban in
practice."
An AK-47.
The complaint also attacks the magazine ban on another front.
"The decision in D.C. v. Heller says you can't ban arms that are
typically used by law-abiding citizens for lawful purposes -- something
that's also called the common-use test. For the purposes of this case,
then, all we need to do to win is to show that the fifteen-round
magazine ban violates the common-use test. And handgun magazines up to
twenty are, in fact, in common use by law-abiding citizens for lawful
purposes.
"There's also the fact that sheriffs and deputies frequently carry
such magazines both as duty guns and personal firearms -- and that's
because they're often the best choice for lawful self-defense in defense
of yourself and others."
Dave Kopel.
Kopel
acknowledges that "you wouldn't have 55 sheriffs signing on to this if
it was a ban of 100-round magazines. But magazines of up to twenty
rounds for handguns and thirty rounds for rifles easily pass the
common-use test."
Regarding the background checks, Kopel highlights the regulations
about temporary transfers of firearms. "There are some exceptions in
there that are good," he acknowledges, "but a lot of situations aren't
covered. Sheriff Justin Smith talked about someone who flees their house
because it's on fire and leaves their firearms with friends for
safekeeping. Under the bill, if you don't get the guns in 72 hours,
you're a criminal.
"So we challenge the constitutionality of requiring advance
government permission for innocent temporary transfers in the first
place. We don't take a position on the constitutionality of background
checks on actual private sales as a theoretical matter, but we do say
that if you're going to do this, there has to be a functional system so
people can obey the law -- and the system is by its very nature
non-functional."
Kopel says that "the only people who can get the background check for an
actual sale are federally licensed firearms dealers, who can charge a
fee of no more than $10. But the plaintiffs in our case, which include
some federally licensed firearms dealers, have said they're not going to
do the check for ten bucks, because you have to do three pages of
federal paperwork for which the gun store is in great legal peril,
including possible license revocations and felony prosecutions is there
are mistakes made on this form.
"And instant background checks in Colorado are far from instant. They
sometimes take hours or days. So it's not going to be worth it for the
large majority of firearms stores to do it, and that's especially
impactive for those in rural areas, where it may be a long way to a
store. You don't want to drive ninety minutes to somewhere and then find
the store won't do the check."
Rhonda Fields, flanked by Governor John Hickenlooper and Lieutenant Governor Joe Garcia.
The
complaint doesn't stop there, taking on issues such as a "continuous
possession" requirement that Kopel says is utterly impractical when it
comes to gun repair, among other things. But he also sees the laws as
casting aspersions on legal gun owners.
"Representative Fields" -- that's Rhonda Fields, who co-sponsored
many of the gun bills heard during the recently concluded legislative
session -- "repeatedly said the only purpose for magazines with fifteen
rounds is to kill a lot of people at once. And we say that's flagrantly
false. Sheriffs own those magazines to save innocent lives, not kill a
lot of people -- and that's the same reason so many other law-abiding
people own these magazines.
"When you base a law on a fact that is obviously not true, and a fact
that is essentially a group libel of an entire class of people, there's
not a legitimate government purpose behind them," he continues. "Just
the opposite. It's an illegitimate purpose, an expression of prejudice
and animus -- invidious discrimination, to use legal terms."
In Kopel's opinion, this makes the gun laws similar to Amendment 2,
an early '90s measure that set out to ban "special rights" conferred to
homosexuals; it was eventually overturned by the U.S. Supreme Court. As
in that case, "you can't just have a law to express the sponsor's
hateful prejudices about other people. That's not a legitimate purpose
for the law. It's a blood libel to claim that the only reason anybody in
this state has a magazine of more than fifteen rounds is because that
person wants to murder a lot of innocent people at once."
Look below to see the aforementioned 9News
report about the magazine ban, followed by the complaint against the
gun laws and D.C. v. Heller, the Supreme Court case frequently cited by
Kopel.
The House passed a bill Wednesday that would approve the
northern leg of the Keystone XL oil sands pipeline by an act of law, and
take the decision out of the hands of President Obama.
Members
voted 241-175 in favor of H.R. 3, the Northern Route Approval Act.
Republican supporters were joined by 19 Democrats, much less than the
level of Democratic support in the last Congress.
A big reason for
the drop in Democratic support is the GOP's new approach to the
pipeline, which would move tar sands oil from Canada to the United
States to be refined. Legislation in the last Congress set a deadline by
which Obama had to decide on approving the project, and passed with 47
Democrats in 2011.
Today's bill would remove any need for presidential approval of
TransCanada Corp's proposed pipeline and deem it approved, which many
Democrats saw as going too far. Rep. Nick Rahall (D-W.Va.), who supports
the construction of the pipeline, said Republicans lost his support
because of this change.
"Last Congress, I voted for every piece
of pro-Keystone pipeline legislation that was brought before this body,"
Rahall said. "Something's happened along the way between then and now.
And that something is called a hijacking of this bill by the right
wing."
Rahall and other Democrats added that they don't support a congressional grant of any permit to any company.
"It
waives a permit and it deems a permit application by a foreign company…
for a major undertaking in the United States to be approved," he said
of the bill. "We don't even do that for our domestic companies." Earlier
in the week, the White House said Obama would veto the bill, in large
part because of the language eliminating the need for presidential
approval of the pipeline. That veto, and Democratic opposition in the
Senate, means the bill is unlikely to advance beyond the House.
Republicans
said Democrats were over-reacting to the bill, and said other pipelines
have been approved in similar ways in the past.
"This
legislation if passed would be passed the same way that in 2004 the
Alaska natural gas pipeline [was approved], which the entire body passed
on a voice vote," Rep. Jeff Denham (R-Calif.) said.
Rahall
offered an amendment to strike language removing the need for
presidential approval, but the House rejected it in a 177-238 vote — 17
Democrats sided with Republicans in that vote.
More broadly, the
bill gave members a chance to outline the many reasons they have listed
over the years either in support or opposition to the pipeline.
Republicans cast the bill as one that creates jobs and helps boost
energy supplies in the U.S., and one that President Obama has needlessly
delayed for years.
"It creates American jobs, it increases our
energy independence, it strengthens our national security and it will
contribute to lower gas prices," Rep. Daniel Webster (R-Fla.) said.
The
GOP also said the government has had enough time to study the
environmental impacts of the pipeline. "This delay has taken longer than
it took the greatest generation to win World War II on both fronts,"
quipped Rep. Lee Terry (R-Neb.), who noted that the application for the
pipeline was filed five years ago.
But Democrats said the amount
of tar sands oil that would be moved from Canada and refined in the
United States would not have any measurable effect on the price of gas.
They also downplayed the jobs impact of the pipeline, and said there are
still environmental problems associated with the project.
Two
Democrats went to far as to say that any project promoting fossil fuels
will only make global warming worse, and will lead to more damaging
storms.
"Experts tell us that this Keystone XL [pipeline] will
triple production of the tar sands, and that's simply not consistent
with any future scenario for avoiding catastrophic climate change," said
House Energy & Commerce Committee ranking member Henry Waxman
(D-Calif.).
"Any rational person who doesn't want more Hurricane
Sandys or more Oklahoma hurricanes would recognize that we must focus on
developing renewable energy sources, and reduce our dependence on
fossil fuels," Rep. Jerrold Nadler (D-N.Y.) said.
Aside from
Rahall's amendment, Democrats were given eight other chances to amend
the bill. The House only accepted one of these, from Rep. Steve Cohen
(D-Tenn.), by unanimous consent. Cohen's language would require
TransCanada to submit its oil spill response plan to the governors of
each state in which the pipeline operates.
The House also
accepted a lone Republican amendment from Rep. Randy Weber (Texas),
which highlights State Department findings that say the Keystone
pipeline is environmentally sound. Weber's language passed 246-168.
In
the final vote, one member, Rep. Justin Amash (R-Mich.), voted
"present." Amash's office said he supports construction of the pipeline,
but opposes singling out specific companies or people in legislation as
this bill does.
Other amendments that were unsuccessfully sought by Democrats were from:
—
Henry Waxman (D-Calif.), adding a finding that reliance on oil sands
will increase greenhouse gas emissions, and prevent the bill from taking
effect until a presidential finding that TransCanada will offset these
emissions. Failed 146-269.
— Hank Johnson (D-Ga.), requiring a
study on the health impacts of increased air pollution caused by
increased activities at refineries. Failed 177-239.
— Gerry Connolly (D-Va.), requiring an assessment on the vulnerabilities of the pipeline to terrorist attack. Failed 176-239.
— Elizabeth Esty (D-Conn.), ensuring that TransCanada is subject to operation and maintenance oversight. Failed 182-234.
—
Sheila Jackson Lee (D-Texas), increasing the length of time for filing
claims against the pipeline under the bill to one year, instead of six
months. Failed 182-234.
— Judy Chu (D-Calif.), requiring a GAO study on the projected costs of cleaning up a pipeline spill. Failed 185-231.
— Rush Holt (D-N.J.), requiring that oil moved through the pipeline must be used in the United States. Failed 162-255.
Who’s in charge
here, anyway? The Obama administration is responsible for everything,
but knows nothing. America is in ruins, scandal, and no one’s to blame.
Evidently, the buck permanently stopped with George W. Bush.
The
ever so smug White House Press Secretary, Jay Carney, has had a tough
go of it lately creatively answering questions saying he doesn’t know
anything and the president had absolutely no knowledge or involvement –
in anything. Apparently, ‘at no time was the Obama administration aware
of what the Obama administration was doing.’
It’s
funny, infuriating, and sad all at the same time. The most corrupt
government in American history has not, is not, and will not be held
accountable for their actions.
I hope I’m wrong; nothing will come from any of this.
With
Americans as uninformed and disinterested as we’ve ever seen, consider
the mounting information that continues to be brushed under the rug. If
President Obama were a Republican, he never would have been reelected in
2012 and he’d be impeached in 2013.
But
the media refuses to report the truth – unless they are practically
forced to – about anything remotely negative on Obama, and four years of
this has not only led to a well- insulated president, but also citizens
who are not hearing many facts.
A
CNN poll last week revealed 53% of Americans still approve of the job
Obama is doing as president! Since it’s nearly impossible to estimate
how many of these are die-hard liberals, progressives, Democrats, and
college students, we should assume a majority of them have little
interest or knowledge of Obama’s actual record. Gallup also has Obama’s
approval right around 51%. So – what gives? His approval should be in
the 30’s.
It’s
been suggested that the media can tilt an election by approximately 8
points. I’d also say they can influence polls and approval ratings by
making a devil seem like an angel.
America
has reached a tipping point. While people are getting more frustrated,
government is becoming more arrogant and evasive. Here are some stories
that come to mind.
Who
can forget the Obamacare monstrosity that was rushed through Congress
and then crammed, forced, and stuffed down the American people’s
throats? Nancy Pelosi infamously told us we’d have to pass the bill to
find out what was in it, and now it’s old news. The lies have been told,
the people have been deceived, and more than $1 trillion in new taxes
and more than $2 trillion in new spending later, the Democrats have
gotten away with their abuse of power Scott-free.
Even
HHS Secretary Sebelius admitted insurance premiums will increase and
approximately 24 million Americans will lose their current coverage once
Obamacare kicks into gear. Because of this, some employers are already
cutting full-time workers hours so they won’t be forced to pay for as
many employees’ insurance plans.
Blue Cross Blue Shield, for one, has proposed a 25% rate increase for many of their plans.
Insurance
rates have gone up, people have lost health care coverage, employers
have been forced to drop certain plans, and countless medical costs have
gone up because of the upcoming changes in the law – forced upon the
majority of Americans.
A
few years ago, Arizona Governor Jan Brewer was begging our own
government for help protecting the U.S./Mexico border. Citizens were
having property damaged or stolen, deaths were reported, and Mexican gun
cartel activity was traced nearly 100 miles into Arizona. What
happened? The Obama administration sued the state of Arizona for
enforcing their immigration laws.
Next,
when it came to the deaths of American and Mexican citizens, the
reckless Fast and Furious gun-running operation was forgotten shortly
after Obama protected Erik Holder and the (In)Justice Department by
exercising his executive privilege – after it was confirmed Holder lied
and was held in contempt of Congress.
One
scandal I thought would stick was Benghazi. The evasive runaround, the
administration’s laughable talking points, and the complicit media
silence kept people uninformed. The scandal didn’t stick, but it does
stink. The spin and media puppet show shielded Obama and leading up to
the 2012 Presidential Election, the Obama administration received
extremely little scrutiny for the Benghazi incident and how it was
mishandled back in D.C.
Remember
the stimulus debacle? We’re talking about massive spending of taxpayer
money on green energy scams; I mean “investments.” Jobs were promised
and immediate economic growth was predicted and yet, one after the
other, these companies failed miserably.
Solar
Trust for America, declared bankruptcy after receiving $2.1 billion in
loan guarantees from the Department of Energy. First Solar blew through
$1.46 billion, Solyndra wasted $535 million, Fisker Automotive received
$529 million, Evergreen Solar spent $527 million, and the list goes on.
Now,
we see the current, growing AP scandal involving information leaks as
well as the DOJ seizing records of several Fox News employees while they targeted reporter James Rosen.
It’s
also been confirmed the IRS has targeted the Tea Party, Christians, and
many conservative groups including Republican business executives that
simply donated to the Romney campaign.
Naturally, no one in the Obama administration knows anything.
To
end with a ‘you just can’t make this stuff up’ storyline twist, the
crony slated to take over Obamacare for the IRS, Lois Lerner, will
apparently take the 5th in the ongoing investigation of IRS corruption.
I also faintly recall ongoing investigations regarding voter fraud in the 2008 and 2012 elections.
Geez, I hope the media or Obama justice Department find some answers they’re not seeking.
It’s all “ongoing.” Most of us are not holding our breath.
President Barack Obama and, for that matter, most of America seem
woefully ignorant about a scandal unfolding at the U.S. Environmental
Protection Agency. As hard as it is to believe, outgoing Administrator
Lisa Jackson actually appears to have had agency personnel create a
fictitious employee by the name of “Richard Windsor” so that Jackson
could appropriate the Windsor’s email address for her own purposes.
We’re not talking about some alias to be used for personal
correspondence but a totally false identity in whose name official
business was allegedly conducted created specifically to avoid federal
record-keeping and disclosure requirements. And none of this would ever
have been uncovered were it not for the courage of a still anonymous
whistleblower and the Competitive Enterprise Institute’s Christopher
Horner, an attorney with the legal smarts and experience needed to
unravel it all.
Earlier this week, thanks to Horner’s good work, the EPA was supposed
to produce the first installment of some 12,000 secret, previously
undisclosed emails. Not because it wanted to but because a federal court
order required it to.
Under the order, the EPA was to provide the first installment of
3,000 e-mails with three additional installments of 3,000 e-mails to
follow. Rather than provide the required emails, however, EPA’s cover
letter accompanying its production of emails said it “produced more than
2,100 emails received or sent” by Jackson on an official alias e-mail
account.
All fine, well and good – except that not one of those emails was
from “Richard Windsor’s” account. Not one. Yet it is certain the account
exists because Horner found three Windsor emails using other means.
Instead the EPA provided such absurdly silly and unresponsive e-mails as
the daily news briefs published by the Washington Post, and
EPA national news clippings, a pathetic attempt to avoid a contempt
citation that came only after a week’s worth of unsuccessful attempts to
push the official response date down the road.
A pattern exists: the EPA creates a fake e-mail account for its
administrator to avoid scrutiny; it doesn’t produce any of the fake
e-mails even though they are required by law to do so; when specifically
required by court order, the EPA seeks endless delays; and, when the
delaying tactics prove fruitless, EPA fails to provide either the number
or the type of e-mails required.
To put it simply, the agency is trying to run out the clock, hoping
against hope that people will lose interest and move on to something
else. This, in our judgment, must not be allowed to happen.
The point of this scheme was to evade public accountability, to
conduct official government business under the table, outside of the
public eye. When Congress and others asked for Ms. Jackson’s EPA
correspondence and email, the “Richard Windsor” e-mails would fall
outside that request and, eventually, be destroyed allowing official EPA
business to be conducted secretly. That falls well short of conducting
business in the open and in a transparent fashion. It also falls well
short of the standards required by federal law.
If this were merely a matter of an official “alias” – e.g.
LJackson@EPA.gov instead of her “official” email name, it would be no
big deal. But the “Richard Windsor” identity is not an alias: it is a
totally fake persona obviously created to evade record-keeping and
disclosure requirements. It may not seem it on its face, but it an
issue so serious that anyone who received a “Richard Windsor” email or
corresponded with “Richard Windsor” – knowing it was Lisa Jackson and
not reporting it, should at the very least be barred from succeeding her
as administrator of the EPA.
"Despite EPA's 'everyone does it' line -- the lesser-known, somewhat
inconsistent subtitle to 'most transparent administration, ever' --
Richard Windsor appears to be the first false identity assumed to hide a
senior federal official's public records,” Horner says. “One reason for
this might be that it's against the law. The readiness with which we
already know other administration officials, including lawyers, accepted
the practice suggests Windsor wasn't the only such false identity Obama
officials have created to subvert federal record-keeping and disclosure
laws."
Yes, America, this e-mail scandal is worse than originally believed.
Far worse. And if “everyone does it” in this Administration as the EPA
has claimed, President Obama needs to answer some questions as well.
And the United States Senate, which has slew of presidential nominees
to confirm in the next few months, has the obligation to start asking.
George Landrith is president of Frontiers of Freedom, a
Virginia-based public policy organization. Peter Roff is a senior fellow
at FOF.
This
time of year, as college students return home for the summer, many
parents may notice how many politically correct ideas they have acquired
on campus. Some of those parents may wonder how they can undo some of
the brainwashing that has become so common in what are supposed to be
institutions of higher learning.
The strategy used by General Douglas MacArthur so successfully in the
Pacific during World War II can be useful in this very different kind
of battle. General MacArthur won his victories while minimizing his
casualties -- something that is also desirable in clashes of ideas
within the family.
Instead of fighting the Japanese for every island stronghold as the
Americans advanced toward Japan, MacArthur sent his troops into battle
for only those islands that were strategically crucial. In the same
spirit, parents who want to bring their brainwashed offspring back to
reality need not try to combat every crazy idea they picked up from
their politically correct professors. Just demolishing a few crucial
beliefs, and exposing what nonsense they are, can deal a blow to the
general credibility of the professorial pied pipers.
For example, if the student has been led to join the crusade for more
gun control, and thinks that the reason the British have lower murder
rates than Americans have is because the Brits have tighter gun control
laws, just give him or her a copy of the book "Guns and Violence" by
Joyce Lee Malcolm.
As the facts in that book demolish the gun control propaganda fed to
students by their professors, that can create a healthy skepticism about
other professorial propaganda.
There are other books that can likewise demolish other politically
correct beliefs that prevail on campuses. My own recent book,
"Intellectuals and Race," has innumerable documented facts that expose
the fallacies in most of what is said about racial issues in most
college classrooms.
For those students who have bought the campus party line on Third
World nations, the classic study of that subject is "Equality, the Third
World, and Economic Delusion" by the late P.T. Bauer of the London
School of Economics. He made a veritable demolition derby of most of
what has been said in politically correct circles about the relationship
between rich and poor countries.
For those students who have been conditioned to regard the welfare
state as the solution to social problems, there is no book that exposes
the actual human consequences of the welfare state more poignantly than
"Life at the Bottom" by British physician Theodore Dalrymple. He has
worked in both low-income neighborhoods and in prisons, so he has seen
it all.
Although Britain is the setting for "Life at the Bottom," Americans
will recognize very similar patterns here. Problems found in low-income
black ghettoes in the United States are found in low-income white
neighborhoods in Britain, where none of the usual excuses about racism,
slavery, etc., apply. The only thing that is the same in both countries
is the welfare state and its poisonous ideology.
If your student has been led to believe that "comprehensive
immigration reform" -- amnesty, in plain English -- is the only way to
go, a devastating book titled "Mexifornia," by Victor Davis Hanson,
introduces some cold, factual reality into a subject usually discussed
in sweeping and lofty rhetoric.
A book that offers a choice between the island-hopping strategy that
General MacArthur used in the Pacific and the all-out assault across a
broad front that was used by the Allied armies in Europe is titled "The
New Leviathan."
It has thirteen penetrating articles by leading authorities on such
subjects as national security, ObamaCare, environmentalism, election
frauds and more.
Those parents who want to follow the MacArthur strategy can recommend
reading one, or a few, of these articles, while those who want to
follow the strategy of attacking all across a broad front can recommend
that their student read the whole book.
However the battle is fought, what is most important is that the
battle be fought, since the young are the future, and the propaganda of
today can become the government policies of tomorrow.
Raymond Maxwell, the only official at the State Department's bureau of
Near Eastern Affairs to lose his job after the attacks, tells Josh Rogin
that he’s been scapegoated by Hillary Clinton’s team.
Following
the attack in Benghazi, Libya, senior State Department officials close
to Hillary Clinton ordered the removal of a midlevel official who had no
role in security decisions and has never been told the charges against
him. He is now accusing Clinton’s team of scapegoating him for the
failures that led to the death of four Americans last year.
Hillary Clinton laughs as she testifies before the House Foreign
Affairs Committee on Capitol Hill in January. (Chip Somodevilla/Getty
Images)
Raymond
Maxwell was placed on forced “administrative leave” after the State
Department’s own internal investigation, conducted by an Administrative
Review Board (ARB) led by former State Department official Tom
Pickering. Five months after he was told to clean out his desk and leave
the building, Maxwell remains in professional and legal limbo, having
been associated publicly with the death of Ambassador Chris Stevens and
three other American for reasons that remain unclear.
Maxwell,
who served as deputy assistant secretary of state for Near Eastern
affairs from August 2011 until his removal last December, following
tours in Iraq and Syria, spoke publicly for the first time in an
exclusive interview with The Daily Beast.
“The
overall goal is to restore my honor,” said Maxwell, who has filed
grievances regarding his treatment with the State Department’s Human
Resources Bureau and the American Foreign Service Association, which
represents the interests of foreign-service officers. The other three
officials placed on leave were in the Diplomatic Security Bureau,
leaving Maxwell as the only official in the Bureau of Near Eastern
Affairs (NEA), which had responsibility for Libya, to lose his job.
“I
had no involvement to any degree with decisions on security and the
funding of security at our diplomatic mission in Benghazi,” he said.
Watch the highlights of Hillary Clinton's testimony about Benghazi.
Maxwell
was removed from his job December 18, the day after the ARB report was
released, and subsequently placed on administrative leave, which is
meant to give the State Department time to investigate whether Maxwell
should be fired or return to work. Five months later, that investigation
seems stalled, and Maxwell sits at home, where he continues to be paid,
but is not allowed to return to his job.
The
State Department declined to comment on the reasons Maxwell and the
other officials were placed on administrative leave or on what the four
were told about the reasons for the decision. It did confirm that the
ARB did not recommend direct disciplinary action because it didn’t find
misconduct or a direct breach of duty by the officials. “As a matter of
policy, we don’t speak to specific personnel matters,” said State
Department spokeswoman Jen Psaki.
Since
the leave is not considered a formal disciplinary action, Maxwell has
no means to appeal the status, as he would if he had been outright
fired. To this day, he says, nobody from the State Department has ever
told him why he was singled out for discipline. He has never had access
to the classified portion of the ARB report, where all the details
regarding personnel failures leading up to Benghazi are confined. He
also says he has never been shown any evidence or witness testimony
linking him to the Benghazi incident.
Maxwell
says he had planned to retire last September, but extended his time
voluntarily after the September 11 attack to help the bureau in its time
of need. Now, he is refusing to retire until his situation is
clarified. He is seeking a restoration of his previous position, a
public statement of apology from State, reimbursement for his legal
fees, and an extension of his time in service to equal the time he has
spent at home on administrative leave.
“For
any FSO, being at work is the essence of everything, and being deprived
of that and being cast out was devastating,” he said.
Soon
after being removed from his job, Maxwell was visited at his home late
one evening and directed to sign a letter acknowledging his
administrative leave and forfeiting his right to enter the State
Department. He refused to sign, responding in writing that it amounted
to an admission he had done something wrong.
“They just wanted me to go away but I wouldn’t just go away,” he said. “I knew Chris [Stevens]. Chris was a friend of mine.”
“Behind Beth’s back, Maxwell ended up being put on administrative leave.”
The
decision to place Maxwell on administrative leave was made by Clinton’s
chief of staff, Cheryl Mills, according to three State Department
officials with direct knowledge of the events. On the day after the
unclassified version of the ARB’s report was released in December, Mills
called Acting Assistant Secretary of State for Near Eastern Affairs
Beth Jones and directed her to have Maxwell leave his job immediately.
"Cheryl
Mills directed me to remove you immediately from the [deputy assistant
secretary] position," Jones told Maxwell, according to Maxwell.
The
decision to remove Maxwell and not Jones seems to conflict with the
finding of the ARB that responsibility for the security failures leading
up to the September 11, 2012, attack on the U.S. mission in Benghazi
should fall on more senior officials.
“We
fixed [the responsibility] at the assistant-secretary level, which is
in our view the appropriate place to look, where the decision making in
fact takes place, where, if you like, the rubber hits the road," Pickering said when releasing the ARB report.
The
report found “systemic failures and leadership and management
deficiencies at senior levels within two bureaus of the State
Department,” namely the Diplomatic Security (DS) and Near East bureaus.
Deputy Secretary of State Bill Burns testified in December
that requests for more security in Libya, denied by the State
Department, did reach the assistant secretaries, and “it may be that
some of my colleagues on the seventh floor saw them as well."
But
Jones was not disciplined in any way following the release of the
report, nor was the principal deputy assistant secretary of State at
NEA, Liz Dibble, who is slated to receive a plush post as the deputy
chief of mission at the U.S. Embassy in London this summer. In the DS
bureau, the assistant secretary, the principal deputy, and the deputy
assistant all lost their jobs. In the NEA bureau, only Maxwell was asked
to leave.
Jones
and Dibble were responsible for security in Libya, Maxwell and three
State Department officials said. What’s more, when Maxwell was promoted
to his DAS position in August 2011, most responsibility for Libya was
carved out of his portfolio, which also included Algeria, Morocco, and
Tunisia. Although Maxwell did some work on Libya, all security-related
decisions were handled by Dibble and Jones, according to the three
officials.
One
State Department official close to the issue told The Daily Beast that
Clinton’s people told the leadership of the NEA bureau that Maxwell
would be given another job at State when the Benghazi scandal blew over.
Maxwell said Jones assured him he would eventually be brought back to
NEA as a “senior adviser,” but that Mills, Clinton’s chief of staff,
reneged.
“The
deal that NEA made with Cheryl Mills and the seventh floor was to keep
Ray within NEA and just give him another portfolio. For whatever reason,
it didn’t go down like that, and that was a complete shock to Beth
[Jones], because that was the deal that Beth made with Cheryl,” the
official said. “Behind Beth’s back, Maxwell ended up being put on
administrative leave.”
Jones
and Mills both declined to comment for this article, but a source close
to Mills denied that any kind of deal was made or reneged on regarding
Maxwell’s future employment. The decision to place Maxwell on
administrative leave was based on the classified portion of the ARB’s
report, which named Maxwell specifically, the source said, but since the
ARB didn’t say that Maxwell had committed a “breach of duty,” he
couldn’t be outright fired.
“Administrative
leave was the best option available within the very narrow authority
that anyone had. That was the harshest discipline the department could
mete out,” a State Department official involved in the decision making
process said. “There really weren’t any other options available. If they
could have been fired, they would have been.”
One
person who reviewed the classified portion of the ARB report told The
Daily Beast that it called out Maxwell for the specific infraction of
not reading his daily classified briefings, something that person said
Maxwell admitted to the ARB panel during his interview.
“The
crime that he is being punished for is not reading his intel. That
explains why Jones and Dibble were not disciplined,” this person said.
Maxwell
had no response to this allegation other than to say he has not been
officially counseled on what he did wrong and has not been allowed to
read the classified report. Also, he believes that Clinton’s staff, not
the ARB, was in charge of the review of the attack that took place
during her watch.
“The
flaws in the process were perpetrated by the political leadership at
State with the complicity of the senior career leadership,” he said.
“They should be called to account.”
“There are people who seem to have responsibility who have yet to be held accountable.”
Eight
months after the attack, congressional investigators and outside groups
are still pressing the State Department to explain how the ARB came to
the conclusion that four midlevel officials were the only ones with
responsibility for the failures that led up to the attack.
The
chairman of the House oversight committee, Rep. Darrell Issa (R-CA),
has announced that he will subpoena Pickering to compel him to submit to
a deposition. Rep. Jason Chaffetz (R-UT), the chairman of the
subcommittee on national security, told The Daily Beast in an interview
that he wants to know exactly why Maxwell and the three other officials
were placed on administrative leave and have not been granted due
process to defend themselves.
“I
certainly would like to hear their side of the story. It seems fair
that they should be given that opportunity. If they can’t get it within
the administration, I think Congress would love to hear their story,” he
said. “Secretary Clinton says she takes responsibility, but that seems
like lip service rather than the reality, because there are people who
seem to have responsibility who have yet to be held accountable, and I
don’t understand that.”
Chaffetz and Issa sent a letter
in January to State asking why Clinton, Deputy Secretary Tom Nides, and
Burns were not interviewed by the ARB. Undersecretary of State for
Management Patrick Kennedy admitted in October 10 congressional
testimony that he was in the loop on decisions regarding security
requests in Libya before the attack. He was interviewed by the ARB, but
not identified as having done anything wrong.
“The
ARB tried to blame everyone but hold no one responsible, except for
some of the lower level people who were not in control of the
situation,” said Chaffetz. “You have a report that seems incomplete at
best.”
Susan
Johnson, the president of the American Foreign Service Association
(AFSA), told The Daily Beast that administrative leave does damage to a
foreign-service officer’s reputation and career if it goes on for more
than a couple of weeks, much less several months. The treatment amounts
to a de facto disciplinary action, she said.
“There’s
a feeling that foreign-service officers often end up as scapegoats when
scandals rise to congressional or public attention,” she said. “Our
broader concern is to ensure some measure of fairness and transparency,
ensure some reasonable process that meets some kind of minimal standard
here.”
The
AFSA sent a letter to Burns in January asking a number of questions
about the review process and the criteria senior department leaders used
in choosing to discipline the four individuals removed from their jobs
in relation to the Benghazi attack.
“The
State Department began an administrative process to review the status
of the four individuals placed on administrative leave. That review
process continues, and Secretary Kerry will be briefed with an update,
and decisions will be made about the status of these employees,” Psaki
told the Beast. “This internal administrative process can take some
time.”
She
added: “It is also important to remember that the four people discussed
are all long-serving government officials who over the years have
provided dedicated service to the U.S. government in challenging
assignments.”
Maxwell just wants his day in court. He wrote a poem
on his personal blog in April which referred to the State Department’s
treatment of the four officials removed from their jobs after Benghazi
as a “lynching.”
Last week, he posted another poem about the growing Benghazi scandal.
“The
web of lies they weave gets tighter and tighter in its deceit until it
bottoms out -at a very low frequency – and implodes,” he wrote. “Yet all
the while, the more they talk, the more they lie, and the deeper down
the hole they go.”
