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In this daily series, Newsweek explores the steps that led to the January 6 Capitol Riot.

On December 30, just a week before January 6, the FBI, along with the Department of Homeland Security and the National Counterterrorism Center, issued an intelligence report"Intelligence in Depth"titled "Diverse DVE Landscape Probably Will Persist." DVE refers to domestic violent extremists.

The report, shared exclusively with Newsweek, did not mention the election or Donald Trump. No mention was made of the impact of COVID. No mention was made of the two post-election protests that had already taken place in Washington DC, on November 24 and December 12, or any upcoming threats. In fact, there was no focus on the nation's capital at all.

The report covered all bases but focused on none. It's a mishmash of contorted acronyms, codes to neutrally describe what the intelligence agencies saw as the threats on the American battlefield, but careful not to explicitly label any one group. White supremacists were referred to as Racially Motivated Violent Extremists (RMVE). There were also Anti-Government or Anti-Authority Violent Extremists (AGAAVEs), Anarchist Violent Extremists (AVEs), Militia Violent Extremists (MVEs), and Sovereign Citizen Violent Extremists (SCVEs). There were others mentioned, some with and without acronyms: Abortion-Related Violent Extremists, Animal Rights/Environmental Violent Extremists and Puerto Rican National Violent Extremists.

The common linking characteristic in all of this was the term "extremist." Yet the December 30 report offered no explicit definition of what precisely was an extremist. Domestic Violent Extremists were described as "individual[s] based and operating primarily within the United States or its territories without direction or inspiration from a foreign terrorist group or other foreign power who seeks to further political or social goals wholly or in part through unlawful acts of force or violence."

A government definition of extremism is hard to come by. The definitive Department of Justice bible on the subject, "Investigating Terrorism and Criminal Extremism: Terms and Concepts," nevernot in 120 pagesdefines what extremism means. Nor does the new Department of Defense "Report on Countering Extremist Activity Within the Department of Defense," issued just this month. It merely says that members of the armed forces are restricted from participating in "extremist activities" that include "unlawful force, unlawful violence, or other illegal means to deprive individuals of their rights under the United States Constitution or the laws of the United States." The Pentagon says that this includes supporting "the overthrow of the government" and "goals that are political, religious, discriminatory, or ideological in nature." That's a fairly broad spectrum.

Few people would dispute that those who seek to further their political goals "through unlawful acts of force or violence" should be the subject of federal law enforcement attention, but without a definition of extremism, and with such a broad category of wildly different individuals and groups that fall under the domestic violent extremist umbrella, it is no wonder that the FBI had such a hard time paying attention to the many Americans who were openly threatening violence before January 6.

A senior retired FBI executive, who spoke to Newsweek on condition that his name not be used because he fears retaliation by the very extremists he is talking about, says that he sees two major constraints on the Bureau's domestic terrorism efforts. First, he says, there is too much emphasis on organized groups and searching for conspiraciesa legacy of the organized crime and then al Qaeda emphasis focusing on thwarting and dismantling groups.

Second, he says, the federal government has tied itself into a bind over the proper protocol of even following or monitoring free speech while looking for possible threats. The December 30 report, for example, was careful to note that not all extremists were prone to violence, stating that "First Amendment"-protected protest was not per se a predicate for either federal attention or further FBI investigation.

"I understand that people might be skeptical that the FBI actually safeguards civil liberties, but in today's Bureau, it's more true than false," the FBI executive says. "Yes, there have been many historical examples of overreach, [but] this level of care is equally applied to right and left."

The FBI stated in its 2021 domestic terrorism report to Congress: "Under FBI policy and federal law, no investigative activity may be based solely on First Amendment activity, or the apparent or actual race, ethnicity, national origin, religion, gender, sexual orientation, or gender identity of the individual or group. The FBI does not investigate, collect, or maintain information on US persons solely for the purpose of monitoring activities protected by the First Amendment."

The executive says that post-January 6, with domestic terrorism a national issue and more emphasis on stopping attacks, previous constraints might loosen. But he still thinks that focusing on groupsProud Boys, Oath Keepers, etc.and imagining these groups are more powerful than they are, obscures the individuals and their actions that need to be detected and stopped.

Even after January 6, FBI Director Christopher Wray described the same vague threat picture as did the December 30 report in testifying before the Senate Homeland Security and Governmental Affairs Committees. Despite all that had happened, he still saw homegrown violent extremists (HMVEs)that is, "individuals radicalized here at home by jihadist ideologies espoused by foreign terrorist organizations like ISIS and al Qaeda"as the Bureau's number-one priority.

HMVEs are not to be confused with DVEs, yet they are mixed together in a way that suggests the two are equivalent. HMVEs (foreign influenced) and DVEs (non-foreign influenced), FBI Director Wray said, have a commonality in that the biggest actual threat is from so-called "lone" wolves.

According to Wray, the Bureau is "countering lone domestic violent extremists radicalized by personalized grievances ranging from racial and ethnic bias to anti-government, anti-authority sentiment to conspiracy theories."

Wray previously told the House Oversight and Reform Committee that, "over the last year, we observed activity that led us to assess there was potential for increased violent extremist activity at lawful protests taking place in communities across the United States."

The FBI says that in response to these threats, it authored 12 formal intelligence reports in 2020 relating to potential domestic terrorism. In 2019, the FBI produced 15 domestic terrorism related reports. (Each year, the FBI produces about 1,000 domestic terrorism related intelligence products.) In late August 2020, Wray says, the FBI published an analytical report "informing our partners that DVEs with partisan political grievances likely posed an increased threat related to the 2020 election.

"In that product, we noted that DVE responses to the election outcome might not occur until after the election and could be based on potential or anticipated policy changes," Wray said. In December 2020, he says, the FBI also contributed to a Department of Homeland Security Intelligence In-Depth product, which stated that the diverse DVE landscape "would probably persist due to enduring grievances."

That would be obvious to any observer. The FBI, in its formal intelligence reporting, seems to have missed the signs completely.

"The FBI and our federal, state, and local partners collected and shared intelligence and relevant public safety-related information in preparation for the various planned events" on January 6, Wray claims. But there is no evidence that any of that sharing had any impact, according to the testimony of numerous U.S. Capitol Police and Metropolitan Police Department officials.

Just this past September, Wray told Congress how much "the threat" had changed 20 years after the attacks on the Pentagon and the World Trade Center. "It was 9/11, after all," he said, "that turned the FBI into an agency focused on disrupting threats."

But when a national threat and a catastrophic event loomed in late 2020, FBI bureaucrats not only didn't disrupt it, they didn't even see it coming.

Continue reading here:
Exclusive: Secret Threat Report Named Everyone Except Angry Donald Trump Voters - Newsweek

Voter suppression fears are justified

The writer of a Dec. 28 letter on votingmade amisstatement in suggestingthat President Joe Biden is not telling the truth about voter suppression. The facts argue otherwise.

Various nonpartisan entities have fact-checked former President Donald Trumps "Big Lie" about so-called voter fraud. An investigation by The Associated Press revealed that outof 25.5 million votes in the sixbattleground states during the 2020election, the total of votes that could legitimately calledfraudulent amounted to just475 and some of those were cast for Trump!

That's whyit is universally recognized that even if all of these apparently fraudulent voteswere cast for Biden, it would not have made a scintilla of difference in the presidential election. And well before Trump was a candidate, states that have been using millions of mail-in ballots have been doing sofor many years without any significant fraud.

The issue was only raised byTrumpers after their candidates legitimate loss. Soto suddenly propose ID laws on the false claim of voter fraud isdisingenuous at least, and cynically wicked at worst.

More: Herald-Tribune: How to send a letter to the editor

Biden is indeedtelling the truth: the right-wing radicals whoare trying to suppress the vote areattempting to bring back Jim Crow voting restrictions. If they succeed, we will loseour democracy and we will slip into autocracy.

Stephen Japhe, University Park

Homeowner surprised by rude behavior

After last weeks wind eventI hauled two barrels of yard waste, mostly palm fronds, to my front yard for Tuesday pickup. But instead of loading the materials, the truck driver justdumped themon the ground.

When I confronted him, the truck drivertold me that the yard waste was too heavy and was not packed correctly. I am 75 years old, and I carried the same barrels at least 200 feet to the curb.

I suggested to the truck driver thatif he couldnt deal with something that someone at least twice his age could handlewith ease, then maybe he should join a gym or get a desk job. His response was, I dont give (an expletive).

I would expectthe Venice public works department todemand a bit more courtesy and professionalism from an employee who, in my opinion, has a pretty good gigespecially in comparisonto what manyother peopleare experiencing during these difficult times.

I imagine that there may be a lot of folks out there who would love to have hisjob.

Reg Grover, Venice

Challenging times for our democracy

In 1787Benjamin Franklin foresaw the possibility that the new democracy being formed could fail.A founding father of our Constitution, Franklin was asked if the new government was a republic or a monarchy. He replied, A republic, if you can keep it.

These ominous words are relevant today. The visionary leader believed that inherent in the ambitious goal of self-government deemed an experiment at the time wouldbe the rise of troubling issues that wouldthreaten its viability.

Were facing such a challenge right now. Theres disruptive disagreement among our Republican and Democratic leaders regarding the policies and legislation needed for our country to advance.The deadlock they havecreated not only stymies the enactment of fresh legislation it also perpetuates the dissension.

The question at hand is what measures these lawmakers can introduce to resolve this turmoil to form a more perfect Union, the centuries-long goal and history of our democracy.

JohnMarcus, Sarasota

Expose hate speech - don't silence it

The guest columnists from Support Our Schools stated that children are entitled to a modern education in a safe and inclusive environment. Although I find the Proud Boys organization reprehensible and I deplore their use of violenceI dont believe the answer is exclude them from public debate.

Even hate speech is protected by the First Amendment. In the 2017 Supreme Court case Matal v. Tam, for example, Justice Samuel Alito quotedJustice Oliver Wendell Holmes Jr.'s dissent fromUnited Statesv. Schwimmer in 1929:. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability or any other similar ground is hateful, but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate.

Justice Holmes statement has become a central principleof First Amendment thought.

Inclusivity requires that our children be exposed to all points of view, even the ones we detest, so that they may learn to evaluate critically and decide which positions are the most consistent with their values and so they may learn to reject speech which is hate-filled.

Hate speech will always be with us. But we can oppose and expose it not with silence, but with education and action. Show our children the harmful effects of hate speech. Support candidates whose positions more closely align with your own. Run for office.

Above all use your vote to send the message of inclusivity and brotherhood.

Leslie Curley, Venice

Go here to see the original:
Thursday's letters: Voter suppression, a rude city worker, the fate of democracy and more - Sarasota Herald-Tribune

Do you know what prior restraint is? Have you taken even a glancing look at the First Amendment or its associated precedent? If the answer to either or both of these questions is yes, then youve got what it takes to win Americas favorite game show: Are You Smarter Than A NY State Trial Judge?

In an opinion released over the holiday, New York Supreme Court Justice Charles D. Wood uncorked a laugher of an opinion imposing prior restraint on the New York Times. If that confuses you, its because youve spent more time researching basic law than Justice Wood has.

Or, as Professor Schleich points out:

At issue are memos the Times acquired documenting privileged conversations between conservative group Project Veritas a sort of right-wing Candid Camera with similar journalistic standards and its attorney Benjamin Barr. These memos appear to show the group consulting with Barr over reporting practices in an effort to steer clear of legal trouble.

Note, and this is important, this case has nothing to do with the subject of these memos. These memos are wholly independent of the existing case between Project Veritas and the Times that should one would think define the outer confines of Justice Woods jurisdiction here. But thats not how this is going to play out.

This latest chapter between these parties began on November 11, 2021, at 1:07 P.M. when the Times emailed Project Veritas founder James OKeefe and Project Veritas outside counsel Benjamin Barr, stating, We are planning to publish a story based on legal memos that Mr. Barr provided to Project Veritas. The memos provide legal advice about how different PV operations could violate various laws, including the Espionage Act and Section 1001. The memos give guidance about how PV can remain in Mr. Barrs view, on the right side of these laws.

Speaking of laws like the Espionage Act, assuming the New York Times didnt hack into Project Veritas hard drives to steal these memos then what exactly is the legal basis for this objection at all? This is where youd summarily toss the motion on a 2L exam, but instead Justice Wood cited a lengthy passage from an almost 30-year-old Southern District of Florida opinion:

[W]hat if a confidential memorandum is stolen from an attorneys office and subsequently published in newspapers across the country? Clearly, the client should not be held to have waived the attorney-client privilege. The fact that the contents of a privileged document have become widely known is insufficient by itself to eliminate the privilege that covers the document. Although in practical terms the document has lost any semblance of confidentiality, the Court in legal terms must recognize that the client has not intentionally waived the privilege. To hold that public circulation eliminates the privilege would, in effect, give any individual who secured a privileged document the power to waive the attorney-client privilege by simply having the contents widely recounted in newspaper reports (see Smith v Armour Pharm. Co.. 838 F. Supp. 1573, 1577 [S.D. Fla. 1993]).

Yeah no one is suggesting that a stolen memo can be admitted in a related trial, which is the only relevant takeaway from this opinion. The federal judge here is saying that privilege is not defeated just because a newspaper published the contents of the privilege, implicitly recognizing that newspapers can publish privileged materials.

And this passage is only marginally relevant if the material is stolen because, depending on how the memos got out, its not even clear that theyd even retain privilege. But assuming arguendo that these were stolen, the client could sue someone for stealing the document ironically, these memos might provide some insight on that score! but what they cant do is bar the newspaper from publishing the document.

Bucking the weight of hundreds of years of American jurisprudence, Justice Wood went full Bozo, disingenuously dispensing with precedent to contend that this would fall into an exception to the standard ban on prior restraint because this simply isnt information of public interest.

In other words, he wrote with a straight face that an organization purporting to report news regularly asking its lawyer if its implicating itself in crimes isnt a matter of public concern. This sets up the curious regime where national security secrets cannot be the subject of a prior restraint, but probing into whether the news lied about a national security issue could be.

In light of these principles of law, the court rejects the Times position that Project Veritas attorney-client communications are a matter of public concern. Undoubtedly, every media outlet believes that anything that it publishes is a matter of public concern. The state of our nation is that roughly half the nation prioritizes interests that are vastly different than the other half. Our smart phones beep and buzz all day long with news flashes that supposedly reflect our browsing and clicking interests, and we can tune in or read the news outlet that gives us the stories and topics that we want to see. But some things are not fodder for public consideration and consumption. These memoranda, and hundreds of thousands of similar attorney-client privileged documents that are in homes, offices, and businesses in every village, town, and city in this nation are only between an attorney and a client, and it does not matter one bit who the attorney and client are.

Crackerjack legal analysis. Its honestly difficult to write a 28-page opinion without accidentally citing caselaw for key conclusions, but Wood managed to do it by citing iPhones and the Tweeterbook have rendered the Pentagon Papers dead letter from the seminal In re: Old Man Yelling At Clouds.

This analysis is sophomoric. Hes taking distinct legal questions and throwing them into a blender. The attorney-client privilege does not turn on the identity of the client. Public concern does. A document can both be privileged and a matter of public concern because the two concepts have nothing to do with each other.

Yet he does this over and over throughout the opinion. Consider this mind-boggling passage:

The court has also considered the Times contention that this court has no power to address the Times publication of these memoranda, since they were obtained outside the discovery process.

Great point! This is lawsuit between the parties is wholly unrelated to theses memos. Unless, of course, theres some sort of dispute over whether or not the documents were produced as part of discovery in this matter.

There is no dispute by Project Veritas that the memoranda were obtained by the Times outside of any discovery related to this action.

Were the contemporaneously produced?

Although the memoranda were written almost four years before the Times published them on November 1l, 2021

Oh?

similar themes and allegations by the Times against Project Veritas permeate the memoranda and the pleadings in this case.

Good heavens.

So, the argument is that once someone goes after a newspaper that publication is perma-banned from ever reporting on that vexatious plaintiff again? Because the themes are always going to be the same because Project Veritas does the same schtick over and over. And that schtick is quasi-journalism that pushes the boundaries to the extent that it legitimately worries about legal repercussions.

Which is the glaring irony of this whole affair. The organization that the DOJ is investigating for its role in stealing the diary of the presidents granddaughter objects to the New York Times printing privileged memos. But just like how, in that instance, there was no basis for restraining Project Veritas from publishing stories about that diary, theres zilch justification for barring the Times from publishing these memos.

If theres criminal activity involved in getting the material that can get sorted out later, but as Walter Sobchak would point out, the Supreme Court has roundly rejected prior restraint. Or at least the U.S. Supreme Court has, because New Yorks trial level version has some remedial learning ahead of it.

Joe Patriceis a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free toemail any tips, questions, or comments. Follow him onTwitterif youre interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Read more from the original source:
State Judge Rewrites First Amendment With 'But I Don't Like The NY Times' Exception - Above the Law

I found a strong correlation between the Dec. 16 lead editorial (Our View: More Maine venues should require vaccine proof) and Christian Cotzs commentary on First Amendment rights.

The First Amendment gave us the freedom of speech, but it did not give us the right to lie. You are not allowed to shout fire in a movie theater when there is no fire, you are not allowed to lie in a contract and you are not allowed to answer a question in court untruthfully.

Then-President Donald Trump lied when he called COVID far less lethal than influenza, and the damage hes done to our country with this lie is unforgivable. He and his radical Republicans further seek to divide the country by maintaining the myth that vaccine mandates are unconstitutional. We are at war with COVID, and the success of our fight against the disease and restoring our economy requires that every American step up, be brave and take the vaccine.

Meanwhile, hospital ICUs are overrun with unvaccinated patients and Gov. Mills vaccine mandates are met with angry constitutional claims. Rather than endlessly debate whether an Americans right to be free includes the right to overrun hospitals with unvaccinated patients, another carrot and stick can be used to prod people to do their civic duty.

Since the hospitals and insurance companies ultimately are paying those ICU bills for unvaccinated patients, give vaccinated people a big discount in their insurance for a year. After six months, raise the rates on those who still refuse to get the vaccine.

Richard HackelChebeague Island

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Letter to the editor: First Amendment doesn't protect lies about COVID - pressherald.com

(Red Oak) -- Resident's hopes of making Montgomery County a second amendment sanctuary will have to wait.

Meeting in regular session Tuesday morning, the Montgomery County Board of Supervisors discussed the potential of making Montgomery County a second amendment sanctuary. The discussion comes after county resident Jerald Palmquist introduced a resolution passed by Page County in October to declare their county a second amendment sanctuary. The board heard from those in favor and against the idea during the public comment period, including resident Glenn Mason, who says he's against the idea of any "sanctuary."

"My thing has nothing to do with the second amendment, mine is only that I do not think that local (governments) should pick and choose which laws they're going to obey, and which ones they're not going to obey," Mason said. "You know if you don't like a law and say it infringes your rights, take it to court."

However, resident Michael Luna says he feels the second amendment can protect the others under attack, including the first amendment.

"It's not of matter of if, it's a matter of when because of what they're doing to the first amendment, they're going to do it to the second amendment, they're going to come for your guns," Luna said. "I'm not necessarily a gun nut, but I believe in the right to keep and bear arms. It's up to the local and state governments to stand up to government overreach by the federal government. It has to start here, it has to start in this room, and start in this town."

Currently, at least 28 other counties in Iowa have signed on to the ordinance, including Page, Mills, Adams, Taylor, Ringgold, and Union counties in KMAland.

Montgomery County Attorney Drew Swanson also advised the board that, as of right now, the sanctuary resolution appears to carry little weight if challenged.

"It hasn't been challenged at the federal level at all yet from what I can see, so there's really no precedent to go by," Swanson said. "However, what I have found is that the legal community is likely seeing this as not really enforceable if push should come to shove. So you can do it, but it's questionable how much weight it would carry if it were challenged at some level."

Montgomery County Sheriff Jon Spunaugle and several board members felt more research was needed to determine whether the resolution was even necessary.

Thus, the Board of Supervisors took no formal action on the topic Tuesday and will bring the discussion of making the county a second amendment sanctuary back to their agenda on their January 11th meeting at 8:30 a.m.

At KMA, we attempt to be accurate in our reporting. If you see a typo or mistake in a story, please contact us by emailing kmaradio@kmaland.com.

The rest is here:
Montgomery County holds off on 'second amendment sanctuary' resolution - KMAland