Relying on the 3rd Circuit, and ignoring what the district court later did or said, at some point there was clear language on whether prospective juror names could or could not be floating around.

The issue isn't what changed, but whether there was clear language. First there was a complete ban; then the restriction changed to only allowing counsel access. There's no provision for giving non-counsel access to these prospective lists.

There is a specific order effectively sealing the names of the prospective jurors from the counsel, not just the media. There was no list of prospective juror names "floating" around. The counsel had to sign for those names. The lists were court property. The names of the prospective jurors was not disclosed to counsel, by the court order.

Comparison of Key Distinguishing Language

This shows, even with changes, there was never any permissive access to non-counsel or the FBI. The changes opened to "only" counsel the names. The FBI would have to rely on something else, other than these two orders, to justify their access to a "derived" list.

Let's compare the two orders of interest. One is the absolute ban on the names; and the other is the change allowing access "only" to counsel.

A. Earlier Restriction: No names

Statement 1 3rd Circuit: "Paragraph 5 of Section B of the order stated: 'Pursuant to the decision of the Board of Judges of this District, counsel shall not have access to the names and addresses of the prospective jurors.' "

- Who is arguing that this means, "others, other than counsel could get access"?

- If it was the FBI or law enforcement, why not the NSA?

Whether this changed later is irrelevant. There is no ambiguity in the phrase, "shall not have access". Someone in the government has a hard time understanding what "shall not have access to the name" means.

B. Later Statement: "Only counsel"

This does not leave open any option for someone else to have access because only counsel was authorized to look at the lists:

Statement 2: 3rd Circuit: "The juror lists were available only to counsel who were required to execute a receipt for the list and to return it upon completion of jury selection"

- Who, in light of Statement 1, retained a copy of the lists which were restricted; and did not disclose they had access to and retained a list because they were "not subject" to the restrictions of statement 1?

- How was this data -- the names, before the court changed the order to only include counsel -- originally obtained by non-counsel?

The possibility is the NSA captured the information; and someone, in error, disclosed this NSA information to the FBI because they anticipated the seated juror names would be disclosed.

This is the right question, which the government can only answer with more convoluted non-sense:

How did the government "create" a list of "derived" juror names when counsel (originally) never had access to the names; and counsel later was not allowed to keep that list?

Unless there was an illegal copy of names, it is impossible to "derive" a list: Counsel had no "list of names" to create a derived list; nor establish a baseline list to compare their derivation after the seated jurors were announced. The names were never known to counsel. When the court read the jury names, counsel never knew, until then, what that name was. Out of 400 names, it wasn't a name they could later say, "I recall hearing that name during jury selection." That recollection process never occurred, and is impossible.

Someone illegally stored, transmitted, intercepted, retrieved, retained, accessed, or acquired information they were not lawfully entitled to ever access, much less use for jury tampering.

Someone had a large incentive to transfer information illegally from the judicial branch to the executive branch. This creates the crime-fraud nexus to breach the Executive privilege claim attached to the DOJ-White House liaison office's email and communication.

The claim of a "derivation" must be examined. We know someone, despite the court order, would have had to illegally recorded the names of the prospective jurors, transmit to the US Attorney and FBI, to support the home visits and the derivation of the seated jurors' names. Otherwise, the "derivation"-claim falls apart. Either they lied about how they "derived" the names; or they violated the court order on confidentiality in having a check sheet of names to "derive" the names of the seated jurors: A check sheet of names the counsel were not, according to the order, ever have access.

Forget how the FBI got the names for the moment. The court order said the lists had to be signed for. Who provided to the government the names of the prospective jurors so the government could "create" this list and "derive" from that list the names of the seated jurors?

The Timing Problem

Recall what we discussed in the problems with the derivation process: If they "derived" the names, then someone would have to plan to listen for (new) names; and then "later" record those names. Some might argue we need to look at (a) the timing of the change in language -- in who did or didn't get access to the names -- relative to (b) how long it would take to derive these names; and (c) when these planning actions would have to be complete; arguing, "This will highlight the problems with the government's story."

The analysis (a-b-c, above) is arguably a red herring. The planning -- to support the derivation -- would have to have occurred despite the supposed assumption the attorneys "after trial" would get access to the jury to talk to them. Again, this method of "deriving" the names from the prospective jurors implies, and would require the government know something in advance about what was a surprise: The hung jury. That is impossible.

The US government explanations of how they "derived" the names of the seated jurors relied on later information the government would not have known earlier when the planning would have had to take place to support that supposed subsequent "derivation." However, the government did not know, until after the planning window had closed that future events that would thwart their access to the jurors.

The government's explanation for what they were doing is not consistent with what the government would have reasonably known. This means they are lying to the court and public; and being deceitful about what happened, why, and who was involved.

The government lied about how they "derived" the names. It is a ruse to distract attention from the real method to acquire the names of the jurors.

D. Anonymous Jury

Judge Schwab entered an order on November 26, 2007, announcing the jury selection procedures he would follow. The order stated in the first paragraph that the “jury will be anonymous.” The Court directed the jury administrator to issue 400 summonses.

E. Final Selection

Final selection of the petit jury was tentatively scheduled to begin on January 23, 2008,

Wow testing/virginia, you spent all morning to come up with this bullshit. You are becoming more pathetic each day.

The attorneys, both the defense and the prosecution, were allowed to contact the jurors. contrary to your assertion, there was no restriction placed by the judge against contact. Their was no prohibition.

It is now interesting to see you finally admit the FBI were acting as agents for the prosecution. This known practice is something you have railed against for months now. Glad to see you finally are accepting reality.

All in all, you once again have proven that you do not understand this case and have not reviewed the court record. Instead, you are paraphrasing and misinterpretting third party coverage of the case.

Simply put, educate yourself on the case prior to speaking any further for you come across as a fringe wack job or a known idiot.

There's also another line of evidence showing the US attorney and other prosecutors have a problem. The court explicitly said the responses to the jury questionnaire should be stripped of identifying information:

"Jury Administrator Morder is instructed to remove and retain the last page of the Jury Questionnaire setting forth the prospective jurors’ names and current addresses."

Either the Morder did not, as instructed, remove and retain the last page; or the US prosecutors derived the names using another method, outside what the 3d Circuit accepted was possible.

Without the names, there would be no way for the FBI to derive their former or current addresses. Yet, the FBI agents independently obtained their phone numbers after using their non-disclosed names; and non-disclosed home addresses. The only way to ensure they had the right juror when they called, before the home visit was to also have their address.

The issue isn't just their name, but how the FBI gained access to their current address, which was the Morder was told to not provide with the questionnaire.

This is a much more serious problem than simply someone leaving a list of names on the ground. There were other deliberate breaches of independent records under the court control. There have been multiple breaches of various security protocols in place, not just with (a) the court order; but also with (b) the certification lists the attorneys signed; and also (c) the questionnaire which included the the addresses used to independently obtain the juror' phone numbers.

Here's another date showing when the government was supposed to have complied with the order, and knew, or should have known that the order would not have permitted them to include in any DoJ-WH emails any of the juror's names.

This date is important because it will show us whether -- before, during or after this date -- the counsel was using the name in the emails; or whether there is no record of the jury members' names, addresses, and phone numbers:

"Paragraph 6 of Section B of the order scheduled a hearing for September 19, 2006, to permit counsel to review the completed jury questionnaires, albeit without the names and addresses of the jurors, and to confer among themselves as to prospective jurors that they did not believe should be part of the venire. Jury selection was scheduled for October 11, 2006."

The problem the government has is at least one counsel has admitted to providing "direction" to the FBI to conduct these "interviews," meaning that direction should have been connected with some communication about who they were contacting.

Plan For Classified Email Review

Your next step is to find the method Buchanan supposedly used to "direct" the FBI to interview; and find out if that email does or doesn't contain the names of the jury members. If it doesn't, then Buchanan has a bigger problem: explaining how the FBI has a list of names she swore to keep secret and not release. The answer: She or someone else provided the FBI with those names through another method, perhaps through the classified intelligence email system, SIPR Net, or Intel Link.

This means you need to ensure the staff personnel assigned to review this email have the highest classification required to review Presidential records; and you must now ensure the investigators are cleared to review what could be part of the SIOP classified communications system within the Department of Defense, and coordinated with JTTF. If they wanted to bury these communications as part of the information warfare, there's a chance they could have buried the emails within a special black program communication system which doesn't officially exist; or they may have done something through a classified system involving very sensitive weapon systems to complicate the email discovery. It may not have been, but plan for that now.

It's possible the same types of communication systems used to plan rendition were also used to plan and coordinate the DOJ support of the information transfer of juror names, addresses, and phone numbers. That is not a bonafide state secret.

Here is additional information which binds the interests of the media with the issues of juror information. Note closely the order attempts to hide the juror names, and block access to the juror home addresses. Inexplicably, the FBI agents would have access to this still-protected information, as of late January 2008.

Whether the court changed this later isn't the issue. The point is the FBI and US attorney, until the end of December 2007, though this was going to be in place. The key will be to check the emails before the changes to this order, and look at what the US Attorney, FBI, and others were planning to do, despite the names still being sealed.

Under the "derivation theory," the FBI and US attorney would have been assuming things well up until the final changes. The question is whether their emails reflected the real changes to what they knew the court was saying; or whether they were acting under a different set of assumptions because they prospectively were planning to do something the court didn't intend.

This is what they were led to believe would be the key decision date, Jan 23, 2008:

3d Circuit: "Judge Schwab explained that 'the final jury selection process will commence on January 23, 2008, and copies of the completed Jury Questionnaires of the pool of 40 prospective jurors will be returned only to the counsel, parties, and the Court (with a copy of the last page of the Jury Questionnaire identifying the names and addresses in order by juror number).' Dec. 21 Order at 44."

The issue isn't just the order date, but what information the counsel were really given.

Here, we see the media was going to be given different information than that provided to the government:

3d Circuit: "During this final stage of the process, the District Judge noted that he would ask ten voir dire questions of each prospective juror. Dec. 21 Order at 40–41 (listing the questions). "

3d Circuit: "The order specified that the Media-Intervenors would, at the conclusion of the trial, be given access to review the jury questionnaire, excluding the last page which contained the juror’s name and address. Dec. 21 Order at 34–35."

"No indication" is a legal conclusion of the appeals court:

3d Circuit: "The order contains no indication that the Media-Intervenors would be given access to the names or addresses of the prospective and trial jurors at any time before or after Wecht’s trial.

You can take that off the list of possible sources, unless you believe the media had access to better information than the NSA or FBI.

The DoJ emails would then show a different tone after the 3d Circuit vacated the district court orders:

Order, United States v. Wecht, No. 07-4767 (3d Cir. Jan. 9, 2008)

This means until Jan 9, 2008, the names of the jurors were still under the previous protections. After Jan 9, 2008, things would change. Or they were supposed to.

The question is whether the government, despite the "changes after" Jan 9, 2008, had already privately shared the information they publicly wanted to shield.

testing -
I pray someone from Conyers staff is keeping tabs on these postings ,
and then "cc ing" Waxman & Leahey's folks..

This comment suggests the likely larger motiviations the government had in the Wecht prosecution and the subsequent jury tampering.

In re the 3d Circuit opinion, the question turns on whether the government hoped to exploit the court-juror desire for anonymity, to confront the jurors at their home. Arguably, this is what the President and others assumed:

3d Circuilt: "It would be more difficult to inquire into such matters, and those suspicions would seem in any event more real to the public, if names and addresses were kept secret."

The President, because the court agreed to keep the jury names confidential, appears to have corruptly exploited that anonymity, and recklessly organized others to abuse the jurors implicit expectation: The right to privacy and no media contact or publicity.

How often has the President and others, believing someone does not desire media attention:

A. Prosecution

Pre-emptively prosecuted others with the hopes of suppressing evidence at a war crimes trial; or

B. Witness Tampering

Dissuade witnesses from providing evidence at trial about Presidential corruption or war crimes; or

C. Information Warfare, Intimidation

Gather, in secret, information from those who appear to be shy in going to the media with their concerns about this domestic intelligence gathering?

All of the above apply to Dr. Wecht and his analysis of the autopsy reports at POW abuse at Abu Ghraib; and the implicit connection with the President with those war crimes.

Rewrite the 3d Circuit language as it relates to (1) the President's view of the law (FISA/Geneva), (2) lobbyists or military analysts, or (3) the Cheney Energy Commission:

Original: "Juror bias or confusion might be uncovered, and jurors’ understanding and response to judicial proceedings could be investigated. Public knowledge of juror identities could also deter intentional misrepresentation at voir dire."

Changed: "Presidential bias or confusion might be uncovered, and lawyer's understanding and response to public proceedings could be investigated. Public knowledge of lobbyists or DoD military analysts identities could also deter intentional misrepresentation in the media before an invasion."

The red herring is the "problem" with the jury secrecy. The truth is the President's red herring and wider needed Congressional investigations of that expansive abuse of power, not just at jury members, but the American public and world community.

In the case of Wecht, the government publicly held one position, but privately was doing something else, as was done with the NSA-FISA violations.

The government "agreed" with the court, but was privately planning to circumvent the court order. The President's position in re FISA court was clear: Publicly they "respected" the court; privately, they actively thwarted it, making the "deference" to the district court only lip service:

3d Circuit: "But we are satisfied that district judges are well-positioned to address these risks on a case-by-case basis, and in such cases, to make particularized findings on the record “establishing the existence of a compelling government interest” and “demonstrating that absent limited restrictions on the right of access, that other interest would be substantially impaired.” Antar, 38 F.3d at 1359 (citing Press-Enterprise II, 478 U.S. at 15)."

The problem is the government got caught with something it wasn't supposed to have -- the names and addresses of the jurors in the FBI hands -- and it had to fabricate a story to (attempt to) get out of that lie.

Given the President's abuse of power, the 3d Circuit got this backwards:

3d Circuit: "The value of any right of access, then, can only be diminished after trial has begun, and diminished even further once a verdict has been rendered by a corrupt or biased jury.

Restated [text substantially changed ]:

Should say: "The value of any right of [jury protection], then, can only be [increased] after trial has begun, and [ grows ] even further once [a non-] verdict has been rendered [against a witness to] a corrupt or biased [President]."

The issue isn't whether the public interest is served with jury disclosure; but whether Presidential crimes are more likely to be investigated, prosecuted, or impeached if the FBI believes it can target a jury pool reviewing an adversarial witness to the President, and (the President believes) doesn't want to be identified.

The error is to focus on the media risks to the jury; and ignore the real government risks of exploiting what it appears to be a vulnerable jury pool. FBI agents are running around with lists of names of jurors, their home addresses, and the US Attorney is lying about things, but the 3d circuit says:

3d Circuit: "The District Court has not established that there is anything unusual about this case, aside from a locally prominent defendant, that makes the prospective jurors’ hypothetical privacy concerns more compelling than usual."

Of course the District Court hasn't established anything "unusual" about the Wecht case: The case being tried is different than the real factors affecting the jury: Government abuse of power against the jury members, a different party and separate cause of action, unrelated to the media-intervenors.

The district court cannot possibly "determine" anything about the US government when the US Attorney's office and FBI agents are lying about what they are doing.

The district court narrowly looked at the prospective impact of media coverage; but did not review the broader government abuses after trial. It was beyond "their imagination" that the FBI would engage in jury tampering:

3d circuit [Text added] "[The media coverage] increase the risk of intimidation of those jurors. [Don't talk about the FBI home visits. Far too scary. No one would imagine that.]"

Misrepresentation of Comment

Here's a reminder of what these comments were about:

"This comment focuses on the changing standard of whether the FBI agents are or are not part of the prosecution "team".

The government has a different position on whether the FBI agents are or are not "their" agents. This is a misrepresentation:

Gross Distortion of record: "It is now interesting to see you finally admit the FBI were acting as agents for the prosecution"

There has been no "admission" of anything; merely a discussion of the two different government positions on the attorney-FBI relationship; and the implications of that shifting argument. The issue is the government's shifting position.

Consider the original comments which expressly do not comment on the issue:

Original: "This comment does not focus on or specifically address whether the President directed the US Attorney and FBI agents to do anything; or whether the US Attorney really has any authority over the FBI."

The Emails, Agreements, and Government Compliance Sent Under Original Orders

Email Issue: Does the government's email content logically relate to the original court orders and restrictions; or is the government doing things, as documented in the emails, which the original court orders did not permit?

We previously commented on the court assumptions, and orders. The intent is to show that once those orders were issued -- regardless whether they were later changed or not -- those established key dates which should relate to how the US Attorney, FBI, and others were discussing issues; and the content of those emails should reasonably track to the existing orders. The question is whether, before later changes, the government was acting under a different set of assumptions than the court intended.

Original Assumption: "Relying on the 3rd Circuit, and ignoring what the district court later did or said, at some point there was clear language on whether prospective juror names could or could not be floating around.

Original: "The issue isn't what changed, but whether there was clear language. First there was a complete ban; then the restriction changed to only allowing counsel access. There's no provision for giving non-counsel access to these prospective lists.

Original: "There is a specific order effectively sealing the names of the prospective jurors from the counsel, not just the media. There was no list of prospective juror names "floating" around.

This comment fails to address the issue of what emails were sent before the final orders:

Misdirection, failure to cite: "The jury was not selecting prior to the district judge's attempted anonymous jury request being denied."

Even if this is a problem, the response fails to cite the language related to this comment. Something might be true, but it needs to be relevant not to the general issue, but to the specific comment: Whether the government's email content is or isn's consistent with the issued orders. The above comment is not helpful and irrelevant because fails to discuss, among other things:

(a) why this is relevant to the government emails;

(b) why this exclusion relates to the topic; or

(c) why the exclusion is different than what the topic originally said -- there were issues outside the original court orders.

As stated in the original comments, the issue isn't the events; but the emails exchanged between the government before the final orders. Those emails should be linked with what was known, not with what might have happened.

Misdirection from the government emails: "Your entire comment train here ignores the ruling of the appeals court, the district judge's revised order, and the jury selection process"

This was the order, which the government must show it complied with until it receive new information:

"The order further provided that “any and all juror lists generated by this Court for use in the jury selection process shall be deemed confidential and property of the Court and shall not be removed from the Court at any time.” . . . The juror lists were available only to counsel who were required to execute a receipt for the list and to return it upon completion of jury selection."

This shows the lists were well controlled, or should have been:
- Hand receipts were required;
- The lists had to be returned;
- Government not authorized to retain private lists.

The question is whether, before the final orders, the US government failed to comply with these requirements and retained private lists. Whether these requirements were later changed isn't the point, as discussed. Whether the key dates do or do not include things isn't the issue. The question is what are the key dates for the "derivation" model:

Misdirection, unrelated to the comments on government emails sent (as disclosed): "This ignores the decision of the appeals court that struck down the district judge's attempt to seat an anonymous jury."

Rather than provide a specific comment or suggestion on what other information to add to the derivation model, the comment merely restates what we originally stated -- that there were things that later happened. But that misses the point of the comment: To outline what emails, before the later orders, were sent; and whether the government was or wasn't complying with those original orders.

The comment hasn't adequately made the case that the exclusion of the data is important; or that the exclusion adequately detracts from the purpose of the comment: Exploring the emails sent before the changes. If the original emails reflect only the "final" changes, then there is a problem: They should reflect the orders, not what the government might have anticipated would happen.

To emphasize, teh following comment doesn't show relevant to the government emails; and fails to address the original rules -- which the government was supposed to follow until changed:

This is an assertion, which the government has not adequately demosntrated:

Misdirection "Interesting how you ignore both the fact that the prosecution and its investigative team legally had a the names, that they contacted the jurors only after they were dismissed from the trial, and that the contacts, while they were in poor taste, appear to be legal."

- How do we know the prosecution, after returning the lists as required by the court, still had an "authorized copy"?

Whether the prosecutors, through the FBI did or didn't contact the jurors "only" after trial isn't a debatable point. The question is whether the US Attorney alone directed the FBI; or whether the FBI agents were acting on other authority. That was expressly stated as beyond the scope of this comment.

Whether the contacts were or weren't in bad taste does not address the US Attorney's office inconsistent statements. If the conduct was "legal" there should be no reason to hide, mislead, or provide misdirection to the public. This suggests there was an improper purpose; and the scope of the activity could have been reason. It's not appropriate to characterize the conduct as proper or legal when the government provided an inconsistent story.

The question is whether the original emails sent, per the original orders, were or were not meeting the intent of the court's original orders; or whether the government made copies in advance of the change of orders, and illegally violated the court orders before the changes.

At best the comment would ask that earlier government misconduct should be ignored because the later changes. That suffers from the same problem as the FISA-Geneva issues: requests for retroactive immunity/non enforcement because the government hoped the legal standard would later change.

Whether the responses are or are not accurate isn't the issue. The question is whether the responses adequately address the government emails which should be consistent with the original orders placing restrictions on the jury lists. The responses fail to adequately discuss the emails, focusing on issues expressly outside the scope of this comment.

The responses fail to demonstrate an understanding of the original comments, or the original government emails which may not necessarily be consistent with the original orders.

This misses the point with the prospective jurors and the emails sent per those original orders:

Irrelevant: "The jury was not selecting prior to the district judge's attempted anonymous jury request being denied."

Whether the rules, orders were or werent' changed later is unrelated to what the rules were related to the list of prospective jurors.

There were rules about the handling of the prospective jurors' names, unrelated to whether there was or wasn't a final list of seated jurors. Here, as stated in the original comments, whether these rules were or weren't later changed isn't the issue. The issue is the emails sent relative to the assumptions about the handling of the prospective jurors.