Editorial: Rip the veil of secrecy from the Bundy case

Bunkerville standoff (Reuters pix)

Justice must not only be done, but it must be seen to be done.

The wheels of justice continue to grind in the federal criminal case against Cliven Bundy, four of his sons and a dozen co-defendants over the April 2014 armed standoff with federal agents trying to confiscate Bundy’s cattle at his Bunkerville ranch. All of the defendants have been jailed for more than a year.

The standoff occurred after armed Bureau of Land Management agents attempted to roundup Bundy’s cattle after he had refused for 20 years to pay grazing fees in the Gold Butte area. The BLM said he owed $1 million in fees and penalties.

Faced with armed protesters the BLM agents eventually released the cattle and left to avoid potential bloodshed.

Much of the evidence in the high-profile case remains cloaked in secrecy due to a blanket court protective order that requires just about everything filed in the case must be filed under seal.

But the press — specifically the Las Vegas daily newspaper, this newspaper and The Associated Press — continue to fight for openness. Just this past week attorney Maggie McLetchie filed a writ with the 9th U.S. Circuit Court of Appeals asking that the veil of secrecy be lifted, because it “is anathema to the First Amendment” and longstanding court precedent from the 9th Circuit itself.

McLetchie argues, among other things, that much of the rationale for keeping material secret is merely to protect government agents from legitimate criticism of their conduct. She also says the protective order is  based on “speculation and scaremongering” supported almost entirely by a series of years-old online social media posts.

Since the arrests of most of the defendants back in February 2016, things have not gone swimmingly for the government.

Two of Bundy’s sons, who had been arrested on separate but similar charges of illegally occupying an Oregon wildlife refuge to protest the jailing of father and son ranchers under a terrrorism law for letting fires get out of control and burn a few acres of federal public land, were acquitted of those charges this past fall by a jury, along with their co-defendants.

In April, the first of three scheduled trials for the Bunkerville defendants — charged with obstruction of justice, conspiracy, extortion, assault and impeding federal officers — ended in a mistrial. The jury found only two of six people on trial guilty of some charges but deadlocked on the others. The jurors agreed to convict on only 10 of the 60 charges brought. None of the conspiracy charges stuck.

In January, the Interior Department’s Inspector General released a 16-page investigative report outlining misconduct and ethical violations by the BLM agent who supervised the Bundy cattle roundup. The report never named the agent but said he abused his powers by obtaining preferential treatment for family and friends at the 2015 Burning Man event on BLM land, misused BLM personnel and equipment, improperly intervened in hiring a BLM agent and attempted to influence an employee’s testimony during the Inspector General’s investigation of him.

News accounts identify the agent as Dan Love.

McLetchie noted that the misconduct allegations add fuel to the “general public’s concern that the government mishandled the investigation in this case.”

Her writ quotes from a 9th Circuit ruling from 1983 in which The Associated Press sought information about a criminal case. The court stated there “can be little dispute that the press and public have historically had a common law right of access to most pretrial documents. … Moreover, pretrial documents, such as those dealing with the question whether [a defendant] should be incarcerated prior to trial and those containing allegations by [a defendant] of government misconduct, are often important to a full understanding of the way in which ‘the judicial process and the government as a whole are functioning.’”

Seems on point for the Bundy case.

The defendants from the first Bundy trial are to be retried in late June on the same day Cliven Bundy, his sons and others were scheduled for trial. The court has yet to say what the schedule will be for the long-jailed remaining defendants.

The court needs to shine more light on this case so the public can see whether justice is being done.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

 

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Newspaper column: In Nevada election the tail wags the dog

Welcome to the state of Clark.

The land mass that is Clark County was added to Nevada three years after statehood, carved from a corner of Arizona. It was a part of Lincoln County until 1909, when the Legislature split off Clark County.

Clark dangles on the map like a vestigial tail on the nether region of Nevada.

On Election Day 2016, the tail wagged the dog.

This past week 1.1 million Nevadans cast presidential ballots, fully 68 percent of those were cast in Clark County — and there was a stark difference in how Clark voted compared to the rest of the state.

Only in Clark County did a majority vote for the Democratic Senate candidate. Thus it was for much of the ballot.

In the presidential contest alone the difference was a spectrum shift from bright Democratic blue in Clark to crimson Republican red just about everywhere else in the state.

While Democrat Hillary Clinton beat out Republican nominee Donald Trump statewide by about 36,000 votes, she bested him in Clark by more than 80,000 ballots, while he out polled her in the rest of the state by 55,000 votes, according to Secretary of State tabulations.

The only other Nevada county Clinton won was urban Washoe and that by only 2,500 votes out of more than 190,000 cast there. In other counties Trump won largely by margins exceeding 2-to-1 and in Lincoln County by 6-to-1.

Meanwhile, in the senatorial race to fill the vacancy being left by Senate Minority Leader Harry Reid’s retirement, Democrat Catherine Cortez Masto won statewide, but the only county she won was Clark. She won statewide by about 2 percentage points or 26,000 votes, but won by 80,000 votes in Clark. Republican Joe Heck, who gave up his Congressional District 3 seat to run for the Senate, won every other county, some by more than 4-to-1. Excluding Clark, Heck won the remainder of Nevada by more than 55,000 votes.

Nearly 4 percent of Nevadans chose “none of these candidates” in the Senate race.

In the 4th Congressional District — which includes part of northern Clark County, the southern part of Lyon County and all of White Pine, Nye, Mineral, Esmeralda, and Lincoln counties — Democrat Ruben Kihuen won districtwide by nearly 10,000 votes but won in Clark by about 24,000.

Incumbent Republican Cresent Hardy won every other county, all by about 2-to-1 or more.

After the dust settles, Nevada switches from having four out of its six Washington delegates being Republicans to four being Democrats.

Democrats won all save one of the Clark County state Senate seats up for grabs, giving the Democrats an 11-10 majority in Carson City, instead of the previous 11-10 GOP edge.

Republicans won every rural Assembly seat, while Democrats carried most races in Clark and Washoe, giving Democrats a 27-15 majority, instead of the previous Republican majority.

The gun grabbing Question 1 ballot initiative requiring background checks for almost every gun purchase or gift passed by 100,000 votes in Clark, but failed in every other county, often with 80 to 90 percent voting no.

Question 2, legalization of pot, passed only in Clark, Washoe, Nye and Story, but narrowly won statewide due to Clark’s numbers.

In 2014 Nevada experienced a red shift, when Republicans won all six statewide elective offices — governor, lieutenant governor, secretary of state, treasurer, controller, attorney general — as well as majorities in both houses of the Legislature.

The 2016 reversal of fortune was probably best explained by a little-circulated Associated Press story that appeared about a week before the election. It described how the Las Vegas Culinary union was busing thousands of casino housekeepers and staffers to early voting sites just off the Las Vegas Strip, “speaking in Spanish as they clutched pocket-sized brochures listing candidates endorsed by the powerful Culinary union.”

The union bused workers during their paid lunch break and handed them boxed lunches for the ride back to work.

The story went on to report that the union had registered 34,000 members to vote, had reassigned 150 members to full-time political work, planned to knock on 200,000 doors and place phone calls to co-workers.

There is talk in California since the election of Trump about secession from the Union. Anyone think Clark County should go with them?

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: Obama has the nerve to lecture journalists

President Obama lecturing journalists on how to do their jobs is like Goldfinger lecturing James Bond.

This past week Obama presented a journalism award along with a 30-minute speech at the Newhouse School of Public Communications at Syracuse University. In it he bemoaned the vulgar rhetoric and circus atmosphere of the current political campaign and talked about how important it is for professional journalists to do their jobs.

“Part of the independence of the Fourth Estate is that it is not government-controlled, and media companies thereby have an obligation to pursue profits on behalf of their shareholders, their owners, and also has an obligation to invest a good chunk of that profit back into news and back into public affairs, and to maintain certain standards and to not dumb down the news, and to have higher aspirations for what effective news can do,” Obama said. “Because a well-informed electorate depends on you. And our democracy depends on a well-informed

Obama lectures journalists

electorate.”

This is from a man, who as a candidate promised the most transparent administration in the history of the world, but, according to a recent Associated Press analysis, has delivered the most secretive and stonewalling administration on record.

The AP reports the Obama administration has set a record for rejecting Freedom of Information Act requests.

The story recounts that in more than one in six requests, or 129,825 times, FOIA requests resulted in federal searchers finding not a single page of records. “People who asked for records under the law received censored files or nothing in 77 percent of requests, also a record,” the AP report states.

The FBI couldn’t find any records in 39 percent of requests. U.S. Customs and Border Protection couldn’t find any records 34 percent of the time.

The administration rarely provides any detailed description of just how diligent their search efforts are.

Obama seldom holds press conferences and frequently refuses to answer questions or equivocates.

But in his admonition to reporters at the Syracuse award ceremony, Obama declared, “Good reporters like the ones in this room all too frequently find yourselves caught between competing forces, I’m aware of that. You believe in the importance of a well-informed electorate. You’ve staked your careers on it. Our democracy needs you more than ever.”

But his administration has blocked access to the information that would keep the electorate informed.

Not only has the Obama administration blocked access, it has blatantly gone after journalists’ sources and prosecuted people for daring to talk to reporters.

In 2013 it was revealed that the Justice Department secretly obtained two months’ worth of cellular, office and home telephone records of AP reporters and editors in Washington, New York and Connecticut, as well as the number for AP reporters covering Congress.

“The aggressive investigation into the possible disclosure of classified information to the AP is part of a pattern in which the Obama administration has pursued current and former government officials suspected of releasing secret material,” the Washington Post reported at the time. “Six officials have been prosecuted, more than under all previous administrations combined.” Charges against leaker Edward Snowden brought that to seven. Prior to that there had been only three indictments for leaks under the World War I Espionage Act.

AP’s president and chief executive, Gary Pruitt, wrote in a letter to Attorney General Eric Holder, “There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters.These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”

Before relenting in 2014, the administration for years threatened to jail New York Times reporter James Risen for refusing to reveal a confidential news source.

“As I believe that that for all the sideshows of the political season, Americans are still hungry for truth, it’s just hard to find,” Obama lectured.

Why is it hard to find, Mr. President?

A version of this editorial appeared this past week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record. It ran as a column in the Elko Daily Free Press.

Editorial: Legislators should not be able to hide from public scrutiny

“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” 

         — Justice Louis Brandeis

This is Sunshine Week, created by the American Society of News Editors and the Reporters Committee to spotlight the importance of public access to government information in a democratic republic, allowing the citizens to be the watchdogs over their elected and appointed representatives.

To illustrate this issue for the public, The Associated Press asked for the official emails and calendars for four Nevada legislative leaders — Democratic Sen. Aaron Ford, Republican Sen. Michael Roberson, Republican Assembly Speaker John Hambrick and Republican Assemblywoman Irene Bustamante Adams — for the first week of February.

The legislative lawyers cited a litany of excuses for denying the request in its entirety, including the old claim that revealing behind-the-scenes communications would “chill legislative speech and debate because Legislators might censor their remarks or forgo them entirely to protect the privacy of their sources from being revealed.”

That is the old “deliberative process privilege” dodge that every newspaper editor and reporter with more than a week on the job has heard at one time or another.

But the deliberative process is precisely what the public needs to see, not just the outcome, but how it came to be — what argument prevailed and why, who influenced the decision and how. Did the best interests of the public prevail or those of some special interest group or contributor?

But the legislative lawyers said, with a straight face apparently, that releasing emails and calendars would “allow improper inquiries into the motivations of Legislators.” Precisely.

Under the Open Meeting Law, passed by these same lawmakers, it is illegal for any other public body to “deliberate toward a decision or take action” except during a meeting open to the public. It is illegal to meet in secret or even serially to escape public scrutiny.

The legislative lawyers also cited a bill passed in the closing hours of the 2015 legislative session that says immunity applies to every action lawmakers take “within the sphere of legitimate legislative activity” whether written, oral or otherwise.

Court rulings on the federal Freedom of Information Act have narrowly allowed a deliberative process exemption, but only for an agencies’ internal communication and only for “documents that are both predecisional and deliberative.” It does not apply to factual information contained therein.

Thus the blanket denial flies in the face of even this overly generous and onerous excuse for secrecy.

The AP news story offered this explanation for the rationale of its records request: “Without access to emails, calendars and other correspondence, constituents often don’t know why bills died, which lobbyists their representatives are spending the most time with and what bargains lawmakers cut to save certain bills and kill others. They can only find out if the lawmakers themselves voluntarily give up the information.”

If citizens are to judge their representatives at the ballot box, we need to know why and how decisions were made.

A version of this editorial appeared this past week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record. It ran as a column in the Elko Daily Free Press.

Nevada Legislature (R-J file photo)

Verbs shove the knife, adjectives twist it

Clinton at hearing (Reuters photo that appears on front page)

Of all the news outlets reporting on Hillary Clinton’s appearance in front of the Benghazi committee the Las Vegas newspaper chose the Washington Post version, possibly the least objective of the wire services.

Its opening paragraph states:

Hillary Rodham Clinton easily parried barbed Republican questioning Thursday about the deaths of four Americans in Benghazi, Libya, emerging unscathed from a high-stakes congressional hearing with a smooth and sometimes poignant account of her role in the event that has loomed as among her largest political liabilities.

Never does the story mention how she and the president, just weeks before the election, concocted a story blaming the attack on the ambassador’s compound on reaction to an anti-Islamic video to distract from Obama’s insistence that terrorism was on the decline.

It’s all about politics now but not then.

The print version of the story was cut before getting to questions about how she could find time to swap emails with Sidney Blumenthal — described in Wikipedia as a “journalist, activist, writer and former political aide” Bill Clinton and a “long-time confidant to Hillary Clinton— but not the ambassador the Libya.

The story does mention in passing the FBI investigation of her handling of national security information.

For comparison, the lede on The Associated Press story, to which the Las Vegas paper no longer subscribes, stated:

Hillary Rodham Clinton strove to close the book on the worst episode of her tenure as secretary of state Thursday, battling Republican questions in a marathon hearing that grew contentious but revealed little new about the 2012 attacks in Benghazi, Libya. She firmly defended her record while seeking to avoid any mishap that might damage her presidential campaign.

Lacks the interpretative conclusions of the WaPo account.

Did R-J pick a fine time to quit the AP?

Lloyd Bridges’ character in the comedy movie “Airplane” kept saying he picked a fine time to quit drinking, smoking, sniffing glue, etc.

Did the Las Vegas newspaper pick a fine time to dump The Associated Press and replace it with Reuters, Washington Post, CNN, Sports Xchange, etc., which have no presence in Nevada? Today the print version used a free-lance banner story by a former AP Nevada reporter on the amount of water the Tesla Motors battery plant in Storey County will require and two stories with bylines from the Reno newspaper. There appears to be a need for additional resources across the state.

But what makes this interesting is an AP blog posted recently in which the newspaper cooperative promises to reverse a trend and beef up statehouse coverage in 50 state capitals:

Brian Carovillano (AP Photo)

Building on The Associated Press’ unmatched presence in all 50 U.S. statehouses, we are adding to our competitive advantage by creating a team of state government specialists.

As announced today to the AP staff, the specialists will collaborate with statehouse reporters, as well as on their own projects and stories focused on government accountability and strong explanatory reporting. Their over-arching goal will be “to show how state government is impacting the lives of people across the country,” said Brian Carovillano, managing editor for U.S. news.

Specifically, the AP says it has hired 13 statehouse reporters in the past year and plans to add 40 or so contract reporters to cover legislative sessions in 2015 — over and above the current staffing level.

The cooperative promises additional reporters for beats such as such as politics, immigration, crime and education.

“Beyond that, we are really pushing our state bureaus to focus their time and effort on content that is exclusive to AP and that our members and subscribers can’t get anywhere else. That needs to be our guiding principle,” the blog says.

It goes on to say the AP will set up editing operations to handle “shared” news from the members of the cooperative. That apparently will not include the R-J.

 

Reporting on solar power plants — a week late and few dollars short

Ivanpah Solar Electric Generating System just across the California border. (AP file photo by John Locher)

The Las Vegas newspaper finally got around to printing an AP story about the fact that huge solar thermal power plant just across the border in California is not performing as advertised.

In fact, the Ivanpah Solar Electric Generating System  is producing half of its expected annual output, the story says, though others have put the output at 30 percent of rated capacity or even one quarter — and that was more than a week ago.

Though the story relates that the $2.2 billion project was built by BrightSource Energy with a $1.6 billion federal loan guarantee, it doesn’t bother to mention that the billionaire owners are not paying loan payments and are seeking a $539 million cash grant from the Treasury Department, as reported by The Wall Street Journal on Sept. 23.

Though it has been reported that the plant has applied to use more natural gas to get its boilers operating when the sun fails to do the job, the story details that operators had thought they would need to use natural gas an hour a day, but instead are using gas an average of 4½ hours a day. So how much of the plant’s half-capacity production is from solar and how much from gas? Perhaps that’s were the one quarter figure comes from.

The story also makes no mention of the thousands of birds that have been killed in 800-degree heat of the sun’s rays focused by thousands of mirrors on the plant’s 450-foot tall towers.

Harry Reid was once quoted in a BrightSource press release about the Ivanpah project: “I am very happy to see utility-scale solar projects like this one moving forward with strong Administration support, and I am hopeful that this project will serve as a cornerstone of the clean energy economy in the Southwestern U.S. I look forward to BrightSource and other solar companies putting more Nevadans to work by building major projects like this in Nevada very soon.”

In 2010 Harry held a fundraiser at BrightSource’s headquarters in California, shortly after the firm got the $1.6 billion loan guarantee.

A website called The Party Blog reported on some other cozy relationships. Brightsource reportedly paid $40,000 to R&R Partners, supporters of Reid, to work on stimulus funding matters. BrightSource also had a deal with Harvey Whittemore’s moribund Coyote Springs Land Company — Whittemore was tight with Harry until he went to prison for illegal contributions to Reid — for the lease of some land for further solar projects.