334 lines
17 KiB
Plaintext
334 lines
17 KiB
Plaintext
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Based on the committee's investigation and two separate
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court rulings, it is clear that high level Department of
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Justice officials deliberately ignored INSLAW's proprietary
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rights in the enhanced version of PROMIS and misappropriated
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this software for use at locations not covered under
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contract with the company. Justice then proceeded to
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challenge INSLAW's claims in court even though it knew that
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these claims were valid and that the Department would most
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likely lose in court on this issue. After almost 7 years of
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litigation and $1 million in cost, the Department is still
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denying its culpability in this matter. Instead of
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conducting an investigation into INSLAW's claims that
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criminal wrongdoing by high level Government officials had
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occurred, Attorney Generals Meese and Thornburgh blocked or
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restricted congressional inquiries into the matter, ignored
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the findings of two courts and refused to ask for the
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appointment of an independent counsel. These actions were
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taken in the face of a growing body of evidence that serious
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wrongdoing had occurred which reached to the highest levels
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of the Department. The evidence received by the committee
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during its investigation clearly raises serious concerns
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about the possibility that a high level conspiracy against
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INSLAW did exist and that great efforts have been expended
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by the Department to block any outside investigation into
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the matter.
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Based on the evidence presented in this report, the
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committee believes that extraordinary steps are required to
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resolve the INSLAW issue. The Attorney General should take
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immediate steps to remunerate INSLAW for the harm the
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Department has egregiously caused the company. The amount
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determined should include all reasonable legal expenses and
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other costs to the Hamiltons not directly related to the
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contract but caused by the actions taken by the Department
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to harm the company or its employees. To avoid further
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retaliation against the company, the Attorney General should
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prohibit Department personnel who participated in any way in
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the litigation of the INSLAW matter from further involvement
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in this case. In the event that the Attorney General does
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not move expeditiously to remunerate INSLAW, then Congress
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should move quickly under the congressional reference
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provisions of the Court of Claims Act to initiate a review
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of this matter by that court.
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Finally, the committee believes that the only way the
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INSLAW allegations can be adequately and fully investigated
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is by the appointment of an independent counsel. The
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committee is aware that on November 13, 1991, newly
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confirmed Attorney General Barr finally appointed Nicholas
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Bua, a retired Federal judge from Chicago, as his special
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counsel to investigate and advise him on the INSLAW
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controversy. However, at that time the Attorney General had
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not empowered Judge Bua to subpoena witnesses, convene a
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grand jury or compel the Department to produce key
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documents.
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INSLAW officials have voiced concerns that Judge Bua,
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lacking independent counsel status, would not be able to
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entice Department employees who were knowledgeable of the
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INSLAW matter to come forward and assist Judge Bua in
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bringing this matter to closure. Consequently, they are
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concerned that Judge Bua will not be
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able to get to the bottom of the matter, and they believe
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his investigation will end up being subverted by the
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Department.
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The inability to subpoena and/or to convene a grand jury
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was apparently of concern to Judge Bua and, after a meeting
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on January 28, 1992, the Attorney General granted Judge Bua
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broad investigative authority which included the power to
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subpoena witnesses and to convene special grand juries.
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However because of the actions by the Department regarding
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potential whistleblowers such as Anthony Pasciuto, it is
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very likely witnesses will still feel intimidated by the
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Department. This problem was present throughout the
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committee's investigation and remains a potential problem
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today.
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Without independent counsel status, Judge Bua remains an
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employee of the Department of Justice. The image problem is
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illustrated in a recent interview with Roger M. Cooper,
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Deputy Assistant Attorney General for Administration. In an
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interview with the Government Computer News, Mr. Cooper
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stated that:
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The judge (Bua) will do as the attorney general
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wants him to do, and that's fine. I think all of
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us in the department would like to get it [the
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INSLAW matter] behind us. It's sort of an
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albatross.
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Mr. Cooper may have meant that Attorney General Barr
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wants Judge Bua to conduct a thorough investigation. The
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committee has no reason to doubt the commitment of Judge Bua
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or Attorney General Barr to do a thorough investigation of
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this matter-the problem rests with the fact that, as long as
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the investigation of wrongdoing by former and current high
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level Justice officials remains under the control of the
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Department, there will always be serious doubt about the
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objectivity and thoroughness of the work.
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This matter has caused great harm to several individuals
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involved and has severely undermined the Department's
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credibility and reputation. Congress and the executive
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branch must take immediate and forceful steps to restore the
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public confidence and faith in our system of justice which
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has been severely eroded by this painful and unfortunate
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affair. As such, the independent counsel should be appointed
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with full and broad powers to investigate all matters
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related to the allegations of wrongdoing in the INSLAW
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matter, including Mr. Casolaro's death and its possible link
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to individuals associated with organized crime.
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X. FINDINGS
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1. The Department, in an attempt to implement a
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standardized case management system, ignored advice from
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vendors-including INSLAW-that PROMIS should not be adapted
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to word processing equipment. As predicted, problems arose
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with adapting PROMIS to word processing equipment. The
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Department immediately set out to terminate that portion of
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the contract and blamed INSLAW for its failure.
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2. The Department exhibited extremely poor judgment by
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assigning C. Madison Brewer to manage the PROMIS
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implementation contract. Mr. Brewer had been asked to leave
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his position as general counsel of INSLAW under strained
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relations with INSLAW's owner, Mr. William Hamilton.
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INSLAW's problems with the Department, which started almost
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immediately after the award of the
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contract in March 1982, were generated in large part by
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Mr. Brewer, with the support and direction of high level
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Department officials. The potential conflict of interest in
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the hiring of Mr. Brewer was not considered by Department
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officials. However, Mr. Brewer's past strained relationship
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with Mr. Hamilton, and the fact that he lacked experience in
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ADP management and understanding of Federal procurement
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laws, raises serious questions about why he was selected as
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the PROMIS project manager.
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3. Mr. Brewer's attitude toward INSLAW, combined with Mr.
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Videnieks' harsh contract philosophy, led to the rapid
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deterioration of relations between the Department and
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INSLAW. Any semblance of fairness by key Department
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officials toward INSLAW quickly evaporated when Mr. Hamilton
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attempted to protect his companies' proprietary rights to a
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privately funded enhanced version of the PROMIS software. In
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a highly unusual move, Mr. Brewer recommended just 1 month
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after the contract was signed that INSLAW be terminated for
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convenience of the Government even though INSLAW was
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performing under the contract. From that point forward there
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is no indication that Mr. Brewer or Mr. Videnieks ever
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deviated from their plan to harm INSLAW. The actions taken
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by Messrs. Brewer and Videnieks were done with the full
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knowledge and support of high level Department officials.
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4. Peter Videnieks, the Department's contracting officer,
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negotiated Modification 12 of the contract which resulted in
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INSLAW agreeing to provide its proprietary Enhanced PROMIS
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software for the Department's use. This negotiation was
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conducted in bad faith because Justice later refused to
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recognize INSLAW's rights to privately financed PROMIS
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enhancements. Mr. Videnieks and Mr. Brewer, supported by
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Deputy Attorney General Jensen and other high level
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officials, unilaterally concluded that the Department was
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not bound by the property laws that applied to privately
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developed and financed software.
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6. Thereafter, the Department ignored INSLAW's data
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rights to its enhanced version of its PROMIS software and
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misused its prosecutorial and litigative resources to
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legitimize and coverup its misdeeds. This resulted in
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extremely protracted litigation and an immense waste of
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resources both for the Government and INSLAW. These actions
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were taken even though the Department had already determined
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that INSLAW's claim was probably justified and that the
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Department would lose in court. In fact, Deputy Attorney
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General Burns acknowledged this fact to OPR investigators.
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6. Department of Justice documents show that a "public
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domain" version of the PROMIS software was sent to domestic
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and international entities including Israel. Given the
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Department's position regarding its ownership of all
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versions of PROMIS, questions remain whether INSLAW's
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Enhanced PROMIS was distributed by Department officials to
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numerous sources outside the Department, including foreign
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governments.
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7. Several witnesses, including former Attorney General
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Elliot Richardson, have provided testimony, sworn statements
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or affidavits linking high level Department officials to a
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conspiracy to steal INSLAW's PROMIS software and secretly
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transfer PROMIS to Dr. Brian. According to these witnesses,
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the PROMIS software was subsequently converted for use by
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domestic and foreign intelligence
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services. This testimony was provided by individuals who
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knew that the Justice Department would be inclined to
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prosecute them for perjury if they lied under oath. No such
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prosecutions have occurred.
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8. Justice had made little effort to resolve conflicting
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and possibly perjurious sworn statements by key departmental
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witnesses about the alleged attempt by high level Department
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officials to liquidate INSLAW and steal its software. It is
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very possible that Judge Blackshear may have perjured
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himself and even today his explanations for his recantation
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of his sworn statement provided to INSLAW are highly
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suspicious. The investigation of this matter by the
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Department's Office of Professional Responsibility was
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superficial.
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9. The Department's response to INSLAW's requests for
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investigations by an independent counsel and the Public
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Integrity Section was cursory and incomplete
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10. The reviews of the INSLAW matter by Congress were
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hampered by Department tactics designed to conceal many
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significant documents and otherwise interfere with an
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independent review. The Department actions appear to have
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been motivated more by an intense desire to defend itself
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from INSLAW's charges of misconduct rather than
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investigating possible violations of the law.
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11. Justice officials have asserted that, as a result of
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the recent ruling by the Appeals Court and the refusal of
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the Supreme Court to hear INSLAW's appeal, the Findings and
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Conclusions of Bankruptcy Judge George Bason and senior
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Judge William Bryant of the District Court are no longer
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relevant. The Appeals Court decision, in fact, did not
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dispute the Bankruptcy Court's ruling that the Department
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"stole É through trickery, fraud and deceit" INSLAW's PROMIS
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software. Its decision was based primarily on the narrow
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question of whether the Bankruptcy Court had jurisdiction;
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the Appeals Court ruled that it did not. This decision in no
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way vindicates the Department nor should it be used to
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insulate Justice from the criticism it deserves over the
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mishandling of the INSLAW contract.
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12. The Justice Department continues to improperly use
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INSLAW's proprietary software in blatant disregard of the
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findings of two courts and well established property law.
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This fact coupled with the general lack of fairness
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exhibited by Justice officials throughout this affair is
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unbefitting of the agency entrusted with enforcing our
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Nation's laws.
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13. Further investigation into the circumstances
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surrounding Daniel Casolaro's death is needed.
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14. The following criminal statutes may have been
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violated by certain high level Justice officials and private
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individuals:
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18 U.S.C. ¤ 371-Conspiracy to commit an offense.
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18 U.S.C. ¤ 654-Officer or employee of the
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United States converting the property of
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another.
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18 U.S.C. ¤ 1341-Fraud.
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18 U.S.C. ¤ 1343-Wire fraud.
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18 U.S.C. ¤1505-Obstruction of proceedings
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before departments, agencies and committees.
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18 U.S.C. ¤ 1512-Tampering with a witness.
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18 U.S.C. ¤ 1513-Retaliation against a witness.
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18 U.S.C. ¤ 1621-Perjury.
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18 U.S.C. ¤ 1951-Interference with commerce by
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threats or violence (RICO).
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18 U.S.C. ¤ 1961 et seq.-Racketeer Influenced
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and Corrupt Organizations.
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18 U.S.C. ¤ 2314- Transportation of stolen
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goods, securities, moneys.
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18 U..S.C. ¤ 2315-Receiving stolen goods.
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15. Several key documents subpoenaed by the committee on
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July 26, 1991, were reported missing or lost by the
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Department. While Justice officials have indicated that this
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involves only a limited number of documents, it was
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impossible to ascertain how many documents or files were
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missing because the Department did not have a complete index
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of the INSLAW materials. The Department failed to conduct a
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formal investigation to determine whether the subpoenaed
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documents were stolen or illegally destroyed.
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XI. RECOMMENDATIONS
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1. The committee recommends that Attorney General Barr
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immediately settle INSLAW's claims in a fair and equitable
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manner.
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These payments should account for the Department's
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continued unauthorized use of INSLAW's Enhanced PROMIS and
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other costs attributed to INSLAW's ongoing attempt to obtain
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a just settlement for its struggle with the Department,
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including all reasonable attorneys' fees. If there continue
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to be efforts to delay a fair and equitable result, the
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committee should determine whether legislation is required
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to authorize a claim by INSLAW against the United States,
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pursuant to 28 U.S.C. ¤ 1492.
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2. The Attorney General should require that any person in
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the Department that participated in any way in the
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litigation of the INSLAW matter be excluded from further
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involvement in this case, with the exception of supplying
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information, as needed, to support future investigations by
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a independent counsel or litigation, as appropriate.
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3. The committee strongly recommends that the Department
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appoint an independent counsel to conduct a full, open
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investigation of the INSLAW allegations of a high level
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conspiracy within the Department to steal Enhanced PROMIS
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software to benefit friends and associates of former
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Attorney General Meese, including Dr. Earl Brian, as
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discussed in this report. Among other matters, the
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investigation should also:
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Ascertain whether there was a strategy by former
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Attorneys General and other Department officials
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to obstruct this and other investigations through
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employee harassment and denial of access to
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Department records.
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Investigate Mr. Casolaro's death.
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Determine whether current and former Justice
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Department officials and others involved in the
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INSLAW affair resorted to perjury and obstruction
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in order to coverup their misdeeds.
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Determine whether the documents subpoenaed by
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the Committee and reported missing by the
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Department were stolen or illegally destroyed.
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Determine if private sector individuals
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participated in (1) the alleged conspiracy to
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steal INSLAW's PROMIS software and distribute it
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to various locations domestically and overseas,
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and (2) the alleged coverup of this conspiracy
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through perjury and obstruction.
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Determine if other criminal violations occurred
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involving:
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18 U.S.C. ¤ 371-Conspiracy to commit an offense.
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18 U.S.C. ¤ 654-0fficer or employee of the
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United States converting the property of
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another.
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18 U.S.C. ¤ 1341-Fraud.
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18 U.S.C. ¤ 1343-Wire fraud.
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18 U.S.C. ¤ 1505-Obstruction of proceedings
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before departments, agencies and committees.
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18 U.S.C. ¤ 1512-Tampering with a witness.
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18 U.S.C. ¤ 1513-Retaliation against a witness.
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18 U.S.C. ¤ 1621-Perjury. 18 U.S.C.
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¤1951-Interference with commerce by threats or
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violence (RICO).
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18 U.S.C. ¤ 1951 et seq.-Racketeer Influenced
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and Corrupt Organizations.
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18 U.S.C. ¤ 2314-Transportation of stolen goods,
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securities, moneys.
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18 U.S.C. ¤ 2315-Receiving stolen goods.
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