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Gitmo Detainees: Waiting for Obama?

November 24, 2008 2:39 PM

It's been five months since the Supreme Court threw open the courthouse doors to hundreds of terror suspects at Guantanamo Bay, ruling they have a constitutional right to challenge their detention in federal court.

This morning, a federal appeals court panel took up the hard work of divining just what the justices meant in that decision. The panel heard arguments in a case that brings home, literally, some of the consequences of the landmark decision, Boumediene v. Bush.

The rubber has hit the road. In the wake of that decision, district court judges, with the Supreme Court's blessing, now are second guessing military decisions on which terror suspects belong in custody at Guantanamo.

And now, as an Obama Administration is preparing to take office, district court judges are beginning to side with detainees, ruling some of them don’t belong at Guantanamo.

But then there's the next step. Once a judge rules the government doesn't have the evidence to hold them at Guantanamo, what’s he supposed to do about it? Where are these detainees -- some of them still considered "enemy combatants" by the government -- supposed to go?

Last month, federal District Court Judge Ricardo Urbina took the extraordinary (although, thanks to the Supreme Court, not entirely surprising) step of ordering 17 former terror suspects released into the United States. It marked the first time a judge had ordered detainees at Guantanamo released into this country.

The men, a group of Chinese Muslims known as "Uighurs," have been at Guantanamo more than six years. They had weapons training from the Taliban in camps in Afghanistan, and were picked up in Afghanistan and Pakistan after 9/11.

But they're now in a legal no-man's land. They're no longer considered "enemy combatants," because China, not the United States, was their enemy. That means they can't be sent home to China, which could torture then. But no other country will take them off our hands. So they've been stuck, in limbo, down in Gitmo.

Urbina, relying on the Boumediene decision, solved that problem: He ordered them freed into the Washington, D.C. area.

Not surprisingly, the Bush Administration went straight to the appeals court to block the order and challenge the ruling, and it won a temporary reprieve while the case was appealed.

This morning, a highly skeptical federal appeals court panel took up the case. At the end of an hour-long hearing, it appeared poised to reject Urbina’s order and, in doing so, find some limits to Boumediene.

Two of the panel's three judges, Karen Henderson and Raymond Randolph, seemed sympathetic to the Bush Administration's argument that the question was for the political branches -- not the federal courts -- to decide.

"The District Court had no right under our laws to order them brought to the United States and released here," said Solicitor General Gregory Garre.

Garre told the appellate panel this morning that the Uighurs' situation was "regrettable," but that judges have no authority to order detainees released in the United States. He said the government is continuing efforts to find another country to take them.

Henderson and Randolph appeared inclined to agree, suggesting the detainees have no constitutional or statutory right to be released here in this country.

Those two voted last month to block Urbina's order during the government's appeal, over a strong dissent by Judge Judith Rogers.

In this morning's argument, Randolph -- who has taken an expansive view of executive power in the past -- was especially forceful. Toward the end, he homed in on the language of Boumediene, which said judges have the authority to order a "conditional release" of the detainees.

Randolph suggested that the Uighurs may already have won that, since the Bush Administration has agreed to release them "on the condition that it finds another country" who will take them.

"In fact, these people are conditionally released," he said during the hearing.

A ruling could be months away. If the detainees lose, which seems likely, this case will be appealed to the full appeals court -- or head straight to the Supreme Court.

There, the justices could come face-to-face with the consequences of Boumediene.

But they won't be reading legal briefs or hearing arguments from Greg Garre.

In his place will be a new solicitor general, representing the Obama Administration. Obama has said repeatedly he plans to take a different course with the detainees, including closing Guantanamo.

Obama also will have to decide a different question: Whether, as President, he objects to the idea of federal judges having authority to order former terror suspects freed into the United States.

November 24, 2008 in Supreme Court | Permalink | User Comments (13) | TrackBack (0)

Mukasey: "I am...quite embarrassed"

November 21, 2008 8:25 PM

Below is Attorney General Mukasey's heartfelt letter this afternoon to members of the Federalist Society. He says he is embarrassed by his collapse at the group's annual dinner, saying it detracted from the message he wanted to convey.

Dear Friends,

Well, as I was saying...

Let me please begin by underscoring what an honor it was to speak to you last night. I am, as you might imagine, quite embarrassed to have collapsed last night. I hope that embarrassment is not the product of undue human pride, or at least not principally so. I am embarrassed in part because I fear I ruined your evening and caused you concern - for that I am truly sorry. Equally important, I hope the shortened conclusion of the speech did not detract from the message I hoped to convey: Specifically that the issues of law and policy relating to our continuing national security are real, and are worthy of the most careful thought and deliberation so as to keep the American people safe.

The Federalist Society has spent the last 25-plus years promoting thoughtful and fair debate concerning the critical legal and public policy issues facing our nation. It was an honor to address you last night, and I urge you to continue the fine efforts of the Federalist Society in the future.

Finally, I was truly humbled to hear all of the prayers and well wishes sent on my behalf from attendees at the dinner. Thank you all. I am, fortunately, well, and I too pray for all of our good health and for the future of the Nation we all love.

Very Truly Yours,
Michael Mukasey

November 21, 2008 | Permalink | User Comments (6) | TrackBack (0)

A Somber Mukasey, Taking on Critics

November 21, 2008 12:27 PM

Attorney General Michael Mukasey, consistently described as a “no-nonsense” man of integrity who brought a much-needed steady hand to a troubled Justice Department, last night delivered his most forceful statement yet on the administration’s legal policies in the War on Terror.

It was a remarkable speech—a staunch defense of the legal policies and a frontal assault on the “dangerous” rhetoric from critics on the Left, in Congress and in the media. Mukasey was near the very end of his remarks, with just a few sentences left, when he collapsed at the dais.

He was rushed to George Washington Hospital, where he stayed overnight for a battery of tests. Tests have come back normal; Doctors have ruled out a stroke or heart attack and now believe it may have been a fainting spell. Mukasey was released just after noon today.

But it was a frightening moment, and it came near the end of his strong speech, in which he took direct aim at the “relentless criticism” and overblown, irresponsible rhetoric he said he sees in the media, in Congress and in the legal academy.

Just as he was reaching his conclusion, and expressing hope that the Obama Administration would recognize that “national security lawyers in this Administration acted professionally and in good faith and that the country is safer as a result,” Mukasey began to slur his words.

He very laboriously managed to get out that one word, “result,” and began teetering at the podium. Frank Hanna, a Federalist Society supporter, ran to catch him as he fell. Instinctively, the crowd began saying “no” and “oh my god.” Many began frantically calling 9-1-1; some were openly crying. EMTs arrived about 20 minutes later and took him from the ballroom on a stretcher.

The fear and panic over Mukasey’s condition, understandably, somewhat superseded the very message he had so forcefully had just delivered at the Society's annual dinner. But his remarks--ardently defending the policies, taking square aim at critics and somberly warning of the consequences of irresponsible rhetoric and/or investigations-- are important and bear serious discussion.

It was, as I said, the most forceful and blunt talk he’s given to date. And it comes at a critical time, as members of Congress, law professors and civil liberties groups step up their criticism--and look to a new Administration to end the policies and investigate those who approved them.

But before looking forward, Mukasey looked back. The criticism of the terror policies rests, he said, on “a very dangerous form of amnesia” about the real and ongoing threat posed by Al Qaeda.

It’s been seven years since 9/11. Al Qaeda has not launched a single act of terrorism in the United States. This has been “a remarkable achievement,” Mukasey said, one “no one could have predicted.”

Instead of praise, however, there is relentless criticism, both partisan and grossly overblown, Mukasey said.

“In an odd way, we have become victims of our own success,” he said. “In the eyes of these critics, if al Qaeda had not struck our homeland for seven years, then perhaps it never posed much of a threat after all, and we didn’t need these counterterrorism policies.”

Mukasey said the criticisms should not be confused with vigorous and understandable debate about complex and consequential legal issues. His beef was that the criticisms are frequently devoid of law and have degenerated into rhetoric.

And he gave an example from a speech delivered earlier this year by Michael Traynor, head of the “non-partisan” American Law Institute. In his speech, Traynor condemned the “oppressive, relentless and lawless attack by our own government on the rule of law and our liberty.”

Traynor went on to say Americas live now in a “time of repression” where the “word ‘Patriot’ names a statute that stifles liberty,” and where we face “assaults by our government on constitutional rights, the Separation of Powers, and the Geneva Conventions.”

Mukasey: “You can practically hear the rumble of tanks in the background.”

“Completely absent from these remarks, and from many remarks like it, is any fair appraisal of the legal issues actually involved or an acknowledgement of the difficulty or novelty of the legal questions confronted by the Administration lawyers who made these decisions,” Mukasey continued. “Nor was there any discussion of the atmosphere in which these decisions were made.”

September 11, 2001 is receding into the distant past. But seven years ago, “there must have been almost unimaginable pressure, without the academic luxury of endless time for debate,” Mukasey said.

He then refuted point-by-point much of the criticism. Critics lash out at the administration for depriving federal judges of any role in second-guessing military decisions on who to detain on the battlefield. In fact, he noted, federal judges never before had that authority.

Critics denounce an assault on the Geneva conventions. In fact, he noted, the Conventions contain 319 articles, of which 315 are “plainly addressed to armed conflicts among nations that signed the Conventions. It’s “hardly surprising,” he said, that the administration concluded those provisions did not apply to al Qaeda, and it “hardly warrants” the “sweeping, dismissive and entirely conclusory criticisms so frequently heard.”

Mukasey then turned to the future, arguing that it’s his hope the Obama Administration “will maintain far more of this Administration’s legal architecture than the intemperate rhetoric in some quarters would seem to suggest.”

But he said he is concerned--especially when 56 members of Congress in June sent him a letter asking for a special counsel to conduct a criminal investigation of the President, members of his Cabinet, national security lawyers and intelligence professionals involved in the CIA interrogation program.

“The Members who signed this letter offered no evidence that these government officials acted based on any motive other than a good-faith desire to protect the citizens of our Nation from a future terrorist attack,” Mukasey said.

Congressional oversight and review of intelligence activities is important, he said. But it’s equally important, he said, that such scrutiny be responsible—because it could have real and damaging consequences to the nation’s security.

Mukasey referred to a book he greatly admires, The Terror Presidency, written by Jack Goldsmith, the former head of the Office of Legal Counsel. He has spoken frequently about the themes in Goldsmith’s book, which he believes delivers a troubling and dead-on message.

In the wake of 9/11, the consistent refrain was to be more aggressive, less risk-averse to the terror threat, Goldsmith writes. But now, seven years later, lawyers and intelligence personnel are hearing a different message—one that could have a chilling effect and make them less willing to aggressively pursue the threat.

Mukasey: “When 56 members of Congress request a criminal investigation of the professionals and lawyers, they should have no doubt that those lawyers and certainly their successors, will get the message: If they support an aggressive counterterrorist policy based on their good faith belief that such as policy is lawful, they may one day be prosecuted for it.”

It was a sobering speech, delivered in a somber and dispassionate tone. Leonard Leo, executive vice president of the Federalist Society, called it “pivotal,” in opening up “a very serious dialogue” about what the incoming Obama administration will do with the terror policies.

It also was critical, as Leo points out, in calling for a more "civil, reasonable debate" about these issues as a new administration takes office.

Mukasey was released from the hospital just after noon today; he has insisted on going back to his office. He is, as one of his top lawyers told me awhile ago, "really something."

He's also said something worth thinking hard about--whether you're in the opposition today or soon will be, on Jan. 20. These issues will not fade.

You can read his speech in its entirety here.

November 21, 2008 | Permalink | User Comments (8) | TrackBack (0)

Judge Orders Release of Five Terror Suspects

November 20, 2008 2:54 PM

A federal judge has ordered the government to release five terror suspects detained at Guantanamo, saying it failed to prove the men planned to take up arms against the United States.

Judge Richard Leon directed the government to "take all necessary and appropriate diplomatic steps" to bring about their release, according to a lawyer in the courtroom. Unlike another federal judge last month, however, he did not order them released into the United States.

Leon urged the government not to appeal, but to instead find a country to accept the men. They are native Algerians who were captured in Bosnia in 2001.

One of the five is Lakhdar Boumediene, who had argued that he and the other detainees had a constitutional right to a court hearing to challenge their imprisonment. The Supreme Court agreed in June, paving the way for the hearing in Leon’s courtroom on whether the government could continue holding the six detainees.

According to a lawyer in the courtroom, Leon faulted the government's evidence that the men were enemy combatants. It relied on one classified document by an unnamed source.

Nadia Asancheyev, a fellow at the Georgetown Center on National Security and Law, said Leon told the courtroom he could not "adequately assess the reliability of the sole source of information" the men were enemy combatants.

Justice Department Spokesman Peter Carr said the department was "of course disappointed by, and disagree with," Leon’s decision. He said it was "perhaps an understandable consequence" of the fact that neither Congress nor the Supreme Court set out any rules for how judges in these cases should proceed.

He urged Congress to step in and set up guidelines that allow "the Government to present its case without imperiling national security."

"These cases present extraordinary circumstances where wartime enemies have been captured abroad and are being detained based often on the same sort of classified intelligence relied upon by the military in conducting wartime operations,” Carr said.

Carr praised Leon for ruling that a sixth Gitmo detainee was an enemy combatant.

In his ruling, which he read from the bench, Leon also cautioned that the case was "unique" and that "no one should be lulled into a false sense" that other detainee cases would be similarly decided.

Last month, federal District Court Judge Ricardo Urbina ordered 17 Chinese Muslims released into the United States. The government had conceded those 17 were no longer enemy combatants, but said no country would take them. That case is on appeal and will be argued before a federal appeals court panel on Monday.

Earlier this year, a federal appeals court rejected the government's claims that another detainee was an enemy combatant.

November 20, 2008 | Permalink | User Comments (33) | TrackBack (0)

Clement Decides

November 20, 2008 10:06 AM

It’s been the most buzzed about question in Washington legal circles all summer and fall: What law firm will land former Solicitor General Paul Clement, widely seen as one of the nation’s top Supreme Court advocates?

Today, we get the answer, and it’s something of a surprise: He’s rejoining his old firm, King & Spalding.

The battle for Clement was long and it was furious. He was the youngest solicitor general confirmed by the Senate in more than 100 years, since William Howard Taft way back in 1890. At 42, he has argued 49 cases before the Supreme Court and, as is obvious during his arguments, commands deep respect from the justices. (He clerked for Justice Scalia and, before that, Judge Silberman.)

He’s the real deal, and his kind doesn’t come around all that often. The one big strike against him? As a Wisconsin native, he’s a fan of the Green Bay Packers.

The other leading contenders for Clement’s talents were top-tier firms Kirkland & Ellis, Skadden, Arps, Slate, Meagher & Flom and Latham & Watkins. Kirkland, the former home of Kenneth Starr, was seen as the odds-on favorite, even though it already has the highly respected Christopher Landau heading its appellate practice.

But Clement could bring some star power, and Kirkland was believed to be one of the few firms that could actually pay the kind of money someone like Clement could command. It aggressively pursued him, as you’d expect from a sharp-elbowed place like Kirkland, and it was going to show him the money. The word in Washington—and whether exaggerated or not, I heard this repeatedly from several different sources--was somewhere in the neighborhood of $5 million.

Skadden’s pitch was the opportunity to actually create from scratch a prominent Supreme Court practice. Latham, which has a first-rate practice already, was after him to complement and, eventually succeed, its star appellate advocate, Maureen Mahoney.

But after looking at all those options, Clement decided to go back home. Some say he left some serious money on the table to do it.

He said today he was “delighted” to be returning to his old firm and that he knows firsthand it’s a “wonderful place to practice law.”

Here’s wishing him the best---and a quick return to the podium at the Supreme Court.

November 20, 2008 | Permalink | User Comments (5) | TrackBack (0)

The Greatest Rivalry of All

November 19, 2008 12:49 PM

I was going to write about this really interesting case Orin Kerr came across the other day on whether X-Ray body scans violate the 4th Amendment. Apparently, a woman visiting her husband in a detention facility was subject to the scans, and she realized (belatedly) that the guards had basically been seeing her naked every time. Check it out here.

But Orin has the issue well covered, so to speak, as is typical for him. So that gives me a chance to talk about what really is the only thing I am thinking about these days, and that is, of course, Alabama football.

(You may have noticed that the other day, when I turned a blog about Scalia’s deer hunting out in Lubbock into a stream-of-consciousness post about the Crimson Tide and our next big game.)

The Big Game I’m talking about is, of course, the most intense rivalry in all of sports: Alabama-Auburn. And yes. I AM counting Yankees-Sox, Skins-Cowboys, UNC-Duke, Bears-Packers, Cubs-Cards, Ohio State-Michigan, Ali-Frazier, Russell-Chamberlain, Nicklaus-Palmer, and, even, Alydar-Affirmed.

All of you people who want to argue this should just show up next Saturday in Tuscaloosa for the Iron Bowl.

Here’s the thing: In Alabama, you don’t have professional sports to rally around. The Titans are too close to the Vols (who we loathe). The Falcons are never worth the effort; same goes for the Saints. I always liked the Jets, myself (for obvious reasons). Some of us endured Bobby Cox to cheer for the Braves, but none of us really pulled for the Hawks. And the New Orleans Jazz went off to Utah, where, inexplicably, they are still called the Jazz.

Nope, in the great state of Alabama, there’s either Alabama (THE University) or Auburn. You grow up hating one and loving the other. My Uncle Tony rebelled as a teenager and went to Auburn—he was forced to move to Dallas, and we still hold it against him.

You suffer 364 days a year if you lose. You don’t even have to go to school there for your loyalty to run deep: When I was a kid, the president of the Cullman County Alabama Alumni Association never set foot on campus except for Saturdays in the fall.

I could talk for hours about “The Run in the Mud” or “The Kick.” (I have tried to block out “Punt Bama Punt.”) But today, with the game on the horizon next Saturday---and Auburn headed to T-Town to try to knock off my #1 Crimson Tide (2:30 CST kickoff on CBS)--I’m going to tell you a little bit about Jim Fennel.

Jim Fennel loved Auburn. He loved Auburn so much he just could not bear the thought of the Tide going to the Plains for the first time ever (the series had historically been played at "neutral" Legion Field in Birmingham) and winning on the Tigers' home turf. Of course, the Tide should have won that game--Alabama was undefeated, ranked #2 and in the hunt for the 1989 National Championship.

(FYI: Number of Alabama National Championships: 12. Number of Auburn National Championships: 1.)

Fennel decided Auburn needed some inspiration, so he sat down and wrote a letter about World War II. He described serving in a tank unit under Gen. George S. Patton, and he wrote vividly about how some of his unit was captured by the Germans after a fierce battle. Forced to march through a captured town, Fennel said the men in his unit “decided to show the Germans what they were made of.”

With all those Germans standing beside the road, Fennel and the other captured Americans began marching in swift double-time. That got the enemy’s attention, Fennel wrote, and the Germans all saluted them as they went by.

Fennel sent that letter to Pat Dye, who read it to his team on the eve of the Alabama game. He had described his war experiences so vividly that Dye and the coaches cried, as did some of the players. They were inspired.

Here’s how Jay Coulter describes what happened next, on trackemtigers.com:

“I remember it like it was yesterday. I was a junior at Auburn and doing a live radio broadcast for WEGL on top of an RV. Tiger Walk was unlike anything I'd even seen before or since. The look on the players and fans eyes as the team made its way to the stadium, you just knew Auburn was going to win. I honestly don't believe the Soviet Union could have kept Auburn out of the end zone on that day.”

Alabama sure didn’t. Those Auburn players were so inspired they beat a superior Alabama team 30-20.

Fennel got his due credit. It became a big story. Those Auburn fans loved Jim Fennel, local hero, who not only whipped the Germans, but helped beat the Tide. But then someone happened to point out that Jim Fennel was, oh, 5 or 6 years old during World War II. He made it all up.

It came too late for the Tide. We sunk to #7 and lost to Miami in the Sugar Bowl. We avenged the Miami loss three years later in New Orleans, when we crushed the #1 Canes and a confused Gino Torretta, 34-13. (I have a large framed photograph of George Teague’s takeaway from Lamar Thomas on the wall of my office. It makes me very happy.)

But that 1989 Auburn game still hurts. Here’s Coulter again: “Auburn prevailed and a permanent shift of football power took place in the state that still stands today.”

OK, that’s a little excessive—we did beat them good in the early 1990s. We were National Champs in 1992. (Did I mention this statistic: Alabama National Championships, 12: Auburn, 1?) But it’s a sad fact of life (and a reflection on some of the sorry coaches we hired since we outrageously let Gene Stallings go) that Auburn has beaten us six years straight.

Just ask Tommy Tuberville, who likes to hold up his fingers on the sidelines reflecting the number of Auburn wins—a nice touch, mocking a bunch of teenagers on the field like that.

Next Saturday. The Greatest Rivalry of All. In Tuscaloosa. Where, it pains me to write, we have yet to beat Auburn. It’s our moment. "Permanent shift of power?" Please. Nick Saban is inspirational enough he won’t need a fable to rally the team. We’re in the thick of the hunt for the national title. We could be the first team in SEC history to go 12-0 in the regular season. We can’t bear 364 days of defeat.

And Tuberville can’t count to seven, anyway.

Roll Tide Roll.

And yes, being a deeply superstitious Alabama fan, I am knocking on wood. Got that Uncle Tony?

November 19, 2008 | Permalink | User Comments (7) | TrackBack (0)

Cheney, Gonzales Indicted in Texas

November 18, 2008 6:57 PM

In the department of the Truly Bizarre, a Texas grand jury has indicted Vice President Cheney, former Attorney General Alberto Gonzales, a few state court judges, a former U.S. attorney and some other folks. According to the Brownsville Herald, the indictment appears to focus on management and oversight of federal detention centers and accuses Cheney and Gonzales of engaging in organized criminal activity.

The Herald also says it accuses Cheney of a conflict of interest (because of his investment in a mutual fund that has interests in private prison companies) and "at least misdemeanor assaults" on detainees by working through the prison companies that are running those centers. Gonzales, the newspaper says, also is accused of using his position in office to stop an investigation into alleged abuses at the federal detention centers.

The breaking news story on the Brownsville Herald is HERE.

And now for the big wet towel.

First, Willacy County grand juries are familiar with DA Juan Angel Guerra -- since he himself was indicted by one just last year on felony charges of theft, attempted theft, perjury, abuse of official capacity and tampering with government records. When Guerra was arrested, the publisher of the local papers in the county, Paul Whitworth, told the Brownsville Herald: "It's a great day for Willacy County, and it'll be better when he's convicted." The Herald said Whitworth had said for years that Guerra failed to prosecute crime in the county.

Two weeks ago, a judge threw out the charges against Guerra -- but his prosecuting days soon will be over. He was defeated in the March primary.

So now Guerra is going for the last stand? If so, I'm guessing his Cheney/Gonzales indictment will go the way most last stands go: complete annihilation. First off, it's hard to see from the local reports exactly what the state crime even is. Federal conflicts of interest, for example, are governed by the Ethics in Government Act.

What's more, there's a reason why local DAs don't go around indicting federal officers for official actions (even controversial official actions): The U.S. Constitution.

The Supremacy Clause is generally understood to prohibit states from prosecuting federal officers for their official acts. Guerra can't prosecute Cheney, Gonzales, federal prosecutors, etc., for actions within the scope of their federal authority -- they all would be immune from such prosecutions.

The more serious question is whether the Obama Administration will follow a similar prosecutorial path against previous administration officials for other actions they took while in office.

But a state DA—no matter what his intentions -- cannot.

Megan Mitchell, a spokeswoman for the vice president, told ABC News' Kirit Radia tonight, "We have not received an indictment so I will decline to comment."  DOJ also had no comment. But I reached Cheney's former counsel, Shannen Coffin. He had this to say:

"This is just another example of the rampant criminalization of politics by a local prosecutor who is trying to get his name in the newspaper," said Coffin, who's now at Steptoe & Johnson. "The local citizens…should throw him out on his ear."

In fact, they have -- through the ballot box.

November 18, 2008 | Permalink | User Comments (69) | TrackBack (0)

Coffee, Skits and Complaints about the NYT

November 18, 2008 11:29 AM

Journalists and researchers got their first look at some of the papers of William Rehnquist yesterday, when the Hoover Institution opened a small portion of the collection. The New York Times' Adam Liptak and Jonathan Glater have a nice summary of what they came across, focusing mainly on an episode right after Rehnquist joined the Court.

Rehnquist anguished over whether he should explain why he was not recusing himself from a surveillance case, and he asked a couple of his new colleagues for advice. That led to an amusing (and prescient) exchange with Justice Potter Stewart, which illustrated their frustration with the New York Times and the Washington Post, both of which were hot on the issue.

The Recorder's Dan Levine also homes in on that case, Laird v Tatum, but he includes some of the internal correspondence that shows the personal side of Rehnquist. Much of it is between Rehnquist and then-Chief Justice Warren Burger, whose management of the Court was a constant source of frustration to the other justices.

Early in his tenure, Rehnquist tried to liven things up at the Court, Levine writes. One suggestion was coffee hour after oral argument.

"I think that the practice which each of us appears to follow at the close of a day of oral argument -- plodding back to his own individual salt mine -- is bad for morale," Rehnquist wrote in a letter to Burger in 1973, a year after he joined the Court.

Rehnquist, who had a flair for drama (remember the gold stripes he'd later add to his robe?), also proposed a skit or variety show by the clerks. It was something he eventually would institute.

"I would enjoy seeing what each annual crop of law clerks, together with such help from the Justices that they might wish, could do in the way of a gridiron show or other parody or satire on the court," he wrote.

Burger's reaction, Levine writes, was not enthusiastic. A coffee hour might be "feasible" one day a week, Levine writes of Burger's response, but "my own attendance would be brief or rare, or both. There just isn't time."

Like other justices—notably Lewis Powell and Sandra Day O'Connor—Rehnquist also was wary of William Brennan, who could be crafty in his opinions. Levine discovers some evidence of that, in a memo to Rehnquist from a law clerk, who apparently was following marching orders: "I have read over Justice Brennan's proposed questions in Pipefitters, with an eye for any omissions or unfair phraseology."

But as interesting as these tidbits are, it appears from these reports that the collection is more along the lines of the Marshall papers, and not the treasure trove of information found in the Blackmun papers.

Liptak and Glater characterize the documents as "dry as the pages themselves." Levine says the case files "shed little light on what drove his decision-making."

By contrast, Blackmun appears to have saved everything—every letter, memo, note, directive from his law clerks—and the overall impression of him that lingers is not a positive one.

But Blackmun's notes are an astonishing resource, and they've helped clarify much confusion about the respective roles of the justices. It was in the Blackmun papers, for example, that I found ample proof that Justice Clarence Thomas was grossly and unfairly mischaracterized early in his tenure.

Thomas, contrary to early reports, never blindly followed Antonin Scalia. In Thomas's very first term, it was Scalia changing his vote to join Thomas, not the other way around. The proof is in the Blackmun papers and his detailed conference notes. Say what you will about Harry Blackmun as a Justice, but he was a copious note taker.

Rehnquist, it appears, didn't preserve such detailed notes. Nor did he permit Hoover to release as many files as Blackmun. The release of the Blackmun papers infuriated more than a few justices, since they covered cases that were pretty recent—and involved a majority of the sitting justices. Most vowed then that their own papers would not be publicly released until the death of every justice who was sitting with them in a particular term.

Rehnquist dictated that his files become public only on that condition. That means we only have access to cases over a three-year period, since John Paul Stevens joined the Court in 1975.

When Stevens dies, additional papers will be released, but not many. Assuming Stevens dies before Sandra Day O'Connor, who joined the Court in 1981, Hoover will release only six additional years of documents.

We've seen many of the memos already in the Blackmun papers, which end with Blackmun's retirement in 1994. But don't expect to see Rehnquist's papers from 1994-2005 for a long, long time. O'Connor, Antonin Scalia, Anthony Kennedy, David Souter, Thomas, Ruth Bader Ginsburg and Stephen Breyer all will have to die first.

November 18, 2008 | Permalink | User Comments (0) | TrackBack (0)

Football, Deerhunting and Some Law

November 17, 2008 7:08 PM

Justice Scalia is in Lubbock tonight for a talk at Texas Tech, after spending the weekend deer hunting on a nearby ranch with prominent plaintiffs lawyer Mark Lanier. Tony Mauro has the details here.

Scalia, of course, is a dynamic and charismatic speaker, but I wonder if the folks in Lubbock are really all that focused on the law, what with the big game against Oklahoma looming large this Saturday. Is this some seriously bad timing for a lecture, or what?

It’s a must win for the #2 Red Raiders if they want to keep alive their improbable dream season—which now has them on course to play for the National Championship in Miami (assuming, of course, they beat #5 Oklahoma and get past Missouri in the Big 12 title game).

I am not even going to write which team they may be playing in Miami, being a deeply superstitious fan who still hasn’t recovered from OT in Death Valley.

Scalia, though, isn’t the biggest college football fan, so my guess is he’ll stick to deer hunting and away from practice. But I will say this: It’s a good thing for Oklahoma’s sake that someone like the Chief Justice isn’t in Lubbock this week.

Roberts, a big Notre Dame fan, was in South Bend for a speech in September, and he talked with the team on the eve of their big game against Michigan. It was the anniversary of 9/11, and he spoke of sacrifice and freedom.

The Irish won 35-17. A victory to be proud of.

You can’t say the same thing for one of Auburn’s wins over Alabama a few years ago. Auburn tried the inspirational approach with the team, but being Auburn, they ended up with an impostor who had made up some tale about sacrifice in the war. Alas, the inaccurate inspirational was enough for Auburn to beat Tide, though an asterisk really belongs by the score of that game. 

But I digress. Back to Texas Tech-Oklahoma. The person who should be hoping for an inspired Sooners team is Barack Obama. He’s calling for a college football playoff, and a Texas Tech loss could really help his cause.

I suppose Obama could always say a playoff is important to interstate commerce and urge Congress to pass a law requiring one. But it's a better approach to hope for a Sooners win and let the brewing controversy over the #2 spot make the case for him.

If Texas Tech loses to Oklahoma, we'll have a huge mess in the Big 12 South, and the prospect of a half dozen teams (USC/Penn State/Oklahoma/Texas/TT/Utah, among them) screaming they deserve to play for the National Championship.

If he wants a playoff, maybe the President-elect should get on a plane to Norman, after getting some tips from the Chief Justice on inspiring a team.

Then, after Oklahoma beats Texas Tech, they both can head to Tuscaloosa. They can punish Auburn for the fable it used to steal a game, while ensuring the BCS controversy stays focused on the #2 spot, not the team that's #1.

I’m sure the University of Alabama would be happy to schedule a lecture—right after they go to football practice.

Roll Tide.

November 17, 2008 | Permalink | User Comments (2) | TrackBack (0)

Cuban: Jail, Cubs Unlikely

November 17, 2008 4:04 PM

Mark Cuban, the maverick Dallas Mavericks owner, was hit today by the Securities and Exchange Commission with insider trading charges that could cost him millions in fines and legal fees.

This could mean the final nail in his bid to buy the Chicago Cubs---which, on the bright side, means he’ll avoid a sentence of suffering and heartbreak in Septembers to come.

Also on the bright side: Cuban is unlikely to face prison time. The Justice Department hasn't filed criminal charges along with today's SEC's action. The SEC's civil complaint doesn't carry jail time--only fines and financial penalties. Any criminal charges would come from the Justice Department, which almost always files them at the same time the SEC files its civil complaint.

As a legal matter, DOJ still could bring insider trading charges. But since they weren't announced today with the civil complaint, it's highly unlikely as a practical matter.

Here’s the curious thing: this is a simple, straightforward insider trading case, the kind that typically settles. Cuban could have paid $1.5 million, plus interest, and walked away. His decision to fight it (and the Justice Department’s decision at this point to stay out of it) suggests there may be something for Cuban’s lawyer, prominent former SEC general counsel Ralph Ferrara, to work with.

Based on the complaint and on Cuban’s comments in the past, it seems he will challenge whether he ever agreed to keep confidential the impending stock offering. Cuban sold 600,000 shares of stock in an Internet search engine company after the company’s CEO told him about the upcoming offering.

On his blog today, Cuban blasted the SEC for what he called its “win-at-any-cost ambitions.”
Before that, Cuban’s most recent blog entry was about the Mavericks’ dismal performance, entitled “I Hate to Lose.”

Should be an interesting series.

Here’s the release:
SEC Files Insider Trading Charges Against Mark Cuban
FOR IMMEDIATE RELEASE
2008-273
Washington, D.C., Nov. 17, 2008 — The Securities and Exchange Commission today charged Dallas entrepreneur Mark Cuban with insider trading for selling 600,000 shares of the stock of an Internet search engine company on the basis of material, non-public information concerning an impending stock offering.
The Commission's complaint, filed in the U.S. District Court for the Northern District of Texas, alleges that in June 2004, Mamma.com Inc. invited Cuban to participate in the stock offering after he agreed to keep the information confidential. The complaint further alleges that Cuban knew that the offering would be conducted at a discount to the prevailing market price and that it would be dilutive to existing shareholders.
Within hours of receiving this information, according to the complaint, Cuban called his broker and instructed him to sell Cuban's entire position in the company. When the offering was publicly announced, Mamma.com's stock price opened at $11.89, down $1.215 or 9.3 percent from the prior day's closing price of $13.105. According to the complaint, Cuban avoided losses in excess of $750,000 by selling his stock prior to the public announcement of the offering.
"Insider trading cases are a high priority for the Commission. This case demonstrates yet again that the Commission will aggressively pursue illegal insider trading whenever it occurs," said Linda Chatman Thomsen, Director of the SEC's Division of Enforcement.
Scott W. Friestad, Deputy Director of the SEC's Division of Enforcement, said, "As we allege in the complaint, Mamma.com entrusted Mr. Cuban with nonpublic information after he promised to keep the information confidential. Less than four hours later, Mr. Cuban betrayed that trust by placing an order to sell all of his shares. It is fundamentally unfair for someone to use access to nonpublic information to improperly gain an edge on the market."
The complaint alleges that Cuban violated Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. The Commission's complaint seeks to permanently enjoin Cuban from future violations of the federal securities laws, disgorgement (with prejudgment interest), and a financial penalty.

November 17, 2008 | Permalink | User Comments (2) | TrackBack (0)

Sonar Over Whales

November 12, 2008 12:24 PM

In its first opinion of the term, the Supreme Court has rejected an environmental group's efforts to sharply limit Naval submarine training off the coast of California, saying national security issues strongly outweigh any alleged harm to marine mammals.

The decision, written by Chief Justice John Roberts, allows the Navy to conduct submarine exercises in the Pacific without two conditions imposed by lower courts.

The exercises involve the use of sonar to detect and track enemy submarines. The National Resources Defense Council filed suit to impose conditions, arguing the exercises harm whales and other mammals. Lower courts sided with the NRDC, and required the Navy to take several steps to mitigate any possible harm to the marine life. The Navy challenged two of those conditions as being too disruptive to its required training.

In lifting a lower court order, Roberts wrote: "The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs. Of course, military interests do not always trump other considerations, and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question.

According to our colleague Luis Martinez, the decision has produced "big smiles" up at the Navy offices. The Navy had argued that two of the conditions, including an order that the Navy shut down sonar if it detects a marine mammal within 2,220 feet, would disrupt training exercises.

While the case may not have seemed like a "close question" to five justices, it certainly was to the other four.

The case produced three separate opinions, and a head-count is tricky. (This is a problem we don't usually get until those big end-of-term cases, when we often see justices joining only part of a decision or writing separately.)

Here's how I see it now, after a quick run through: Bottom line: Six of the justices are siding with the Navy, which had challenged two specific conditions on training imposed by lower courts.

The details: Roberts has a five-justice majority for his opinion (Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito).

Justice John Paul Stevens is the wild card: He did not join Roberts' majority opinion, but he nonetheless agreed with the Navy that lower courts had no basis to impose the two stringent conditions on training.

Justice Stephen Breyer sided with the Navy, in part, but would have allowed lower courts to impose some conditions on training while the Navy completed an environmental study.

Justices Ruth Bader Ginsburg wrote a sharp dissent, joined by Justice David Souter, detailing the "likely, substantial harm" to the environment by the Naval training.

You can read more about the case in Ariane de Vogue's story, HERE.

November 12, 2008 | Permalink | User Comments (3) | TrackBack (0)

Rumors of Retirements

November 11, 2008 8:12 AM

The conventional wisdom around Washington for the past year or so is that Barack Obama, if elected president, would nominate at least one or two justices to the Supreme Court.

After all, John Paul Stevens is 88; Ruth Bader Ginsburg is 75. And then there's the eccentric David Souter, who's only 69, but who complains to friends that he hates Washington and just wants to flee home to New Hampshire, where he can wrap himself in scratchy blankets and sit by the fire reading books in his unheated cabin.

But hold on.

Stevens is showing no signs of slowing down. He's as active as ever from the bench, peppering lawyers with astute questions. His colleagues say that in private, he's also as sharp as ever.

Same for Ginsburg, a cancer survivor who stirred retirement talk a couple terms ago when she fell asleep a time or two during an oral argument. When people see her for the first time, they exclaim how she's so petite and frail in her appearance. But she's always been petite and frail in her appearance.

She's focused and engaged during the arguments, asking questions and, as she did yesterday, giving assists to struggling lawyers who are withering under cross-examinations from more conservative justices.

The ever-astute Tony Mauro, who covers the Court for the American Lawyer, has a terrific piece questioning the CW on retirements. Tony gives two examples of Justice Ginsburg shooting down rumors she will be stepping down in an Obama administration. According to Tony's sources (and Tony has very good sources), Ginsburg had this to say at a recent law clerk reunion:

"If anyone asks you, 'when is she retiring,' tell them I have a great role model in Justice Stevens, who is going strong at age 88."

She emphasized her point the week before the election, Tony writes, at the end of a speech at Columbia University.

Ginsburg referred to Justice Louis Brandeis, saying he "became a justice at age 60, as I did. He remained on the bench until age 83. My hope and expectation is to hold my office at least that long."

As Tony points out, Ginsburg would have to stay on the Court until 2016 to realize her hopes.

And Souter, according to some of his colleagues, loves the work and may just be complaining to friends that it's Washington he finds tiresome, as part of his "I'm an eccentric New Englander" persona. His aversion to Washington is not that unusual (just talk to my Chicagoan husband), and it's probably something he can deal with.

Souter leaves DC the second the Court adjourns for the summer to go home (literally, the second. He even has skipped the end-of-term lunch with his colleagues). And he doesn't return until the very first conference in September.

Of course, as we all know, justices can surprise. Liberals don't always retire during Democratic administrations. Sometimes, they step down in Republican ones, and vice versa for their conservative colleagues.

Tony mentions Justice Thurgood Marshall, who was expected to retire in President Carter's term. Instead, Marshall rode it out. Carter didn't get a single nomination, and the liberal lions William Brennan and Marshall both retired in the next administration of Republican George H.W. Bush.

Bush replaced Brennan with Souter, who was believed to be a solid conservative. The next year, he replaced Marshall with Justice Clarence Thomas, achieving real change with his second nomination and, from conservatives' point of view, squandering the first.

A more recent example is Justice Sandra Day O'Connor, who dropped a bombshell with her retirement in 2005, when everyone expected the late Chief Justice William Rehnquist to retire. No one in her inner circle saw that coming, not even her family.

So before Obama's legal team starts looking for a replacement for Stevens (as Bush did, prematurely, for Rehnquist), perhaps it's best to be patient and hope for a second term. He could expand the field of prospects by nominating Supreme Court-quality judges to the appeals court.

After all, Obama is going to face a problem similar to George W. Bush, in that he's looking at eight years of federal appeals court judges nominated by the opposing party. Those Clinton nominees are aging.

And then he could nominate one of his judges to the Supreme Court. It's been done before. In 2005, Bush tapped one of his appellate court nominees to the high court, John G. Roberts.

And Bush likely would have tapped a second in Miguel Estrada. But Democrats -- knowing full well Estrada was likely to be nominated next to the Supreme Court -- decided to head off that fight and block his nomination to the D.C. Circuit.

This much is clear: The real battle in the next year or so is more likely to be over those appellate court nominations. But whether Republicans will filibuster like the Democrats did is anyone's guess -- though mine is that it's highly doubtful.

November 11, 2008 | Permalink | User Comments (21) | TrackBack (0)

A Shortened Life, on Tape

November 10, 2008 3:58 PM

The video of Sara Weir is deeply moving, with photographs and videos of her throughout her life, from infancy to 19. With her mother narrating and soft music playing in the background, Sara -- reserved, modest and shy -- is shown swimming, riding horses and going to school.

One of the last images on the 20-minute video is Sara's grave. She was killed in 1993 by Douglas Kelly, a man she believed was a wealthy Chicagoan who was working as a personal trainer in Burbank, California.

After watching the video, a California jury sentenced Douglas Kelly to death. The California Supreme Court upheld the death sentence, rejecting Kelly's arguments that the video of Sara’s life prejudiced the jury and violated his constitutional rights.

Monday, the U.S. Supreme Court refused to hear his case -- but not before three justices raised concerns about the growing use of videotaped "victim impact evidence" in capital sentencing.

Victim impact evidence has been used in criminal trials since 1991, when the Supreme Court overruled a 1987 case that had categorically prohibited it. In the years since, it has not revisited the issue, and all 37 states with the death penalty allow its use. Most also allow videos, such as the one in Kelly's case, which chronicled Sara's life before he murdered her.

Justice John Paul Stevens dissented in that 1991 case, and he wrote today that he continues to believe that allowing juries to consider such evidence in sentencing is inappropriate. Of the video introduced in Sara’s case, as well as another death penalty case from California, he wrote:

"Their primary, if not sole, effect was to rouse jurors' sympathy for the victims and increase jurors' antipathy for the capital defendants. The videos added nothing relevant to the jury's deliberations and invited a verdict based on sentiment, rather than reasoned judgment."

He also accused the Court of failing to offer guidelines to the lower courts on when it should allow victim impact evidence.

"Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor's side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use," Stevens wrote.

Justice David Souter also objected to the Court's refusal to hear Kelly's case. He voted to allow victim impact evidence back in 1991, when he was a new (and most believed strong conservative) justice. But he wrote separately then to say "evidence about the victim and survivors, and any jury argument predicated on it, can of course be so inflammatory as to risk a verdict impermissibly based on passion, not deliberation."

Justice Stephen Breyer wrote a separate dissent today, explaining why he, too, believed the Court should have taken Kelly's case. He said the Court should "help elucidate constitutional guidelines" on how to draw the line on permissible victim impact evidence.

In weighing Kelly's appeal, the California Supreme Court relied on the 1991 decision in Payne v. Tennessee, in which then-Chief Justice William Rehnquist wrote that prosecutors can present victim impact evidence to remind juries that "the victim is an individual whose death represents a unique lost to society."

In Kelly's case, the state court said trial judges "must be very cautious" about admitting videotaped evidence. It said that the evidence cannot be so irrelevant or inflammatory that it "diverts the jury's attention from its proper role or invites an irrational, purely subjective purpose." It noted that some courts have reached different results, based on whether they believed the video was excessive.

For example, the Idaho Supreme Court recently allowed a four-and-a-half minute video of a murder victim with her young children, while a Massachusetts federal court excluded a 27-minute videotape of another victim's life.

The state court concluded that Sara's video was "not unduly emotional" and "humanized Sara Weir."

"The viewer knew Sara better after viewing the videotape than before, but the tape expressed no outrage over her death, just implied sadness," the state court said. "It contained no clarion call for vengeance."

In his dissent today, Justice Stevens complains that standards are unclear and vary from court to court and state to state. He also suggests the victim impact evidence isn't relevant, because it doesn't address the culpability or character of the defendant or the circumstances of the crime.

In Kelly's case, however, the jury had heard horrific details about his character, culpability and the circumstances of the crime. It heard witness after witness testify about a sociopath who betrayed and raped and robbed multiple women before he killed Sara Weir.

Here's a brief sketch of the picture the witnesses painted of Doug Kelly and the circumstances of the crime:

Sara, who worked at Warner Bros. and lived with a friend, met Doug Kelly at her gym. She was "trusting" and "naïve," and Doug led her to believe he was a part-owner of the gym. He became her personal trainer. He told Sara and other girls at the health club that he was from a wealthy family, and he offered jobs with his "family business."

Kelly was arrested for beating his girlfriend, and she moved out of her apartment in fear. Sometime afterward, Kelly lured Sara to the ex-girlfriend's apartment, where he stabbed her 29 times. He then wrapped her naked body in plastic and stuffed her under the bed of his girlfriend's 10-year-old son.

At trial several other women -- from Florida to New Jersey and over a 10-year period -- testified about how Kelly had lied to them, lured them into his apartment or broken into theirs and then raped them repeatedly.

"Sara's death did not occur in a vacuum. She did not survive her encounter with defendant to tell her story," the California Supreme Court said. "But, fortunately, many others... did survive and can tell their tales."

And Sara's mother, the state court said, could tell the story of Sara's life.

November 10, 2008 | Permalink | User Comments (7) | TrackBack (0)