History > 2005 > USA > Federal justice

In

Terror Cases, Administration Sets the Rules

NYT

26 November 2005

https://www.nytimes.com/2005/11/27/
us/nationalspecial3/in-terror-cases-administration-sets-own-rules.html

Courts Criticize Judges' Handling of Asylum Cases

NYT

26.12.2005

http://www.nytimes.com/2005/12/26/national/26immigration.html

Courts Criticize

Judges' Handling of Asylum Cases

December 26, 2005
The New York Times
By ADAM LIPTAK

Federal appeals court judges around the nation have repeatedly excoriated immigration judges this year for what they call a pattern of biased and incoherent decisions in asylum cases.

In one decision last month, Richard A. Posner, a prominent and relatively conservative federal appeals court judge in Chicago, concluded that "the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice."

Similarly, the federal appeals court in Philadelphia said in September that it had "time and time again" been forced to rebuke immigration judges for their "intemperate and humiliating remarks." Citing cases from around the country, the court wrote of "a disturbing pattern" of misconduct in immigration rulings that sent people back to countries where they had said they would face persecution.

The harsh criticism may stem in part from a surge in immigration cases before the federal appeals courts. Immigration cases, most involving asylum seekers, accounted for about 17 percent of all federal appeals cases last year, up from just 3 percent in 2001. In the courts in New York and California, nearly 40 percent of federal appeals involved immigration cases.

The increase occurred after Attorney General John Ashcroft made changes in 2002 to streamline appellate review within the immigration courts, which are part of the Justice Department.

Many federal appeals court judges say those changes essentially shifted work to their courts. The Justice Department counters that the increase is largely unrelated to the Ashcroft changes and is instead the result of a higher rate of appeals in the courts in New York and California.

Jonathan Cohn, a deputy assistant attorney general in the Justice Department, said the quality of the decisions rendered by the immigration courts on the whole was good, noting that the government won more than 90 percent of the cases in the federal appeals, or circuit, courts.

"The circuit courts do not see any of the tens of thousands of correctly decided cases that aliens choose not to appeal," Mr. Cohn said. "They're only seeing a fraction of the cases, and only a small fraction of those give rise to criticism."

But that criticism can be very sharp, particularly given the temperate language that is the norm in the federal appellate courts.

In the Philadelphia decision in September, Judge Julio M. Fuentes of the United States Court of Appeals for the Third Circuit had this to say about Annie S. Garcy, an immigration judge, or I.J., in Newark: "The tone, the tenor, the disparagement, and the sarcasm of the I.J. seem more appropriate to a court television show than a federal court proceeding."

Judge Garcy ordered Qun Wang returned to China, where he said his wife had been forcibly sterilized. "He's a horrible father as far as the court's concerned," Judge Garcy ruled, saying Mr. Wang was obsessed with having a son and did not pay enough attention to his daughter, who is disabled.

All of that was irrelevant to the issues before Judge Garcy, Judge Fuentes wrote, returning the case to the immigration system for a rehearing before a different judge. "The factual issue before" Judge Garcy, Judge Fuentes wrote, had been only "whether Wang's wife had been forcibly sterilized and whether, if he returned to China, the Chinese government would inflict improper punishment on him for leaving the country."

Through a spokeswoman, Judge Garcy declined to comment.

In another decision, Judge Marsha S. Berzon of the United States Court of Appeals for the Ninth Circuit, in San Francisco, said a decision by Nathan W. Gordon, an immigration judge, was "literally incomprehensible," "incoherent" and "indecipherable." A crucial sentence in Judge Gordon's decision, she said, "defies parsing under ordinary rules of English grammar."

Judge Gordon ordered Ernesto Adolfo Recinos de Leon returned to Guatemala, notwithstanding Mr. Recinos's testimony that he would be persecuted there for his political activities. Judge Berzon sent the case back to the immigration system for another hearing.

Judge Gordon, now retired, did not respond to a request for comment.

A spokesman for the Executive Office for Immigration Review, the unit of the Justice Department responsible for immigration adjudications, declined requests for interviews with officials there but provided answers to written questions.

"We would caution against drawing broad conclusions," the statement said, "from a small number of cases in the federal courts." The nation's roughly 215 immigration judges, the statement continued, "handle more than 300,000 matters every year," and "the vast majority of I.J.'s do an excellent job given such a large caseload."

Denise Noonan Slavin, the president of the National Association of Immigration Judges, a union affiliated with the A.F.L.-C.I.O., said she was concerned about what she called the rising number of "scathing opinions" from federal appeals court judges.

"To go name-calling and having an open season on judges, it's crossing the line of civility," Judge Slavin said. "That is not to say that immigration judges don't make mistakes."

But Lory Diana Rosenberg, a former judge on the administrative body within the Justice Department that reviews decisions from immigration judges before they reach the federal appeals courts, said the recent criticisms were warranted.

"They're a brave, honest and proper reaction," Ms. Rosenberg said, "to a pattern of unfettered misuse of authority."

Mary M. Schroeder, the chief judge of the Ninth Circuit, which hears almost half of all immigration appeals, said the current system was "woefully inadequate."

Immigration judges, she said, "are very unevenly qualified, and they work under very bad conditions."

The people who appear before immigration judges often do not speak English, and their cases often turn in part on changing political and social conditions around the world. In a decision in March, Judge Posner wrote that immigration judges' "lack of familiarity with relevant foreign cultures" was "disturbing."

Judge Slavin, who sits in Miami, disagreed, saying she and her colleagues often had a sophisticated understanding of conditions in the most relevant countries, which are China for immigration judges in New York and Philadelphia; Eastern Europe for those in Chicago; Haiti, Columbia and Venezuela for those in Miami; and Central and South America for those in California.

"I know more about Haitian politics than the people coming before me," Judge Slavin said. But she acknowledged both the difficulty and the importance of her work.

"Immigration law can be life-or-death decisions in terms of whether you're going to send someone back to a place where they may be killed," Judge Slavin said. "I have over 1,000 cases on my docket. Most of us do about four decisions a day. In Texas, on the border, you might get 10 a day."

Judges at the top and bottom of the system blame the administrative body between them, the Board of Immigration Appeals, for the surge in appeals and the mixed quality of the decisions reaching the federal appeals courts. The board is meant to act as a filter, correcting erroneous or intemperate decisions from the immigration judges and providing general guidance. The losing party can appeal the board's decision to the federal courts.

But the board largely stopped reviewing immigration cases in a meaningful way after it was restructured by Mr. Ashcroft in 2002, several judges said.

Mr. Ashcroft reduced the number of judges on the board to 11 from 23. "They just hacked off all the liberals is basically what they did," said Ms. Rosenberg, who served on the board from 1995 to 2002.

Mr. Ashcroft also expanded the number of appeals heard by a single board member and encouraged the use of one-word affirmances in appropriate cases.

The goal of the changes, Mr. Ashcroft said, was streamlining. The board had a backlog of more than 56,000 cases, which fell to 32,000 by September 2004.

At a conference at New York Law School in September, John M. Walker Jr., the chief judge of the United States Court of Appeals for the Second Circuit, in New York, said the changes at the board level served to transfer its backlog to his court and other federal appeals courts.

"He just moved the problem from one court to another court," Judge Walker said of Mr. Ashcroft.

In the two and a half years after April 2002, said John R. B. Palmer, a staff lawyer at the Second Circuit, his court received twice as many appeals from immigration board decisions as it had in the previous 30 years combined.

Several federal appeals court judges said they were frustrated by the quality of the board's review of decisions from immigration judges.

In his March decision, Judge Posner wrote that the board often affirmed "either with no opinion or with a very short, unhelpful, boilerplate opinion even when" the immigration judge had committed "manifest errors of fact and logic."

As a consequence, Judge Walker said, "We're the first meaningful review that the petitioner has."

In its statement, the immigration review office said "we absolutely disagree" with Judge Walker's comment. "Each decision that comes before the board is carefully reviewed by a staff attorney and at least one board member," the statement said.

According to the office, the number of one-word affirmances dropped this year, to about 20 percent from about a third in previous years.

The solution to some of what recent criticisms identified as problems, several federal appeals court judges said, is to add positions to the immigration board and to require judges there to explain the reasons for their decisions.

"At least write a couple of pages, three pages," said Jon O. Newman, a judge on the Second Circuit. "It would really help us."

An article to be published early next year in the Georgetown Immigration Law Journal concludes that the shift toward the federal appeals court "was triggered by the high volume of B.I.A. decisions issued starting in March 2002, and a general dissatisfaction with the B.I.A.'s review."

In its statement, the immigration review office disagreed.

"The surge in federal appeals," the statement said, "is not related to the board's increased number of decisions but the rate of appeal." In some parts of the country, immigrants appeal only 7 percent of the time, the statement said. In the states covered by the federal appeals courts in New York and California, the appeals rate is now more than 30 percent.

At an argument in an appeal of an immigration case in September in Chicago, the three judges on the panel expressed exasperation with the current state of affairs.

"Does the Justice Department have any idea of what is happening to your cases in this court?" Judge Posner asked Cindy S. Ferrier, the government lawyer defending the decision of the immigration judge.

She said yes.

A second judge, Ilana Rovner, offered Ms. Ferrier a measure of sympathy.

"It is so cruel to send a lovely human being like you in here to be a messenger of such madness, such nonsense," Judge Rovner said.

Courts Criticize Judges' Handling of Asylum Cases, NYT, 26.12.2005, http://www.nytimes.com/2005/12/26/national/26immigration.html

US spy court judge quits

amid spying debate - WPost

Wed Dec 21, 2005
12:58 AM ET
Reuters

WASHINGTON (Reuters) - A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of U.S. President George W. Bush's authorization of a domestic spying program, The Washington Post reported on Wednesday.

Citing two sources, the newspaper reported U.S. District Judge James Robertson, one of 11 members of the Foreign Intelligence Surveillance Court, known as FISA, sent his resignation to Chief Justice John Roberts on Monday.

The Post said the resignation letter gave no explanation for Robertson stepping down. Robertson declined comment when reached on Tuesday, the newspaper said.

Robertson is considered a liberal judge who has often ruled against the Bush administration's assertions of broad powers in the terrorism fight, the Post said.

Revelation that authorized domestic spying on Americans suspected of terrorists links without court approval spurred considerable debate among federal judges, including some on the FISA Court, The Washington Post said.

The Post said Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless National Security Agency surveillance could have then been used to obtain FISA warrants.

FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the NSA spying program, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring, the Post said.

"They just don't know if the product of wiretaps were used for FISA warrants -- to kind of cleanse the information," one source, who spoke on the condition of anonymity, was quoted as saying.

Robertson was appointed to the federal bench in Washington by President Bill Clinton in 1994. He was later selected by then-Chief Justice William Rehnquist to serve on the FISA court, the Post said.

    US spy court judge quits amid spying debate - WPost, R, 21.12.2005, http://today.reuters.com/news/NewsArticle.aspx?type=topNews&storyID=2005-12-21T055844Z_01_ROB121499_RTRUKOT_0_TEXT0.xml&related=true

Judge Bars 'Intelligent Design'

From Pa. Classes

December 20, 2005
By THE ASSOCIATED PRESS
The New York Times

HARRISBURG, Pa. -- "Intelligent design" cannot be mentioned in biology classes in a Pennsylvania public school district, a federal judge said Tuesday, ruling in one of the biggest courtroom clashes on evolution since the 1925 Scopes trial.

Dover Area School Board members violated the Constitution when they ordered that its biology curriculum must include the notion that life on Earth was produced by an unidentified intelligent cause, U.S. District Judge John E. Jones III said. Several members repeatedly lied to cover their motives even while professing religious beliefs, he said.

The school board policy, adopted in October 2004, was believed to have been the first of its kind in the nation.

"The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy," Jones wrote.

The board's attorneys had said members were seeking to improve science education by exposing students to alternatives to Charles Darwin's theory that evolution develops through natural selection. Intelligent-design proponents argue that the theory cannot fully explain the existence of complex life forms.

The plaintiffs challenging the policy argued that intelligent design amounts to a secular repackaging of creationism, which the courts have already ruled cannot be taught in public schools. The judge agreed.

"We find that the secular purposes claimed by the Board amount to a pretext for the Board's real purpose, which was to promote religion in the public school classroom," he wrote in his 139-page opinion.

The Dover policy required students to hear a statement about intelligent design before ninth-grade biology lessons on evolution. The statement said Charles Darwin's theory is "not a fact" and has inexplicable "gaps." It refers students to an intelligent-design textbook, "Of Pandas and People," for more information.

Jones wrote that he wasn't saying the intelligent design concept shouldn't be studied and discussed, saying its advocates "have bona fide and deeply held beliefs which drive their scholarly endeavors."

But, he wrote, "our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom."

The controversy divided the community and galvanized voters to oust eight incumbent school board members who supported the policy in the Nov. 8 school board election.

Said the judge: "It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy."

The board members were replaced by a slate of eight opponents who pledged to remove intelligent design from the science curriculum.

Eric Rothschild, the lead attorney for the families who challenged the policy, called the ruling "a real vindication for the parents who had the courage to stand up and say there was something wrong in their school district."

Richard Thompson, president and chief counsel of the Thomas More Law Center in Ann Arbor, Mich., which represented the school board, did not immediately return a telephone message seeking comment.

The dispute is the latest chapter in a long-running debate over the teaching of evolution dating back to the famous 1925 Scopes Monkey Trial, in which Tennessee biology teacher John T. Scopes was fined $100 for violating a state law that forbade teaching evolution. The Tennessee Supreme Court reversed his conviction on a technicality, and the law was repealed in 1967.

Jones heard arguments in the fall during a six-week trial in which expert witnesses for each side debated intelligent design's scientific merits. Other witnesses, including current and former school board members, disagreed over whether creationism was discussed in board meetings months before the curriculum change was adopted.

The case is among at least a handful that have focused new attention on the teaching of evolution in the nation's schools.

Earlier this month, a federal appeals court in Georgia heard arguments over whether evolution disclaimer stickers placed in a school system's biology textbooks were unconstitutional. A federal judge in January ordered Cobb County school officials to immediately remove the stickers, which called evolution a theory, not a fact.

In November, state education officials in Kansas adopted new classroom science standards that call the theory of evolution into question.

    Judge Bars 'Intelligent Design' From Pa. Classes, NYT, 20.12.2005, http://www.nytimes.com/2005/12/20/science/sciencespecial2/20cnd-evolution.html

Judge Declares Mistrial

in First Federal Trial on Vioxx

December 12, 2005
The New York Times
By JENNIFER BAYOT

The third trial to question the safety of the painkiller Vioxx ended today in a mistrial as jurors declared themselves unable to reach a verdict on the liability of the drug's maker, Merck & Company.

The mistrial points to the willingness of at least some jurors to trace serious health problems to even short-term use of the drug, raising concerns for Merck as it faces thousands of similar lawsuits. Because the case centered on a patient who had taken Vioxx for barely a month, legal analysts had doubted that the science would strongly connect the drug to the man's death.

Wall Street, at least initially, treated the mistrial as a loss for the company, sending shares of Merck down $1, or 3.4 percent, on the New York Stock Exchange.

Merck said in a statement that it was prepared for a retrial if necessary and reiterated its position in the case: "We believe that Mr. Irvin would have suffered a heart attack when he did, whether he was taking Vioxx or not."

Philip Beck, Merck's lead lawyer, described the case as inherently difficult for a jury to decide. "Any case where you have a death involved is by definition a difficult case," he said. "Also, in federal court, you have the requirement of a unanimous verdict. When you put those two together, any case is going to be hard to win."

"We thought that we put on a fine case," showing that the patient's small doses could not have caused his death, Mr. Beck said.

The five men and four women of the jury started deliberating on Friday afternoon and continued through Saturday in Houston, where the case had been moved from New Orleans after Hurricane Katrina. After the jury told him they were deadlocked, Judge Eldon E. Fallon of the Eastern District of Louisiana delivered a set of instructions, known as an Allen charge, designed to prod the jurors toward a verdict. It apparently fell short.

Judge Fallon declared a mistrial this morning, thanked the five men and four women of the jury for their time and said that Merck could seek to retry the case or to reach a settlement with the plaintiff, the patient's widow.

The judge's ruling did not appear to be related to the plaintiff's motion on Saturday for a mistrial based on a recent article in the New England Journal of Medicine. The influential journal claimed that Merck had improperly withheld crucial information from a Vioxx study published in November 2000, including the total number of heart attacks suffered by patients taking the drug.

Mr. Beck said today that Merck strongly disputed the journal's article, which was published last Thursday, and he predicted that the accusations would have no bearing on future lawsuits. The mistrial leaves Merck with one win and one loss in its legal campaign to defend its decision to market Vioxx, once a popular painkiller for chronic conditions like arthritis. In August, the company stunned investors by losing a state trial in South Texas, but it successfully defended itself last month in a New Jersey state court.

The lack of a decision today in Houston could bolster the remaining cases over Vioxx, which was taken by roughly 20 million between 1999 and 2004. More than 6,400 state and federal lawsuits have been filed over the drug, and thousands more are expected.

Merck, the country's third-largest drug company, pulled the drug off the market in September 2004 after a long-term study suggested that it increased the risk of strokes and heart attacks if taken for 18 months or longer.

But this most recent case centered on a man who had died after taking the drug about a month. Richard Irvin Jr., the manager of a seafood wholesaler in St. Augustine, Fla., had been using Vioxx for back pain when he was found dead at his desk in May 2001. He was 53.

His widow filed the current lawsuit, which was considered weaker than the case won by Merck last month in New Jersey. There the plaintiff was Frederick Humeston, a 60-year-old postal worker who had suffered a heart attack in September 2001 after taking Vioxx for two months. He survived and testified. Jurors voted 8 to 1 in favor of Merck.

In the first case to go to trial, the plaintiff was the widow of Robert C. Ernst, a 59-year-old marathon runner who had taken the drug for about seven months. The jurors in that case voted 10 to 2 to find Merck liable for the death of Mr. Ernst and awarded Mrs. Ernst $253 million, which was reduced to $26 million under the limits in Texas law. The verdict sent Merck's stock tumbling almost 8 percent that day. The company plans to appeal the case.Merck has said that it will defend itself in every lawsuit against it, but the potential legal liability is weighing on the company at a time when its lineup of exclusive prescription drugs is dwindling. Based in Whitehouse Station, N.J., the company last month announced plans to cut 7,000 jobs, or about 11 percent of its workforce, and to close five of its 31 factories in order to cut costs.

The lawsuits also reflect growing public mistrust in Merck and other big drug makers. The lead plaintiff's lawyer in this most recent case, Andy Birchfield of Montgomery, Ala., asserted during opening statements on Nov. 30 that the company had ignored in-house scientists who had warned of Vioxx's cardiovascular risks and instead made a "premeditated financial decision" not to publicize the drug's risks, according to The Associated Press. Vioxx had annual sales of $2.5 billion until it was withdrawn.

Merck argued that Mr. Irvin had several longstanding conditions, like clogged arteries, that put him at risk of heart attack.

"If a retrial is scheduled we will be right back with the same facts," Kenneth C. Frazier, Merck's general counsel, said today in a statement. "The Vioxx litigation will go on for years. We have the resources and the resolve to address these cases, one by one, in a reasonable and responsible manner."

The next trial over Vioxx's safety is scheduled to begin on Jan. 9 in a New Jersey state court in Atlantic City. Presiding over the case will be Judge Carol E. Higbee, who oversaw Mr. Humeston's case and will oversee more than 2,900 cases filed against Merck in New Jersey. W. Mark Lanier, the plaintiffs' lawyer in the first trial, said in November that he had been asked to lead the case and planned to do so.

    Judge Declares Mistrial in First Federal Trial on Vioxx, NYT, 12.12.2005, http://www.nytimes.com/2005/12/12/business/12cnd-vioxx.html

Judge Orders

Extension of FEMA Hotel Plan

December 12, 2005
By THE ASSOCIATED PRESS
Filed at 12:45 p.m. ET
The New York Times

NEW ORLEANS (AP) -- A program that put Hurricane Katrina evacuees in hotels at government expense while they sought other housing must be extended until Feb. 7, a month beyond the deadline set by the Federal Emergency Management Agency, a federal judge ruled Monday.

Judge Stanwood Duval's temporary restraining order came in a class action lawsuit filed in November by advocates for hurricane victims. Attorneys pressing the lawsuit said FEMA should not be allowed to end the hotel program because it has failed to provide other housing aid, such as rental assistance checks, to many victims who qualify for it.

Also, information on how to apply for the aid has been slow to reach those who need it most, the attorneys said.

FEMA continues to pick up the tab for an estimated 41,000 hotel rooms in 47 states and the District of Columbia at an estimated cost so far of about $350 million.

Howard Godnick, one of the lawyers who filed the lawsuit, said the ruling will ease the burden on Katrina victims stuck in hotels and unable to find other housing.

''The court has ruled that during the cold months of winter and with all of America, and particularly landlords, taking a holiday break, the law requires that a victim be given an opportunity to find housing,'' Godnick said in a telephone interview from his New York office.

FEMA ''will review the judge's decision and continue to reach out to help those evacuated get the help they need as they get back on their feet,'' said agency spokeswoman Nicol Andrews.

She also noted the agency adjusted its housing policy this weekend to ''help us identify all of those that are eligible as we continue offering assistance to evacuees.''

FEMA had set a Dec. 1 deadline for ending the hotel program but extended it to Dec. 15 after widespread criticism. In addition, 10 states -- Alabama, Arkansas, California, Florida, Georgia, Louisiana, Mississippi, Nevada, Tennessee and Texas -- were allowed to apply for extensions that effectively stretched the deadline to Jan. 7 for most evacuees.

But lawyers for evacuees said victims often got conflicting information about when they would have to leave. And, at a hearing on Friday, one hotel occupant, Lenora Brantley, said she received a letter dated Dec. 2 telling her she could stay in her hotel room until Jan. 7. Later she got a Dec. 5-dated letter telling her she would have to leave by Dec. 15.

''It is unimaginable what anxiety and misery these erratic and bizarre vacillations by FEMA have caused these victims, all of whom, for at least one point in time, had the very real fear of being without shelter for Christmas,'' Duval said in his 27-page ruling.

Duval's ruling also states that victims who receives FEMA rental assistance in the coming weeks shall be allowed to remain in hotels at government expense for up to two weeks while searching for a place to live, although in no case would they be allowed to stay past Feb. 7.

Associated Press reporter Lara Jakes Jordan

in Washington contributed to this story.

    Judge Orders Extension of FEMA Hotel Plan, NYT, 12.12.2005, http://www.nytimes.com/aponline/national/AP-FEMA-Hotels.html

Live Tracking of Mobile Phones

Prompts Court Fights on Privacy

December 10, 2005
The New York Times
By MATT RICHTEL

Most Americans carry cellphones, but many may not know that government agencies can track their movements through the signals emanating from the handset.

In recent years, law enforcement officials have turned to cellular technology as a tool for easily and secretly monitoring the movements of suspects as they occur. But this kind of surveillance - which investigators have been able to conduct with easily obtained court orders - has now come under tougher legal scrutiny.

In the last four months, three federal judges have denied prosecutors the right to get cellphone tracking information from wireless companies without first showing "probable cause" to believe that a crime has been or is being committed. That is the same standard applied to requests for search warrants.

The rulings, issued by magistrate judges in New York, Texas and Maryland, underscore the growing debate over privacy rights and government surveillance in the digital age.

With mobile phones becoming as prevalent as conventional phones (there are 195 million cellular subscribers in this country), wireless companies are starting to exploit the phones' tracking abilities. For example, companies are marketing services that turn phones into even more precise global positioning devices for driving or allowing parents to track the whereabouts of their children through the handsets.

Not surprisingly, law enforcement agencies want to exploit this technology, too - which means more courts are bound to wrestle with what legal standard applies when government agents ask to conduct such surveillance.

Cellular operators like Verizon Wireless and Cingular Wireless know, within about 300 yards, the location of their subscribers whenever a phone is turned on. Even if the phone is not in use it is communicating with cellphone tower sites, and the wireless provider keeps track of the phone's position as it travels. The operators have said that they turn over location information when presented with a court order to do so.

The recent rulings by the magistrates, who are appointed by a majority of the federal district judges in a given court, do not bind other courts. But they could significantly curtail access to cell location data if other jurisdictions adopt the same reasoning. (The government's requests in the three cases, with their details, were sealed because they involve investigations still under way.)

"It can have a major negative impact," said Clifford S. Fishman, a former prosecutor in the Manhattan district attorney's office and a professor at the Catholic University of America's law school in Washington. "If I'm on an investigation and I need to know where somebody is located who might be committing a crime, or, worse, might have a hostage, real-time knowledge of where this person is could be a matter of life or death."

Prosecutors argue that having such information is crucial to finding suspects, corroborating their whereabouts with witness accounts, or helping build a case for a wiretap on the phone - especially now that technology gives criminals greater tools for evading law enforcement.

The government has routinely used records of cellphone calls and caller locations to show where a suspect was at a particular time, with access to those records obtainable under a lower legal standard. (Wireless operators keep cellphone location records for varying lengths of time, from several months to years.)

But it is unclear how often prosecutors have asked courts for the right to obtain cell-tracking data as a suspect is moving. And the government is not required to report publicly when it makes such requests.

Legal experts say that such live tracking has tended to happen in drug-trafficking cases. In a 2003 Ohio case, for example, federal drug agents used cell tracking data to arrest and convict two men on drug charges.

Mr. Fishman said he believed that the number of requests had become more prevalent in the last two years - and the requests have often been granted with a stroke of a magistrate's pen.

Prosecutors, while acknowledging that they have to get a court order before obtaining real-time cell-site data, argue that the relevant standard is found in a 1994 amendment to the 1986 Stored Communications Act, a law that governs some aspects of cellphone surveillance.

The standard calls for the government to show "specific and articulable facts" that demonstrate that the records sought are "relevant and material to an ongoing investigation" - a standard lower than the probable-cause hurdle.

The magistrate judges, however, ruled that surveillance by cellphone - because it acts like an electronic tracking device that can follow people into homes and other personal spaces - must meet the same high legal standard required to obtain a search warrant to enter private places.

"Permitting surreptitious conversion of a cellphone into a tracking device without probable cause raises serious Fourth Amendment concerns, especially when the phone is monitored in the home or other places where privacy is reasonably expected," wrote Stephen W. Smith, a magistrate in Federal District Court in the Southern District of Texas, in his ruling.

"The distinction between cell site data and information gathered by a tracking device has practically vanished," wrote Judge Smith. He added that when a phone is monitored, the process is usually "unknown to the phone users, who may not even be on the phone."

Prosecutors in the recent cases also unsuccessfully argued that the expanded police powers under the USA Patriot Act could be read as allowing cellphone tracking under a standard lower than probable cause.

As Judge Smith noted in his 31-page opinion, the debate goes beyond a question of legal standard. In fact, the nature of digital communications makes it difficult to distinguish between content that is clearly private and information that is public. When information is communicated on paper, for instance, it is relatively clear that information written on an envelope deserves a different kind of protection than the contents of the letter inside.

But in a digital era, the stream of data that carries a telephone conversation or an e-mail message contains a great deal of information - like when and where the communications originated.

In the digital era, what's on the envelope and what's inside of it, "have absolutely blurred," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, a privacy advocacy group.

And that makes it harder for courts to determine whether a certain digital surveillance method invokes Fourth Amendment protections against unreasonable searches.

In the cellular-tracking cases, some legal experts say that the Store Communications Act refers only to records of where a person has been, i.e. historical location data, but does not address live tracking.

Kevin Bankston, a lawyer for the Electronic Frontier Foundation, a privacy advocacy group that has filed briefs in the case in the Eastern District of New York, said the law did not speak to that use. James Orenstein, the magistrate in the New York case, reached the same conclusion, as did Judge Smith in Houston and James Bredar, a magistrate judge in the Federal District Court in Maryland.

Orin S. Kerr, a professor at the George Washington School of Law and a former trial attorney in the Justice Department specializing in computer law, said the major problem for prosecutors was Congress did not appear to have directly addressed the question of what standard prosecutors must meet to obtain cell-site information as it occurs.

"There's no easy answer," Mr. Kerr said. "The law is pretty uncertain here."

Absent a Congressional directive, he said, it is reasonable for magistrates to require prosecutors to meet the probable-cause standard.

Mr. Fishman of Catholic University said that such a requirement could hamper law enforcement's ability to act quickly because of the paperwork required to show probable cause. But Mr. Fishman said he also believed that the current law was unclear on the issue.

Judge Smith "has written a very, very persuasive opinion," Mr. Fishman said. "The government's argument has been based on some tenuous premises." He added that he sympathized with prosecutors' fears.

"Something that they've been able to use quite successfully and usefully is being taken away from them or made harder to get," Mr. Fishman said. "I'd be very, very frustrated."

Live Tracking of Mobile Phones Prompts Court Fights on Privacy, NYT, 10.12.2005, http://www.nytimes.com/2005/12/10/technology/10phone.html

Judges Weigh

Hedge Funds vs. the S.E.C.

December 10, 2005
The New York Times
By STEPHEN LABATON

WASHINGTON, Dec. 9 - A federal appeals court on Friday sharply questioned the Securities and Exchange Commission's plan to tighten oversight of hedge funds.

The outcome of the closely watched case will determine whether the agency will be able to oversee many hedge funds as the business is growing rapidly, with big investors from university endowments to pension plans pouring billions of dollars into the funds. The notable troubles of some hedge funds - most recently the collapse of Bayou, a Connecticut hedge fund, this summer - have inspired calls for greater regulation.

The outcome of a case cannot always be predicted based on questions posed by judges in oral arguments. But the dialogue on Friday involving two of the three federal appeals judges and the lawyers suggested that a majority of this panel had significant questions about the way the commission has sought to impose new oversight on a business that now accounts for an estimated 10 to 20 percent of all stock trading volume in the United States.

The lawsuit was filed by Phillip Goldstein, a hedge fund adviser from Pleasantville, N.Y.; Opportunity Partners, a hedge fund partnership; and its general partner, Kimball & Winthrop.

They have maintained that the commission's decision to broaden its oversight of hedge funds - sophisticated pools of assets that are not marketed and are typically open only to wealthy investors - exceeded its authority and that only Congress, where the hedge fund business has more allies than the commission, may make the changes that the agency is planning to impose.

The lawyers and judges taking part in the oral arguments focused largely on statutory interpretation rather than broad financial policy questions, and in so doing, shifted the battle to a more friendly terrain for a business that is barely regulated.

Jacob H. Stillman, the solicitor of the commission, maintained that the agency was well within its authority when it decided to make a change of its interpretation of the word "client" in the Investment Company Act of 1940 to force more than 1,000 hedge fund advisers to register with the agency and be subject to government inspections.

The law exempts from registration advisers with fewer than 15 clients, but does not explicitly define the word "client." Last year, the agency changed its definition of "client" to count the investors of a fund rather than only the fund itself, thereby sweeping virtually every hedge fund under its regulatory umbrella.

"It is not clear from the statute who the client is," Mr. Stillman said. "Because of that, it is permissible for the agency" to define the term, and to re-examine that definition in light of changes in the marketplace.

But two members of the United States Court of Appeals for the District of Columbia, Senior Judge Harry T. Edwards and Judge A. Raymond Randolph, repeatedly challenged that assertion.

"You can't come in and say we will make 'client' whoever you want it to be," Judge Edwards said impatiently and dismissively to Mr. Stillman. "We have to test your thesis, and your thesis does not hold up."

Moments later, Judge Randolph asked for the policy on the exemptions, suggesting that the commission's new interpretation was out of step with the intent of Congress. He also repeatedly pressed Mr. Stillman about the broader implications of having different definitions of the term "client" in the same law.

Mr. Stillman, a seasoned appeals court litigant, appeared unfazed by the questions and carefully guided the judges through the history and purposes of the complex regulatory regime.

The panel's third member, Judge Thomas B. Griffith, pressed an industry lawyer, Philip D. Bartz, for support of his legal argument about the proper way to interpret the word "client" and suggested that the squabbling over legislative interpretation was less important than giving the agency the tools necessary to detect financial chicanery. He also suggested that the agency and Congress should set policy, not the courts.

"What's more important," Judge Griffith asked Mr. Bartz, "the concept of client or for them to root out fraud?"

The rules, which will go into effect in February, will require advisers of hedge funds to register with the agency and will set up a significant new regulatory arrangement that will enable the agency to examine many funds that now operate outside of any government oversight.

A bitterly divided commission adopted them last year after the agency's chairman, William H. Donaldson, and its two Democratic members concluded that it was untenable for the rapidly growing industry to have little oversight, particularly since the collapse of one large hedge fund could pose large problems for the markets and financial system.

But the agency's two other Republican members, who remain on the commission, as well as the chairman of the Federal Reserve, Alan Greenspan, have said that the new regulations are unnecessary and possibly counterproductive.

The agency's new chairman, Christopher Cox, said recently that he would not seek to overturn the policy initiatives of his predecessor, including the new hedge fund rules, even though Mr. Cox had a strong deregulatory bent as an influential member of Congress.

"Another thing that won't change under my chairmanship is the commission's recent rule-making," Mr. Cox said in a speech last month before the Securities Industry Association. "The confirmation of a new chairman ought not to be a signal to reopen and contest every prior commission enactment."

He said the new rule "antedates my chairmanship."

"It's scheduled to go into effect in February 2006 - and it will," he added. "It is my conviction that consistency and clarity in rule-making and enforcement are essential."

A spokesman for the agency, John J. Nestor, said that of the 9,000 investment advisers already registered with the Securities and Exchange Commission, 47 percent manage hedge funds either directly or indirectly through affiliates. He said that officials estimate an additional 1,100 would be required to register by the time the new rule takes effect in February.

The agency is expecting many of the registration forms to be filed this month, and Mr. Nestor said that it would be using an inspection force of about 420 people, now being trained.

    Judges Weigh Hedge Funds vs. the S.E.C.,  NYT, 10.12.2005, http://www.nytimes.com/2005/12/10/politics/10hedge.html

Appeals Court Is Asked

to Reject Rule

on Regional Vehicle Recalls

December 10, 2005
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON, Dec. 9 (AP) - A federal appeals court was asked on Friday to nullify a rule that allows the government's highway safety agency to limit some vehicle recalls by region.

Public Citizen and the Center for Auto Safety challenged a National Highway Traffic Safety Administration policy that allows automakers to conduct recalls involving defects related to regional conditions like snow or heat.

Bonnie Robin-Vergeer, a lawyer for the groups, said a 1998 letter that the federal agency sent to manufacturers clarifying its policies should be considered a rule change requiring public comment. Ms. Robin-Vergeer said it violated a federal law requiring that all owners be notified of vehicle recalls regardless of where they lived or where the vehicle was registered.

"It reads like a regulation, and it is a de facto regulation," she said. "Automakers have been adhering to it."

But Jane Lyons, an assistant United States attorney, said the letter did not "provide any real binding criteria" forcing manufacturers to follow the recommendations. Ms. Lyons said that regional recalls involved only about 1 percent of all recalls and that regional recalls had been used since the mid-1980's.

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit questioned the significance of the letter and the role of its author, the agency's associate administrator. The judges tried to learn if the letter represented a final policy rule or if it offered automakers general guidance.

"It sounds like a policy statement," Judge Harry T. Edwards said.

In September 2004, the Federal District Court here dismissed the group's lawsuit, leading to the appeal.

The lower court said the letter was not a rule change but simply gave guidelines for regional recalls.

Appeals Court Is Asked to Reject Rule on Regional Vehicle Recalls, NYT, 10.12.2005, http://www.nytimes.com/2005/12/10/national/10recall.html

Professor in Terror Case

May Face Deportation

December 8, 2005
The New York Times
By ERIC LICHTBLAU

WASHINGTON, Dec. 7 - Stunned by the acquittal of a former Florida professor on terrorism charges, federal law enforcement officials said Wednesday that they might seek to have him deported to the Middle East.

Federal prosecutors said they might still decide to retry the former professor, Sami al-Arian, on some or all of the nine criminal counts on which a federal jury in Tampa deadlocked on Tuesday.

But if the government opts not to retry him, officials said, they would probably bring separate immigration charges that could result in Mr. Arian's deportation - and which would require the government to meet a lower burden of proof against him.

Federal law enforcement officials were still trying to figure out Wednesday what went wrong in a case that was more than a decade in the making.

After a five-month trial, the jury did not return any guilty verdicts against Mr. Arian or his three co-defendants on 51 criminal counts regarding accusations that they ran a North American front for Palestinian terrorists. Mr. Arian, whose vocal support for militant Palestinian causes had put him under American surveillance since the early 1990's, was acquitted on eight counts against him, and the jury deadlocked on nine others.

Muslims in Florida and around the country celebrated the verdicts, and defense lawyers said the jury's decision reflected the weakness of a case that they said relied on guilt by association. But law enforcement officials said they remained confident that Mr. Arian represented a clear danger.

"It is very easy for those watching from the sideline to act as Monday morning quarterbacks when things don't go as anticipated," said a senior Justice Department official who spoke on the condition of anonymity because the case was pending.

"The reality is there are a lot of different reasons juries decide cases the way they do," the official said. "In this instance, what seems to be getting lost is that there are three serious charges against al-Arian still on the table" on which the jury deadlocked, related to aiding terrorist attacks through the Palestinian Islamic Jihad.

Another law enforcement official in Washington, also speaking on the condition of anonymity because the case is continuing, said "many people still can't believe he was acquitted."

The official added, "It's tough to know who's at fault, but everyone is formulating legal strategies as to how we move forward, and the question now is, Do we deport the guy if he's not recharged?"

Mr. Arian, a former professor of computer engineering at the University of South Florida, is already being held on what is known as an immigration detainer, which serves as a backstop to criminal charges.

Born in Kuwait, he is a permanent resident of the United States but has no formal citizenship, and his lawyers consider him a "stateless Palestinian."

A possible destination if he is deported could be Egypt, where he has family, officials said. But his past could make it difficult to find a country willing to accept him and could set the stage for a repeat of the lengthy battle of his wife's brother, Mazen al-Najjar, who was deported from Florida in 2002 because of his ties to Palestinian militants.

William Moffitt, one of Mr. Arian's lawyers, said he was hopeful that the government would not seek to deport Mr. Arian or try him again on criminal charges. After nearly three years in jail under difficult conditions, Mr. Moffitt said, "this man has suffered enough, and I would hope the government would say enough is enough."

But he acknowledged that deportation "right now is certainly a concern that worries me."

Linda Moreno, another lawyer for Mr. Arian, said interviews with several jurors indicated that even on those counts on which they were deadlocked, they were leaning strongly toward acquittal. That underscored the weakness of the Justice Department's case, Ms. Moreno said, adding that "we hope the government is listening."

David Cole, a Georgetown University law professor who represented Mr. Arian's brother-in-law in the earlier deportation case, said the government could have a somewhat easier time deporting Mr. Arian because of changes imposed by Congress this year that make associating with a banned or terrorist group a deportable offense.

But "if he decides he wants to stay in the country," Mr. Cole added, "it will be a contentious immigration case, because at the end of the day you're trying to deport a permanent resident who has not been convicted of any crime based on his political affiliations alone, and that raises serious constitutional questions."

The jury's decisions came two weeks after the Bush administration, reversing course, decided not to continue holding Jose Padilla, once a suspect in a plot to detonate a dirty bomb, as an enemy combatant in a military brig and said it would instead try him in a criminal court on narrower charges.

That decision, coupled with the setback in the Arian case, prompted some legal analysts to question the ability of the Justice Department to bring complicated terrorism cases in traditional legal settings. But the department pointed to recent convictions in Virginia, New York and elsewhere as evidence that its strategies were working.

Professor in Terror Case May Face Deportation, NYT, 8.12.2005, http://www.nytimes.com/2005/12/08/national/nationalspecial3/08terror.html

Not Guilty Verdicts

in Florida Terror Trial

Are Setback for U.S.

December 7, 2005
The New York Times
By ERIC LICHTBLAU

WASHINGTON, Dec. 6 - In a major defeat for law enforcement officials, a jury in Florida failed to return guilty verdicts Tuesday on any of 51 criminal counts against a former Florida professor and three co-defendants accused of operating a North American front for Palestinian terrorists.

The former professor, Sami al-Arian, a fiery advocate for Palestinian causes who became a lightning rod for criticism nationwide over his vocal anti-Israeli stances, was found not guilty on eight criminal counts related to terrorist support, perjury and immigration violations.

The jury deadlocked on the remaining nine counts against him after deliberating for 13 days, and it did not return any guilty verdicts against the three other defendants in the case.

"This was a political prosecution from the start, and I think the jury realized that," Linda Moreno, one of Mr. Arian's defense lawyers, said in a telephone interview. "They looked over at Sami al-Arian; they saw a man who had taken unpopular positions on issues thousands of miles away, but they realized he wasn't a terrorist. The truth is a powerful thing."

Federal officials in Washington expressed surprise at the verdict in a case they had pursued for years.

The trial, lasting more than five months, hinged on the question of whether Mr. Arian's years of work in the Tampa area in support of Palestinian independence crossed the threshold from protected free speech and political advocacy to illegal support for terrorists.

Prosecutors, who had been building a case against Mr. Arian for 10 years, relied on some 20,000 hours of taped conversations culled from wiretaps on Mr. Arian and his associates. Officials said he had helped finance and direct terrorist attacks in Israel, the Gaza Strip and the West Bank, while using his faculty position teaching computer engineering at the University of South Florida as a cover for his terrorist activities.

But ultimately, the jury in Tampa that heard the case found him not guilty of the charge of conspiring to kill people overseas, and it deadlocked on three of the other most serious terrorism charges.

Justice Department officials said they were considering whether to re-try Mr. Arian on the counts on which the jury did not reach verdicts.

While expressing disappointment in the verdicts, the officials said the department had a strong track record of success in prosecuting terrorists, including the separate convictions last week of a Northern Virginia student and a Pakistani immigrant in New York on charges of supporting Al Qaeda.

"We remain focused on the important task at hand, which is to protect our country through our ongoing vigorous prosecution of terrorism cases," said Tasia Scolinos, a spokeswoman for the Justice Department. "While we respect the jury's verdict, we stand by the evidence we presented in court against Sami al-Arian and his co-defendants."

In bringing the case against Mr. Arian in 2003, the department relied on the easing of legal restrictions under the antiterrorism law known as the USA Patriot Act to present years of wiretaps on the defendants in a criminal context.

In the conversations cited by prosecutors, Mr. Arian was heard raising money for Palestinian causes, hailing recently completed attacks against Israel with associates overseas, calling suicide bombers "martyrs" and referring to Jews as "monkeys and swine" who would be "damned" by Allah.

But much of the conversation and activity used by prosecutors predated the 1995 designation by the United States of Palestinian Islamic Jihad as a terrorist group, a designation that prohibited Americans from supporting it. Several legal analysts and law professors said Tuesday that the government appeared to have overreached in its case.

"I think the government's case was somewhat stale because a lot of these events dated back 10 years, and the case was so complex that it was all over the board," said Peter Margulies, a law professor at Roger Williams University in Rhode Island who has studied terrorism prosecutions.

For the prosecutors, Professor Margulies said, "this is clearly embarrassing, and they were clearly outmaneuvered by some very good defense attorneys."

David Cole, a law professor at Georgetown University who represented Mr. Arian's brother-in-law in an earlier deportation case that also gained wide exposure, said the verdict amounted to a rejection of the government's "sweeping guilt by association theory."

In the mid-1990's, news coverage of Mr. Arian drew attention to his opposition to the Israeli occupation of the West Bank and Gaza and led some critics to label the University of South Florida as "Jihad U."

Many Muslims in Florida continued to support him, however, and, as an influential Muslim activist, he continued to have access to the most senior Democratic and Republican officials, meeting with Bill Clinton, George W. Bush and others.

Criticism accelerated after the Sept. 11 attacks, particularly in light of Mr. Arian's appearance on a program on the Fox News Channel just weeks later, in which the host, Bill O'Reilly, confronted him with his past statements calling for "death to Israel."

Mr. Arian's indictment in 2003 led to his firing by the university, a move that had been debated for years. And the disclosure of his close dealings with Palestinian militants as cited in the indictment prompted even some university backers to rethink their support for him.

Family members of Mr. Arian and the other three defendants - Sameeh T. Hammoudeh, Ghassan Ballut and Hatim Fariz - wept in court on Tuesday as the verdicts were read, and Muslims in the Tampa area planned a prayer service and celebration on Tuesday night at the local mosque Mr. Arian helped found.

Mr. Arian "loves America, and he believes in the system, and thank God the system did not fail him," his wife, Nahla al-Arian, said outside the federal courthouse as throngs of family members, supporters and lawyers celebrated the results.

"Not a single guilty verdict," said Ms. Moreno, one of Mr. Arian's two defense lawyers. "I have to say, that was more 'not guilty' verdicts in those 20 minutes than I've heard in my 25 years as a defense attorney."

Mr. Arian is to remain in jail on an immigration matter, but Ms. Moreno said the defense would probably file a motion next week asking to have him released on bond.

For the local Muslim community, the verdicts are "a huge relief, and people are just jubilant," said Ahmed Bedier, director of the Tampa chapter of the Council on American-Islamic Relations.

Mr. Bedier, who attended much of the trial, said he had doubted whether Mr. Arian could receive a fair trial in Tampa, especially in light of the publicity his case had generated, but "the jury proved us wrong," he said in a telephone interview.

"This was a very important case for us in that it tested both the Patriot Act and the right to political activity," Mr. Bedier said. "The jury is sending a statement that even in post-9/11 America, the justice system works, the burden of proof is on the prosecution, and political association - while it may be unpopular to associate oneself with controversial views - is still not illegal in this country."

Lynn Waddell contributed reporting from Tampa, Fla.

for this article.

Not Guilty Verdicts in Florida Terror Trial Are Setback for U.S., NYT, 7.12.2005, http://www.nytimes.com/2005/12/07/national/nationalspecial3/07verdict.html

Police Searches in the Subways

Are Upheld

December 3, 2005
The New York Times
By JULIA PRESTON

Citing a "real and substantial" threat of a terrorist bombing in New York's subways, a federal judge ruled yesterday that random police searches of passengers' bags and backpacks were constitutional because they were effective in helping to prevent an attack.

Rejecting a challenge to the searches by the New York Civil Liberties Union, Judge Richard M. Berman of Federal District Court in Manhattan found that the incursion on subway passengers' privacy was minimal enough to be justified by the deterrent effect on potential terrorists.

City officials celebrated the ruling. "Common sense prevailed," Police Commissioner Raymond W. Kelly said through a spokesman.

The civil liberties union said it would immediately appeal. "We don't believe the city has established that the program is sufficiently effective to justify suspicionless searches of hundreds of thousands of innocent New Yorkers," said Christopher Dunn, a lawyer for the group.

The ruling upheld a program of searches at random subway entrances that New York police started on July 22, soon after terrorist bombings in the subways in London. The police have searched bags at random intervals - every 5th or 12th passenger entering the station, for example. Passengers can refuse to open their bags and walk away, but they may not enter the subway with a bag they did not allow police to search.

The civil liberties union argued that the searches were too infrequent and haphazard to be effective and so they did not justify the privacy invasion of searching people without specific cause.

Based on a juryless trial that started in October, Judge Berman wrote that he had based his ruling on the credibility of the witnesses for both sides, a contest the city won decisively, in his view. "Because the threat of terrorism is great and the consequences of unpreparedness may be catastrophic, it would seem foolish not to rely upon those qualified persons in the best position to know," the judge wrote.

Witnesses for the city included Deputy Police Commissioner David Cohen, who is in charge of intelligence, and Michael Sheehan, deputy commissioner for counterterrorism, as well as Richard A. Clarke, the former head of counterterrorism for the National Security Council, who has criticized the Bush administration's strategy for combating terrorism.

Judge Berman accepted their arguments that the search program "adds uncertainty and unpredictability" to a terrorist's planning and increases the chances that an attack will fail. He concluded that the flow of passengers into the system has not been "significantly impeded or interrupted" by the searches.

The judge dismissed evidence about the frequency of the searches provided by the civil liberties union as "hasty and unscientific." The city, saying it did not want to tip its hand to terrorists, did not make public any specific information about the number and location of searches it has conducted. The civil liberties union collected data by posting observers at subway stations. Judge Berman, based on sealed evidence from the city that he reviewed, reported that there were searches every day between July 22 and Nov. 6, the dates he examined. He said the civil liberties union's estimates of the number of searches were far too low.

"The need to prevent a terrorist bombing of the New York City subway system is a governmental interest of the highest order," Judge Berman wrote. He said his ruling also held for a pilot program begun Nov. 14, in which police are using chemical swabs instead of bag inspections to detect explosives.

A few dozen protesters gathered outside the federal courthouse in downtown Manhattan yesterday afternoon shouting, "Hands out of my backpack!"

Mr. Dunn, of the civil liberties union, said: "They're never going to catch a terrorist. Everyone understands that all you have to do is walk away."

He said the city has not reported catching any passenger with anything illegal since the searches began, and he said that was proof that the searches were not working.

"This is the future in New York City as far as the police department is concerned," Mr. Dunn said. "They now believe that in the name of terrorism they can search anyone without suspicion."

    Police Searches in the Subways Are Upheld, NYT, 3.12.2005, http://www.nytimes.com/2005/12/03/nyregion/03search.html

Hip-Hop Producers Get Acquittal,

Then Hugs, From Jurors

By WILLIAM K. RASHBAUM and MATTHEW SWEENEY
The New York Times
December 3, 2005

A federal jury acquitted the hip-hop impresario Irv Gotti and his brother of money-laundering charges late yesterday, prompting jubilant cheers and pandemonium in the packed courtroom in Brooklyn. The verdict ended a three-year ordeal for the two men and dealt a stunning blow to federal prosecutors.

Minutes after the verdicts were read at the end of the second day of deliberations, two women on the jury asked that the brothers be brought into the jury room, where they hugged them. Then they asked for the men's parents, and hugged them, too.

When the jury foreman read out the not guilty verdicts on money-laundering and related conspiracy charges in the hushed courtroom, Mr. Gotti, 35, in a light gray suit with a white shirt and gray tie, threw his head back and mouthed "thank you" twice to the jurors, nodding his head, his eyes filling with tears. His brother, Christopher Gotti, 38, standing beside him, began to cry, and several supporters shrieked.

Cheers erupted, despite earlier warnings from Chief Judge Edward R. Korman of United States District Court and his clerk. The two brothers began hugging their lawyers - Gerald L. Shargel and Gerald B. Lefcourt - and their friends and family. Then Irv Gotti jumped up on a bench and reached into the courtroom gallery to hug the rap star Ja Rule.

Then, after returning from his brief meeting with the jurors, a breathless and elated Irv Gotti spoke to reporters from the well of the courtroom.

"They took my life from me for three years," he said, clutching a diamond-encrusted medallion that he described as a tribute to his late mother-in-law, who he said had watched over him. "But it's all good. I'm not mad. I love this country. But from Day 1, they had it wrong with me and my brother. I'm no criminal."

The brothers would have faced up to 20 years in prison if convicted. The three-week trial focused on the friendship between the two brothers, whose actual surname is Lorenzo, and Kenneth McGriff, a convicted drug gang leader who was known as Supreme on the streets of southeast Queens, where his crack and marijuana operation held sway in the 1980's. Prosecutors charged that the men used the record label, then called Murder Inc. and later renamed the Inc., to launder $1 million in drug proceeds.

Irv Gotti defended his support of Mr. McGriff and said the government went after him because he stood by his friend.

Several jurors said the government had failed to present enough evidence, with one, who did not want to give his name, comparing the evidence to "a cartoon" and another, Gloria Menzies, calling it weak.

Asked whether she was one of the jurors who wanted to hug the Gottis and their parents, Ms. Menzies, 60, who lives on Staten Island and teaches blind children, said: "Oh, yes. From the beginning."

"They had no case against them, so we were glad," Ms. Menzies said. "I was glad. And a lot of jurors were glad too, that they found them not guilty."

One of the jurors said he voted to convict early during the deliberations, based on the closing argument by Carolyn Pokorny, an assistant United States attorney, but later, after reviewing the evidence, concluded that there was reasonable doubt and voted to acquit. Mr. Shargel said the case "should never have been brought in the first place."

After the verdicts, the trial prosecutors from the office of the United States attorney in Brooklyn, Roslynn R. Mauskopf, remained largely stoic as the victory party in the courtroom gained steam. In a courtroom hallway a few minutes later, they declined to comment, with Sean Haran, an assistant United States attorney, saying only, "We respect the verdict."

The party quickly spilled out of the courthouse, with Mr. Shargel and Mr. Lefcourt nearly carrying Irv Gotti - he had his arms thrown around their shoulders and his feet off the ground - out into a cheering crowd, where the darkened street was illuminated by the lights from several TV cameras.

Both brothers hugged some of the jurors, who joined the raucous crowd in front. Ms. Menzies also hugged Ja Rule, crying out his name and declaring, "I want to give you a hug right now!"

"No," the beaming rapper replied, "I want to give you a hug right now."

The two then posed for photos together.

The brothers' father, Irving Lorenzo, cried when the verdicts were read and a short while later was beaming. "I have my boys, they're back, God bless them," he said. "I'm just very sorry their careers got interrupted the way they did."

Later in the evening, the brothers celebrated on board the Utopia 3, a large boat docked at Chelsea Piers, with relatives, friends and associates.

The crowd of about 50 to 60 on board was mostly male and busy drinking, smoking, eating Ray's pizza and walking around in their socks. Ja Rule was there with his wife, and the rap producer Russell Simmons was just arriving about 8:30 p.m. Christopher Gotti could be overheard on a phone telling someone, "We did it, we did it, man." Irv Gotti was said to be somewhere in the back of the boat.

With the acquittal, Irv Gotti is expected to return to work as a music producer and rekindle his search for a financial partner among the major record corporations. Vivendi Universal, which had been his partner in the Murder Inc. label, severed its ties with Mr. Gotti several months ago, and his talks with other companies - including Warner Music Group - stalled amid the federal inquiry. Executives at various music companies have said privately that they had been leery of allying themselves with him while he remained under a legal cloud.

Lyor Cohen, the former chairman of Vivendi's Island Def Jam unit, which had been Mr. Gotti's partner in Murder Inc., said yesterday, "I'm so happy for Irv and his family that this difficult experience is over. Irv is a true record man with impeccable taste and an undying passion for hip-hop."

Mr. Cohen, now the chief executive of Warner Music's United States operations, said he had great confidence in Mr. Gotti's "ability to continue his exceptional track record."

Steve Gottlieb, who heads the independent label TVT Records and who employed Mr. Gotti in the mid-1990's, said yesterday that "he leaves this not only with a clean bill of health but as someone whose stature has been enhanced by standing his own ground. It's not just that he was acquitted, but the over-hyping of the charges that will cause people to kind of be dismissive of the whole affair."

Still, he may find it difficult to restore his former empire. Mr. Gotti began as a D.J. spinning records at parties in Queens, then enjoyed a rapid ascent from talent scout - he was credited with helping discover the rap stars Jay-Z and DMX - to rap mogul with his own label, where he released platinum-selling hits by Ja Rule and the singer Ashanti. But these days, he faces heavy competition from a crop of other hot producers.

After the verdict, Mr. Gotti said that after his office was searched in the early stages of the investigation, the specter of a criminal enterprise run out of the record label shut down his business.

"They had everybody who loved me in corporate America, who felt I was a good guy, distance themselves from me," he said. "All while I was saying, 'I didn't do this, I didn't do this,' and they was like, 'O.K., we'll wait and see.' "

Yesterday, he said he was eager to get back into the studio.

"I'm never getting into any other trouble though, you can put your bottom dollar on - I'm never - no jaywalking or nothing," he said, quickly adding, "And I was never in trouble in the first place."

The investigation into the brothers and their label began three years ago.

Conducted by a task force of city detectives and federal agents and overseen by Ms. Mauskopf's office, the inquiry led to significant changes in how the label presented itself, from changing its name to the Inc. to overhauling its Web site. The site, which once featured the sound of gunfire and showed images of bullets penetrating its logo and a picture of rappers clad as 1940's-era mob figures, is now far more subdued, with pictures of the label's artists.

Jeff Leeds and Lola Ogunnaike

contributed reporting for this article.

    Hip-Hop Producers Get Acquittal, Then Hugs, From Jurors, NYT, 3.12.2005, http://www.nytimes.com/2005/12/03/nyregion/03gotti.html

Leak Ruling Has Mystery,

8 Blank Pages

December 3, 2005
The New York Times
By ADAM LIPTAK

There are eight blank pages in the public version of a decision the federal appeals court in Washington issued in February. The decision ordered two reporters to be jailed unless they agreed to testify before a grand jury investigating the disclosure of the identity of a C.I.A. operative, Valerie Wilson. What is in those pages is one of the enduring mysteries in the investigation.

In a filing yesterday, the special prosecutor in the case, Patrick J. Fitzgerald, told the court that he had no objection to the unsealing of parts of those pages, and he gave hints about what they say.

The pages, in a concurring opinion by Judge David S. Tatel of the United States Court of Appeals for the District of Columbia Circuit, analyze secret submissions by Mr. Fitzgerald. Judge Tatel suggested, in a terse and cryptic public summary of what he wrote in the withheld pages, that testimony from the reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, was needed to determine whether a government official committed a crime in identifying Ms. Wilson.

Mr. Cooper avoided jail after his source, Karl Rove, President Bush's top political adviser, gave him permission to testify. Ms. Miller spent 85 days in jail before agreeing to testify after receiving permission from I. Lewis Libby Jr., who was Vice President Dick Cheney's chief of staff. Mr. Libby resigned after he was indicted in October on charges of obstructing the investigation and related crimes.

Yesterday's filing, in response to a motion by Dow Jones & Company, the publisher of The Wall Street Journal, seemed at odds with Judge Tatel's summary. It made clear that the case against at least Mr. Libby had for some time concerned obstruction of justice rather than the disclosure of Ms. Wilson's identity.

Mr. Fitzgerald told the court yesterday that he did not object to the unsealing of the parts of Judge Tatel's analysis concerning Mr. Libby because most of the facts in it had become public through the indictment and statements from grand jury witnesses.

Mr. Fitzgerald said he did object to unsealing other parts of the analysis. Theodore J. Boutrous Jr., a lawyer for Dow Jones, said, "We are hopeful we can persuade the court to release the rest."

Floyd Abrams, who represented Ms. Miller and Mr. Cooper before the appeals court, said Mr. Fitzgerald's filing was significant for the light it shed on the inquiry's progress.

"The revelation," Mr. Abrams said, "that Mr. Fitzgerald advised the court as early as the spring and fall of 2004 that his focus on Mr. Libby related not to potential threats to national security but to possible violations of perjury and related laws raises anew the question of whether the need for the testimony of Judy Miller and Matt Cooper was at all as critical as had been suggested."

    Leak Ruling Has Mystery, 8 Blank Pages, NYT, 3.12.2005, http://www.nytimes.com/2005/12/03/politics/03leak.html

Openly Gay Student's

Lawsuit Over Privacy Will Proceed

December 2, 2005
The New York Times
By TAMAR LEWIN

In a case involving a California high school girl who was openly gay at school, a federal judge has ruled that the girl, Charlene Nguon, may proceed with a lawsuit charging that her privacy rights were violated when the principal called her mother and disclosed that she is gay.

Ms. Nguon filed suit in September after a year of run-ins with Ben Wolf, the principal of Santiago High School in Garden Grove, Calif., over her hugging, kissing and holding hands with her girlfriend. Ms. Nguon was an all-A student ranked in the top 5 percent of her class, with no prior record of discipline. But last year, after Mr. Wolf said he wanted to separate her from her girlfriend, she transferred to another school. Her grades slipped, and her commute grew from a four-block walk to a four-and-a-half mile bike ride.

Judge James V. Selna of the Central District Court of California ruled Monday that Ms. Nguon had "sufficiently alleged a legally protected privacy interest in information about her sexual orientation."

"This is the first court ruling we're aware of where a judge has recognized that a student has a right not to have her sexual orientation disclosed to her parents, even if she is out of the closet at school," said Christine Sun, a lawyer at the American Civil Liberties Union, who brought the case. "It's really important, because, while Charlene's parents have been very supportive, coming out is a very serious decision that should not be taken away from anyone, and disclosure can cause a lot of harm to students who live in an unsupportive home."

Alan Trudell, a spokesman for the school district, would not comment on the litigation. In its motion to dismiss the case, the district argued that Ms. Nguon had no legally protectable privacy right because she was "openly lesbian" and "constantly" hugging and kissing her girlfriend.

"A reasonable person could not expect that their actions on school grounds, in front of everyone else on the school grounds, would remain private," the motion said.

The district also said Ms. Nguon had "an issue with authority" and was disciplined because of her defiance, not because of her homosexuality. Both Ms. Nguon and her girlfriend were suspended twice, once for a day and once for a week.

The district saw Ms. Nguon's behavior and legal case as inconsistent, its motion questioning why "she can be openly gay in public, but should be permitted to hide her homosexuality from her parents."

Ms. Nguon said yesterday that the day on which the principal called was a difficult one for the family.

"My mom picked me up from school and her eyes were all watery," she said. "I just went to my room and cried. We didn't talk about it for about a week."

After the A.C.L.U. sent a letter to the school in late July, Ms. Nguon was allowed to return to Santiago High, but to date the school has not agreed to clear her disciplinary record.

Conservatives criticized the judge's reasoning. "This court ruling is so unrealistic that it borders on ridiculous," said Carrie Gordon Earll, a spokeswoman for Focus on the Family, a socially conservative group based in Colorado. "In a disciplinary action by the school, you can't expect them to lie to the parents and not give details of what happened. It seems ironic to raise privacy as an issue in a public display of affection. She'd already outed herself."

Advocates for gay rights, however, welcomed the judge's decision to let the case proceed, but said it was too soon to celebrate.

"I wouldn't yet go out and tell a kid in Iowa to walk down the halls at school holding hands with his boyfriend," said Brian Chase, a lawyer with the Lambda Legal Defense and Education Fund. "It isn't fair, but gay kids expressing affection are not treated the way straight kids are."

The lawsuit seeks to clear Ms. Nguon's record and create a districtwide policy and guidelines for the treatment of gay students.

    Openly Gay Student's Lawsuit Over Privacy Will Proceed, NYT, 2.12.2005, http://www.nytimes.com/2005/12/02/education/02schools.html

Terror Trial Hits Obstacle, Unexpectedly

December 1, 2005
The New York Times
By NEIL A. LEWIS

WASHINGTON, Nov. 30 - A federal appeals court threw up a surprise obstacle on Wednesday to the Bush administration's plan to transfer Jose Padilla from military custody to face terrorism charges in a civilian court.

A three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., issued a brief order suggesting it might withdraw an earlier opinion that gave President Bush sweeping powers to detain Mr. Padilla, an American, indefinitely without trial.

Despite being armed with that earlier court ruling, the administration shifted course last week and said it would no longer hold Mr. Padilla as an enemy combatant but instead try him on criminal charges in a federal court. To do so, the Justice Department sought permission from the appeals court to transfer Mr. Padilla, a former gang member from Chicago, from a Navy brig in South Carolina to the federal prison system.

To the apparent surprise of lawyers on both sides, the appeals court did not agree to give its permission. Instead, it issued an order requiring both the government and Mr. Padilla's lawyers to submit briefs on whether the court should withdraw its earlier ruling.

The significance of the action was unclear, but some lawyers thought it signaled annoyance with the government. Eugene R. Fidell, a Washington lawyer who closely follows detainee issues, said, "It's hard to tell, but this appears to be a rebuff to the administration."

Mr. Fidell said it was possible that the judges felt ill used in expending the court's institutional capital on issuing its Padilla ruling only to have the government decide to leave it unused.

The government initially asserted that Mr. Padilla was an operative of Al Qaeda who had planned to detonate a radioactive "dirty bomb" in some American city. In its indictment on Nov. 22, the Justice Department said only that he was part of a North American terrorist cell that supported violent acts overseas.

The shift to the civilian courts was interpreted by many as a decision by the government to avoid risking a test in the Supreme Court of the Fourth Circuit's ruling.

In indicting Mr. Padilla, the Justice Department said it believed the issue of Mr. Bush's authority to detain him as an enemy combatant was moot.

Prof. Judith Resnik of the Yale Law School said the issue was still alive because if Mr. Padilla was acquitted, the government could easily turn around and again declare him an enemy combatant.

    Terror Trial Hits Obstacle, Unexpectedly, NYT, 1.12.2005, http://www.nytimes.com/2005/12/01/politics/01padilla.html

In Terror Cases,

Administration Sets the Rules

By ADAM LIPTAK
The New York Times
Published: November 27, 2005

When Attorney General Alberto R. Gonzales announced last week that Jose Padilla would be transferred from military detention to the federal justice system, he said almost nothing about the standards the administration used in deciding whether to charge terrorism suspects like Mr. Padilla with crimes or to hold them in military facilities as enemy combatants.

"We take each individual, each case, case by case," Mr. Gonzales said.

The upshot of that approach, underscored by the decision in Mr. Padilla's case, is that no one outside the administration knows just how the determination is made whether to handle a terror suspect as an enemy combatant or as a common criminal, to hold him indefinitely without charges in a military facility or to charge him in court.

Indeed, citing the need to combat terrorism, the administration has argued, with varying degrees of success, that judges should have essentially no role in reviewing its decisions. The change in Mr. Padilla's status, just days before the government's legal papers were due in his appeal to the Supreme Court, suggested to many legal observers that the administration wanted to keep the court out of the case.

"The position of the executive branch," said Eric M. Freedman, a law professor at Hofstra University who has consulted with lawyers for several detainees, "is that it can be judge, jury and executioner."

The government says a secret and unilateral decision-making process is necessary because of the nature of the evidence it deals with. Officials described the approach as a practical one that weighs a mix of often-sensitive factors.

"Much thought goes into how and why various tools are used in these often complicated cases," Tasia Scolinos, a Justice Department spokeswoman, said on Friday. "The important thing is for someone not to come away thinking this whole process is arbitrary, which it is not."

Among the factors the government considers, she said, are "national security interests, the need to gather intelligence and the best and quickest way to obtain it, the concern about protecting intelligence sources and methods and ongoing information gathering, the ability to use information as evidence in a criminal proceeding, the circumstances of the manner in which the individual was detained, the applicable criminal charges, and classified-evidence issues."

Lawyers for people in terrorism investigations say a list of factors to be considered cannot substitute for bright-line standards announced in advance.

The courts have given the executive branch substantial but not total deference, often holding that the president has the authority to designate enemy combatants but allowing those detained to challenge the factual basis for the administration's determinations. Some courts have suggested that a detainee's citizenship, the place he was captured and whether he was fighting American troops should play a role in how aggressively the courts review enemy-combatant designations.

A look at the half-dozen most prominent terrorism detentions and prosecutions does little to illuminate the standards that have informed the government's decisions.

One American captured on the battlefield in Afghanistan was held in the United States as an enemy combatant. Another was prosecuted as a criminal. One foreigner seized in the United States as a suspected terrorist is being held as an enemy combatant without charges in a Navy brig in Charleston, S.C. Others have been prosecuted for their crimes.

In three high-profile terrorism cases, the government obtained convictions in federal court. Zacarias Moussaoui, a French citizen, pleaded guilty to taking part in the conspiracy that led to the Sept. 11 terrorist attacks and faces the death penalty. Richard C. Reid, who is British, pleaded guilty to trying to blow up a jet over the Atlantic with bombs in his shoes and is serving a life term. And John Walker Lindh, the California man who pleaded guilty to aiding the Taliban, is serving 20 years.

In three other cases, the administration designated terrorism suspects as enemy combatants who may be detained by the military indefinitely without charge. One, Yaser Esam Hamdi, an American citizen of Saudi descent, was released and sent to Saudi Arabia after the Supreme Court gave him the right to contest the government's claims. A second American, Mr. Padilla, was transferred to the custody of the Justice Department last week.

The only remaining enemy combatant known to be detained in the United States, Ali Saleh Kahlah al-Marri, traveled the same road as Mr. Padilla, but in the opposite direction. "Al-Marri is precisely the flipside of Padilla," said Lawrence S. Lustberg, one of Mr. Marri's lawyers.

After 16 months of criminal proceedings on fraud charges, and less than a month before Mr. Marri's trial was to start in July 2003, President Bush designated him an enemy combatant. Mr. Marri, a Qatari who had been working on a master's degree at Bradley University in Peoria, Ill., was immediately transferred into military custody and moved to the Navy brig in Charleston.

John Yoo, a former Justice Department official who is now a law professor at the University of California in Berkeley, said two issues tended to determine how the government proceeds.

"The main factors that will determine how you will be charged," he said, "are, one, how strong your link to Al Qaeda is and, two, whether you have any actionable intelligence that will prevent an attack on the United States."

Jonathan M. Freiman, one of Mr. Padilla's lawyers, questioned that, saying the administration's decisions have often seemed to be reactions to actual and anticipated court decisions.

"The government continues to be more focused on protecting its strategies than allowing them to be subjected to legal review," Mr. Freiman said.

In the indictment unsealed Tuesday, Mr. Padilla was not charged with some of the most serious accusations against him, including plotting to explode a radioactive device, because the evidence needed to prove the case had been obtained through harsh questioning of two senior members of Al Qaeda, current and former government officials have said. The statements may not have been admissible in court and could have exposed classified information, the officials said.

The Moussaoui case was also complicated by his lawyers' demands that they be given access to potentially exculpatory evidence that the government contended had to be kept secret for reasons of national security.

The mere possibility of being named an enemy combatant, coupled with the difficulty of divining the standards the administration uses in choosing whom to call one, can affect the decisions of defendants in criminal plea negotiations.

"In the case of John Walker Lindh," said his lawyer, James J. Brosnahan, "there was a suggestion that even if we got an acquittal that he could be declared an unlawful combatant, that he could be a Padilla."

Indeed, the plea agreement Mr. Lindh signed contains an unusual provision. "For the rest of the defendant's natural life," it says, "should the government determine that the defendant has engaged in" one of more than a score of crimes of terrorism, "the United States may immediately invoke any right it has at that time to capture and detain the defendant as an unlawful enemy combatant."

Mr. Freiman said he too had been told that the government reserves the right to detain Mr. Padilla again should he be acquitted.

It is not always clear whether it is worse to be prosecuted or to be held as an enemy combatant. Mr. Lindh's case is at least superficially similar to that of Mr. Hamdi, another American captured in Afghanistan. But Mr. Hamdi is free after three years of confinement, though he had to relinquish his American citizenship. Mr. Lindh is in the early part of his 20-year sentence.

The government has not offered an explanation for the disparate treatment of the cases.

Mr. Marri's detention, on the other hand, is potentially lifelong. Though he has not been convicted of a crime, said Jonathan Hafetz, one of his lawyers, the conditions in the Charleston brig are as bad or worse than those in the toughest high-security prisons.

"He has been in solitary confinement for two and a half years," Mr. Hafetz said of Mr. Marri. "He hasn't spoken to or seen his wife and five children since he was designated an enemy combatant" in June 2003. "There's no news, no books, nothing."

This year, the same South Carolina federal judge heard challenges from both Mr. Padilla and Mr. Marri. In July, the judge, Henry F. Floyd, ruled that President Bush was authorized to detain Mr. Marri. Four months earlier, the judge had reached the opposite conclusion in Mr. Padilla's case.

The difference, he said, was that Mr. Padilla was an American citizen.

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., reversed the ruling in the Padilla case. The administration's decision last week to charge Mr. Padilla and try to moot his appeal of the Fourth Circuit's decision to the Supreme Court may have been driven by its desire to maintain a helpful precedent in the circuit where it brings many of its terrorism cases.

"They are seeking to keep their options open," said David D. Cole, a law professor at Georgetown, "by avoiding Supreme Court review in the Padilla case. It lets them keep standing the Fourth Circuit decision."

In Mr. Hamdi's Supreme Court case last year, the four justices who joined Justice Sandra Day O'Connor's controlling opinion used a narrow definition of "enemy combatant," saying, at least for purposes of that case, that it meant someone "carrying a weapon against American troops on a foreign battlefield."

The government has proposed a much broader definition.

"The term 'enemy combatant,' " according to a Defense Department order last year, includes anyone "part of or supporting Taliban or Al Qaeda forces or associated forces."

In a hearing in December in a case brought by detainees imprisoned in the naval facility in Guantánamo Bay, Cuba, a judge questioned a Justice Department official about the limits of that definition. The official, Brian D. Boyle, said the hostilities in question are global and may continue for generations.

The judge, Joyce Hens Green of the Federal District Court in Washington, asked a series of hypothetical questions about who may be detained as an enemy combatant under the government's definition.

What about "a little old lady in Switzerland who writes checks to what she thinks is a charitable organization that helps orphans in Afghanistan but really is a front to finance Al Qaeda activities?" she asked.

And what about a resident of Dublin "who teaches English to the son of a person the C.I.A. knows to be a member of Al Qaeda?"

And "what about a Wall Street Journal reporter, working in Afghanistan, who knows the exact location of Osama bin Laden but does not reveal it to the United States government in order to protect her source?"

Mr. Boyle said the military had the power to detain all three people as enemy combatants.

In January, Judge Green allowed the detainees' court challenges to their confinement to proceed. Another judge on her court reached the opposite conclusion, and an appeal from the two decisions is pending.

    In Terror Cases, Administration Sets the Rules, NYT, 26.11.2005, http://www.nytimes.com/2005/11/27/national/nationalspecial3/27enemy.html

Pakistani Man Is Convicted

of Assisting Al Qaeda Figure

November 24, 2005
The New York Times
By JULIA PRESTON

A young Pakistani man, Uzair Paracha, was convicted in federal court yesterday of conspiring to help a Qaeda operative suspected of planning bombing attacks in Maryland to enter the United States.

After a two-week trial, the jury in Federal District Court in Manhattan deliberated less than six hours before finding Mr. Paracha guilty on all five counts of providing material aid and financial support to Qaeda terrorism. He faces up to 75 years in prison.

Mr. Paracha, 25, was convicted of trying to help another Pakistani, Majid Khan, obtain documents early in 2003 to travel from Pakistan to the United States. In a written agreement presented during the trial, both the prosecutors and Mr. Paracha's lawyers said that Mr. Khan is a Qaeda member.

According to trial testimony and Justice Department documents, Mr. Khan had laid plans with top Qaeda leaders in Pakistan, including Khalid Shaik Mohammed, the accused mastermind of the Sept. 11 attacks, to bomb underground storage tanks in Maryland gas stations.

The guilty verdict against Mr. Paracha was a courtroom victory for the Justice Department, and came one day after another conviction in an even more dramatic terror case in Virginia. There, an Arab-American student, Ahmed Omar Abu Ali, was found guilty of plotting with Al Qaeda operatives to assassinate President Bush and hijack airplanes.

Also on Tuesday, the Justice Department announced formal conspiracy charges against another terror defendant, Jose Padilla, bringing him into the civilian court system after more than three years during which when Mr. Padilla, an American citizen, was held in military detention as an enemy combatant.

According to evidence presented at the trial, Mr. Khan had been living in Baltimore since 1997 as a political refugee, but returned illegally to Pakistan without giving a required notice to American immigration. The prosecutors argued that Mr. Paracha had agreed to pose as Mr. Khan, while he was on a business trip to New York, to give the immigration authorities the impression that Mr. Khan had never left the United States.

Mr. Paracha had traveled frequently to New York in connection with his father's real estate business.

Mr. Paracha also agreed to obtain travel documents for Mr. Khan and bring them back to Pakistan, according to the prosecutors, Karl Metzner and Eric B. Bruce, assistant United States attorneys.

Mr. Khan's Maryland driver's license and his Social Security card, as well as bank and credit cards, were found in Mr. Paracha's suitcase when he was arrested in March 2003. The key to the post office box where Mr. Khan's documents were to be sent by the immigration service was on Mr. Paracha's key chain.

The jurors evidently gave no credence to Mr. Paracha's claims that he did not know Mr. Khan was a Qaeda member. In extensive confessions he made during three days of questioning by New York counterterrorism agents before he was arrested, Mr. Paracha admitted that his father, Saifullah Paracha, had told him of Mr. Khan's terror ties. Mr. Paracha testified in court that his father "admired" Osama bin Laden, after a meeting with the Qaeda leader in Afghanistan. The elder Mr. Paracha is in military detention in Guantánamo Bay, Cuba.

The jurors apparently were also not swayed by Mr. Paracha's argument that he gave a false confession because he felt pressured by the American agents.

Mr. Paracha, a small man with thick, square eyeglasses, who speaks fluent English, showed no emotion when he heard the verdict, appearing not to grasp what had happened. "He's hurt, he's disappointed," said Anthony L. Ricco, one of his lawyers. "He doesn't really understand the subtleties of American culture and the predicament he's in."

Mr. Ricco said Mr. Paracha had turned down "a terrific deal" for a plea bargain from the prosecutors, which would have amounted to little more than the prison time he had already served.

Another defense lawyer, Edward David Wilford, said he and Mr. Ricco had operated "in a vacuum" because they were barred from interviewing Mr. Khan and another Pakistani witness they regarded as crucial to their case, Ammar al-Baluchi. Both men are believed to be in secret United States detention somewhere overseas.

Justice Department officials said Mr. al-Baluchi was one of Al Qaeda's most far-ranging and effective operatives, a nephew and "right-hand man" of Mr. Mohammed, the accused 9/11 plotter. The prosecutors in the trial said Mr. Paracha and his father met over dinner in Karachi with Mr. al-Baluchi and Mr. Khan to plan Mr. Paracha's assistance to Mr. Khan.

Citing national security concerns, the government did not allow Mr. Paracha's lawyers to have any contact with the two Qaeda suspects. Indeed, the government never officially confirmed that the two men are in United States custody.

But in a delicate albeit strange legal compromise struck in a Nov. 7 ruling by Judge Sidney H. Stein, the prosecutors gave the defense portions of statements taken from the two men that could be used to support Mr. Paracha's defense. The prosecutors did not say where Mr. Khan and Mr. Baluchi had been interviewed or by whom. Judge Stein said his ruling was designed to balance the government's legitimate national security concerns and Mr. Paracha's rights to a fair trial.

    Pakistani Man Is Convicted of Assisting Al Qaeda Figure, NYT, 24.11.2005, http://www.nytimes.com/2005/11/24/nyregion/24terror.html

Judge Rejects

Challenge to Bush Education Law

November 24, 2005
The New York Times
By MICHAEL JANOFSKY

WASHINGTON, Nov. 23 - A federal judge in Michigan on Wednesday dismissed a major challenge to the Bush administration's signature education program, No Child Left Behind, saying the federal government had the right to require states to spend their own money to comply with the law.

The action came in the first lawsuit that tried to block the education law on the ground that it imposed requirements on states and school districts that were not paid for by the federal government. A handful of states have complained that the law forces them to spend millions of dollars they do not have, and one, Connecticut, has sued the Department of Education in a separate federal action.

In his ruling, Judge Bernard A. Friedman of the United States District Court for the Eastern District of Michigan, Southern Division, said that if lawmakers had meant to pay for mandates in the law, they would have phrased the legislation "to say so clearly and unambiguously."

Judge Friedman said those challenging the law had offered nothing to show that Congress "intended for these requirements to be paid for solely by the federal appropriations." He made a distinction between Congress, which he said had the right to impose conditions on states, and officers or employees of the Education Department, who he said did not. While the plaintiffs in the Michigan case - the nation's largest teachers' union and school districts in Michigan, Texas and Vermont - said they would appeal, it remained unclear what impact the ruling might have on the Connecticut challenge, which was filed in late summer.

Lawyers for the Department of Education, who have until Dec. 2 to respond in the Connecticut case, said the department would cite the Michigan ruling in their filings.

But Attorney General Richard Blumenthal of Connecticut called the Michigan ruling "wrong and in no way legally binding" on his state's lawsuit, saying, "We will continue to pursue our claims vigorously."

The No Child Left Behind law requires that children in every racial and demographic group in all schools score higher on standardized tests in math and English each year. A school's overall failure to achieve annual progress can lead to sanctions, and in the most severe cases, closing.

Education Secretary Margaret Spellings, who has spent years negotiating with states over compliance with aspects of the law, called the Michigan ruling "a victory for children and parents all across the country."

Reg Weaver, president of the National Education Association, the teachers' union that is a plaintiff in the case, said, "We are obviously disappointed with the opinion."

Mr. Weaver accused the federal government of shortchanging the states by billions of dollars to cover the costs of testing and said: "Parents in communities where school districts are financially strained were promised that this law would close the achievement gap. Instead, their tax dollars are being used to cover unpaid bills sent from Washington for costly regulations that do not help improve education."

Mr. Blumenthal said Judge Friedman's decision was "virtually incomprehensible and completely unsupported" by citations to other cases.

The Connecticut suit is somewhat different from the Michigan case: Mr. Blumenthal is not only seeking to force the federal government to cover the state's costs for complying, but is also accusing the Education Department of acting in an "arbitrary and capricious manner" in denying state requests for flexibility.

Many states have sought exemptions from requirements of the law, and Ms. Spellings has granted several. In September, she allowed the Chicago public schools to use federally financed tutoring programs, rather than private firms, as the law requires, for students who perform poorly. New York City was granted a similar exemption this month.

Connecticut had sought a waiver to test children every other year, rather than annually, a request the department denied. That denial, Mr. Blumenthal said, is "making our case factually different."

    Judge Rejects Challenge to Bush Education Law, NYT, 24.11.2005, http://www.nytimes.com/2005/11/24/politics/24child.html

Man found guilty in Bush Qaeda plot

Tue Nov 22, 2005 3:58 PM ET
Reuters
By Deborah Charles

ALEXANDRIA, Virginia (Reuters) - A U.S. man was found guilty on Tuesday of conspiring with and aiding al Qaeda and plotting to assassinate President George W. Bush.

A 12-member federal jury at the U.S. District Court found Ahmed Abu Ali, 24, guilty of all charges in a nine-count indictment. He had been charged with conspiring to support and supporting al Qaeda, conspiracy to kill Bush and conspiracy to commit aircraft hijacking.

U.S. District Judge Gerald Bruce Lee set a February 17, 2006, date to sentence Abu Ali, who faces life in prison.

Abu Ali was arrested in June 2003 while studying at a Saudi university. He signed confessions and made statements admitting to the plot against Bush and to having ties to an al Qaeda cell.

He was held in Saudi Arabia for 20 months before being sent back to the United States earlier this year to face trial.

In the statements, Abu Ali said he and senior members of an al Qaeda cell in Medina, Saudi Arabia, discussed how he could kill Bush. He said they also talked about other types of attacks, including September 11-like hijackings that could be carried out in the United States.

Prosecutors said Abu Ali's goal was to become a planner of terrorist operations like Mohamed Atta -- believed to be the ringleader of the September 11 hijackers.

Abu Ali said he made up the confessions in order to stop members of the Saudi domestic security police from torturing him.

Saudi officials deny the accusations of mistreatment. U.S. prosecutors -- who based most of their case against Abu Ali on statements made in Saudi Arabia -- said there was no evidence to prove Abu Ali had been tortured.

    Man found guilty in Bush Qaeda plot, R, 22.11.2005, http://today.reuters.com/news/newsArticle.aspx?type=topNews&storyID=2005-11-22T205621Z_01_SIB271693_RTRUKOC_0_US-SECURITY-ABUALI-VERDICT.xml

Alito Often Ruled

for Religious Expression

November 21, 2005
The New York Times
By NEIL A. LEWIS

WASHINGTON, Nov. 20 - Judge Samuel A. Alito Jr. has compiled a brief but unmistakable record, lawyers and analysts say, that makes him a leader in the camp of conservative theorists and judges who believe federal courts have been too quick to limit religious activities in public life.

During his 15 years sitting in Newark as a member of a federal appeals court, Judge Alito has sided almost uniformly with those who have complained vigorously in recent years that zealousness in enforcing the Constitution's separation of church and state has unfairly inhibited religious practices.

Judge Alito, President Bush's nominee for the Supreme Court, has ruled in favor of allowing local governments to set up Nativity scenes alongside nonreligious symbols and ruled against a school district that wanted to prevent an evangelical group from sending home fliers to elementary school children. He has also ruled in favor of Muslim police officers in Newark who said the department's policy against wearing beards violated their religious rights. Both supporters and opponents say he has the potential to become the most aggressive supporter of religious liberty on the court, moving it toward greater deference to religious practices.

"He is inclined to the view of the First Amendment that the government is not intended to be hostile to religion," said Douglas W. Kmiec, a law professor at Pepperdine University in California. "It is intended to be accommodating when it can."

Professor Kmiec, a former Justice Department colleague of Judge Alito's, is a leading proponent of the "religious liberty" argument pressed by social conservatives, which advances the view that the Constitution allows for a greater presence of religion in the public sphere than courts have previously allowed. This stream of argument has largely involved issues like prayer at school functions, the display of religious symbols at Christmastime and public financing of programs run by religious groups.

Judge Alito has not had an opportunity to rule on a case involving the use of public money by religious organizations, an area of contention in recent years. The debate about the separation of church and state is sometimes organized along two distinct phrases in the First Amendment, which says that Congress "shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." The first phrase is known as the Establishment Clause, while the second is called the Free Exercise Clause.

One case involving Judge Alito that illustrates the potential tension between the two clauses occurred in 1996 when a New Jersey school board sought to have students vote on whether to have a prayer at the high school graduation. The Black Horse Pike Regional Board of Education had previously allowed prayers at the high school graduation, but the policy had to be changed after the Supreme Court ruled in 1992 that prayers by a rabbi at a Rhode Island middle school graduation violated the First Amendment.

The New Jersey board members hoped that by putting the issue to a student vote, the courts would find any prayers did not violate the Establishment Clause because they were not mandatory. In an 11-to-4 ruling, the full United States Court of Appeals for the Third Circuit ruled against the school board. Judge Alito joined the dissent that asserted the court majority was improperly infringing on the rights of students to exercise their religion.

Eliot Mincberg, the legal director of People for the American Way, a liberal advocacy group, said Judge Alito's record demonstrates that he was "very solicitous when it comes to protecting the right of an individual to practice his religion, but not so solicitous of the right of people to be free of government-supported religion."

In 2000, the Supreme Court revisited the issue in a Texas case, Santa Fe v. Doe, and rejected, 6 to 3, a similar plan in which the students voted on whether to have prayers during football games. Justice Sandra Day O'Connor, whose seat Judge Alito would fill, voted with the majority. The dissenters in that case whose reasoning paralleled Judge Alito's were William H. Rehnquist, the chief justice at the time, and Justices Antonin Scalia and Clarence Thomas.

Last year, in writing an opinion upholding the right of an evangelical organization to distribute its materials in some New Jersey elementary schools, Judge Alito sought to distinguish the Santa Fe case. He said the Supreme Court's six-member majority had ruled that some students, like players and cheerleaders, were required to attend the games while others may have felt peer pressure to participate in the prayers.

But he said that distribution of religious fliers by the Child Evangelism Fellowship of New Jersey urging students to attend Good News Club meetings "would not result in any similar pressure to participate in a religious activity." Judge Alito said in his ruling that the school board had engaged in impermissible "viewpoint discrimination" in banning the evangelical literature because it allowed pamphlets from other groups like the Boy Scouts. He said that if the school board worried that people might think it had endorsed the religious fliers, "teachers could explain the point to the students."

In another case involving the Free Exercise Clause, Judge Alito wrote in 1999 that the Newark Police Department could not prohibit two Muslim officers from having beards for religious reasons because it had made exceptions to its appearance code by allowing some officers with skin problems to have beards. Lawyers said that Judge Alito also ruled against a Pennsylvania statute requiring hunting fees as it applied to an American Indian who said it was part of his religion.

Judge Alito's most widely cited Establishment Clause ruling was his 1999 decision rejecting a challenge by the American Civil Liberties Union to a holiday display of a Nativity scene and a menorah mounted by Jersey City officials. The issue was whether the inclusion of plastic replicas of Santa Claus and Frosty the Snowman in the display had satisfied a Supreme Court opinion that such displays could be legal if they were not centered on religion.

In a 2-to-1 decision, which he wrote, Judge Alito rejected the argument that including the nonreligious statues was a ploy to win acceptance and cited in great detail the size and relative prominence of those statues.

Nathan J. Diament, the public affairs director for the Union of Orthodox Jewish Congregations, said Judge Alito's record demonstrated "a deep understanding" of the Free Exercise Clause. Mr. Diament mentioned Judge Alito's concurrence in a ruling allowing a Jewish teacher at William Paterson College in New Jersey to go forward with a lawsuit accusing the school administration of trying to force her out by scheduling events on Friday evenings. "He didn't just agree that the suit should go forward," Mr. Diament said. "He went out of his way to express his philosophy on the need to accommodate religious individuals."

    Alito Often Ruled for Religious Expression, NYT, 21.11.2005, http://www.nytimes.com/2005/11/21/politics/politicsspecial1/21religion.html

DeLay Ex-Aide

to Plead Guilty in Lobby Case

November 19, 2005
The New York Times
By ANNE E. KORNBLUT

WASHINGTON, Nov. 18 - Michael Scanlon, a former top official for Representative Tom DeLay and onetime partner of the lobbyist Jack Abramoff, has agreed to plead guilty in a deal with federal prosecutors, according to his lawyer. The deal reveals a broadening corruption investigation involving top members of Congress.

Criminal papers filed in federal court outlined a conspiracy that not only named Mr. Scanlon but also mentioned a congressman, identified only as Representative No. 1, as part of the exchange of favors from clients funneled to lobbyists and officials.

This was the first time that a member of Congress, identified by lawyers in the case as Representative Bob Ney, Republican of Ohio, has been implicated in criminal papers as part of the inquiry, which has sprawled from Indian casinos to the lucrative lobbying firms of Mr. Abramoff and Mr. Scanlon and then reached to the Republican leadership.

Federal prosecutors announced a single conspiracy charge against Mr. Scanlon on Friday, in advance of a Monday court hearing at which he is expected to plead guilty in exchange for his cooperation. Investigators accused Mr. Scanlon of conspiring to defraud Indian tribes of millions of dollars as part of a lobbying and corruption scheme.

Mr. Scanlon, 35, is a former spokesman for Mr. DeLay. News of his cooperation with law enforcement officials sent a jolt through the Republican majority in Congress.

Mr. DeLay has been indicted in Texas on unrelated charges involving fund-raising practices for state Republicans. His ties to Mr. Abramoff, along with costly overseas trips, have been under investigation for more than a year. The indictment forced Mr. DeLay to step aside as House majority leader this fall.

Court papers filed Friday alleged that Mr. Scanlon and Mr. Abramoff, who has not been charged in the Indian lobbying case, had sought to "corruptly offer and provide things of value, including money, meals, trips and entertainment to federal public officials in return for agreements to perform official acts." The wording suggested that more than one lawmaker was under investigation.

But the document singled out Representative No. 1 as the main recipient of gifts, tickets and meals - including a now infamous golfing trip to Scotland - in exchange for helping Mr. Scanlon and Mr. Abramoff with their clients.

Mr. Ney, chairman of the House Administration Committee, has offered his cooperation to prosecutors, said Brian Walsh, his spokesman, who added that Mr. Ney had contended that he was tricked by Mr. Scanlon and Mr. Abramoff into assisting their clients.

Federal prosecutors and Congressional officials have been conducting extensive investigations into the lobbying practices of Mr. Abramoff and Mr. Scanlon, who earned about $82 million representing a handful of wealthy Indian tribes on gambling issues over four years. Investigators believe the two men funneled millions through charities and front organizations to skim profits, avoid taxes and mask incomplete work.

Beyond accusations of fraud, investigators have delved into the politically delicate territory of the relationship between lobbyists and lawmakers. Until last year, Mr. Abramoff ruled an industry governed by networking because of his close ties to Mr. DeLay, trading on his access to the rising Republican leader to build a lucrative lobbying practice. He and Mr. Scanlon are at the center of a Senate inquiry that held its final hearing this week.

In the eight-page criminal filing, prosecutors accused Mr. Scanlon of taking part in a "corruption scheme" between January 2000 and April 2004, working alongside a "Lobbyist A" who was identified by lawyers involved in the case as Mr. Abramoff.

The pair "provided a stream of things of value" to Representative No. 1 and members of his staff, the charge read. In return, both Mr. Scanlon and Mr. Abramoff received agreements from Mr. Ney "to perform a series of official acts," including "agreements to support and pass legislation, agreements to place statements into the Congressional Record," and meetings with their clients.

The court filing also states that the congressman helped one of the businessmen's clients apply for a license to install wireless telephone infrastructure in the House of Representatives. Mr. Ney's committee manages such issues.

Mr. Ney has been the focus of scrutiny for months after revelations that he took a 2002 golfing trip to Scotland that was sponsored by Mr. Abramoff. Mr. Ney has started a legal defense fund. His legal troubles have added to the growing ethics accusations against Congressional Republicans.

Other lawmakers including Mr. DeLay received campaign donations from Mr. Abramoff's and Mr. Scanlon's Indian clients. But Mr. Ney performed what prosecutors portrayed as blatant favors for Mr. Abramoff and Mr. Scanlon, inserting remarks helpful to their business into the Congressional Record and sponsoring bills at their behest.

Mark H. Tuohey, the lawyer representing Mr. Ney, said that the congressman had never offered any legislative help to the lobbyists in exchange for travel, like the 2002 golfing trip to Scotland, or gifts.

Mr. Ney has said that Mr. Abramoff deceived him over how the Scotland trip was paid for in his travel disclosure forms, saying it was paid for by a conservative educational group, not by Mr. Abramoff or his lobbying firm - and about the details of Mr. Abramoff's purchase of a casino boat fleet in Florida in 2001.

"I think the people who are named in this among others, Scanlon and Abramoff, didn't tell him the truth," Mr. Tuohey said of Mr. Ney.

Mr. Abramoff was indicted in Florida this year on fraud and conspiracy charges relating to a separate effort to buy Sun Cruz, a fleet of casino boats, in 2000. Although Mr. Scanlon did public affairs work for Sun Cruz, he was not charged in that case. It now appears that Mr. Scanlon has been cooperating with the authorities to reach a plea deal in the Indian gambling inquiry. Mr. Abramoff is not cooperating with law enforcement officials, people involved with the case said.

The lawyer for Mr. Abramoff, Abbe Lowell, declined to comment. The lawyer for Mr. Scanlon, Stephen Braga, confirmed that his client would enter a plea on Monday. "Mr. Scanlon and the Department of Justice will present a proposed plea agreement to the court to resolve the charge," Mr. Braga said.

How much Mr. Scanlon knows and has told prosecutors about the business practices of Mr. Abramoff and members of Congress remains unclear. "This puts a tremendous amount of pressure on Abramoff because Scanlon was reportedly his closest associate," said Lawrence Barcella, a former federal prosecutor who is now a prominent defense lawyer in Washington. As for politicians like Mr. DeLay and Mr. Ney, Mr. Barcella said, "I wouldn't be sitting as comfortably today as I was yesterday if I were them."

In addition to the corruption scheme, prosecutors say Mr. Scanlon and Mr. Abramoff carried out a secret kickback deal in which Mr. Abramoff encouraged his Indian clients to hire Mr. Scanlon for public affairs work. Mr. Scanlon then funneled half his profits to Mr. Abramoff. Their aim was "to enrich themselves by obtaining substantial funds from their clients through fraud and concealment and through obtaining benefits for their clients through corrupt means," the charge said.

Tribes in Mississippi, Louisiana, Texas and Michigan fell prey to the conspiracy, the Scanlon papers said.

Philip Shenon, Eric Lichtblau

and David D. Kirkpatrick

contributed reporting for this article.

    DeLay Ex-Aide to Plead Guilty in Lobby Case, NYT, 19.11.2005, http://www.nytimes.com/2005/11/19/politics/19lobby.html