History > 2009 > USA > Federal Department / Federal Justice (I)

Abuse Issue

Puts the C.I.A. and Justice Dept.

at Odds

August 28, 2009
The New York Times
By PETER BAKER,
DAVID JOHNSTON and MARK MAZZETTI

This article is by Peter Baker, David Johnston and Mark Mazzetti.

WASHINGTON — With the appointment of a prosecutor to investigate detainee abuses, long-simmering conflicts between the Central Intelligence Agency and the Justice Department burst into plain view this week, threatening relations between two critical players on President Obama’s national security team.

The tension between the agencies complicates how the administration handles delicate national security issues, particularly the tracking and capturing of suspected terrorists overseas. It also may distract Mr. Obama, who is trying to move beyond the battles of the Bush years to focus on an ambitious domestic agenda, most notably health care legislation.

The strains became evident inside the administration in the past several weeks. In July, Leon E. Panetta, the C.I.A. director, tried to head off the investigation, administration officials said. He sent the C.I.A.’s top lawyer, Stephen W. Preston, to Justice to persuade aides to Attorney General Eric H. Holder Jr. to abandon any plans for an inquiry.

Mr. Preston presented what was, in effect, a closing argument in defense of the C.I.A., contending that many potential cases against intelligence operatives were legally flawed and noting that they had already been investigated, some more than once. In none, he said, had prosecutors found grounds for charges.

But the Justice Department was unmoved, officials said. Despite the C.I.A. pressure and the stated desire of the White House not to dwell on the past, Mr. Holder went ahead with an investigation that will determine whether agents broke the law in their brutal interrogations.

The officials interviewed for this article spoke anonymously so that they could discuss debates over classified matters.

On the day the decision was announced, Mr. Panetta phoned Mr. Holder, according to people familiar with the call. In the conversation, which lasted less than a minute, the C.I.A. director told the attorney general that the agency would cooperate but expressed his displeasure and swore mildly, if only once.

Mr. Holder and Mr. Panetta are each confronting difficult balancing acts. Mr. Holder inherited a dispirited department accused of carrying out the political wishes of the Bush White House, and he now must show independence while continuing to work with the rest of the administration.

For his part, Mr. Panetta, who is also new to his job and lacks a background in intelligence, must carry out White House orders to make a clean break with some of the Bush administration’s intelligence policies, including ending the C.I.A.’s harsh interrogations. At the same time he must soothe frayed nerves at the C.I.A.

Rahm Emanuel, the White House chief of staff, said that reports of shouting matches were overblown and that the protagonists were simply advocating for their agencies’ viewpoints in robust discussions, as they should. “Leon’s representing his institutional building,” Mr. Emanuel said. “Eric’s representing his institutional responsibilities.”

While top C.I.A. officials are angry at the Justice Department, Mr. Panetta has also quarreled over turf with Dennis C. Blair, the director of national intelligence, to whom he reports. The White House has occasionally been frustrated with both Mr. Panetta and Mr. Holder. And some in the administration have taken aim at Gregory B. Craig, the White House counsel, blaming him for some of the troubles in handling the detainee issue.

The behind-the-scenes fighting began in April when, in response to an A.C.L.U. lawsuit, the Justice Department prepared to release legal opinions written by its lawyers during the Bush administration authorizing the C.I.A. to use brutal interrogation techniques.

Mr. Obama disavowed the harsh methods, like waterboarding and wall-slamming, but the legal opinions were filled with embarrassing details about the C.I.A.’s aggressive approach. Mr. Panetta sought to heavily edit the memos before releasing them but was overruled when Mr. Obama sided with Mr. Holder, who wanted more detailed disclosures, the officials said.

Though he lost on the memos, Mr. Panetta’s camp came away thinking that at least they had won a tacit understanding, said some administration officials; the embarrassing details would be aired, but Justice would back off from any new investigation.

In April, C.I.A. officers felt reassured by Mr. Emanuel’s comments on ABC News, in which he said that Mr. Obama “believes that people in good faith were operating with the guidance they were provided; they shouldn’t be prosecuted.” But White House and Justice officials said that there was no such bargain and that all Mr. Emanuel meant was that C.I.A. officers who followed interrogation guidelines were safe from prosecution.

For his part, Mr. Holder had arrived in office in January thinking he might open an inquiry, and his resolve hardened after reading graphic classified reports of detainee abuse, including several deaths of prisoners in C.I.A. custody in Iraq and Afghanistan.

Still, it came as a shock to the C.I.A. when Newsweek reported in July that Mr. Holder was leaning toward an investigation. Given that the information was contained in an exclusive profile of Mr. Holder, the agency took it as a signal that an inquiry was coming. Mr. Panetta felt blindsided and had several conversations with White House officials about the long-term damage he believed such an inquiry could do to the C.I.A. He said the C.I.A. had already taken disciplinary action against the officers who had committed the most egregious acts.

At the time, Mr. Panetta felt besieged on several fronts. Mr. Blair, the intelligence director, was pushing to appoint the senior intelligence officials in each country overseas, a traditional prerogative of the C.I.A.

And other administration officials complained when the C.I.A. sent documents about the detention program to the Senate Intelligence Committee without giving the White House time to consider whether there were any executive privilege issues.

The interagency debate grew heated enough that Mr. Emanuel summoned Mr. Panetta, Mr. Blair and other officials to the White House to set down rules for what should be provided to Congress. Mr. Panetta complained that he was being chastised for excessive openness after being criticized for excessive secrecy when he pushed to withhold details from the interrogation memos.

The various issues raised by the Bush-era interrogation and detention policies have caused other tensions within the Obama team. Mr. Emanuel and others have concluded that the White House mishandled the planning for the closing of the detention center at Guantánamo Bay, Cuba.

Some in the administration blamed Mr. Craig, the White House counsel, for not anticipating and managing the political reaction to the decisions on Guantánamo and other issues. After The Wall Street Journal suggested that Mr. Craig was on the way out, a White House official said Mr. Emanuel reassured Mr. Craig that it was nonsense, and Mr. Craig’s defenders said he had been handed a thankless task.

Throughout the summer, Mr. Holder indicated that he was still weighing whether to appoint a prosecutor. The C.I.A. dismissed that as empty posturing. To the agency, it was clear that Mr. Holder had already made up his mind and was planning to announce the investigation, as he did Monday even as the inspector general report was released.

Few cabinet officers are closer to Mr. Obama than Mr. Holder, and the issue has been awkward for the two. Aides said that they could not rule out that the two discussed the matter but said that there was never a formal White House meeting about it.

Sensitive to the problems other administrations have had regarding politicizing the Justice Department, Mr. Obama left the decision to Mr. Holder, aides said.

    Abuse Issue Puts the C.I.A. and Justice Dept. at Odds, NYT, 28.8.2009, http://www.nytimes.com/2009/08/28/us/politics/28intel.html?hp

Editorial

New York’s Disgrace

August 25, 2009
The New York Times

The Justice Department has sued several state juvenile detention systems for subjecting children to neglect and abuse. The department is now threatening to sue New York for the same reasons, and rightly so. A recently completed federal investigation has documented unsafe and, in some cases, heartbreaking conditions in several New York state detention facilities.

This problem has been festering for decades. Elected officials who have ignored it will need to clean house as swiftly as possible, closing down the worst institutions and ensuring that children in custody are protected from abuse in compliance with federal law.

In an angry letter to Gov. David Paterson, the department describes a hellish environment where excessive force is commonplace and children risk serious injury — concussions, knocked-out teeth and fractured bones — for minor offenses like laughing too loudly, getting into fistfights or “sneaking an extra cookie” at snack time.

The investigators focused on four facilities — including the infamous Tryon Boys Residential Center, in upstate Fulton County, where an emotionally disturbed 15-year-old named Darryl Thompson died in 2006 after being pinned face down on the floor and held there by two grown men. Three staff members who were trained in cardiopulmonary resuscitation and required to administer it failed to do so. The medical examiner labeled the death a homicide, but the grand jury declined to indict the two men involved.

The report notes that the physical restraints used just before Darryl died have been banned in many parts of the country. But at the time of the investigation, it says, staff members in New York facilities were still being trained to use dangerous restraint techniques and used them, often at the slightest provocation.

The report further suggests that acts of violence and abuse against children have been routinely covered up. Officials fail to act in a timely fashion, or at all, when cronies are caught violating policy in dangerous ways. A 300-pound staff member who slammed a young woman to the floor, causing a concussion, is a vivid example.

The section of the letter on mentally ill children, who make up a significant part of the incarcerated population, is enough to make the reader weep. Psychiatric services, such as they are, are shamefully inadequate. Children often get several different diagnoses within the same institution, which makes it impossible to treat them effectively. Medications appear to be handed out almost at random, without proper monitoring or clear therapeutic goals. Although many detained youths have drug problems, treatment programs are in a shambles.

The Justice Department report fully vindicates Gladys Carrión, the reform-minded commissioner of New York’s Office of Children and Family Services, who assumed office in 2007. Ms. Carrión has closed many facilities, downsized others, and is working to emphasize treatment and rehabilitation instead of force.

She has faced resistance from lawmakers, who want to keep juvenile centers open in their districts at all costs, and the unions, which are committed to some of the practices the Justice Department finds unconstitutional. Her opponents must now contend with the federal government, which was bound to intervene.

The Justice Department lays out a list of steps the state must take to bring its system into compliance with federal law and basic standards of decency. For starters, it must protect children from excessive force, and provide mental health care and rehabilitative treatment. If not, the state will almost surely be sued.

    New York’s Disgrace, NYT, 25.8.2009, http://www.nytimes.com/2009/08/25/opinion/25tue1.html

Justice Dept. Report Advises Pursuing C.I.A. Abuse Cases

August 24, 2009
The New York Times
By DAVID JOHNSTON

WASHINGTON — The Justice Department’s ethics office has recommended reversing the Bush administration and reopening nearly a dozen prisoner-abuse cases, potentially exposing Central Intelligence Agency employees and contractors to prosecution for brutal treatment of terrorism suspects, according to a person officially briefed on the matter.

The recommendation by the Office of Professional Responsibility, presented to Attorney General Eric H. Holder Jr. in recent weeks, comes as the Justice Department is about to disclose on Monday voluminous details on prisoner abuse that were gathered in 2004 by the C.I.A.’s inspector general but have never been released.

When the C.I.A. first referred its inspector general’s findings to prosecutors, they decided that none of the cases merited prosecution. But Mr. Holder’s associates say that when he took office and saw the allegations, which included the deaths of people in custody and other cases of physical or mental torment, he began to reconsider.

With the release of the details on Monday and the formal advice that at least some cases be reopened, it now seems all but certain that the appointment of a prosecutor or other concrete steps will follow, posing significant new problems for the C.I.A. It is politically awkward, too, for Mr. Holder because President Obama has said that he would rather move forward than get bogged down in the issue at the expense of his own agenda.

The advice from the Office of Professional Responsibility strengthens Mr. Holder’s hand.

The recommendation to review the closed cases, in effect renewing the inquiries, centers mainly on allegations of detainee abuse in Iraq and Afghanistan. The Justice Department report is to be made public after classified information is deleted from it.

The cases represent about half of those that were initially investigated and referred to the Justice Department by the C.I.A.’s inspector general, but were later closed. It is not known which cases might be reopened.

Mr. Holder was said to have reacted with disgust earlier this year when he first read accounts of abusive treatment of detainees in a classified version of the inspector general’s report and other materials.

In examples that have just come to light, the C.I.A. report describes how C.I.A. officers carried out mock executions and threatened at least one prisoner with a gun and a power drill. It is a violation of the federal torture statute to threaten a prisoner with imminent death.

Mr. Holder, who questioned the thoroughness of previous inquiries by the Justice Department, is expected to announce within days his decision on whether to appoint a prosecutor to conduct a new investigation; in legal circles, it is believed to be highly likely that he will go forward with a fresh criminal inquiry.

Paul Gimigliano, a C.I.A. spokesman, said Sunday that the Justice Department recommendation to reopen the cases had not been sent to the intelligence agency. He added: “Decisions on whether or not to pursue action in court were made after careful consideration by career prosecutors at the Justice Department. The C.I.A. itself brought these matters — facts and allegations alike — to the department’s attention.”

The report by the Justice Department’s ethics office has been under preparation for more than five years, and its critique of legal work on interrogations provoked bitter complaints from Attorney General Michael B. Mukasey as he was leaving office as the Bush administration’s final attorney general.

The Justice Department’s report, the most important since Mr. Holder took office, was submitted by Mary Patrice Brown, a veteran Washington federal prosecutor picked by Mr. Holder to lead the Office of Professional Responsibility earlier this year after its longtime chief, H. Marshall Jarrett, moved to another job in the Justice Department.

There has never been any public explanation of why the Justice Department decided not to bring charges in nearly two dozen abuse cases known to be referred to a team of federal prosecutors in Alexandria, Va., and in some instances not even the details of the cases have been made public.

Former government lawyers said that while some detainees died and others suffered serious abuses, prosecutors decided they would be unlikely to prevail because of problems with mishandled evidence and, in some cases, the inability to locate witnesses or even those said to be the victims.

A few of the cases are well known, like that of Manadel al-Jamadi, who died in 2003 in C.I.A. custody at Abu Ghraib prison in Iraq after he was first captured by a team of Navy Seals. Prosecutors said he probably received his fatal injuries during his capture, but lawyers for the Seals denied it.

Over the years, some Democratic lawmakers sought more details about the cases and why the Justice Department took no action. They received summaries of the number of cases under scrutiny but few facts about the episodes or the department’s decisions not to prosecute.

The cases do not center on allegations of abuse by C.I.A. officers who conducted the forceful interrogations of high-level Qaeda suspects at secret sites, although it is not out of the question that a new investigation would also examine their conduct.

That could mean a look at the case in which C.I.A. officers threatened one prisoner with a handgun and a power drill if he did not cooperate. The detainee, Abd al-Rahim al-Nashiri, was suspected as the master plotter behind the 2000 bombing of the Navy destroyer Cole.

All civilian employees of the government, including those at the C.I.A., were required to comply with guidelines for interrogations detailed in a series of legal opinions written by the Justice Department. Those opinions, since abandoned by the Obama administration, were the central focus of the Justice Department’s internal inquiry.

It has been known that the Justice Department ethics report had criticized the authors of the legal opinions and, in some cases, would recommend referrals to local bar associations for discipline.

But the internal inquiry also examined how the opinions were carried out and how referrals of possible violations were made — a process that led ethics investigators to find misconduct serious enough to warrant renewed criminal investigation.

    Justice Dept. Report Advises Pursuing C.I.A. Abuse Cases, NYT, 24.8.2009, http://www.nytimes.com/2009/08/24/us/politics/24detain.html

Judge Orders Guantánamo Detainee to Be Freed

July 31, 2009
The New York Times
By WILLIAM GLABERSON

WASHINGTON — A federal judge on Thursday ordered that one of the youngest detainees at Guantánamo Bay, Cuba, be released by late August in a case that drew wide attention because of rulings that he had been tortured by Afghan officials and abused in American custody.

“Enough has been imposed on this young man to date,” the judge, Ellen Segal Huvelle, said in a courtroom crowded with people drawn by what had become a confrontation between the judge and the Obama administration.

But it was not clear Thursday whether Judge Huvelle’s order will mean freedom for the detainee, Mohammed Jawad, who has long faced American charges that, as a teenager, he threw a hand grenade in Kabul in 2002 that injured two American servicemen and their Afghan interpreter.

The ruling on Thursday came after a concession by the government last week that it could no longer defend Mr. Jawad’s military detention in the habeas corpus case before Judge Huvelle. She had declared that the administration’s case for continuing his detention after nearly seven years was “riddled with holes” and that virtually all of the government’s evidence came from confessions he made after being threatened with death.

Justice Department officials said they were studying whether to file civilian criminal charges against Mr. Jawad. If they do, officials say, he could be transferred to the United States to face charges, instead of being sent to Afghanistan, where his lawyers say he would be released to his mother.

“It is a very real possibility,” a Justice Department official said in an interview, “but whether we can compile enough evidence to support a case is a question we don’t yet know the answer to.” The official spoke on condition of anonymity because the department does not discuss investigations.

Mr. Jawad’s military lawyer, Maj. David J. R. Frakt, said he would file court challenges to any effort by the administration to move his client to the United States to face charges. But Major Frakt conceded that the Aug. 21 deadline Judge Huvelle gave the government to send Mr. Jawad to Afghanistan also gave prosecutors time to work on a grand jury investigation.

“We have won the battle,” he said outside the federal courthouse here. “Have we won the war? Perhaps it remains to be seen.”

The Obama administration had asked for the 22 days to comply with a recently passed provision requiring that Congress be given 15-days notice of any detainee transfer. The administration said it needed an additional week to prepare the notice.

Mr. Jawad’s age is unknown, but his lawyers say he was 14 or 15 at the time of the grenade attack. Military prosecutors have been pursuing war crimes charges against Mr. Jawad in the military commission system at Guantánamo. But their case foundered after a military judge ruled last year that it was largely based on confessions Mr. Jawad gave after being tortured.

Justice Department lawyers told Judge Huvelle they would no longer use those statements. But they said they had additional evidence, including witnesses to the attack.

From the bench on Thursday, Judge Huvelle criticized the government for what she described as inattention to the case and a “continuing pattern” of delay both by the Bush and Obama administrations. She said any prosecution would face difficulties, including what she said was a possible denial of Mr. Jawad’s right to a speedy trial and evidence that his treatment at Guantánamo was harsher than any juvenile defendant would face in the United States.

“I hope,” Judge Huvelle said, “the government will succeed in getting him sent back home.”

    Judge Orders Guantánamo Detainee to Be Freed, NYT, 31.7.2009, http://www.nytimes.com/2009/07/31/us/31gitmo.html?hpw

Madoff Is Sentenced to 150 Years for Ponzi Scheme

June 30, 2009
The New York Times
By DIANA B. HENRIQUES

A criminal saga that began in December with a string of superlatives — the largest, longest and most widespread Ponzi scheme in history — ended the same way on Monday as Bernard L. Madoff was sentenced to 150 years in prison, the maximum for his crimes.

Mr. Madoff, looking thinner and more haggard than when he pleaded guilty in March, stood impassively as Federal District Judge Denny Chin condemned his crimes as “extraordinarily evil” and imposed a sentence that was three times as long as the federal probation office suggested and more than 10 times as long as defense lawyers had requested.

Though many questions still surround the case, the judge’s pronouncement offered a brief sense of resolution, followed by a short burst of applause and one stifled cheer from the victims who filled the soaring Lower Manhattan courtroom.

Only a few moments before, Mr. Madoff had apologized for the harm he inflicted on the clients who had trusted him, his employees and his family. He blamed his pride, which would not allow him to admit his failures as a money manager.

“I am responsible for a great deal of suffering and pain. I understand that,” he said, leaning slightly forward over the polished table, his charcoal suit sagging on his diminished frame.

“I live in a tormented state now, knowing of all the pain and suffering that I have created.”

At the end of his personal statement, Mr. Madoff abruptly turned to face the courtroom crowd. He was no longer the carefully tailored and coiffed financier. His hair was ragged. His eyes were sunken into deep gray shadows. His voice was a little raspy, and he stopped on occasion to sip water.

“I am sorry,” he said, and abruptly added: “I know that doesn’t help you.”

Nine victims, some choked by sobs or swiping at tears, told the court of the damage he had caused, describing him as a psychopath and a monster who had destroyed their lives.

“It feels like a nightmare that we can’t awake from,” said Carla Hirschhorn, a physical therapist who said her daughter was juggling two jobs in her junior year to help pay for college expenses that their lost savings were supposed to cover.

Michael Schwartz, who said Mr. Madoff had stolen money set aside to sustain his disabled brother, expressed the hope that “his jail cell will become his coffin.”

In meting out the maximum sentence, Judge Chin pointed out that no friends, family or other supporters had submitted any letters on Mr. Madoff’s behalf that attested to the strength of his character or good deeds he had done.

Mr. Madoff returned to his cell at the Metropolitan Correctional Center in Lower Manhattan while federal prison officials determine where he will serve his sentence. The defense has 10 days to decide whether to appeal the sentence.

Although Judge Chin suggested that Mr. Madoff be assigned to a prison in the Northeast, at the request of the defense, the judge said the Bureau of Prisons would decide what kind of facility will become his permanent home.

No members of Mr. Madoff’s immediate family were in court.

In his statement, Mr. Madoff acknowledged the “legacy of shame” he has created for his family.

His wife, Ruth, later released a statement — her first since her husband’s arrest — expressing her grief for the victims and her sense of shock and betrayal when she learned of the crime.

Mrs. Madoff has not been charged in the crime and insists that she did not know of it until her husband told her just before his arrest. But she acknowledged that her silence, imposed by lawyers protecting her own interests, “has been interpreted as indifference or lack of sympathy for the victims.” That, she added, “is exactly the opposite of the truth.”

She said she felt “devastated” by the harm her husband had done. “I am embarrassed and ashamed. Like everyone else, I feel betrayed and confused,” said Mrs. Madoff, who has forfeited all but $2.5 million in assets. “The man who committed this horrible fraud is not the man whom I have known for all these years.”

Many victims also accused regulators and lawmakers of betraying them for decades by failing to stop Mr. Madoff, and failing them again by not helping them deal with their financial hardships since they learned their savings had evaporated.

Judge Chin cautioned one speaker that those entities “are not before me,” but, in a larger sense, the Madoff case seemed to put an entire era on trial — a heady time of competitive deregulation and globalized finance that climaxed last fall in a frenzy of fear, panic and loss.

The blame has been spread wide — to arcane credit-default swaps, to lax enforcement of weak regulations, to poorly understood risks and badly managed financial institutions.

But with his arrest on Dec. 11, Mr. Madoff, a senior statesman in the private corridors of Wall Street who was respected for his vision and trusted by tens of thousands of customers, put a human face on those abstractions.

Mr. Madoff’s luxurious lifestyle, including a penthouse, yachts and French villa, all quickly became fuel for public outrage.

Every move in the case was closely watched, including his confession to his sons, Andrew and Mark, who were in his business; his guilty plea to 11 counts of various financial crimes in March; and his wife’s legal efforts to save some family assets from a sweeping government forfeiture.

The fury increased in January with Congressional testimony from a whistle-blower who had repeatedly alerted the Securities and Exchange Commission about his suspicion that Mr. Madoff was operating a gigantic fraud. An internal investigation is now under way at the S.E.C. to determine why the agency did not detect Mr. Madoff’s scheme and shut it down years ago.

The S.E.C. and the Securities Investor Protection Corporation, a government-chartered program to compensate customers of failed brokerage firms, were criticized repeatedly in the courtroom statements by the victims on Monday, and at a rally of victims held near the courthouse afterward.

The litigation already filed in and around the Madoff case will help shape how regulators, the courts and SIPC respond to large-scale Ponzi scheme losses in the future. How the losses of victims will be addressed is just one of many open questions.

The criminal investigation is continuing, as prosecutors try to determine who else bears responsibility for the crime. So far, only Mr. Madoff’s accountant has been arrested on criminal charges, but securities regulators have filed civil suits against several of his long-term investors, accusing them of knowingly steering other investors into the fraud scheme for their own gain.

And the bankruptcy trustee has sued more than a half-dozen hedge funds and large investors, seeking to recover more than $10 billion withdrawn from the fraud in its final months and years. It is uncertain how much money he will be able to recover to share among the victims and how long that effort will take.

And the sentence itself is likely to leave a mark as well, according to legal experts on white-collar crime.

In remarks before announcing his decision, Judge Chin acknowledged that any sentence beyond a dozen years or so would be largely symbolic for Mr. Madoff, who is 71 and has a life expectancy of about 13 years.

But “symbolism is important for at least three reasons,” he said, citing the need for retribution, deterrence and a measure of justice for the victims.

Judge Chin said he did not agree with the suggestion by Ira Lee Sorkin, Mr. Madoff’s lead lawyer, that victims were seeking “mob vengeance” through a maximum sentence.

“They are placing their trust in the system of justice,” he said, adding that he hoped the sentence he imposed would “in some small way” help the victims to heal.

Several former prosecutors called Judge Chin’s decision somewhat surprising but appropriate.

“The judge sent a powerful deterrent message and an ominous signal to possible co-conspirators,” said George Jackson III, a lawyer with Bryan Cave and a former federal prosecutor in Chicago.

Richard L. Scheff, a lawyer with Montgomery, McCracken, Walker & Rhoads and an assistant secretary for law enforcement for the Treasury Department, said the magnitude of the sentence “demonstrates real concern for the harm caused by Madoff to so many victims.”

He added, “Am I surprised? Yes, to a degree — but I strongly suspected that the sentence would be tantamount to a life sentence.”

To Robert S. Wolf, with the law firm Gersten Savage, the sentence “sent a clear and resounding message that Judge Chin felt that Madoff had not come clean and told all about the enormity of his criminal activity and others who participated.”

But James A. Cohen, an associate professor of law at Fordham, said he was troubled by the sentence. “I don’t think symbolism has a very important part in sentencing,” he said. “I certainly agree that a life sentence was appropriate, but this struck me as pandering to the crowd.”

The victims who spoke in the courtroom were unanimous in their demand for a maximum sentence, saying that Mr. Madoff had forfeited his right to live in society. They pointed to the extent of the crime: a fraud that ensnared millionaires, private foundations, a Nobel Prize laureate and hundreds of small investors who lost their life savings to an investment guru they had trusted completely.

Burt Ross, who lost $5 million in the fraud, cited Dante’s “The Divine Comedy,” in which the poet defined fraud as “the worst of sin” and expressed the hope that, when Mr. Madoff dies — “virtually unmourned” — he would find himself in the lowest circle of hell.

Prosecutors said Mr. Madoff deserved the maximum term for carrying out one of the biggest investment frauds in Wall Street history. Mr. Madoff’s lawyers said he should receive only 12 years.

After Mr. Madoff’s victims finished speaking, his lawyer, Mr. Sorkin, said the government’s request for a 150-year sentence bordered on absurd. He called Mr. Madoff a “deeply flawed individual,” but a human being nonetheless. “Vengeance is not the goal of punishment,” Mr. Sorkin said.

Even with a lesser term, Mr. Sorkin added, Mr. Madoff expects to “live out his years in prison.”

 

Zachery Kouwe and Jack Healy contributed reporting.

    Madoff Is Sentenced to 150 Years for Ponzi Scheme, NYT, 30.6.2009, http://www.nytimes.com/2009/06/30/business/30madoff.html?hp

Judge Allows Civil Lawsuit Over Claims of Torture

June 14, 2009
The New York Times
By JOHN SCHWARTZ

The decision issued late Friday by a judge in San Francisco allowing a civil lawsuit to go forward against a former Bush administration official, John C. Yoo, might seem like little more than the removal of a procedural roadblock.

But lawyers for the man suing Mr. Yoo, Jose Padilla, say it provides substantive interpretation of constitutional issues for all detainees and could have a broad impact.

Mr. Padilla was held as an “enemy combatant” in solitary confinement for more than three years in the Navy brig in Charleston, S.C. Mr. Padilla, who was convicted of supporting terrorism and other crimes, demands that Mr. Yoo be held accountable for actions that Mr. Padilla claims led to his being tortured.

During the time Mr. Padilla was held in the brig, according to his filings in the case, he “suffered gross physical and psychological abuse at the hands of federal officials as part off a systematic program of abusive interrogation intended to break down Mr. Padilla’s humanity and his will to live.”

In the 42-page ruling, Judge Jeffrey S. White of Federal District Court in San Francisco characterized the conflict as one that embodies the tension “between the requirements of war and the defense of the very freedoms that war seeks to protect.”

Mr. Yoo, as part of a senior administrative group called the War Council, helped to shape Bush administration policy in the war on terrorism, and as deputy attorney general in the Office of Legal Counsel from 2001 to 2003, wrote many memorandums authorizing harsh treatment. Mr. Yoo had argued that he should be immune from the suit because it was not clearly established that the treatment would be unconstitutional.

Judge White, who was appointed by President George W. Bush, rejected all but one of Mr. Yoo’s immunity claims and found that Mr. Padilla “has alleged sufficient facts to satisfy the requirement that Yoo set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.”

Tahlia Townsend, one of Mr. Padilla’s lawyers, called it “a significant victory for American values, government accountability and our system of checks and balances.” Mr. Padilla’s legal team also included students from Yale Law School’s international human rights clinic.

Ms. Townsend said the decision “announced that fundamental protections against abuse apply to all individuals detained by the government” and established what federal officials should know about the limits of abuse. “That holding goes a long way to making sure that what happened to Mr. Padilla can never happen again,” she said.

Mr. Padilla and his mother, Estela Lebron, are seeking $1 in damages along with a declaration by the court that his treatment was unconstitutional.

As a former government official, Mr. Yoo is being represented by the Justice Department. Charles S. Miller, a department spokesman, said, “We’re reviewing the decision.”

Mr. Yoo, now a law professor at the University of California, Berkeley, did not respond to an e-mail message seeking comment, but in a column he wrote about the suit last year in The Wall Street Journal, he said, “The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement via the ballot box.”

Mr. Padilla, a Brooklyn-born convert to Islam, was arrested in June 2002 and initially charged with taking part in a plot by Al Qaeda to detonate a radioactive “dirty bomb” in the United States. After his time in the brig, the government tried him in Miami, and in 2007, he and two co-defendants were found guilty of conspiracy to murder, kidnap and maim people in a foreign country. Mr. Padilla was sentenced to more than 17 years in prison.

    Judge Allows Civil Lawsuit Over Claims of Torture, NYT, 13.6.2009, http://www.nytimes.com/2009/06/14/us/politics/14yoo.html?hpw

U.S. Lawyers Agreed on the Legality of Brutal Tactic

June 7, 2009
The new York Times
By SCOTT SHANE and DAVID JOHNSTON

WASHINGTON — When Justice Department lawyers engaged in a sharp internal debate in 2005 over brutal interrogation techniques, even some who believed that using tough tactics was a serious mistake agreed on a basic point: the methods themselves were legal.

Previously undisclosed Justice Department e-mail messages, interviews and newly declassified documents show that some of the lawyers, including James B. Comey, the deputy attorney general who argued repeatedly that the United States would regret using harsh methods, went along with a 2005 legal opinion asserting that the techniques used by the Central Intelligence Agency were lawful.

That opinion, giving the green light for the C.I.A. to use all 13 methods in interrogating terrorism suspects, including waterboarding and up to 180 hours of sleep deprivation, “was ready to go out and I concurred,” Mr. Comey wrote to a colleague in an April 27, 2005, e-mail message obtained by The New York Times.

While signing off on the techniques, Mr. Comey in his e-mail provided a firsthand account of how he tried unsuccessfully to discourage use of the practices. He made a last-ditch effort to derail the interrogation program, urging Attorney General Alberto R. Gonzales to argue at a White House meeting in May 2005 that it was “wrong.”

“In stark terms I explained to him what this would look like some day and what it would mean for the president and the government,” Mr. Comey wrote in a May 31, 2005, e-mail message to his chief of staff, Chuck Rosenberg. He feared that a case could be made “that some of this stuff was simply awful.”

The e-mail messages are now in the hands of investigators at the department’s Office of Professional Responsibility, which is preparing a report expected to be released this summer on the Bush administration lawyers who approved waterboarding and other harsh methods. The inquiry, under way for nearly five years, will be the Justice Department’s fullest public account of its role in the interrogation program, which President Obama has ended.

In years of bitter public debate, the department has sometimes seemed like a black-and-white moral battleground over torture. The main authors of memorandums authorizing the methods — John C. Yoo, Jay S. Bybee and Steven G. Bradbury — have been widely pilloried as facilitators of torture.

Others, including Mr. Comey, Jack Goldsmith and Daniel Levin, have largely escaped criticism because they raised questions about interrogation and the law.

But a closer examination shows a more subtle picture. None of the Justice Department lawyers who reviewed the interrogation question argued that the methods were clearly illegal.

For example:

¶Mr. Goldsmith, now a Harvard law professor, unnerved the C.I.A. in June 2004 by withdrawing a 2002 memorandum written by Mr. Yoo that said only pain equal to that produced by organ failure or death qualified as torture.

In addition, in a previously undisclosed letter to the agency, Mr. Goldsmith put a temporary halt to waterboarding. But he left intact a secret companion memorandum from 2002 that actually authorized the harsh methods, leaving the C.I.A. free to use all its methods except waterboarding, including wall-slamming, face-slapping, stress positions and more.

¶Mr. Levin, now in private practice, won public praise with a 2004 memorandum that opened by declaring “torture is abhorrent.” But he also wrote a letter to the C.I.A that specifically approved waterboarding in August 2004, and he drafted much of Mr. Bradbury’s lengthy May 2005 opinion authorizing the 13 methods.

¶Mr. Comey, who had forced a 2004 showdown with White House officials over the National Security Agency’s surveillance program, concurred in that Bradbury opinion. His objections focused on a second legal opinion that authorized combinations of the methods. He expressed “grave reservations” and asked for a week to revise the memorandum, warning Mr. Gonzales that “it would come back to haunt him and the department,” Mr. Comey said in a 2005 e-mail message to Mr. Rosenberg.

Justice Department lawyers involved in the opinions felt torn between what was legal and what was advisable, Mr. Levin said. “Obviously you can only do that which is legal,” he said in a recent interview. “But that does not mean you should automatically do something simply because it is legal.”

The e-mail messages and documents provide new details about a critical year in the interrogation saga, beginning in mid-2004. The C.I.A. inspector general had questioned the legality and effectiveness of the harsh methods, prompting a review of the program. Under intense White House pressure, the Justice Department lawyers in May 2005 approved a series of opinions that reauthorized the harshest practices.

The lawyers had to interpret a 1994 antitorture law written largely with despotic foreign regimes in mind, but used starting in 2002, in effect, as a set of guidelines for American interrogators. The law defined torture as treatment “specifically intended to inflict severe physical or mental pain or suffering.” By that standard, a succession of Justice Department lawyers concluded that the C.I.A.’s methods did not constitute torture.

The only issues that provoked debate were waterboarding, which Mr. Goldsmith questioned, and some combinations of multiple techniques, which Mr. Comey resisted.

Some outside experts agree that the language of the 1994 law is strikingly narrow. “There’s no doubt whatsoever that a great deal of coercive treatment that most people would call torture is not prohibited by the federal antitorture statute,” said Benjamin Wittes, a Brookings Institution scholar who has studied interrogation policy.

But many believe that even under that law, the Justice Department should have recognized that waterboarding, at least, was torture. To argue otherwise, said Brian Z. Tamanaha, a St. John’s University law professor who has studied the interrogation memorandums, required “extraordinary contortions in language and legal analysis.”

Waterboarding, the near-drowning method that Mr. Obama has described as torture, was used on three operatives for Al Qaeda in 2002 and 2003. The C.I.A. never used the technique after it was reauthorized in 2005.

C.I.A. officials had been nervous about the legality of their proposed methods from the start in 2002. They had asked Michael Chertoff, then head of the Justice Department’s criminal division, to grant interrogators immunity in advance from prosecution for torture. Mr. Chertoff refused, but neither did he warn the agency against the methods it was proposing.

The agency’s worst fears about the potential liability of its officers returned with a vengeance in 2004, after the sharp criticism from the agency’s inspector general and Mr. Goldsmith’s withdrawal of the first torture memorandum. C.I.A. officials demanded a comprehensive legal review.

But Mr. Goldsmith resigned in July 2004, and his successor as acting head of the Office of Legal Counsel, Mr. Levin, quickly set to work on the review, assisted by his top deputy, Mr. Bradbury.

On July 22, 2004, the Justice Department offered the C.I.A. interim assurance that it could use all methods except waterboarding, which Mr. Goldsmith had questioned. On Aug. 6, Mr. Levin issued another interim letter reauthorizing waterboarding, as long as rules were followed.

But in February 2005, when Mr. Levin moved to a job as legal adviser to the National Security Council, the new interrogation opinions had not been approved by all necessary officials. The day before his departure, Mr. Levin stopped by and apologized to Mr. Bradbury for leaving it to him to sign the volatile documents.

By April 2005, the opinions were in final form, and Mr. Comey, who had set his own resignation for August, concurred in the 46-page opinion affirming the legality of the 13 techniques. But he told Mr. Gonzales that he strongly objected to Mr. Bradbury’s second opinion, allowing multiple techniques to be used in a single interrogation session.

Mr. Gonzales told him that he was “under great pressure” from Vice President Dick Cheney to complete both memorandums and that President George W. Bush had asked about them, Mr. Comey recounted in one of the 2005 e-mail messages.

Later, after reading a revised draft of the second opinion, Mr. Comey added that “my concerns were not allayed, only heightened.” He said he wanted more time to fix the memorandum, but Mr. Gonzales’s chief of staff, Theodore Ullyot, told him the White House would not wait.

Mr. Comey wanted an analysis centered on actual interrogations in an effort to limit the type and combination of techniques that would be permissible, according to someone familiar with his thinking.

“I told him the people who were applying pressure now would not be there when the [expletive] hit the fan,” Mr. Comey wrote in another e-mail message. “It would be Alberto Gonzales in the bull’s-eye. I told him it was my job to protect the department and the A.G. and that I could not agree to this because it was wrong. I told him it could be made right in a week, which was a blink of an eye, and that nobody would understand at a hearing three years from now why we didn’t take that week.”

    U.S. Lawyers Agreed on the Legality of Brutal Tactic, NYT, 7.6.2009, http://www.nytimes.com/2009/06/07/us/politics/07lawyers.html?hp

President’s Detention Plan Tests American Legal Tradition

May 23, 2009
The New York Times
By WILLIAM GLABERSON

President Obama’s proposal for a new legal system in which terrorism suspects could be held in “prolonged detention” inside the United States without trial would be a departure from the way this country sees itself, as a place where people in the grip of the government either face criminal charges or walk free.

There are, to be sure, already some legal tools that allow for the detention of those who pose danger: quarantine laws as well as court precedents permitting the confinement of sexual predators and the dangerous mentally ill. Every day in America, people are denied bail and locked up because they are found to be a hazard to their communities, though they have yet to be convicted of anything.

Still, the concept of preventive detention is at the very boundary of American law, and legal experts say any new plan for the imprisonment of terrorism suspects without trial would seem inevitably bound for the Supreme Court.

Mr. Obama has so far provided few details of his proposed system beyond saying it would be subject to oversight by Congress and the courts. Whether it would be constitutional, several of the legal experts said in interviews, would most likely depend on the fairness of any such review procedures.

Ultimately, they suggested, the question of constitutionality would involve a national look in the mirror: Is this what America does?

“We have these limited exceptions to the principle that we only hold people after conviction,” said Michael C. Dorf, a constitutional law professor at Cornell. “But they are narrow exceptions, and we don’t want to expand them because they make us uncomfortable.”

In his speech on antiterrorism policy Thursday, Mr. Obama, emphasizing that he wanted fair procedures, sought to distance himself from what critics of the Bush administration saw as its system of arbitrary detention.

“In our constitutional system,” Mr. Obama said, “prolonged detention should not be the decision of any one man.”

But Mr. Obama’s critics say his proposal is Bush redux. Closing the prison at Guantánamo Bay, Cuba, and holding detainees domestically under a new system of preventive detention would simply “move Guantánamo to a new location and give it a new name,” said Michael Ratner, president of the Center for Constitutional Rights. Defense Secretary Robert M. Gates suggested this month that as many as 100 detainees might be held in the United States under such a system.

Mr. Obama chose to call his proposal “prolonged detention,” which made it sound more reassuring than some of its more familiar names. In some countries, it is called “administrative detention,” a designation with a slightly totalitarian ring. Some of its proponents call it “indefinite detention,” which evokes the Bush administration’s position that Guantánamo detainees could be held until the end of the war on terror — perhaps for the rest of their lives — even if acquitted in war crimes trials.

Mr. Obama’s proposal was a sign of the sobering difficulties posed by the president’s plan to close the Guantánamo prison by January. The prolonged detention option is necessary, he said, because there may be some detainees who cannot be tried but who pose a security threat.

These, he said, are prisoners who in effect remain at war with the United States, even after some seven years at Guantánamo. He listed as examples detainees who received extensive explosives training from Al Qaeda, have sworn allegiance to Osama bin Laden or have otherwise made it clear that they want to kill Americans.

Other countries, including Israel and India, have had laws allowing indefinite detention of terrorism suspects, said Monica Hakimi, an assistant professor of law at the University of Michigan who has written about the subject. But, she said, few provide for essentially unending detention, and several European countries have restricted preventive detention to days or weeks.

Mr. Obama’s proposal, Professor Hakimi said, appears to be “an aggressive approach that is not commonly taken in other Western developed countries.”

In a letter to the president on Friday, Senator Russ Feingold, Democrat of Wisconsin, said he was not sure Mr. Obama’s idea would prove constitutional, and added that “such detention is a hallmark of abusive systems that we have historically criticized around the world.”

Some critics of the Bush administration, who have become critics of Mr. Obama as well, have long said they are skeptical that there are detainees who are a demonstrable risk to the country but against whom the government can make no criminal case.

But some proponents of an indefinite detention system argue that Guantánamo’s remaining 240 detainees include cold-blooded jihadists and perhaps some so warped by their experience in custody that no president would be willing to free them. And among them, the proponents say, are some who cannot be tried, in part for lack of evidence or because of tainted evidence.

Benjamin Wittes, a senior fellow at the Brookings Institution, said Mr. Obama’s proposal was contrary to the path his administration apparently hoped to take when he took office. But that was before he and his advisers had access to detailed information on the detainees, said Mr. Wittes, who in a book last year argued for an indefinite detention system.

“This is the guy who has sworn an oath to protect the country,” he said, “and if you look at the question of how many people can you try and how many people are you terrified to release, you have to have some kind of detention authority.”

Civil liberties lawyers say American criminal laws are written broadly enough to make it relatively easy to convict terrorism suspects. They say Mr. Obama has not made the case persuasively that there is a worrisome category of detainees who are too dangerous to release but who cannot be convicted. The reason to have a criminal justice system at all, they say, is to trust it to decide who is guilty and who is not.

“If they cannot be convicted, then you release them,” said Jameel Jaffer, a lawyer at the American Civil Liberties Union. “That’s what it means to have a justice system.”

    President’s Detention Plan Tests American Legal Tradition, NYT, 23.5.2009, http://www.nytimes.com/2009/05/23/us/politics/23detain.html

Lawyer’s Ways Spelled Murder, U.S. Is Charging

May 21, 2009
The New York Times
By DAVID KOCIENIEWSKI

NEWARK — He spent a decade as a top prosecutor, trying murder cases in New Jersey, drug cases in federal court and a wide range of offenses in the military justice system.

He went on to become one of the state’s most prominent defense lawyers, representing clients as varied as Abu Ghraib defendants, the rap stars Lil’ Kim and Queen Latifah and members of Newark’s notorious street gangs.

But federal authorities charged Wednesday that the success their former colleague, Paul Bergrin, had in defending drug dealers and gang leaders was based on a brutal calculus that he had boiled down to a phrase he repeated like a slogan: No witnesses, no case.

In an indictment unsealed on Wednesday in United States District Court in Newark, prosecutors accused Mr. Bergrin, 53, of orchestrating the murder of a confidential witness by leaking his name to drug dealers who shot him in broad daylight on a Newark street corner; of traveling to Chicago to hire a murderer to kill a witness in another case; of coaching some eyewitnesses to lie; and of paying others to change their stories or leave town on the day they were to testify.

The charges, which left Mr. Bergrin in federal custody and facing a possible death penalty, were a stunning development for a flamboyant man who owned a Mercedes and a Bentley, hobnobbed with movie stars and boasted of beach homes in New Jersey and the Caribbean.

To prosecutors, the charges are the latest example of the deadly challenge they face protecting witnesses at a time when the criminal justice system has few resources to shield them and the prevailing street code in many cities urges civilians to “stop snitching.”

Ralph Marra, the acting United States attorney for New Jersey, said he and other law enforcement officials felt a profound sense of betrayal to see Mr. Bergrin — a lawyer who had once taken an oath to uphold the sanctity of the court system — act like a “one-man crime spree” by conspiring to kill, encouraging perjury, arranging drug deals and laundering narcotics money for leaders of street gangs like the Bloods and the Latin Kings.

“Mr. Bergrin operated as an outlaw, as sort of a mob leader,” Mr. Marra said during a news conference on Wednesday in Newark.

Mr. Bergrin stood impassively during his appearance at a court hearing later Wednesday. His lawyer, Gerald L. Shargel, said that Mr. Bergrin would plead not guilty to all 14 counts in the indictment. Four other people who either worked for Mr. Bergrin or with him were also indicted.

Mr. Bergrin was raised in Brooklyn, the son of a New York City police officer. After law school, he served seven years on active duty in the Army — some of that time in the jungles of Central America, some as a lawyer in the judge adjutant general’s office.

During his subsequent rise to power and prominence, he liked to remind those around him that he still considered himself “a street kid,” according to his statements in news interviews.

As a state prosecutor in Essex County, one of New Jersey’s most crime-ridden, he never lost any of his nearly two dozen murder cases. He moved on to the United States attorney’s office, but his service as a federal prosecutor ended in controversy in 1989, when he appeared as a defense witness for two county investigators accused of corruption.

His early years as a defense lawyer were rocky: he was accused of witness tampering by the authorities, but those charges were dropped. With his tireless work ethic and hard-charging style, Mr. Bergrin gradually built a reputation on the street as one of New Jersey’s most effective advocates.

In late 2003, however, a wiretapped conversation between Mr. Bergrin and one of his clients led prosecutors to view him as not just a legal adversary but a potential defendant.

According to court records, the conversation captured him telling his client’s cousin, one of Newark’s most powerful drug lords, the identity of a confidential witness: Deshawn McCray, known as Kemo. A few days later, the authorities say, Mr. Bergrin met with his client’s cousin again and told him “No Kemo, no case.”

Mr. McCray was shot to death three months later in a brutal ambush, forcing prosecutors to drop the charges against Mr. Bergrin’s client, William Baskerville.

Although the authorities had testimony accusing Mr. Bergrin of providing both the inducement and identity that led to Mr. McCray’s killing, the case could not be prosecuted after a judge ruled — and the prosecutors acknowledged — that they mishandled the wiretap tapes, rendering them inadmissible as evidence.

But as they began examining Mr. Bergrin’s legal work, they now say, they noticed what appeared to be a pattern; in at least four other cases, his clients had been cleared after witnesses were either killed or changed their stories.

The indictment that was opened on Wednesday charged that several witnesses told investigators that during the 1990s, Mr. Bergrin either coached them to lie or paid them to do so.

One of those cases is that of Norberto Velez, a Newark man accused of murdering his wife by stabbing her 27 times in front of their 8-year-old daughter. The child changed her story between the time of her mother’s killing and the day she testified at her father’s murder trial, and later acknowledged in court that Mr. Bergrin had coached her to lie on the stand, according to the indictment.

The most substantial portion of the new evidence in the indictment involved the prosecutor’s contention that Mr. Bergrin hired a hit man in 2008 to murder a witness against Vincente Esteves, a man charged by Monmouth County officials with running a narcotics ring.

The indictment says that investigators secretly taped Mr. Bergrin and an associate during numerous conversations in which they tried to hire a killer to murder a witness known as Junior the Panamanian before he could testify. In one of the conversations, investigators say, Mr. Bergrin ordered the gunman to rob his target’s apartment so that the killing would appear to be part of a burglary.

“Make it look like a robbery; this can’t look like a hit,” court papers quote Mr. Bergrin as saying.

Law enforcement officials said that unlike many of the cases Mr. Bergrin is accused of trying to tamper with, which hinged on the testimony of a single witness, the charges against Mr. Bergrin and his four co-defendants were pieced together using a wide assortment of documents, recorded conversations and testimony from numerous witnesses.

“He liked to say ‘No witnesses, no case,’ but we have witnesses, we have evidence and we have a good case,” said Weysan Dun, special agent in charge of the New Jersey office of the F.B.I.

    Lawyer’s Ways Spelled Murder, U.S. Is Charging, NYT, 21.7.2009, http://www.nytimes.com/2009/05/21/nyregion/21witness.html?hpw

Judge Issues Split Ruling on Who Can Be Detained

May 21, 2009
The New York Times
By CHARLIE SAVAGE

WASHINGTON — A federal district judge on Tuesday sought to define how much involvement with Al Qaeda or the Taliban is necessary to make someone subject to indefinite detention without trial at Guantánamo Bay. The ruling gave neither the Obama administration nor the attorneys representing the detainees what they sought.

In a 22-page opinion, District Judge John D. Bates said that a detainee must have been an actual member of Al Qaeda, the Taliban, or associated forces, or have directly participated in belligerent acts, to be detained indefinitely. Judge Bates rejected the Obama administration’s contention that it should also be able to indefinitely detain people who merely “supported” those organizations.

But the judge also ruled that anyone who “receives and executives orders or directions” from those groups may be detained, even if he never directly participated in hostilities. That part of the ruling rejected the detainee lawyers’ claim that the laws of war do not allow the president to detain “civilians” merely for being members of an enemy group.

Judge Bates’s ruling was the latest step in long-running litigation over the rights of terrorism suspects. The Supreme Court has ruled that the military can imprison Al Qaeda and Taliban members indefinitely and without trial, but it has also ruled that detainees have a right to go to court and make the case that they are not terrorists.

In order to make such a determination, district judges first need a standard for how much involvement with Al Qaeda or the Taliban is required to make someone subject to detention. Earlier this year, the Obama administration changed the standard that the Bush administration had proposed using — for one thing, dropping the term “enemy combatant.”

Judge Bates’s mixed ruling on the Obama administration’s proposed standard is likely to add to the legal confusion surrounding the rights of Guantánamo detainees.

His ruling applies only to a set of Guantánamo-detainee habeas corpus cases that are pending in his courtroom, and other judges on the federal district court for the District of Columbia remain free to adopt different standards.

Indeed, two other district judges have already adopted two other standards that appear to give greater power to the government.

“Even with what we perceive as its flaws, it is the best decision from the detainees’ point of view,” said Peter Ellis, a Boston attorney who is representing one of the detainees.

Mr. Ellis said the detainees’ legal team had not yet decided whether to appeal the part of Judge Bates’s ruling that they disagree with now, or to go forward with individual hearings under his definition and save the issue for later. Similarly, Dean Boyd, a Justice Department spokesman, said that the administration is still reviewing the decision.

Legal specialists say that it is likely that the Court of Appeals for the District of Columbia will eventually issue a single standard that all judges can apply uniformly — and that they expect the dispute to reach the Supreme Court before it is resolved.

    Judge Issues Split Ruling on Who Can Be Detained, NYT, 21.5.2009, http://www.nytimes.com/2009/05/21/us/politics/21bates.html?ref=politics

Torture Memos Will Not Result in Prosecutions

May 6, 2009
The New York Times
By DAVID JOHNSTON and SCOTT SHANE

WASHINGTON — An internal Justice Department inquiry into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted, according to government officials briefed on a draft of the findings.

The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask that state bar associations consider possible disciplinary action, including reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.

The conclusions of the 220-page draft report are not final and have not yet been approved by Attorney General Eric H. Holder Jr. The officials said it is possible the final report might be subject to revision, but they did not expect major alterations in its main findings or recommendations.

The draft report is described as very detailed, tracing e-mail messages between Justice Department lawyers and officials at the White House and the Central Intelligence Agency. Among the questions it is expected to consider is whether the memos reflected the lawyers’ independent judgments of the limits of the federal anti-torture statute or were skewed deliberately to justify what the C.I.A. proposed.

At issue are whether the Justice Department lawyers acted ethically in writing a series of legal opinions from 2002 to 2007. The main targets of criticism are John Yoo, Jay S. Bybee, and Steven G. Bradbury, who as senior officials in the department’s Office of Legal Counsel were the principal authors of the memos.

The opinions permitted the C.I.A. to use a number of interrogation methods that human rights groups have condemned as torture, including waterboarding, wall-slamming, head-slapping and other techniques. The opinions allowed many of these practices to be used repeatedly and in combination.

Several legal scholars have remarked that in approving waterboarding — the near-drowning method that President Obama and his aides have described as torture — the Justice Department lawyers did not cite cases in which the United States government had prosecuted American law enforcement officials and Japanese interrogators in World War II for using the procedure.

In a letter made public on Monday, the Justice Department advised two Democratic senators on the Judiciary committee, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island, that the former department lawyers who wrote the opinions had until Sunday to submit written appeals to the findings.

The draft report on the interrogation opinions was completed in December and has provoked controversy within counterterrorism circles, which has intensified since last month when the Obama administration disclosed four previously secret opinions written from 2002 and 2005, which for the first time detailed the approved procedures.

    Torture Memos Will Not Result in Prosecutions, NYT, 6.5.2009, http://www.nytimes.com/2009/05/06/us/politics/06inquire.html

Transsexual Wins $500, 000 Lawsuit

April 29, 2009
Filed at 11:00 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- A federal judge has awarded a former Army Special Forces commander nearly $500,000 because she was rejected from a job at the Library of Congress while transitioning from a man to a woman.

Diane Schroer of Alexandria, Va., applied for the terrorism analyst job while she was still a man named David Schroer. He was offered the job, but the offer was pulled after he told a library official that he was having surgery to change his gender.

U.S. District Judge James Robinson ruled Tuesday that Schroer was entitled to $491,190 in back pay and damages because of sex discrimination.

The Library of Congress and the Justice Department argued unsuccessfully that discrimination because of transsexuality was not illegal sex discrimination under the Civil Rights Act.

The American Civil Liberties Union had argued the case on Schroer's behalf. Paul Cates with the ACLU's Lesbian and Gay Rights Project said the ruling was significant because a federal judge said that discriminating against someone for changing genders is sex discrimination under federal law.

Schroer is a former U.S. Army colonel who directed a classified group that tracked and targeted terrorists. Schroer retired in 2004 and worked briefly in the private sector before applying for the Congressional Research Service job at the Library of Congress.

After being offered the job, Schroer had lunch with a Library of Congress official and explained the upcoming surgery. Schroer testified the official called the next day and said the position would not be a ''good fit.''

    Transsexual Wins $500, 000 Lawsuit, NYT, 29.4.2009, http://www.nytimes.com/aponline/2009/04/29/us/politics/AP-US-Transsexual-Lawsuit.html

Contraception Pill Strictures Are Eased by a Judge

March 24, 2009
The New York Times
By NATASHA SINGER

A federal judge ordered the Food and Drug Administration on Monday to make the Plan B morning-after birth control pill available without prescription to women as young as 17.

The judge ruled that the agency had improperly bowed to political pressure from the Bush administration in 2006 when it set 18 as the age limit.

The agency has 30 days to comply with the order, in which the judge also urged the agency to consider removing all restrictions on over-the-counter sales of Plan B. The drug consists of two pills that prevent conception if taken within 72 hours of sexual intercourse.

Some women’s health advocates hailed the decision.

“It is a complete vindication of the argument that reproductive rights advocates have been making for years, that in the Bush administration it was politics, not science, driving decisions around women’s health,” said Nancy Northup, president of the Center for Reproductive Rights, the attorneys for the plaintiff in the suit against the F.D.A.

But some conservative groups voiced concern that the ruling could promote sexual promiscuity. “Now some minor girls will be able to obtain this drug without any guidance from a doctor and without any parental supervision,” the Family Research Council said in a statement.

Plan B has been available by prescription in the United States since 1999.

But because the drug must be taken so soon after intercourse to be effective, in 2001 more than five dozen public health groups, with endorsements from World Health Organization and the American Medical Association, asked the F.D.A. to make Plan B available over the counter.

Not until 2006 did the F.D.A. rule, saying that the drug could be sold without a prescription only to women over 18. In order to enforce the age restriction, the agency also ordered that Plan B be stocked behind pharmacy counters, in contrast to other over-the-counter contraceptives like condoms.

On Monday, in a decision that criticized former F.D.A. officials, Judge Edward R. Korman of Federal District Court in New York threw out the F.D.A. ruling.

Judge Korman wrote that officials of the agency had repeatedly delayed action on the petition, moving only when members of Congress threatened to hold up confirmation hearings on acting F.D.A. commissioners. Several officials also violated the agency’s own policies, he wrote.

Citing depositions, Judge Korman wrote that agency officials had improperly communicated with White House officials about Plan B. And, he said, F.D.A. employees sought to influence decisions by appointing people with anti-abortion views to an independent panel of experts reviewing Plan B for the agency.

The agency also departed from its normal procedures, the judge wrote, by ignoring favorable conclusions about the drug by an advisory panel as well its own scientists and officials who found that the drug could be safely used by women at least as young as 17.

Such “political considerations, delays and implausible justifications” showed that the F.D.A. had acted without good faith or reasoned decision making, Judge Korman wrote.

Susan F. Wood, a former F.D.A. director of women’s health who resigned in 2005 to protest the handling of Plan B, said Monday that the judge’s decision to send the drug back for reconsideration signaled hope of the agency’s ability to act independently under a new administration.

There is a new chance to “restore the scientific integrity of the F.D.A.,” said Ms. Wood, now a professor of public health at George Washington University.

In response to a query from a reporter, an F.D.A. spokeswoman wrote Monday in an e-mail message that the agency was still reviewing the decision.

    Contraception Pill Strictures Are Eased by a Judge, NYT, 24.3.2009, http://www.nytimes.com/2009/03/24/health/24pill.html?hp

California's video game law ruled unconstitutional

Fri Feb 20, 2009
3:59pm EST
Reuters
By Gina Keating

LOS ANGELES (Reuters) - A U.S. appeals court ruled Friday that a California law restricting the sales and rental of violent video games to minors and imposing labeling requirements is too restrictive and violates free speech guarantees.

The Ninth U.S. Circuit Court of Appeals found that the labeling requirement unfairly forces video games to carry "the state's controversial opinion" about which games are violent.

The unanimous opinion by a three-judge panel could have a far-reaching impact on efforts by other states to establish mandatory video game labeling requirements.

The court upheld a lower court finding that California lawmakers failed to produce evidence that violent video games cause psychological or neurological harm to children.

"Even if it did, the Act is not narrowly tailored to prevent that harm and there remain less restrictive means of forwarding the state's purported interests," the court wrote.

Those alternative measures include the voluntary ratings system established by the Entertainment Software Rating Board, educational campaigns and parental controls, the court said.

State Sen. Leland Yee, the author of the legislation, said he will urge California Attorney General Jerry Brown to appeal the court's ruling to the U.S. Supreme Court.

"I've always contended that the ... law the governor signed was a good one for protecting children from the harm from playing these ultra-violent video games," Yee told Reuters. "I've always felt it would end up in the Supreme Court."

Bo Andersen, president and chief executive of the Entertainment Merchants Association, said the ruling vindicates his group's position that "ratings education, retailer ratings enforcement, and control of game play by parents are the appropriate responses to concerns about video game content."

Andersen and Michael Gallagher, president and CEO of the Entertainment Software Association, urged the state to abandon any further appeals of the case.

"This is a clear signal that in California and across the country, the reckless pursuit of anti-video game legislation like this is an exercise in wasting taxpayer money, government time and state resources," Gallagher said in a statement.

The 2005 law, which requires games described as violent to carry an "18" label, has been contested by video game publishers, distributors and sellers.

A lower court had barred the law from taking effect in 2006, and later invalidated it. The state appealed that case, titled Video Software Dealers Association v. Arnold Schwarzenegger (CV-05-04188), last October.

Entertainment Software Association members include Disney Interactive Studios, Electronic Arts, Microsoft Corp, THQ Inc, Sony Computer Entertainment America, and Take-Two Interactive Software.

(Reporting by Gina Keating; additional reporting by Jim Christie in San Francisco; editing by Gerald E. McCormick, Richard Chang)

    California's video game law ruled unconstitutional, R, 20.2.2009, http://www.reuters.com/article/domesticNews/idUSTRE51J5A520090220

News Analysis

Remarks on Torture Could Lead to Legal Changes

January 17, 2009
The New York Times
By SCOTT SHANE

WASHINGTON — Just 14 months ago, at his confirmation hearing, Attorney General Michael B. Mukasey frustrated and angered some senators by refusing to state that waterboarding, the near-drowning technique used on three prisoners by the Central Intelligence Agency, is in fact torture.

This week, at his confirmation hearing, Eric H. Holder Jr., the attorney general-designate, did not hesitate to express a clear view. He noted that waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge.

“We prosecuted our own soldiers for using it in Vietnam,” Mr. Holder said. “Waterboarding is torture.”

In the view of many historians and legal authorities, Mr. Holder was merely admitting the obvious. He was agreeing with the clear position of his boss-to-be, President-elect Barack Obama, and he was giving an answer that almost certainly was necessary to win confirmation.

Yet his statement, amounting to an admission that the United States may have committed war crimes, opens the door to an unpredictable train of legal and political consequences. It could potentially require a full-scale legal investigation, complicate prosecutions of individuals suspected of committing terrorism and mire the new administration in just the kind of backward look that Mr. Obama has said he would like to avoid.

Mr. Holder’s statement came just two days after the Defense Department official in charge of military commissions at Guantánamo Bay, Cuba, said in an interview with The Washington Post that she had refused to permit a trial for one detainee there, Mohammed al-Qahtani, because she believed he had been tortured.

Together the statements, from a current and an incoming legal official, cover both the Central Intelligence Agency, which has acknowledged waterboarding three captured operatives of Al Qaeda, and the military’s detention program.

Legal experts across the political spectrum said the statements would make it difficult for the incoming administration to avoid a criminal investigation of torture, even as most also say a successful prosecution might well be impossible.

Two obvious obstacles stand in the way of a prosecution: legal opinions from the Justice Department that declared even the harshest interrogation methods to be legal, and a provision in the Military Commissions Act of 2006 that grants strong legal protections to government employees who relied on such legal advice in counterterrorism programs.

Still, Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch, said, “It would be contrary to the principles of the criminal justice system for the attorney general to say he believes a very serious crime has been committed and then to do nothing about it.”

Charles D. Stimson, who served as the Defense Department’s top official on detainee affairs from 2004 to 2007 and is now a senior legal fellow at the conservative Heritage Foundation, said the statements “certainly will increase the pressure on Holder to mount some kind of investigation.”

In addition to domestic political pressures, the United States appears to have a legal obligation as a party to the international Convention against Torture to follow up on the torture statements. That treaty requires signatory states to conduct a “prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”

The Bush administration placed its interrogation operations offshore, at the American base in Cuba and at secret C.I.A. sites, and officials have sometimes argued that they were not on territory under American jurisdiction. But that assertion has been eroded by court decisions concerning the Guantánamo detention center, and it is unlikely that the Obama administration would use such a loophole to avoid the torture convention’s effect.

“There’s a moral, legal and practical obligation of the United States to follow this allegation in good faith wherever it leads,” said Juan E. Méndez, a veteran human rights lawyer who is president of the International Center for Transitional Justice in New York.

Where such an inquiry might lead is an unsettling question for departing Bush administration officials, who have long worried that aggressive policies could make them vulnerable to civil or criminal liability.

If rank-and-file interrogators are protected by the Justice Department’s assurance that their actions were legal, what about the lawyers who gave the assurances? What about the senior officials, including President Bush, who approved the use of waterboarding and other such tactics?

Such questions are so legally daunting and politically complex that Mr. Obama has played down, while not ruling out, the possibility of a criminal investigation or a national commission to examine past policies. In an interview with ABC last Sunday, he said “my orientation’s going to be to move forward” rather than looking back.

In recent weeks, Mr. Bush, Vice President Cheney and other officials have strongly defended their counterterrorism methods and credited them with preventing attacks on the United States since 2001. Their implicit argument — that the Obama administration should not question policies that protected Americans — was made more explicit and personal by Michael V. Hayden, the departing C.I.A. director, in a session with reporters on Thursday.

“If I’m going to go to an officer and say, ‘I’ve got a truth commission, or I want to post all your e-mails, or, well, we’ve got this guy from the bureau who wants to talk to you,’ ” Mr. Hayden said, it would discourage such a C.I.A. officer from taking risks on behalf of the new president’s policies.

“We have no right to ask this guy to bet his kid’s college education on who’s going to win the off-year election,” Mr. Hayden said, alluding to legal fees that such a C.I.A. officer might face.

At his confirmation hearing, Mr. Holder was asked by Senator Orrin G. Hatch, Republican of Utah, whether he would pursue a criminal investigation of the interrogation programs.

Mr. Holder hedged his response, saying, “Senator, no one’s above the law, and we will follow the evidence, the facts, the law, and let that take us where it should.”

But he added, quoting Mr. Obama, that “we don’t want to criminalize policy differences” and finally pleaded for time to study the matter.

“One of the things I think I’m going to have to do,” Mr. Holder said, “is to become more familiar with what happened that led to the implementation of these policies.”

    Remarks on Torture Could Lead to Legal Changes, NYT, 17.1.2009, http://www.nytimes.com/2009/01/17/us/politics/17detain.html?hp

Judge Rules Madoff Can Remain Free on Bail

January 13, 2009
The New York Times
By DIANA B. HENRIQUES

A federal magistrate on Monday refused a government request that Bernard L. Madoff be jailed until he can be tried on charges of operating a $50 billion Ponzi scheme, saying that the government had not proved that he was a flight risk or a security risk.

The ruling, by United States Magistrate Judge Ronald L. Ellis, allows Mr. Madoff to remain in his Manhattan apartment, wearing an electronic monitor device and watched around the clock by a security team paid for by his wife.

Prosecutors had asked the court to revoke Mr. Madoff’s $10 million bail, secured by various family homes held in his wife’s name, after he violated a court-ordered asset freeze by mailing out roughly $1 million in expensive watches and jewelry to family and friends on Christmas Eve.

“The decision speaks for itself, and we intend to comply with all the conditions of his bail,” said Ira Lee Sorkin, a lawyer for Mr. Madoff, after the ruling was released. “But we have no comment with respect to its impact on his day-to-day life.”

The judge did place additional restrictions on the bail requirements, many of which had already been imposed by the Judge Louis L. Stanton of United States District Court, who is handling the civil suit.

“For the government’s detention application to succeed,” Judge Ellis wrote, “the court would have to find that the government has met its burden of showing — by clear and convincing evidence, that no condition or combination of conditions will reasonably assure the safety of any other person and the community; or by a preponderance of the evidence, that there is no condition or combination of conditions that would reasonably assure the ‘presence of the defendant at trial if released.’ ”

“The court finds that the government has failed to meet its burden to either ground,” the ruling said.

Included in the restrictions is one that bars Mr. Madoff from transferring any assets. Mr. Madoff’s wife, Ruth, must also compile with restrictions on the transfer of assets.

In addition, the ruling said, Mr. Madoff shall compile an inventory of all “valuable portable items” in his Manhattan apartment and give it the government. Casale Associates or another security company approved by the government shall then check the inventory every two weeks, the judge said. Mr. Madoff and the government shall agree on a threshold value of the items within a week.

The security firm will also be required to examine all outgoing mail to assure no property has been transferred.

Mr. Madoff was charged last month with securities fraud but has remained free since posting bail.

So far, Mr. Madoff has not been indicted, but has been charged in a criminal complaint with a single count of securities fraud. Typically, such complaints contain fewer details about the crime than a formal indictment does.

Under federal court rules, Monday would have been the deadline for the prosecution to indict Mr. Madoff, or submit to a preliminary hearing to explain to a judge why a formal indictment had not yet been issued. On Friday, lawyers for Mr. Madoff agreed to a 30-day extension of that deadline.

Monday’s ruling came a week after prosecutors first went to court to have Mr. Madoff’s bail revoked for violating the terms of his bail, one of which was a requirement not to dispose of any assets.

Prosecutors said that Mr. Madoff and his wife sent at least a million dollars worth of jewelry as gifts to family members and friends. In addition, prosecutors said, Mr. Madoff had plans to transfer $200 million to $300 million of investors’ money to family members and friends. Indeed, when authorities searched Mr. Madoff’s office desk, they found $173 million in signed checks ready to be sent off.

The packages Mr. Madoff sent, prosecutors said, contained 13 watches, 4 diamond brooches, a jade necklace, 2 sets of cufflinks and other jewelry. Most of the items sent were recovered.

In a response, Mr. Sorkin and Daniel J. Horwitz, who represent Mr. Madoff, have argued that jailing him would be unfair and wrong. Mr. Madoff is already being watched around the clock, both for his protection and to prevent flight, and has an electronic monitoring device, his lawyers wrote.

In addition, they said, Mr. Madoff is too widely known at this point and too disliked to get very far in any effort to flee. Instead of jail, they said, Mr. Madoff would accept having his property inventoried and all his outgoing mail checked to make sure he did not try to transfer valuables again.

Mr. Madoff’s lawyers characterized the jewelry he sent as “a few sentimental personal items.” Mr. and Mrs. Madoff’s decision to mail it, they said, was an honest mistake.

“Mr. Madoff gathered a number of watches that he had collected over the course of years, knowing that, due to the sudden change in his circumstances, he would never have an occasion to wear these watches again. To Mr. and Mrs. Madoff, the value of these items was purely sentimental,” the lawyers wrote.

Marc O. Litt, an assistant United States attorney, first asked for bail revocation at a hearing a week ago. “The case against the defendant is strong and it continues to grow stronger as the government’s investigation continues,” Mr. Litt said at the hearing. “Given the defendant’s age, the length of the likely sentence, the strength of the proof against the defendant, including his confessions, these facts present a clear risk of flight.”

Mr. Madoff told F.B.I. agents last month that he had overseen a financial fraud and estimated that it had cost investors as much as $50 billion, according to a criminal complaint filed in federal court in Manhattan. The fraud was continuing just days before Mr. Madoff confessed it to the F.B.I., according to a lawsuit filed by a New York company that asserts Mr. Madoff took in $10 million from it on Dec. 5.

A government-appointed receiver has now taken over his firm, and agents from the Securities and Exchange Commission agents and F.B.I. investigators are conducting a far-flung investigation to see who may have aided Mr. Madoff. On Monday, the trustee overseeing the liquidation of Mr. Madoff’s firm sent 8,000 claim forms to people who may have invested with Mr. Madoff, asking them to detail what they believe they are owed.

Benjamin Weiser contributed reporting.

    Judge Rules Madoff Can Remain Free on Bail, NYT, 13.1.2009, http://www.nytimes.com/2009/01/13/business/13bail.html?hp

Judge Tosses Suit Challenging Tobacco Settlement

January 6, 2009
Filed at 11:32 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

LOUISVILLE, Ky. (AP) -- A federal judge has dismissed a challenge to the 1998 Master Settlement Agreement between the states and 19 tobacco product makers saying there's no legal basis for attacking the compact.

U.S. District Judge Jennifer Coffman ruled Tuesday that the lawsuit, brought by General Tobacco, failed on all fronts because the company couldn't prove the settlement amounted to either a conspiracy or anti-competitive behavior by the government.

The Master Settlement Agreement was a product of work by state attorneys general, who represented their states in the negotiation, the judge ruled.

''While such acts are not immune from every kind of challenge, they are immune from challenge as a violation of antitrust laws,'' Coffman wrote.

General Tobacco, the sixth-largest tobacco company in the U.S. and maker of GT-One brand cigarettes, sued 52 attorneys general and the tobacco makers, seeking more than $1 billion in damages. It also asked the court to stop states from penalizing the company for not making payments while the lawsuit was pending in U.S. District Court in Louisville.

The company argued that the Master Settlement Agreement between tobacco companies and states is more expensive for new entrants to the industry. The 1998 agreement requires tobacco manufacturers who signed on to make annual payments to the states, partly to pay for billions of dollars in health care costs related to treating tobacco-related diseases under state Medicaid programs.

''We appreciate Judge Coffman's consideration of this case. It was our position that General Tobacco was party to the negotiations and agreed to the terms of the settlement,'' said Allison Martin, a spokeswoman for Kentucky Attorney General Jack Conway.

General Tobacco's executive vice president, J. Ronald Denman, was traveling and did not immediately return a call seeking comment.

A message left with the National Association of Attorneys General in Washington, D.C., was not immediately returned Tuesday morning.

General Tobacco said it has paid about $470 million under the MSA and has another $36 million in escrow.

The Mayodan, N.C.-based company said it sued after the attorneys general ended two years of negotiations over proposed changes to the agreement.

The Master Settlement Agreement ultimately prevented companies from being sued by state governments for the costs of health care for smokers. The settlement required a combination of yearly payments to states and voluntary restrictions on tobacco advertising and marketing.

The settlement also covers cigarette wholesalers and retailers from liability. General Tobacco claims that nonparticipating companies are almost excluded from selling tobacco products in the United States because no wholesaler or retailer will risk selling a brand not covered by the agreement.

The settlement separated participants into two camps -- original participants and subsequent participants. General Tobacco, which was a latecomer to the settlement, said it is unfairly required to pay millions more because it signed on to the agreement later than 19 other companies.

    Judge Tosses Suit Challenging Tobacco Settlement, NYT, 6.1.2009, http://www.nytimes.com/aponline/2009/01/06/business/AP-Tobacco-Settlement-Lawsuit.html