USA > History > 2010 > Federal justice (I)

Judge Rejects

City Law on Antismoking Posters

December 29, 2010
The New York Times
By ANAHAD O’CONNOR

A federal judge on Wednesday struck down a New York City law that would have forced all bodegas and convenience stores to post gruesome images of diseased lungs, brains and teeth in the shops to discourage people from buying cigarettes.

In a 13-page ruling, Judge Jed S. Rakoff of United States District Court in Manhattan wrote that while the law was well intentioned, it violated federal law since only the federal government had the authority to regulate cigarette warnings and advertisements.

“Even merchants of morbidity are entitled to the full protection of the law,” Judge Rakoff wrote, “for our sake as well as theirs.”

The decision puts an end — at least for now— to the city’s plan to have the placards displayed beside cash registers in more than 11,000 establishments across the city. While awaiting Judge Rakoff’s ruling, the city had agreed that it would postpone enforcement of its rule until this weekend.

Lawyers with the city’s Law Department said they planned to appeal the decision.

The city’s health department created the rule in late 2009. In June, the nation’s three biggest tobacco companies — Philip Morris, Lorillard and R. J. Reynolds — joined forces with the New York State Association of Convenience Stores in filing a lawsuit challenging the rule. In their suit, the tobacco companies and convenience stores said the rule violated the First Amendment rights of retailers who disagreed with the message, and breached a law stating that only the federal government can regulate cigarette warnings and advertising.

In his ruling, Judge Rakoff said that health officials had good reason to view smoking as a “public health threat,” citing smoking as the leading cause of preventable death in New York City and the rest of the country. “Within New York City, roughly 7,500 people die from smoking annually — more than from AIDS, homicide and suicide combined,” he wrote.

But Judge Rakoff also cited a federal law enacted in 1965, the Labeling Act, which gave the federal government exclusive authority over cigarette warnings. That law, he wrote, seeks to balance public and commercial interests: the federal government protects the public, but also sets clear and uniform cigarette regulations that protect “commerce and the national economy.”

In his ruling, Judge Rakoff pointed out that the Labeling Act also contained a provision forbidding any state laws from conflicting with the federal government’s policies on cigarette warnings and advertisements. That, he concluded, makes the city’s placard policy illegal.

Floyd Abrams, a lawyer who represented the convenience store association, said that even though the city had agreed not to enforce the rule until this weekend, many retail shops had put up the graphic placards anyway. He said he was “very pleased” with Judge Rakoff’s decision.

“It will allow the retail stores in New York to be freed of the obligation to put signs up urging customers not to buy their lawful products,” he said.

In a statement, the health department said that the city “strongly disagrees” with the ruling and that tobacco companies “trying to prevent these messages from being seen should be ashamed of themselves.”

“The city’s warning signs portray completely factual messages about the dangers of smoking,” the statement added. “They do so at the exact moment when smokers are making decisions about purchasing tobacco. We believe it is the city’s responsibility to help smokers quit and to protect children from the harmful effects of tobacco smoke.”

    Judge Rejects City Law on Antismoking Posters, NYT, 29.12.2010, http://www.nytimes.com/2010/12/30/nyregion/30smoking.html

The Latest Health Care Decision

December 13, 2010
The New York Times

It was no great surprise that a federal district judge in Virginia, nominated by President George W. Bush, declared a provision of the health care reform law unconstitutional. Yet his decision offers at least some hope for health care reform because it bends over backward to limit the scope of his ruling in two important respects.

The core of his ruling is that a requirement in the law that people buy health insurance in 2014 or pay a penalty is unconstitutional because it exceeds Congressional powers to regulate interstate commerce or to impose taxes for the general welfare. Two other district court judges nominated by President Bill Clinton — in Michigan and in another part of Virginia — have ruled the mandate constitutional.

Judge Henry Hudson concluded that Congress can’t regulate “economic inactivity,” the failure to buy health insurance, as if it were “economic activity” that affected interstate commerce. Yet it seems clear that decisions not to buy insurance will, in the aggregate, affect costs in the broader health care markets. We hope higher courts will find that a decision to forgo insurance simply shifts much of the cost for subsequent illness to hospitals, doctors and insured individuals. Taxpayers’ costs would rise to pay for billions of dollars in uncompensated care given to individuals who can’t pay for it.

Judge Hudson also ruled that the penalties for failing to buy insurance, though administered through the Internal Revenue Service, were really a penalty not a tax and thus can’t be justified by Congress’s authority to raise taxes for the general welfare. Yet there are precedents that seem to suggest that penalties can be considered taxes if they raise some revenue.

Virginia’s attorney general had asked the judge to invalidate the entire law if he found the mandate to buy insurance unconstitutional, but Judge Hudson invalidated only the mandate. He said he was following a time-honored rule to “sever with circumspection” by removing only problematic parts of a law.

The attorney general had also asked the judge to stop implementation of the law until a higher court rules on its constitutionality. Judge Hudson sensibly denied that request in part because the crucial provisions of the mandate, the only issue he was addressing, don’t take effect until 2013. Preparatory steps are not irreversible and states should not hang back while this case is being appealed and likely decided by the Supreme Court.

    The Latest Health Care Decision, NYT, 13.12.2010, http://www.nytimes.com/2010/12/14/opinion/14tue2.html

A Terrorist Gets What He Deserves

November 18, 2010
The New York Times
By MORRIS DAVIS

Washington

CRITICS of President Obama’s decision to prosecute Guantánamo Bay detainees in federal courts have seized on the verdict in the Ahmed Ghailani case as proof that federal trials are a disastrous failure. After the jury on Wednesday found Mr. Ghailani guilty of only one charge in the 1998 African embassy bombings, Mitch McConnell, the Republican leader in the Senate, called on the administration to “admit it was wrong and assure us just as confidently that terrorists will be tried from now on in the military commission system.”

The verdict — in which Mr. Ghailani was found guilty of conspiring to blow up United States government buildings and not guilty on 284 other counts — came as a surprise to many, but the outcome does not justify allowing political rhetoric like Senator McConnell’s to trump reality.

True, prosecutors suffered a major setback when Judge Lewis Kaplan of the Federal District Court in Manhattan refused to permit the testimony of the only witness who could connect Mr. Ghailani to the explosives used in the bombings. The judge did so because Mr. Ghailani claimed that he revealed the identity of this witness after being tortured by the C.I.A. The prosecution did not contest his claim, arguing instead that the identificationof this “giant witness for the government” was only remotely linked to Mr. Ghailani’s interrogation.

Judge Kaplan disagreed, saying that Americans cannot afford to let fear “overcome principles upon which our nation rests.” He said that, given the same circumstances, a military commission judge might have reached the same conclusion and barred the testimony.

Many have scoffed at this claim. Representative Peter King, a New York Republican, insists that Judge Kaplan “doomed” the case. Yet a look at the record shows that Judge Kaplan’s assessment of what a military commission judge might have decided was well founded.

Consider Mohammed Jawad, an Afghan teenager who was charged with attempted murder for throwing a grenade at an American vehicle in Kabul in 2002. In 2008 a military judge, Col. Stephen Henley, suppressed incriminating statements Mr. Jawad had made after he was beaten and his family threatened while he was in Afghan custody. The military commission charges were later dropped and last year the United States sent Mr. Jawad home to Afghanistan.

We don’t know for certain whether a military judge would have reached the same conclusion as Judge Kaplan, but given the Jawad precedent it seems very possible. Those who claim to know that the government would have gotten a more favorable ruling in a military commission are ignoring the record.

In any case, Mr. Ghailani now faces a sentence of 20 years to life. Even if he gets the minimum, his sentence will be greater than those of four of the five detainees so far convicted in military commissions. Only one defendant, Ali Hamza al-Bahlul, has been sentenced to life, and this was after he boycotted his tribunal and presented no defense.

Of the four detainees who participated in their military commissions, Omar Khadr, a Canadian citizen who was 15 when arrested, is serving the longest sentence after pleading guilty to murder. Yet he will serve no more than eight years behind bars, less than half of Mr. Ghailani’s minimum incarceration. Salim Hamdan, Osama bin Laden’s former driver, was sentenced to five and half years in 2008 but given credit for time served; five months later he was free. There is no reason to assume that a military commission sentence will be more severe than one from a federal court.

In addition, Mr. Ghailani may well serve his sentence at the “supermax” federal prison in Florence, Colo., where others convicted in the embassy bombings are confined. If so, he will spend more time in solitary and enjoy fewer privileges than those under the most restrictive measures at Guantánamo.

President Obama is in a no-win situation when it comes to trying detainees — any forum he chooses will set off critics on one side of the debate or the other. I hope he pauses to reflect on what he said at the National Archives in May 2009: “Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and our juries, our citizens, are tough enough to convict terrorists.”

The Ghailani trial delivered justice. It did so safely and securely, while upholding the values that have defined America. Now Mr. Obama should stand up to the fear-mongers who want to take us back to the wrong side of history.

Morris Davis, a former Air Force colonel, was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, from 2005 to 2007. He is the director of the Crimes of War Project.

    A Terrorist Gets What He Deserves, NYT, 18.11.2010, http://www.nytimes.com/2010/11/19/opinion/19davis.html

At Terror Trial, Big Questions Were Avoided

November 18, 2010
The New York Times
By BENJAMIN WEISER and CHARLIE SAVAGE

One of the striking aspects of the case of Ahmed Khalfan Ghailani, the first former Guantánamo detainee tried in a civilian court, was how little the federal jury in New York City heard about the issues that had made his case so fiercely debated.

The jurors heard nothing about the prison at Guantánamo Bay, Cuba, where Mr. Ghailani had been held, nor about the secret overseas “black site” run by the Central Intelligence Agency, where, his lawyers say, he had been tortured.

The jury also was not told about statements Mr. Ghailani had made to interrogators before he was brought into the civilian court system, statements that prosecutors say “amount to a confession” of his role in the 1998 bombings of two American Embassies in East Africa, killing 224 people.

Indeed, the four-week trial of Mr. Ghailani realized none of the fears of critics who had claimed that the civilian system would allow terrorism suspects to turn such cases into soapboxes, or that such cases might even be dismissed by judges who were presented with evidence of harsh government interrogation techniques.

That said, the trial also failed to fulfill one of the hopes of some advocates of civilian courts, who saw them as a potential forum for a detailed examination of the Bush administration’s post-9/11 policies on detention and interrogation.

The trial’s outcome — Mr. Ghailani was convicted Wednesday of only one of more than 280 counts including conspiracy and murder — has unquestionably recharged the debate over the wisdom of trying detainees like Khalid Shaikh Mohammed, the professed planner of the 9/11 plot, in federal court.

But the surprising outcome — which pleased defense lawyers and disappointed family members of those killed in Al Qaeda’s attacks on the embassies — was not terribly affected by the issues that have made up that debate.

“At times,” said Ben Wizner, litigation director of the American Civil Liberties Union’s National Security Project, “it seemed like the only forum in which we might have an airing of the legal consequences of torture was in criminal cases against the detainees, but obviously that didn’t happen here.”

What did happen, in the end, was something of a straightforward murder trial, stripped of the larger, inflammatory political aspects, leaving it up to 12 jurors to sort through a familiar assortment of evidence: witness testimony and forensic findings.

The question of how to prosecute detainees who had been subjected to the Bush administration’s counterterrorism policies — including being held for years without charges, and the tainting of important evidence by allegations of torture — was a major issue in Attorney General Eric H. Holder Jr.’s initial decision to send the cases of Mr. Mohammed and four men accused as 9/11 conspirators to the civilian system.

Before making that decision last fall, Mr. Holder requested memorandums from a team of civilian prosecutors based in Manhattan and in Alexandria, Va., the Justice Department’s two premier offices for terrorism cases, and from a team of military prosecutors assigned to the Office of Military Commissions, according to officials familiar with the deliberations.

The military team’s proposed prosecution plan centered on using statements Mr. Mohammed and other detainees had made under interrogation while in custody.

By contrast, the civilian team came up with a way to prosecute the case without using any such statements. The advantage of that approach would be to eliminate the possibility that a statement, if allowed into a trial by a judge, could be the basis of an appeal on grounds that it was tainted and should never have been admitted.

Mr. Holder told colleagues that the contrast between the two memorandums helped convince him that the civilian prosecutors’ approach was more deft. He cited that impression as one of several factors supporting his conclusion that the government was more likely to win a conviction — and have it survive appeal — in the civilian system.

Mr. Ghailani’s case was largely a test of that strategy.

Peter E. Quijano, one of Mr. Ghailani’s lawyers, said on Thursday that when he was appointed to the case in June 2009, “One of the first things that I thought was that I’d have the opportunity to expose exactly what was done to detainees by this country at black sites.

“However, that was quickly removed from consideration,” he said, “once the government made the determination that it would not use” the statements Mr. Ghailani had made during his nearly five years of detention by the C.I.A. and the military.

With those statements out of the case, Mr. Quijano said, how they were obtained — through torture, he said — would no longer be relevant.

A separate government decision also helped to remove the issue of the so-called black sites, or C.I.A. prisons, from the case.

The defense had asked the judge, Lewis A. Kaplan of Federal District Court in Manhattan, to order the government to preserve the prison where Mr. Ghailani had been held. The lawyers made clear that if the government sought the death penalty against Mr. Ghailani, they planned to argue that the sites should be a mitigating factor against capital punishment, “because of what they had done to him” there, Mr. Quijano said.

The lawyers were concerned that the C.I.A., which had said it was halting the use of the secret prisons, would demolish them.

But Mr. Holder decided against seeking capital punishment, thus removing the sites as a potential issue in a death-penalty proceeding.

A ruling by Judge Kaplan also ensured that the issue of torture would not derail the case, when he rejected a defense request that he dismiss the indictment because of the harsh tactics used on Mr. Ghailani. The judge also ruled that the long delay in bringing Mr. Ghailani into court had not violated his right to a speedy trial.

Both of those decisions were clear and important triumphs for the government, and would seem to have settled concerns about whether the protections afforded defendants in the civilian courts would lead to outright dismissals of the cases coming from Guantánamo.

Interestingly, Mr. Ghailani’s lawyers, who argued that their client was an unwitting dupe of Al Qaeda, benefited from the streamlined case — much of which came down to circumstantial evidence suggesting his involvement in the bombings plot.

In the end, he was convicted of a single count of conspiring to destroy government property. He could face 20 years to life in prison, but there was no mistaking that the conviction was far more limited than the broad set of charges the government had brought.

A former federal prosecutor, James J. Benjamin Jr., said he would have been surprised had the government sought to inject the highly politicized issues into the trial.

“It would have been counterproductive,” he said, “from the prosecution’s point of view, and the same is true for the defense. I think both sides probably made a wise strategic choice.”

    At Terror Trial, Big Questions Were Avoided, NYT, 18.11.2010, http://www.nytimes.com/2010/11/19/nyregion/19ghailani.html

Ghailani Verdict Reignites Debate Over the Proper Court for Terrorism Trials

November 18, 2010
The New York Times
By CHARLIE SAVAGE

WASHINGTON — Fierce criticism erupted Thursday over the split verdict on terrorism charges against the first Guantánamo detainee to be tried in civilian court, casting new doubts on the Obama administration’s goal of trying cases against other prisoners in the civilian criminal justice system.

The defendant, Ahmed Khalfan Ghailani, was convicted Wednesday in federal court in Manhattan of conspiring in the 1998 embassy bombings in Africa, and he faces a sentence of 20 years to life in prison. But Republican critics roundly denounced the fact that a jury acquitted him on all but one of more than 280 charges — including every murder count — as a sign that such terrorism detainees should be prosecuted only before a military commission.

That portrayal of the verdict as a disaster was hotly contested by the administration and other supporters of civilian trials. They argued that the system had shown that a terrorist could be convicted and sentenced to a stiff prison term even after a judge excluded evidence tainted by coercive interrogations during the Bush administration.

“People who are criticizing this verdict need to remember the underlying facts of this case and the fact that the verdict handed down will lead to a sentence of anywhere from 20 years to life,” said Matthew Miller, a Justice Department spokesman.

Still, the Obama administration on Thursday appeared to be further away than ever from reaching a decision about how and where to prosecute the highest-profile Guantánamo detainees — Khalid Sheikh Mohammed and four other accused conspirators in the terrorist attacks of Sept. 11, 2001.

Attorney General Eric H. Holder Jr. had decided a year ago to hold the Sept. 11 trial in the federal courthouse in Manhattan. But a few months later, amid concerns about security and anxieties over the attempted bombing of a Detroit-bound airplane last Christmas, the White House rescinded that move without announcing a new venue.

Since then, the political climate has grown more hostile to such a trial in federal court, including opposition by political leaders from each of the potential jurisdictions in the case. White House officials say they continue to discuss their options, including whether it would be possible to change the political dynamics.

Both supporters and critics of the Obama policy had closely watched the Ghailani case. The verdict appeared to add to the political risk by demonstrating that a jury could completely acquit a major terrorism suspect, despite Mr. Holder’s vow that “failure is not an option” in the Sept. 11 case.

“This complicates the equation with regard to civilian trials of high-level Al Qaeda detainees.” said Juan C. Zarate, a deputy national security adviser in the Bush administration who favors civilian trials for some terrorism prosecutions.

“The paradox with these kinds of cases has always been that if these individuals are found not guilty, will the American government let them go free, which is the construct of a criminal proceeding? And the answer is no,” he said, referring to the government’s claim that it can continue to hold Al Qaeda members indefinitely as wartime prisoners. “This case highlights that tension.”

Many prominent Republicans seized on the verdict to renew their call not to bring any other Guantánamo detainee into the United States for a civilian trial. Among them, the incoming speaker of the House, John A. Boehner of Ohio, said “the decision by this administration to try terrorists in civilian court was the wrong one from Day 1” because “terrorists should be tried in military, not civilian, courts.”

Administration officials privately lamented the heated rhetoric, saying that it sometimes blurred the distinction between the special problems associated with the evidence against the group of detainees at Guantánamo who were subjected to harsh interrogations, and ordinary cases of terrorism suspects who have not been abused in custody.

And Representative Jane Harman, a California Democrat and member of the Homeland Security Committee, accused critics of falsely characterizing the Ghailani case “for political advantage,” arguing that he was facing “a stiffer sentence than all but one meted out by military tribunals.”

Many observers attributed any weakness in the prosecution’s case to the fact that the Judge Lewis A. Kaplan of United States District Court in Manhattan, who presided over the trial, refused to allow prosecutors to introduce testimony from an important witness, who was discovered after interrogators used coercive techniques on Mr. Ghailani.

Much of the criticism of the verdict was based on the idea that such evidence would have been admissible in a military commission trial. The incoming chairman of the House Judiciary Committee, Lamar Smith, Republican of Texas, pointed to the exclusion of the witness from the trial as undercutting the idea that foreign terrorists “can be adequately tried in civilian courts,” for example.

“The judge in this case, applying constitutional and legal standards to which all U.S. citizens are entitled, threw out important evidence,” he said.

But proponents of civilian trials noted that in a footnote of his order rejecting the witness, Judge Kaplan pointed to restrictions against evidence obtained by torture in military trials and strongly suggested that a military judge would have excluded the testimony, too.

And Mason Clutter, the counsel of the Rule of Law Program at the bipartisan Constitution Project, noted that most of the arguments that proponents of military tribunals usually make about the risk of civilian trials — like extreme security costs, grandstanding by the defendant, and the disclosure of classified information — did not happen in the Ghailani case.

Still, arguments over the factual details of the case were overshadowed by the larger political dynamics.

“This is a tragic wake-up call to the Obama administration to immediately abandon its ill-advised plan to try Guantánamo terrorists” in civilian courts, said Representative Peter T. King, Republican of New York, the incoming chairman of the House Homeland Security Committee. “We must treat them as wartime enemies and try them in military commissions at Guantánamo.”

Jack Goldsmith, a former top Justice Department official in the Bush administration, argued in a blog posting that “most if not all of the challenges” of the Ghailani case would have been replicated in a military court. He said the verdict showed that such detainees should be held without any trial.

Indefinite military detention, he said, “is a tradition-sanctioned, Congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation. And this morning it looks more appealing than ever.”

    Ghailani Verdict Reignites Debate Over the Proper Court for Terrorism Trials,  NYT, 18.11.2010, http://www.nytimes.com/2010/11/19/us/19gitmo.html

The Ghailani Verdict

November 18, 2010
The New York Times

The verdict in the first federal trial of a former Guantánamo detainee has unleashed the usual chest-thumping and fear-mongering from the usual politicians. They are disappointed that the defendant was only convicted of one count of conspiring to blow up American Embassies in Kenya and Tanzania in 1998 — a crime for which he will probably serve a life sentence.

That clearly wasn’t enough for Representative Peter King, a Long Island Republican who will be the next chairman of the House Homeland Security Committee. He showed a shocking disdain for the 12 jurors, who deliberated more than four days. He described their verdict as a “total miscarriage of justice.”

Senator John McCain proclaimed on the “Imus in the Morning” program that the verdict proved that all terrorism cases should be tried in military commissions, which he said were set up to “get the job done.”

It’s not clear what job Mr. McCain had in mind, unless he meant guaranteeing guilty verdicts, on all counts, all of the time, no matter what the facts are in a case. President George W. Bush created such a system. The Supreme Court rightly declared it unconstitutional.

Let’s pause to consider some facts:

Ahmed Khalfan Ghailani was convicted of a major crime and will pay a high price. The military tribunals have generated four minor guilty verdicts. Not one of the really dangerous men at Guantánamo Bay, Cuba, like Khalid Shaikh Mohammed, the mastermind of Sept. 11, has been brought to trial. It’s never been clear why the tribunals can’t manage to try an important case. Perhaps it is because those cases are so tainted by torture and illegal detention. But it’s clear the tribunals are not working.

Despite predictions of security problems — an argument that Mr. King, Mr. McCain and others often make against civilian terrorism trials — the courthouse near ground zero in Lower Manhattan, the judge, the jury, all of New York City, got safely through the trial.

The prosecution was not as robust, perhaps, as it might have been, but the problem was not the civilian courts. It was the years of abuse that preceded the trial.

Mr. Ghailani was held for five years in outlaw C.I.A. prisons and at Guantánamo and was abused and likely tortured. The prosecution chose not to use his interrogation records because of that and could not introduce testimony by another witness because interrogators learned his name from Mr. Ghailani’s coerced testimony.

That severely tainted evidence most likely would also have been excluded in a military trial. The military tribunals act bars coerced evidence. Mr. McCain knows that because he was a driving force behind the 2006 law and its 2009 amendments. Mr. King voted for both bills.

The problem was never the choice of a court. The 12 civilian jurors were not too weak-minded, as Mr. King seems to think. The judge was not coddling terrorists. He was respecting the Constitution and the law.

The problem with this case was President George W. Bush’s authorizing the illegal detention, abuse and torture of detainees. Susan Hirsch, whose husband was killed in the Tanzania attack, understood that. “I can’t help but feel that the evidence in the case would have been stronger had Ghailani been brought to trial when he was captured in 2004,” she said.

Instead, Mr. Ghailani was kept in illegal detention and was abused and likely tortured.

Some politicians want to keep terrorism trials in military courts because it makes them look tough. Unfortunately, this sort of bluster has led the White House to back off of its pledge to try Mr. Mohammed and other high-profile prisoners in the federal courts.

What really makes this country strong is that it is based on laws not bluster. The federal courts have proved their ability to hold fair trials and punish the guilty. That is what we call getting the job done.

    The Ghailani Verdict, NYT, 18.11.2010, http://www.nytimes.com/2010/11/19/opinion/19fri1.html

Judge Orders U.S. Military to Stop ‘Don’t Ask, Don’t Tell’

October 12, 2010
The New York Times
By JOHN SCHWARTZ

A federal judge on Tuesday ordered the United States military to stop enforcing the “don’t ask, don’t tell” law that prohibits openly gay men and women from serving.

Judge Virginia A. Phillips of Federal District Court for the Central District of California issued an injunction banning enforcement of the law and ordered the military to immediately “suspend and discontinue” any investigations or proceedings to dismiss service members.

In language much like that in her Sept. 9 ruling declaring the law unconstitutional, Judge Phillips wrote that the 17-year-old policy “infringes the fundamental rights of United States service members and prospective service members” and violates their rights of due process and freedom of speech.

While the decision is likely to be appealed by the government, the new ruling represents a significant milestone for gay rights in the United States.

Two other recent decisions have overturned restrictions on gay rights at the state and federal levels. Tuesday’s ruling, in Log Cabin Republicans v. United States of America, could have a potentially sweeping impact, as it would apply to all United States service members anywhere in the world.

Christian Berle, the acting executive director of the Log Cabin Republicans, a gay organization, applauded the judge’s action, saying it would make the armed forces stronger.

“Lifting the ban on open service will allow our armed forces to recruit the best and brightest,” Mr. Berle said, “and not have their hands tied because of an individual’s sexual orientation.”

Alexander Nicholson, the named plaintiff in the lawsuit, said “we sort of won the lottery,” considering the breadth of the decision. Mr. Nicholson is executive director of Servicemembers United, an organization of gay and lesbian troops and veterans.

The government has 60 days to file an appeal. “We’re reviewing it,” said Tracy Schmaler, a Justice Department spokeswoman, adding that there would be no other immediate comment. The government is expected, however, to appeal the injunction to the Court of Appeals for the Ninth Circuit to try to keep it from taking effect pending an appeal of the overall case.

Such a move would carry risks, said Richard Socarides, who was an adviser to President Bill Clinton on gay rights issues. “There will be an increasingly high price to pay politically for enforcing a law which 70 percent of the American people oppose and a core Democratic constituency abhors,” he said.

Critics of the ruling include Tony Perkins, the president of the Family Research Council and a proponent of the don’t ask, don’t tell law, who accused Judge Phillips of “playing politics with our national defense.”

In a statement, Mr. Perkins, a former Marine, said that “once again, an activist federal judge is using the military to advance a liberal social agenda,” and noted that there was still “strong opposition” to changing the law from military leaders.

Mr. Perkins predicted that the decision would have wide-ranging effects in the coming elections. “This move will only further the desire of voters to change Congress,” he said. “Americans are upset and want to change Congress and the face of government because of activist judges and arrogant politicians who will not listen to the convictions of most Americans and, as importantly, the Constitution’s limits on what the courts and Congress can and cannot do.”

The don’t ask, don’t tell law was originally proposed as a compromise measure to loosen military policies regarding homosexuality. Departing from a decades-old policy of banning service by gay, lesbian and bisexual recruits, the new law allowed service and prohibited superiors from asking about sexual orientation. But the law also held that service members could be dismissed from the military if they revealed their sexual orientation or engaged in homosexual acts.

Since 1993, some 14,000 gay men and lesbians have been discharged from the service when their sexual orientation became known, according to Mr. Nicholson’s group.

The law has long been a point of contention, and President Obama has asked Congress to repeal it.

At an afternoon briefing on Tuesday, the White House press secretary, Robert Gibbs, said the injunction was under review, but that “the president will continue to work as hard as he can to change the law that he believes is fundamentally unfair.”

The Department of Justice, however, is required to defend laws passed by Congress under most circumstances.

In February, Defense Secretary Robert M. Gates and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, asked Congress to repeal the law.

The House voted to do so in May, but last month the Senate voted not to take up the bill allowing repeal. Advocates for repeal have pushed for that vote to be reconsidered after the midterm elections.

Jim Manley, a spokesman for the Senate majority leader, Harry Reid, said, “Senator Reid is encouraged by the decision, and still hopes to be able to take the bill to the floor after the elections in November.”

Mr. Gates was on an official visit to Vietnam when Judge Phillips’s action was announced on Tuesday. “We have just learned of the ruling and are now studying it,” said Geoff Morrell, the Pentagon press secretary. “We will be in consultation with the Department of Justice about how best to proceed.”

After her initial ruling in September, Judge Phillips, who was appointed by Mr. Clinton, sought recommendations from the parties as to what kind of legal relief should follow.

The Log Cabin Republicans recommended a nationwide injunction. The Department of Justice sought narrower action.

Arguing that “the United States is not a typical defendant, and a court must exercise caution before entering an order that would limit the ability of the government to enforce a law duly enacted by Congress,” the Justice Department noted that the law had been found constitutional in other courts.

It asked that the judge’s injunction apply only to members of Log Cabin Republicans and not to the military over all.

In the other recent cases in which federal judges have pushed back against laws that restrict gay rights, a judge in California struck down that state’s ban on same-sex marriages in August. And in July, a federal judge in Massachusetts ruled that a law prohibiting the federal government from recognizing same-sex marriages, the Defense of Marriage Act, was unconstitutional, opening the way for federal benefits in such unions.

While Mr. Obama has been critical of the Defense of Marriage Act, the Justice Department has defended it in the federal court challenge. On Tuesday, the department filed an appeal in the case and issued a statement that might well be echoed in coming weeks in the military case.

“As a policy matter, the president has made clear that he believes DOMA is discriminatory and should be repealed,” said Ms. Schmaler, the department spokeswoman. “The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged.”

Advocates for gay rights said they were cheered by the direction of the three recent rulings.

Chad Griffin, the board president of the American Foundation for Equal Rights, which sponsored the litigation against California’s same-sex marriage ban, said that “with the momentum of these three court decisions, I think it really is the beginning of the end of state-sanctioned discrimination in this country.”

    Judge Orders U.S. Military to Stop ‘Don’t Ask, Don’t Tell’, NYT, 12.10.2010, http://www.nytimes.com/2010/10/13/us/13military.html

Stem Cells in Court, Scientists Fear for Careers

October 5, 2010
The New York Times
By AMY HARMON

Rushing to work at Cincinnati Children’s Hospital Medical Center one recent morning, Jason Spence, 33, grabbed a moment during breakfast to type “stem cells” into Google and click for the last 24 hours of news. It is a routine he has performed daily in the six weeks since a Federal District Court ruling put the future of his research in jeopardy.

“It’s always at the front of my brain when I wake up,” said Dr. Spence, who has spent four years training to turn stem cells derived from human embryos into pancreatic tissue in the hope of helping diabetes patients. “You have this career plan to do all of this research, and the thought that they could just shut it off is pretty nerve-racking.”

Perhaps more than any other field of science, the study of embryonic stem cells has been subject to ethical objections and shaped by political opinion. But only a year after the Obama administration lifted some of the limits imposed by President George W. Bush, a lawsuit challenging the use of public money for the research and a conservative shift in Congress could leave the field more sharply restricted than it has been since its inception a decade ago. At stake are about 1,300 jobs, as well as grants from the National Institutes of Health that this year total more than $200 million and support more than 200 projects.

The turn of events has introduced what researchers say is unprecedented uncertainty to a realm of academic science normally governed by the laws of nature and the rules of peer review.

“We’re used to people telling us, ‘That was a stupid idea, we’re not going to fund it,’ and we turn around and think of a better one,” said James Wells, who heads the laboratory where Dr. Spence has a postdoctoral position. “But there’s nothing we can do about this.”

The stem cells, which are thought to have curative potential for many diseases because they can be turned into any kind of tissue in the human body, can be obtained only by destroying a human embryo, which many Americans believe is the equivalent of a life.

In August, Chief Judge Royce C. Lamberth of Federal District Court for the District of Columbia found that the Obama administration’s policy violates a law barring federal financing for “research in which a human embryo or embryos are destroyed, discarded or knowingly subjected to risk of injury or death,” and issued an injunction blocking federal money for the research.

Since then, the field’s fate has appeared to shift almost weekly as the lawsuit wends its way through the courts. Last week, the government won the right from an appeals court to continue financing the contested research while it appeals the ruling. But there is no telling how the appeals court will ultimately rule, and Judge Lamberth could issue a revised injunction.

Many of the nation’s leading stem cell researchers do not know whether they will receive grants they won years earlier through the standard competition, or whether new projects will even be considered. Junior scientists like Dr. Spence, poised to start their own laboratories, are caught in limbo. Senior scientists like Dr. Wells are torn between pursuing research they believe in and protecting students from staking their job prospects on projects they may never be able to complete.

The legal roller coaster is raising stress levels and reducing productivity, researchers say. Instead of tending to their test tubes, they find themselves guessing how each member of the Supreme Court might vote on the case. They are also watching the midterm Congressional elections with new interest — and with some dismay, since many believe that new legislation will be required for their work to continue.

Under guidelines authorized by both the Bush and Obama administrations, work that leads directly to destroying the embryos cannot be federally financed. The government can, however, support subsequent research on the cell lines created by that process.

Last year, two scientists filed the lawsuit, arguing that the distinction is a false one and that the guidelines on public financing violated the Dickey-Wicker amendment, first passed in 1996 and renewed by Congress every year since.

Moreover, they said, it siphons limited government resources from research on different types of stem cells, which they and other scientists who share a discomfort with embryonic stem cells view as ethically and scientifically superior. For all the hope vested in them, human embryonic stem cells have yet to yield tangible results for patients.

In his ruling, Judge Lamberth agreed that the guidelines violated the 1996 amendment and “threaten the very livelihood” of the plaintiffs.

Embryonic stem cell researchers who stand to lose their federal grants as a result argue that other types of stem cells do not have the same properties, and that all need to be studied regardless to determine which work best. They bristle at the intrusion of judges and politicians into decisions usually addressed by the peer review process, in which experts in a field comment on the merit of an idea and the best get financed.

Yet even some who believe there is a compelling scientific rationale for their research agree that the legal basis for federal financing may be weak. “I was astonished that Congress hadn’t dealt with this,” said Stephen Duncan, a stem cell researcher at the Medical College of Wisconsin, who stands to lose several million dollars in federal grants depending on the dispensation of the case. “It’s like being a little pregnant. You’re either breaking the law or you’re not.”

Mr. Bush, who in 2001 limited federally financed researchers to working on roughly two dozen stem cell lines already in existence, twice vetoed legislation that would have explicitly expressed support for financing the contested research. No such legislation has been introduced under President Obama, but the administration expanded the number of stem cell lines researchers could study.

Advocates of the research now see this as a missed opportunity.

Efforts to rally Congressional support since Judge Lamberth’s ruling have failed to gain momentum among Democrats and moderate Republicans heading into the November elections.

For many, the most recent intrusion of politics into the vaunted scientific meritocracy came as a particular shock because the Obama administration’s new guidelines had only months earlier fallen into place.

“The painful thing is that we are being stopped at a time when the velocity of this field of research, thanks to the new administration, was finally going at maximum speed,” said Ali H. Brivanlou, a professor at Rockefeller University.

Over the last few weeks, embryonic stem cell scientists have sought alternative financing from private foundations, university administrations and state programs. But the National Institutes of Health, which has a $26 billion budget, is by far the source with the deepest pockets for academic scientists.

Some researchers are weighing a switch to the private sector. Others have ordered their students to pay no attention to the news. Others are trying to raise public awareness.

Yi Sun, 45, of the University of California, Los Angeles, has resorted to frequent meditation.

“I would be in trouble without it,” said Dr. Sun, whose stem cell work focuses on an autism disorder called Rett syndrome. Born in China, Dr. Sun said she was now renewing efforts to collaborate with well-financed stem cell biologists there.

    Stem Cells in Court, Scientists Fear for Careers, NYT, 5.10.2010, http://www.nytimes.com/2010/10/06/science/06stem.html

Shahzad Gets Life Term for Times Square Bombing Attempt

October 5, 2010
The New York Times
By MICHAEL WILSON

The defendant came to Federal District Court in Manhattan on Tuesday ready to ladle out several minutes of anti-American justification for his act of terrorism in Times Square. But the judge, Miriam Goldman Cedarbaum, best known of late for presiding over Martha Stewart’s trial, came ready, too.

She repeatedly interrupted the defendant, Faisal Shahzad, to spar with him over his interpretation of the Koran, his invocation of a Muslim warrior in the Crusades and, above all, the relevance of any of it to the life sentence that hung over him like the dozen United States deputy marshals who guarded the prisoner in court.

And after the judge formally sentenced Mr. Shahzad to life in prison, she left him a parting shot: “I do hope that you will spend some of the time in prison thinking carefully about whether the Koran wants you to kill lots of people.”

The six or eight minutes or so of back and forth brought a bit of drama to the endgame of a case that, as nerve-rattling as it was at its inception, with the discovery of a potentially lethal bomb in Times Square on May 1, had drawn to a close with the sentencing on Tuesday.

The hearing was a part-sentencing and part-scolding, and the latter started before the former. Judge Cedarbaum looked at Mr. Shahzad, seated between lawyers, his beard thick and his hair long under his white skullcap, and said, “I think you should get up.”

Mr. Shahzad, 31, rose. He seemed to have aged in the last five months from the boyish man who was arrested aboard a jet that had been cleared for takeoff at Kennedy Airport.

He asked the judge for 5 or 10 minutes, then launched into a soliloquy that was at times rambling, at times threatening and delivered with the crinkly-eyed grin of a man who acted as if he could not be happier than where he was at that moment.

“This is but one life,” he said. “If I am given a thousand lives, I will sacrifice them all for the sake of Allah, fighting this cause, defending our lands, making the word of Allah supreme over any religion or system.”

He made his one and only reference to his arrest by claiming, for the first time, that his rights had been denied. Law enforcement officials have said that immediately following his arrest, on May 3, Mr. Shahzad cooperated, but he said otherwise on Tuesday.

“On the second day of my arrest, I asked for the Miranda,” he said, referring to the required notification of his right to counsel. “And the F.B.I. denied it to me for two weeks” and threatened his wife and children, he said. The judge, prosecutors and defense lawyers stayed silent as Mr. Shahzad, who has mounted no substantive defense in his case and who pleaded guilty to all charges against him on June 21, continued to speak. His lawyer, Philip L. Weinstein, had no comment on the statements after the hearing.

Mr. Shahzad attacked the American military forces “who have occupied the Muslim lands,” and said that attacks like his attempted bombing would continue.

“Brace yourselves, because the war with Muslims has just begun,” he said. “Consider me only a first droplet of the flood that will follow me.”

He went on about the war and about the “fragile economy” that he said would soon prove unable to sustain the troops, when Judge Cedarbaum interrupted and asked, “Do you want to comment in any way in connection with sentence?” He said he was getting to that, his motivations, when the judge asked, “Didn’t you swear allegiance to this country when you became an American citizen?”

He smiled like a boy caught in a fib, and said as much: “I did swear, but I did not mean it.”

“You took a false oath?”

“Yes.”

“Very well. Is there anything else you want to tell me?”

“Sure,” he began, and went on to say, “Blessed be” Osama bin Laden, “who will be known as no less than Saladin of the 21st-century crusade, and blessed be those who give him asylum.”

The judge stopped him again. “How much do you know about Saladin, as you called him?”

He is known in the Middle East as Salahuddin al-Ayubi, but commonly known in the West as Saladin, the Muslim leader who took Jerusalem from the Crusaders in 1187. He is remembered in biographies as being a lover of peace who waged war reluctantly.

“He didn’t want to kill people,” the judge told the defendant.

“He liberated — ” Mr. Shahzad continued.

“He was a very moderate man,” Judge Cedarbaum said. Mr. Shahzad spoke more about the war in Iraq and said, “If you call us terrorists, then we are proud terrorists, and we will keep on terrorizing until you leave our land and people at peace.”

He finished, and it was time for the sentencing by Judge Cedarbaum. “Although happily, the training you sought in making bombs was unsuccessful and you were unsuccessful in your effort to kill many Americans,” she said, the facts of the case “require that you be incarcerated for life.”

She began going through the 10 separate sentences he faced: “I sentence you to life in prison,” she said.

“Allahu akbar,” he replied. (“God is great.”)

“I understand that you welcome that,” the judge said.

Mr. Shahzad was handcuffed and led away.

    Shahzad Gets Life Term for Times Square Bombing Attempt, NYT, 5.10.2010, http://www.nytimes.com/2010/10/06/nyregion/06shahzad.html

Calif. Governor Postpones Execution

September 27, 2010
The New York Times
By JESSE McKINLEY and MALIA WOLLAN

SAN FRANCISCO — With the clock ticking and uncertainties — both legal and pharmaceutical — hovering, Gov. Arnold Schwarzenegger ordered a temporary last-minute reprieve on Monday in what would be California’s first execution in more than four years.

Mr. Schwarzenegger, a Republican in the final weeks of his administration, announced late Monday that he would postpone the execution of Albert G. Brown Jr. — who had been scheduled to die by lethal injection at 12:01 a.m. on Wednesday — until Thursday to allow time for legal appeals to be exhausted. The state Department of Corrections has rescheduled the execution for Thursday evening, the governor’s office said.

Mr. Brown, 56, was convicted in 1982 of raping and strangling a 15-year-old girl in Riverside, Calif.

The postponement came after a whirlwind day in which Mr. Brown’s fortunes seemed to rise and fall with each passing hour. Earlier Monday, Mr. Brown had been denied a stay from a state judge, Verna A. Adams, in Marin County, where San Quentin State Prison is located.

Shortly after that denial state officials also made a surprise announcement that the execution would be the last in the state until the one of the drugs proposed for his execution — sodium thiopental, a barbiturate — could be restocked by the state’s Department of Corrections and Rehabilitation.

Moreover, Terry Thornton, a spokeswoman for the department, said its supply of sodium thiopental was good only until Friday. That expiration date is now just hours after Mr. Brown’s planned execution on Thursday.

Ms. Thornton said her department was continuing with preparations for Mr. Brown’s execution and had enough sodium thiopental to stop Mr. Brown’s heart. She added that the state was “actively seeking supplies of the drug for future executions.”

How exactly sodium thiopental became scarce is unclear. The Food and Drug Administration reported shortages in March, citing production issues with Hospira, an Illinois-based company that is the sole American manufacturer.

A company spokesman, Dan Rosenberg, said that the drug was unavailable because of a lack of supply of an active pharmaceutical ingredient and that Hospira was working to get the drug back on the market by early next year. But Mr. Rosenberg also expressed displeasure that the drug — meant to be used as an anesthetic — had found its way into death chambers.

“Hospira manufactures this product because it improves or saves lives, and the company markets it solely for use as indicated on the product labeling,” Mr. Rosenberg said in a statement. “The drug is not indicated for capital punishment, and Hospira does not support its use in this procedure.”

He added that the company had made that opinion clear to corrections departments nationwide.

Mr. Brown’s execution was cleared on Friday by a federal district judge, Jeremy D. Fogel, who had effectively halted executions in the state in 2006 after expressing concern about a three-drug cocktail commonly used in lethal injection procedures and various deficiencies in the state’s methods, including the training of execution teams, antiquated facilities and the preparation of execution drugs.

Since then, however, California has drafted detailed new regulations — approved earlier this year — to guide executions and built a new death chamber at San Quentin, north of San Francisco.

Those developments had apparently quelled Judge Fogel’s worries enough to allow Mr. Brown’s execution to proceed.

Mr. Brown is still seeking a stay from the United States Court of Appeals for the Ninth Circuit. His lawyer, John R. Grele, said Judge Fogel’s decision was “neither a legal nor rational response” to his client’s efforts to avoid execution or undue pain.

    Calif. Governor Postpones Execution, NYT, 27.9.2010, http://www.nytimes.com/2010/09/28/us/28execute.html

A Judge Lauded as No-Nonsense and Scholarly

September 10, 2010
The New York Times
By JOHN SCHWARTZ

As a judge in the busy federal courthouse in Riverside, Calif., Virginia A. Phillips has presided over a rich and varied parade of cases through the years.

She overturned the conviction of a man accused of murdering his mother, and awarded damages to a nurse who was fired from a public health clinic for refusing to distribute contraceptives for religious reasons. She has handled trials of Ponzi schemers and civil suits by police officers whose superiors put hidden cameras in their locker room.

Through them all, she has maintained a relatively low profile — until Thursday, that is, when she declared the “don’t ask, don’t tell” law governing gay and bisexual members of the military unconstitutional.

“Honestly, I did not expect it to get as much attention as it did,” Judge Phillips said. “During the course of the case, there wasn’t a lot of attention paid to it.”

In her 86-page opinion, she called the law, passed by Congress in 1993, an unconstitutional violation of First Amendment rights to freedom of speech and Fifth Amendment guarantees of substantive due process.

Though the law is nearly 17 years old, the challenge has been building for some time, said Casey Pick, a lawyer who serves as a programs officer for Log Cabin Republicans, which brought the suit.

The law has been challenged in the past by people who claimed that their own dismissals were unfair. This, however, was the first suit to challenge the law on its face, she said.

The lawsuit, Ms. Pick said, became viable only after a 2003 Supreme Court decision, Lawrence v. Texas, which declared a state sodomy law unconstitutional as a violation of substantive due process rights.

The opinion defined that right in the context of the Texas law as the “autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.”

Ms. Pick said that the case “changed the legal status of lesbian and gay relationships” under the law so that they were protected.

With a right to “intimate conduct” established, Log Cabin Republicans saw an opportunity to take on don’t ask, don’t tell, and assembled plaintiffs and a case.

That lawsuit was filed in 2004, made its way through procedural twists and turns for several years, was argued in July and ruled on Thursday. Judge Phillips, 53, who was nominated to the federal bench in 1999 by President Bill Clinton, cited the Lawrence opinion prominently.

Erwin Chemerinsky, the dean of the University of California, Irvine, law school, called the decision “stunning in its thoroughness,” and lauded the judge’s “careful job of explaining why don’t ask, don’t tell violates both due process and the First Amendment.”

Others were not as impressed. Tony Perkins, president of the conservative Family Research Council, said in a statement, “Once again, homosexual activists have found a judicial activist that will aid in the advancement of their agenda.”

But Judge Phillips is anything but an ideologue, said Arthur Littleworth, her mentor at the Best, Best & Krieger law firm early in her career. “She is balanced,” he said.

Mr. Littleworth recalled being impressed with the quality of a “scholarly treatise” that Judge Phillips wrote on the power of the federal government in a major water-rights case, and noted that “now, in this current case, she held for the rights of the individual.”

Colleagues say that Judge Phillips devotes long hours to her caseload.

“She’s just one of the hardest-working judges I know,” said Stephen G. Larson, who served on the federal bench with her in Riverside for 10 years before returning to private practice last year. “No matter how early I came in, no matter how late I stayed, her car would still be there.”

Appearing in her courtroom can be a daunting experience, said William J. Genego, who represented Bruce Lisker, the man wrongfully convicted on the basis of tainted evidence in 1985 of killing his mother, and who was released after 26 years in prison. “She’s a very strict, no-nonsense judge who is always completely prepared, and expects the same from the lawyers who appear before her,” he said. “If she gets anything less, you will know it.”

Bruce E. Disenhouse, the lawyer who represented the health clinic in the case of the nurse who refused to provide birth control to patients, said: “Every now and then there’ll be some levity in her courtroom, but it’s rare. I don’t think you can put a label on Judge Phillips. She does what she believes the law directs her to do.”

Virginia Ettinger Phillips was reared in Orange County, Calif., the fourth of eight children. Her father worked in the burgeoning world of theme parks as a marketing director for Disneyland and then for Universal Studios and Sea World.

Judge Phillips, a widow, lives with two wire-haired fox terriers, Mick and Taffy — she refers to them as “my walking enforcers” who help prepare her for the annual vacation, when she and a group of friends enjoy European walking tours. Members of the group have trekked in Ireland, France, Italy and elsewhere.

Judge Phillips said she loved serving at the level of federal trial court, which provides “the variety of human drama — every day, there’s a new case.”

And so, she says, it should not be so surprising that she was surprised by the reception to Thursday’s decision.

“This may sound corny,” she said. “I really try to treat every case as the most important case. Because it is the most important case to the parties involved.”


Rebecca Cathcart contributed reporting.

    A Judge Lauded as No-Nonsense and Scholarly, NYT, 10.9.2010, http://www.nytimes.com/2010/09/11/us/politics/11judge.html

Judge Rules That Military Policy Violates Rights of Gays

September 9, 2010
The New York Times
By JOHN SCHWARTZ

The “don’t ask, don’t tell” policy toward gay members of the military is unconstitutional, a federal judge in California ruled Thursday.

Judge Virginia A. Phillips of Federal District Court struck down the rule in an opinion issued late in the day. The policy was signed into law in 1993 as a compromise that would allow gay and lesbian soldiers to serve in the military.

The rule limits the military’s ability to ask about the sexual orientation of service members, and allows homosexuals to serve, as long as they do not disclose their orientation and do not engage in homosexual acts.

The plaintiffs challenged the law under the Fifth and First Amendments to the Constitution, and Judge Phillips agreed.

“The don’t ask, don’t tell act infringes the fundamental rights of United States service members in many ways,” she wrote. “In order to justify the encroachment on these rights, defendants faced the burden at trial of showing the don’t ask, don’t tell act was necessary to significantly further the government’s important interests in military readiness and unit cohesion. Defendants failed to meet that burden.”

The rule, she wrote in an 86-page opinion, has a “direct and deleterious effect” on the armed services.

The plaintiffs argued that the act violated the rights of service members in two ways.

First, they said, it violates their guarantee of substantive due process under the Fifth Amendment. The second restriction, the plaintiffs said, involves the free-speech rights guaranteed under the First Amendment. Although those rights are diminished in the military, the judge wrote, the restrictions in the act still fail the constitutional test of being “reasonably necessary” to protect “a substantial government interest.”

The “sweeping reach” of the speech restrictions under the act, she said, “is far broader than is reasonably necessary to protect the substantial government interest at stake here.”

The decision is among a number of recent rulings that suggest a growing judicial skepticism about measures that discriminate against homosexuals, including rulings against California’s ban on same-sex marriage and a Massachusetts decision striking down a federal law forbidding the federal government to recognize same-sex marriage.

It will not change the policy right away; the judge called for the plaintiffs to submit a proposed injunction limiting the law by Sept. 16th. The defendants will submit their objections to the plan a week after that. Any decision would probably be stayed pending appeals.

The suit was brought by the Log Cabin Republicans, a gay organization. The group’s executive director, R. Clarke Cooper, pronounced himself “delighted” with the ruling, which he called “not just a win for Log Cabin Republican service members but all American service members.”

Those who would have preserved the rule were critical of the decision.

“It is hard to believe that a District Court-level judge in California knows more about what impacts military readiness than the service chiefs who are all on record saying the law on homosexuality in the military should not be changed,” said Tony Perkins, president of the Family Research Council, a conservative group. He called Judge Phillips a “judicial activist.”

As a candidate for president, Senator Barack Obama vowed to end “don’t ask, don’t tell.” Once elected, he remained critical of the policy but said it was the role of Congress to change the law; the Justice Department has continued to defend the law in court.

In February, Defense Secretary Robert M. Gates and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, asked Congress to allow gays to serve openly by repealing the law. The House has voted for repeal, but the Senate has not yet acted.

Richard Socarides, a lawyer who served as an adviser to the Clinton administration on gay issues when the policy was passed into law, said the legal action was long overdue. “The president has said he opposes the policy, yet he has defended it in court. Now that he’s lost, and resoundingly so, he must stop enforcing it.”

The case, which was heard in July, involved testimony from six military officers who had been discharged because of the policy. One, Michael Almy, was an Air Force major who was serving his third tour of duty in Iraq when someone using his computer found at least one message to a man discussing homosexual conduct.

Another plaintiff, John Nicholson, was going through training for intelligence work in the Army and tried to conceal his sexual orientation by writing to a friend in Portuguese. A fellow service member who was also fluent in that language, however, read the letter on his desk and rumors spread throughout his unit.

When Mr. Nicholson asked a platoon sergeant to help quash the rumors, the sergeant instead informed his superiors, who initiated discharge proceedings.

    Judge Rules That Military Policy Violates Rights of Gays, NYT, 9.9.2010, http://www.nytimes.com/2010/09/10/us/10gays.html

Court Dismisses a Case Asserting Torture by C.I.A.

September 8, 2010
The New York Times
By CHARLIE SAVAGE

WASHINGTON — A federal appeals court on Wednesday ruled that former prisoners of the C.I.A. could not sue over their alleged torture in overseas prisons because such a lawsuit might expose secret government information.

The sharply divided ruling was a major victory for the Obama administration’s efforts to advance a sweeping view of executive secrecy powers. It strengthens the White House’s hand as it has pushed an array of assertive counterterrorism policies, while raising an opportunity for the Supreme Court to rule for the first time in decades on the scope of the president’s power to restrict litigation that could reveal state secrets.

By a 6-to-5 vote, the United States Court of Appeals for the Ninth Circuit dismissed a lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary accused of arranging flights for the Central Intelligence Agency to transfer prisoners to other countries for imprisonment and interrogation. The American Civil Liberties Union filed the case on behalf of five former prisoners who say they were tortured in captivity — and that Jeppesen was complicit in that alleged abuse.

Judge Raymond C. Fisher described the case, which reversed an earlier decision, as presenting “a painful conflict between human rights and national security.” But, he said, the majority had “reluctantly” concluded that the lawsuit represented “a rare case” in which the government’s need to protect state secrets trumped the plaintiffs’ need to have a day in court.

While the alleged abuses occurred during the Bush administration, the ruling added a chapter to the Obama administration’s aggressive national security policies.

Its counterterrorism programs have in some ways departed from the expectations of change fostered by President Obama’s campaign rhetoric, which was often sharply critical of former President George W. Bush’s approach.

Among other policies, the Obama national security team has also authorized the C.I.A. to try to kill a United States citizen suspected of terrorism ties, blocked efforts by detainees in Afghanistan to bring habeas corpus lawsuits challenging the basis for their imprisonment without trial, and continued the C.I.A.’s so-called extraordinary rendition program of prisoner transfers — though the administration has forbidden torture and says it seeks assurances from other countries that detainees will not be mistreated.

The A.C.L.U. vowed to appeal the Jeppesen Dataplan case to the Supreme Court, which would present the Roberts court with a fresh opportunity to weigh in on a high-profile test of the scope and limits of presidential power in counterterrorism matters.

It has been more than 50 years since the Supreme Court issued a major ruling on the state-secrets privilege, a judicially created doctrine that the government has increasingly used to win dismissals of lawsuits related to national security, shielding its actions from judicial review. In 2007, the Supreme Court declined to hear an appeal of a similar rendition and torture ruling by the federal appeals court in Richmond, Va.

The current case turns on whether the executive can invoke the state-secrets privilege to shut down entire lawsuits, or whether that power should be limited to withholding particular pieces of secret information. In April 2009, a three-judge panel on the Ninth Circuit adopted the narrower view, ruling that the lawsuit as a whole should proceed.

But the Obama administration appealed to the full San Francisco-based appeals court. A group of 11 of its judges reheard the case, and a narrow majority endorsed the broader view of executive secrecy powers. They concluded that the lawsuit must be dismissed without a trial — even one that would seek to rely only on public information.

“This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security,” Judge Fisher wrote. “Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.”

Ben Wizner, a senior A.C.L.U. lawyer who argued the case before the appeals court, said the group was disappointed in the ruling.

“To this date, not a single victim of the Bush administration’s torture program has had his day in court,” Mr. Wizner said. “That makes this a sad day not only for the torture survivors who are seeking justice in this case, but for all Americans who care about the rule of law and our nation’s reputation in the world. If this decision stands, the United States will have closed its courts to torture victims while providing complete immunity to their torturers.”

Some plaintiffs in the case said they were tortured by C.I.A. interrogators at an agency “black site” prison in Afghanistan, while others said they were tortured by Egypt and Morocco after the C.I.A. handed them off to foreign security services.

The lead plaintiff is Binyam Mohamed, an Ethiopian citizen and legal resident of Britain who was arrested in Pakistan in 2002. He claimed he was turned over to the C.I.A., which flew him to Morocco and handed him off to its security service.

Moroccan interrogators, he said, held him for 18 months and subjected him to an array of tortures, including cutting his penis with a scalpel and then pouring a hot, stinging liquid on the open wounds.

Mr. Mohamed was later transferred back to the C.I.A., which he said flew him to its secret prison in Afghanistan. There, he said, he was held in continuous darkness, fed sparsely and subjected to loud noise — like the recorded screams of women and children — 24 hours a day.

He was later transferred again to the military prison at Guantánamo Bay, Cuba, where he was held for an additional five years. He was released and returned to Britain in early 2009 and is now free.

There were signs in the court’s ruling that the majority felt conflicted. In a highly unusual move, the court ordered the government to pay the plaintiffs’ legal costs, even though they lost the case and had not requested such payment.

Judge Fisher, who was a senior Justice Department official before President Bill Clinton appointed him to the bench in 1999, also urged the executive branch and Congress to grant reparations to victims of C.I.A. “misjudgments or mistakes” that violated their human rights if government records confirmed their accusations, even though the courthouse was closed to them.

_

He cited as precedent payments made to Latin Americans of Japanese descent who were forcibly sent to United States internment camps during World War II. But the five dissenting judges criticized the realism of that idea, noting that those reparations took five decades.

“Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive plaintiffs of a fair assessment of their claims by a neutral arbiter,” Judge Michael Daly Hawkins wrote.

After the A.C.L.U. filed the case in 2007, the Bush administration asked a district judge to dismiss it, submitting public and classified declarations by the C.I.A. director at the time, Michael Hayden, arguing that litigating the matter would jeopardize national security.

The trial judge dismissed the case. As an appeal was pending, Mr. Obama won the 2008 presidential election. Although he had criticized the Bush administration’s frequent use of the state-secrets privilege, in February 2009 his weeks-old administration told the appeals court that it agreed with the Bush view in that case.

In September 2009, Attorney General Eric H. Holder Jr. issued a new state-secrets privilege policy requiring high-level approval, instructing officials to try to avoid shutting down lawsuits if possible, and forbidding its use with a motive of covering up lawbreaking or preventing embarrassment.

The administration told the court that using the privilege in the Jeppesen Dataplan case complied with that policy.

Judge Fisher agreed that “the government is not invoking the privilege to avoid embarrassment or to escape scrutiny of its recent controversial transfer and interrogation policies, rather than to protect legitimate national security concerns.”

Jeppesen Dataplan and the C.I.A. referred questions to the Justice Department, where a spokesman, Matthew Miller, praised its new standards.

“The attorney general adopted a new policy last year to ensure the state-secrets privilege is only used in cases where it is essential to protect national security, and we are pleased that the court recognized that the policy was used appropriately in this case,” Mr. Miller said.

    Court Dismisses a Case Asserting Torture by C.I.A., NYT, 8.9.2010, http://www.nytimes.com/2010/09/09/us/09secrets.html

Indictment Accuses Firm of Exploiting Thai Workers

September 3, 2010
The New York Times
By JULIA PRESTON

A federal grand jury in Honolulu has indicted six labor contractors from a Los Angeles manpower company on charges that they imposed forced labor on some 400 Thai farm workers, in what justice officials called the biggest human-trafficking case ever brought by federal authorities.

The charges, prepared by Justice Department civil rights lawyers, were brought against the president, three executives and two Thai labor contractors from Global Horizons Manpower, which recruits foreign farm workers for the federal agricultural guest worker program, known as H-2A.

The indictment, which was unsealed Thursday in Hawaii, accuses Global Horizons executives of working to “obtain cheap, compliant labor” from guest workers who had been forced into debt in Thailand to pay fees to local recruiters. The company, according to the indictment, sought to “to compel the workers’ labor and service through threats to have them arrested, deported or sent back to Thailand, knowing the workers could not pay off their debts if sent home.”

The number of workers who are said to be victims is the largest ever in a human trafficking case, said Xochitl Hinojosa, a Justice Department spokeswoman.

A woman who answered at the telephone listed for Global Horizons Manpower in Los Angeles said the number no longer was used by the company. Numbers for the company in Tampa, Fla., were disconnected.

Many events described in the indictment took place in 2004 and 2005, when Global Horizons first brought hundreds of Thai workers to farms in Hawaii and Washington State. But Chanchanit Martorell, executive director of the Thai Community Development Center in Los Angeles, said the charges were the culmination of years of pressure by that group. She said questions about Global Horizons’ management of the Thai laborers arose when one of them fled a work crew in Hawaii in 2003, and found his way to Los Angeles and the center.

Since then, Ms. Martorell said, the center has identified 263 Thai guest workers who were brought to the United States on legal temporary visas by Global Horizons, but later fled what they described as oppressive conditions.

The indictment says recruiters in Thailand charged the workers — who earned as little as $1,000 a year farming in their home country — as much as $21,000 to obtain visas for the United States. Global Horizons did not disclose these fees to United States labor officials, the charges state.

Workers who were dispatched to a pineapple farm in Maui and orchards in Washington were paid far less than they had been promised, and were often housed in shoddy conditions, according to the charges; Global Horizons impounded their passports.

In recent weeks, the Equal Employment Opportunity Commission has issued findings against Global Horizons for civil rights violations, Ms. Martorell said. About 100 Thai workers have been granted residency visas for victims of human trafficking.

Among those facing charges are Mordechai Yosef Orian, president of Global Horizons, and Pranee Tubchumpol, director of international relations. Mr. Orian surrendered in Honolulu on Friday and pleaded not guilty, The Associated Press reported. Mr. Tubchumpol was detained in Los Angeles, said a spokesman for the Honolulu prosecutor.

    Indictment Accuses Firm of Exploiting Thai Workers, NYT, 3.9.2010, http://www.nytimes.com/2010/09/04/us/04trafficking.html

Justice Dept. Sues Sheriff

Over Bias Investigation

September 2, 2010
The New York Times
By MARC LACEY

PHOENIX — The Justice Department filed a lawsuit on Thursday against Sheriff Joe Arpaio of Maricopa County for not cooperating with an investigation into whether his department was systematically violating the rights of Hispanics.

Obama administration officials called the suit the first time in 30 years that the federal government had to sue to compel a law enforcement agency to cooperate with an investigation concerning Title VI of the Civil Rights Act of 1964.

“The actions of the sheriff’s office are unprecedented,” Thomas E. Perez, assistant attorney general for the department’s civil rights division, said in a statement. “It is unfortunate that the department was forced to resort to litigation to gain access to public documents and facilities.”

At a news conference on Thursday, Sheriff Arpaio said he was surprised by the lawsuit since he thought his lawyers and those of the government had been close to an agreement. “I’m not going to be intimidated by the federal government going to court against us,” he said.

The suit comes after more than a year of wrangling between Sheriff Arpaio, the self-declared toughest sheriff in America, and the federal government, which began an investigation in 2009 into whether his department was engaging in discrimination against Hispanics in and around Phoenix in its immigration sweeps and jail policies.

The Justice Department issued 51 requests for documents, most of which Sheriff Arpaio’s department ignored, as well as asking for tours of department facilities and interviews with commanders, staff members and inmates.

Sheriff Arpaio, who has denied that he engages in racial profiling, has remained defiant of the government’s investigation. His lawyers have repeatedly refused to provide the documents sought by the Justice Department or provide unfettered access to its facilities.

“It is ironic that the very sheriff who regularly demands that others turn over their papers has refused to turn over his papers,” said Ali Noorani, executive director of the National Immigration Forum, which has been critical of Sheriff Arpaio.

Sheriff Arpaio’s legal woes are growing. A federal grand jury in Phoenix is also looking into whether he abused his authority by pushing bogus investigations and intimidating county workers through after-hours visits to their homes.

Last year, the federal government ended a cooperative agreement with Sheriff Arpaio that allowed his deputies to enforce immigration law. The sheriff has continued his sweeps of Hispanic neighborhoods to enforce state immigration laws.

The federal lawsuit is the second concerning Arizona’s crackdown on illegal immigration in recent months. The Obama administration recently won a judge’s order blocking the carrying out of certain provisions in the state’s strict new immigration law that required law enforcement officers to question people about their immigration status if they had suspicions that they were not in the country legally. Critics called the law a recipe for racial profiling, and a judge agreed with the Justice Department that much of the state law would infringe on federal responsibilities.

The federal lawsuits have spurred the ire of many Arizona conservatives, who contend that the state has been forced to act because the federal government has not secured the Southwest border. Sheriff Arpaio, although vilified by many, has strong support as well.

Active on his Twitter account, Sheriff Arpaio has recently taken issue with an article in The Hollywood Reporter that linked him with a violent character from the new movie “Machete” who killed a pregnant Mexican woman to prevent her from giving birth in the United States.

    Justice Dept. Sues Sheriff Over Bias Investigation, NYT, 2.9.2010, http://www.nytimes.com/2010/09/03/us/03sheriff.html

Ex-Ohio Doc Swaps Plea to Guilty in Pipe Bomb Case

September 2, 2010
The New York Times
Filed at 12:38 p.m. ET
By THE ASSOCIATED PRESS

CLEVELAND (AP) -- A former Ohio doctor has admitted keeping dozens of pipe bombs that were part of an arsenal seized at his apartment after two explosions.

Mark Campano of Cuyahoga (ky-uh-HOH'-guh) Falls near Akron pleaded guilty Thursday in Cleveland federal court to one count of possessing unregistered weapons. He had previously pleaded not guilty.

He could get 10 years in prison but is likely to receive less under sentencing guidelines.

The 57-year-old Campano was injured when two explosions rocked his apartment in November. Federal agents found 37 pipe bombs and two homemade gun silencers.

Medical board records show the former anesthesiologist has practiced in Ohio and West Virginia and has a history of substance abuse.

No motive was mentioned in court. Campano's mother says he never intended to harm anyone.

    Ex-Ohio Doc Swaps Plea to Guilty in Pipe Bomb Case, NYT, 2.9.2010, http://www.nytimes.com/aponline/2010/09/02/us/AP-US-Ohio-Apartment-Weapons.html

Marriage Is a Constitutional Right

August 4, 2010
The New York Times

Until Wednesday, the thousands of same-sex couples who have married did so because a state judge or Legislature allowed them to. The nation’s most fundamental guarantees of freedom, set out in the Constitution, were not part of the equation. That has changed with the historic decision by a federal judge in California, Vaughn Walker, that said his state’s ban on same-sex marriage violated the 14th Amendment’s rights to equal protection and due process of law.

The decision, though an instant landmark in American legal history, is more than that. It also is a stirring and eloquently reasoned denunciation of all forms of irrational discrimination, the latest link in a chain of pathbreaking decisions that permitted interracial marriages and decriminalized gay sex between consenting adults.

As the case heads toward appeals at the circuit level and probably the Supreme Court, Judge Walker’s opinion will provide a firm legal foundation that will be difficult for appellate judges to assail.

The case was brought by two gay couples who said California’s Proposition 8, which passed in 2008 with 52 percent of the vote, discriminated against them by prohibiting same-sex marriage and relegating them to domestic partnerships. The judge easily dismissed the idea that discrimination is permissible if a majority of voters approve it; the referendum’s outcome was “irrelevant,” he said, quoting a 1943 case, because “fundamental rights may not be submitted to a vote.”

He then dismantled, brick by crumbling brick, the weak case made by supporters of Proposition 8 and laid out the facts presented in testimony. The two witnesses called by the supporters (the state having bowed out of the case) had no credibility, he said, and presented no evidence that same-sex marriage harmed society or the institution of marriage.

Same-sex couples are identical to opposite-sex couples in their ability to form successful marital unions and raise children, he said. Though procreation is not a necessary goal of marriage, children of same-sex couples will benefit from the stability provided by marriage, as will the state and society. Domestic partnerships confer a second-class status. The discrimination inherent in that second-class status is harmful to gay men and lesbians. These findings of fact will be highly significant as the case winds its way through years of appeals.

One of Judge Walker’s strongest points was that traditional notions of marriage can no longer be used to justify discrimination, just as gender roles in opposite-sex marriage have changed dramatically over the decades. All marriages are now unions of equals, he wrote, and there is no reason to restrict that equality to straight couples. The exclusion of same-sex couples from marriage “exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage,” he wrote. “That time has passed.”

To justify the proposition’s inherent discrimination on the basis of sex and sexual orientation, he wrote, there would have to be a compelling state interest in banning same-sex marriage. But no rational basis for discrimination was presented at the two-and-a-half-week trial in January, he said. The real reason for Proposition 8, he wrote, is a moral view “that there is something wrong with same-sex couples,” and that is not a permissible reason for legislation.

“Moral disapproval alone,” he wrote, in words that could someday help change history, “is an improper basis on which to deny rights to gay men and women.”

The ideological odd couple who led the case — Ted Olson and David Boies, who fought against each other in the Supreme Court battle over the 2000 election — were criticized by some supporters of same-sex marriage for moving too quickly to the federal courts. Certainly, there is no guarantee that the current Supreme Court would uphold Judge Walker’s ruling. But there are times when legal opinions help lead public opinions.

Just as they did for racial equality in previous decades, the moment has arrived for the federal courts to bestow full equality to millions of gay men and lesbians.

    Marriage Is a Constitutional Right, NYT, 4.8.2010, http://www.nytimes.com/2010/08/05/opinion/05thu1.html

In Same-Sex Ruling, an Eye on the Supreme Court

August 4, 2010
The New York Times
By JOHN SCHWARTZ

A federal judge’s forceful opinion Wednesday in favor of same-sex marriage is only the beginning of a process that is likely to go all the way to the United States Supreme Court.

The ultimate outcome of the California case cannot be predicted, but appeals court judges and the justices at the highest court in the land could find themselves boxed in by the careful logic and structure of Judge Vaughn R. Walker’s opinion, legal experts said.

In his ruling, Judge Walker found that California’s voter-approved ban on same-sex marriage irrationally discriminates against gay men and women.

To opponents of same-sex marriage, the ruling was a travesty that usurped the will of millions of California voters. Brian S. Brown, the executive director of the National Organization for Marriage, called it "a horrendous decision" that "launched the first salvo in a major culture war over same-sex marriage and the proper purview of the courts."

But Andrew Koppelman, a professor at Northwestern Law School, said "if the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision."

The reason, he said, is that while appeals courts often overturn lower-court judges on their findings of law -- such as the proper level of scrutiny to apply to Proposition 8 -- findings of fact are traditionally given greater deference.

“They are supposed to take as true facts found by the district court, unless they are clearly erroneous," he said. "This opinion shows why district courts matter, even though the Supreme Court has the last word."

And to that end, Judge Walker’s 136-page opinion lays a rich factual record, with extensive quotation of expert testimony from the lengthy trial. The 2008 initiative campaign to ban same-sex marriages was suffused, the judge said, with moral comparisons of these unions and heterosexual marriage, with the clear implication that "denial of marriage to same-sex couples protects children" and that "the ideal child-rearing environment" requires marriage between a man and a woman.

Judge Walker wrote, however, that the Supreme Court has stated that government cannot enforce moral or religious beliefs without an accompanying secular purpose. The judge suggested that the defendants shifted their arguments for the courtroom, with a focus on "statistically optimal" child-rearing households and by arguing that they were abiding by the will of California voters.

California’s law, he wrote, demanded discrimination on the basis of sex and sexual orientation. "Proposition 8 places the force of law behind stigmas against gays and lesbians," he wrote, including the notion that "gays and lesbians are not as good as heterosexuals" and "gay and lesbian relationships do not deserve the full recognition of society."

In his ruling, Judge Walker took a conservative approach to his findings of law, said Erwin Chemerinsky, the dean of the University of California, Irvine School of Law. Judge Walker laid the factual groundwork that might have allowed him to invoke the tough "strict scrutiny" test to Proposition 8 -- a test that most laws flunk.

"His decision does not depend on the higher court finding strict scrutiny," he said, a legal finding that a higher court might well overturn. Instead, he subjected the law to a lower standard that many laws can pass, but that this one, in his opinion, does not.

"He finds it doesn’t even meet rational basis review" for the legal distinction between same-sex marriage and heterosexual unions, Professor Chemerinsky said.

Even some of those who applauded the opinion, however, said the path ahead for it is not clear or easy. Associate Professor Doug NeJaime at Loyola Law School, Los Angeles said while Judge Walker’s ruling he found "a great opinion," he was skeptical of the strategy to take a marriage case through the federal courts. Despite Judge Walker’s efforts to set a factual foundation and the traditions of deference, he said, the Supreme Court is not completely constrained by lower court findings of fact.

"We’ve seen time and time again that the Supreme Court can do whatever it wants" with the factual record, and "I don’t see five justices on the Supreme Court taking Judge Walker’s findings of fact to the place that he takes them."

Professor NeJaime suggested the case might turn on the Court’s traditional swing vote, Anthony M. Kennedy, who has shaped decisions that strike down laws that discriminate against gays and lesbians. The rational basis test used by Judge Walker is in line with the standard used by Justice Kennedy in such cases as Lawrence v. Texas, which struck down a state sodomy law. By structuring an opinion that allows the Court to use the lower level of scrutiny, Judge Walker "is speaking to Justice Kennedy," he said.

Professor Jesse H. Choper, a professor of law at the University of California, Berkeley, said that it is too soon to tell which way Justice Kennedy might come down on the issue of same-sex marriage. "I have no way of predicting how he’d come down on this and I don’t think he does, either, at this point."

Ultimately, Professor NeJaime said, even the four more liberal justices on the Court might shy away from a sweeping decision that could overturn same-sex marriage bans across the country. "The Supreme Court rarely likes to get too far ahead of things," he said.

Reverend Jim Garlow, pastor of Skyline Church in La Mesa, Calif., and a leading supporter of Proposition 8, agreed.

"Given the present makeup of the Supreme Court at this time, ’one woman, one man’ will stand," he said.

And that is why Professor Chemerinsky said "this is a huge victory for the supporters of marriage equality -- but it’s not the last word."

    In Same-Sex Ruling, an Eye on the Supreme Court, NYT, 4.8.2010, http://www.nytimes.com/2010/08/06/us/06assess.html

Redefining Marriage

July 9, 2010
The New York Times
 

For 14 years, as states, courts and many Americans began to change their minds on the subject, the federal government has clung to its official definition of marriage as only between a man and a woman. On Thursday, a federal judge in Massachusetts finally stood up and said there was never a rational basis for that definition. Though we are a little wary of one path Judge Joseph L. Tauro took to declare the definition unconstitutional, the outcome he reached is long overdue.

The definition is contained in the Defense of Marriage Act, signed by President Bill Clinton in 1996. At the time, there was no legal same-sex marriage in the United States, but now five states and the District of Columbia issue licenses to all couples. Because of the federal law, thousands of couples in those states cannot receive the same federal benefits as opposite-sex couples, including Social Security survivor payments and spousal burials in national military cemeteries.

There were two cases that came before Judge Tauro on this subject, allowing him to arrive at the same conclusion in two different ways. In one case, brought by Martha Coakley, the Massachusetts attorney general, the judge said the marriage act exceeded Congress’s powers and infringed on the state’s right to regulate marriage. This does not appear to be a legitimate basis for overturning the act. Many of the biggest federal social programs — including the new health care law — deal with marriages and families, as the Yale law professor Jack Balkin noted on Thursday, and states should not be given the right to supersede them.

The judge made a better argument in the other case, brought by a gay rights group, that the marriage definition violates the equal-protection provisions of the Constitution. There is no rational basis for discriminating against same-sex couples, he ruled, discrediting the reasons stated by lawmakers in 1996, including the encouragement of “responsible procreation” and traditional notions of marriage and morality. In this argument, he was helped by the Obama administration’s obligatory but half-hearted defense of the law, which since last year no longer supports Congress’s stated reasons.

Courts should generally give Congress wide deference in writing laws, but should not be afraid to examine them when challenged, to make sure they serve a legitimate purpose. The Defense of Marriage Act was passed and signed as an election-year wedge issue, and the brief debate leading up to it was full of bigoted attacks against homosexuality as “depraved” and “immoral.” One congressman said gay marriage would “devalue the love between a man and a woman.” Laws passed on this kind of basis deserve to be upended, and we hope Judge Tauro’s equal-protection opinion, which, for now, applies only to Massachusetts, is upheld on appeal.

Justice Antonin Scalia of the Supreme Court actually predicted this moment would arrive when he dissented from the court’s 2003 decision to strike down antisodomy laws. That decision left laws prohibiting same-sex marriage “on pretty shaky grounds,” he warned, since it undercut the traditional moral basis for opposing homosexuality. The Justice Department cited those words when it abandoned its defense of the law as related to procreation, which, in turn, helped lead to Thursday’s decision. The process of justice can take years, but in this case it seems to be moving in the right direction.

    Redefining Marriage, NYT, 9.7.2010, http://www.nytimes.com/2010/07/10/opinion/10sat1.html

Four Are Indicted in Suburban N.Y. Hotel Killing

July 8, 2010
The New York Times
By SAM DOLNICK

WHITE PLAINS — From the moment Ben Novack Jr. was found bludgeoned, bound and gagged inside a hotel suite in a wealthy New York suburb a year ago, the details of his life and violent death have grown more peculiar with each disclosure.

His blood-covered body was found on the floor of Room 453 at the Rye Town Hilton, where Mr. Novack, 53, was helping run an Amway convention. His face was bound in duct tape, as were his legs, taped below the knees, and his hands, bound behind his back.

A Rolex watch was not taken, but his trademark bracelet, with B-E-N spelled out in diamonds, was gone. Hotel records showed that no one had entered the hotel room with a key before the killing of Mr. Novack, whose father founded the famed Fontainebleau hotel in Miami Beach.

A week after the murder, an anonymous letter, written in Spanish, surfaced, saying that Mr. Novack’s mother, who had died three months earlier, had also been murdered.

There were police reports and court testimony about Mr. Novack’s comic book memorabilia — his collection of Batman-themed material was said to be the second largest in the country and to include a full-size replica of the Batmobile — as well as his taste in pornography featuring women missing limbs.

On Thursday, federal prosecutors and local authorities announced the indictment of the four people they say plotted the attack, including the woman who had been a suspect all along: his wife, a former stripper whom he had previously accused of threatening to kill him. The motive, authorities said, was seizing control of his fortune.

Mr. Novack’s wife, Narcisa Veliz Novack, known as Narcy, was arrested in Fort Lauderdale, Fla,; her brother, Cristobal Veliz; and another relative, Denis Ramirez, were arrested in Brooklyn. A fourth suspect, Joel Gonzalez, who was believed to have been hired to kill Mr. Novack, remained at large.

Ms. Novack, 53, was arraigned on Thursday morning in Federal District Court in Fort Lauderdale and ordered held without bail. Mr. Veliz and Mr. Ramirez were arraigned on Thursday afternoon in Federal District Court in White Plains.

The four defendants are charged with interstate domestic violence, stalking and conspiracy to commit interstate domestic violence and stalking. If convicted of the top count, they face a maximum sentence of life in prison.

Preet Bharara, the United States attorney for the Southern District of New York, called Mr. Novack’s death “a savage killing” as he announced the charges on Thursday during a news conference in White Plains.

“The plot that led to the death of Ben Novack,” he said, “was a family affair.”

The Westchester County district attorney, Janet DiFiore, described the killing as motivated by greed, saying Ms. Novack “was intent on eliminating her husband and taking his family fortune for her own.”

Mr. Novack grew up inside the Fontainebleau, the Miami Beach landmark that was founded by his father and opened in 1954. The hotel had such an air of glamour — it had an elevated pool, a bar filled with celebrities and politicians, a sensuously curved facade that opened up to a vast collection of rare antiques — that it was chosen as the setting for a scene in the James Bond movie “Goldfinger.”

Mr. Novack’s aunt Maxine Fiel remembered her nephew enjoying the perks of luxury hotel living, which included trick-or-treating trips in a chauffeured limousine, but for all its opulence, she described his childhood as “pretty lonely.”

Mr. Novack amassed a dizzying array of Batman memorabilia and other collectibles that was packed inside the couple’s home “floor to ceiling,” according to Henry R. Zippay Jr., one of Ms. Novack’s estate lawyers. “They were avid collectors of everything that interested them. His focus was on Batman, primarily.”

Mr. Bharara said the estate, which in addition to the Batman trove included several homes in Florida, boats and vintage automobiles, was worth $5 million to $6 million.

When Mr. Novack met his future wife, she was a stripper, according to The Miami Herald. The couple had a stormy relationship that included accusations of spousal abuse.

The police were called in 2002 after robbers broke into their large two-story home in Fort Lauderdale. Mr. Novack told the police that he had been tied and handcuffed to a leather chair for more than 24 hours. He said the robbery was conducted by several men he did not know, but it was orchestrated by someone he knew well: his wife. She said that the robbery was part of an elaborate sex game. No charges were ever filed.

On the day her husband was killed, Ms. Novack told the police that she went down to breakfast about 7 a.m., leaving him asleep. When she returned 40 minutes later, she said, she found him bound and bloody on the floor.

When she talked to the police the next day, she offered possible motives for his murder. She said he had enemies, carried large sums of money when he traveled, and that he had recently clashed with a comic book collector who had shown up at the house.

Police gave Ms. Novack a lie detector test, and she “showed indications of deception” when questioned about her knowledge of the killing, according to a court record filed on July 24.

The indictment unsealed on Thursday described Ms. Novack’s role in the murder plot.

Prosecutors say she traveled with her husband from Florida to Rye Brook, N.Y., on July 9 to oversee an Amway convention at the Rye Town Hilton hotel that his company, Convention Concepts Unlimited, had organized. Her brother and at least one co-conspirator drove from Florida to New York on July 2 and again on July 9. On July 10, Mr. Gonzalez and a co-conspirator scouted out the hotel in preparation for the attack, prosecutors say.

That morning, the indictment states, Ms. Novack opened the door to the hotel suite that she shared with her husband to allow Mr. Gonzalez to enter. Mr. Gonzalez “beat, cut and bound” Mr. Novack, according to the indictment.

During the attack, Ms. Novack provided the assailants with a pillow that was held over her husband’s face, prosecutors said.

Ms. Fiel, Mr. Novack’s aunt, said that news of the arrests came as a relief.

“This is what we’ve been fighting for all the time,” she said. She said she had never met Ms. Novack, though they had once had an unpleasant conversation over the phone, and she called the motive simple: “Ben had a lot of money.”

Mr. Bharara said the authorities had filed a civil complaint seeking the forfeiture of the estate, as well as Mr. Novack’s life insurance policy, to prevent Ms. Novack from inheriting any proceeds.

There has already been a struggle in the courts over the estate, which, according to Mr. Zippay, Mr. Novack left to his wife. In February, a Florida judge granted Ms. Novack control of it before reversing himself three days later, ordering her to post a high bond before she could be named personal representative of the estate, Mr. Zippay said. She did not post the bond.

Ms. Novack also sought to gain control of the estate of her husband’s mother, Bernice Novack, who was found dead in April 2009 in her Fort Lauderdale home with severe injuries to her head, broken teeth and broken fingers.

The death was ruled accidental, but Ms. Fiel has long believed that her sister was murdered as part of a plot to seize the family’s money. In 2002, Bernice Novack told the police that her daughter-in-law strongly disliked her, adding that she believed that she was once poisoned by her.

When asked about Mrs. Novack’s death, Mr. Bharara said, “We are taking a look at that, as you expect we would, and we may have more to say about that later.”

    Four Are Indicted in Suburban N.Y. Hotel Killing, NYT, 8.7.2010, http://www.nytimes.com/2010/07/09/nyregion/09batman.html

Judge Topples U.S. Rejection of Gay Unions

July 8, 2010
The New York Times
By ABBY GOODNOUGH and JOHN SCHWARTZ

BOSTON — A federal judge in Massachusetts found Thursday that a law barring the federal government from recognizing same-sex marriage is unconstitutional, ruling that gay and lesbian couples deserve the same federal benefits as heterosexual couples.

Judge Joseph L. Tauro of United States District Court in Boston sided with the plaintiffs in two separate cases brought by the state attorney general and a gay rights group.

Although legal experts disagreed over how the rulings would fare on appeal, the judge’s decisions were nonetheless sure to further inflame the nationwide debate over same-sex marriage and gay rights.

If the rulings find their way to the Supreme Court and are upheld there, they will put same-sex marriage within the constitutional realm of protection, just as interracial marriage has been for decades. Seeking that protection is at the heart of both the Massachusetts cases and a federal case pending in California over the legality of that state’s ban on same-sex marriage.

Tracy Schmaler, a spokeswoman for the Justice Department, said federal officials were reviewing the decision and had no further comment. But lawyers for the plaintiffs said they fully expected the Obama administration to appeal. An appeal would be heard by the First Circuit, which also includes Rhode Island, Maine, New Hampshire and Puerto Rico.

In the case brought by Attorney General Martha Coakley, Judge Tauro found that the 1996 law, known as the Defense of Marriage Act, or DOMA, compels Massachusetts to discriminate against its own citizens in order to receive federal money for certain programs.

The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to a handful of federal benefits. In that case, Judge Tauro agreed that the federal law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.

Neither suit challenged a separate provision of the Defense of Marriage Act that says states do not have to recognize same-sex marriages performed in other states. But if the cases make their way to the Supreme Court and are upheld, gay and lesbian couples in states that recognize same-sex marriage will be eligible for federal benefits that are now granted only to heterosexual married couples.

“This court has determined that it is clearly within the authority of the commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights and privileges to which they are entitled by virtue of their marital status,” Judge Tauro wrote in the case brought by Ms. Coakley. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state.”

Proponents of gay rights embraced the rulings as legal victories.

“Today the court simply affirmed that our country won’t tolerate second-class marriages,” said Mary Bonauto, civil rights project director for Gay and Lesbian Advocates and Defenders, who argued the case. “This ruling will make a real difference for countless families in Massachusetts.”

Chris Gacek, a senior fellow at the Family Research Council, a leading conservative group, said he was disappointed by the decision.

“The idea that a court can say that this definition of marriage that’s been around forever is irrational is mind-boggling,” Mr. Gacek said. “It’s a bad decision.”

Massachusetts has allowed same-sex couples to marry since 2004, and while more than 15,000 have done so, they are denied federal benefits like Social Security survivors’ payments, the right to file taxes jointly and guaranteed leave from work to care for a sick spouse.

In the Coakley case, the judge held that that federal restrictions on funding for states that recognize same-sex marriage violates the 10th Amendment, the part of the Constitution that declares that rights not explicitly granted to the federal government, or denied to the states, belong to the states.

The Obama administration’s Justice Department was in the position of defending the Defense of Marriage Act even though Barack Obama had called during the 2008 presidential campaign for repealing it. Scott Simpson, when arguing the case on behalf of the government in May, opened by acknowledging the administration’s opposition to the act, but saying he was still obliged to defend its constitutionality.

“This presidential administration disagrees with DOMA as a matter of policy,” Mr. Simpson said at the time. “But that does not affect its constitutionality.”

Some constitutional scholars said they were surprised by Judge Tauro’s opinions in the two cases.

“What an amazing set of opinions,” said Jack M. Balkin, a professor at Yale Law School. “No chance they’ll be held up on appeal.”

Professor Balkin, who supports the right to same-sex marriage, said the opinions ignored the federal government’s longstanding involvement in marriage issues in areas like welfare, tax policy, health care, Social Security and more. The opinion in the advocacy group’s case applies the Constitution to marriage rights, he said, undercutting the notion that the marriage is not a federal concern.

“These two opinions are at war with themselves,” he said.

The arguments concerning the 10th Amendment and the spending clause, if upheld, would “take down a wide swath of programs — you can’t even list the number of programs that would be affected,” he said.

By citing the 10th Amendment and making what is essentially a states’ rights argument, Professor Balkin said Judge Tauro was “attempting to hoist conservatives by their own petard, by saying: ‘You like the 10th Amendment? I’ll give you the 10th Amendment! I’ll strike down DOMA!’ ”

Erwin Chemerinsky, the dean of the University of California, Irvine, School of Law, was more supportive of the logic of the two opinions, and said they worked together to establish a broad right of marriage for same-sex couples.

“The key issue in this case, and in all litigation about marriage equality for gays and lesbians, is, Does the government have a rational basis for treating same-sex couples differently from heterosexual couples?” he said. “Here, the court says there is no rational basis for treating same-sex couples differently from heterosexual couples. Therefore, DOMA is unconstitutional, and conditioning federal funding on compliance with DOMA is unconstitutional.”

A central issue in the fight over the constitutionality of California’s same-sex marriage ban is whether laws restricting gay rights should be held to a tougher standard of review than the “rational basis” test, and so Judge Tauro’s decision takes a different path that would eliminate the need for that line of argument, Professor Chemerinsky said.

“There’s no need to get to higher scrutiny if it fails rational basis review,” he said.


Katie Zezima contributed reporting.

    Judge Topples U.S. Rejection of Gay Unions, NYT, 8.7.2010, http://www.nytimes.com/2010/07/09/us/09marriage.html

Qaeda Leader Indicted in New York Subway Plot

July 7, 2010
The New York Times
By WILLIAM K. RASHBAUM

Meeting with violent Salvadoran gangs in Honduras. Seeking radioactive material at a university in Hamilton, Ontario. Running an import-export business and teaching English — wife and child in tow — in Morocco. Hiding out in Suriname.

These are just some of the points of interest on the trail — or, to be more precise, the rumored trail — of an American citizen who spent part of his youth in Brooklyn, went to college in Florida and has long been on the Federal Bureau of Investigation’s most-wanted list, a senior Qaeda operative who over the last seven years has been portrayed as part wraith, part James Bond, and large-scale bogeyman.

On Wednesday, federal prosecutors in Brooklyn formally named that citizen, Adnan G. el-Shukrijumah, in an official case, charging him with crimes that the authorities say were all too real: the bomb plot last summer to attack three New York City subway lines and what they said was a related plot, one that British authorities said included a plan to blow up a shopping center in Manchester, England.

According to a Justice Department news release announcing the charges, Mr. Shukrijumah, 34, was one of a panel of three men overseeing Al Qaeda’s efforts to carry out attacks in the United States and other Western countries.

And in that role, he helped recruit three young men for the subway plot — men who had attended high school together in New York City and had traveled to the tribal areas in Pakistan for terror training, the news release said.

A Saudi-born naturalized American, the elusive Mr. Shukrijumah was the focus of intense attention in the months after the 9/11 attacks because of his citizenship, his knowledge of the United States and, eventually, the realization that he was tied to senior Qaeda operatives and possibly involved in a dirty-bomb plot. United States officials have offered a reward of up to $5 million for information leading to his capture.

But he seemed to drop off the radar screens of law enforcement and intelligence agencies about five years ago, and quickly became the subject of rumors. For a period of time, was reportedly sighted in locales including Panama, Trinidad and Tobago, southern Florida and Yemen. He remains at large, officials said, and some experts believe that he has long been in hiding in the tribal areas, discounting the myriad sightings reported elsewhere around the globe.

“He very much disappeared,” said Evan F. Kohlmann, a veteran terrorism analyst with Flashpoint Global Partners in New York who has consulted for the government, referring to Mr. Shukrijumah. “There were reports of him surfacing all over the place, but I don’t believe he was ever there. I believe he was back in Waziristan, which is the only safe place he could hide.”

The 10-count indictment charges Mr. Shukrijumah and three other men with a range of crimes in connection with the New York subway plot, which prosecutors say Mr. Shukrijumah helped organize, and the planned attack in Manchester.

It supplements an earlier indictment brought in Brooklyn charging the three men he recruited for the subway plot, including Najibullah Zazi, whom prosecutors identified as a central figure in that planned attack.

Both Mr. Zazi and a second defendant, Zarein Ahmedzay, 25, have been cooperating with the F.B.I. and federal prosecutors and probably provided some of the information that led to the new indictment. The third defendant, Adis Medunjanin, 26, plans to go to trial.

The new charges include conspiring to use weapons of mass destruction, conspiring and attempting to commit an act of terrorism across national boundaries, conspiring to provide and providing material support to Al Qaeda and other terrorism-related crimes.

The new charges for the first time link the subway plot with a planned Qaeda attack in Britain and contain the government’s most detailed account to date on the development of the subway conspiracy and the identities of its authors in the tribal areas of Pakistan.

It also describes how Rashid Rauf and Saleh al-Somali — who prosecutors say were then responsible along with Mr. Shukrijumah for planning Qaeda attacks in the United States and other Western countries — communicated from the tribal areas through “an Al Qaeda facilitator” in Peshawar, Pakistan. Both Mr. Rauf and Mr. al-Somali have since been killed in United States drone strikes in the tribal areas, according to officials.

The facilitator, according to the authorities, used the same e-mail account to send coded messages to Mr. Zazi, in Denver and New York, and one of the accused Manchester plotters, Abid Naseer, in Britain.

The facilitator, who was identified in the indictment only as Ahmad or Zahid, was also charged.

The indictment was filed in Federal District Court in Brooklyn, where it is being prosecuted by the office of Loretta E. Lynch, the United States attorney for the Eastern District of New York.

Mr. Naseer was one of 11 men — 10 of them Pakistanis — arrested in April 2009 by British authorities who were investigating the Manchester plot in one of that nation’s most extensive counterterrorism operations since the 9/11 attacks. A fourth defendant in the new indictment, Tariq Ur Rehman, who was arrested at the same time as Mr. Nasser and later deported, is also at large. Mr. Naseer, who fought deportation, was arrested on Wednesday and is currently in custody in Britain. The United States intends to seek his extradition.

    Qaeda Leader Indicted in New York Subway Plot, NYT, 7.7.2010, http://www.nytimes.com/2010/07/08/nyregion/08terror.html

Obama Asks Court to Reinstate Ban on Deepwater Drilling

July 7, 2010
The New York Times
By JOHN M. BRODER

WASHINGTON — The Obama administration has asked a federal court in Louisiana to reinstate the ban on deepwater drilling in the Gulf of Mexico, saying the moratorium was a rational response to the unparalleled emergency of the BP oil spill.

In a court filing late Tuesday, the Interior Department said that the six-month ban on drilling in more than 500 feet of water, imposed in late May, was necessary to allow time to adopt stricter safety and environmental regulation of deepwater wells.

The action has put hundreds of people who operate and service deepwater wells out of work and has brought long-term uncertainty to the Gulf Coast economy. Politicians all along the coast have called the moratorium a case of federal overkill that threatens the livelihood of the region.

The moratorium was challenged in court by Hornbeck Offshore Services, a Louisiana firm that provides goods and services to offshore drilling and pumping platforms, and by other oil service firms. Judge Martin L. C. Feldman of the United States District Court in New Orleans agreed with the company, and on June 22 issued an order blocking enforcement of the moratorium. He said the Obama administration had failed to justify the need for “a blanket, generic, indeed punitive, moratorium” on deepwater oil and gas drilling.

The May moratorium order halted 33 exploratory drilling projects in deep water and suspended new permits but did not affect platforms that were already in production. Despite Judge Feldman’s ruling reversing the moratorium, work on the wells has not resumed pending appeals.

Interior Secretary Ken Salazar is expected to issue new guidelines for the drilling ban by the end of the week that may allow some deepwater drilling or well maintenance activity to start again, an agency official said Wednesday.

In replying on Tuesday to Judge Feldman’s order, the Interior Department, joined by the Justice Department, stated that the continued suspension of drilling was required because continued operations without new safety measures threatened irreparable harm to the marine and coastal environment across the gulf. The government also said that the BP oil spill had taxed the resources available to respond to and clean up the mess and that government and industry could not cope with a second blowout.

“Because this deepwater spill has been impossible to fully contain,” the government reply said, “Interior had to take immediate action to minimize the risk of another spill, especially while efforts to contain and clean up this one are ongoing. The stakes are even higher now that it is hurricane season.”

The Interior Department, which oversees oil and gas exploration on public lands and offshore, is charged with the “prudent and safe” management of those resources, the court filing said.

“A short-term suspension of deepwater drilling while safety regulations are updated is necessary to achieve that goal,” the document stated.

A three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, will hear arguments in the case on Thursday.

    Obama Asks Court to Reinstate Ban on Deepwater Drilling, NYT, 7.7.2010, http://www.nytimes.com/2010/07/08/us/08drill.html

Justice Dept. Sues Arizona Over Its Immigration Law

July 6, 2010
The New York Times
By JULIA PRESTON

The Justice Department filed a lawsuit on Tuesday against Arizona to challenge a new state law intended to combat illegal immigration, arguing that it would undermine the federal government’s pursuit of terrorists, gang members and other criminal immigrants.

The suit, filed in federal court in Phoenix, had been expected since mid-June, when Obama administration officials first disclosed they would contest the Arizona law, adding to several other suits seeking to have courts strike it down.

The federal government added its weight to the core argument in those suits, which contend that the Arizona law usurps powers to control immigration reserved for federal authorities. The main suit was brought by the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund and other civil rights groups.

The Justice Department argues the law would divert federal and local law enforcement officers by making them focus on people who may not have committed crimes, and by causing the “detention and harassment of authorized visitors, immigrants and citizens.”

“Arizonans are understandably frustrated with illegal immigration,” Attorney General Eric H. Holder Jr. said. “But diverting federal resources away from dangerous aliens such as terrorism suspects and aliens with criminal records will impact the entire country’s safety.”

The Justice Department suit is also aimed at stemming a tide of similar laws under consideration in other states. “The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country,” the suit says.

Justice Department officials are “sending an unmistakable cannon shot across the bow of any other state that might be tempted to follow Arizona’s misguided approach,” said Lucas Guttentag, director of the Immigrants’ Rights Project for the A.C.L.U.

The Justice Department asked for a court injunction to prevent the Arizona law from taking effect as scheduled on July 29. Hearings in the other cases are scheduled for July 15 and 22. The law, signed by Gov. Jan Brewer on April 23, makes it a crime to be an illegal immigrant in the state and requires officers to determine the immigration status of people they stop for another offense based on a “reasonable suspicion” that they might be illegal immigrants.

Ms. Brewer assailed the federal lawsuit. “As a direct result of failed and inconsistent federal enforcement, Arizona is under attack from violent Mexican drug and immigrant smuggling cartels,” she said. “Now, Arizona is under attack in federal court from President Obama and his Department of Justice.”

White House officials said Mr. Obama was not involved in the Justice Department’s decision to sue. But the suit came after steps by Mr. Obama in an effort to frame the immigration debate in terms that will favor Democrats in advance of midterm elections in November, including a speech on Thursday when he restated his commitment to overhaul legislation that would give legal status to millions of illegal immigrants.

The suit deepened the controversy over the Arizona law. Representative Darrell Issa, Republican of California, said the president was wasting resources that should be spent controlling the Southwest border.

“For President Obama to stand in the way of a state which has taken action to stand up for its citizens against the daily threat of violence and fear is disgraceful and a betrayal of his Constitutional obligation to protect our citizens,” said Mr. Issa, one of 19 Republicans signing a letter criticizing the suit.

Kris Kobach, a lawyer and consultant to Ms. Brewer who is a co-author of the Arizona statute, said it was tailored to complement federal law. The Justice Department’s suit is “unnecessary,” he said, and “the suspicion is this is more about politics than law.”

In a background call with reporters, a senior department official said the decision to file the lawsuit — and to do so on the ground that it pre-empts federal authority, rather than on civil rights grounds like racial profiling — followed extensive deliberations with the Civil Rights Division and others inside the department, and a trip to Arizona to meet with state officials.

Should the department fail to persuade the courts to block Arizona’s law, the official said, it would closely watch for signs that people of Hispanic appearance were being singled out.


Charlie Savage contributed reporting.

    Justice Dept. Sues Arizona Over Its Immigration Law, NYT, 6.7.2010, http://www.nytimes.com/2010/07/07/us/07immig.html

Appeals Court Sides With Detainee

July 3, 2010
The New York Times
By CHARLIE SAVAGE

WASHINGTON — A federal appeals court has sided with a Guantánamo prisoner whose case prompted a major internal argument among Obama administration legal advisers last year over how broadly to define terrorism suspects who may be detained without trial.

Belkacem Bensayah, an Algerian who was arrested in Bosnia in 2001 and accused of helping people who wanted to travel to Afghanistan and join Al Qaeda, cannot be considered part of the terrorist organization based on the evidence the government presented against him, a panel of the United States Court of Appeals for the District of Columbia Circuit has ruled.

“The government presented no direct evidence of actual communication between Bensayah and any Al Qaeda member, much less evidence suggesting Bensayah communicated with” anyone else to facilitate travel by an Al Qaeda member, Judge Douglas H. Ginsburg wrote in a 17-page opinion that was declassified late last week. Parts of the ruling were censored by the government.

Mark Fleming, a partner at the law firm Wilmer Hale who is representing Mr. Bensayah, praised the ruling and called on the Obama administration to send his client back to Bosnia, where his wife and daughters live.

“We’re very happy with the decision of the Court of Appeals recognizing that the evidence does not justify treating Mr. Bensayah as an enemy combatant,” Mr. Fleming said. “We hope the United States will now do the right thing and release Mr. Bensayah so he can begin to rebuild his life after his long captivity.”

A Justice Department spokesman said the Obama administration was reviewing the ruling and had not yet decided how to respond.

The decision sends Mr. Bensayah’s case for reconsideration by a district judge, Richard J. Leon, who in late 2008 ruled that Mr. Bensayah could be held indefinitely and without trial as a wartime prisoner because he had provided “direct support” to Al Qaeda by trying to facilitate travel. In that same ruling, Judge Leon ordered the release of five other detainees arrested with Mr. Bensayah in Bosnia, saying the government had failed to show that they planned to travel to Afghanistan to fight the United States.

The appeals court’s reversal of Judge Leon’s ruling has added significance because it followed two policy changes about the case that the Obama administration made after taking over from the Bush administration.

In September 2009, just before the appeals court heard arguments in the case, the Obama administration abandoned the argument that Mr. Bensayah could be detained as a substantial “supporter” of Al Qaeda. Instead, it portrayed him as functionally “part” of the terrorist organization — a narrower definition.

That switch followed an internal debate between senior State Department and Pentagon lawyers over whether the Geneva Conventions allow mere supporters of an enemy force, picked up far from any combat zone, to be treated just like members of the enemy organization.

The dispute ended without a clear resolution. But as a compromise, the administration decided not to argue that Mr. Bensayah, at least, could be detained as a supporter, while holding open the theoretical possibility of making that argument in other cases.

Still, Judge Ginsburg’s opinion suggested that the appeals court ruling turned less on the recategorization of Mr. Bensayah’s alleged ties to Al Qaeda than on skepticism about the basic credibility of the evidence the government presented against him.

While the appeal was still pending last year, the Justice Department withdrew its reliance on certain evidence it had presented to Judge Leon, but about which the government had lost confidence for undisclosed reasons, Judge Ginsburg’s opinion said.

The nature of that evidence was redacted from the ruling, but it may have related to accusations that Mr. Bensayah had contact with Abu Zubaydah, another Guantánamo detainee who was once portrayed as a senior member of Al Qaeda, although officials have since lowered their estimation of his importance. A 2004 military document about Mr. Bensayah had accused him of having had phone conversations with Mr. Zubaydah about passports.

The government stuck with other evidence, including a raw intelligence report whose contents were largely redacted from the opinion, as well as accusations that Mr. Bensayah had used fraudulent documents and might have lied about his travel in the early 1990s. But Judge Ginsburg said “the evidence, viewed in isolation or together, is insufficiently corroborative” of the accusation that Mr. Bensayah was part of Al Qaeda.

The uncertainty about his travel history, the judge wrote, “at most undermines Bensayah’s own credibility; no account of his whereabouts ties him to Al Qaeda or suggests he facilitated anyone’s travel during that time. These ‘questions’ in no way demonstrate that Bensayah had ties to and facilitated travel for Al Qaeda in 2001.”

    Appeals Court Sides With Detainee, NYT, 3.7.2010, http://www.nytimes.com/2010/07/04/us/04gitmo.html

U.S. Court Strikes Down Death Sentence for Killer of Two New York Officers

June 30, 2010
The New York Times
By MANNY FERNANDEZ and A. G. SULZBERGER

An appeals court struck down the first successful federal capital-punishment prosecution in New York State in more than 50 years on Wednesday, overturning the death sentence given to a Staten Island man who was convicted of killing two undercover New York City police detectives in 2003.

The man, Ronell Wilson, now 28, was sentenced by a federal jury in January 2007 to die by lethal injection for shooting each of the detectives in the back of the head in a car on a dead-end street on Staten Island. The detectives, James V. Nemorin and Rodney J. Andrews, had been posing as gun buyers.

A three-judge panel of the United States Court of Appeals for the Second Circuit overturned the death sentence, asserting in a 2-to-1 ruling that federal prosecutors had violated Mr. Wilson’s constitutional rights.

The judges ruled that Mr. Wilson’s conviction still stands, but they essentially ordered a new hearing to determine if he should receive the death penalty. The United States attorney’s office could appeal the ruling to the entire Second Circuit or to the Supreme Court. If prosecutors choose not to appeal, the case will go back to Judge Nicholas G. Garaufis of Federal District Court in Brooklyn for a penalty phase hearing before a new jury.

Another option would involve withdrawing their notice to seek the death penalty, in which case Mr. Wilson would be automatically sentenced to life in prison.

At a news conference, Michael J. Palladino, the president of the Detectives Endowment Association, the union that represents detectives, said the ruling sent “shockwaves through the families of Detectives Nemorin and Andrews as well as the N.Y.P.D., and probably the entire law enforcement community.” He added, “Two judges out of the three have ruled in favor of a ruthless, remorseless killer of two undercover police officers.”

MaryAnn Andrews, who was married to Detective Andrews and who is also a detective, stood next to Mr. Palladino and wiped tears from her eyes. She told reporters she was too distraught to discuss the case. “I can’t,” she said. “It’s just too much.”

No federal juries have been more reluctant to sentence federal defendants to death than those in New York State. Federal prosecutors in the state asked juries to impose death sentences 19 times from 1988 through March 2008, but in only one of those cases — Mr. Wilson’s trial — did a jury vote for execution, according to the Federal Death Penalty Resource Counsel Project. Experts said the reasons for jurors’ reluctance were varied, but included the liberal slant of juries in the state.

Mr. Palladino acknowledged the difficulty facing prosecutors. “It’s going to take a miracle to recreate a death sentence with a new jury,” he said, adding that he would encourage prosecutors to appeal.

The Court of Appeals’ ruling centered on two arguments that prosecutors made to the jury about Mr. Wilson’s remorse and acceptance of responsibility for the killings during the penalty phase of his trial. The judges noted that prosecutors used Mr. Wilson’s demand for a trial and his failure to plead guilty as evidence that he lacked remorse and refused to accept responsibility. The judges said prosecutors had argued to the jury that Mr. Wilson’s statement of remorse should be discredited because he failed to testify.

“He has an absolute right to go to trial, put the government to its burden of proof, to prove he committed these crimes, but he can’t have it both ways,” one of the prosecutors, Jack Smith, is quoted as telling the jury in the judges’ ruling (Mr. Smith now leads the public integrity section for the Justice Department). “He can’t do that, then say I accept responsibility.”

The defense made an objection at that point that was overruled, and the prosecutor continued, “And [say] ‘I’m sorry, only after you prove I did it.’ That’s not acceptance of responsibility.”

The judges wrote that they agreed with Mr. Wilson’s lawyers that the comments “unconstitutionally burdened his Sixth Amendment right to a jury trial.” In addition, the prosecutor’s highlighting of Mr. Wilson’s refusal to testify violated his Fifth Amendment right against incriminating himself, according to the ruling.

“We’re reviewing the decision and considering our options,” said Robert Nardoza, a spokesman for the United States attorney’s office in Brooklyn.

In a separate opinion that one of the three judges, Debra Ann Livingston, characterized as “concurring in part and dissenting in part,” she wrote: “I conclude that if there was Fifth Amendment error here — and I find it doubtful — such error had no impact on the jury that sentenced Wilson. With regard to the Sixth Amendment, there is simply no error to review.”

A jury convicted Mr. Wilson in December 2006 of killing the two detectives. Detective Nemorin was 36, a Haitian immigrant and a father of three. Detective Andrews was 34, a Navy veteran and a father of two.

Morris J. Fodeman, one of the prosecutors in the trial, said he was surprised by the decision, in part because it focused on comments made during rebuttal summations during the last five minutes of a five-month trial.

“The decision illustrates the increasing difficulty prosecutors have in attaining and carrying out a death penalty sentence given the intense albeit justifiable scrutiny on every word uttered in the courtroom,” said Mr. Fodeman, who is now in private practice.

Mr. Wilson had been a member of the Stapleton Crew, a gang involved in robberies and drug dealing that had operated for years on Staten Island but has since been disbanded. A week before the killings, two gang members sold a gun to Detective Nemorin, who was working undercover. He arranged to buy another gun — a Tec-9 assault pistol, for $1,200 — the following week. Detective Andrews volunteered to serve as Detective Nemorin’s backup.

The gang members decided to rob the detectives rather than provide the gun. On the night of March 10, 2003, Mr. Wilson, armed with a .44-caliber pistol, shot Detective Andrews in the head. Mr. Wilson then pointed the gun at Detective Nemorin and asked him where the money was. Jessie Jacobus, another gang member , testified that the detective “was pleading for his life” before Mr. Wilson pulled the trigger.

On Jan. 24, 2007, Mr. Wilson read a brief statement of remorse to the jury: “I have seen the pain that I have caused the family and friends of the victims and to my own family and friends.”

Mr. Wilson has been on the federal death row in Terre Haute, Ind. Beverly Van Ness, one of his appellate lawyers, said she was “thrilled” by the ruling: “It was the right decision, and I’m very grateful and relieved that he will be given another chance to possibly attain a life sentence.”


Colin Moynihan contributed reporting.

    U.S. Court Strikes Down Death Sentence for Killer of Two New York Officers, NYT, 30.6.2010, http://www.nytimes.com/2010/07/01/nyregion/01death.html

White House to Appeal Ruling Against Drilling Ban

June 22, 2010
Filed at 2:40 p.m. ET
The New York Times
By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The White House said Tuesday it will immediately appeal a federal judge's ruling against the Obama administration's moratorium on new deepwater drilling.

A New Orleans judge on Tuesday blocked the six-month ban imposed in the wake of the Gulf oil spill, saying the Interior Department had failed to provide adequate reasons for it.

Robert Gibbs, the White House press secretary, defended the moratorium and promised an immediate appeal to the 5th Circuit Court of Appeals.

Gibbs said President Barack Obama believes strongly that drilling at such depths -- without knowing what happened to cause the Deepwater Horizon drilling rig to explode -- does not make any sense and puts the safety of workers ''at a danger that the president does not believe we can afford.''

Obama wanted the moratorium to be in place until a commission he appointed could complete a six-month investigation.

    White House to Appeal Ruling Against Drilling Ban, NYT, 22.6.2010, http://www.nytimes.com/aponline/2010/06/22/us/politics/AP-US-Gulf-Oil-Spill-White-House.html

Judge Blocks Deep-Water Drilling Moratorium

June 22, 2010
Filed at 2:45 p.m. ET
The New York Times
By THE ASSOCIATED PRESS

NEW ORLEANS (AP) -- A federal judge struck down the Obama administration's six-month ban on deepwater oil drilling in the Gulf of Mexico on Tuesday, saying the government rashly concluded that because one rig failed, the others are in immediate danger, too.

The White House promised an immediate appeal. The Interior Department had halted approval of any new permits for deepwater drilling and suspended drilling of 33 exploratory wells in the Gulf.

Press Secretary Robert Gibbs said President Barack Obama believes strongly that drilling at such depths does not make sense and puts the safety of workers ''at a danger that the president does not believe we can afford.''

Several companies that ferry people and supplies and provide other services to offshore drilling rigs asked U.S. District Judge Martin Feldman in New Orleans to overturn the moratorium.

They argued it was arbitrarily imposed after the April 20 explosion on the Deepwater Horizon drilling rig that killed 11 workers and blew out the well 5,000 feet underwater. It has spewed anywhere from 67 million to 127 million gallons of oil into the Gulf.

Feldman sided with the companies, saying in his ruling the Interior Department assumed that because one rig failed, all companies and rigs doing deepwater drilling pose an imminent danger.

''The Deepwater Horizon oil spill is an unprecedented, sad, ugly and inhuman disaster,'' he wrote. ''What seems clear is that the federal government has been pressed by what happened on the Deepwater Horizon into an otherwise sweeping confirmation that all Gulf deepwater drilling activities put us all in a universal threat of irreparable harm.''

His ruling prohibits federal officials from enforcing the moratorium until a trial is held. He did not set a trial date.

The Interior Department said it needed time to study the risks of deepwater drilling. But the lawsuit filed by Hornbeck Offshore Services of Covington, La., claimed there was no proof the other operations posed a threat.

Company CEO Todd Hornbeck said after the ruling that he is looking forward to getting back to work.

''It's the right thing for not only the industry but the country,'' he said.

Earlier in the day, executives at a major oil conference in London warned that the moratorium would cripple world energy supplies. Steven Newman, president and CEO of Transocean Ltd., owner of the rig that exploded, called it an unnecessary overreaction. BP PLC was leasing the rig.

''There are things the administration could implement today that would allow the industry to go back to work tomorrow without an arbitrary six-month time limit,'' Newman told reporters on the sidelines of the conference.

The moratorium was declared May 6 and originally was to last only through the month. Obama announced May 27 that he was extending it for six months.

In Louisiana, Gov. Bobby Jindal and corporate leaders said that would force drilling rigs to leave the Gulf of Mexico for lucrative business in foreign waters.

They said the loss of business would cost the area thousands of lucrative jobs, most paying more than $50,000 a year. The state's other major economic sector, tourism, is a largely low-wage industry.

Tim Kerner, the mayor of Lafitte, La., cheered Feldman's ruling.

''I love it. I think it's great for the jobs here and the people who depend on them,'' said Kerner, whose constituents make their living primarily from commercial fishing or oil.

But in its response to the lawsuit, the Interior Department said the moratorium is needed as attempts to stop the leak and clean the Gulf continue and new safety standards are developed.

''A second deepwater blowout could overwhelm the efforts to respond to the current disaster,'' the Interior Department said.

The government also challenged contentions the moratorium would cause long-term economic harm. Although 33 deepwater drilling sites were affected, there are still 3,600 oil and natural gas production platforms in the Gulf.

Catherine Wannamaker, a lawyer for environmental groups that intervened in the case and supported the moratorium, called the ruling ''a step in the wrong direction.''

''We think it overlooks the ongoing harm in the Gulf, the devastation it has had on people's lives,'' she said. ''The harm at issue with the Deepwater Horizon spill is bigger than just the Louisiana economy. It affects all of the Gulf.''

------

Associated Press Writer Pauline Arrillaga in Lafitte, La., contributed to this report.

    Judge Blocks Deep-Water Drilling Moratorium, NYT, 22.6.2010, http://www.nytimes.com/aponline/2010/06/22/us/AP-US-Gulf-Oil-Spill.html

Backward at Bagram

May 31, 2010
The New York Times

One of the most vital jobs of the federal courts is to check excessive claims of presidential power. The courts have stepped up to the task at important times since President George W. Bush embarked on a campaign after the Sept. 11, 2001, attacks to create an imperial presidency. Sadly, a recent ruling by a federal appeals court on the American military prison at Bagram Air Base in Afghanistan was not one of those times.

What makes the ruling especially distressing is that the extravagant claim of executive power upheld by the court — to create a law-free zone at the Bagram lockup — was dreamed up by Mr. Bush and subsequently embraced by President Obama. The appellate court ruled that there was no right to federal court review for the detainees, who say they were captured outside of Afghanistan, far from any battlefield, and then shipped to Bagram to be held indefinitely in harsh conditions.

The decision overturns a narrowly focused 2009 ruling by Judge John Bates of the Federal District Court. His decision was based on the 2008 Supreme Court decision that granted prisoners at Guantánamo Bay, Cuba, a federal court review of their detention. Judge Bates extended the Supreme Court ruling to non-Afghan detainees at Bagram who had been held for more than six years — a small slice of the 600 to 800 prisoners there.

Judge Bates recognized that Bagram is in an active theater of war, and habeas corpus traditionally has not applied to detainees abroad in zones of combat. But his ruling also recognized that the logic of exempting prisoners of war from judicial review cannot apply to a detainee who is imported to the war zone.

The appellate panel found that the process for sorting prisoners at Bagram was even flimsier than the one at Guantánamo, which the Supreme Court said was inadequate. To justify overruling Judge Bates, the appellate judges overestimated the practical difficulty of affording court access and underestimated American control in Bagram. They also dusted off a precedent from 1950 to suggest that granting habeas corpus rights to a small number of Bagram detainees would somehow “hamper the war effort, and bring aid and comfort to the enemy.”

Actually, military commanders and Mr. Obama himself have argued that ensuring fair treatment of detainees advances national security interests by denying Al Qaeda and the Taliban an effective recruiting tool.

On a positive note, the appellate court left open the possibility of a different result in a case where there is a clear showing that the government transferred detainees into an active combat zone in order to evade judicial review of detention decisions. The ruling was deeply unconvincing in suggesting, however, that this did not apply to the case before it.

It would be comforting to think that detainee treatment issues at Bagram have been resolved. But just a week before the panel’s ruling, the Red Cross confirmed the existence of an American-run prison facility at Bagram, where some detainees allege they were abused.

Under the pressure of a lawsuit, the administration in January provided the names of detainees at the notorious Bagram prison. But it still resists disclosing vital details, including their citizenship, the locations and circumstances of their capture, and how long they have been held. Further, it has yet to release salient details about how the newly revised military process for reviewing the validity of detentions is working in practice. We await the administration’s accounting.

    Backward at Bagram, NYT, 31.5.2010, http://www.nytimes.com/2010/06/01/opinion/01tue1.html

Jury Selection Begins in Ill. Police Torture Trial

May 23, 2010
Filed at 2:27 p.m. ET
The New York Times
By THE ASSOCIATED PRESS

CHICAGO (AP) -- For decades, black men across Chicago described torture at the hands of former police Lt. Jon Burge and his officers, and for decades no one listened. Suspects landed in jail and even on death row for crimes they say they didn't commit after Burge and his men coerced confessions using terrifying methods including suffocation, a form of waterboarding and electric shocks.

Finally those complaints from the 1970s and 80s are being taken seriously -- and it could be Burge's own words that send him to prison.

Jury selection begins Monday in Burge's trial on federal obstruction of justice and perjury charges. He's accused of lying when he denied in a civil lawsuit that he and other detectives had tortured anyone. He faces a maximum of 45 years in prison if convicted of all charges.

Burge has pleaded not guilty to the charges and is free on bond.

Authorities have, to a degree, acknowledged that Burge may have committed these horrifying acts, but he does not face torture-related charges because the statute of limitations has run out. The police department fired him in 1993 for mistreatment of a suspect, but did not press charges. A decade later, then-Gov. George Ryan released four condemned men he said Burge had extracted confessions from using torture.

The allegations of torture and coerced confessions eventually led to a still-standing moratorium on Illinois' death penalty and the emptying of death row -- moves credited with re-igniting the global fight against capital punishment. But they also earned Chicago a reputation as a haven for rogue cops, a place where police could abuse suspects without notice or punishment.

The scandal has extended to the highest levels of city and county government, and the trial's witness lists include Chicago Mayor Richard Daley, who was Cook County state's attorney during Burge's tenure, fellow former State's Attorney Dick Devine, and Daley's predecessor in the mayor's office, Jane Byrne.

Prosecutors are expected to call former police officers and at least a half dozen men who say they were tortured by Burge or those under his command. The more than 100 victims say the torture started in the 1970s and persisted until the '90s at police stations on the city's South and West sides.

Burge is the first Chicago officer accused of torture to be criminally charged in the case.

''I'm just glad it came to trial in my lifetime, because it looked like it wasn't going to happen,'' said Jo Ann Patterson, whose son Aaron Patterson was one of the four whom Ryan freed from death row because he believed he had been tortured.

The Republican governor later cleared all of death row, saying the torture of innocent men at the hands of Chicago police had tainted the state's entire death penalty system.

''How many more cases of wrongful convictions have to occur before we can all agree that the system is broken?'' Ryan said at the time.

In July 2006, two special prosecutors named to look into the allegations said evidence indicated that dozens of suspects had been mistreated during the 1970s and '80s but that the cases were too old to bring charges. The statute of limitations on the offenses they identified in the report is three years.

Two years later, Burge was charged with lying under oath in a civil lawsuit in which he denied he knew about or took part in beatings, threats and torture methods such as ''bagging'' -- forcing a confession by a putting a plastic typewriter cover over a suspect's head.

Other alleged victims spoke of beatings, gun threats and a mysterious black box used to emit electric shocks. One said his tormentors poured soda into his nose.

The police department fired Burge in 1993, and he now lives in retirement in Florida. He's been diagnosed with prostate cancer, and his trial was delayed for months while he recovered from treatment.

The 62-year-old Army veteran wasn't prosecuted for torture even after police officials agreed that he'd participated in it, and some in the legal community say he wouldn't be facing charges at all if it wasn't for U.S. Attorney Patrick Fitzgerald.

''There were a lot of people who could've done something about it and didn't,'' said Jon Loevy, an attorney who's represented several alleged torture victims. ''There were a lot of lost opportunities, and finally Mr. Fitzgerald's office is going to do something about it.''

Victims, lawyers and police officers said they have mixed feelings about the trial. Some, like Patterson, are just glad it's finally happening. David Bates, who says he was tortured by men under Burge's command, called the trial a ''win-win.''

But attorney Flint Taylor, who's represented alleged victims over the last 20 years, isn't satisfied, pointing to the dozens of alleged victims still in prison.

''There really can't be any full justice until the torturers are all in jail, and the torture victims are released and given fair trials,'' he said.

Burge's trial in front of U.S. District Judge Joan Humphrey Lefkow is expected to last six weeks.

    Jury Selection Begins in Ill. Police Torture Trial, NYT, 23.5.2010, http://www.nytimes.com/aponline/2010/05/23/us/AP-US-Police-Torture-Trial.html

Appeals Panel Bars Detainees From Access to U.S. Courts

May 21, 2010
The New York Times
By CHARLIE SAVAGE

WASHINGTON — A federal appeals court ruled Friday that three men who had been detained by the United States military for years without trial in Afghanistan had no recourse to American courts. The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight.

The detainees, two Yemenis and a Tunisian who say they were captured outside Afghanistan, contend that they are not terrorists and are being mistakenly imprisoned at the American military prison at Bagram Air Base.

But a three-judge panel of the United States Court of Appeals for the District of Columbia ruled unanimously that the three had no right to habeas corpus hearings, in which judges would review evidence against them and could order their release. The court reasoned that Bagram was on the sovereign territory of another government and emphasized the “pragmatic obstacles” of giving hearings to detainees “in an active theater of war.”

The ruling dealt a severe blow to wider efforts by lawyers to extend a landmark 2008 Supreme Court ruling granting habeas corpus rights to prisoners at Guantánamo Bay, Cuba. A lower court judge had previously ruled that the three Bagram detainees were entitled to the same rights, although he had found that others captured in Afghanistan and held there were not.

A lawyer for the detainees, Tina Foster, said that if the precedent stood, Mr. Obama and future presidents would have a free hand to “kidnap people from other parts of the world and lock them away for the rest of their lives” without having to prove in court that their suspicions about such prisoners were accurate.

“The thing that is most disappointing for those of us who have been in the fight for this long is all of the people who used to be opposed to the idea of unlimited executive power during the Bush administration but now seem to have embraced it during this administration,” she said. “We have to remember that Obama is not the last president of the United States.”

Senator Lindsey Graham, Republican of South Carolina and an influential lawmaker in the long-running debate over detentions, called the ruling a “big win” and praised the administration for appealing the lower court’s ruling.

“Allowing a noncitizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions,” he said. “It also would have dealt a severe blow to our war effort.

“There is a reason we have never allowed enemy prisoners detained overseas in an active war zone to sue in federal court for their release. It simply makes no sense and would be the ultimate act of turning the war into a crime.”

It was not entirely clear how the ruling might affect detention policies for terrorism suspects caught outside Afghanistan or Iraq. While the Obama administration has stepped up the use of Predator drone strikes to kill terrorism suspects and has relied on other countries, like Pakistan, to hold and interrogate suspects who are captured alive, it is not known whether the United States has directly captured anyone outside Afghanistan or Iraq recently — and, if so, where it has taken them.

A Justice Department spokesman, Dean Boyd, would not comment on the decision.

David Rivkin, who filed a friend-of-the-court brief on behalf of the Special Forces Association urging the court to side with the government, said the ruling would have broad significance by removing doubts over whether the United States could capture and interrogate terrorism suspects without worrying about having to collect, in dangerous situations, evidence that would later stand up in court.

“This is an excellent decision,” said Mr. Rivkin, who was a White House lawyer in the administration of the first President Bush. “It has restored a considerable degree of sanity to what threatened to be a crazy legal regime that would have deprived the United States, for the first time in history, of the opportunity to capture and detain — outside of the United States, in theaters of war — high-value combatants. That has been solved, and it will apply to many other situations in the future.”

The case was brought on behalf of a Tunisian man who says he was captured in Pakistan in 2002, a Yemeni man who says he was captured in Thailand in 2002, and another Yemeni man who says he was captured in 2003 at another location outside Afghanistan that has not been disclosed. (The government has disputed the second Yemeni’s claim.)

The men’s case was originally heard by Judge John D. Bates of the Federal District Court, an appointee of former President George W. Bush. The Bush and Obama administrations had both urged Judge Bates not to extend habeas corpus rights beyond Guantánamo, arguing that courts should not interfere with military operations inside active combat zones.

But in April 2009, Judge Bates ruled that there was no difference between the three men who had filed suit and Guantánamo prisoners. His decision was limited to non-Afghans captured outside Afghanistan — a category that fits only about a dozen of the roughly 800 detainees at Bagram, officials have said.

In urging the appeals court to let Judge Bates’s decision stand, lawyers for the detainees argued that reversing it would mean that the government would be able “to evade judicial review of executive detention decisions by transferring detainees into active combat zones, thereby granting the executive the power to switch the Constitution on or off at will.”

But in the appeal panel’s decision reversing Judge Bates, Chief Judge David B. Sentelle said there had been no such gamesmanship in the decision to bring the three detainees to Bagram because it happened years before the Supreme Court’s Guantánamo rulings.

Still, he left the door open to approving habeas corpus rights for prisoners taken to prisons other than Guantánamo in the future, writing, “We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than speculation.”

Ms. Foster vowed to keep fighting. But Mr. Rivkin said that the detainees’ chances for overturning the decision were dim because the three appeals judges spanned the ideological spectrum: Chief Judge Sentelle, appointed by President Ronald Reagan; Judge Harry T. Edwards, appointed by President Jimmy Carter; and Judge David S. Tatel, appointed by President Bill Clinton.

It could also be difficult to win a reversal by the Supreme Court, where five of the nine justices supported giving habeas rights to detainees in the Guantánamo case. Among the narrow majority in that case was Justice John Paul Stevens, who is retiring.

The nominee to replace him, Elena Kagan, who as solicitor general signed the government’s briefs in the case, would most likely recuse herself from hearing an appeal of the decision, and a four-four split would allow it to stand.

    Appeals Panel Bars Detainees From Access to U.S. Courts, NYT, 21.5.2010, http://www.nytimes.com/2010/05/22/world/asia/22detain.html

Tainted Justice

May 23, 2010
The New York Times

If the Obama administration wants to demonstrate that it is practical and just to try some terrorism suspects in military tribunals instead of federal courts, it is off to a very poor start.

Justice Department and Pentagon officials have chosen a troubling case for the first trial under the revisions that were adopted to the Military Commissions Act in 2009 — a Toronto-born Guantánamo Bay detainee named Omar Khadr. Mr. Khadr, 23, has been in detention since he was 15, when he allegedly threw a hand grenade during a firefight in Afghanistan that fatally wounded Sgt. First Class Christopher Speer.

Mr. Khadr was not a mere bystander. He was indoctrinated into armed conflict by his father, a member of Osama bin Laden’s circle who was killed by Pakistani forces in 2003. But if his trial goes forward this summer as scheduled, he will be the first person in decades to be tried by a Western nation for war crimes allegedly committed as a child.

That has drawn justified criticism from United Nations officials and civil liberties and human rights groups. The conditions of Mr. Khadr’s imprisonment have been in clear violation of the Geneva Conventions and international accords on the treatment of children.

During a recent pretrial hearing at Guantánamo, it emerged that his initial questioning at Afghanistan’s Bagram prison occurred while he was sedated for pain and shackled to a stretcher following his hospitalization for severe wounds suffered in the fighting.

His first interrogator, identified at the hearing only as Interrogator One, was an Army sergeant later convicted of detainee abuse in another case. He used threats of rape and death to frighten the teenaged Omar Khadr into talking. Another witness recalled seeing him hooded and handcuffed to his cell with his arms held painfully above his shoulders. When the hood was removed, he testified, he could see that the teenager was crying.

In January, the Supreme Court of Canada condemned the questioning of Mr. Khadr by a Canadian official who then shared the results with American prosecutors. The ruling cited Mr. Khadr’s lack of access to counsel and his inclusion in the military’s notorious “frequent flier” program, which used sleep deprivation to elicit statements about serious criminal charges.

A ruling from the military judge on the admissibility of Mr. Khadr’s statements is not expected for several weeks. But there’s already a bad lingering taste from the hearing, which began just hours after Defense Secretary Robert Gates formally approved a new set of rules for the tribunals and before Mr. Khadr’s lawyers or the judge had a chance to review them. The rules are an improvement over those that governed the Bush commissions, but they have flaws, including the use of hearsay.

During the hearing, the Pentagon barred four reporters from covering any military commission because they printed the name of Interrogator One, even though it has been public for years and is readily available on the Internet. The administration needs to restore the reporters’ credentials.

It also needs to press forward with negotiations on a plea deal. The evidence that Mr. Khadr threw the deadly hand grenade is not clear-cut. Even if it were, it would be impossible to overlook his abuse in custody, and status as a juvenile, which deprived him of mature judgment.

After Mr. Khadr’s eight-year ordeal, it would be no disrespect to Sergeant Speer to return Mr. Khadr to his home country under terms designed to protect public safety and strive for his rehabilitation.

    Tainted Justice, NYT, 23.5.2010, http://www.nytimes.com/2010/05/24/opinion/24mon1.html

U.S. Woman Charged in Terror Plot Pleads Not Guilty

March 18, 2010
The New York Times
By IAN URBINA

The Pennsylvania woman accused of recruiting men on the Internet to wage jihad in southern Asia and Europe pleaded not guilty Thursday to all counts in federal court in Philadelphia.

The authorities say the woman, Colleen R. LaRose, is a terrorist sympathizer known by her Internet name, “JihadJane,” and had expressed a desire to become a martyr for an Islamist cause.

According to a federal indictment unsealed this month, Ms. LaRose, 46, was intent on killing a Swedish artist who depicted the Prophet Muhammad with the body of a dog.

Wearing a green jumpsuit and her hair in cornrows, Ms. LaRose, of Pennsburg, Pa., appeared in court to face a four-count indictment, including charges of conspiring with jihadist fighters and pledging to commit murder in the name of a Muslim holy war. If convicted, she would face a possible life sentence in prison and a $1 million fine.

Federal officials said Ms. LaRose, who is white and has blond hair and green eyes, boasted to other jihadists that she could go anywhere undetected. In August, she traveled to Sweden carrying the American passport of her companion, Kurt Gorman, which the authorities say she stole and planned to give to one of her co-conspirators in a plot to kill the artist, Lars Vilks.

Prosecutors say that she grew acquainted online with violent co-conspirators from several other countries and that in a 2008 YouTube video she said she was “desperate to do something” to ease the suffering of Muslims.

Ms. LaRose was arrested in October in Philadelphia upon returning to the United States from Europe.

Last week, the investigation of the plot against Mr. Vilks spread to Ireland with the arrests in the southern city of Waterford of seven Muslims, five of whom were subsequently released.

Two others, Ali Charaf Damache, from Algeria, and Abdul Salam al-Jahani, from Libya, were charged on Monday with relatively minor offenses. The authorities said Mr. Damache made a menacing telephone call, while Mr. Jahani was charged with an immigration offense.

Both men were scheduled to appear in the Waterford court again on Friday, and lawyers connected with the case say they may face further charges, including conspiracy to murder.

One of those released in Ireland was an American woman, Jamie Paulin-Ramirez, 31, from Leadville, Colo. A Muslim convert like Ms. LaRose, Ms. Paulin-Ramirez had been living in Waterford with Mr. Damache since last fall, according to lawyers in Waterford, and is several months pregnant. The lawyers said she left Waterford this week and moved into a Dublin hotel with her 6-year-old son from a previous marriage.

Ms. Paulin-Ramirez has been meeting in Dublin with F.B.I. agents, who have urged her to return to the United States for questioning on her connections with Ms. LaRose, Mr. Damache and others in the investigation.


John F. Burns contributed reporting.

    U.S. Woman Charged in Terror Plot Pleads Not Guilty, NYT, 19.3.2010, http://www.nytimes.com/2010/03/19/us/19jane.html

Pennsylvania Woman Tied to Plot on Cartoonist

March 9, 2010
The New York Times
By CHARLIE SAVAGE

WASHINGTON — A Pennsylvania woman who called herself JihadJane was tied Tuesday to an alleged assassination plot against a Swedish cartoonist who depicted the prophet Muhammad atop the body of a dog.

In an indictment unsealed Tuesday, federal prosecutors accused Colleen R. LaRose, an American from the Philadelphia suburbs, of linking up through the Internet with militants overseas and plotting to carry out a murder.

Ms. LaRose, 46, was arrested in Philadelphia in October, but her case was kept under seal. Although the indictment does not identify the target, a law enforcement official said her case was linked to the arrests Tuesday of seven Muslims in Ireland in connection with a scheme to kill the cartoonist, Lars Vilks. A group linked to Al Qaeda had put a $100,000 bounty on his head for the cartoon, which the group perceived as an insult to Islam.

European news reports said Irish police, who arrested the four men and three women, had coordinated the operation with the United States.

A police statement issued Wednesday in Dublin said the Irish arrests followed a joint investigation by police in Ireland, the United States and “a number of European countries,” and that the suspects were being held at four police stations in an area about 100 miles south of Dublin, under a law that allowed for them to be held for up to seven days for questioning.

News reports in Ireland said that the seven being held were from Algeria, Croatia, Palestine, Libya and the United States, and were aged between their mid-20’s and late 40’s. The Irish Times reported that American investigators believe that the leader of the group was an Algerian who has been living in Ireland for the past 10 years.

A Justice Department spokesman would not confirm whether Ms. LaRose had been involved with the plot.

Mark T. Wilson and Rossman D. Thompson, federal public defenders in Philadelphia who are representing Ms. LaRose, declined to comment.

Michael L. Levy, the United States attorney for Eastern Pennsylvania, said in a statement the case illustrated how terrorists were looking for American recruits who could blend in. “It shatters any lingering thought that we can spot a terrorist based on appearance,” he said.

Ms. LaRose is white, with blond hair and green eyes, according to the law enforcement official, who was not authorized to share details of the case and spoke only on the condition of anonymity. The official said Ms. LaRose was born in Michigan and later lived in Texas and Montgomery County, Pa.

The indictment said that in mid-2008, Ms. LaRose, using the aliases JihadJane and Fatima LaRose, began posting on YouTube and other Internet sites messages about her desire to help Muslims. A MySpace profile for a woman who refers to herself as JihadJane displays pictures of bloodshed and violence in the Middle East scrawled with messages like “Palestine We Are With You” and “Sympathize With Gaza.”

By early 2009, the court papers said, she was exchanging e-mail messages with unidentified co-conspirators in Southeast Asia and Europe and expressed a desire to become a martyr for an Islamist cause.

The indictment refers to e-mail messages in which a conspirator, citing how Ms. LaRose’s appearance and American passport would make it easier for her to operate undetected, allegedly directed her in March 2009 to go to Sweden to help carry out a murder. She agreed to do so, writing, “I will make this my goal till I achieve it or die trying,” the indictment says. She and another unnamed American later posted online solicitations for money for that project, the document said.

Ms. LaRose had attracted the government’s attention by then. She was questioned by F.B.I. agents on July 17, 2009, and falsely told them that she had never solicited money online for terrorism, had never used the alias JihadJane and had never made postings on a terrorist Web site, the court papers say.

Despite drawing the F.B.I.’s attention, the indictment says Ms. LaRose traveled to Europe in August, joined an online community hosted by the intended Swedish victim in September and performed online searches to track him. She apparently never attempted to carry out the killing.

The indictment also says Ms. LaRose recruited other people on the Internet to wage or support jihadist attacks.


Anahad O’Connor contributed reporting from New York and Eamon Quinn from Dublin.

    Pennsylvania Woman Tied to Plot on Cartoonist, NYT, 10.3.2010, http://www.nytimes.com/2010/03/10/us/10pennsylvania.html

20 Years Added to Sentence of ex-Army Ranger

March 9, 2010
Filed at 12:32 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

SEATTLE (AP) -- A former Army Ranger originally sentenced to 24 years for leading a 2006 military-style bank robbery in Washington state has been given another 20 years for assault and trying to hire a hit man to kill a federal prosecutor.

After his sentencing Monday in federal court, 23-year-old Luke Sommer faces 44 years in prison.

The former Peachland, British Columbia, resident pleaded guilty in January to assault for attacking a robbery co-defendant behind bars and to offering an undercover FBI agent as much as $20,000 to kill an assistant U.S. attorney.

Sommer masterminded the 2006 robbery of a Bank of America branch in Tacoma. The five robbers wore soft body armor in case of a shootout with police. Several carried AK-47 machine guns.

They escaped with more than $50,000, but arrests came quickly after a witness noted their license plate.

    20 Years Added to Sentence of ex-Army Ranger, NYT, 9.3.2010, http://www.nytimes.com/aponline/2010/03/09/us/AP-US-Soldiers-Bank-Robbery.html

Editorial

Privatized War, and Its Price

January 11, 2010
The New York Times

A federal judge in Washington, Ricardo Urbina, has provided another compelling argument against the outsourcing of war to gunslingers from the private sector. In throwing out charges against Blackwater agents who killed 17 Iraqis in Baghdad’s Nisour Square in September 2007, Judge Urbina highlighted the government’s inability to hold mercenaries accountable for crimes they commit.

Judge Urbina correctly ruled that the government violated the Blackwater agents’ protection against self-incrimination. He sketched an inept prosecution that relied on compelled statements made by the agents to officials of the State Department, who employed the North Carolina security firm to protect convoys and staff in Iraq. That, he said, amounted to a “reckless violation of the defendants’ constitutional rights.”

During the presidential campaign, Barack Obama and Hillary Clinton competed over who would take the toughest line against mercenaries. It is clear that the only way for President Obama to make good on the rhetoric is to get rid of the thousands of private gunmen still deployed in Iraq, Afghanistan and elsewhere.

The killings in Nisour Square were hardly the first misdeeds by hired guns in Iraq, or the last. The army has said contractors from firms like CACI International Inc. were involved in more than a third of the proven incidents of abuse in 2003 and 2004 in the Abu Ghraib prison. Guards from Blackwater — which has renamed itself Xe Services — and other security firms, like Triple Canopy, have been involved in other wanton shootings.

On Jan. 7, two former Blackwater guards were arrested on murder charges stemming from a shooting in Afghanistan last May that left two Afghans dead.

Still, the government has failed to hold armed contractors accountable. When its formal occupation of Iraq ended in 2004, the Bush administration demanded that Baghdad grant legal immunity to private contractors.

Congress has tried to cover such crimes with American law. The Military Extraterritorial Jurisdiction Act extends civilian law to contractors supporting military operations overseas, and the Uniform Code of Military Justice was broadened in 2006 to cover contractors.

But the government has not prosecuted a single successful case for killings by armed contractors overseas. An Iraqi lawsuit against American military contractors by Iraqi victims of torture at Abu Ghraib was dismissed by a federal appeals court that said the companies had immunity as government contractors.

Furious that the Nisour Square case was dismissed, the Iraqi government said it might file civil suits in the United States and Iraq against Xe. But its chances of success are not considered great. The families of many of the victims of the rampage accepted a settlement from Xe last week, worried that had they pursued their civil suit they might have gotten nothing.

There are many reasons to oppose the privatization of war. Reliance on contractors allows the government to work under the radar of public scrutiny. And freewheeling contractors can be at cross purposes with the armed forces. Blackwater’s undersupervised guards undermined the effort to win Iraqi support.

But most fundamental is that the government cannot — or will not — keep a legal handle on its freelance gunmen. A nation of laws cannot go to war like that.

    Privatized War, and Its Price, NYT, 11.1.2010, http://www.nytimes.com/2010/01/11/opinion/11mon1.html