History > 2011 > USA > Justice > Federal justice (I)

Reneging on Justice at Guantánamo

November 19, 2011
The New York Times

In 2008, the Supreme Court ruled that Guantánamo Bay prisoners who are not American citizens have the right of habeas corpus, allowing them to challenge the legality of their detention in federal court and seek release.

The power of the ruling, however, has been eviscerated by the Court of Appeals for the District of Columbia Circuit. The appellate court’s wrongheaded rulings and analyses, which have been followed by federal district judges, have reduced to zero the number of habeas petitions granted in the past year and a half.

The Supreme Court must reject this willful disregard of its decision in Boumediene v. Bush, and it can do so by reviewing the case of Adnan Farhan Abd Al Latif, a Yemeni citizen imprisoned at Guantánamo Bay since 2002.

This month, the appeals court declassified an opinion it issued in October that reversed a Federal District Court decision ordering Mr. Latif’s release. The appellate court improperly replaced the trial court’s factual findings with its own factual judgments. It also unfairly placed the burden on Mr. Latif to rebut the presumption that the government’s main evidence was accurate: the government should bear the burden of proving by a preponderance of the evidence that his detention is warranted.

It is undisputed that Mr. Latif was in a car accident in Yemen in 1994 and sustained head injuries. In 2001, he went to Pakistan to seek free medical treatment, and eventually traveled to Kabul to find a Yemeni man who had promised to help him. He was arrested near the border between Pakistan and Afghanistan and transferred to Guantánamo Bay, where he has been imprisoned without a trial. The government contends that Mr. Latif was recruited by an Al Qaeda operative and fought with the Taliban.

The federal trial judge found that the government’s evidence did not sufficiently support its contention, that incriminating evidence was not corroborated and that Mr. Latif had a plausible alternative explanation for his travels.

The appeals court reversed that decision, arguing that the government’s intelligence report on the Latif case should have been given “a presumption of regularity” and that unless there is “clear evidence to the contrary,” trial judges must presume that this kind of report is accurate. But as the strong dissent by Judge David Tatel explains, there is no reason to make such an assumption about the report, which was “produced in the fog of war, by a clandestine method that we know almost nothing about.”

In ruling on 15 habeas cases since mid-2010, the appellate court has made the standard of review toothless, and its views have affected lower court rulings. Since July 2010, district judges have denied 10 habeas petitions in Guantánamo cases and granted none, compared with 22 habeas petitions granted and 15 denied in the two years before that.

Judge Tatel writes that it is “hard to see what is left of the Supreme Court’s command” that habeas review in federal court be “meaningful.” The appeals court has gone off on the wrong track. The justices need to reaffirm the right of prisoners in Guantánamo to seek justice in federal court and to explain firmly and clearly what that entails.

    Reneging on Justice at Guantánamo, NYT, 19.11.2011,
    http://www.nytimes.com/2011/11/20/opinion/sunday/reneging-on-justice-at-guantanamo.html

Twitter Ordered to Yield Data in WikiLeaks Case

November 10, 2011
The New York Times
By SOMINI SENGUPTA

SAN FRANCISCO — A federal judge on Thursday ruled that Twitter, the popular microblogging platform, must reveal information about three of its account holders who are under investigation for their possible links to the WikiLeaks whistle-blower site.

The case has become a flash point for online privacy and speech, in part because the Justice Department sought the information without a search warrant last year. Instead, on the basis of a 1994 law called the Stored Communications Act, the government demanded that Twitter provide the Internet protocol addresses of three of its users, among other things. An Internet protocol address identifies and gives the location of a computer used to log onto the Internet.

The three people came to the Justice Department’s attention because it believed they were associated with WikiLeaks.

Twitter informed the three people — Jacob Appelbaum, an American computer security expert, along with Rop Gonggrijp, a Dutch citizen, and Birgitta Jonsdottir, a member of Iceland’s Parliament — of the government’s demand for information earlier this year.

The petitioners argued in federal court that their Internet protocol addresses should be considered private information and that the demand for information was too broad and unrelated to WikiLeaks. They also argued that the order suppressed their right to free speech.

The court disagreed. Judge Liam O’Grady, from the United States District Court in Alexandria, Va., wrote in his opinion that “the information sought was clearly material to establishing key facts related to an ongoing investigation and would have assisted a grand jury in conducting an inquiry into the particular matters under investigation.”

The judge said that because Twitter users “voluntarily” turned over the Internet protocol addresses when they signed up for an account, they relinquished an expectation of privacy.

“Petitioners knew or should have known that their I.P. information was subject to examination by Twitter, so they had a lessened expectation of privacy in that information, particularly in light of their apparent consent to the Twitter terms of service and privacy policy,” Judge O’Grady wrote.

The court also dismissed a petition to unseal the Justice Department’s explanation for why it sought the account information.

Neither the Justice Department nor Twitter company officials responded to e-mail and telephone requests for comment.

The petitioners themselves spoke up on Twitter. “I would do it again,” Ms. Jonsdottir posted.

“Today is one of those ‘losing faith in the justice system’ kind of days,” Mr. Appelbaum wrote on Twitter.

Lawyers for one of the petitioners said they were still reviewing the judge’s order and could not yet say what the next steps were.

    Twitter Ordered to Yield Data in WikiLeaks Case, NYT, 10.11.2011,
    http://www.nytimes.com/2011/11/11/technology/twitter-ordered-to-yield-data-in-wikileaks-case.html

Court Blocks Graphic Labels on Cigarette Packs

November 7, 2011
The New York Times
By DUFF WILSON

A federal judge on Monday blocked a Food and Drug Administration requirement that tobacco companies put big new graphic warning labels on cigarette packages by next September.

In a preliminary injunction, Judge Richard J. Leon of United States District Court in Washington ruled that cigarette makers were likely to win a free speech challenge against the proposed labels, which include staged photos of a corpse and of a man breathing smoke out of a tracheotomy hole in his neck.

The judge ruled that the labels were not factual and required the companies to use cigarette packages as billboards for what he described as the government’s “obvious anti-smoking agenda!”

The 29-page ruling was a setback for Congressional and F.D.A. efforts to bolster the warnings on tobacco packages. The agency has said they are the most significant change to health warnings in 25 years.

The Justice Department is reviewing the ruling, a spokesman, Charles S. Miller, said. The F.D.A. declined to comment, a spokeswoman said.

If the ruling is appealed — as both sides expect — it would join a different federal judge’s ruling on similar issues on appeal and raise the possibility that the issue will be decided by the United States Supreme Court.

Floyd Abrams, a New York lawyer and First Amendment specialist who argued the case for Lorillard Tobacco of Greensboro, N.C., praised the ruling. He said the companies had just objected to “grotesque” images, but not to new words of warning.

“It’s basically rooted in the notion that compelled speech by the government is presumptively unconstitutional,” Mr. Abrams said. “The only exception that could fit here is the one which says that the government can require warnings to be placed on products including tobacco products, but that the warnings must be factual and uncontroversial in nature.”

Five tobacco companies had challenged the selection of nine specific graphic warnings as an unconstitutional intrusion on commercial free speech. The judge agreed with them on almost every point, saying the companies would suffer irreparable harm if the provision were enforced before it was fully decided in courts, a process that is likely to take years.

“It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start, smoking: an objective wholly apart from disseminating purely factual and uncontroversial information,” Judge Leon wrote.

“At first blush, they appear to be more about shocking and repelling than warning,” Judge Leon added in a footnote.

Antismoking activists called on the Justice Department to appeal immediately.

“This ruling presents a direct and immediate threat to public health,” Charles D. Connor, president and chief executive of the American Lung Association, said in a statement. “The tobacco industry’s efforts to halt the replacement of cigarette warning labels that are 25 years old, ineffective and hidden on the side of packages, will result in more lives lost to tobacco.”

Matthew L. Myers, a lawyer and president of the Campaign for Tobacco-Free Kids, a Washington advocacy group, said Judge Leon had sympathized with tobacco companies during oral arguments.

“The government has been expecting this decision and will appeal,” Mr. Myers said. “In addition, many of the same issues are now pending before a panel of the United States Court of Appeals for the Sixth Circuit because a federal judge in Kentucky reached a decision different than Judge Leon’s decision today.”

In that case, Judge Joseph H. McKinley Jr. ruled the cigarette makers could be forced to put graphic images and warnings on the top half of their packages, as Congress required. But Judge Leon noted that Judge McKinley had not seen the actual proposed images.

Judge Leon was appointed to the bench in 2002 by President George W. Bush. Last year, Judge Leon also ruled against the F.D.A. over e-cigarettes, an electronic device that looks like a cigarette and delivers nicotine, saying they should be regulated as tobacco products rather than under the stricter regimen as drug delivery devices. The government has not appealed that case.

The Family Smoking Prevention and Tobacco Control Act of 2009 gave the F.D.A. authority for the first time to regulate tobacco products. It included a provision directing the F.D.A. to require larger, graphic warning labels covering the top half of the front and back of cigarette packs by Sept. 22, 2012, as well as 20 percent of print advertising.

The F.D.A. had studied 36 images and narrowed them down to nine after surveys of effectiveness. The photos are similar to some included with cigarettes in Canada. But the tobacco companies argued, and the judge agreed, that the F.D.A. could not prove the images would make a statistically significant difference in smoking rates in the United States.

“We are pleased with the judge’s ruling and look forward to the court’s final resolution of this case,” Bryan D. Hatchell, a spokesman for R.J. Reynolds Tobacco of Winston-Salem, N.C., makers of Camel cigarettes, said after the ruling.

Other plaintiffs in the suit are Commonwealth Brands, the Liggett Group, and Santa Fe Natural Tobacco. The Altria Group, parent company of Philip Morris, makers of the dominant brand of Marlboro cigarettes, did not join the lawsuit. Altria was also the only major cigarette maker to support the new legislation.

    Court Blocks Graphic Labels on Cigarette Packs, NYT, 7.11.2011,
    http://www.nytimes.com/2011/11/08/health/policy/court-blocks-graphic-labels-on-cigarette-packs.html

Russian Is Convicted in Arms-Trafficking Case

November 2, 2011
The New York Times
By NOAH ROSENBERG

Viktor Bout, a former Soviet Air Force officer who became known as the “Merchant of Death” for running what American officials have described as an international arms trafficking network, was found guilty on Wednesday of conspiring to sell antiaircraft missiles and other weapons to men he believed were members of the Revolutionary Armed Forces of Colombia.

The verdict, in Federal District Court in Manhattan, was a rather prosaic end to nearly two decades spent in the margins of international terrorism and espionage; Mr. Bout has been accused of furnishing weapons to Al Qaeda and the Taliban and into civil wars in Africa, and was reputed to have a grasp on present-day Russian intelligence. His legend even inspired the 2005 film “Lord of War,” starring Nicolas Cage.

Even Mr. Bout’s arrest and extradition were theatrical: he was taken into custody in Bangkok in March 2008 after getting ensnared in a foreign sting operation run by the Drug Enforcement Administration; his extradition to the United States, which Russian officials strenuously opposed, took more than two and a half years.

But the trial, presided over by Judge Shira A. Scheindlin, took only three weeks, nearly all of it spent by prosecutors in making their case. Mr. Bout’s lawyer did not present any witnesses; the jury took less than two days to find Mr. Bout guilty of all four charges against him.

Mr. Bout, 44, faces a sentence of up to life in prison for conspiring to kill United States citizens, officers and employees by agreeing to sell weapons to drug enforcement informants who he believed were members of the Colombian terrorist organization known as the FARC; and for conspiring to acquire and export surface-to-air antiaircraft missiles, a conviction that carries a mandatory minimum of 25 years in prison.

Mr. Bout also faces a maximum of 15 years for conspiring to provide material support or resources in the form of weapons to a foreign terrorist organization. His sentencing is scheduled for Feb. 8.

The jury found that Mr. Bout believed that the men he and his associates had been communicating with for months were, as the prosecution stressed, “waging war” against the Colombian government and its American collaborators. In fact, the men who Mr. Bout and his former associate, Andrew Smulian, had been orchestrating a deal with were undercover Drug Enforcement Administration informants.

In the government’s final rebuttal of the defense’s closing argument, Brendan R. McGuire, a prosecutor, cited e-mail exchanges, text messages and recorded telephone conversations among Mr. Bout, Mr. Smulian and other associates, as well as Mr. Bout’s own Internet research into the FARC prior to his meeting with the informants in a Sofitel hotel in Bangkok, in March 2008.

Since his extradition, Mr. Bout has been held at the Metropolitan Correctional Center in Manhattan.

“We are very disappointed about this verdict,” Mr. Bout’s lawyer, Albert Y. Dayan, said upon exiting the courthouse. “This is definitely not the end of the process for us,” he said, indicating that further legal actions were forthcoming.

Mr. Dayan said that Mr. Bout “believes that this is not the end,” and that they maintain that he was wrongfully accused.

Mr. McGuire told jurors that the evidence against Mr. Bout had been “overwhelming” and suggested that Mr. Bout’s lawyer had repeatedly tried to mold the truth in Mr. Bout’s favor.

Mr. Dayan had painted his client as an innocent and financially troubled businessman caught up in a desperate charade to sell nothing more than two cargo airplanes to men Mr. Bout was “skeptical” were actually members of the FARC. Mr. Bout’s promises of tens of thousands of AK-47 rifles, millions of rounds of ammunition, hundreds of missiles, ultralightweight airplanes and other military equipment was simply “a con,” Mr. Dayan told jurors.

Mr. Smulian, the former associate of Mr. Bout’s who began cooperating with United States authorities shortly after his arrest with Mr. Bout in Bangkok, suggested in his testimony that Mr. Dayan’s defense was completely erroneous. Plans had been set in motion, he said, for a lucrative, long-term relationship among him, Mr. Bout and the FARC that extended far beyond arms dealing and into military training, money laundering and even political support.

Throughout the trial, prosecutors said they had needed to prove merely that such a “criminal agreement” had existed between Mr. Bout and Mr. Smulian, and that subsequent action or even an actual pact with the men posing as FARC was irrelevant.

Mr. Smulian, who pleaded guilty in 2008 to conspiring to sell arms with Mr. Bout, was among seven witnesses, including a Drug Enforcement Administration agent, a computer forensics expert and two undercover informants, who testified for the prosecution. Mr. Dayan criticized Mr. Smulian’s testimony as “a dog-and-pony show.” He said that Mr. Smulian — who had admitted in his testimony that he wished to get his sentence reduced for “substantial cooperation” with the government — was “a bad liar” who had masterminded the “fake FARC” deal, pushing it on Mr. Bout out of his own necessity for cash.

Mr. McGuire called Mr. Dayan’s defense strategy “a tap dance” that was “as dizzying as it is ridiculous.” He brushed aside Mr. Dayan’s core argument as mere assertion that withered in the face of what Mr. McGuire said was ultimately an “inconvenient truth” for Mr. Bout.

“He did everything to show them he could be a one-stop shop for the FARC,” Mr. McGuire said, underscoring Mr. Bout’s “numerous” incriminating actions during the sting operation. Mr. McGuire referred jurors to a recorded conversation from a meeting in Bangkok in which he said Mr. Bout had bragged to the supposed FARC members about the “5,000 weapons deliveries” he had executed in the past.

At the same time, Mr. McGuire applauded the investigation that led to Mr. Bout’s conviction by saying, “There was nothing political or improper” about it.

“It’s all over,” Mr. McGuire told jurors in his final rebuttal. “Viktor Bout is guilty of every count in the indictment.”

    Russian Is Convicted in Arms-Trafficking Case, NYT, 2.11.2011,
    http://www.nytimes.com/2011/11/03/nyregion/viktor-bout-guilty-in-arms-trafficking-case.html

A Judge’s Education, a Sentence at a Time

October 7, 2011
The New York Times
By BENJAMIN WEISER

ON Feb. 2, 2004, Marlo Kidd awaited sentencing before Judge Denny Chin of Federal District Court in Manhattan. She had pleaded guilty to acting as a lookout for two masked gunmen who had robbed a bank in Yonkers, and under federal sentencing guidelines, she faced a prison term of up to six years.

Her lawyer, though, was asking the judge to sentence her only to home confinement, because she was raising five children who ranged in age from 5 to 13, and also caring for her 14-year-old sister, as their own mother had been a crack-cocaine addict. He had said that sending Ms. Kidd to prison would almost certainly result in her children being placed in foster care, destroying what was left of the family.

His arguments gave Judge Chin pause. Ms. Kidd had provided him with copies of the children’s report cards, which showed them receiving B’s and B-pluses, even a smattering of A’s, and very few absences from school.

“The report cards had an impact on me,” Judge Chin recalled in a recent interview. “She was getting them out to school every day, and they were holding their own. I was impressed by this.” Ms. Kidd, who had also apologized for her crime in a letter to the judge, was “a decent mother,” he concluded. Moreover, one of his law clerks had shown him a news report on the terrible conditions in foster homes and facilities for children in New Jersey, where the children would most likely be sent.

But the robbery had been violent, with one robber killed in a police shootout. And the judge was seldom persuaded to grant leniency because of family circumstances — it was, after all, the defendants’ crimes, not the sentence, that caused hardships for families.

In the end, he decided that Ms. Kidd had to go to prison, but he imposed only a 30-month sentence. “I cared very much about the future of the children,” Judge Chin recalled, “but I was willing to take the risk that they would be sent to foster care, even with a shorter sentence.” His decision involved weighing conflicting concerns and interests, he said, “something we have to do all the time.”

Judge Chin, 57, who last year was elevated by President Obama to the United States Court of Appeals for the Second Circuit, in New York, after nearly 16 years on the trial bench, is best known for the 150-year sentence he gave Bernard L. Madoff, arguably the most prominent white-collar sentence in the history of American law.

But it has been largely anonymous defendants like Ms. Kidd whose cases have influenced his thinking about how to balance punishment and rehabilitation, deterrence and compassion.

“There’s no doubt that all of these cases shaped me,” Judge Chin said, “and shaped the way I think, and the way I respond to things.”

He took the bench in 1994 at age 40 with little experience in criminal law. He has since sentenced more than 1,100 defendants, including at least a dozen who received sentences of life or the equivalent, according to court statistics. He quickly learned, he said, that preparation was crucial and that he must not agonize over his decisions. One seasoned judge had advised: “Rule and roll.” Be decisive. Don’t second-guess yourself.

In a series of interviews conducted in person and through e-mail over the past year, Judge Chin discussed his most challenging sentencing decisions, cases that became essential parts of his education as a judge. The interviews were unusual; judges rarely agree to discuss cases, even closed ones, like these, outside court. The exchanges provided a revealing look at how one judge approached the task of sentencing, which he called “the hardest thing” about being on the bench.

“It is just not a natural or everyday thing to do,” Judge Chin explained, “to pass judgment on people, to send them to prison or not.”

“I mean, there is so much at stake,” he added, “and there are so many different considerations that come into play.”

IN March 1996, Patrick Regan, a former New York City police officer, became the first defendant Judge Chin sentenced who had been convicted in a trial at which he presided.

The case had been bitterly fought: Mr. Regan, then 36, a highly decorated police veteran, was convicted of perjury. Prosecutors said he had lied during a grand-jury investigation of suspected misconduct by an anticrime unit of which he was a member. His lawyer, David S. Greenfield, contended that the government itself had engaged in misconduct, trying to catch the officer in a perjury trap, an argument Judge Chin had rejected before the trial.

The government asked for a sentence within the guideline range of one-and-a-half to two years. But Mr. Greenfield, citing Mr. Regan’s valorous record, sought probation. His client had made or assisted in many felony arrests; had been shot in the line of duty; and had been awarded the Police Combat Cross, the department’s second most prestigious medal. The conviction and loss of his shield would be punishment enough, Mr. Greenfield argued.

Judge Chin recalled that the sentencing came against the backdrop of several high-profile police tragedies, including the suicide of an off-duty officer and the funeral of an officer killed in a Bronx shootout. “I had already come to appreciate how hard it is to be a police officer,” he said.

He noted that sentencing law recognized that individuals with different levels of culpability should be treated differently, and that some crimes were more evil than others. As always, he said, judges must also look at other factors, like a defendant’s history, background and motivation.

“Where someone is guilty of lying to protect others, at least he is doing so not out of greed or to help himself,” he said. “This motivation doesn’t make the lying right, but at least it is understandable to some limited extent.”

But he knew that prosecutors felt Mr. Regan had blatantly lied and interfered with a government investigation.

On the sentencing date, Judge Chin’s courtroom was packed with police officers, who rose in unison when he asked the defendant to stand. The judge, who recalled feeling a bit nervous because of the spotlight on the case, told Mr. Regan that no matter how much good he had done in the past, he was bound by oath to tell the truth. In the end, the judge departed from the guidelines and imposed a term of one year plus one day (a technicality that allows a defendant to be released slightly early for good behavior).

“What did I learn?” Judge Chin recalled 15 years later. “I learned that this was going to be hard.” But he said he had gained confidence, and did not agonize over the decision. “I felt I had done the right thing.”

If Judge Chin believed that some defendants deserved leniency because of their otherwise unblemished history, in his eyes others forfeited their right to a break.

Such was the case with Pat V. Stiso, a Bronx lawyer, who had pleaded guilty to narcotics conspiracy and obstructing justice after being accused of, among other things, hiding money for the leader of a drug gang. He faced a guideline range of 70 to 87 months, for a possible term of more than seven years.

At the sentencing, in March 1999, Judge Chin cited the many letters he had received depicting Mr. Stiso, then 38, as a loving father and committed defense lawyer who had also been involved in charitable work. But he said, “I cannot be compassionate.”

He said Mr. Stiso’s supporters had not seen his other side, which had allowed him to accept “tens of thousands of dollars in cash in grocery bags, money that was earned from the sale of heroin.” Defense lawyers had to do their jobs, he said, “but this is not a case about the blurring of a line. This case doesn’t even come close.” He sentenced Mr. Stiso to 87 months.

Looking back, Judge Chin said, the “mitigating factors did warrant leniency, and that’s why it was a struggle for me internally.”

But he was keenly aware, he said, “of the seriousness of his crime.” It was also painful, Judge Chin said, to watch a lawyer he knew, a courthouse regular, “just fail as a human being.”

“In a sense, he was like one of our own,” he said.

LIKE most judges, Judge Chin faced defendants who promised to reform their ways. Some fulfilled that pledge; others let him down. He tried not to become jaded or cynical, he said, and retained hope that people who had made mistakes could turn their lives around.

“A good judge has to care,” he said. “He has to want to make the world better.” He also believed that rehabilitation, along with punishment, deterrence and healing victims, was a legitimate goal of sentencing. As he put it, “I don’t like to give up on people.”

But two cases showed how difficult that goal was to achieve.

The first, in November 1998, involved Alethea Pierce, 38, a drug addict who had pleaded guilty to participating in a narcotics trafficking ring, and then had seemingly transformed her life. She had cooperated with prosecutors, testified against the ring’s leaders, and undergone drug treatment.

At sentencing, she said proudly that she was putting her life back together, reuniting with two of her children, finding housing and taking courses to find a job. “I just like who I am today,” she said.

“Sentencing is often very hard,” Judge Chin observed, adding that her case would indeed be “an easy one.” He gave her time served — she was free to go.

But a year later she was back before him, after a series of positive drug tests. Still, she made it clear that she wanted another chance. “What none of you all know in this courtroom is the life of the addict,” she said.

“I’ve lived it,” she added, “and I like being clean.”

“Doing it your way hasn’t worked,” Judge Chin responded, but he decided to take a chance, agreeing not to send her to prison and ending court supervision of her case. He said he had one request: “I want you to write me a letter in a few months telling me that you’re doing great.”

He never heard from her again.

Daniel Sangemino was a Queens resident who had used high-pressure telephone tactics to solicit money for sham investments. He had even persuaded a 79-year-old Utah widow to liquidate her savings and take out a loan in order to send him $149,000.

In April 2001, Judge Chin sentenced Mr. Sangemino, 25, to just over three years, including additional time for exploiting a vulnerable victim. Mr. Sangemino served his time but could not stay out of trouble. In February 2004, after arrests for harassment and drug possession, he was back before Judge Chin for violating the terms of his release.

He admitted to a longstanding drug problem. The judge told him he seemed bright and articulate. “If it’s the drugs, you really have to kick it,” he said.

The judge imposed eight more months, and recommended drug treatment. Again Mr. Sangemino did the time, and again he was arrested after his release, for harassment. Judge Chin imposed an additional 16 months. “I don’t know what you are doing with yourself,” he said, adding, “This is really your last chance.”

Mr. Sangemino, contacted recently, said that he had not returned to court and had worked hard to address his addiction issues. “I have lived a clean and sober life for five years,” he said.

Now 36, he said he had held a steady job, obtained an associate’s degree and planned to attend Queens College next year. He has also been paying restitution.

“I really don’t feel good about what I did in the past,” he said. He added that Judge Chin had treated him fairly. “I’ll never forget his expression. He wasn’t angry. He was, like, ‘C’mon.’ ”

IN 2004, Judge Chin appeared on a bar association panel to discuss a new book called “The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right.” The author, Thane Rosenbaum, a Fordham law professor, had known the judge for years.

“One of the interesting concepts in Professor Rosenbaum’s book,” Judge Chin told the audience, “is that the law lacks a soul. The law lacks tenderness. The law is objective and cold and inhumane. The law abhors emotion. I don’t think that’s true.

“Every time I sentence a defendant, there is a lot of emotion,” he said. “I think there is a lot of humanity in the law.”

But in one 2002 sentencing, a lawyer protested that Judge Chin showed too much emotion. The defendant, Steven Chin Leung, facing passport fraud charges, had then tried to fake his own death in the 9/11 attacks.

In court, Judge Chin called Mr. Leung’s actions despicable and selfish, and said his ruse had diverted critical law enforcement resources after 9/11 while the bogus claim was investigated. The guidelines called for a sentence of two to two-and-a-half years, but Judge Chin, acknowledging that there was “a lot of emotion involved,” went for a higher sentence, imposing four years.

Mr. Leung’s lawyer asked Judge Chin to reconsider, saying that the sentence was “extreme” and that the judge had let his emotions weigh “more than they should.”

Judge Chin disagreed. “Emotion comes into play in every sentencing decision,” he replied. “Obviously, however, you can’t let emotion cloud your judgment, and I don’t believe I have done that here.”

IN discussing his decisions, Judge Chin acknowledged that he often wondered what happened to defendants who had appeared before him — if his ideal was to balance punishment and rehabilitation, how had it worked in the real world? To find out, The New York Times tracked down some of those people.

Mr. Regan, now 52, said in an interview at his lawyer’s office that the support he received from fellow officers had never wavered. When the time came for him to surrender to the authorities, he said, a group of officers met him at his house in the Bronx and flew with him, at their expense, to Kentucky, where he served about eight months. Officers also met him at La Guardia Airport when he came back.

Having lost his job and pension, Mr. Regan opened a contracting firm, remodeling apartments in Manhattan. He said he appreciated Judge Chin’s rejection of the government’s harsher sentencing request. He recalled returning to the courthouse one day, perhaps for his appeal, and standing outside with other officers when he saw Judge Chin leaving the building. The judge walked over, shook his hand and wished him luck, Mr. Regan recalled, saying, “He seemed like a guy with a great heart.”

Mr. Stiso, the former lawyer, spoke at his mother’s home in New Rochelle, N.Y. He recalled being shocked when Judge Chin imposed the top of the recommended range. “My knees buckled,” he said.

But today, Mr. Stiso, 50, said he feels lucky. After serving more than five years in prison, he returned to the same house and loyal and loving family, he said. Although he lost his law license and thriving legal practice, he found work selling investments in life insurance policies and also consults with other white-collar defendants about what they will face in prison, he said.

“I have no problem with the sentence I received,” Mr. Stiso said. “The entire experience saved me.” He said it was not the amount of time that changed him; it was “having to go through” the process.

THEN there is Ms. Kidd. Judge Chin had given her six weeks to surrender to begin her 30-month sentence, but she failed to appear at the appointed time. She was arrested again and given eight additional months by a different judge. Ms. Kidd, 37, said in an interview in June that she had been unable to find an acceptable caretaker for the children. “I could never bring myself to leave my kids,” she said.

While she served her sentence, she said, her mother, who had addressed her own drug problem, and other relatives and friends came together to help care for the children. “I had people that stepped in,” Ms. Kidd said, including some she did not know well — “in such a great way,” she added.

Since her release in 2007, she said, the family has held together. She works in retailing and is studying nursing, she said.

“I feel like I got that second chance that everybody’s talking about,” she said, adding, “And I’m taking full advantage of that.”

Judge Chin was pleased to hear about the progress the defendants had made. He had always felt Ms. Kidd “was doing something right,” he said.

But, he added, they were only a small fraction of the defendants he had sentenced over the years; he would never learn what had happened to most.

“That’s why it makes it so hard. You can’t predict the future. You don’t know what’s going to happen,” Judge Chin said. “You do what you think is best for the defendant, for society, and you hope it works out.”

This article has been revised to reflect the following correction:

Correction: October 7, 2011

An earlier version of this article erroneously stated that the guideline range for Mr. Leung was two-and-a-half to three years.

    A Judge’s Education, a Sentence at a Time, NYT, 7.10.2011,
    http://www.nytimes.com/2011/10/09/nyregion/judge-denny-chin-of-federal-court-discusses-sentencing.html

Tucson Shooting Suspect to Have More Treatment

September 28, 2011
The New York Times
By MARC LACEY

TUCSON — A federal judge ruled on Wednesday that Jared L. Loughner would undergo four more months of treatment in a federal psychiatric facility to see if he recovers enough to stand trial on charges that he killed six people and wounded 13 others, including Representative Gabrielle Giffords, on Jan. 8.

Prosecutors wanted Mr. Loughner to remain at a federal treatment facility in Springfield, Mo., for eight more months and to continue to be forcibly medicated. But Mr. Loughner’s lawyers have been calling on Judge Larry A. Burns of Federal District Court to end any additional efforts to make Mr. Loughner understand the charges against him and assist in his defense.

“Today, in my lay view, he does appear to be more connected to the proceedings,” Judge Burns said in calling another hearing for January to rule on Mr. Loughner’s competency to stand trial.

Mr. Loughner, who has pleaded not guilty, has expressed remorse for what occurred, which experts called a sign of progress. He has told his psychologists that he wished he had been taking anti-psychotic medication for years and has said the shooting might not have happened if he had, said Dr. James C. Ballenger, a psychiatrist called to testify for the prosecution. “He says he hates what he did when he looks in the mirror,” Dr. Ballenger said in an interview after the proceeding. “He sees a murderer.”

There was little disagreement among the lawyers that Mr. Loughner had schizophrenia, but a government Bureau of Prisons psychologist, Christina Pietz, argued that the additional treatment time would allow Mr. Loughner to improve markedly.

“If we take him off medications, it is our belief that he will deteriorate and potentially die,” she said during testimony, after describing his exhibiting delusional behavior, pacing in his cell and sometimes throwing his chair in anger.

Mr. Loughner, who had not been seen since May when an appearance in open court resulted in a dramatic, emotional outburst that included his being dragged from the room, appeared largely oblivious to what was occurring around him.

Since May Mr. Loughner, 23, has been under psychiatric treatment, which has included the use of powerful drugs — a practice that he has tried, through his lawyers, to have stopped.

Mr. Loughner’s hair was trimmed short, and he had no facial hair. He wore a simple white T-shirt and khaki pants. Three United States marshals were standing within a few feet in case he had an emotional outburst.

Mr. Loughner watched intently as Dr. Pietz testified in detail about her interactions with Mr. Loughner, including his talk of suicide, remorse he has expressed at what occurred and continued doubts over a videotape of the shooting, which he says was doctored.

Dr. Pietz testified that Mr. Loughner, who is kept separate from other inmates at the facility in Missouri, had expressed doubts that Ms. Giffords survived the shooting, but he later acknowledged that she had, which Dr. Pietz saw as a sign of progress.

Mr. Loughner also had told doctors that he had several imaginary friends. The psychologist said that he had been given a television in his cell, but that it was removed after a half hour because he believed he was receiving messages from it. After he received medication, the set was returned, she said.

During the testimony, Mr. Loughner rarely made eye contact with others in the courtroom, and the smirk on his face during previous court appearances was gone. Every now and then, his eyes closed for extended periods, then popped open when he heard his name mentioned.

Judy Clarke, who leads Mr. Loughner’s defense team, used his lack of expressions to make her point that he had not made the progress that Dr. Pietz claimed.

    Tucson Shooting Suspect to Have More Treatment, NYT, 28.9.2011,
    http://www.nytimes.com/2011/09/29/us/loughner-makes-court-appearance.html

Sentence for Terrorist Is Too Short, Court Rules

September 19, 2011
The New York Times
By LIZETTE ALVAREZ

MIAMI — A federal appeals court ruled on Monday that the 17-year prison sentence imposed on Jose Padilla, who was convicted of terrorism conspiracy in 2007, was too lenient and sent the case back to the district court here for a new hearing.

In a 2-to-1 opinion, the United States Court of Appeals for the 11th Circuit, in Atlanta, ruled that the sentence was “substantively unreasonable” and did not take into account Mr. Padilla’s violent criminal history as a former gang member in Chicago. It also said the lower court did not take seriously enough Mr. Padilla’s time at a Qaeda camp in Afghanistan, where he was trained to kill.

“Padilla poses a heightened risk of future dangerousness due to his Al Qaeda training,” the court said. “He is far more sophisticated than an individual convicted of an ordinary street crime.”

The appellate court also affirmed Mr. Padilla’s conviction and that of his two co-defendants.

The government had appealed Mr. Padilla’s sentence, which was 17 years and 4 months, seeing it as too great a departure from federal sentencing guidelines.

After a four-month trial in 2007, Mr. Padilla, a Brooklyn-born convert to Islam who grew up in Chicago, and two co-defendants were convicted of conspiring to murder, kidnap and maim people in foreign countries. Prosecutors said the three helped foster jihad as part of a North American cell that provided money, recruits and supplies to Islamic extremists. The sentences of Mr. Padilla’s co-defendants stand.

Mr. Padilla, now 40, was first arrested in 2002 at O’Hare International Airport in Chicago on suspicion that he was planning to set off a radioactive dirty bomb. He was held in military detention in South Carolina as an enemy combatant for more than three years. Subsequently, he was transferred to civilian custody and was tried in federal court. His case became a focus of the debate over the Bush administration’s approach to prosecuting terrorism.

The dirty-bomb accusation was eventually dropped and not raised in court.

Judge Marcia G. Cooke of Federal District Court, who presided over the trial, said at the sentencing in January 2008 that while she understood the gravity of the crimes, no evidence linked Mr. Padilla and his co-defendants to specific acts of terrorism. She also took into account his age, the sentences of other people convicted on terrorism-related charges and his time in the naval brig in South Carolina.

But the federal appeals court said Judge Cooke made several errors in calculating Mr. Padilla’s sentence. For one, she “unreasonably discounted” his troubled past, which included 17 prior arrests and participation as a juvenile in an armed robbery that ended in the victim’s death. Mr. Padilla served four years in juvenile detention.

The trial judge also overestimated Mr. Padilla’s potential for turning his life around upon release from prison, the court stated. Mr. Padilla’s terrorist training sets him apart from an ordinary street thug, the court argued. And while the appeals court said it was permissible to reduce a sentence on account of harsh conditions during pretrial confinement, Judge Cooke went too far when she shaved off more than nine years.

Mr. Padilla’s lawyer presented evidence that Mr. Padilla spent long periods in isolation while in military detention and said he was subjected to interrogation, sleep and sensory deprivation, and temperature variations, among other things.

In her dissenting opinion, Judge Rosemary Barkett said Judge Cooke had properly weighed all of these factors, including Mr. Padilla’s time in the brig, and did not abuse her discretion. Instead, Judge Barkett said, the appellate court was overstepping its bounds.

Both sides can ask the full appeals court to rehear the case or petition the Supreme Court to review the decision.

    Sentence for Terrorist Is Too Short, Court Rules, NYT, 19.9.2011,
    http://www.nytimes.com/2011/09/20/us/jose-padillas-prison-sentence-too-short-appeals-court-says.html

Terrorism and the Law

July 16, 2011
The New York Times


The prosecution of a Somali national accused of supporting Al Qaeda is now headed for trial in a federal court, where it belonged all along. The Obama administration finally made the right decision over the usual self-serving objections of grandstanding senators from both parties. But it is troubling that the administration delayed this step for almost two months.

During those months, Ahmed Abdulkadir Warsame, who was seized by American forces in international waters, was secretly held in extralegal detention on a United States naval vessel. There, he was interrogated without being read the Miranda rights that apply to all federal criminal prosecutions. After weeks of military investigation, a separate team of law enforcement officials concluded that he was not a legitimate candidate for military detention and trial. They read him his rights. He promptly waived them and continued cooperating with his captors, but it may prove hard to disentangle those later statements, fully admissible in court, from his earlier, inadmissible ones.

Approving his secret interrogation at sea gave the administration a convenient alternative to sending him to Guantánamo Bay, Cuba. That would have made trial in a civilian court nearly impossible, because Congress has inexcusably hamstrung the justice system by barring the use of funds to transfer prisoners from the detention camp.

Any suggestion that moving Mr. Warsame to civilian court shows weakness against terrorism is absurd. Had Mr. Warsame been brought before a military commission, prosecutors would have had to prove that he was either an actual member of Al Qaeda or was personally involved in plotting attacks on the United States. But Mr. Warsame is not accused of any actual terrorist acts, just “material support” of Al Qaeda and its alleged Somali affiliate, the Shabab. In a civilian court, proving material support for the Shabab alone would be enough to convict. Conviction on all counts of material support carries a possible life sentence.

So Mr. Warsame’s trial can proceed, but at an unfortunate cost. President Obama has created yet another parallel system of unlimited detention and interrogation without rights outside the constitutional norms that served us well for more than two centuries before the Bush administration carelessly and needlessly tossed them aside for terrorism cases after Sept. 11, 2001.

The Obama administration justifies its handling of the Warsame case under the laws of war. But Mr. Warsame was not picked up on any recognized battlefield. The administration claims continuing authority for military detention, interrogation and trial. This applies not just to battlefield detentions, where it is often appropriate, but to detentions anywhere, and not just to personal involvement in violent attacks, but to a broad range of offenses directly or indirectly related to terrorism. That is far too broad a claim.

Two important goals must guide terrorist-related cases — eliciting information to thwart future plots and punishing the guilty. The overwhelming evidence from the past decade is that both are most reliably served by lawful interrogation and prosecution in civilian courts.

Hundreds of accused terrorists have been convicted in civilian courts since 9/11. Only six — none of them major Qaeda figures — have been convicted in the military commissions carelessly confected by the Bush administration and renewed, with significantly stricter rules and procedures, by the Obama administration.

Mr. Obama came to office vowing to stop these costly travesties of justice that so damaged America’s international reputation. But he has steadily retreated, sometimes in the face of political opposition, sometimes on his own. Now he is drifting toward establishing his own system of extralegal detention and tainted questioning. It is time to stop that drift and return to a constitutional system of law enforcement.

    Terrorism and the Law, NYT, 16.7.2011, http://www.nytimes.com/2011/07/17/opinion/sunday/17sun1.html

The Courts Step In

July 13, 2011
The New York Times


In three new rulings, federal judges in different states have acted to block immediate enforcement of measures that restrict abortion rights and women’s access to affordable contraception, lifesaving cancer screenings and treatment for sexually transmitted diseases. These rulings are important victories for women’s health and reproductive rights.

On June 24, Judge Tanya Pratt of the Federal District Court in Indianapolis issued a preliminary injunction blocking enforcement of a new Indiana law banning the use of Medicaid funds at Planned Parenthood clinics, which provide essential health services to low-income women. The mean-spirited law is part of a Republican-led national campaign to end public financing for Planned Parenthood. The Obama administration promptly told Indiana, and other states weighing similar legislation, that the measure violated federal law by imposing impermissible restrictions on the freedom of Medicaid beneficiaries to choose health care providers. Judge Pratt agreed with that assessment in her decision.

In another ruling six days later, a federal trial judge in South Dakota issued a preliminary injunction blocking, on constitutional grounds, a deeply intrusive state law requiring women to wait at least 72 hours after an initial doctor’s visit before terminating a pregnancy — the longest waiting period in the nation. This law also requires that women seeking abortions endure counseling at so-called pregnancy help centers run by antiabortion activists with the aim of discouraging abortions.

“Forcing a woman to divulge to a stranger at a pregnancy help center the fact that she has chosen to undergo an abortion humiliates and degrades her as a human being,” Judge Karen Schreier wrote in her decision.

On July 1, Judge Carlos Murguia, a federal district judge in Kansas, blocked immediate enforcement of a new Kansas licensing law and health department regulations imposing extensive, medically unnecessary requirements on the state’s three remaining abortion providers — like mandating 50 square feet of storage space for janitorial supplies — with the obvious goal of shutting them down.

While these rulings are preliminary, each is a determination that enforcing the law would cause irreparable harm and that the plaintiffs are likely to prevail at trial. They do not, however, address other threats to women’s health. Those include the slashing of state support for family-planning services by governors like Chris Christie of New Jersey, and attacks from Congress like the bill Republicans pushed through the House in May that would use the nation’s tax system as a weapon to end abortion insurance coverage in the private market.

Still, these rulings serve as a reminder that courts have a vital role to play in blocking the extreme anti-abortion, anti-family-planning movement accelerating in the states and in Washington.

    The Courts Step In, R, 13.7.2011,
    http://www.nytimes.com/2011/07/14/opinion/14thurs1.html

Rajaratnam guilty on all insider trading counts

NEW YORK | Wed May 11, 2011
1:29pm EDT
Reuters
By Grant McCool and Basil Katz

NEW YORK (Reuters) - Hedge fund founder Raj Rajaratnam was found guilty on all 14 counts in a sweeping insider trading verdict on Wednesday that vindicated the government's aggressive use of phone taps to prosecute Wall Street figures.

Rajaratnam, founder of the Galleon Group and the central figure in the broadest Wall Street insider trading probe in decades, will appeal the use of the secret recordings, tactics historically deployed in organized crime and drug trafficking cases, not white-collar probes.

One-time billionaire Rajaratnam, the richest Sri Lankan in the world, faces a minimum of 15-1/2 years in prison after the verdict in Manhattan federal court convicting him on all 14 counts of conspiracy and securities fraud. The jury's decision affirmed the prosecution case that Rajaratnam ran a web of highly-placed insiders from McKinsey & Co consultancy to Intel Corp to a former Goldman Sachs Group Inc board member to leak valuable corporate secrets to him.

Rajaratnam, 53, showed little emotion during the two month-long trial and sat expressionless between his lawyers as the verdict was read in a tense Manhattan federal courtroom.

"It's an historic verdict. It's a dramatic verdict," said Bill Singer, securities lawyer with Gusrae, Kaplan, Bruno & Nusbaum.

"It will likely set the stage for a dramatic change not only in the way that the Wall Street insider-trader activities are investigated and prosecuted, but most likely this will have a chilling effect on individuals and companies that trade."

The case was the first Wall Street insider trading trial to draw such public attention since the mid-1980s scandal involving speculator Ivan Boesky and junk bond financier Michael Milken.

The jurors filed into the tense courtroom in mid-morning and the verdict was read by the judge's deputy. The official read from the jury's completed verdict form, saying "guilty" for each of the five counts of conspiracy and nine counts of securities fraud. He then asked each individual juror whether that was their verdict.

After the jury was dismissed, Rajaratnam was released until his July 29 sentencing. He is free under a $100 million bail package that will now include an electronic monitoring device and house arrest in his Manhattan apartment.

His main lawyer, John Dowd, told dozens of reporters outside the courthouse that his client would keep fighting.

"We're gonna take an appeal for this conviction," Dowd said. "We started out with 37 stocks, we're down to 14 so the score I'd say is 23-14 in favor of the defense. We'll see you in the 2nd circuit" a reference to the appeals court in New York.

TWO MONTH-LONG TRIAL

The trial lasted two months and the verdict was read on the 12th day of jury deliberations in which jurors requested replays of several of the phone recordings at the heart of the government's case.

Litigation experts said the phone taps strengthened insider trading charges, which historically have been difficult to prove because they rely on circumstantial evidence.

Defense lawyers had stuck consistently to their main theme that Rajaratnam's trades were guided by a trove of research and public information, not secrets leaked by highly-placed corporate insiders.

Most litigation experts said the prosecution had a strong case using FBI phone taps and witness stand testimony of three former friends and associates of Rajaratnam -- former McKinsey & Co partner Anil Kumar, former Intel treasury group executive Rajiv Goel and former Galleon employee, Adam Smith.

All three pleaded guilty to criminal charges and agreed to cooperate with the government in the hopes of receiving lighter sentences.

Rajaratnam is the only one out of 26 people charged in the broad Galleon case to go on trial so far. Twenty-one pleaded guilty and one defendant is at large. A second trial of three former securities traders, one of them a former Galleon hedge fund employee, is scheduled to start on Monday with phone tap also key to the prosecution evidence.

The case is USA v Raj Rajaratnam et al, U.S. District Court for the Southern District of New York, No. 09-01184.

 

(Additional reporting by Jonathan Stempel, Dan Levine, Scot Paltrow),
editing by Dave Zimmerman)

    Rajaratnam guilty on all insider trading counts, R, 11.5.2011,
    http://www.reuters.com/article/2011/05/11/us-galleon-rajaratnam-idUSTRE74A3XM20110511

Saudi Man Accused in Bomb Plot to Be Arraigned

March 28, 2011
The New York Times
By THE ASSOCIATED PRESS

LUBBOCK, Texas (AP) — A Texas college student from Saudi Arabia who is accused of buying chemicals and equipment to build a weapon of mass destruction is set to be arraigned.

The arraignment for Khalid Ali-M Aldawsari (al-daw-SAW'-ree) is scheduled for Monday morning at the federal courthouse in Lubbock. He faces up to life in prison if he's convicted of attempted use of a weapon of mass destruction.

Court documents allege he had hatched plans to attack various U.S. targets, including New York City and former President George W. Bush's Dallas home.

Aldawsari was arrested Feb. 23. Court records indicate that federal agents traced his online purchases, discovered extremist online posts he made and secretly searched his apartment, computer and e-mail accounts and read his diary.

    Saudi Man Accused in Bomb Plot to Be Arraigned, NYT, 28.3.2011, http://www.nytimes.com/aponline/2011/03/28/us/AP-US-Terror-Bomb-Plot.html

The Right to Sue Over Wiretapping

March 22, 2011
The New York Times

Federal authorities have always made it difficult to bring a legal challenge against the government’s warrantless wiretapping enterprise that was set up by the Bush administration in the years after the Sept. 11, 2001, attacks. Because the wiretaps were secret, no one could know for certain if they were being tapped, so the government urged judges to throw out lawsuits for lack of proof of real harm.

That strategy was halted on Monday when a federal appeals court said that civil liberties and journalism groups challenging an eavesdropping law could pursue a suit trying to get the government’s wiretapping declared illegal. In an important ruling, the United States Court of Appeals for the Second Circuit reinstated a lawsuit that a federal district judge had thrown out in 2009.

The new decision might lead to a significant — and far too long delayed — legal review of the statute.

The law in question, passed in 2008, amended the Foreign Intelligence Surveillance Act. It essentially legalized retroactively President George W. Bush’s outlaw program of wiretapping certain terror suspects without a warrant. It also immunized telephone companies that cooperated in the program.

And it permitted the government to listen to the international phone calls of Americans who are not engaged in criminal activity, and to read their e-mail messages. At great cost to the privacy of innocent people, it reduced the longstanding protections of judicial supervision over these powers.

The law was challenged by human rights, labor and news media organizations, led by the American Civil Liberties Union. They argued that their communications with clients and interview subjects outside the country would almost certainly be monitored under the law, in part because their jobs required conversations with activists and others whose work would be of interest to the government. Some are lawyers representing accused terror suspects in the United States and often need to communicate with the suspects’ family members or acquaintances outside of the country.

The government argued that the plaintiffs had to prove that they were monitored or harmed, but the Second Circuit didn’t buy that defense. The plaintiffs had every reason to believe that they were being monitored, the court said, and some even spent considerable sums to go abroad for meetings to avoid the eavesdropping.

The final outcome of this legal challenge is far from certain; the government, if it follows its pattern, is likely to cite another familiar defense that a full trial would reveal state secrets. But just by allowing this lawsuit to proceed, the Second Circuit has sent an important message: The government cannot count on simplistic legal arguments to avoid scrutiny of its program to spy on civilians. When one challenge is allowed, others will follow.

    The Right to Sue Over Wiretapping, NYT, 22.3.2011, http://www.nytimes.com/2011/03/23/opinion/23wed1.html

Judge Orders Loughner to Have Mental Exam in Missouri

March 21, 2011
The New York Times
By THE ASSOCIATED PRESS

PHOENIX (AP) — A federal judge on Monday ordered the suspect in the January shooting rampage in Tucson to undergo a mental evaluation at a specialized facility in Missouri as soon as possible.

The evaluation will be videotaped and provided to prosecutors and defense attorneys, U.S. District Judge Larry Burns said in his late Monday ruling. The judge also ordered that the exam be conducted no later than April 29, and that findings be reported to the court and attorneys on both sides by May 11.

Prosecutors had argued that Jared Lee Loughner's exam should be conducted at a so-called medical referral center that provides forensic services and has increased resources, and recommended the federal Bureau of Prisons facility in Springfield, Mo.

Medical referral centers use psychiatrists employed by the bureau.

Loughner's lawyers have said the exam should be done by an outside expert, not by a Bureau of Prisons employee, at a Tucson prison. They also wanted assurances that the evaluation doesn't expand into a review of their client's sanity.

Lead defense attorney Judy Clarke wrote in a court filing last week that moving Loughner would harm the defense team's efforts to develop an attorney-client relationship. The defense also was concerned that Loughner is "seriously ill," and that moving him to Missouri could worsen his state.

Loughner, 22, has pleaded not guilty to charges stemming from the Jan. 8 attack that killed six and wounded 13, including Rep. Gabrielle Giffords. She remains at a rehabilitation center in Houston as she recovers from a bullet wound to the brain.

Burns agreed that the Springfield facility is the best place for the exam, and ordered that the scope of the exam should be limited to whether Loughner is competent to stand trial, not whether he was sane at the time of the shooting.

"The question at issue is whether the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him, or to assist properly in his defense," Burns wrote.

Burns cited a memo written by Dr. Donald Lewis, chief of psychiatry for the Bureau of Prisons. He wrote that the Springfield facility is best for Loughner's exam because it "has medical staff available for neurology and other organic testing, and has far more forensic staff and full-time psychiatrists available to provide round-the-clock assistance."

Lewis also argued that the Tucson prison was inappropriate because as a high-security facility, precautions taken there would be disruptive and likely prevent an examiner from doing a thorough job.

He acknowledged that transferring Loughner would be inconvenient for defense attorneys but ruled that it is "unavoidable in light of the need to reliably and definitively resolve the question of the defendant's present competency." The judge also said the defense can visit Loughner while he is in Missouri.

Burns also wrote that the defense can seek a separate competency exam by an independent psychiatrist. "This should help assuage any concern the defense team has about the impartiality of the Springfield medical staff," Burns wrote.

Loughner's exam could take as little as a few days, and he cannot legally be held at the Springfield facility for more than a month.

Prosecutors have brought 49 counts against Loughner, including trying to assassinate Giffords, attempting to kill two of her aides, and killing U.S. District Judge John Roll and Giffords staffer Gabe Zimmerman. Loughner also is charged with causing the deaths of four others who weren't federal employees, causing injury and death to participants at a "federally provided activity" and using a gun in a crime of violence.

Many of the counts could bring a death sentence, but prosecutors have not announced if they will pursue that penalty. State charges are on hold until the federal case is complete but also carry the potential for the death penalty if Loughner is convicted.

Defense lawyers have not said if they intend to present an insanity defense.

    Judge Orders Loughner to Have Mental Exam in Missouri, NYT, 21.3.2011, http://www.nytimes.com/aponline/2011/03/21/us/AP-US-Congresswoman-Shot-Mental-Exam.html

A Right Without a Remedy

February 28, 2011
The New York Times

In a landmark case three years ago, the Supreme Court ruled that detainees at Guantánamo Bay, Cuba, who are not American citizens have “the constitutional privilege of habeas corpus.” It gives them the right to have a federal judge decide promptly whether their detention is illegal and, if so, order their release because the United States controls the place they are held. The 5-to-4 decision in what is known as the Boumediene case was a repudiation of the Bush strategy of imprisoning the detainees outside American territory so the Constitution would not apply. Or so many thought.

The United States Court of Appeals for the District of Columbia Circuit, the only circuit where detainees can challenge their detention, has dramatically restricted the Boumediene ruling. In its hands, habeas is no longer a remedy for the problem the Boumediene majority called “arbitrary and unlawful restraint.”

The sole recourse is for the Supreme Court, once again, to say what the Constitution requires judges to do in habeas cases. Fortunately, a case is at hand for the justices to do so in an appeal from the District of Columbia Circuit. In the Kiyemba case recently, five Uighur, or Chinese Muslim, detainees filed a brief with the Supreme Court in support of their petition for it to restore the power of federal trial judges to free them.

This appeal in no way threatens national security. The government has admitted that the Uighurs are not enemies, let alone enemy combatants. Refugees from China, they were mistakenly imprisoned during the Afghanistan war and sent to Guantánamo Bay in 2002. Other Uighurs accepted release to the island of Palau, 500 miles from the Philippines, but these five declined the offer because they have no connection to the island.

The appeal is about judicial power and the duty to use it. In 2008, a District of Columbia trial judge ordered the government to bring the Uighurs to his court to resolve how they should be released. The appeals court ruled that the judge lacked authority to free them in the United States because the “political branches” have “exclusive power” to decide which non-Americans can enter this country.

Judge Raymond Randolph of the District of Columbia Circuit wrote the key Kiyemba opinion. The Uighurs’ brief says, “The constant in this case is the court of appeals’ refusal to apply, or even acknowledge,” the Boumediene ruling.

Judge Randolph also wrote the opinion for the District of Columbia Circuit that the Supreme Court overturned in Boumediene. In a speech called “The Guantanamo Mess” last fall, he said that the justices were wrong to do so and all but expressed contempt for the holding. As the basis for the speech’s title, he compared the justices who reached it to characters in “The Great Gatsby.” “They were careless people,” he read. “They smashed things up ... and let other people clean up the mess they had made.”

In Kiyemba and related cases, however, it is Judge Randolph and others on the District of Columbia Circuit who are making the mess. Respected lawyers say they are subverting the Supreme Court and American justice. Of 140 challenging their detentionsin the face of this hostility, dozens who should have been freed will likely remain in prison.

Alexander Hamilton called “arbitrary imprisonments” by the executive “the favorite and most formidable instruments of tyranny.” In Boumediene, Justice Anthony Kennedy stressed that habeas is less about detainees’ rights, important as they are, than about the vital judicial power to check undue use of executive power.

The appellate court has all but nullified that view of judicial power and responsibility backed by Justice Kennedy and the court majority. The Supreme Court should remind the appellate court which one leads the federal judicial system and which has a solemn duty to follow.

    A Right Without a Remedy, NYT, 28.2.2011, http://www.nytimes.com/2011/03/01/opinion/01tue1.html

In Turnabout, U.S. Says Marriage Act Blocks Gay Rights

February 23, 2011
The New York Times
By CHARLIE SAVAGE and SHERYL GAY STOLBERG

WASHINGTON — President Obama, in a striking legal and political shift, has determined that the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — is unconstitutional, and has directed the Justice Department to stop defending the law in court, the administration said Wednesday.

Attorney General Eric H. Holder Jr. announced the decision in a letter to members of Congress. In it, he said the administration was taking the extraordinary step of refusing to defend the law, despite having done so during Mr. Obama’s first two years in the White House.

“The president and I have concluded that classifications based on sexual orientation” should be subjected to a strict legal test intended to block unfair discrimination, Mr. Holder wrote. As a result, he said, a crucial provision of the Defense of Marriage Act “is unconstitutional.”

Conservatives denounced the shift, gay rights advocates hailed it as a watershed, and legal scholars said it could have far-reaching implications beyond the marriage law. For Mr. Obama, who opposes same-sex marriage but has said repeatedly that his views are “evolving,” there are political implications as well. Coming on the heels of his push for Congress to repeal the “don’t ask, don’t tell” law barring the military from allowing gay people to serve openly, the administration’s move seems likely to intensify the long-running cultural clash over same-sex marriage as the 2012 political campaign is heating up.

“This is a great step by the Obama administration and a tipping point for the gay rights movement that will have ripple effects in contexts beyond the Defense of Marriage Act,” said Anthony D. Romero, the executive director of the American Civil Liberties Union. “It will reach into issues of employment discrimination, family recognition and full equality rights for lesbian and gay people.”

But some conservatives questioned Mr. Obama’s timing and accused him of trying to change the subject from spending cuts to social causes. Others portrayed the Justice Department’s abandonment of the Defense of Marriage Act as an outrageous political move that was legally unjustified.

“It is a transparent attempt to shirk the department’s duty to defend the laws passed by Congress,” Representative Lamar Smith, the Texas Republican who is chairman of the House Judiciary Committee, said in a statement. “This is the real politicization of the Justice Department — when the personal views of the president override the government’s duty to defend the law of the land.”

While the issue at hand is whether gay couples in the eight states that already legally recognize same-sex marriage may be discriminated against by the federal government, the administration’s decision raised anew the more fundamental question of whether same-sex couples should have a right to marry.

Mr. Obama takes a nuanced position on same-sex marriage, and the White House was careful to say on Wednesday that his position on that issue — he favors civil unions — remains unchanged. Many advocates of same-sex marriage, though, perceived the administration’s new legal stance as a signal that Mr. Obama would soon embrace their cause.

Polls show the public is broadly supportive of equal rights for gay people — with the exception of the right to marry. Nearly 90 percent of Americans favor equality of opportunity in the workplace, and more than 60 percent favored overturning “don’t ask, don’t tell.” But the public remains evenly divided on same-sex marriage.

Tobias B. Wolff, a University of Pennsylvania law professor who has advised Mr. Obama on gay rights issues, said Wednesday’s decision may have bought the president some time with gay rights leaders, many of whom have been deeply critical of his position on the marriage issue.

“He has said that he has been struggling with the issue, and I think he has earned a certain benefit of the doubt,” Mr. Wolff said.

But the move also sharpened criticism of Mr. Obama from the right. Senator Charles E. Grassley, Republican of Iowa, said the shift was “clearly based more on politics than the law.”

While Mr. Obama has called for Congress to repeal the marriage law, in court his administration has supported the constitutional right of Congress to enact such a measure. But his legal team was forced to take a second look at the sustainability of that position because of two recent lawsuits challenging the statute. The Justice Department must file responses to both suits by March 11.

For technical reasons, it would have been far more difficult — both legally and politically — for the administration to keep arguing that the marriage law is constitutional in these new lawsuits. To assert that gay people do not qualify for extra legal protection against official discrimination, legal specialists say, the Justice Department would most likely have had to conclude that they have not been historically stigmatized and can change their orientation.

The development floored Edith S. Windsor, an 81-year-old widow who filed one of the two new lawsuits in New York. Ms. Windsor is seeking the return of about $360,000 in estate taxes she had to pay because the federal government did not recognize their marriage when her wife died two years ago. The couple married in Toronto.

“It’s almost overwhelming,” Ms. Windsor said in an interview. “I don’t know what it means in terms of what follows. But the very fact that the president and the Department of Justice are making such a statement is mind-blowing to anybody gay or anybody who is related to anybody gay. I think it removes a great deal of the stigma. It’s just great.”

If the courts agree with the administration’s view of how to evaluate gay-rights claims of official discrimination, it could open the door to new legal challenges to many other government policies that treat gay people unequally — including federal laws that make it easier for noncitizen spouses to apply for legal residency and state laws governing who may adopt a child.

While it is rare for an administration not to defend the constitutionality of a statute, it happens occasionally. Congress may opt to appoint its own lawyers to defend the law, or outside groups may try to intervene. And while the Justice Department’s lawyers will no longer defend the law in court, Mr. Holder said the administration would continue to enforce the act unless Congress repeals it or a court delivers a “definitive verdict against the law’s constitutionality.”

The administration’s change in position grew out of an internal debate, first reported in January by The New York Times, over how to respond to the two lawsuits filed last year that challenged the 1996 act.

The same-sex marriage reversal followed weeks of high-level deliberations, first in the Justice Department’s Civil Division, and then at the White House.

The lawsuits were brought by people including Ms. Windsor, whose same-sex marriages are recognized as legal by state law, but who have been denied certain federal benefits granted to opposite-sex married couples. The plaintiffs, represented by the A.C.L.U. and Glaad — Gay and Lesbian Advocates and Defenders — contended that such treatment violated their right to equal protection of the law.

In previous cases, the Justice Department defended the act by citing precedents that directed judges to uphold any law that treats gay people unequally unless a challenger can prove there is no conceivable rational basis for the act. But the two new cases were filed in districts covered by the federal appeals court in New York, one of the few circuits that lack such a precedent.

As a result, the administration, for the first time, confronted the difficult question of how much protection gay people, as a group, should receive against official discrimination.

Mr. Holder said Justice and White House officials had concluded that gay people qualified for the greater protection afforded to a handful of classes, like race or gender. Under that test, discrimination is presumed to be unconstitutional, and Mr. Holder said it was untenable to keep defending the marriage law.

    In Turnabout, U.S. Says Marriage Act Blocks Gay Rights, NYT, 23.2.2011, http://www.nytimes.com/2011/02/24/us/24marriage.html

On Health Care, Justice Will Prevail

February 7, 2011
The New York Times
By LAURENCE H. TRIBE

Cambridge, Mass.

THE lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.

But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.

Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.

It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract. If Justice Clarence Thomas can be counted a nearly sure vote against the health care law, the only reason is that he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.

There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.


Laurence H. Tribe, a professor at Harvard Law School, is the author of “The Invisible Constitution.”

    On Health Care, Justice Will Prevail, NYT, 7.2.2011, http://www.nytimes.com/2011/02/08/opinion/08tribe.html

Federal Judge Rules That Health Law Violates Constitution

January 31, 2011
The New York Times
By KEVIN SACK

A second federal judge ruled on Monday that it was unconstitutional for Congress to enact a health care law that required Americans to obtain commercial insurance, evening the score at 2 to 2 in the lower courts as conflicting opinions begin their path to the Supreme Court.

But unlike a Virginia judge in December, Judge Roger Vinson of Federal District Court in Pensacola, Fla., concluded that the insurance requirement was so “inextricably bound” to other provisions of the Affordable Care Act that its unconstitutionality required the invalidation of the entire law.

“The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker,” Judge Vinson wrote.

The judge declined to immediately enjoin, or suspend, the law pending appeals, a process that could last two years. But he wrote that the federal government should adhere to his declaratory judgment as the functional equivalent of an injunction. That left confusion about how the ruling might be interpreted in the 26 states that are parties to the legal challenge.

The insurance mandate does not take effect until 2014. But many new regulations are already operating, like requirements that insurers cover children with pre-existing health conditions and eliminate lifetime caps on benefits. States are also preparing for a major expansion of Medicaid eligibility and the introduction of health insurance exchanges in 2014.

David B. Rivkin Jr., a lawyer for the states, said the ruling relieved the plaintiff states of any obligation to comply with the health law. “With regard to all parties to this lawsuit, the statute is dead,” Mr. Rivkin said.

But White House officials declared that the opinion should not deter the continuing rollout of the law. “Implementation would continue apace,” a senior administration official said. “This is not the last word by any means.”

At the same time, Stephanie Cutter, an assistant to the president, noted in a post on the White House blog that the ruling had struck down the entire law. She called it “a plain case of judicial overreaching,” and added, “The judge’s decision puts all of the new benefits, cost savings and patient protections that were included in the law at risk.”

The Justice Department, which represents the Obama administration in the litigation, said it was exploring options to clarify the uncertainty, including requesting a stay of the decision, either from Judge Vinson or from the United States Court of Appeals for the Eleventh Circuit.

On Capitol Hill, Republicans sent out a stream of e-mails praising the ruling, while Senator Richard J. Durbin, Democrat of Illinois, said he would convene a Judiciary Committee hearing on Wednesday to examine the constitutionality of the law.

In his 78-page opinion, Judge Vinson held that the insurance requirement exceeded the regulatory powers granted to Congress under the Commerce Clause of the Constitution. He wrote that the provision could not be rescued by an associated clause in Article I that gives Congress broad authority to make laws “necessary and proper” to carrying out its designated responsibilities.

“If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain,” the judge asserted.

In a silver lining for the Obama administration, Judge Vinson rejected a second claim that the new law violated state sovereignty by requiring states to pay for a fractional share of the planned Medicaid expansion.

The judge’s ruling came in the most prominent of more than 20 legal challenges to the sweeping health law, which was signed last March by President Obama.

The plaintiffs include governors and attorneys general from 26 states, all but one of them Republicans, as well as the National Federation of Independent Business, which represents small companies. Officials from six states joined the lawsuit in January after shifts in party control brought by November’s elections.

The ruling by Judge Vinson, a senior judge who was appointed by President Ronald Reagan, solidified the divide in the health litigation among judges named by Republicans and those named by Democrats.

In December, Judge Henry E. Hudson of Federal District Court in Richmond, Va., who was appointed by President George W. Bush, became the first to invalidate the insurance mandate. Two other federal judges named by President Bill Clinton, a Democrat, have upheld the law.

Judge Vinson’s opinion hangs on a series of Supreme Court decisions that have defined the limits of the Commerce Clause by granting Congress authority to regulate “activities that substantially affect interstate commerce.”

The plaintiffs characterized the insurance requirement as an unprecedented effort to regulate inactivity because citizens would be assessed an income tax penalty for failing to buy a product.

Justice Department lawyers responded that a choice not to obtain health insurance was itself an active decision that, taken in the aggregate, shifted the cost of caring for the uninsured to hospitals, governments and privately insured individuals.

In his decision, Judge Vinson wrote, “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.” If Congress has such power, he continued, “it is not hyperbolizing to suggest that Congress could do almost anything it wanted.”

The Pensacola case is now likely to head to the Eleventh Circuit in Atlanta, considered one of the country’s most conservative appellate benches. The Richmond case is already with another conservative court, the United States Court of Appeals for the Fourth Circuit in Richmond, which has set oral arguments for May.

That court will consider diametrically opposed rulings from courthouses situated 116 miles apart, as it was a judge in Lynchburg, Va., Norman K. Moon, who issued one of the two decisions upholding the law. Meanwhile, the United States Court of Appeals for the Sixth Circuit in Cincinnati is already receiving briefs on the other decision backing the law, which was delivered by Judge George C. Steeh in Detroit.

Judge Vinson’s ruling further arms Republicans in Congress who are waging a fierce campaign against the health care act. The new Republican majority in the House voted this year to repeal the law, a largely symbolic measure that is given no chance in the Democratic-controlled Senate.

The Obama administration argues that without the insurance mandate consumers might simply wait until they are sick to enroll, undercutting the actuarial soundness of risk pooling and leading to an industry “death spiral.”

But the mandate’s legal and political problems have prompted a few Democratic senators to join Republicans in exploring alternatives that would encourage citizens to buy insurance without requiring it.

For instance, people could be given a narrow window to enroll, and those who miss the deadline would face lengthy waiting periods for coverage.

Alternately, those who apply late and are eligible for government tax credits under the law coverage could be penalized through a reduction of their subsidies.


Sheryl Gay Stolberg contributed reporting.

    Federal Judge Rules That Health Law Violates Constitution, NYT, 31.1.2011, http://www.nytimes.com/2011/02/01/us/01ruling.html

Tucson Suspect Pleads Not Guilty

January 24, 2011
The New York Times
By MARC LACEY

PHOENIX — Jared L. Loughner, who the police said was responsible for the shooting rampage outside a Tucson supermarket on Jan. 8, pleaded not guilty on Monday to charges that he tried to murder Representative Gabrielle Giffords and two of her aides.

Appearing in Federal District Court alongside his defense lawyer, Judy Clarke, Mr. Loughner entered a written plea to Judge Larry A. Burns of San Diego without uttering a word.

Dressed in an orange prison jumpsuit and wearing glasses, Mr. Loughner, 22, smiled through most of the proceedings and chuckled when a clerk read out the name of the case: the United States of America v. Jared Lee Loughner.

Ms. Clarke offered no objection to a request by Wallace Kleindienst, an assistant United States attorney, to move the court proceedings to Tucson. But Mr. Kleindienst, who is considered an expert in murder cases, indicated that Ms. Clarke would have additional opportunities to push for the trial to be held elsewhere.

The indictment unsealed against Mr. Loughner was preliminary, prosecutors have said, and did not involve any of the other shooting victims. A superseding indictment is expected to be filed after more investigation.

During the arraignment, which was conducted under high security, Judge Burns asked Ms. Clarke whether she had any concerns about her client’s ability to understand the case against him. “We are not raising any issues at this time,” she said.

The prosecution on Monday turned over to Ms. Clarke records from Mr. Loughner’s computer and transcripts of 250 witness interviews.

The shooting, which left six dead and 13 wounded, is expected to be addressed during President Obama’s State of the Union speech on Tuesday, as several people who helped the wounded have been invited to attend.

Daniel Hernandez, the intern who gave first aid to Ms. Giffords after she was shot and who was called a hero by Mr. Obama during his speech in Tucson on Jan. 12, will attend, along with Peter Rhee, G. Michael Lemole Jr. and Randall S. Friese, all doctors who treated her at University Medical Center, said C. J. Karamargin, Ms. Giffords’s spokesman.

Also expected to be in attendance is Tracy Culbert, a trauma and intensive care nurse who treated Ms. Giffords. On Friday, Ms. Culbert accompanied Ms. Giffords on her flight to Houston, where her recovery is continuing in an intensive care unit at Memorial Hermann hospital. When her health improves, she will be transferred to the Institute for Rehabilitation and Research at Memorial Hermann.

Over the weekend, Dr. John Holcomb, a trauma surgeon at Memorial Hermann, said Ms. Giffords could not begin intensive rehabilitation right away. He said a slight buildup of spinal fluid in her brain after her transfer by air to Houston from Tucson on Friday made it impossible to shift her to the rehabilitation center in the complex.

The congresswoman has a catheter draining fluid from her skull, part of which was removed to relieve pressure after the shooting

Sam Dolnick and Ford Burkhart contributed reporting from Tucson, and James C. McKinley Jr. from Houston.

    Tucson Suspect Pleads Not Guilty, NYT, 24.1.2011, http://www.nytimes.com/2011/01/25/us/25loughner.html

Differences in Federal and State Systems Could Complicate Prosecution

January 14, 2011
The New York Times
By KIRK JOHNSON and CHARLIE SAVAGE

TUCSON — The investigation into the bloody attack here last weekend is virtually certain to rank among the highest-profile criminal cases of the year, with as many as 250 federal law enforcement officials and dozens of sheriff’s deputies and detectives operating under blanket news media scrutiny. But the paradox is that it has also turned out to be among the simplest of cases to investigate, with the answers to most questions clear within hours.

Now, however, as the prosecution phase nears and both federal and state courts pursue the case, complications will inevitably appear — beginning with the vast number of potential witnesses, and further magnified by the sometimes sharply different requirements of the two court systems.

The complications extend to the rules of evidence. Arizona state and federal rules differ significantly on what defense attorneys are entitled to hear before trial, and the federal and state teams could also head toward very different outcomes as well if — as many legal experts expect — Jared L. Loughner’s lawyers mount an insanity defense. Arizona, unlike federal law, does not allow a finding of not guilty by reason of insanity. A defendant can only be found guilty, not guilty or guilty but insane.

“This is not a whodunit — it’s pretty straightforward,” said the Pima County attorney, Barbara LaWall, whose office is expected to file a state criminal case in the coming weeks against Mr. Loughner, 22, on top of the federal charges already filed. “It’s also very complicated.”

While the systems differ, the facts are clear-cut: Mr. Loughner, the accused gunman, was caught in the act in front of many witnesses; after a brief search for a man who turned out to be an innocent taxi driver, it became clear that there was no conspiracy; records showed that Mr. Loughner bought the gun legally; there were no interstate connections to explore, nor fugitives to hunt down; the suspect’s Internet postings and papers at his home provided a roadmap to his mental state and fixation on his apparent target, Representative Gabrielle Giffords, who was having an event in the shopping center parking lot where the shooting occurred.

There are human entanglements too. Ms. LaWall, in preparing to counter an insanity defense on the state side, said in an interview that she may get help, in a way, from one of the murder victims: John M. Roll, the chief federal judge in Arizona, who had been a supervising prosecutor in the Pima County attorney’s office decades ago, when she joined it as a young prosecutor.

“I learned to defend against the insanity defense from John Roll,” she said.

The disconnect between the relative simplicity of the investigation and its extraordinary importance is also manifested in appearances.

After the attack, President Obama asked the F.B.I. director, Robert S. Mueller III, to fly out to Tucson and personally oversee the effort. He did, and the news conference he gave on Sunday sent a calming message to the public that the government was in control of the matter.

But Mr. Mueller’s role was not to run the investigation. He flew back to Washington on Monday, then returned briefly to Tucson later in the week. And while he attended some briefings in Arizona as the inquiry unfolded, he also spent time visiting victims in the hospital.

Instead, the investigation has been primarily run by Nathan Thomas Gray, the special agent in charge of the F.B.I.’s Phoenix division, who has nearly three decades of law enforcement experience and a long history of important bureau positions. He is being helped by an assistant special agent in charge, Annette Bartlett, who runs the division’s branch office in Tucson.

At the F.B.I. offices here in a sixth-floor suite downtown, people are working at every available space, according to a description provided by two F.B.I. agents, all revolving around a glossy dark brown conference table that agents refer to as the main battle station, seating 18 to 20 people.

Phone lines and computer cables thread the room together, but there are also voluminous stacks of paper, neatly organized, extending to chairs along the walls. A projector illuminating the list of various leads to cover, referred to as the virtual command center, hangs overhead.

Judy Clarke, Mr. Loughner’s lawyer, did not return a phone call or e-mail requests for comment.

Even as the F.B.I. leads the investigation, however, the Pima County Sheriff’s Department, five miles away in a low-rise complex hard between the County Fairgrounds and an industrial park, has become the main source of information about what has actually been uncovered. The discovery of a black bag on Thursday in a Tucson neighborhood by a man walking his dog illuminated the odd trajectory of news, evidence and turf that swirls around the case.

Investigators had been looking for the bag since being told by Mr. Loughner’s father that he had confronted his son about it on Saturday, before the shootings, and Jared Loughner ran into the desert carrying it. The recovery and detail about its contents, 9-millimeter ammunition — the caliber used in the attack — was the stuff of a sheriff’s press release. Later in the day a sheriff’s spokesman said the bag had been turned over to the F.B.I., which had not commented about it.

Federal officials say this dynamic is less the result of any culture clash than of differing rules: under Justice Department regulations, they have far less freedom to release information — even mug shots — than do local police operating under Arizona’s open-government laws.

Meanwhile, the investigative tempo and the number of agents performing tasks for it, officials say, has waxed and waned. It was a frenzy in the immediate aftermath, as agents fanned out to search Mr. Loughner’s house and car, interview witnesses at the hospital, research the gun, review surveillance tapes and find his associates.

Much of that work was completed in the first few days.

“The basic set of facts of what happened in the case, I think within 48 hours they had a really good handle on them,” said Special Agent Jason Pack, an F.B.I. spokesman. “They identified the second person they were looking for and had a pretty good idea that just one person was responsible for this particular act.”

As the week progressed, some technical work remained — notably, the laboratory reconstruction of the crime scene, and efforts to scour Mr. Loughner’s computer, using computer specialists, some of whom have been tapping in remotely from elsewhere in the country.

But a second major wave of investigative activity resulted from the other major remaining task: to speak with every person who crossed Mr. Loughner’s path, each of whom seemed to suggest several other leads to run down — a ballooning effort to make sure investigators did not miss anything important.

Already, agents have interviewed well over 100 people, with written reports then collated and compiled into the F.B.I.’s Operational Response and Investigative Online Network, or Orion, a computerized case management system that helps agents fit pieces into the larger puzzle.

But those volumes of interviews could in turn be a major wrinkle on the state side of the case because of what legal experts say are Arizona’s unusual procedural rules that allow defense attorneys to interview, before trial, every witness, except victims, that might be called to testify by the prosecution, including F.B.I. agents.

“Every single witness on the prosecution side is likely to be questioned, other than the victims,” said Prof. Gabriel J. Chin, who teaches criminal law and procedure at the University of Arizona’s James E. Rogers College of Law in Tucson.

Another variable that could enter the case — given the well-documented history of odd and disruptive, if not threatening, behavior by Mr. Loughner, especially at Pima Community College — is the question of his mental competency to stand trial.

And there again the state-federal wrinkle could emerge. Arizona, Professor Chin said, has a very sophisticated system designed to restore mental competency, often through medical treatment, so that people can continue through the criminal justice system. It was conceivable, he said, that that system could come into play even if a federal court found Mr. Loughner unable or unfit to proceed.

    Differences in Federal and State Systems Could Complicate Prosecution, NYT, 14.1.2011, http://www.nytimes.com/2011/01/15/us/15investigate.html

U.S. Subpoenas Twitter Accounts of WikiLeaks Figures

January 8, 2011
The New York Times
By JOHN F. BURNS and RAVI SOMAIYA

LONDON — The United States Department of Justice has issued a subpoena for the Twitter account activity of several people linked to the WikiLeaks organization, including its founder, Julian Assange, according to the group and official documents.

The subpoena, issued last month, offers the most detail yet about how the United States government is conducting its investigation, and likely prosecution, of WikiLeaks officials and their anti-secrecy campaign to release classified and often highly sensitive documents on the Internet. A task force composed of dozens of Pentagon and justice department officials, among others, has been active for months in investigating the damage done to American diplomatic and military operations.

The quest to get the information from five prominent figures at the group was revealed Saturday when Birgitta Jonsdottir, a former WikiLeaks activist who is also a member of Iceland’s parliament, received a notification of the subpoena from Twitter, a social Web site that allows users to post short messages. The United States government, she said in a subsequent message, “wants to know about all my tweets and more since November 1st 2009.” The subpoena, obtained by the Web site Salon.com, was issued by the United States Attorney for the Eastern District of Virginia on Dec. 14 and asks for the complete account information of Pfc. Bradley Manning, the United States Army intelligence specialist awaiting a military court martial under suspicion of leaking materials to WikiLeaks, as well as Ms. Jonsdottir, Mr. Assange and two computer programmers, Rop Gongrijp and Jacob Appelbaum.

Mr. Appelbaum wrote on his Twitter account on Saturday that the lawyers for the short-messaging service had been responsible for getting the grand jury subpoena unsealed and warned followers against sending him private messages. “Do not send me Direct Messages,” he wrote. “My twitter account contents have apparently been invited to the (presumably-Grand Jury) in Alexandria.”

While many messages on Twitter are posted publicly, the service also allows users to send private or “direct” messages to other users.

The subpoena was unsealed on Jan. 5, which allowed Twitter to inform those concerned.

The facsimile of the subpoena showed that it had been authorized by the U.S. attorney’s office in Alexandria, Va., outside Washington, an office that has often been used by the federal government in highly sensitive criminal inquiries. Some published reports in recent weeks have suggested that the justice department may have secretly empanelled a grand jury in Virginia to take evidence in the WikiLeaks probe. But a tickbox on the subpoena saying “grand jury information” was left blank.

Ms. Jonsdottir did not immediately return messages seeking comment but has said in messages on Twitter that she will fight the subpoena.

Of the five individuals named in the subpoena, only two — Mr. Manning and Jacob Appelbaum — are American citizens. The others include an Australian, Mr. Assange, Ms. Jonsdottir, from Iceland, Mr. Gongrijp, a Dutch national. This immediately raised the possibility of a diplomatic row between the United States and allied nations whose citizens were among those covered by the subpoena. They could argue that American laws were being used to stifle free communications between individuals who were not American citizens, and who were not in the United States at the time of the messages that were the target of the subpoena.

An early indication of the potential for protest came from Ms. Jonsdottir, the Icelandic parliamentarian, who used her Twitter account to ask, “Do they realize I am a member of parliament in Iceland?” In a later Twitter messages, she said she had spoken to Iceland’s minister of justice, who, she said, was “now looking into the case.” She said she had also spoken to Iceland’s interior minister, Ogmundur Jonasson, who, she said, had described the subpoena as “very odd and grave.”

Twitter said it would not comment on the specific case, but noted that its policy is “to notify users about law enforcement and governmental requests for their information, unless we are prevented by law from doing so.”

In messages on its own Twitter feed, WikiLeaks confirmed the subpoena, and suggested that Google and Facebook might also have been issued with such legal demands. A communications official for Facebook said on Saturday that the company had no comment.

The unsealed subpoena offers the first window into how the United States has been maneuvering to build its case against Mr. Assange. The government, in seeking all information related to the accounts since Nov. 1, 2009, is likely hoping to discover private discussions about the leaks or details of timing to help prove that either Mr. Assange or one of his surrogates pushed Mr. Manning to leak the government documents.

The Justice Department has so far avoided discussing details its investigation into WikiLeaks and declined to outline any grand jury activity, though Attorney General Eric Holder said he authorized investigators to take “significant” steps.

But those familiar with the department’s actions said there is intense pressure to find some way of criminally prosecuting Mr. Assange as a co-conspirator in order to deter future large-scale leaks via the Internet. The subpoena, unsealed on Saturday, describes an “ongoing criminal investigation.”

By seeking to prove Mr. Assange was a conspirator in the leak, the government seeks to differentiate the actions of WikiLeaks from those of traditional news organizations or investigative journalists who also disclose government information.

The United States has also taken steps to protect against future leaks, including suggesting employees of various agencies that handle sensitive material take measures to evaluate the “trustworthiness” of co-workers, according to a memo circulated last week by the Office of Management and Budget.

The memo, distributed to the heads of all executive branch departments and agencies, urged managers to implement programs that can evaluate “insider threats” and “detect behavioral changes in cleared employees.”

“Do you use a psychiatrist or sociologist to measure despondence and grumpiness as a means to gauge waning trustworthiness?” the memo asks agencies to consider.

In a message on Saturday, WikiLeaks compared the subpoena to the Iranian government seeking information on activists in that country. Using the acronym for direct messages, the only messages on Twitter that are not publicly accessible for some users, it said, “If the Iranian govt asked for DMS of Iranian activists, State Dept. would be all over this violation of ‘Internet freedom.’ ”

J. David Goodman contributed reporting from New York.

    U.S. Subpoenas Twitter Accounts of WikiLeaks Figures, NYT, 8.1.2011, http://www.nytimes.com/2011/01/09/world/09wiki.html

David G. Trager, Judge in Crown Heights Case, Dies at 73

January 6, 2011
The New York Times
By ROBERT D. McFADDEN

David G. Trager, a federal judge in Brooklyn whose rulings were pivotal in a racially charged case in Crown Heights and in the first civil suit to challenge the Bush administration’s practice of sending terrorism suspects to countries that employ torture, died on Wednesday at his home in Brooklyn. He was 73.

The cause was pancreatic cancer, his wife, Roberta E. Weisbrod, said.

After three decades as a lawyer, state investigation commissioner, federal prosecutor and law school professor and dean, Mr. Trager was named to the United States District Court for the Eastern District by President Bill Clinton in 1993. After assuming senior status in 2006, Judge Trager worked full time until recently. The district encompasses Brooklyn, Queens, Staten Island and Nassau and Suffolk Counties.

In a wide-ranging career, Judge Trager, a Republican known for political independence, was United States attorney for the Eastern District from 1974 to 1978. He was also a professor at Brooklyn Law School for 17 years and, for a decade, its dean. From 1983 to 1990, he headed the State Commission of Investigation, and in the 1980s he advised New York mayors on judicial appointments and helped to revise the City Charter.

But he was perhaps best known as the judge in the trial of two black men, Lemrick Nelson Jr. and Charles Price, who were convicted in 1997 of civil rights violations for their roles in the killing of a Hasidic scholar, Yankel Rosenbaum, in 1991 on a night of mob violence in Crown Heights, Brooklyn.

The verdict appeared to close a wrenching case that had exemplified troubled race relations in New York. But an appeals court overturned it in 2002, saying that Judge Trager, in trying to seat a racially and religiously balanced jury, had improperly manipulated the panel’s composition. The court said he had erred in a well-intended desire to be fair and to avoid a polarizing verdict, violating constitutional trial guarantees. Mr. Nelson was retried and again convicted; Mr. Price entered a guilty plea.

Another ruling by Judge Trager figured prominently in a civil suit against the government by the Center for Constitutional Rights and Maher Arar, a Syrian-born Canadian citizen who was suspected of being a Qaeda terrorist and was detained at Kennedy International Airport in 2002 on his way home from a vacation.

Mr. Arar was held in solitary confinement in Brooklyn, interrogated without access to legal counsel and, under the Bush administration’s practice of “extraordinary rendition,” sent without charges or a trial to Syria, where he was imprisoned for 10 months in a rat-infested dungeon and tortured repeatedly. Syria found no evidence that Mr. Arar was a terrorist, and released him.

In 2006, Judge Trager dismissed Mr. Arar’s suit for damages, upholding the government’s contention that torture in rendition cases was a foreign-policy issue not appropriate for judicial review and that the case might disclose state secrets. The decision was upheld by the United States Court of Appeals for the Second Circuit, and the United States Supreme Court declined to hear the case.

David Gershon Trager was born in Mount Vernon, N.Y., on Dec. 23, 1937, the son of Sol and Clara Trager, who had emigrated from Austria. He graduated from Columbia University in 1959 and received his law degree from Harvard in 1962.

Mr. Trager practiced law in New York from 1963 to 1967, and after a year as an assistant city corporation counsel, he was a law clerk in 1968 for Judge Kenneth B. Keating and in 1969 for Chief Judge Stanley H. Fuld, both of the New York Court of Appeals.

Besides his wife, whom he married in 1972, Judge Trager is survived by a son, Josiah; two daughters, Naomi Trager and Mara Trager; and two grandchildren.

In the early 1970s, Mr. Trager was an assistant federal prosecutor in Brooklyn and an associate professor at Brooklyn Law School. He taught constitutional law at the school, where he was a full professor from 1978 to 1993 and the dean from 1983 to 1993.

As the United States attorney in Brooklyn in the mid-1970s, Mr. Trager was known for vigorously pursuing organized crime. While he had no prosecutorial powers as chairman of the State Commission of Investigation in the 1980s, he exposed numerous cases of official corruption, notably on Long Island.

In 1987, after a 14-month inquiry, he disclosed what he called a “startling lack of professionalism” in the Suffolk County Police Department, with instances of perjury, fabrication and illegal wiretapping that he said were “shamefully tolerated” by the district attorney’s office. A wave of retirements, resignations, transfers and reforms ensued.

Mr. Trager was a member of panels that advised Mayors Edward I. Koch and David N. Dinkins on judicial appointments and that revised the New York City Charter, eliminating the Board of Estimate, which had been the center of civic affairs for a century, and redistributing the board’s powers to an expanded City Council, the mayor and a reconstituted Planning Commission.

    David G. Trager, Judge in Crown Heights Case, Dies at 73, NYT, 6.1.2011, http://www.nytimes.com/2011/01/07/nyregion/07trager.html

15-Year Sentence for 1968 Hijacking

January 4, 2011
Filed at 12:29 p.m. EST
The New York Times
By THE ASSOCIATED PRESS


NEW YORK (AP) — A judge sentenced a man who hijacked a plane from New York to Cuba four decades ago to 15 years in prison Tuesday, citing the fear that must have spread among passengers and the flight crew when he put a knife to the throat of a flight attendant and a gun to her back and then entered the cockpit.

U.S. District Judge Alvin K. Hellerstein announced the sentence for 67-year-old Luis Armando Pena Soltren, who returned to the United States from Cuba in October 2009 to face charges of conspiracy to commit air piracy, interfering with a flight crew and kidnapping. He pleaded guilty in March.

"This is a very serious offense. Sometimes it's important to have a strict sentence," Hellerstein said as he rejected pleas for leniency from a defense lawyer who insisted Pena Soltren only joined the hijacking to get to visit his father in a Cuban hospital and then lived an honorable life afterwards.

"Hijacking is a frightening crime," the judge said. "I tried to imagine how I would feel if someone put a knife to my throat and a gun to my back and I wonder how many nightmares would follow."

Pan American Flight 281, which had 103 passengers and crew, was traveling from New York's Kennedy Airport to Puerto Rico on Nov. 24, 1968 when Pena Soltren rose from his seat and attacked the flight attendant before entering the cockpit. No one was hurt.

Speaking through a Spanish translater, Pena Soltren apologized for the hijacking and said he wished for forgiveness from the flight attendant "and all those people who felt threatened by my desperate attack."

"I'd like to express my remorse," he said. As he finished a statement that lasted several minutes, he began to cry and slumped into his seat. On a bench where his wife and daughter watched the proceedings, his daughter dabbed tears from her eyes.

The hijacking was carried out when Pena Soltren and at least two co-defendants brought pistols and large knives aboard in a baby's diaper bag. The pilots were forced to divert Puerto-Rico bound Pan American Flight 281 from Kennedy Airport to Havana.

His lawyer, James Neuman, said Pena Soltren had wanted to come back since at least 1979 because he was remorseful.

Two of the men were arrested in the mid-1970s and pleaded guilty to their roles in the skyjacking. One co-defendant ended up serving 7 years in prison while the other served 4 years.

Another man, who was not on the flight but was described as a leader of the Puerto Rican Movement for Liberation, was indicted in the hijacking. He was found not guilty on all charges.

Neuman argued that Pena Soltren should serve less time than the other two because he had a lesser role.

    15-Year Sentence for 1968 Hijacking, NYT, 4.1.2011,
    http://www.nytimes.com/aponline/2011/01/04/us/AP-US-1968-Airline-Hijacking.html