History > 2006 > USA > Federal Justice (V-VI)

Judge: Iran Has Some Blame in '96 Attack

December 22, 2006
By THE ASSOCIATED PRESS
The New York Times
Filed at 12:19 p.m. ET

WASHINGTON (AP) -- The Iranian government financed a 1996 terrorist attack that killed 19 Americans in Saudi Arabia and must pay $254 million to the victims' families, a federal judge ruled Friday.

The ruling by U.S. District Judge Royce C. Lamberth allows families of the victims of the Khobar Towers bombing to seek their compensation from assets that have been seized from the conservative Islamic regime in Tehran.

On June 25, 1996, a truck bomb exploded in a military housing area known as the Khobar Towers dormitory near Dhahran. U.S. authorities have long alleged that the bombing was carried out by a Saudi wing of the militant group Hezbollah, which receives support from Iran and Syria.

Though Lamberth has previously ruled that a survivor of the blast could seek payment from Iran, Friday's ruling was the first time Tehran has been blamed for the deaths of the Americans in the bombing.

''The defendants also provided money, training and travel documents to Saudi Hezbollah members in order to facilitate the attacks,'' Lamberth wrote. ''Moreover, the sheer gravity and nature of the attack demonstrate the defendants' unlawful intent to inflict severe emotional distress upon the American servicemen as well as their close relatives.''

The lawsuit was brought by the families of 17 of the 19 people killed in the attack. Iran never responded to the lawsuit, did not send an attorney to appear in the case and isn't expected to pay the award.

But the family members can seek payment from seized Iranian accounts. The Iran-U.S. Claims Tribunal, which arbitrated such issues, has long been closed to new claims so the families likely would have to seek payment through foreign courts such as Italy that have seized Iranian assets.

Thaddeus C. Fennig of Wisconsin, whose son was killed in the explosion, was pleased by the opinion.

''It shows this is not forgotten,'' Fennig said. ''Once in a while, for some reason or another, this comes up with people and many of them don't even remember it anymore.''

Lamberth relied heavily on testimony by former FBI Director Louis Freeh, who investigated the bombings.

Two Iranian government security agencies and senior members of the Iranian government itself provided funding, training and logistical help to terrorists who carried out the attack on a dormitory that housed U.S. Air Force pilots and staff in Saudi Arabia, Freeh testified.

    Judge: Iran Has Some Blame in '96 Attack, NYT, 22.12.2006, http://www.nytimes.com/aponline/us/AP-Terrorist-Bombing-Lawsuit.html

Court: Sentence Too Light in Abuse Case

December 19, 2006
By THE ASSOCIATED PRESS
Filed at 12:10 p.m. ET
The New York Times

ST. LOUIS (AP) -- A federal appeals court has thrown out the 10-year prison sentence of a woman who rented her 9-year-old daughter to an Illinois pedophile more than 200 times, saying that punishment was too lenient.

The woman often held the girl down in their home while Joe J. Champion of Granite City, Ill., molested her, according to court documents. Champion typically paid the mother $20.

Champion pleaded guilty and was sentenced to 15 years in prison.

The woman, convicted in 2003 of aggravated sexual abuse and conspiring with Champion to help him molest the girl, was sentenced to 17 1/2 years in prison -- the low end provided under sentencing guidelines.

She appealed, and a three-judge panel of the 8th U.S. Court of Appeals in 2005 sent the case back to U.S. District Judge Charles A. Shaw, saying he might have given her a lighter sentence had he known he wasn't bound by the guidelines.

Shaw then sentenced the woman to 10 years, saying that mental problems and drug addiction had influenced her behavior. The judge also noted that she'd taken parenting classes and made other efforts to rehabilitate herself while in prison.

Prosecutors appealed that sentence, claiming it was too light and the judge's reasoning was flawed. Another panel of the appeals court agreed on Monday, calling the case ''no less than horrifying.''

Kevin Schriener, the woman's attorney, said he would ask for a rehearing of the appeal.

    Court: Sentence Too Light in Abuse Case, NYT, 19.12.2006, http://www.nytimes.com/aponline/us/AP-Daughter-Molested-Sentence.html

Prosecutors Drop A.C.L.U. Subpoena in Document Fight

December 19, 2006
The New York Times
By ADAM LIPTAK

Federal prosecutors in New York yesterday withdrew a subpoena to the American Civil Liberties Union that had sought to retrieve all copies of a classified document.

In an opaque and defensive four-page letter to the judge in the case, the prosecutors said they were acting “in light of changed circumstances” and their determination that “the grand jury can obtain the evidence necessary to its investigation from other sources.”

Another factor may have played a role. A transcript of a closed hearing in the case that was unsealed yesterday suggested the government was going to lose.

Anthony D. Romero, the A.C.L.U.’s executive director, sounded jubilant in describing the development. “The government blinked in this standoff,” Mr. Romero said. The subpoena was unusual in that it sought not only to gather evidence but also to confiscate all tangible traces of the information in the document, apparently with the goal of preventing its distribution.

The document itself, declassified Friday and released by the A.C.L.U. yesterday, was not obviously confidential. An “information paper” dated Dec. 20, 2005, it was marked “secret” at the top and bottom of each of its four pages. The A.C.L.U. said it received the document in an unsolicited e-mail message in October.

The document collected a number of policies concerning photographs of enemy prisoners of war. Journalists, the document said, “are generally permitted, and to some extent even encouraged, to photograph” prisoners “from point-of-capture throughout the entire detainment process,” though they are discouraged from showing recognizable faces.

The document was dated almost two years after photographs of abuse at the Abu Ghraib prison in Iraq were first made public and during the debate over the Detainee Treatment Act, which included an amendment introduced by Senator John McCain prohibiting the cruel, inhumane or degrading treatment of detainees. President Bush signed the bill 10 days later.

A lawyer for the A.C.L.U. said that the document was potentially embarrassing, but that its release hardly endangered the national defense.

“If you read between the lines,” said the lawyer, Charles S. Sims, a First Amendment specialist at Proskauer Rose, “what it really says is that we want to exploit group photos of detainees.” The implicit instruction in the document, he said, was this: “If pictures of detainees can help sell the war, go for it.”

The effort to retrieve all copies of the document was a novel and, according to many legal experts, improper use of a grand jury subpoena. The subpoena cited a provision of the espionage laws that requires people in possession of some sorts of national security information to return it to the government if asked. But the A.C.L.U. said that the document at issue did not qualify and that, in any event, a subpoena was the wrong way to enforce the law.

In a transcript of a closed hearing in the case on Dec. 11 that was unsealed yesterday, Judge Jed S. Rakoff of Federal District Court in Manhattan seemed to indicate grave reservations about the tactic.

“What’s the authority for saying that a subpoenaed party can’t keep a copy of any document that they produced to the grand jury?” Judge Rakoff asked Jennifer G. Rodgers, an assistant United States attorney. Ms. Rodgers did not provide a direct answer, and yesterday’s letter withdrawing the subpoena did not address the question.

Later in the hearing, Judge Rakoff compared the situation to the Nixon administration’s effort to stop The New York Times and The Washington Post from publishing a secret history of the Vietnam War.

“There seems to be a huge difference,” Judge Rakoff said, “between investigating a wrongful leak of a classified document and demanding back all copies of it, and I’m old enough to remember a case called the Pentagon Papers.”

In yesterday’s letter, Ms. Rodgers suggested that the A.C.L.U. had set up the government, creating a fight that could have been resolved informally.

“The government has attempted to pursue its investigation and its request for the document at issue in as amicable, cooperative and unobtrusive a manner as possible,” she wrote. The A.C.L.U. filed a motion to quash the subpoena, she wrote, even though “the matter might be something the parties could negotiate without litigation, which always remained the government’s strong preference.”

In an interview, Mr. Sims said of Ms. Rodgers’s letter, “Virtually every factoid in that presentation is entirely false.”

Judge Rakoff, too, in last week’s argument, appeared unconvinced by the government’s contention that it thought the matter could have been resolved short of litigation.

“It’s not easy to believe,” Judge Rakoff said, “that the A.C.L.U., despite its history, would be cooperative. Well, hope springs eternal.”

Mr. Romero, the A.C.L.U.’s executive director, said the case would have a lasting impact. “It certainly helps the press and whistle-blowers to resist the strong-arm efforts of the government,” he said.

    Prosecutors Drop A.C.L.U. Subpoena in Document Fight, NYT, 19.12.2006, http://www.nytimes.com/2006/12/19/us/19leak.html

Anna Nicole Smith in San Francisco Court

December 15, 2006
By THE ASSOCIATED PRESS
Filed at 4:28 p.m. ET
The New York Times

SAN FRANCISCO (AP) -- Anna Nicole Smith arrived Friday at a federal courthouse in San Francisco to continue her legal battle over her late husband's fortunes.

At issue is the will of oil tycoon J. Howard Marshall III, which did not include Smith. She has argued he intended to provide for her through a special trust.

David Madden, a spokesman for the court, said Smith was at the building, which houses the 9th U.S. Circuit Court of Appeals, for a mediation hearing. Calls to lawyers weren't immediately returned.

The case made its way all the way to the U.S. Supreme Court, which revived the former Playboy playmate's pursuit of her late husband's estate by ruling she deserved another day in court.

Smith initially won a $474 million judgment, which was cut to about $89 million and eventually reduced to zero before the Supreme Court stepped in.

Marshall died in 1995 at age 90, a year after they married. Smith was 26 when they wed.

The U.S. Supreme Court said in May that only federal courts in California could deal with her case despite a Texas state court ruling that Marshall's youngest son was sole heir to the estate.

Smith's arrival at the downtown courthouse, wearing a black dress and sunglasses, marked the first time she left the Bahamas since the death of her son, Daniel, and the birth of her daughter, Dannielynn Hope Marshall Stern, in September.

    Anna Nicole Smith in San Francisco Court, NYT, 15.12.2006, http://www.nytimes.com/aponline/arts/AP-People-Anna-Nicole-Smith.html

Judge Chastises FEMA as Botching Katrina Housing Program

December 14, 2006
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON, Dec. 13 (AP) — A federal judge on Wednesday called the Bush administration’s handling of a Hurricane Katrina housing program “a legal disaster” and ordered officials to explain a computer system that cannot count evacuees with precision or explain why they were denied aid.

The judge, Richard J. Leon of Federal District Court, ruled last month that the Federal Emergency Management Agency had violated evacuees’ constitutional rights by eliminating their housing payments without notice. On Wednesday, he admonished the government for not moving fast enough to restart the program for 3,600 to 5,500 storm victims.

“Let me make this clear,” Judge Leon told Michael Sitcov, a lawyer for the government. “Tell FEMA that I’m expecting them to get going on this. Like, immediately.”

Judge Leon ruled that the agency last spring and summer had mishandled the transition from a short-term housing program to a longer-term program. Instead of explaining why financing was being cut, the agency provided only computer-generated and sometimes conflicting program codes, Judge Leon said.

He ordered agency officials to explain those decisions so that thousands of evacuees could understand the reasoning and decide whether to appeal.

“I’m not looking for a doctoral dissertation,” Judge Leon said. “I’m looking for a couple of paragraphs in plain English.”

Mr. Sitcov said that FEMA’s computer system could not do what the judge wanted. The eight-year-old system is set up only to produce program codes, he said. Mr. Sitcov also said the program was unable to determine for certain how many evacuees in Texas were covered by Judge Leon’s order or how many people had appealed the denial of their aid.

“It’s not as adept at doing these kinds of machinations,” said Mr. Sitcov, who said the best estimate of evacuees covered by the order was 5,479.

Judge Leon appeared bewildered, and ordered agency officials to testify Monday about the program. He said 10 employees, working overtime and on weekends, could translate program codes into 5,000 understandable letters in two weeks, nearly the amount of time that has passed since his initial ruling.

“This is a legal disaster,” Judge Leon said. “People’s rights are being denied. I don’t want us to get so mired in the minutiae and the law while, in the meantime, people who need help are not getting help.”

The agency has appealed Judge Leon’s initial order and is hoping a higher court will block its enforcement until the appeal plays out. That ruling will probably not come before next week, and Judge Leon said he wanted the agency to start working on the problem immediately.

“Two weeks have been lost, and I don’t want another day to be lost,” he said. “We’ve got to get moving.”

Mr. Sitcov said the agency could not comply with the order to restart the housing program because the agreements to reimburse Texas cities for rental payments had expired. Judge Leon said he was sure local governments would be willing to make those same agreements again and said he might order Texas officials to testify Monday.

Judge Leon also scheduled a telephone conference for Friday between FEMA and the Association of Community Organizations for Reform Now, which brought the lawsuit on behalf of hurricane victims.

    Judge Chastises FEMA as Botching Katrina Housing Program, NYT, 14.12.2006, http://www.nytimes.com/2006/12/14/washington/14fema.html

U.S. Subpoena Is Seen as Bid to Stop Leaks

December 14, 2006
The New York Times
By ADAM LIPTAK

Federal prosecutors are trying to force the American Civil Liberties Union to turn over copies of a classified document it received from a source, using what legal experts called a new extension of the Bush administration’s efforts to protect national-security secrets.

The novelty in the government’s approach is in its broad use of a grand jury subpoena, which is typically a way to gather evidence, rather than to confiscate all traces of it. But the subpoena issued to the A.C.L.U. seeks “any and all copies” of a document e-mailed to it unsolicited in October, indicating that the government also wants to prevent further dissemination of the information in the document.

The subpoena was revealed in court papers unsealed in federal court in Manhattan yesterday. The subject of the grand jury’s investigation is not known, but the A.C.L.U. said that it had been told it was not a target of the investigation.

The subpoena, however, raised the possibility that the government had found a new tool to stop the dissemination of secrets, one that could avoid the all but absolute constitutional prohibition on prior restraints on publication.

The disputed document, according to the A.C.L.U., is three-and-a-half pages long and unremarkable, and its disclosure would be only mildly embarrassing to the government. It added that the document “has nothing to do with national defense.”

“The government may be wanting to have its cake and eat it, too,” said Rodney A. Smolla, the dean of the University of Richmond’s law school. “It may want to present this to the court as not carrying heavy First Amendment implications. But to the extent the government wants to prevent the A.C.L.U. from disclosing the content of the document by virtue of this subpoena, it is a prior restraint.”

John C. Eastman, a law professor at Chapman University, disagreed, saying that the subpoena was unusual but not improper and a sign of a moderate approach to a significant problem.

“Assuming it’s properly classified,” Professor Eastman said of the document, “I actually think the government is bending over backwards to accommodate the A.C.L.U. rather than pulling the trigger in prosecuting them.”

“I’m not troubled by the fact that when we’re dealing with classified documents there may be action taken to retrieve them,” he added.

The A.C.L.U. said the subpoena was an effort to chill speech about the Bush administration. “The government is involved in a very conscious effort to suppress its critics,” said Anthony D. Romero, the A.C.L.U.’s executive director.

Lauren McDonough, a spokeswoman for Michael J. Garcia, the United States attorney in Manhattan, declined to comment beyond acknowledging the A.C.L.U.’s filing.

In the past, the government has fired and prosecuted government officials who provided classified information to people not authorized to have it. It has also tried to force reporters and others to identify the government officials who leaked to them.

But the Supreme Court has drawn the line at efforts to restrain or punish the dissemination of truthful information about matters of public concern.

The Bush administration has been particularly vigilant in trying to keep its secrets. It has threatened, for instance, to prosecute reporters for publishing classified information.

The A.C.L.U.’s lawyers said in court papers filed Monday that such subpoenas, if upheld by the court, would pose a direct threat to journalists.

“Many of the most important news articles of the past year (such as those concerning N.S.A. eavesdropping, rendition of foreign prisoners of our nation to other nations, Defense Secretary Rumsfeld’s views on the deteriorating situation in Iraq, National Security Adviser Hadley’s assessment of Iraqi Prime Minister Maliki, and the report on the Iraq insurgency’s funding sources) have been based on classified documents leaked to reporters,” the group’s motion said.

Those articles, the motion continued, “could not be prepared and published as they have been were the government allowed to use subpoenas to confiscate ‘any and all’ copies of classified documents it learns are in the hands journalists and other public advocates and critics.”

Experts in First Amendment law said that political advocacy groups like the A.C.L.U. are entitled to the same constitutional free-speech protections that journalists receive.

“In this case,” said Floyd Abrams, a First Amendment lawyer, “the A.C.L.U.’s function is presslike” in that it collects, analyzes and disseminates information about the government.

In its motion to quash the subpoena, the A.C.L.U. said, “The document is nothing more than a policy, promulgated in December 2005.”

It added, “The document contains no information concerning matters such as troop movements, communications methods, intelligence sources or the like.”

The group’s lawyers have agreed for now not to disclose the contents of the document, but hyperlinks to the papers posted yesterday on its Web site include the word “torture.”

The identity of the source is known to both the A.C.L.U. and the government, the organization’s lawyers said. The A.C.L.U. declined to name the source.

In November, Jennifer G. Rodgers, a federal prosecutor, called the A.C.L.U. and demanded the return of the document and all copies, according to court documents. She knew the date on which it had been e-mailed to the group, court papers say.

A subpoena followed. The A.C.L.U. moved to quash it, and Judge Jed S. Rakoff of the Federal District Court in Manhattan yesterday ordered the unsealing of the organization’s filings and the subpoena itself. The judge will rule on the motion to quash shortly.

The Espionage Act makes it a crime for people who have unauthorized possession of some kinds of national security information to receive, retain, disseminate or refuse to turn it over to the government when asked. But A.C.L.U. lawyers say the document does not meet the statute’s definition and that, in any event, a subpoena is an improper way to enforce the law.

In its filing, the A.C.L.U. also argues that the government is misusing the grand jury that issued the subpoena.

“Despite extensive research,” the motion to quash says, “we have been unable to find a single reported decision even mentioning, much less enforcing, a subpoena purporting to preclude the subpoenaed party from retaining a copy of subpoenaed documents. There is no possible argument that there is an investigative purpose to such a subpoena.”

    U.S. Subpoena Is Seen as Bid to Stop Leaks, NYT, 14.12.2006, http://www.nytimes.com/2006/12/14/washington/14leak.html?hp&ex=1166158800&en=e86e0c8696c0929e&ei=5094&partner=homepage

U.S. Moves to Restrain Prosecutors

December 13, 2006
The New York Times
By LYNNLEY BROWNING

The Justice Department placed new restraints on federal prosecutors conducting corporate investigations yesterday, easing tactics adopted in the wake of the Enron collapse.

The changes were outlined in a memorandum written by Paul J. McNulty, the deputy attorney general. Under the revisions, federal prosecutors will no longer have blanket authority to ask routinely that a company under investigation waive the confidentiality of its legal communications or risk being indicted. Instead, they will need written approval for waivers from the deputy attorney general, and can make such requests only rarely.

The new guidelines will help companies defend themselves by “making it easier for corporations to say no, and not having to worry about that decision being held against them,” said Andrew Weissmann, who headed the Justice Department’s Enron task force and is now in private practice.

Another substantial change introduced yesterday prohibits prosecutors from considering, when weighing whether to seek the indictment of a company, whether it is paying the legal fees of an employee caught up in the inquiry.

The revised guidelines follow criticism from legal and business associations and from federal judges, senators and former top Justice Department officials that the tactics used in recent years against companies like the drug maker Bristol-Myers Squibb and the accounting firm KPMG were coercive and unconstitutional.

“I don’t know if there are going to be more or less prosecutions,” said Stephen J. Bronis, executive director of the white-collar crime committee of the American Bar Association, “but there are hopefully going to be less abusive ones.”

Frederick P. Hafetz, a criminal defense lawyer, said yesterday that the courts were unlikely to view the new guidelines as a basis for appeal by individuals or companies convicted under the old ones.

Mr. McNulty, the deputy attorney general, said in a brief interview that the revisions “do not create any legal rights.”

Still, they are being made at a time when companies are seeking — and receiving — greater protection from criminal and regulatory scrutiny.

Last month, the Committee on Capital Markets Regulation, an independent group formed with the blessing of Treasury Secretary Henry M. Paulson Jr., called for a sweeping overhaul of securities market rules, including greater protection of companies, their directors and employees, and their outside auditors from regulators, investigators and civil suits.

At the same time, there are growing calls to scale back the Sarbanes-Oxley Act of 2002, the legislation aimed at increasing corporate accountability in the aftermath of the Enron collapse.

Mr. McNulty’s document substantially revises and places curbs on guidelines that were written in January 2003 amid a wave of corporate scandals at companies including WorldCom and Adelphia Communications. The Justice Department had argued that the guidelines adopted then, in a document known as the Thompson memorandum, were essential in helping it grapple with the surge in corporate wrongdoing.

In recent years, federal prosecutors have won more than 1,100 convictions in cases of corporate fraud.

The 2003 memorandum, written by Larry D. Thompson, then the deputy attorney general and now general counsel of PepsiCo, laid out nine guidelines that prosecutors must follow in considering whether to seek corporate indictments. The guidelines were intended to reward companies and employees that cooperated with investigators and penalize those that did not.

Those standards instructed federal prosecutors to reward companies or employees who turned over confidential legal communications, and to issue black marks against those who refused. The black mark could then be used as a basis to seek an indictment.

Critics of the Thompson memorandum complained that such waivers were uniformly being requested by prosecutors, with corporate officials deciding that even if their companies were not guilty, they had no choice to comply, given the possibility of indictment. An indictment can put a company out of business, as it did the accounting firm Arthur Andersen in 2002.

Calling legal confidentiality, or attorney-client privilege, “one of the oldest and most sacrosanct privileges under U.S. law,” the McNulty memorandum says that prosecutors may now request waivers only “when there is a legitimate need for the privileged information to fulfill their law enforcement obligations.”

The prosecutors should first try to obtain less sensitive factual information before requesting privileged material, the new memorandum says.

In a conference call yesterday, a senior Justice Department official said the original guidelines had been misunderstood by critics to mean that prosecutors could and should routinely ask for the disclosure of legal secrets. The official added later, though, that the guidelines had been revised because “perception is reality.”

Criminal defense lawyers and former attorneys general had argued that the Justice Department was out of touch with how frequently United States attorneys across 94 districts sought waivers. The official said the department undertook the changes because critics told it that companies were limiting their legal communications with lawyers out of fear that they might later be coerced by prosecutors.

Such limitations were inhibiting companies from rooting out wrongdoing, the official said.

But despite this tightening of the letter of the rules, companies under scrutiny may decide that the spirit of the new guidelines still tacitly encourages cooperation with prosecutors.

“The way the world really works is you have a prosecutor who says ‘I can’t ask you to waive privilege or not pay fees,’ ” said Robert S. Bennett, a prominent white-collar defense lawyer in New York who represented KPMG. “But the message to you, the company, might be ‘Well, if we do that, we might just score some brownie points.’ ”

It was the criminal investigation of former employees of KPMG over questionable tax shelters that focused attention on the Thompson memorandum, and, in particular, the guideline urging companies to cut off legal fees to employees caught up in investigations.

The judge overseeing that KPMG case, Lewis A. Kaplan, of Federal District Court in Manhattan, ruled this summer that prosecutors violated the constitutional rights of the former employees when they pressed KPMG to cut off the fees as the firm itself faced potential indictment.

KPMG did cut off the fees, and later narrowly averted indictment by reaching a $456 million deferred-prosecution agreement with the Justice Department. The department, which is still appealing Judge Kaplan’s ruling, declined yesterday to talk about the KPMG case.

Among critics of the old prosecutorial guidelines, not all were excited about the new ones.

Stephanie Martz, director of the White Collar Crime Project at the National Association of Criminal Defense Lawyers, said yesterday that her group would still seek the passage of legislation barring all disclosure of confidential communications and any prosecutorial credit to companies that did disclose. (Senator Arlen Specter, Republican of Pennsylvania, the outgoing Judiciary Committee chairman, said last week that he would reintroduce legislation in January that prohibited prosecutors from seeking or requesting waivers or the cutting off of legal fees.)

Ms. Martz said: “You should get credit for fully disclosing whatever is fully relevant, but you shouldn’t get bonus points for disclosing privileged stuff. Now we’re at the point where waiver requests are routine, and the only way we can try to put that genie back in the bottle is by not allowing corporations to get credit for granting it.”

    U.S. Moves to Restrain Prosecutors, NYT, 13.12.2006, http://www.nytimes.com/2006/12/13/business/13legal.html

Senate Passes Bill to Criminalize Pretexting

December 9, 2006
The New York Times
By BRAD STONE and MATT RICHTEL

The Senate passed legislation last night that would make it a federal crime to obtain a person’s telephone records without permission, an act known as pretexting.

The measure, which was approved by unanimous consent last night and is similar to a bill passed earlier in the House, imposes a fine of up to $250,000 and imprisonment of up to 10 years for duping telephone companies into divulging the calling records of private individuals. The penalties can go up under special circumstances, like cases involving domestic abuse.

The support for the legislation comes in the aftermath of the spying scandal at Hewlett-Packard, the computer giant. The company, eager to ferret out purported leaks to journalists from within its board, used private detective firms to retrieve phone records of directors, managers and journalists.

Companies convicted under the Senate legislation face fines of up to $500,000.

The legislation includes penalties and a prison sentence of up to 10 years for individuals who sell or buy phone records knowing the lists were obtained through deceptive means. Passage, which came just days before the conclusion of the Republican-led Congress, is a victory for privacy advocates and regular phone users concerned about the confidentiality of their records.

“The fraudulent acquisition of phone records is now clearly and unequivocally illegal,” said Jon Leibowitz, a commissioner at the Federal Trade Commission, an agency charged with combating unfair and deceptive business practices, including pretexting.

“Just having the statute on the books will help reduce the number of bad actors out there,” Mr. Leibowitz said.

But some privacy advocates say the legislation does not go far enough.

“Given the amount of attention Congress has given to this issue, we should have a better bill," said Marc Rotenberg, the executive director of the Electronic Privacy Information Center.

Mr. Rotenberg said he would like to see Congress force companies to protect their customers’ personal information. Mr. Rotenberg also expressed concern over an exemption in the legislation for law enforcement agencies that could allow them to hire private detectives or others to obtain individuals’ calling records.

The bill passed the House on a unanimous 409-0 vote in April. But it remained stalled in the Senate Judiciary Committee for months, largely because of competition with a more complex pretexting bill in the Senate Commerce Committee, which would have required phone companies to ensure that personal records were being given only to the appropriate person.

After the Hewlett-Packard pretexting scandal made national headlines, House Republicans sent a letter to the Senate majority leader, Bill Frist, invoking the saga and urging prompt action on the stronger bill pending in the judiciary committee.

Consumer advocates plan to propose broader legislation in a session of Congress next year that would also make it illegal to try to fraudulently obtain other kinds of personal information, like utility, TV and Internet service provider records.

At Hewlett-Packard, regulatory filings this summer revealed that the company chairwoman, Patricia C. Dunn, had authorized a broad investigation into the source of embarrassing boardroom leaks to the news media. On Thursday, the company said it would pay $14.5 million to settle a civil lawsuit brought by the California attorney general, Bill Lockyer.

Detectives hired by the company employed pretexting techniques to obtain the phone records of company board members, employees and at least nine journalists who covered the company.

Ms. Dunn resigned from the company in September and in October was charged by Mr. Lockyer with identity theft and conspiracy. Privacy advocates say that even before the new law was passed, the attention the case was getting was pushing pretexters further underground.

Rob Douglas, who testified about pretexting on Capitol Hill and runs the Web site PrivacyToday.com, says the major test will be whether federal prosecutors back up the bill with aggressive enforcement. “If the Department of Justice doesn’t take the issue seriously and prosecute individuals,” he said, “it will be taken by the underground information community that they have carte blanche to continue the practice.”

    Senate Passes Bill to Criminalize Pretexting, NYT, 9.12.2006, http://www.nytimes.com/2006/12/09/business/09pretext.html

Former Detainees Argue for Right to Sue Rumsfeld Over Torture

December 9, 2006
The New York Times
By PAUL von ZIELBAUER

WASHINGTON, Dec. 8 — Lawyers for former detainees in Iraq and Afghanistan argued in federal court on Friday that Defense Secretary Donald H. Rumsfeld was personally responsible, and thus legally liable, for acts of torture inflicted on their clients by American military interrogators.

The nine plaintiffs, Iraqi and Afghan men held at American-run prisons, endured an array of physical and psychological abuse during their confinements in 2003 and 2004, including beatings, mock executions and painful physical restraints, their lawyers said in court papers. All were eventually released without being charged with crimes.

The hearing Friday, before Chief Judge Thomas F. Hogan in Federal District Court in Washington, was the first time a federal court had considered whether top administration officials could be liable for the torture of detainees in Iraq and Afghanistan.

But the hearing concerned only questions of jurisdiction and did not delve into whether Mr. Rumsfeld, because he personally approved certain interrogation techniques in 2002 like the use of “stress positions,” was legally responsible for specific acts of torture committed in overseas military prisons.

Instead, lawyers from each side argued over whether noncitizens confined in prisons outside the United States had legal standing to sue Mr. Rumsfeld and other American military officials for constitutional violations.

The suit, filed on behalf of the nine plaintiffs last year by the American Civil Liberties Union and Human Rights First, also names as defendants three officials responsible for running military prisons in Iraq and Afghanistan: Lt. Gen. Ricardo S. Sanchez, the former top commander in Iraq; Col. Thomas M. Pappas, who was the top military intelligence officer at Abu Ghraib, the American-run prison in Iraq; and a former brigadier general, Col. Janis L. Karpinski, who before her demotion to colonel was the military police commander at Abu Ghraib. She was relieved of her command and demoted after abuses at Abu Ghraib came to light.

During the two-and-a-half-hour hearing, Judge Hogan took turns questioning the lawyers. He repeatedly asked lawyers for the former detainees to cite precedents in law that would allow foreigners to sue American officials for what in the United States would be violations of their civil rights.

“How can this work, this theory that nonresident aliens have a right to sue to prevent being tortured?” Judge Hogan asked Lucas Guttentag, the plaintiffs’ lead lawyer in the case. What would prevent Osama bin Laden, the judge asked Mr. Guttentag, from taking President Bush to court for authorizing the military to kill him?

Mr. Guttentag, citing several Supreme Court decisions, said that American laws prohibiting torture should apply to foreign civilians under exclusively American control and jurisdiction overseas. He also noted that in Iraq, American military personnel were immune from prosecution under Iraqi laws. “Iraqi law cannot govern, and unless the United States does, nothing else applies.”

Rick Beckner, a deputy assistant attorney general representing Mr. Rumsfeld, argued that foreigners held in an American-run prison in foreign territory had no legal standing to sue. “There’s never been any finding that the Constitution applies to these plaintiffs,” he told Judge Hogan.

Judge Hogan, clearly skeptical of the plaintiffs’ attempt to open federal officials to legal liability for actions by troops overseas, said he hoped to make a decision quickly to dismiss the case or allow some or all claims to proceed.

But in his closing remarks, the judge also acknowledged being disturbed by the allegations of detainee abuse and torture. “It is unfortunate, to say the least, that there has to be an argument” about whether the American military tortures foreign citizens.

    Former Detainees Argue for Right to Sue Rumsfeld Over Torture, NYT, 9.12.2006, http://www.nytimes.com/2006/12/09/washington/09torture.html

Judge Upholds Policyholders’ Katrina Claims

November 29, 2006
The New York Times
By JOSEPH B. TREASTER

A federal judge offered a glimmer of hope to the tens of thousands of people whose homes and businesses in New Orleans were flooded in Hurricane Katrina, ruling that insurance companies should pay for the widespread water damage.

If upheld, the ruling late Monday by Judge Stanwood R. Duval Jr. of Federal District Court in New Orleans could cost the insurers billions of dollars more than the $41 billion they have already paid to storm victims. But the insurers insist that their policies do not cover flooding, and they said yesterday that they expected an appeals court to reverse the decision. A final ruling could take months, if not years.

Judge Duval’s decision centered on the distinction between flooding caused by high winds and heavy rains and flooding caused by human error. Much of the destruction in New Orleans in the wake of Hurricane Katrina in August 2005 was a result of levee failures.

He said the language in the insurance policies on flood coverage was ambiguous because it did not “clearly exclude man-made” flood disasters. Since the insurers provided the wording for the policies, he said he felt “constrained to interpret it against the insurers.”

He made an exception for State Farm and the Hartford Insurance Company, whose policies do not provide coverage for flooding “regardless of cause.”

Lawyers for more than a dozen homeowners and Xavier University, which had business insurance, hailed Judge Duval’s decision as a victory.

“This is a major breakthrough,” said John N. Ellison, a member of the team of lawyers representing storm victims and a partner at Anderson Kill & Olick in New York. “Our hope is that this ruling may help get the redevelopment of the houses and the city going so the city can come back to life.”

The ruling was the first by a court in Louisiana on damage from Hurricane Katrina. It ran counter to rulings by a federal judge in Mississippi that supported the industry’s contention that most property insurance policies do not provide coverage for flooding.

But the judge in Mississippi, L. T. Senter of Federal District Court, disagreed with the insurers’ contention that any damage due to flooding nullified the coverage. He cleared the way for trials early next year to determine how much damage to flooded homes and businesses resulted from high winds.

The rulings differ, in part, because the nature of the flooding was different. In Mississippi, the storm drove water from the Gulf of Mexico ashore and wiped out tens of thousands of homes unprotected by artificial barriers. In New Orleans, flood waters breached some levees and poured into the city as the storm was moving away. The water lingered in parts of the city for weeks.

Mr. Ellison, the lawyer for the homeowners, said he believed that the New Orleans case would go to the United States Court of Appeals for the Fifth Circuit “on an expedited basis” and that deliberations could begin in the spring.

More than 200,000 homes and thousands of businesses were damaged or destroyed by the flooding in New Orleans. The insurers have refused to pay claims for water damage and the relatively small amounts that homeowners and businesses received for wind damage have been far from enough for most people to rebuild. The federal government has stepped in with promises of several billion dollars in assistance, but little of the money has reached the people who need it.

The insurers said that Judge Duval’s decision was contrary to decades of case law and state insurance regulation and would turn out to be a short-lived loss for their side.

“The judge reached the wrong conclusion,” said Robert P. Hartwig, the chief economist at the Insurance Information Institute, a trade group in New York. “The policies clearly exclude flood-related damage under any and all circumstances. We don’t believe the decision will be upheld.”

Randy J. Maniloff, a lawyer in Philadelphia who represents insurance companies, including several of those in the New Orleans lawsuit, said Judge Duval appeared to be overreaching to solve the social and economic problems caused by Hurricane Katrina.

“Here is a phenomenon for which there is no insurance, and the court isn’t going to allow that to exist,” Mr. Maniloff said.

“The court is finding who is in a better position to bear the loss, and it is coming out in favor of the individual, the policyholder,” he said. “This is an aberration.”

Judge Duval, who was appointed to the federal court by President Bill Clinton in 1994, said in an 85-page decision that the insurers could have made clear “that ‘flood’ means water damage caused by negligent acts or omissions.” But, he said, they “chose not to do so.”

Nearly a dozen insurance companies had sought dismissal of the lawsuits over flood losses. But Judge Duval ruled in favor of only two, State Farm, the largest home insurer in Louisiana, with about 20 percent of the market; and Hartford, a unit of the Hartford Financial Services Group, which has a much smaller share.

Judge Duval said he cleared the way for an immediate appeal because “there is a substantial ground for a difference of opinion.”

    Judge Upholds Policyholders’ Katrina Claims, NYT, 29.11.2006, http://www.nytimes.com/2006/11/29/business/29insure.html?hp&ex=1164862800&en=95f230c32692b2dd&ei=5094&partner=homepage

Man Mistakenly Abducted by C.I.A. Seeks Redress

November 29, 2006
The New York Times
By NEIL A. LEWIS

RICHMOND, Va., Nov. 28 — A lawyer for a German man who was abducted while on vacation in Macedonia and said he was tortured while in C.I.A. custody in Afghanistan urged a federal appeals court on Tuesday to reinstate his lawsuit against the agency, which had been dismissed for national security reasons.

In May, a federal trial judge threw out the suit brought by Khaled el-Masri, who said he was an innocent victim of the Central Intelligence Agency’s program of transferring terrorism suspects secretly to other countries for detention and interrogation. Judge T. S. Ellis III of Federal District Court in Alexandria said that although it appeared a great injustice might have been done to Mr. Masri, he was persuaded by the government that there was no way to even begin a trial without impermissibly disclosing state secrets.

Benjamin Wizner, a lawyer with the American Civil Liberties Union, told a three-judge appeals panel on Tuesday that the government’s position was absurd because what happened to Mr. Masri had hardly remained secret. He noted that the German government was openly investigating whether its officials had played a role in Mr. Masri’s ordeal, and numerous news accounts have quoted unidentified American officials as confirming what happened.

Mr. Wizner said the government had not plausibly explained how national security interests might be harmed by a trial. He said President Bush acknowledged the C.I.A.’s program, known as extraordinary rendition, this summer, and it is widely known that other governments have been involved. A trial would not disclose state secrets but would merely involve “confirmation of a fact the entire world already knows,” he said.

Gregory G. Katsas, a senior Justice Department lawyer, told the judges that courts must defer to the executive branch when it invokes the state secrets doctrine, which was first recognized by the Supreme Court in 1953.

Mr. Katsas said Porter J. Goss, who was the C.I.A. director when the suit was brought, filed a secret statement with the court outlining the agency’s case against a trial. Mr. Katsas said the statement provided a detailed account of how seemingly innocuous disclosures “will have a cascading effect that will have devastating consequences” for national security.

Mr. Masri sat stolidly in the first row of the courtroom during the 50-minute argument. A large man with graying hair cinched in a ponytail, he said in an interview later that he was infuriated with Judge Ellis’s view that there might be no remedy for the injustice apparently done to him.

Mr. Masri, who was born in Kuwait, was arrested in Macedonia on Dec. 31, 2003, and flown to a prison in Afghanistan, where he was held for five months. During his incarceration, he has said, he was shackled, beaten and injected with drugs.

On Tuesday, he said through an interpreter that he was kept in deplorable conditions “not fit for a human being at all.” Upon arrival in Afghanistan, he said, he was told that he was in a place where he had no right to recourse for what happened to him.

“I would like an explanation for what happened,” he told reporters. “I would like an apology.”

Mr. Wizner, his lawyer, said that although he believed Mr. Masri was entitled to financial compensation, he was not necessarily seeking anything beyond some official expression of remorse.

United States officials have been quoted anonymously in news reports as saying that Mr. Masri’s case was one of mistaken identity; intelligence authorities may have confused him with an operative for Al Qaeda with a similar name.

The officials said Mr. Masri was released in May 2004 on the orders of Secretary of State Condoleezza Rice, then the national security adviser, after she learned he had been mistakenly identified as a terrorism suspect. He was freed in Albania, where he was left to make his way home to Germany, which he likened to being treated “like a piece of luggage.”

Mr. Masri, who had earlier been denied permission to come to the United States to attend the hearing, said he has not been able to find a job since his return to Germany. “Both my Arab and German friends keep their distance,” he said.

On Wednesday, he is scheduled to meet with some Democrats on the Senate Judiciary Committee who are exploring the rendition program and the Bush administration’s increasingly frequent invocation of the state secrets doctrine to block lawsuits.

    Man Mistakenly Abducted by C.I.A. Seeks Redress, NYT, 29.11.2006, http://www.nytimes.com/2006/11/29/washington/29rendition.html?hp&ex=1164862800&en=1675f6bbece3eb05&ei=5094&partner=homepage

Judge strikes down part of Bush anti-terror order

Tue Nov 28, 2006 9:18 PM ET
Reuters
By Dan Whitcomb

LOS ANGELES (Reuters) - A federal judge in Los Angeles, who previously struck down sections of the Patriot Act, has ruled that provisions of an anti-terrorism order issued by President George W. Bush after September 11 are unconstitutional.

U.S. District Judge Audrey Collins found that part of the law, signed by Bush on September 23, 2001 and used to freeze the assets of terrorist organizations, violated the Constitution because it put no apparent limit on the president's powers to place groups on that list.

Ruling in a lawsuit brought against the Treasury Department in 2005 by the Center for Constitutional Rights, Collins also threw out a portion of Bush's order which applied the law to those who associate with the designated organizations.

"This law gave the president unfettered authority to create blacklists, an authority president Bush then used to empower the Secretary of the Treasury to impose guilt by association," said David Cole of the Washington-based Center for Constitutional Rights.

"The court's decision confirms that even in fighting terror, unchecked executive authority and trampling on fundamental freedoms is not a permissible option," he said in a statement

The 45-page decision, made public on Monday, came in response to petitions by both sides to throw out the lawsuit and rule in their favor. The judge allowed to stand part of the order that would penalize those providing services to groups on the list.

The lawsuit was brought on behalf of five organizations, including the Liberation Tigers of Tamil Elam, which wants to create a separate state for the Tamil people in Sri Lanka, and Partiya Karkeran Kurdistan, which represents Kurds in Turkey.

Both groups had been designated by the United States as foreign terrorist organizations.

In 2004 Collins struck down a section of the Patriot Act that prohibited lawyers from providing expert advice to groups suspected of having terrorist links.

    Judge strikes down part of Bush anti-terror order, R, 28.11.2006, http://today.reuters.com/news/articlenews.aspx?type=politicsNews&storyID=2006-11-29T021821Z_01_N28295799_RTRUKOC_0_US-USA-JUDGE-BUSH.xml&WTmodLoc=NewsArt-C2-NextArticle-1

Times Seeks to Bar Review of Phone Data

November 25, 2006
The New York Times
By ADAM LIPTAK

The New York Times asked the Supreme Court yesterday to bar a federal prosecutor from reviewing the phone records of two of its reporters. The records, lawyers for The Times said, would allow the government to learn the identities of many of the reporters’ confidential sources.

The case arose from a Chicago grand jury’s investigation into who told the two reporters, Judith Miller and Philip Shenon, about actions the government was planning to take in 2001 against two Islamic charities. The United States attorney in Chicago, Patrick J. Fitzgerald, sought the reporters’ records directly from their phone companies, and The Times filed suit to stop him.

In August, a divided three-judge panel of the federal appeals court in Manhattan ruled in favor of Mr. Fitzgerald, saying the reporters were not entitled to shield their sources. The needs of law enforcement, the majority said, outweighed any protections the reporters might have in the First Amendment or other areas of law.

Ms. Miller left the paper last year after spending 85 days in jail in connection with a separate leak investigation, also supervised by Mr. Fitzgerald.

The paper’s filing yesterday was a limited one, seeking an order from Justice Ruth Bader Ginsburg staying the appeals court decision until the Supreme Court has an opportunity to decide whether to hear the case. The deadline for seeking review of the appeals court’s decision is in January, but The Times said it would move faster.

In a letter filed in response to yesterday’s application, the Justice Department said it “desires to review the records in question as expeditiously as possible” but agreed not to do so until Wednesday. Yesterday afternoon, the court ordered the government to submit a formal response to the stay application by today at 4 p.m.

The press has been on a losing streak of late in the federal courts, with several decisions refusing to recognize protection for confidential sources. The Supreme Court has not weighed in on the question since 1972.

Floyd Abrams, a lawyer for The Times, said the case now before the court could give it an opportunity to clarify the law.

“If the government is permitted to proceed to scrutinize the telephone records of The New York Times and its journalists,” Mr. Abrams said, “it will be in a position to identify literally scores of confidential sources, thus imperiling both the ability of the press to gather the news and of the public to learn it.”

    Times Seeks to Bar Review of Phone Data, NYT, 25.11.2006, http://www.nytimes.com/2006/11/25/us/25paper.html

Judge: Federal lawsuits over Vioxx can't be combined into one class action

Updated 11/22/2006 6:15 PM ET
AP
USA Today

NEW ORLEANS (AP) — Thousands of federal lawsuits saying the drug Vioxx caused heart attacks and other conditions that killed or injured people cannot be pooled into one national class action, a judge ruled Wednesday.

U.S. District Court Judge Eldon Fallon, who was appointed to deal with pretrial matters for all federal suits involving Merck's (MRK) withdrawn painkiller, did not rule on the possibility of separate class-actions suits for each state and the District of Columbia.

The judge's reasoning in the rest of the ruling appears to support Merck's view that the cases must be looked at individually, said Ted Mayer, Hughes Hubbard and Reed, outside counsel for the drug company.

"We are pleased with the decision," said Kent Jarrell, a spokesman for Merck, which is based Whitehouse Station, N.J.

Merck has won six cases, three each in federal and various state district courts. A fourth state court victory was overturned and a retrial ordered. The company has lost one federal case and three in state courts.

Russ Herman, chairman of a committee of plaintiffs' lawyers, said he had expected the decision. "Federal jurisprudence currently tracks an industry theory that thousands of injured people should litigate individually in order to give a single wrongful manufacturer due process," he said.

Fallon's 25-page ruling rejected the plaintiffs' proposal to try all of the cases under New Jersey laws. They argued that the company should reasonably expect to follow the laws of the state where it is headquartered.

"While this is true, it is just as true that Merck, an international corporation providing its drugs to every state in the nation, should expect to abide by every jurisdiction's laws," Fallon wrote.

Because plaintiffs in other states couldn't reasonably expect their personal injury claims to be governed by New Jersey law, it makes more sense to apply the law of each plaintiff's home state to that plaintiff's claims, Fallon ruled.

"Each plaintiff's home jurisdiction has a stronger interest in deterring foreign corporations from personally injuring its citizens and ensuring that its citizens are compensated than New Jersey does in deterring its corporate citizens' wrongdoing," he wrote.

Herman said the plaintiffs' committee will ask Fallon to have one class-action suit on the single question of whether Vioxx, which was sold from late 1999 until September 2004, changed the cardiovascular system in ways that caused heart attacks.

Mayer said he doesn't think they'll get that, either. He said Fallon did more than rule that differences among state laws make it impractical to bring all of the cases. "He went beyond that and said, even if one state's law applied, because individual issues dominate, class certification would not be appropriate," Mayer said.

Fallon wrote he was "confident that common questions exist" in the many personal injury suits among the 7,000-plus federal lawsuits before him — something required for class actions.

But, he said, allegations that Merck failed to warn doctors adequately about the drug's alleged health risk, "necessarily turn on numerous individualized issues."

He wrote these issues include "the alleged injury; what Merck knew about the risks of the alleged injury when the patient was prescribed Vioxx; what Merck told physicians and consumers about those risks in the Vioxx label and other media, what the plaintiffs' physicians knew about the risks from other sources, and whether the plaintiffs' physicians would still have prescribed Vioxx had stronger warnings been given."

The ruling came two days after Fallon rejected class action claims brought by nine countries. Plaintiffs in England, South Africa, Poland, the Netherlands, Israel, Germany, Australia, New Zealand, and Canada should use their own legal systems, he said Monday night. He had made a similar ruling in August, against suits brought by people in France and Italy.

    Judge: Federal lawsuits over Vioxx can't be combined into one class action, UT, 22.11.2006, http://www.usatoday.com/money/industries/health/drugs/2006-11-22-vioxx_x.htm

A Somber Annual Meeting for Conservative Lawyers

November 19, 2006
The New York Times
By NEIL A. LEWIS

WASHINGTON, Nov. 18 — For the last 20 years, the Federalist Society, a conclave of conservative lawyers, has steadily flourished, even when there was a Democrat in the White House. But the recent election results, along with increased partisan bitterness over judicial nominations, may have given an unaccustomed jolt to members of the group, whose annual convention concluded on Saturday.

The event has usually been one in which many society members could look at their reflections in the hallway mirrors of the Mayflower Hotel here and, with only a little imagination, see themselves wearing a judge’s robes.

No group has been more influential in sending up candidates for the federal courts; when President Bush took office in 2001, the society had recommended to him the majority of his first slate of 11 federal appeals court judges. His appointments to the Supreme Court, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., were both active in the Federalist Society and enjoyed strong support from it.

But the wheel of judicial fortune has turned. The Senate Democrats who will be seated in January will constitute a majority, and they say they are determined to block any of Mr. Bush’s judicial nominees whom they deem too conservative.

Since that might include almost all of his nominees, there was a little less jauntiness as the conservative lawyers gathered this year.

How glum was the mood? “Well, I guess I’ve just about climbed back from the ledge — the one I was about to jump off of,” said Daniel McLaughlin, a New York lawyer who attended the convention. Mr. McLaughlin said he could not stop fretting over who would be confirmed to the federal bench in the next two years.

John C. Yoo, a law professor at the University of California, Berkeley, who was a senior Justice Department official, said the mood at the convention was notably grim because of the likelihood that Democrats would block any identifiable conservatives from the federal appeals courts or the Supreme Court.

That is probably an accurate assessment. Senator Charles E. Schumer, a New York Democrat who has been outspoken in opposing Mr. Bush’s nominees, said Friday that the election results “dramatically changed everything.”

“The days when the Federalist Society would get just about anything it wanted are over,” Mr. Schumer said.

On Friday morning, Senator Arlen Specter of Pennsylvania, the departing chairman of the Judiciary Committee, offered a pep talk to the subdued conservatives. “There’ll be another election,” Mr. Specter said, and Democrats would have to answer then for any nominees they obstructed.

The Federalist Society was founded in 1981 by a handful of conservative law students who thought of themselves as an oppressed minority. They complained that they were victims of a kind of ideological neglect on campus: conservative law students were not taken seriously, they said, or worse, were hissed at in class when they expressed their views.

But with its single-mindedness about getting conservative judges on the federal bench and its success working within Republican Party politics, the group became deeply envied by its liberal counterparts. Members found it a valuable networking tool on two fronts. It provided a matchmaking service between conservative judges and recent law school graduates eager to gain a prestigious clerkship. And for older lawyers, a speech before the society, usually denouncing some liberal notion, was a way to be noticed by its judicial scouting machine.

Eugene B. Meyer, the society’s president, said he understood that there might now be some short-term discouragement among members. “But I suspect they will get even more enthusiastic afterwards,” Mr. Meyer said.

The group thinks of itself largely as a place to debate serious legal ideas, he said, and while “it might be harder to get the types of things we want discussed, heard and undertaken, we’ll be largely unaffected in the long term.”

Mr. Meyer said the Federalist Society would adapt to the vicissitudes of politics and might not, for example, expect such a star-studded roster of Republican speakers and honorees. (This convention featured appearances by Justices Alito and Antonin Scalia and Vice President Dick Cheney).

The group is still growing, with the greatest enthusiasm at its law school chapters.

Professor Yoo said that the widespread dismay at the gathering was only over the prospect of judicial nominations, and that it did not signal any lessening of interest in conservative ideas. “The Bush effort to remake the judiciary has crested,” he said. “We all will have to play defense for a while on this.”

But as to the contentious issue of the reach of presidential authority, the Federalist Society membership is not united. Professor Yoo, who wrote several memorandums while in the Justice Department arguing that the president’s power is expanded during a war on terrorism, represents one wing of the conservatives, while many in the group are smaller-government libertarians.

At a spirited panel discussion Friday with Professor Yoo, one of the revered figures of the group, Prof. Richard Epstein of the University of Chicago Law School, branded as dangerous the notion of expanded powers for the executive branch because of the continuing fight against terrorism.

“This is an issue which splits this group right down the middle,” Professor Epstein said.

    A Somber Annual Meeting for Conservative Lawyers, NYT, 19.11.2006, http://www.nytimes.com/2006/11/19/washington/19federalist.html

Acquaintance of 2 Hijackers Is Acquitted

November 18, 2006
The New York Times
By RAY RIVERA and MATTHEW SWEENEY

A California man whose arrest, detention and prosecution raised questions about the limits of government antiterror powers after Sept. 11, 2001, was acquitted yesterday in Federal District Court in Manhattan of charges of lying to a grand jury investigating the terrorist attacks.

The man, Osama Awadallah, was a college student in San Diego when he was detained 10 days after the attacks because agents had found a scrap of paper with his name and telephone number in a car at Dulles National Airport belonging to one of the hijackers, Nawaf al-Hazmi.

Mr. Awadallah, an immigrant from Jordan, was held as a material witness and treated as a high security risk for the next 20 days, much of that spent in solitary confinement, before appearing in front of a federal grand jury in Manhattan. He readily acknowledged having a passing acquaintance with Mr. Hazmi, but federal prosecutors said he had lied about his association with another hijacker, Khalid al-Midhar. Both men were aboard the plane that crashed into the Pentagon.

Mr. Awadallah’s case became a test of the government’s ability to hold material witnesses without charging them. The case was thrown out once, reinstated by a federal appeals court, then delayed for almost a year when prosecutors tried unsuccessfully to have the judge removed on claims of bias.

When the case finally reached trial this year, the jury spent six days in heated deliberations but remained deadlocked, with a single juror voting not guilty.

But in a stark reversal of sentiment, a new jury of nine women and three men took less than seven hours over two days before finding Mr. Awadallah not guilty.

Mr. Awadallah sat impassively as Alma Weinstein, 52, the jury forewoman, read the verdict, saying “Not guilty” for each of 27 specifications under the two counts of perjury he faced.

Finally, on the last “Not guilty,” he allowed himself a broad smile. He hugged his lawyers, turned to his father seated behind him in the near-empty gallery, and said: “We did it. We won.”

His father, Ismail, who had arrived two days earlier from Jordan, raised his hands in the air and let out a loud sigh. Speaking to reporters later in broken English, he said, “I’m very, very, very happy.”

Mr. Awadallah said he never doubted that he would eventually be cleared, even though a few months earlier he had come so close to being convicted on charges that could have sent him to prison for up to 10 years followed by deportation.

Even Judge Shira A. Scheindlin of Federal District Court, who has overseen the case since the beginning and had dismissed it earlier, remarked on the radically different opinions of the two juries.

“It’s interesting that they saw it so differently this time,” she told the lawyers after the jury left. “The cases were basically the same.”

Ms. Weinstein, the forewoman, told reporters that the government had “left it open with reasonable doubt.” Karl Metzner, an assistant United States attorney, who led the prosecution, declined to comment.

One major difference between the two trials was the emotional response to the Sept. 11 attacks cast on the jurors. After the first trial, at least four jurors openly acknowledged sharing stories of losses they had suffered and weeping during their deliberations, despite strict orders from the judge to keep emotions out of the proceedings.

This time, jurors said they kept those feelings out of the jury room.

“We kind of made a ground rule not to do that,” Ms. Weinstein said.

Mr. Awadallah’s lawyer, Jesse Berman, said he believed that the three extra witnesses he used this time, including two of his client’s s former teachers, had helped humanize Mr. Awadallah.

“It made jurors not have to worry that he was some loner in some sleeper cell,” Mr. Berman said.

Indeed, one juror said Mr. Awadallah did not appear to be any threat.

“It seemed like he was almost like us,” said Nancy Sosnow, 64, of the Bronx. “He was living his life.”

Mr. Awadallah was never accused of being involved in the terrorist attacks or having prior knowledge of them. But in his first grand jury appearance in October 2001, he denied knowing Mr. Hidar. Mr. Hazmi and Mr. Hidar had lived in San Diego for about six months in 2000.

Then prosecutors showed him an essay booklet given to them by one of Mr. Awadallah’s teachers. In it, Mr. Awadallah had written just four days after the attacks, “One of the quietest people I have met is Nawaf. Another one, his name is Khalid.”

Mr. Awadallah at first said the booklet appeared altered, but Mr. Berman said that his client realized his mistake shortly after testifying and alerted his lawyers to it, but that prosecutors chose not to call the grand jury back into the room.

When Mr. Awadallah appeared before the grand jury five days later, he acknowledged that the handwriting was his and that he now remembered having met Mr. Midhar.

Prosecutors claimed that Mr. Awadallah changed his story only after being presented with the notebook, and that his initial lies could have misled investigators at a time when there was widespread fear of more attacks.

But defense lawyers said that Mr. Awadallah was confused and his memory was faulty after his mistreatment while in federal custody. Jurors yesterday cited his treatment in interviews and several said they were stunned that he was handcuffed during his grand jury testimony.

“I personally felt the treatment he received as a material witness was really unconscionable, and it had to affect his testimony,” Ms. Sosnow said.

Mr. Awadallah, who has been free on bail since November 2001 and earned his bachelor’s degree from San Diego State University in May, struggled to describe his emotions after his acquittal. “It’s like you’ve been shackled,” he said, “and suddenly all the pressures and all the stress are gone away in a second.”

    Acquaintance of 2 Hijackers Is Acquitted, NYT, 18.11.2006, http://www.nytimes.com/2006/11/18/nyregion/18immigrant.html

Judge’s Ruling Bars The Times From Using Sources’ Information in Defense Against Suit

November 18, 2006
The New York Times
By NEIL A. LEWIS

WASHINGTON, Nov. 17 — A federal magistrate judge ruled on Friday that The New York Times may not rely in any way on information its columnist, Nicholas D. Kristof, may have received from two Federal Bureau of Investigation officials in its defense of a defamation suit brought by a former government scientist.

The judge, Liam O’Grady, issued the ruling as a sanction against The Times for refusing to disclose or force Mr. Kristof to disclose the identities of the two confidential F.B.I. sources he used in writing a series of columns about the investigation of the deadly anthrax mailings of 2001.

Dr. Stephen J. Hatfill, a germ warfare specialist who once worked in the Army laboratories at Fort Detrick, Md., has asserted in a lawsuit that the columns defamed him because they suggested he was responsible for the attacks.

In its filings, The Times has suggested that Mr. Kristof had numerous sources for the columns. Of those, Mr. Kristof initially refused to identify five, saying he had promised them confidentiality. He has since disclosed the identities of three, saying those sources recently released him from his pledge.

In issuing the ruling, Judge O’Grady rejected a series of harsher sanctions sought by Mr. Hatfill’s lawyers, including a request that the court impose a $25,000-a-day fine on The Times until it named the two F.B.I. officials.

Judge O’Grady issued his ruling from the bench in Alexandria, Va., where he sits and where the trial is scheduled to begin on Jan. 29. The ruling means that when Mr. Kristof testifies during the trial on behalf of The Times, he may not cite any information he may have received from the two confidential sources as substantiation for the columns.

How much of a setback the ruling is for The Times is unclear and probably depends on how much other substantiation Mr. Kristof and the newspaper may present to counter Dr. Hatfill’s assertions. Five people died in the anthrax attacks. Although federal authorities identified Dr. Hatfill as “a person of interest” in the case, they have not charged him with any crimes.

Mr. Kristof’s columns were about a government scientist he initially referred to as Mr. Z, someone he said had become the overwhelming focus of the investigation. In August 2002, he wrote that Dr. Hatfill had acknowledged he was Mr. Z at a news conference in which he said he had been mistreated by the news media.

Because the lawsuit is a civil action, not a criminal one, there was no consideration of anyone being ordered to jail as has happened in some recent criminal investigations. Instead, the judge said he fashioned the remedy to ensure that Dr. Hatfill was not disadvantaged by the use of information obtained by The Times from sources it would not identify and thus subject to examination.

Judge O’Grady had written earlier that for Dr. Hatfill to meet his burden of demonstrating he was defamed, he needed “an opportunity to question the confidential sources and determine if Mr. Kristof accurately reported information the sources provided.”

In preparation for the start of the trial, Dr. Hatfill was deposed Friday by lawyers for The Times.

The lawsuit was originally dismissed by a federal judge in Virginia in 2004, who ruled that the columns were not defamatory and only reported on the existence of an investigation. A divided three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., reinstated the case, and the full appeals court, by a 6-to-6 vote, declined to overturn that ruling. The Supreme Court declined to intervene last March.

    Judge’s Ruling Bars The Times From Using Sources’ Information in Defense Against Suit, NYT, 18.11.2006, http://www.nytimes.com/2006/11/18/us/18hatfill.html

Bush to Put Nominations Back on Table

November 16, 2006
The New York Times
By NEIL A. LEWIS

WASHINGTON, Nov. 15 — White House officials said Wednesday that President Bush would renominate six of his earlier choices to sit on the federal appeals court, leaving Democratic senators and other analysts to ponder what message he is sending.

At least four of the nominations have been declared dead on arrival in the Senate by Democrats who have consistently opposed them as unacceptable. All six nominations will remain before the Senate through the lame-duck session of Congress and then will expire.

When the 110th Congress is seated in January, Mr. Bush can deliver another list of judicial nominees to the Senate, which will by then have a Democratic majority.

Mr. Bush’s motive in sending up the nominations has been closely analyzed, with several Democrats and liberals labeling it as provocative and a sign that he does not intend to seek compromise as he suggested he would after Republican losses in the elections last week.

“Democrats have asked the president to be bipartisan, but this is a clear slap in the face at our request,” said Senator Charles E. Schumer, Democrat of New York, who is a member of the Judiciary Committee. “For the sake of the country, we hope that this is an aberration because the president feels he must placate his hard-right base rather than an indication of things to come.”

Senator Patrick J. Leahy, Democrat of Vermont, who will be the leader of the Judiciary Committee, said, “Barely a week after the president promised to change course by working in a bipartisan and cooperative way with Congress, it is disappointing that he has decided to ‘stay the course’ on judicial nominees.”

But Edward Whelan, the president of the Ethics and Public Policy Center, who has supported Mr. Bush’s judicial nominations throughout the first term, said Democrats were engaging in “rhetorical gamesmanship.” He said that despite the changed numbers in the Senate, Mr. Bush was not obliged to offer a unilateral surrender. He said the president was resubmitting the nominees for the lame-duck session because Democrats had refused to comply with the usual courtesy and moved to have the nominations expire at the last recess.

The four nominees whose chances of confirmation are viewed as nearly impossible are: William J. Haynes II, the Pentagon’s general counsel who was involved in setting many of the interrogation policies for detainees; William G. Myers III, a longtime lobbyist for the mining and ranching industries and a critic of environmental regulations; Terrence W. Boyle, a district court judge in North Carolina; and Michael B. Wallace of Mississippi, a lawyer rated unqualified for the court by the American Bar Association.

The other nominees, who have not aroused as much opposition, are N. Randy Smith, a district judge in Idaho, and Peter D. Keisler, assistant attorney general for the civil division of the Justice Department.

    Bush to Put Nominations Back on Table, NYT, 16.11.2006, http://www.nytimes.com/2006/11/16/washington/16nominees.html

Enron's Causey gets 5-year prison sentence

Wed Nov 15, 2006 8:01 PM ET
Reuters
By Eileen O'Grady and Bruce Nichols

HOUSTON (Reuters) - Former Enron chief accounting officer Richard Causey was sentenced on Wednesday to five and one-half years in prison for approving the bogus bookkeeping that led to the company's 2001 collapse.

Causey, 46, the last of the top-tier Enron executives to be sentenced, pleaded guilty to securities fraud in December 2005, weeks before he was scheduled to go on trial with former Enron chief executives Ken Lay and Jeff Skilling, both of whom were found guilty in May. Lay died of a heart attack July 5.

"Improper things were done at Enron," Causey told U.S. District Judge Sim Lake at his sentencing hearing. "Some things were done by me and for that I am profoundly sorry."

Causey, who faced more than 20 years in prison if convicted on three dozen original charges, agreed to a maximum sentence of seven years in jail and forfeit $1.25 million under a plea deal.

Causey was a key figure in the financial scandal that followed disclosures the company used off-the-books partnership deals to hide billions of dollars in debt and to inflate profits.

Financial scandals at Enron, WorldCom and Tyco led to tighter financial reporting disclosure standards for all U.S companies and increased accountability for top executives.

Enron's demise as the largest U.S. energy trader contributed to a severe contraction of the entire U.S. electricity trading industry and accelerated a move away from competitive markets for electricity in several states.

After joining Enron from accounting firm Arthur Andersen in 1991, Causey worked closely with Lay, Skilling and former Enron chief financial officer Andrew Fastow.

In his plea, Causey admitted to conspiring with other Enron senior managers to mislead investors about the company's finances in order to inflate Enron's stock price.

In early 2000, Enron recorded $85 million in earnings from an interest it held in a partnership called JEDI, which held Enron stock, Causey said in his plea deal.

The $85 million was reported as operating earnings when the increase came directly from a rise in Enron's stock price following a January 20 analyst call, Causey said.

Fastow, who pleaded guilty and is serving a six year-prison sentence, testified against Lay and Skilling. Causey did not testify against them.

Skilling was sentenced in October to 24 years in jail but has said he would appeal.

Sentences handed down so far for the 16 Enron employees who have pleaded guilty have ranged from probation to 24 years for Skilling.

Causey will begin his prison sentence after the U.S. Bureau of Prisons determines where he will be housed.

He left the courthouse with his wife and three teen-age children without commenting to reporters.

Two more ex-Enron executives, who pleaded guilty, will learn their fate on Friday. Michael Kopper, who worked closely with Fastow in setting up the partnerships used by Enron to inflate profit and Mark Koenig, former head of investor relations.

    Enron's Causey gets 5-year prison sentence, R, 15.11.2006, http://today.reuters.com/news/articlenews.aspx?type=domesticNews&storyID=2006-11-16T010041Z_01_N15430638_RTRUKOC_0_US-ENRON-CAUSEY.xml&WTmodLoc=Home-C5-domesticNews-3

Health groups file to appeal U.S. tobacco case

Fri Nov 10, 2006 2:50 PM ET
Reuters
By Peter Kaplan

WASHINGTON (Reuters) - Anti-smoking and health groups said on Friday they had notified a federal judge that they would appeal a ruling that allowed cigarette makers to avoid major financial penalties in the government's racketeering case.

The groups, including the Tobacco-Free Kids Action Fund, American Cancer Society, American Heart Association and American Lung Association, filed notice on Thursday that they intend to appeal the August 17 ruling.

The sanctions imposed by the court fell short of the remedies recommended by the public health groups, which among other things would have forced the industry to fund a $4.8 billion-a-year, nationwide anti-smoking program.

The ruling by U.S. District Judge Gladys Kessler found tobacco companies engaged in a decades-long conspiracy to hide the dangers of smoking.

Kessler imposed some remedies, including ordering the companies to make "corrective" public statements about the health effects and the addictive nature of smoking, and banning them from describing cigarettes in ways that convey health claims such as "low tar" and "light."

Kessler said a previous ruling, by a federal appeals court, barred her from imposing stricter actions sought by the health groups and the U.S. Justice Department.

The department, which asked the court to fund a less-expensive quit-smoking program, notified the court last month that it planned to appeal the ruling.

The cigarette makers are appealing the ruling as well and last month the U.S. Court of Appeals for the District of Columbia agreed to put Kessler's remedies on hold while the companies' appeal is pending.

Targeted in the 1999 lawsuit were Altria Group Inc. and its Philip Morris USA unit; Loews Corp.'s Lorillard Tobacco unit, which has a tracking stock, Carolina Group; Vector Group Ltd.'s Liggett Group; Reynolds American Inc.'s R.J. Reynolds Tobacco unit and British American Tobacco Plc unit British American Tobacco Investments Ltd.

Kessler exempted Liggett from the remedies because she found it withdrew from the conspiracy in the mid 1990s.

    Health groups file to appeal U.S. tobacco case, R, 10.11.2006, http://today.reuters.com/news/articlenews.aspx?type=domesticNews&storyID=2006-11-10T195042Z_01_N10281460_RTRUKOC_0_US-TOBACCO-RACKETEERING.xml&WTmodLoc=Home-C5-domesticNews-3