History > 2007 > USA > Federal Justice (I)

S.I. Man Is Sentenced to Die

for Slaying 2 Detectives

March 30, 2007
By MICHAEL BRICK
The New York Times

Standing before the Great Seal of the United States of America, under the gaze of hundreds, Ronell Wilson was dispatched from the city of his childhood yesterday and ordered to die for the murder of two police detectives.

Mr. Wilson looked away in silence as a judge made official what a jury of seven men and five woman prescribed in January. Around him scores of uniformed detectives filled the wooden pews of the vast ceremonial courtroom. The widows of his victims sat with their orphaned children. His mother watched from the front row of the gallery.

“It is the judgment of the court,” said Judge Nicholas G. Garaufis of Federal District Court in Brooklyn, “that the defendant Ronell Wilson is sentenced to death.”

The courtroom was quiet. There was nothing left to say. After a trial that spanned more than two months, the jurors had found Mr. Wilson guilty of executing undercover detectives James V. Nemorin and Rodney J. Andrews on Staten Island in March 2003.

During that two-part trial, all interested parties had heard the details of Mr. Wilson’s miserable upbringing at the Stapleton Houses project on Staten Island, of his bed-wetting, of his juvenile delinquency, of his street gang affiliation and of his plan to rob the two detectives.

They had heard his voice, captured on a surveillance recording, directing the detectives to an all but abandoned street. They had heard his companion that night recount watching him shoot one detective in the back of the head, then pause to make the second plead for his life.

And in January they heard the jurors prescribe this sentence of death, the first in a federal court in New York since the era of the Rosenbergs, executed for espionage in the 1950s.

Judge Garaufis could not alter that sentence yesterday, but did not apologize for it, either. He entered the courtroom at 2:50 p.m., preceded by a loud knock.

Beneath a ceiling 30 feet high, the judge ascended the bench. Portraits of other judges looked down from the walls. A broad mural depicted the forging of the railroads.

To the judge’s far left, Mr. Wilson’s mother wore a gray suit and a necklace spelling her given name, Cheryl. To his far right, a young daughter of Detective Nemorin held a toy magic wand. Its tip was a star.

Mr. Wilson was led into the courtroom in handcuffs. He wore a striped yellow shirt and a thin beard.

“This is a very sobering day for everyone,” Judge Garaufis said. “It’s the end of one process, and the beginning of another process.”

The judge asked for decorum. After the jury’s verdict, there had been applause and hand-slapping among the police officers in the gallery, but now there was only silence and sometimes a cough, folded arms and no tears. Mr. Wilson sat and chewed his lower lip.

A cousin of Detective Andrews, Derek Williams, stood and thanked the jurors and the police.

“I’d like to thank the men and women of the jury for their decision to give Ronell Wilson the death penalty, because I think it’s very deserved in this case,” Mr. Williams said. His voice was shaking. He said, “Forgive my nervousness.”

Then Mr. Wilson’s lawyers spoke. Mitchell J. Dinnerstein said that the verdict was flawed, that money left behind at the crime scene belied the prosecutors’ descriptions of a calculated robbery and murder. He called the companion who had identified Mr. Wilson, Jessie Jacobus, “a boy who may have sold his soul for leniency.”

“You were held accountable for our collective neglect,” Mr. Dinnerstein said, addressing Mr. Wilson. “All is not lost. This decision will be appealed. We will try to save your life.”

Another defense lawyer, Ephraim Savitt, said, “No real good will come of this, except perhaps the baser human instinct of a need to impose vengeance.”

In response, a prosecutor, Jack Smith, defended the jury’s decision.

“Their verdict, the verdict that Ronell Wilson knowingly and intentionally murdered two heroes of this city,” Mr. Smith said, “speaks more eloquently than anyone in this room could.”

Then Mr. Wilson was given a chance to speak, his second at these proceedings. At the close of the penalty phase of the trial, he had been allowed to read a brief statement of remorse; in their verdict, the jurors had unanimously rejected it.

Now he stood and faced the slain men’s widows and spoke in measured tones. He said he had not known his victims were detectives. He apologized for a second time, this time pointing out that he had no jury’s favor to gain.

“I would like to say that since there’s no jury here — like the prosecutors had said plenty of times that I had to prove to them — I’d like to say to the families of the victims that I’m sorry, I’m very sorry for the pain that I really caused you,” Mr. Wilson said.

When he finished speaking, the judge said that his guilt was certain, his victims were good men, his remorse was phony and his continued existence was a danger to inmates and prison guards.

Mr. Wilson stood for his sentence. He cocked his head to the left and clasped his right hand in his left palm. After it was done, Mr. Wilson accepted a lawyer’s embrace and four slaps on the back. Then six federal marshals led him away.

He will be flown out within a day to the federal death row in Terre Haute, Ind., according to a prosecutor. It will be his first airplane ride, according to a defense lawyer.

Downstairs from the courtroom, a cousin of Mr. Wilson told the television cameras his remorse was real. A sister of a slain detective said it was not. A crowd of photographers took aim at the children. Death penalty protesters held signs. Politicians praised the decision. A passing mailman leaned against a tree and watched the spectacle. The police officers and detectives formed a long line by the marshal’s door, with its row of gun lockers, waiting to get their weapons back.

    S.I. Man Is Sentenced to Die for Slaying 2 Detectives, NYT, 30.3.2007, http://www.nytimes.com/2007/03/30/nyregion/30death.html

Appeals Court Upholds NWA Strike Ban

March 29, 2007
By THE ASSOCIATED PRESS
Filed at 12:26 p.m. ET
The New York Times

MINNEAPOLIS (AP) -- A federal appeals court on Thursday upheld a ruling that bars flight attendants at bankrupt Northwest Airlines Corp. from striking.

The flight attendants had sought the right to strike after Northwest, with a bankruptcy judge's permission, imposed pay cuts and other work rule changes as it reorganized. Its other unions made pay-cut deals, but flight attendants rejected a negotiated agreement. The case put the union and the airline in a gray area where bankruptcy law and airline labor law intersect.

''Although this is a complicated case, one feature is simple enough to describe: Northwest's flight attendants have proven intransigent in the face of Northwest's manifest need to reorganize,'' the judges for the U.S. 2nd Circuit Court of Appeals in New York City wrote in upholding a strike injunction.

    Appeals Court Upholds NWA Strike Ban, NYT, 29.3.2007, http://www.nytimes.com/aponline/business/AP-Northwest-Flight-Attendants.html

Panel Queries Ex-Aide of Gonzales

March 29, 2007
By THE ASSOCIATED PRESS
Filed at 11:53 a.m. ET
The New York Times

WASHINGTON (AP) -- Attorney General Alberto Gonzales wrongly stated he was not involved in discussions about the firings of federal prosecutors, his former chief of staff told the Senate Judiciary Committee Thursday.

''I don't think the attorney general's statement that he was not involved in any discussions of U.S. attorney removals was accurate,'' testified Kyle Sampson, who quit this month as Gonzales' top aide. ''I remember discussing with him this process of asking certain U.S. attorneys to resign.''

Sampson said Gonzales attended a crucial meeting on the firings Nov. 27, 10 days before they were carried out.

Under questioning by Sen. Charles Schumer, D-N.Y., Sampson said Gonzales also was wrong when he said other senior Justice Department aides gave Congress inaccurate information because they hadn't been fully briefed about the firings.

''I shared information with anyone who wanted it,'' Sampson said. Asked by Schumer if Gonzales' statement was false, Sampson replied, ''I don't think it's accurate if the statement implies that I intended to mislead the Congress.''

In earlier testimony Sampson said the prosecutors were fired last year because they did not sufficiently support President Bush's priorities, defending a standard that Democrats called ''highly improper.''

''The distinction between 'political' and 'performance-related' reasons for removing a United States attorney is, in my view, largely artificial,'' he said. ''A U.S. attorney who is unsuccessful from a political perspective ... is unsuccessful.''

Gonzales planned to meet with U.S. attorneys from the mid-Atlantic region at Justice Department headquarters Thursday. It's part of a nationwide series of meetings to discuss the issue.

The Judiciary Committee's senior Republican, Sen. Arlen Specter of Pennsylvania, scolded Sampson for causing an uproar that has distracted the Justice Department and jeopardized Gonzales' job.

''It is generally acknowledged that the Department of Justice is in a state of disrepair, perhaps even dysfunction, because of what has happened,'' Specter said. The remaining U.S. attorneys are skittish, he said, ''not knowing when the other shoe may drop.''

    Panel Queries Ex-Aide of Gonzales, NYT, 29.3.2007, http://www.nytimes.com/aponline/us/AP-Fired-Prosecutors.html?hp

Prosecutors Assail Gonzales During Meeting

March 29, 2007
The New York Times
By DAVID JOHNSTON and NEIL A. LEWIS

WASHINGTON, March 28 — Attorney General Alberto R. Gonzales endured blunt criticism Tuesday from federal prosecutors who questioned the firings of eight United States attorneys, complained that the dismissals had undermined morale and expressed broader grievances about his leadership, according to people briefed on the discussion.

About a half-dozen United States attorneys voiced their concerns at a private meeting with Mr. Gonzales in Chicago.

Several of the prosecutors said the dismissals caused them to wonder about their own standing and distracted their employees, according to one person familiar with the discussions. Others asked Mr. Gonzales about the removal of Daniel C. Bogden, the former United States attorney in Nevada, a respected career prosecutor whose ouster has never been fully explained by the Justice Department.

While Mr. Gonzales’s trip was part of a long-scheduled tour, he has been meeting in recent days with prosecutors in an effort to repair the damage caused by the dismissals. President Bush has backed Mr. Gonzales, but his tenure at the Justice Department may still be in peril as lawmakers in both parties have called for his resignation, questioned his credibility and raised doubts that he can lead the department.

His former chief of staff, D. Kyle Sampson, is to appear before the Senate Judiciary Committee on Thursday. In his prepared testimony, Mr. Sampson, who resigned two weeks ago, said the prosecutors were fired not for political reasons, but because they failed to follow the president’s priorities. He is likely to be closely questioned about the extent of Mr. Gonzales’s involvement in planning the firings.

On Wednesday, the Justice Department released more than 200 additional pages of e-mail messages and other documents and sent a letter to lawmakers saying that it had given Congress inaccurate information in an earlier letter that asserted that Karl Rove, the senior White House adviser, had played no role in the removals.

In Chicago, some prosecutors accused Mr. Gonzales’s subordinates of operating as if the prosecutors were an obstacle to be side-stepped instead of a resource to be tapped in developing departmental policy, one person said.

At least one prosecutor complained that United States attorneys had been excluded from deliberations that led to a change in policy on prosecuting corporate crime, a person familiar with the discussions said. He and others would speak only on condition of anonymity because the discussions were confidential.

The policy change at issue happened in December, when Deputy Attorney General Paul J. McNulty rolled back a requirement that corporate defendants waive the confidentiality of their discussions with lawyers to obtain leniency. Justice Department officials said Wednesday that some prosecutors had been involved in those deliberations.

Mr. Gonzales attended the Chicago meeting after abruptly cutting short a news conference in which he was asked about the dismissals and his own status. He reacted unemotionally to the criticism in the private session, responding that he had not previously heard of their specific complaints, including the McNulty memorandum.

Justice Department officials acknowledged that the Chicago meeting was more combative than recent sessions in Cincinnati, Denver, St. Louis and Houston. But they said the exchanges were intended to be candid conversations in which prosecutors could speak freely.

“These were not supposed to be public relations stunts,” said Tasia Scolinos, a department spokeswoman. “These were designed to elicit frank exchanges with the attorney general about what happened. To the extent that happened, that’s a good thing.”

The host of the Chicago meeting was Patrick J. Fitzgerald, the United States attorney there, who recently successfully prosecuted I. Lewis Libby Jr., the former White House official, on perjury charges. Mr. Fitzgerald’s spokesman declined to comment on the meeting.

Several other prosecutors declined to discuss the meeting. Justice Department officials said the participants included Steven M. Biskupic and Erik C. Peterson of Wisconsin; Joseph S. Van Bokkelen of Indiana; Craig S. Morford of Tennessee; and James A. McDevitt of Washington State.

Behind the prosecutors’ complaints is what several officials have described as their anger about the seemingly arbitrary manner used to identify the United States attorneys selected for dismissal.

One recently released document that underscored their feelings was a chart prepared by Mr. Sampson in 2005 that ranked people as strong or weak performers and identified Mr. Fitzgerald, widely regarded as a highly able prosecutor, as undistinguished.

Officials said Mr. Gonzales had faced direct criticism in most of the meetings with the prosecutors.

At a meeting in Denver, attended by about a dozen mainly Western prosecutors, Mr. Gonzales was told that the dismissals had cast a cloud over all the United States attorneys’ offices, not only over the prosecutors who were removed. But at that meeting, according to one official briefed on the discussion, prosecutors focused on steps to improve communications between the attorney general and United States attorneys.

The criticism from prosecutors in the Justice Department’s field offices comes as the uproar over the dismissals appears to also have eroded confidence in Mr. Gonzales at the agency’s headquarters, where top officials have been focused for weeks on little else.

Mr. Gonzales and Mr. McNulty, who are expected to testify before Congress in two weeks, are said by officials to have maintained a working relationship, but their staffs have feuded over who is to blame.

Some of Mr. Gonzales’ aides have blamed Mr. McNulty for inflaming the issue by testifying on Feb. 6 that one of the ousted prosecutors, H. E. Cummins III, was removed for no reason. Mr. McNulty’s aides have blamed Mr. Sampson and Monica Goodling, the liaison to the White House, for failing to disclose their conversations with the White House before the removals.

In Washington, one Republican lawmaker said he was less concerned with Mr. Gonzales’s personal situation than how it was affecting the day-to-day performance of the Justice Department.

“I can’t imagine a department being more demoralized with what’s going on there,” said Senator Arlen Specter of Pennsylvania, the ranking Republican on the Judiciary Committee. Mr. Specter said in an interview that Mr. Gonzales needed to demonstrate his candor about the dismissals and assure people about his competence to retain his post.

“The Justice Department is too important to the country to have it hanging on the edge of a cliff,” he said.

A senior Justice Department official said Wednesday that the uncertainty over Mr. Gonzales’s future and the accusations from Congress were having a dispiriting effect.

“It’s a very difficult time,” said the official, who spoke on condition of anonymity. Policy and personnel decisions were being put off because of the uncertainty, the official said, adding, “It’s not a time to get into a battle with someone.”

Another official said that relatively few officials had been directly affected by the dismissal issue and that the agency’s work had continued without interruption.

Beleaguered presidents often seek refuge in foreign travel where they can be seen on a different stage. Mr. Gonzales has been engaged in his own version of that practice in recent days, setting off around the nation to deliver speeches about the department’s efforts to curb child pornography, meet with prosecutors and appear before friendly audiences.

On Wednesday, he seemed buoyed by a warm reception in his home state from about 1,000 people at the annual luncheon of the Houston Hispanic Chamber of Commerce.

As his staff kept the news media at a distance, Mr. Gonzales was greeted with cheers and applause.

“Because of all the great needs that exist in our community, I have to remain focused on doing my job,” he said. “Doing my job is serving the American public.”

He said he had received hundreds of messages from people who said they were praying for him, adding, “I can’t tell you how much that has meant to me and my family.”

The audience rewarded him with warm laughter when he said: “For many of us, getting where we are today was going down a bumpy road. I’m traveling down a bumpy road these days.”

Eric Lipton contributed reporting.

    Prosecutors Assail Gonzales During Meeting, NYT, 29.3.2007, http://www.nytimes.com/2007/03/29/washington/29gonzales.html?hp

E-Mail Shows Rove’s Role in Fate of Prosecutors

March 29, 2007
The New York Times
By DAVID D. KIRKPATRICK and JIM RUTENBERG

WASHINGTON, March 28 — Almost every Wednesday afternoon, advisers to President Bush gather to strategize about putting his stamp on the federal courts and the United States attorneys’ offices.

The group meets in the Roosevelt Room and includes aides to the White House counsel, the chief of staff, the attorney general and Karl Rove, who also sometimes attends himself. Each of them signs off on every nomination.

Mr. Rove, a top adviser to the president, takes charge of the politics. As caretaker to the administration’s conservative allies, Mr. Rove relays their concerns, according to several participants in the Wednesday meetings. And especially for appointments of United States attorneys, he manages the horse trading.

“What Karl would say is, ‘Look, if this senator who has been working with the president on the following things really wants this person and we think they are acceptable, why don’t we give the senator what he wants?’ ” said one former administration official. “ ‘You know, we stiffed him on that bill back there.’ ”

Mr. Rove’s role has put him in the center of a Senate inquiry into the dismissal of eight United States attorneys. Democrats and a few Republicans have raised questions about whether the prosecutors were being replaced to impede or jump-start investigations for partisan goals.

Political advisers have had a hand in picking judges and prosecutors for decades, but Mr. Rove exercises unusually broad influence over political, policy and personnel decisions because of his closeness to the president, tenure in the administration and longstanding interest in turning the judiciary to the right.

In Illinois, Mr. Rove once reprimanded a Republican senator for recommending the appointment of Patrick J. Fitzgerald, a star prosecutor from outside the state, to investigate the state’s then-governor, a Republican. In New Jersey, Mr. Rove helped arrange the nomination of a major Bush campaign fund-raiser who had little prosecutorial experience. In Louisiana, he first supported and then helped scuttle a similar appointment.

In the months before the United States attorneys in New Mexico and Washington State were ousted, Mr. Rove joined a chorus of complaints from state Republicans that the federal prosecutors had failed to press charges in Democratic voter fraud cases. While planning a June 21, 2006, White House session to discuss the prosecutors, for example, a Rove deputy arranged for top Justice Department officials to meet with an important Bush supporter who was critical of New Mexico’s federal prosecutor about voter fraud.

And in Arkansas, newly released Justice Department e-mail messages show, Mr. Rove’s staff repeatedly prodded the department’s staff to install one of his protégés as a United States attorney by ousting a previous Bush appointee who was in good standing.

Senate Democrats and a few Republicans have called for Mr. Rove to testify publicly about the dismissals.

“There is an issue of intrigue, and for better or worse, that surrounds Karl Rove,” said Senator Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee. “It is in the president’s interest and the country’s interest to have it dispelled or verified, but let’s hear it from him.”

The White House, however, is offering only a private interview without a sworn oath.

Congressional Democrats said they were focusing on Mr. Rove in part because the administration appeared to have tried to hide his fingerprints. In a February 23 letter to Senate Democratic leaders that was approved by the White House counsel’s office, for example, the Justice Department said that no one in the White House had “lobbied” for any of the eight dismissals, and specifically denied that Mr. Rove had “any role” in the appointment of the protégé, J. Timothy Griffin, a former Bush campaign operative.

But the Justice Department officials who drafted the letter had corresponded with Mr. Rove’s staff just weeks earlier about how to get the nomination done. On Wednesday night, a department official apologized for inaccuracies in the letter.

White House officials said Mr. Rove was just one voice in the approval of federal prosecutors, whose selection is traditionally guided by the recommendations of senior members of the president’s party in their states.

“Our job is to find qualified nominees who can win confirmation and be good public servants,” said Dana Perino, a White House spokeswoman. After the United States attorneys are confirmed, she said, Mr. Rove and others at the White House show “wide deference” to the Justice Department about specific cases.

Some Republicans say they always understood that Mr. Rove had a say in prosecutor appointments. “I basically felt when I was talking to Karl I was talking to the president,” said former Senator Peter G. Fitzgerald, an Illinois Republican.

Early in the Bush administration, Mr. Fitzgerald said, he sought to recruit a prosecutor who could investigate Gov. George Ryan of Illinois without fear of influence by the state’s political powers. But Governor Ryan and his political ally Speaker J. Dennis Hastert argued to the White House that they should have a voice in the decision and insisted that someone from Illinois get the post. Mr. Fitzgerald, who had hired Mr. Rove as a consultant , called him to settle the question.

“Peter, it is your pick,” Mr. Rove told Mr. Fitzgerald, the former senator recalled. “But we don’t want you to pick anybody from out of state. For your Chicago guy, it has to be from Chicago.”

Undeterred, Mr. Fitzgerald sidestepped the White House. He made only one recommendation — Patrick J. Fitzgerald, a New York prosecutor — announced it publicly, and drew public acclaim that made it unstoppable. Some time after the appointment, the former Senator Fitzgerald said, Mr. Rove “kind of yelled at me,” telling him, “The appointment got great headlines for you but it ticked off the base”— a phrase that the senator took to refer to the state’s Republican establishment.

Tony Fratto, a White House spokesman, said Mr. Rove was simply pushing a general administration goal to appoint home-state prosecutors.

Democrats have seized on a connection to Mr. Rove to attack a prosecutor’s credibility. In New Jersey, William Palatucci, a Republican political consultant and Bush supporter, boasted of selecting a United States attorney by forwarding Mr. Rove the résumé of his partner, Christopher J. Christie, a corporate lawyer and Bush fund-raiser with little prosecutorial experience.

Mr. Christie has brought public corruption charges against prominent members of both parties, but his most notable investigations have stung two Democrats, former Gov. James E. McGreevey and Senator Robert Menendez. When word of the latter inquiry leaked to the press during the 2006 campaign, Mr. Menendez sought to dismiss it by tying Mr. Christie to Mr. Rove, calling the investigation “straight out of the Bush-Rove playbook.” (Mr. McGreevey resigned after admitting to having an affair with a male aide and the Menendez investigation has not been resolved.)

Mr. Rove initially supported the 2002 nomination of Fred Heebe, a lawyer turned developer and a major Bush donor, for United States attorney in Louisiana. But after former romantic partners of Mr. Heebe raised accusations of abuse, which he denied, the White House backed off. Gov. Mike Foster publicly blamed Mr. Rove for the reversal. Local Republican women sent Mr. Rove’s fax machine letters supporting Mr. Heebe, to no avail.

Mr. Rove acts as a conduit to the White House for complaints from Republican officials around the country, including gripes about federal prosecutors. During the tight 2004 governor’s race in Washington State, for example, Chris Vance, then chairman of the state’s Republican party, complained to a member of Mr. Rove’s staff about what he considered Democratic voter fraud.

“When you are a state party chairman, the White House regional political director is just part of your life,” Mr. Vance recalled. Mr. Vance said he never complained specifically about the United States attorney John McKay, who has been dismissed. Mr. Vance said he did not know if Mr. McKay had started an investigation.

But in New Mexico, Mr. Vance’s counterpart as well as the state’s senior Republican, Senator Pete V. Domenici, both complained to Mr. Rove that the United States attorney David C. Iglesias was not prosecuting Democratic voter fraud.

Mr. Rove readily took up their alarms. In an April 2006 speech to the Republican National Lawyers Association, he detailed accusations about Democratic abuses in several locations, including New Mexico and “the spectacle of Washington State.” He also relayed the complaints to Attorney General Alberto R. Gonzales and the White House counsel, Harriet E. Miers, and possibly Mr. Bush, the administration has recently acknowledged. The prosecutors in those two states, who have said they could not prove accusations of voter fraud, were among those ousted last year.

In Arkansas, Representative John Boozman, the state’s highest ranking Republican in Congress, said he recommended Mr. Rove’s protégé, Mr. Griffin, for a United States attorney vacancy in 2004, in part because of his ties to Mr. Rove.

A prosecutor in the Army Reserves, Mr. Griffin worked for Mr. Rove as an opposition researcher attacking Democratic presidential candidates in 2000. In between, for six months, the Justice Department had dispatched him to Arkansas to get experience as a prosecutor.

“I have been in situations through the years where Tim and Karl were at,” Mr. Boozman recalled. “I could tell that Karl thought highly of him.” -

Mr. Griffin dropped out of the running in 2004 when he accepted a campaign job for Mr. Rove, then became his deputy in the White House. But last summer, the department asked United States Attorney H. E. Cummins III to resign to make room and Mr. Rove’s staff began talking with department officials about how to install Mr. Griffin despite Senate opposition, internal e-mail shows.

Republican defenders of the Griffin appointment said it is hardly unheard of for a prominent official like Mr. Rove to call in such a favor.

Ultimately, United States attorneys know they are political appointees, said Senator John Cornyn, Republican of Texas, who is close to Mr. Rove.

“To suggest that these folks do not know or understand the process by which they are appointed, confirmed and retained,” Mr. Cornyn said, “is to suggest that they are naïve.”

    E-Mail Shows Rove’s Role in Fate of Prosecutors, NYT, 29.3.2007, http://www.nytimes.com/2007/03/29/washington/29rove.html

Judge Dismisses Suit Against Rumsfeld

March 27, 2007
By THE ASSOCIATED PRESS
Filed at 3:21 p.m. ET
The New York Times

WASHINGTON (AP) -- Former Defense Secretary Donald H. Rumsfeld cannot be tried on allegations of torture in overseas military prisons, a federal judge said Tuesday.

U.S. District Judge Thomas F. Hogan threw out a lawsuit brought on behalf of nine former prisoners in Iraq and Afghanistan. He said Rumsfeld cannot be held personally responsible for actions taken in connection with his government job.

The lawsuit contends the prisoners were beaten, suspended upside down from the ceiling by chains, urinated on, shocked, sexually humiliated, burned, locked inside boxes and subjected to mock executions.

Lawyers for the American Civil Liberties Union and Human Rights First had argued that Rumsfeld and top military officials disregarded warnings about the abuse and authorized the use of illegal interrogation tactics that violated the constitutional and human rights of prisoners.

''Despite the horrifying torture allegations,'' Hogan wrote, he could find no case law supporting the lawsuit, which he previously had described as unprecedented.

Government officials are normally immune from such lawsuits, and foreigners held overseas are not normally afforded U.S. constitutional rights.

Allowing the case to go forward, Hogan said in December, might subject government officials to all sorts of political lawsuits. Even Osama bin Laden could sue, Hogan said, claiming two American presidents threatened to have him murdered.

Had the Rumsfeld lawsuit been allowed to go forward, attorneys for the ACLU might have been able to force the Pentagon to disclose what officials knew about abuses at prisons such as Abu Ghraib prison in Iraq and what was done to stop it.

    Judge Dismisses Suit Against Rumsfeld, NYT, 27.3.2007, http://www.nytimes.com/aponline/us/AP-Detainee-Abuse-Rumsfeld.html
 

Documents Show Gonzales Approved Firings

March 24, 2007
By THE ASSOCIATED PRESS
Filed at 3:58 a.m. ET
The New York Times

WASHINGTON (AP) -- Last week, Attorney General Alberto Gonzales said he was not involved in any discussions about the impending dismissals of U.S. attorneys.

On Friday night, however, the Justice Department revealed Gonzales' participation in a Nov. 27 meeting where such plans were discussed.

The firings of eight prosecutors has since led to a political firestorm and calls for his ouster.

At that meeting, the attorney general and at least five top Justice Department officials discussed a five-step plan for carrying out the firings of the prosecutors, Gonzales' aides said late Friday.

There, Gonzales signed off on the plan, which was drafted by his chief of staff, Kyle Sampson. Sampson resigned last week.

Another Justice aide closely involved in the dismissals, White House liaison Monica Goodling, has also taken a leave of absence, two officials said.

The five-step plan approved by Gonzales involved notifying Republican home-state senators of the impending dismissals, preparing for potential political upheaval, naming replacements and submitting them to the Senate for confirmation.

Six of the eight prosecutors who were ultimately ordered to resign are named in the plan.

The department released more than 280 documents Friday night, including e-mails, calendar pages and memos to try to satisfy Congress' demands for details on how the firings were handled -- and whether they were politically motivated. There are no other meetings on the calendar pages released between that Nov. 27 and Dec. 7, when the attorneys were fired, to indicate Gonzales participated in other discussions on the matter, Justice spokeswoman Tasia Scolinos said.

Scolinos said it was not immediately clear whether Gonzales gave his final approval to begin the firings at that meeting. Scolinos also said Gonzales was not involved in the process of selecting which prosecutors would be asked to resign.

On March 13, in explaining the firings, Gonzales told reporters he was aware that some of the dismissals were being discussed but was not involved in them.

''I knew my chief of staff was involved in the process of determining who were the weak performers -- where were the districts around the country where we could do better for the people in that district, and that's what I knew,'' Gonzales said last week. ''But that is in essence what I knew about the process; was not involved in seeing any memos, was not involved in any discussions about what was going on. That's basically what I knew as the attorney general.''

Later, he added: ''I accept responsibility for everything that happens here within this department. But when you have 110,000 people working in the department, obviously there are going to be decisions that I'm not aware of in real time. Many decisions are delegated.''

The documents were released Friday night, a few hours after Sampson agreed to testify at a Senate inquiry next week into the firings of eight U.S. attorneys last year.

Asked to explain the difference between Gonzales' comments and his schedule, Justice spokesman Brian Roehrkasse said the attorney general had relied on Sampson to draw up the plans on the firings.

''The attorney general has made clear that he charged Mr. Sampson with directing a plan to replace U.S. attorneys where for one reason or another the department believed that we could do better,'' Roehrkasse said. ''He was not, however, involved at the levels of selecting the particular U.S. attorneys who would be replaced.''

Gonzales this week directed the Justice Department's Office of Professional Responsibility to investigate the circumstances of the firings, officials said. The department's inspector general also will participate in that investigation.

Nonetheless Democrats pounced late Friday.

''Clearly the attorney general was not telling the whole truth, but what is he trying to hide?'' said Senate Majority Leader Harry Reid, D-Nev.

''If the facts bear out that Attorney General Gonzales knew much more about the plan than he has previously admitted, then he can no longer serve as attorney general,'' said Sen. Chuck Schumer of New York, who is heading the Senate's investigation into the firings.

Added House Judiciary Committee Chairman John Conyers:

''This puts the attorney general front and center in these matters, contrary to information that had previously been provided to the public and Congress.''

Presidential spokesman Trey Bohn referred questions to the Justice Department, saying White House officials had not seen the documents.

The developments were not what Republicans, skittish about new revelations, had hoped.

Earlier Friday, a staunch White House ally, Sen. John Cornyn, summoned White House counsel Fred Fielding to Capitol Hill and told him he wanted ''no surprises.''

''I told him, 'Everything you can release, please release. We need to know what the facts are,''' Cornyn said.

Sampson will appear Thursday at a hearing of the Senate Judiciary Committee, his attorney said. ''We trust that his decision to do so will satisfy the need of the Congress to obtain information from him concerning the requested resignations of the United States attorneys,'' Sampson attorney Brad Berenson wrote in a letter to the leaders of the Senate Judiciary Committee that oversees the Justice Department.

New e-mails released Friday indicate that some of Gonzales' most trusted advisers were kept out of the loop in the firings. Scolinos apparently learned about the plans to dismiss attorneys on Nov. 17, 2006 -- nearly two years after Sampson and the White House first began talking about replacing prosecutors.

Democrats question whether the eight were selected because they were not seen as, in Sampson's words, ''loyal Bushies.''

------

Associated Press writer Laurie Kellman contributed to this report.

    Documents Show Gonzales Approved Firings, NYT, 24.7.2007.

Ex-Interior Aide Is Guilty of Lying in Lobbying Case

March 24, 2007
The New York Times
By EDMUND L. ANDREWS

WASHINGTON, March 23 — The second-highest official at the Interior Department during President Bush’s first term, J. Steven Griles, pleaded guilty on Friday to lying before a Senate committee about his ties to Jack Abramoff, the disgraced lobbyist who is now in prison.

Mr. Griles, 59, is the highest-ranking administration official to be convicted of a crime in connection with the bribery and influence-peddling scandal surrounding Mr. Abramoff.

Under a plea agreement, the Justice Department recommended that Mr. Griles receive a five-month prison term and spend another five months confined to either a halfway-house or his home. The maximum sentence for a conviction would have been five years in prison.

Nine other people have been convicted or pleaded guilty so far to charges tied to Mr. Abramoff’s lobbying activities. Mr. Abramoff is serving a six-year prison term after pleading guilty to fraud charges in Florida. He has also pleaded guilty in Washington to separate charges of fraud, tax evasion and conspiracy to bribe public officials.

Former Representative Bob Ney, Republican of Ohio, pleaded guilty in January to taking bribes from Mr. Abramoff and is serving a 30-month prison sentence.

Judge Ellen S. Huvelle of Federal District Court, who has overseen many of the other cases involving Mr. Abramoff, warned Mr. Griles that she might not accept the prosecutors’ recommendation of a 10-month sentence. In the case of Mr. Ney, she added three months to what the prosecutors had proposed. Mr. Griles is scheduled to be sentenced on June 26.

Stone-faced and speaking in a monotone as he stood before Judge Huvelle, Mr. Griles tersely answered, “Guilty, Your Honor,” on Friday morning when asked for his response to the prosecutors’ charge that he had lied to the Senate Indian Affairs Committee in October 2005. At the time, he said he had “no special relationship” with Mr. Abramoff.

Mr. Griles was not accused of taking money or other favors from Mr. Abramoff, nor was he accused of providing Mr. Abramoff with illegal favors.

The experience of Mr. Griles is a cautionary tale for government officials and others who testify before Congress. He is being charged with a felony even though his misstatements were not made under oath.

His plea agreement comes at a time when the Bush administration is fighting demands by Congressional Democrats to allow top aides to the president, including his main political strategist, Karl Rove, to testify under oath about the dismissals of eight federal prosecutors around the country.

The White House has offered to let Mr. Rove answer questions from lawmakers, but only in private, not under oath and without any transcript of the sessions.

The Justice Department said Mr. Griles, the deputy to Interior Secretary Gale A. Norton from 2001 to 2004 and an architect of President Bush’s energy policies, had been romantically involved with the woman who introduced him to Mr. Abramoff and who had often acted as an intermediary between the two men. As a result, prosecutors said, Mr. Abramoff “sought and received” advice and help from Mr. Griles for his Indian tribe clients.

Though prosecutors described the woman only as “Person A,” officials have acknowledged that she is Italia Federici, president of an advocacy group called the Council of Republicans for Environmental Advocacy.

Mr. Griles, who had been a high-profile lobbyist for energy and mining companies before joining the Bush administration, helped Ms. Federici raise money for the group while he was still a lobbyist.

According to the court filing, Mr. Griles and Person A had a “personal, and at times, romantic relationship” from 1998 to 2003.

When he met Mr. Griles, Mr. Abramoff was lobbying to help one of his Indian tribe clients. From 2001 to 2003, the Justice Department said, Mr. Abramoff and his tribal clients contributed $500,000 to Ms. Federici’s advocacy group.

The department said Mr. Abramoff had developed a “unique relationship” with Mr. Griles that “distinguished him from other lobbyists.” By virtue of Mr. Abramoff’s ties to Person A — Ms. Federici — prosecutors said Mr. Griles gave Mr. Abramoff “more credibility” and fostered a relationship that “ordinarily would have taken years to develop.”

Mr. Abramoff benefited from that relationship, the prosecutors continued. In one e-mail message, Mr. Abramoff referred to Mr. Griles as “our guy” at the Interior Department and “the one who gets everything done.”

At the end of his court appearance, Mr. Griles apologized in a written statement handed out by his lawyers.

“I am sorry for my wrongdoing,” he said in his statement. “I fully accept the responsibility for my conduct and the consequences it may have. When a Senate committee asks questions, they must be answered fully and completely, and it is not my place to decide whether those questions are relevant or too personal.”

But unlike Mr. Abramoff, who has expressed deep remorse for his activities and has been actively cooperating with investigators, Mr. Griles is not believed to have offered information about others in exchange for his plea deal.

Mr. Griles is now living in Falls Church, Va., with another former top Interior official, Sue Ellen Wooldridge. Ms. Wooldridge, a former solicitor and senior aide to Ms. Norton, transferred to the Justice Department in 2005 and became the department’s top prosecutor on environmental issues before resigning in January.

In February, The Associated Press reported that Ms. Wooldridge and Mr. Griles had teamed up with a top lobbyist at ConocoPhillips to buy a $980,000 vacation home. Justice Department officials said Ms. Wooldridge had cleared the purchase with the department.

Mr. Griles’s close ties to the oil and gas industry, and his continued contacts with former clients after he became deputy secretary, attracted heavy criticism from environmental groups and intense scrutiny from the Interior Department’s own inspector general.

Earl Devaney, the inspector general, issued a sprawling report on Mr. Griles’s contacts with former clients in 2003 and said his activities were part of a broader breakdown in the Interior Department’s ethics standards — a “train wreck waiting to happen,” in Mr. Devaney’s words.

    Ex-Interior Aide Is Guilty of Lying in Lobbying Case, NYT, 24.3.2007, http://www.nytimes.com/2007/03/24/us/24griles.html?hp

U.S. Judge Blocks Online Porn Law

March 22, 2007
By THE ASSOCIATED PRESS
Filed at 9:20 a.m. ET
The New York Times

PHILADELPHIA (AP) -- A federal judge on Thursday threw out a 1998 law that makes it a crime for commercial Web site operators to let children access ''harmful'' material.

In the ruling, the judge said parents can protect their children through software filters and other means that do not limit the rights of others to free speech.

    U.S. Judge Blocks Online Porn Law, NYT, 22.3.2007, http://www.nytimes.com/aponline/technology/AP-Internet-Blocking.html

Changes Sought in Naming of Prosecutors

March 20, 2007
The New York Times
By CARL HULSE and SHERYL GAY STOLBERG

WASHINGTON, March 19 — The Senate moved Monday to revoke authority it granted the Bush administration last year to name federal prosecutors, with Democrats accusing the administration of abusing the appointment power at the center of an escalating clash over the ouster of eight United States attorneys.

The move to overturn an obscure provision of the USA Patriot Act that allowed the attorney general to appoint federal prosecutors for an indefinite period without Senate confirmation came amid growing speculation that the controversy over the prosecutors would cost Attorney General Alberto R. Gonzales his job.

President Bush has said he has confidence in Mr. Gonzales, but the White House seemed to offer only tepid support for him on Monday.

“Nobody is prophetic enough to know what the next 21 months hold,” the White House press secretary, Tony Snow, said when asked if Mr. Gonzales would remain until the end of Mr. Bush’s term. Mr. Bush has said Mr. Gonzales needs to repair his relations with Capitol Hill; asked if the attorney general had done so, Mr. Snow said, “I don’t know.”

At the Justice Department, neither Mr. Gonzales nor his staff have engaged in a major effort to reverse the erosion of his support among Republicans in Congress, associates said. Mr. Gonzales read budget briefing books over the weekend and on Monday he phoned one or two lawmakers, said one aide, who declined to identify them.

Mr. Gonzales, who publicly apologized last week for his department’s handling of the dismissals, also acknowledged mistakes in a conference call with United States attorneys over the weekend.

Despite the attorney general’s apologies, Representative Nancy Pelosi, the Democratic speaker of the House, joined a chorus of lawmakers who are calling for Mr. Gonzales to leave the administration.

“I believe we need a new attorney general,” Ms. Pelosi told the editorial board of The Chicago Tribune.

The new chief counsel to President Bush, Fred F. Fielding, spent Monday preparing a response for Democrats who are demanding testimony from Karl Rove and other top aides to Mr. Bush, including the former counsel, Harriet E. Miers.

Mr. Fielding is expected to go to Capitol Hill on Tuesday to meet with the chairmen of the Senate and House Judiciary Committees. The Senate committee chairman, Patrick J. Leahy of Vermont, has said he wants Mr. Rove and the others to testify publicly and under oath, but the White House has said that is unlikely to happen, setting up a possible clash between the two branches.

Republicans close to the White House say they expect Mr. Fielding to offer some sort of compromise rather than rule out testimony entirely.

“I think that he will extend an olive branch, but with some important caveats,” said David B. Rivkin, a lawyer for the Reagan and the first Bush administrations. “And then we shall see what the Democrats will do.”

Mr. Snow would not characterize the kind of offer Mr. Fielding might make, saying only that the counsel intended to have a “constructive conversation” with the lawmakers. But the White House is facing the prospect of subpoenas if Mr. Rove and the others do not talk voluntarily; Mr. Leahy has scheduled a vote for Thursday on whether to grant him the power to issue the subpoenas.

“I know there’s been an expectation of brinksmanship,” Mr. Snow said, adding that it was “important for both sides to behave responsibly.”

On Capitol Hill, members of both parties expressed support for repealing the Patriot Act provision, expected to be approved Tuesday. Lawmakers said the provision amounted to an end run around senators, who have long had influence in the appointment of home-state prosecutors. Some senators said the provision was used to clear the way for firing prosecutors and replacing them with candidates considered more in line with the administration.

“We can’t trust this administration to use that authority in a fair and constructive manner,” said Senator Mark Pryor, Democrat of Arkansas, who helped begin an inquiry into the dismissals by objecting to the administration’s choice for his state. “They have proven it to us.”

Mr. Pryor and Senator Harry Reid of Nevada, the majority leader, said that the way the Patriot Act revision, which was written by the Justice Department, was introduced last year with little or no consultation with senators suggested that the administration had intended all along to use it to avoid a showdown with the Senate over new prosecutors.

“Now it is becoming clear why they stuck that provision in there,” Mr. Reid said on the Senate floor. “This was a plan they had had for a long time.”

In a Sept. 13, 2006, e-mail message recently disclosed by the Justice Department, D. Kyle Sampson, chief of staff to Mr. Gonzales, strongly recommended that the administration use the new authority when making appointments. He said it would allow the agency to “give far less deference to home-state senators and thereby get (1) our preferred person appointed and (2) do it far faster and more efficiently, at less political cost to the White House.”

Despite that message, Brian Roehrkasse, a Justice Department spokesman, said Monday that Mr. Sampson’s plan “does not and did not represent the views or final actions of the Justice Department.”

Mr. Roehrkasse said the provision changing the appointment practices was introduced because of concerns about federal courts filling openings as well as fears that the vacancies would remain too long, given the time required for confirmation.

He said that Will Moschella, then assistant attorney general for legislative affairs, proposed the idea in 2003.

“At that time, Will Moschella did not have any knowledge of plans to remove U.S. attorneys,” Mr. Roehrkasse said in a statement.

The legislation the Senate is considering would restore the previous system for naming federal prosecutors, allowing the attorney general to name an interim attorney for up to 120 days while the administration submits a nomination. If a nominee is not confirmed in that period, the federal district court could then name a replacement.

The Justice Department said that approach had presented problems over the years, including the unusual situation in which one branch of government — the judiciary — appoints a representative of another branch. Mr. Roehrkasse said some courts had refused to appoint prosecutors for that reason while others have appointed unqualified attorneys. In addition, 120 days is a short period to win Senate confirmation.

But as the impact of the change in the handling of vacancies became clearer to senators, lawmakers in both parties expressed dismay since they consider the ability to recommend and confirm candidates for federal prosecutor a senatorial privilege they are eager to retain.

“The president can pick anyone he wants to serve on his White House staff, and he does,” Mr. Leahy said. “But when it comes to the United States Department of Justice and our home states, U.S. senators have a say in ensuring fairness and independence to prevent the federal law enforcement function from untoward political influence.”

Eric Lipton contributed reporting.

    Changes Sought in Naming of Prosecutors, NYT, 20.3.2007, http://www.nytimes.com/2007/03/20/washington/20attorneys.html

White House Voices Support for Gonzales

March 20, 2007
The New York Times
By CARL HULSE and SHERYL GAY STOLBERG

WASHINGTON, March 20 — The White House reaffirmed President Bush’s support for Attorney General Alberto R. Gonzales today as the Senate prepared to vote on whether to revoke the authority it granted the administration last year to name federal prosecutors.

“The president spoke to the attorney general around 7:15 a.m. from the Oval Office,” said Dana Perino, a White House spokeswoman. “They had a good conversation about the status of the United States attorney issue. The president also reaffirmed his strong backing and support for the attorney general.”

Mr. Bush’s call to Mr. Gonzales, an old friend from Texas, could dampen speculation that the attorney general’s job is at stake, at least in the immediate future.

Senate Democrats, meanwhile, were moving to overturn a formerly obscure provision of the USA Patriot Act that allowed the attorney general to appoint federal prosecutors for an indefinite period without Senate confirmation. A vote is expected early this afternoon.

President Bush has said he has confidence in Mr. Gonzales, but as recently as Monday the White House seemed to offer only tepid support for him.

“Nobody is prophetic enough to know what the next 21 months hold,” the White House press secretary, Tony Snow, said when asked if Mr. Gonzales would remain until the end of Mr. Bush’s term. Mr. Bush has said Mr. Gonzales needs to repair his relations with Capitol Hill; asked if the attorney general had done so, Mr. Snow said, “I don’t know.”

At the Justice Department, neither Mr. Gonzales nor his staff have engaged in a major effort to reverse the erosion of his support among Republicans in Congress, associates said. Mr. Gonzales read budget briefing books over the weekend and on Monday he phoned one or two lawmakers, said one aide, who declined to identify them.

Mr. Gonzales, who publicly apologized last week for his department’s handling of the dismissals of eight United States attorneys, also acknowledged mistakes in a conference call with United States attorneys over the weekend.

Despite the attorney general’s apologies, Representative Nancy Pelosi, the Democratic speaker of the House, joined a chorus of lawmakers who are calling for Mr. Gonzales to leave the administration.

“I believe we need a new attorney general,” Ms. Pelosi told the editorial board of The Chicago Tribune.

The new chief counsel to President Bush, Fred F. Fielding, spent Monday preparing a response for Democrats who are demanding testimony from Karl Rove and other top aides to Mr. Bush, including the former counsel, Harriet E. Miers.

Mr. Fielding was heading to Capitol Hill today to meet with the chairmen of the Senate and House Judiciary Committees. The Senate committee chairman, Patrick J. Leahy of Vermont, has said he wants Mr. Rove and the others to testify publicly and under oath, but the White House has said that is unlikely to happen, setting up a possible clash between the two branches.

Republicans close to the White House say they expect Mr. Fielding to offer some sort of compromise rather than rule out testimony entirely.

“I think that he will extend an olive branch, but with some important caveats,” said David B. Rivkin, a lawyer for the Reagan and the first Bush administrations. “And then we shall see what the Democrats will do.”

Mr. Snow would not characterize the kind of offer Mr. Fielding might make, saying only that the counsel intended to have a “constructive conversation” with the lawmakers. But the White House is facing the prospect of subpoenas if Mr. Rove and the others do not talk voluntarily; Mr. Leahy has scheduled a vote for Thursday on whether to grant him the power to issue the subpoenas.

“I know there’s been an expectation of brinksmanship,” Mr. Snow said, adding that it was “important for both sides to behave responsibly.”

On Capitol Hill, members of both parties expressed support for repealing the Patriot Act provision. Lawmakers said the provision amounted to an end run around senators, who have long had influence in the appointment of home-state prosecutors. Some senators said the provision was used to clear the way for firing prosecutors and replacing them with candidates considered more in line with the administration.

“We can’t trust this administration to use that authority in a fair and constructive manner,” said Senator Mark Pryor, Democrat of Arkansas, who helped begin an inquiry into the dismissals by objecting to the administration’s choice for his state. “They have proven it to us.”

Mr. Pryor and Senator Harry Reid of Nevada, the majority leader, said that the way the Patriot Act revision, which was written by the Justice Department, was introduced last year with little or no consultation with senators suggested that the administration had intended all along to use it to avoid a showdown with the Senate over new prosecutors.

“Now it is becoming clear why they stuck that provision in there,” Mr. Reid said on the Senate floor. “This was a plan they had had for a long time.”

In a Sept. 13, 2006, e-mail message recently disclosed by the Justice Department, D. Kyle Sampson, chief of staff to Mr. Gonzales, strongly recommended that the administration use the new authority when making appointments. He said it would allow the agency to “give far less deference to home-state senators and thereby get (1) our preferred person appointed and (2) do it far faster and more efficiently, at less political cost to the White House.”

Despite that message, Brian Roehrkasse, a Justice Department spokesman, said Monday that Mr. Sampson’s plan “does not and did not represent the views or final actions of the Justice Department.”

Mr. Roehrkasse said the provision changing the appointment practices was introduced because of concerns about federal courts filling openings as well as fears that the vacancies would remain too long, given the time required for confirmation.

He said that Will Moschella, then assistant attorney general for legislative affairs, proposed the idea in 2003.

“At that time, Will Moschella did not have any knowledge of plans to remove U.S. attorneys,” Mr. Roehrkasse said in a statement.

The legislation the Senate is considering would restore the previous system for naming federal prosecutors, allowing the attorney general to name an interim attorney for up to 120 days while the administration submits a nomination. If a nominee is not confirmed in that period, the federal district court could then name a replacement.

The Justice Department said that approach had presented problems over the years, including the unusual situation in which one branch of government — the judiciary — appoints a representative of another branch. Mr. Roehrkasse said some courts had refused to appoint prosecutors for that reason while others have appointed unqualified attorneys. In addition, 120 days is a short period to win Senate confirmation.

But as the impact of the change in the handling of vacancies became clearer to senators, lawmakers in both parties expressed dismay since they consider the ability to recommend and confirm candidates for federal prosecutor a senatorial privilege they are eager to retain.

“The president can pick anyone he wants to serve on his White House staff, and he does,” Mr. Leahy said. “But when it comes to the United States Department of Justice and our home states, U.S. senators have a say in ensuring fairness and independence to prevent the federal law enforcement function from untoward political influence.”

Eric Lipton contributed reporting.

    White House Voices Support for Gonzales, NYT, 20.3.2007, http://www.nytimes.com/2007/03/20/washington/20cnd-attorney.html?hp

Bush Defends Gonzales in Firing of Prosecutors

March 14, 2007
The New York Times
By DAVID STOUT and CHRISTINE HAUSER

WASHINGTON, March 14 — President Bush defended Attorney General Alberto R. Gonzales today amid the furor over the firing of federal prosecutors, but he said he was troubled over the clumsy handling of the dismissals.

“I do have confidence in Attorney General Al Gonzales,” Mr. Bush said of his old friend from Texas. But he said the dismissals had been bungled, “and frankly I’m not happy about it.”

Mr. Bush, speaking at a news conference in Mérida, Mexico, with President Felipe Calderón of Mexico, said that he was pleased that Mr. Gonzales had acknowledged mistakes surrounding the dismissals, but that “Al’s got work to do up on the Hill,” a reference to the Capitol, where many Democrats and several Republicans have expressed anger and dismay over the firings.

Mr. Bush said that he was confident that political factors were not behind the dismissals, that United States attorneys serve at the pleasure of the president and so can be let go at any time, and that poor communication with Congress was behind the uproar.

But the president’s anger was clear. “This issue was mishandled to the point that you’re asking me about it now in Mexico,” Mr. Bush said. The president, who said he had spoken to Mr. Gonzales this morning, is to arrive later this afternoon in Washington, where lawmakers of both parties continued to criticize Mr. Gonzales.

Mr. Gonzales insisted today that the dismissals of federal prosecutors were not politically motivated and said he would not resign but would continue to focus on what went wrong and trying to correct it. But he found few defenders on Capitol Hill, even among Republicans.

As Mr. Gonzales tried to weather the criticism from lawmakers of both parties, he also acknowledged again today that mistakes in handling the matter were made. He said his department was providing documents and making officials available to Congress.

Congressional Democrats say they want to determine whether the White House was meddling in Justice Department affairs for political reasons and have demanded that President Bush and his chief political adviser, Karl Rove, explain their roles in the dismissals. Perhaps more ominously for Mr. Gonzales, more Republicans joined in the criticism today.

Mr. Gonzales defended himself in a round of appearances on morning television news programs, saying that in a department as large as the Justice Department, “mistakes are going to happen.”

But asked on the NBC program “Today” whether he would consider stepping down, Mr. Gonzales replied: “I am responsible for what happened ultimately at the Department of Justice. Ultimately, I serve the president of the United States. That will be a decision for the president to make.”

With Mr. Bush traveling in Mexico, the White House insisted that the president’s role had been minimal and laid the blame primarily on Harriet E. Miers, who was White House counsel when the prosecutors lost their jobs and who stepped down in January.

“The White House did not play a specific role in the list of the seven U.S. attorneys,” said Dan Bartlett, Mr. Bush’s counselor, referring to a Justice Department roster of those to be dismissed. But he said the White House, through Ms. Miers’s office, ultimately “signed off on the list.”

Asked on the ABC program “Good Morning America” whether the decision to dismiss the eight prosecutors was influenced by five of them having been involved in high-profile political corruption cases, four of them going after Republicans accused of corruption, , Mr. Gonzales replied:

“I would never retaliate, nor would I ever expect a decision with respect to the removal of a United States attorney that would interfere with an ongoing investigation.”

Senator Sam Brownback, a Kansas Republican, defended Mr. Gonzalez, telling Bloomberg News that he had “over all done a good job.” But other Republicans differed. Senator Lisa Murkowski of Alaska told Bloomberg his confidence in the attorney general had been “shaken” and was “waning,” while Senator Gordon Smith of Oregon said, “I think I share the feeling of many Republican senators of profound disappointment.”

And Senator Trent Lott of Mississippi, the Senate’s No. 2 Republican, declined to say whether Mr. Gonzales should stay. “That’s the president’s decision,” he said in an interview with Bloomberg News.

With Democrats vowing to get to the bottom of who ordered the dismissals and why, the White House scrambled to explain the matter by releasing a stream of e-mail messages detailing how Ms. Miers had corresponded with D. Kyle Sampson, the top aide to Mr. Gonzales who drafted the list of those to be dismissed.

Mr. Sampson resigned Monday. On Tuesday afternoon, at a news conference, Mr. Gonzales promised to “find out what went wrong here,” even as he insisted he had had no direct knowledge of how his staff had decided on the dismissals.

He said he had rejected an earlier idea, which the White House attributed to Ms. Miers, to replace all 93 United States attorneys, the top federal prosecutors in their regions. “I felt that was a bad idea,” Mr. Gonzales said, “and it was disruptive.”

He said today that he had been aware of the early communication between Ms. Miers and his chief of staff and that he had been working to ensure that “appropriate, responsible” people were doing their jobs.

“These firings were not politically motivated,” he told NBC. “They were not done in retaliation. They were not done to interfere with the public corruption case.”

Questions about whether the dismissals were politically motivated have been swirling since January. But they reached a fever pitch on Tuesday with disclosures by the White House that Mr. Bush had spoken directly with Mr. Gonzales to pass on concerns from Republican lawmakers, among them Senator Pete V. Domenici of New Mexico, about the way certain prosecutors were handling cases of voter fraud.

The White House took the unusual step of having Mr. Bartlett conduct a hurried briefing with reporters in Mérida, Mexico. He said the president had “all the confidence in the world” in Mr. Gonzales and traced the idea for the dismissals to Ms. Miers, saying she had raised the question of whether the Justice Department should clean house in Mr. Bush’s second term, as is common when a new president takes office.

With Democrats, including the Senate majority leader, Harry Reid of Nevada, insisting that Mr. Gonzales step down, his appearances underscored what two Republicans close to the Bush administration described as a growing rift between the White House and the attorney general. Mr. Gonzales has long been a confidant of the president but has aroused the ire of lawmakers of both parties on several issues, including the administration’s domestic eavesdropping program.

The two Republicans, who spoke anonymously so they could share private conversations with senior White House officials, said top aides to Mr. Bush, including Fred F. Fielding, the new White House counsel, were concerned that the controversy had so damaged Mr. Gonzales’s credibility that he would be unable to advance the White House agenda on national security matters, including terrorism prosecutions.

“I really think there’s a serious estrangement between the White House and Alberto now,” one of the Republicans said.

Already, Democrats are pressing the case for revoking the president’s authority, which he gained with the reauthorization of the USA Patriot Act last year, to appoint interim federal prosecutors indefinitely, without Senate confirmation. The administration has argued that such appointments are necessary to speed the prosecution of terrorism cases. After the dismissals became a big political issue last week, Mr. Gonzales signaled that the administration would not oppose the changes sought by Democrats.

White House officials repeated Tuesday that Mr. Bush had not called for the removal of any particular United States attorney and said there was no evidence the president had been aware that the Justice Department had initiated a process to generate a list of which prosecutors should lose their jobs.

While Democrats voiced the loudest criticism, several leading Republicans said Tuesday that they also had concerns. Among them were Senators Tom Coburn of Oklahoma, John Ensign of Nevada, Arlen Specter of Pennsylvania and George V. Voinovich of Ohio.

Mr. Ensign, ordinarily a strong supporter of the White House, said he was “very angry” at how the administration had handled the dismissal of the prosecutors, particularly Dan Bogden, the United States attorney in Nevada. Mr. Ensign said he had been misled or lied to last year when he asked the Justice Department about the dismissal of Mr. Bogden and was told that it had been connected to his job performance.

“I’m not a person who raises his voice very often,” said Mr. Ensign, who is also the chairman of the National Republican Senatorial Committee, which works to elect Republicans to the Senate.

Of his decision to speak out, he said, “I think there are times where you just have to do what you feel is right, and this is one of those times.”

Mr. Coburn called the dismissals “idiocy on the part of the administration.”

Mr. Specter, in a speech on the Senate floor, referred to another of the dismissed prosecutors, Carol C. Lam, who prosecuted Randy Cunningham, the former Republican congressman now serving an eight-year sentence in a corruption case.

Mr. Specter raised the question of whether Ms. Lam had been dismissed because she was “about to investigate other people who were politically powerful,” and he questioned the Justice Department’s initial explanation that those who had lost their jobs had received poor performance evaluations.

“Well,” he said, “I think we may need to do more by way of inquiry to examine what her performance ratings were to see if there was a basis for her being asked to resign.”

David Stout reported from Washington, and Christine Hauser from New York. Sheryl Gay Stolberg and Jeff Zeleny contributed reporting from Washington.

    Bush Defends Gonzales in Firing of Prosecutors, NYT, 14.3.2007, http://www.nytimes.com/2007/03/14/washington/14cnd-attorneys.html?hp

City’s Immigration Restrictions Go on Trial

March 13, 2007
The New York Times
By JULIA PRESTON

SCRANTON, Pa., March 12 — In a test case about the power of cities to crack down on illegal immigration, a federal trial opened here Monday in which municipal restrictions in Hazleton, Pa., are being challenged as discriminatory and overreaching.

City officials in Hazleton were the first in the country to adopt ordinances intended to drive away illegal immigrants by punishing local landlords for renting to them and employers for giving them jobs. The restrictions, which have yet to take effect, have been imitated by at least 80 towns and cities.

“The city has responded rationally to a very real threat,” Kris W. Kobach, a law professor at the University of Missouri-Kansas City, said in the opening statement on behalf of Hazleton. Mr. Kobach described a surge in violent crime and gang warfare since 2005 that city officials attribute to a growing population of illegal immigrants.

The trial, before Judge James M. Munley of Federal District Court, is the result of a lawsuit by the American Civil Liberties Union and the Puerto Rican Legal Defense and Education Fund. It is the first challenge to the municipal ordinances across the country to be heard in a federal trial.

The rights groups say the ordinances encourage discrimination against Hispanic residents, violate federal and state housing laws, and overstep the powers of a local government to deal with immigration, which has been almost exclusively a federal matter.

Witold Walczak, the legal director for the Pennsylvania A.C.L.U., said Hazleton did not have the authority to inquire into its residents’ immigration status. “Law regarding immigration can and must be passed only by Congress,” Mr. Walczak said in an opening statement, warning that the ordinances could unleash racial vendettas in which neighbors would make complaints about Hispanic residents based on their appearance.

Judge Munley’s ruling could be a major marker of how far local governments can go to limit illegal immigration. In another closely watched case, a state court judge in St. Louis on Monday struck down similar employment and housing laws adopted by Valley Park, Mo., a suburb of St. Louis.

In that case, the blunt ruling by the judge, Barbara W. Wallace, means that “as a matter of state law, no city in Missouri should be doing this,” said Linda M. Martínez, one of the lawyers who brought the challenge.

Most of the ordinances that followed Hazleton’s have faced state and federal challenges. So far, not one of the tougher measures has gone into effect, according to a roster compiled by the Puerto Rican rights group.

After first adopting the ordinances last July, Hazleton revised them several times in response to questions raised by opponents. City officials announced another revision on Monday, saying they would eliminate two words that appeared to leave open the possibility that complaints could be brought against tenants solely on racial grounds.

Hazleton’s mayor, Louis J. Barletta, the driving force behind the laws, said his basic purpose remained the same: to make Hazleton hostile territory for illegal immigrants.

“Illegal is illegal,” Mr. Barletta said in an interview. “There is no race in illegal.”

Mr. Barletta said he was spurred to action last year by the daytime shooting death of a Hazleton man, Derek Kichline, in which two illegal immigrants have been accused.

One ordinance withholds business licenses from employers who knowingly hire illegal workers. Another requires all tenants to register with City Hall, presenting proof of identification that the authorities can check against federal databases.

Mr. Barletta said that some Hispanic businesses had complained of losing customers and that some immigrants had moved away.

“We witnessed many people leaving in the dark of night,” he said. “We have to assume they were illegal aliens.”

Testifying against Hazleton, José Luis Lechuga, a legal Mexican immigrant who said he had lived in the city for 16 years, recounted how his grocery specializing in tortillas and chorizo and his restaurant with home-cooked tacos had failed in recent months. “Many people did not want to come to Hazleton anymore because they did not feel safe,” Mr. Lechuga testified. Hazleton residents “look at us as enemies now.”

Under cross-examination by a Hazleton lawyer, Harry G. Mahoney, Mr. Lechuga confirmed that his financial troubles had started well before the ordinances were passed, and he acknowledged that many of his customers might have been illegal immigrants.

Still, the court testimony left an impression of a harsh social change in Hazleton for some Hispanic residents.

“I saw a lot of fear” after the laws were adopted, said one resident, Agapito López, a retired ophthalmologist. “It was hurting my people. Latinos are a family.”

Judge Munley ruled Friday that the illegal immigrants who were plaintiffs in the case did not have to appear in court but could present their depositions as evidence, meaning they would not face cross-examination.

Last year, Hazleton also adopted an ordinance making English the city’s official language. That law is the subject of a temporary restraining order issued by Judge Munley, but it is not at issue in this trial.

    City’s Immigration Restrictions Go on Trial, NYT, 13.3.2007, http://www.nytimes.com/2007/03/13/us/13hazleton.html

White House Said to Prompt Firing of Prosecutors

March 13, 2007
By DAVID JOHNSTON and ERIC LIPTON

WASHINGTON, March 12 — The White House was deeply involved in the decision late last year to dismiss federal prosecutors, including some who had been criticized by Republican lawmakers, administration officials said Monday.

Last October, President Bush spoke with Attorney General Alberto R. Gonzales to pass along concerns by Republicans that some prosecutors were not aggressively addressing voter fraud, the White House said Monday. Senator Pete V. Domenici, Republican of New Mexico, was among the politicians who complained directly to the president, according to an administration official.

The president did not call for the removal of any specific United States attorneys, said Dana Perino, a White House spokeswoman. She said she had “no indication” that the president had been personally aware that a process was already under way to identify prosecutors who would be fired.

But Ms Perino disclosed that White House officials had consulted with the Justice Department in preparing the list of United States attorneys who would be removed.

Within a few weeks of the president’s comments to the attorney general, the Justice Department forced out seven prosecutors.

Previously, the White House had said that Mr. Bush’s aides approved the list of prosecutors only after it was compiled.

The role of the president and his advisers in the prosecutor shakeup is likely to intensify calls by Congress for an investigation. It is the worst crisis of Mr. Gonzales’s tenure and provoked charges that the dismissals were a political purge threatening the historical independence of the Justice Department.

The idea of dismissing federal prosecutors originated in the White House more than a year earlier, White House and Justice officials said Monday.

In early 2005, Harriet E. Miers, then the White House legal counsel, asked a Justice Department official whether it would be feasible to replace all United States attorneys when their four-year terms expired, according to the Justice Department. The proposal came as the administration was considering which political appointees to replace in the second term, Ms. Perino said.

Ms. Miers sent her query to D. Kyle Sampson, a top aide to Mr. Gonzales, the Justice officials said. Mr. Sampson, who resigned Monday, replied that filling so many jobs at once would overtax the department. He suggested replacing a smaller group, according to e-mail messages and other memorandums compiled by the Justice Department.

Karl Rove, the senior White House adviser, also had rejected the idea of replacing all the prosecutors, Ms. Perino said. But as Ms. Miers worked with Mr. Sampson on devising a list of attorneys to oust, Mr. Rove relayed to her complaints he had received that the Justice Department was not moving aggressively on voter fraud cases.

The White House continued to defend its handling of the dismissals.

“We continue to believe that the decision to remove and replace U.S. attorneys who serve at the pleasure of the president was perfectly appropriate and within our discretion,” Ms. Perino said.

“We stand by the Department of Justice assertion that they identified the seven U.S. attorneys who were removed, as they have said, based on performance and managerial reasons.”

On Monday Congressional Democrats demanded more information from the White House about the ousters, calling on Mr. Rove to testify about any discussions he had had about federal prosecutors. Senator Charles E. Schumer, Democrat of New York, said he would seek a subpoena for Mr. Rove’s testimony if he did not appear voluntarily.

Justice Department officials have said they removed the United States attorney in Arkansas earlier last year to make room for a Republican Party lawyer and onetime adviser to Mr. Rove.

In the other cases, though, the department at first denied that the dismissals were performance related, and then said they were, citing managerial problems, lack of aggressiveness and conflicts over seeking the death penalty or enforcing immigration laws.

Justice Department officials said Monday that they had only learned recently about Mr. Sampson’s extensive e-mail and memos with Ms. Miers about the prosecutors. The communications were discovered Thursday when Mr. Sampson turned over the material to officials who were assembling documents in response to Congressional requests.

The documents did not provide a clear motive for the firings. Some suggested that department officials were dissatisfied with specific prosecutors, but none cited aggressive public corruption inquiries or failure to pursue voter fraud cases as an explicit reason to remove them.

On Dec. 4, 2006, three days before the dismissals, Mr. Sampson sent an e-mail message to the White House with a copy to Ms. Miers outlining plans to carry out the firings

“We would like to execute this on Thursday, Dec. 7,” Mr. Sampson wrote. Because some United States attorneys were still in Washington attending a conference, he planned to postpone telling them they were being fired. He wrote, “We want to wait until they are back home and dispersed to reduce chatter.”

Mr. Sampson predicted that dismissals might stir debate. “Prepare to Withstand Political Upheaval,” he wrote in describing what to expect as a result of the firings. “U.S Attorneys desiring to save their jobs aided by their allies in the political arena as well as the Justice Department community, likely will make efforts to preserve themselves in office. You should expect these efforts to be strenuous.”

Mr. Rove’s role in expressing concerns about prosecutors had emerged in recent days. The White House acknowledged Sunday that Mr. Rove had passed on complaints to Mr. Gonzales and Ms. Miers about David C. Iglesias, who was dismissed as the United States attorney in New Mexico. Mr. Rove’s role surfaced after the McClatchy Newspapers reported that a Republican Party official in New Mexico had complained to Mr. Rove in 2005 and again a year later about Mr. Iglesias’s failure to indict Democrats in a voter fraud investigation.

Concern about voter registration fraud turned political in several states in 2004 where there were close elections, including some lost narrowly by Republican candidates.

An associate of Mr. Rove said Monday that although he had learned in November that the prosecutors were being replaced, his conversation with Allen Weh, the Republican Party chairman in New Mexico, and subsequently with Mr. Gonzales, were brief exchanges at holiday parties and that they occurred after Dec. 7, when Mr. Iglesias and six other prosecutors were dismissed.

John McKay, the ousted United States attorney in Seattle, said last week while in Washington to testify before Congress that White House lawyers interviewing him for a possible federal judgeship had asked him why he had “mishandled” an investigation into voter fraud allegations in his state following the 2004 elections.

House and Senate investigators have already made clear that they want to examine exactly what role the White House, Mr. Sampson, Ms. Miers (who left the administration in January), Mr. Rove and other senior officials played in the matter. Last week, six of the fired prosecutors testified before the Senate Judiciary Committee. Officials said Mr. Sampson, who once worked at the Bush White House interviewing candidates for United States attorney, was largely behind the effort at the Justice Department.

This week, the United States attorney dispute will be aired on the Senate floor during debate over legislation to roll back a provision of the antiterrorism law that allows President Bush to appoint interim United States attorneys indefinitely.

Jeff Zeleny contributed reporting.

    White House Said to Prompt Firing of Prosecutors, NYT, 13.3.2007, http://www.nytimes.com/2007/03/13/washington/13attorneys.html?_r=1&hp&oref=slogin

Editorial

The Failed Attorney General

March 11, 2007
The New York Times

During the hearing on his nomination as attorney general, Alberto Gonzales said he understood the difference between the job he held — President Bush’s in-house lawyer — and the job he wanted, which was to represent all Americans as their chief law enforcement officer and a key defender of the Constitution. Two years later, it is obvious Mr. Gonzales does not have a clue about the difference.

He has never stopped being consigliere to Mr. Bush’s imperial presidency. If anyone, outside Mr. Bush’s rapidly shrinking circle of enablers, still had doubts about that, the events of last week should have erased them.

First, there was Mr. Gonzales’s lame op-ed article in USA Today trying to defend the obviously politically motivated firing of eight United States attorneys, which he dismissed as an “overblown personnel matter.” Then his inspector general exposed the way the Federal Bureau of Investigation has been abusing yet another unnecessary new power that Mr. Gonzales helped wring out of the Republican-dominated Congress in the name of fighting terrorism.

The F.B.I. has been using powers it obtained under the Patriot Act to get financial, business and telephone records of Americans by issuing tens of thousands of “national security letters,” a euphemism for warrants that are issued without any judicial review or avenue of appeal. The administration said that, as with many powers it has arrogated since the 9/11 attacks, this radical change was essential to fast and nimble antiterrorism efforts, and it promised to police the use of the letters carefully.

But like so many of the administration’s promises, this one evaporated before the ink on those letters could dry. The F.B.I. director, Robert Mueller, admitted Friday that his agency had used the new powers improperly.

Mr. Gonzales does not directly run the F.B.I., but it is part of his department and has clearly gotten the message that promises (and civil rights) are meant to be broken.

It was Mr. Gonzales, after all, who repeatedly defended Mr. Bush’s decision to authorize warrantless eavesdropping on Americans’ international calls and e-mail. He was an eager public champion of the absurd notion that as commander in chief during a time of war, Mr. Bush can ignore laws that he thinks get in his way. Mr. Gonzales was disdainful of any attempt by Congress to examine the spying program, let alone control it.

The attorney general helped formulate and later defended the policies that repudiated the Geneva Conventions in the war against terror, and that sanctioned the use of kidnapping, secret detentions, abuse and torture. He has been central to the administration’s assault on the courts, which he recently said had no right to judge national security policies, and on the constitutional separation of powers.

His Justice Department has abandoned its duties as guardian of election integrity and voting rights. It approved a Georgia photo-ID law that a federal judge later likened to a poll tax, a case in which Mr. Gonzales’s political team overrode the objections of the department’s professional staff.

The Justice Department has been shamefully indifferent to complaints of voter suppression aimed at minority voters. But it has managed to find the time to sue a group of black political leaders in Mississippi for discriminating against white voters.

We opposed Mr. Gonzales’s nomination as attorney general. His résumé was weak, centered around producing legal briefs for Mr. Bush that assured him that the law said what he wanted it to say. More than anyone in the administration, except perhaps Vice President Dick Cheney, Mr. Gonzales symbolizes Mr. Bush’s disdain for the separation of powers, civil liberties and the rule of law.

On Thursday, Senator Arlen Specter, the senior Republican on the Senate Judiciary Committee, hinted very obliquely that perhaps Mr. Gonzales’s time was up. We’re not going to be oblique. Mr. Bush should dismiss Mr. Gonzales and finally appoint an attorney general who will use the job to enforce the law and defend the Constitution.

    The Failed Attorney General, NYT, 11.3.2007, http://www.nytimes.com/2007/03/11/opinion/11sun1.html

Court Rejects Strict Gun Law as Unconstitutional

March 10, 2007
The New York Times
By ADAM LIPTAK

Interpreting the Second Amendment broadly, a federal appeals court in Washington yesterday struck down a gun control law in the District of Columbia that bars residents from keeping handguns in their homes.

The decision was the first from a federal appeals court to hold a gun control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to the collective rights of state militias. Nine other federal appeals courts around the nation have rejected that interpretation.

Linda Singer, the District’s acting attorney general, said the decision was “a huge setback.”

“We’ve been making progress on bringing down crime and gun violence,” Ms. Singer said, “and this sends us in a different direction.”

By contrast, advocates of gun rights praised the decision, by the United States Court of Appeals for the District of Columbia Circuit, saying it raised the prospect of a national re-evaluation of the meaning of the Second Amendment and the rights of gun owners. They said the District of Columbia would have to begin procedures to allow handgun possession in private homes unless yesterday’s decision was stayed.

Lawyers on both sides of the case said it had created a conflict among the federal courts of appeal on a significant constitutional issue, making review by the Supreme Court likely. The Supreme Court last considered the issue in 1939, and there are only scattered hints about how the current justices might rule.

The majority in yesterday’s decision pointed to a 1998 dissent in which “at least three current members (and one former member) of the Supreme Court have read ‘bear arms’ in the Second Amendment to have meaning beyond mere soldiering.” They were former Chief Justice William H. Rehnquist, who died in 2005, and Justices Ruth Bader Ginsburg, Antonin Scalia and David H. Souter.

In a 1996 dissent while serving on the federal appeals court in Philadelphia, Judge Samuel A. Alito Jr., now a justice of the Supreme Court, wrote that he would have struck down a federal law regulating the possession of machine guns under the commerce clause of the Constitution.

If the Supreme Court were to adopt the District of Columbia Circuit’s interpretation of the Second Amendment, gun control laws and gun prosecutions around the country could be endangered.

The case decided yesterday was brought by Dick Heller, a guard at the Federal Judicial Center who was permitted to carry a gun on duty and wanted to keep one at home. His application was denied by officials in the District of Columbia.

Mr. Heller challenged provisions of the District’s law, one of the most restrictive in the nation, that almost always banned the registration of handguns, that prohibited carrying handguns without a license even from one room of a home to another and that required lawfully owned firearms to be kept unloaded and disassembled or bound by a trigger lock.

In a 2-to-1 decision, a panel of the District of Columbia Circuit court ruled those provisions unconstitutional.

The decision relied on what has so far been a minority interpretation of the Second Amendment, though one that has been embraced by the Justice Department in the current administration and by some constitutional scholars.

The Second Amendment says, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

The basic question in the case was whether the first clause in the amendment limits the last one. Most federal appeals courts have said that the amendment read as a whole protects only a collective right of the states to maintain militias.

In yesterday’s decision, the majority focused on the final clause, saying that the amendment broadly protects the rights of individuals to own guns.

“It seems passing strange,” Judge Laurence H. Silberman wrote for the majority, “that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as ‘Congress shall make no law disarming the state militias’ or ‘states have a right to a well-regulated militia.’ ”

The United States Court of Appeals for the Fifth Circuit, which hears appeals from Louisiana, Mississippi and Texas, also embraced the individual-rights view of the Second Amendment in 2001. But it did so in an aside in a ruling that allowed a gun prosecution to go forward.

By contrast, said Robert A. Levy, a senior fellow at the Cato Institute and one of Mr. Heller’s lawyers, “the D.C. opinion is unequivocal.”

In a statement on its Web site, the National Rifle Association called the decision a significant victory that “affirmed that the Second Amendment of the Constitution protects an inherent, individual right to bear arms.”

The immediate consequence of the decision, Mr. Levy said, is that “D.C. will have to implement a process for enabling people to keep handguns in their houses.”

Speaking to reporters yesterday, Mayor Adrian M. Fenty said the District was reviewing both the impact of the decision and the next steps it would take in the litigation. “Today’s decision flies in the face of laws that have helped decrease gun violence in the District of Columbia,” Mr. Fenty said at a news conference. “We intend to do everything in our power to get this decision overturned.”

Ms. Singer said it was small comfort that the decision, if not the potential sweep of its reasoning, was limited to guns in the home. “They’re often dangerous in the home,” she said. “Kids can be injured. And they often don’t stay at home.”

Judge Silberman, writing for the majority yesterday, said the decision’s reasoning still allowed “reasonable restrictions” on the ownership and use of guns, and he gave some examples. It is “presumably reasonable,” he wrote, to prohibit drunks from carrying weapons and to ban guns in churches and polling places. Judge Thomas B. Griffith joined the majority decision.

Judge Silberman concluded that the Second Amendment protects an individual right just as the First Amendment protects free speech and the Fourth Amendment bars unreasonable searches.

The majority rejected the District’s argument that the Second Amendment should apply only to the kinds of guns in use at the end of the 18th century.

Lawyers on both sides of the issue say the Supreme Court’s 1939 decision on the Second Amendment supports their views.

Judge Silberman wrote that the decision, United States v. Miller, “did not explicitly accept the individual-right position” but did implicitly assume it.

In dissent, Judge Karen L. Henderson said the Miller decision unambiguously declared, in her words, that “the right of the people to keep and bear arms relates to those militia whose continued vitality is required to safeguard the individual states.” Judge Henderson added that the District of Columbia is not a state, meaning that the Second Amendment does not apply to it.

Judge Silberman was appointed by President Ronald Reagan, Judge Henderson by the first President George Bush and Judge Griffith by the current President Bush.

For many decades and under both Democratic and Republican administrations, the Justice Department said the Second Amendment protected only collective rights. The Bush administration reversed that longstanding position, saying the amendment protects the gun ownership rights of individuals, subject to a few restrictions.

Patricia Riley, a Justice Department official in the office of the United States attorney in the District, said yesterday that her office was “studying the decision and analyzing its effect on gun prosecutions.”

    Court Rejects Strict Gun Law as Unconstitutional, NYT, 10.3.2007, http://www.nytimes.com/2007/03/10/washington/10gun.html?_r=1&hp&oref=slogin

Justice Department Says F.B.I. Misused Patriot Act

By THE ASSOCIATED PRESS
March 9, 2007
Filed at 1:00 p.m. ET
The New York Times

WASHINGTON (AP) -- The FBI improperly and, in some cases, illegally used the USA Patriot Act to secretly obtain personal information about people in the United States, a Justice Department audit concluded Friday.

And for three years the FBI underreported to Congress how often it forced businesses to turn over the customer data, the audit found.

FBI Director Robert Mueller said he was to blame for not putting more safeguards into place.

''I am to be held accountable,'' Mueller said. He told reporters he would correct the problems and did not plan to resign.

''The inspector general went and did the audit that I should have put in place many years ago,'' Mueller said.

The audit by Justice Department Inspector General Glenn A. Fine found that FBI agents sometimes demanded personal data on individuals without proper authorization. The 126-page audit also found the FBI improperly obtained telephone records in non-emergency circumstances.

The audit blames agent error and shoddy record-keeping for the bulk of the problems and did not find any indication of criminal misconduct.

Still, ''we believe the improper or illegal uses we found involve serious misuses of national security letter authorities,'' the audit concludes.

At issue are the security letters, a power outlined in the Patriot Act that the Bush administration pushed through Congress after the Sept. 11, 2001, terror attacks. The letters, or administrative subpoenas, are used in suspected terrorism and espionage cases. They allow the FBI to require telephone companies, Internet service providers, banks, credit bureaus and other businesses to produce highly personal records about their customers or subscribers -- without a judge's approval.

About three-fourths of the national security letters were issued for counterterror cases, and the other fourth for spy investigations.

Fine's annual review is required by Congress, over the objections of the Bush administration.

The audit released Friday found that the number of national security letters issued by the FBI skyrocketed in the years after the Patriot Act became law.

In 2000, for example, the FBI issued an estimated 8,500 letters. By 2003, however, that number jumped to 39,000. It rose again the next year, to about 56,000 letters in 2004, and dropped to approximately 47,000 in 2005.

Over the entire three-year period, the audit found the FBI issued 143,074 national security letters requesting customer data from businesses.

The FBI vastly underreported the numbers. In 2005, the FBI told Congress that its agents in 2003 and 2004 had delivered only 9,254 national security letters seeking e-mail, telephone or financial information on 3,501 U.S. citizens and legal residents over the previous two years.

Additionally, the audit found, the FBI identified 26 possible violations in its use of the national security letters, including failing to get proper authorization, making improper requests under the law and unauthorized collection of telephone or Internet e-mail records.

Of the violations, 22 were caused by FBI errors, while the other four were the result of mistakes made by the firms that received the letters.

The FBI also used so-called ''exigent letters,'' signed by officials at FBI headquarters who were not authorized to sign national security letters, to obtain information. In at least 700 cases, these exigent letters were sent to three telephone companies to get toll billing records and subscriber information.

''In many cases, there was no pending investigation associated with the request at the time the exigent letters were sent,'' the audit concluded.

The letters inaccurately said the FBI had requested subpoenas for the information requested -- ''when, in fact, it had not,'' the audit found.

Senators outraged over the conclusions signaled they would provide tougher oversight of the FBI -- and perhaps limit its power.

''The report indicates abuse of the authority'' Congress gave the FBI, said Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. ''You cannot have people act as free agents on something where they're going to be delving into your privacy.''

The committee's top Republican, Pennsylvania Sen. Arlen Specter, said the FBI appears to have ''badly misused national security letters.'' The senator said, ''This is, regrettably, part of an ongoing process where the federal authorities are not really sensitive to privacy and go far beyond what we have authorized.''

Sen. Russ Feingold, D-Wis., another member on the panel that oversees the FBI, said the report ''proves that 'trust us' doesn't cut it.''

Justice spokeswoman Tasia Scolinos said Attorney General Alberto Gonzales ''commends the work of the inspector general in uncovering serious problems in the FBI's use of NSLs.''

The American Civil Liberties Union said the audit proves Congress must amend the Patriot Act to require judicial approval anytime the FBI wants access to sensitive personal information. ''The Attorney General and the FBI are part of the problem and they cannot be trusted to be part of the solution,'' said Anthony D. Romero, the ACLU's executive director.

------

On the Net:

The report is at: http://www.usdoj.gov/oig/reports/FBI/index.htm

Justice Department: http://www.usdoj.gov

FBI: http://www.fbi.gov/

    Justice Department Says F.B.I. Misused Patriot Act, NYT, 9.3.2007, http://www.nytimes.com/aponline/us/AP-National-Security-Letters.html

Editorial

The Gonzales Eight

March 8, 2007
The New York Times

Americans often suspect that their political leaders are arrogant and out of touch. But even then it is nearly impossible to fathom what self-delusion could have convinced Senator Pete Domenici of New Mexico that he had a right to call a federal prosecutor at home and question him about a politically sensitive investigation.

That disturbing tale is one of several revealed this week in Congressional hearings called to look into the firing of eight United States attorneys. The hearings left little doubt that the Bush administration had all eight — an unprecedented number — ousted for political reasons. But it points to even wider abuse; prosecutors suggest that three Republican members of Congress may have tried to pressure the attorneys into doing their political bidding.

It already seemed clear that the Bush administration’s purge had trampled on prosecutorial independence. Now Congress and the Justice Department need to investigate possible ethics violations, and perhaps illegality. Two of the fired prosecutors testified that they had been dismissed after resisting what they suspected were importunings to use their offices to help Republicans win elections. A third described what may have been a threat of retaliation if he talked publicly about his firing.

David Iglesias, who was removed as the United States attorney in Albuquerque, said that he was first contacted before last fall’s election by Representative Heather Wilson, Republican of New Mexico. Ms. Wilson, who was in a tough re-election fight, asked about sealed indictments — criminal charges that are not public.

Two weeks later, he said, he got a call from Senator Pete Domenici, Republican of New Mexico, asking whether he intended to indict Democrats before the election in a high-profile corruption case. When Mr. Iglesias said no, he said, Mr. Domenici replied that he was very sorry to hear it, and the line went dead. Mr. Iglesias said he’d felt “sick.” Within six weeks, he was fired. Ms. Wilson and Mr. Domenici both deny that they had tried to exert pressure.

John McKay of Seattle testified that the chief of staff for Representative Doc Hastings, Republican of Washington, called to ask whether he intended to investigate the 2004 governor’s race, which a Democrat won after two recounts. Mr. McKay says that when he went to the White House later to discuss a possible judicial nomination (which he did not get), he was told of concerns about how he’d handled the election. H. E. Cummins, a fired prosecutor from Arkansas, said that a Justice Department official, in what appeared to be a warning, said that if he kept talking about his firing, the department would release negative information about him.

Congress must keep demanding answers. It must find out who decided to fire these prosecutors and why, and who may have authorized putting pressure on Mr. Cummins. And it must look into whether Senator Domenici and Representatives Wilson and Hastings violated ethics rules that forbid this sort of interference. We hope the House committee will not be deterred by the fact that Mr. Hastings is its ranking Republican. The Justice Department also needs to open its own investigation. Attorney General Alberto Gonzales’s claim that these prosecutors were fired for poor performance was always difficult to believe. Now it’s impossible.

    The Gonzales Eight, NYT, 8.3.2007, http://www.nytimes.com/2007/03/08/opinion/08thu1.html

Jury Describes Decision as Hard but Inevitable

March 7, 2007
The New York Times
By ERIC LIPTON

WASHINGTON, March 6 — One juror, Rosemary Russo, a government lawyer, described it as an “emotional” decision that left some jurors in tears.

“I don’t think it was an easy decision for any of us,” Ms. Russo said. “I think anyone who was in the room when the decision was made saw that the jury was teared up.”

But another juror, Denis Collins, a former Washington Post reporter, said that after 10 days of meticulous examination of the evidence, the verdict was inevitable.

“There was no big hammer that came down,” Mr. Collins said. “It was just the arithmetic of it became obvious.”

As the days passed, the brown-paneled walls of the deliberation room where I. Lewis Libby Jr.’s fate would be decided filled up with photographs of the witnesses and 34 large Post-it notes summarizing every critical piece of their testimony.

Those pieces of evidence became the building blocks leading to the jury’s conclusion: that Mr. Libby was guilty of perjury and obstruction of justice.

The two jurors who talked after the verdict described how they came almost reluctantly to the decision, with Mr. Collins saying Mr. Libby had been “the fall guy” for the administration.

But they said it was just too much of a leap for them to think that Mr. Libby’s contradictory accounts were the result of a bad memory.

“There was no wiggle room about it, unless you think all these people who work for the administration were lying,” said Mr. Collins, who emerged as a de facto spokesman for the 11-member jury and later discussed the verdict in a phone interview.

From early on, he said, he considered Mr. Libby a decent person, worthy of their sympathy. And he wondered why other senior Bush administration officials were not facing trial in the disclosure of a C.I.A. operative’s identity.

“Where is Rove? Where are these other guys?” Mr. Collins said, referring to President Bush’s senior adviser, Karl Rove. “I wish we weren’t judging Libby.”

The jury that convicted Mr. Libby was a well-educated group, including an investment banker with a doctorate in economics from the Massachusetts Institute of Technology and the financial manager of a Washington law firm, and their detailed-oriented, collaborative journey through the evidence reflected that.

Inside the deliberation room, two long tables were pushed together and the blinds closed to block the sun, with the jurors only occasionally peeking outside to dream about running out and picking up a hot dog from a cart in the nearby plaza.

The jury agreed not to try to take initial votes of their disposition toward convicting Mr. Libby. Instead, they undertook a laborious review of all the testimony, even grading the witnesses and marking down reasons whether or not to believe what each one said.

“Motivation to tell the truth? Motivation to lie?” Mr. Collins said, recalling the list of questions they went through for each witness. “Believability? State of mind?”

Ari Fleischer, the former press secretary for President Bush, was deemed “credible,” Mr. Collins said, given how “brutally honest” he was, since he testified that reporters would not listen to him when he tried to pitch an article that might support the administration’s views.

“Why would he make himself look bad on purpose?” Mr. Collins said of Mr. Fleischer’s testimony.

One particularly important focus, Mr. Collins said, was testimony about a conversation Mr. Libby had with Tim Russert, the Washington bureau chief of NBC News. Mr. Libby had said Mr. Russert told him about Valerie Wilson’s job with the Central Intelligence Agency around July 10 or July 11, 2003.

Although Mr. Libby acknowledged that he had heard earlier about Ms. Wilson from his boss, Vice President Dick Cheney, he said he had forgotten about it until the July exchange with Mr. Russert, when “it was like hearing it for the first time.”

The jury considered carefully the testimony that Mr. Libby’s memory was faulty, Mr. Collins said, especially the suggestion from his aide, John Hannah, that he often could not recall, in a single day, who had told him what.

But the nine separate conversations involving eight people who claimed that Mr. Libby had talked about or participated in an exchange about Ms. Wilson with them — at least some before the conversation with Mr. Russert — were just too convincing, Mr. Collins said.

“One of the jurors said, ‘If I am told something once, I am likely to forget it,’ ” Mr. Collins recalled. “ ‘But if I am told it many times, it is much less likely I will forget it. And if I tell it to someone else, that is even more unlikely.’ ”

The deliberations progressed with almost no political undertones, Mr. Collins said. In fact, he said, he did not know the party affiliation of any of the other jurors until after they reached their verdict, when three jurors volunteered that they were registered as independents.

There also was no discussion about the subtext of the trial — the decision to go to war against Iraq.

“This was not a question about who can we punish for going to Iraq,” said Mr. Collins, 57, a registered Democrat. “We just never allowed ourselves to go there, and I am not going to go there now.”

Even though Mr. Libby never testified at the trial, the jury had access to eight hours of his grand jury testimony, which earned him a fair amount of sympathy as they listened to him politely answer questions.

“We are not saying that we did not think that Mr. Libby was not guilty of these things,” Mr. Collins said. But he then added, “He was the fall guy. He made bad judgments.”

The two main lawyers in the case, Patrick J. Fitzgerald, the prosecutor, and Theodore V. Wells Jr., for the defense, had radically different styles, but both were effective in their own ways, Mr. Collins said.

“They were each just working with what they were given,” he said, “and the way it came out we just thought that Fitzgerald was given a lot more, he had a lot more to work with.”

Reporting was contributed by Suevon Lee and Sarah Abruzzese, and research by Barclay Walsh and Sabrina Pacifici.

    Jury Describes Decision as Hard but Inevitable, NYT, 7.3.2007, http://www.nytimes.com/2007/03/07/washington/07jury.html

Libby Guilty of Lying in C.I.A. Leak Case

March 6, 2007
The New York Times
By DAVID STOUT and NEIL A. LEWIS

WASHINGTON, Feb. 6 — I. Lewis Libby Jr., the former chief of staff to Vice President Dick Cheney, was convicted today of lying to F.B.I. agents and grand jurors investigating the unmasking of a C.I.A. operative amid a burning dispute over the war in Iraq.

The jury rejected Mr. Libby’s claims of memory lapses as it convicted him of obstruction of justice, giving false statements to the F.B.I. and perjuring himself, charges embodied in four counts of the indictment.

The panel acquitted him on a single count of making false statements.

The jury deliberated for 10 days before handing up their verdict to Federal Judge Reggie B. Walton this morning, ending one of Washington’s most closely watched trials of recent years. Mr. Libby, 56, could theoretically face more than two decades in prison, but as a first offender he will almost surely get a much lighter penalty when he is sentenced in early June.

Even if the conviction is overturned on appeal, or voided by a presidential pardon, the conviction is, for the moment, a personal tragedy for “Scooter” Libby, as he has been known since childhood. It is also a major embarrassment for the Bush administration, whose Iraq policy is increasingly unpopular with the public and is under increasing attack on Capitol Hill.

The jury of seven women and four men reached their decision after a 12th member of the panel was dismissed. Judge Walton found that the 12th juror had disqualified herself by inadvertently listening to information about the case outside the courtroom.

Right up to the final stages of the deliberations, there were hints of some confusion on the jury as to just what Mr. Libby was accused of doing. This morning, for instance, Judge Walton was asked if Mr. Libby was accused of making a false statement to a reporter from Time magazine. No, the judge said; he was not.

The trial pitted a special prosecutor, Patrick J. Fitzgerald, who contended that Mr. Libby lied repeatedly in an attempt to hamper an investigation into who disclosed the name of the operative, against Mr. Libby’s lawyers, led by Theodore V. Wells Jr., who insisted that any inconsistencies or inaccuracies in Mr. Libby’s accounts came from the innocent memory lapses of a very busy man.

Mr. Fitzgerald told jurors near the trial’s conclusion that Mr. Libby “made a gamble — he threw sand in the eyes of the grand jury” rather than tell the truth and risk being prosecuted for leaking the name of the operative, Valerie Plame Wilson.

Nonsense, Mr. Wells countered: “Scooter Libby is innocent. He didn’t do anything. He didn’t leak to anybody. Think about the madness of this prosecution. He’s been indicted for perjury, false statements — it’s craziness.”

Ms. Wilson’s husband, the former diplomat Joseph C. Wilson IV, was a harsh critic of President Bush’s Iraq policy. He traveled to Africa in 2002 to investigate rumors that Saddam Hussein had tried to acquire uranium there. In an Op-Ed article in The New York Times on July 6, 2003, he wrote that those reports were “highly doubtful.”

Eight days later, the columnist Robert D. Novak wrote that the Central Intelligence Agency chose Mr. Wilson for the Africa trip at the suggestion of his wife, who worked for the C.I.A. and specialized in intelligence about weapons of mass destruction.

The hint of nepotism was seized upon by White House allies and critics of Mr. Wilson, who said it undermined the credibility of his account. But Mr. Wilson and critics of the White House contended that Ms. Wilson was unmasked in order to intimidate foes of the administration.

A paradox in the Libby case is that no one was ever charged criminally with the leak itself. In fact, Mr. Fitzgerald knew early on that Richard L. Armitage, the former deputy Secretary of State, was the primary source.

Mr. Armitage first told the authorities in October 2003 that he was the source for the Novak column that set off the investigation. And Karl Rove, the president’s top political adviser, is known to have provided extra confirmation of her identity for Mr. Novak.

Depending on the circumstances, disclosure of a C.I.A. employee’s name may or may not be a crime. People familiar with Mr. Armitage’s role said he cooperated in the inquiry, turning over his calendars and datebooks and testifying several times before the grand jury. Mr. Rove, who testified before the grand jury five times, was not told by Mr. Fitzgerald until last June that he would not be charged.

During the trial, Mr. Wells tried to show that his client was being made a scapegoat to protect Mr. Rove, who was considered vital to President Bush’s re-election campaign in 2004.

Mr. Libby did not testify at his trial. In his earlier accounts, to grand jurors and F.B.I. agents, he said he learned of Mrs. Wilson’s identity from reporters, and no earlier than July 10, 2003. But Mr. Fitzgerald maintained that Mr. Libby learned Mrs. Wilson’s identity well before that, from high administration officials, and that he was telling reporters about her, rather than the other way around, in an attempt to discredit her husband.

The four-week trial offered glimpses, not altogether flattering, into the workings of the vice president’s office, the government’s relationships with news organizations and the professional and personal shortcomings of journalists.

Mr. Fitzgerald subpoenaed several reporters who testified that Mr. Libby told them about Mrs. Wilson before July 10, 2003. But Mr. Wells, in his cross-examination, brought out several instances, some almost comic, in which those reporters garbled their own notes, or lost them, or displayed fuzzy recollection.

An early spark in the long-burning controversy was a 16-word statement by President Bush in his 2003 State of the Union Address: “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.”

Mr. Bush’s statement came as the administration was preparing to go to war with Iraq on the ground that the country was refusing to give up its deadly unconventional weapons.

Months after the speech, the White House acknowledged that the uranium allusion should not have been in the speech. By that time, a major political debate was brewing, as the quick conquest of Iraq and the ouster of its dictator had failed to turn up the deadly weapons that were cited repeatedly as justification for the war.

The controversy was fanned by Mr. Wilson’s July 6, 2003, article in The Times in which he accused the administration of using “twisted” intelligence to justify the war. The same day his article appeared Mr. Wilson repeated his conclusions on NBC’s “Meet the Press.”

Mr. Wilson’s July 6 article was, in Mr. Libby’s view, “a very serious attack,” Mr. Fitzgerald told jurors, one that impelled him to peddle Ms. Wilson’s name and then try to cover his own tracks.

Among the several admonitions Judge Walton gave the jurors was that they must not be influenced by their feelings about the Iraq war or the Bush administration. During jury selection, the defense filtered out those District of Columbia residents who acknowledged negative feelings about the Bush White House and the war.

    Libby Guilty of Lying in C.I.A. Leak Case, NYT, 6.3.2007, http://www.nytimes.com/2007/03/06/washington/06cnd-libby.html?hp

Editorial

No More Denials, Please

March 3, 2007
The New York Times

It is time for the Justice Department to stop issuing rote denials that are becoming increasingly hard to believe about the suspicious firing of eight United States attorneys. Attorney General Alberto Gonzales should appoint an impartial investigator to get to the bottom of this unfolding scandal.

Just this week, David Iglesias, one of the eight fired United States attorneys, charged that he was dismissed for resisting pressure to begin a politically charged prosecution before the 2006 election. His allegation came shortly after performance evaluations came to light that throw considerable doubt on the Justice Department’s claim that the United States attorneys were fired for poor performance.

United States attorneys, the highest federal prosecutors at the state level, must be insulated from politics. Their decisions about whether to indict can ruin lives, and change the outcome of elections. To ensure their independence, United States attorneys are almost never removed during the term of the president who appointed them.

The Bush administration ignored this tradition, and trampled on prosecutorial independence, by firing eight United States attorneys in rapid succession, including one, Carol Lam of San Diego, who had put a powerful Republican congressman in jail. Mr. Iglesias, who was the U.S. attorney in New Mexico, says two members of Congress called him last October and urged him to pursue corruption charges against a prominent Democrat before the November election. He did not. He was dismissed.

Most of the fired United States attorneys’ performance evaluations praise them for the quality of their work, and for following the priorities set in Washington. These do not appear to be the evaluations of people who were fired for poor performance.

A House subcommittee has subpoenaed several of the fired United States attorneys to testify next week. The Senate is doing its own investigation. They should question the fired prosecutors, as well as top members of the Justice Department, to find out how these dismissals came about. They should also investigate Mr. Iglesias’s allegations about the two members of Congress, who may have violated Congressional rules, and even criminal law.

Mr. Gonzales should also begin his own inquiry. Mr. Iglesias has raised a serious question about politicization of the Justice Department. That, and not public relations, should be the attorney general’s primary concern.

    No More Denials, Please, NYT, 3.3.2007, http://www.nytimes.com/2007/03/03/opinion/03sat1.html

Appeals Court Upholds Dismissal of Abuse Suit

March 3, 2007
The New York Times
By ADAM LIPTAK

A German citizen who says he was kidnapped and abused by the Central Intelligence Agency cannot seek redress in court because his lawsuit would expose state secrets, a United States Court of Appeals ruled yesterday in Richmond, Va.

There is substantial evidence that the plaintiff in the suit, Khaled el-Masri, a German citizen of Lebanese descent, was subjected to the C.I.A.’s practice of extraordinary rendition, in which terrorism suspects are seized and sent for interrogation to other countries.

In June 2006, a report issued by the Council of Europe concluded that Mr. Masri’s account of having been abducted and mistreated was substantially accurate. In January, a German court issued arrest warrants for 13 people it said were involved in the matter. Prosecutors would not identify the suspects.

The Central Intelligence Agency has never acknowledged any role in Mr. Masri’s detention.

Mr. Masri said in his suit that he was seized by local law enforcement officials while on vacation in Macedonia on New Year’s Eve in 2003. After 23 days, he said, he was handed over to C.I.A. operatives, who flew him to a secret C.I.A. prison near Kabul, Afghanistan.

In Afghanistan, Mr. Masri said, he was held in a small, filthy cell where he was drugged, beaten and interrogated. At the end of May 2004, he was released in a remote part of Albania.

In December 2005, Mr. Masri sued George Tenet, a former director of the C.I.A., three private companies, and employees of the agency and the companies. He said that Mr. Tenet and the C.I.A. operatives had violated the Constitution’s due process clause, and that all of the defendants were liable under a federal law that allows some injury suits for violations of international laws prohibiting arbitrary detention and cruel, inhuman or degrading treatment.

In May 2006, Judge T. S. Ellis III, of the Federal District Court in Alexandria, Va., dismissed the suit under the so-called state secrets privilege. The privilege can require courts to limit or dismiss suits that might disclose information harmful to national security. The decision yesterday, by the Court of Appeals for the Fourth Circuit, affirmed that ruling.

“We recognize the gravity of our conclusions that el-Masri must be denied a judicial forum for his complaint,” Judge Robert B. King wrote for a unanimous three-judge panel of the court. “The inquiry is a difficult one, for its pits the judiciary’s search for truth against the executive’s duty to maintain the nation’s security.”

Lawyers for the American Civil Liberties Union, which represents Mr. Masri, said there was enough public information about his ordeal to allow his suit to be adjudicated without endangering national security. The appeals court disagreed, saying that Mr. Masri could not win his case without exposing “how the C.I.A. organizes, staffs and supervises its most sensitive intelligence operations.”

Furthermore, the court continued, the defendants “could not properly defend themselves without using privileged evidence.”

Judge King gave examples of the problems the defendants would face. “If, for example, the truth is that el-Masri was detained by the C.I.A. but his description of his treatment is inaccurate, that fact could be established only by disclosure of the actual circumstances of his detention, and its proof would require testimony by the personnel involved.”

Anthony D. Romero, the executive director of the A.C.L.U., said that the court’s decision had been “truly unbelievable” and that his group was “very seriously looking at all the avenues before us” for an appeal to the full appeals court or to the United States Supreme Court.

“Actions like this are reminiscent of third world countries,” Mr. Romero said. “It’s just not tenable to have the C.I.A. unaccountable for its most egregious violations of human rights.”

    Appeals Court Upholds Dismissal of Abuse Suit, NYT, 3.3.2007, http://www.nytimes.com/2007/03/03/world/europe/03masri.html

U.S. Judge Finds Padilla Competent to Face Trial

March 1, 2007
The New York Times
By DEBORAH SONTAG

MIAMI, Feb. 28 — A federal judge found Jose Padilla competent to stand trial on terrorism conspiracy charges Wednesday, granting a significant victory to the government in the high-profile criminal case of a United States citizen who was initially designated an “enemy combatant” and held without charges.

After three and a half days of an intensely argued hearing, Judge Marcia G. Cooke of Federal District Court rejected the defense lawyers’ request that Mr. Padilla be sent to a hospital for psychiatric treatment so that he could be “healed” from what they said was post-traumatic stress disorder caused during his three years and eight months in military detention.

“This defendant clearly has the capacity to assist his attorneys,” Judge Cooke said, adding that Mr. Padilla’s case was “unique” and that “he understands that.”

Judge Cooke, who allowed limited testimony from brig officials during the competency hearing, said that her ruling should not be construed as a finding on Mr. Padilla’s claims of mistreatment during his detention and interrogations at a military brig in South Carolina.

“Those claims are for another day,” she said, referring to another pending motion by Mr. Padilla that the charges against him be dismissed because of “outrageous government conduct.”

The threshold for legal competency is low, requiring a criminal defendant to have the capacity, on a basic level, both to understand the proceedings and to communicate with his lawyers. Most incompetency claims in federal court are denied, said Christopher Slobogin, an expert in law and psychiatry at the University of Florida, and most defendants found incompetent are clearly psychotic.

Mr. Padilla is not. Throughout the competency hearing, Mr. Padilla, wearing a tan prison jumpsuit and wire-rimmed glasses, appeared alert. When the brig officials testified Monday, he dropped his head and “hunkered down,” as one of his lawyers described it, but at all others times he sat erectly and calmly, without displaying the tics and grimaces that his lawyers described as manifestations of his disorder.

Judge Cooke remarked on Mr. Padilla’s attentiveness in court and noted that “everyone discussed that Mr. Padilla is polite almost to a fault.”

His comportment, Mr. Padilla’s lawyers argued, is not the problem. Rather, they said, the trauma of his interrogations — at least 87 videotaped interrogations have been turned over to them, indicating a substantial amount of questioning — had rendered him incapable to assist in his own defense. He refuses, they said, to discuss the facts of his cases, insisting that he has already told them everything when, they said, he has told them nothing.

Before she ruled this afternoon, Judge Cooke asked the government about that. “If the defendant refuses to discuss vast sections of his case, is that in and of itself not inability to assist counsel?” she said.

But prosecutors maintained that Mr. Padilla was capable of consulting with his lawyers and that any failure to do so was willful. John C. Shipley, an assistant United States attorney, said that Mr. Padilla was a principal source of information for his lawyers’ accusations of mistreatment in military detention.

“It doesn’t make sense that if the root of the defendant’s hesitancy to talk” was his treatment in the brig, Mr. Shipley said, that the brig would be the only thing he discussed with his lawyers.

Mr. Padilla’s lawyers said that they and their mental health experts only slowly elicited information about his time in military detention, largely by asking him yes and no questions.

The defense lawyers also said that Mr. Padilla opposed their efforts to have him found incompetent to stand trial, which they said was further evidence of his irrationality. He would rather spend his life in prison than spend a few months in a psychiatric hospital, they said.

With a trial scheduled for mid-April, Mr. Padilla and two other defendants are accused of participating in a “North American support cell” that provided money, goods and recruits abroad to assist “global jihad.”

    U.S. Judge Finds Padilla Competent to Face Trial, NYT, 1.3.2007, http://www.nytimes.com/2007/03/01/us/01padilla.html?hp

Jailers Testify About Padilla’s Confinement

February 28, 2007
The New York Times
By DEBORAH SONTAG

MIAMI, Feb. 27 — As Jose Padilla dropped his head and grew still, a senior official from the naval brig in Charleston, S.C., testified on Tuesday in federal court here that he had twice observed Mr. Padilla weeping in the electronically monitored cell where the military detained him for three years and eight months.

The brig’s technical director, Sanford E. Seymour, also said that Mr. Padilla, an American citizen who was designated an enemy combatant in 2002, sometimes slept on a steel bunk without a mattress, that the windows in his 80-square-foot cell were blackened and that brig employees covered up their nametags around him.

Mr. Seymour said that Mr. Padilla, a Muslim, occasionally visited with an imam and that his Koran was taken from him periodically; that he sometimes went outside to shoot baskets or sunbathe; and that when Mr. Padilla believed he had been administered LSD, it was really a flu shot.

These scattershot revelations, elicited by Mr. Padilla’s lawyers in a hearing of sharply limited scope, did not add up to a comprehensive portrait of Mr. Padilla’s time in the brig. But they were nonetheless significant, marking the first time Mr. Padilla’s military jailers were forced to speak publicly about the conditions of his secretive confinement without charges.

That confinement ended a year ago when Mr. Padilla, 36, was transferred into the civilian law enforcement system to stand trial on terrorism conspiracy charges. But his lawyers argue that the conditions of his military detention and interrogations traumatized him so severely that he is incapable of assisting them in his own defense. In essence, they say, the government rendered him incompetent to stand trial, a position the prosecution vehemently denies.

Three days of testimony in a competency hearing concluded Tuesday with the brief appearance of two brig officials. After both sides make concluding arguments on Wednesday, Judge Marcia G. Cooke of Federal District Court will choose between two starkly contrasting images of Mr. Padilla: the lucid, occasionally jolly defendant with antisocial tendencies portrayed by the government, and the twitching, fearful, damaged man presented by the defense.

In a 16-page report made public Tuesday, Rodolfo A. Buigas, a Bureau of Prisons psychologist who examined Mr. Padilla for the judge, recommended that he be found competent to stand trial. Mr. Padilla refused to submit to psychological testing, so Dr. Buigas evaluated him by talking to him for about five hours, by examining his records and the reports of experts hired by the defense, and by questioning lawyers and brig officials.

It is because Dr. Buigas interviewed brig officials that Judge Cooke allowed them to testify Tuesday despite strong objections from the government. But she allowed defense lawyers to ask the officials only about their conversations with Dr. Buigas, saying that a more general airing about conditions in the brig might be held if she conducted a hearing on a defense motion to dismiss the indictment because of “outrageous government conduct.”

Craig S. Noble, a psychologist at the brig, testified that he had screened Mr. Padilla twice. He did an initial “brief evaluation” when Mr. Padilla arrived in June 2002, finding that he was “responsive, made good eye contact and, in fact, smiled periodically.” About two years later, Dr. Noble said, he conducted a “cell front visit,” in which he spoke to Mr. Padilla through a rectangular slot on his door, and discovered no new signs of “distress or lethality.”

During the hearing, two mental health experts who spent over 25 hours evaluating Mr. Padilla for the defense testified that he was disabled by post-traumatic stress disorder caused by his experiences in the brig.

“I’m not sure that any of us know what happened at the brig, but I know that something there put the fear into Mr. Padilla,” said Patricia Zapf, a forensic psychologist who examined him. “Mr. Padilla is an anxiety-ridden, broken individual who is incapacitated by that anxiety.”

But the Bureau of Prisons psychologist, Dr. Buigas, disagreed with the diagnosis of post-traumatic stress disorder. He said Dr. Zapf’s testing was invalidated by the fact that Mr. Padilla was handcuffed during the tests, a condition imposed on Dr. Zapf by prison officials.

Testifying on Monday, Dr. Buigas, whom defense lawyers do not view as a neutral examiner, said that Mr. Padilla possessed the capacity to work with his lawyers, and that any failure to do so was “volitional.”

Dr. Buigas added that during his first encounter with Mr. Padilla, “he was actually pretty happy.” Dr. Buigas testified that he had even commented to his boss that Mr. Padilla seemed “happier than our department,” referring to his colleagues in the mental health unit of the Miami federal detention center.

Mr. Padilla, who sat placidly through much of the testimony, chatted animatedly with his lawyers as Dr. Buigas talked. One of the lawyers, Anthony Natale, rose to his feet for a cross-examination, and what turned into an odd exchange.

”You used the word ‘happy,’ ” Mr. Natale said to Dr. Buigas. “Do you know if that’s when he was allowed for the first time to get a radio? Do you know if that’s when he was allowed to have a shower with a curtain? ... So you don’t know why he was happy?”

Dr. Buigas said he could not recall the conversation clearly, but he said, “In general, he was talking about being Puerto Rican.”

Prosecution lawyers scoffed at the idea the Mr. Padilla was mentally incompetent, saying that his jailers had never reported any psychiatric problems and that he had comported himself well during court hearings.

“Jose Padilla sits quietly,” said Brian K. Frazier, a prosecutor. “He follows the instructions of the marshals. He turns around and waves to Mama.”

Mr. Frazier said that in court Mr. Padilla manifested none of the tics, grimaces and sweating that the defense describes, “despite the fact that we talk about some pretty uncomfortable stuff.”

Prosecutors tried to introduce into evidence what they said was an internal document from Al Qaeda that coached operatives to be obstructionist if captured, to avoid revealing information and to make a claim of torture even if no mistreatment had occurred. This document, which they referred to as the “Manchester manual” because it was found several years ago in Manchester, England, was what guided Mr. Padilla, they said.

“Don’t I have to have some evidence that Mr. Padilla was aware of this document and studied it?” Judge Cooke asked prosecutors.

In declining to admit the manual into evidence, she added that the manual would have converted the competency hearing into a debate over whether the defendant had been tortured in the brig.

    Jailers Testify About Padilla’s Confinement, NYT, 28.2.2007, http://www.nytimes.com/2007/02/28/us/28padilla.html?hp

Judge Dismisses Juror in Libby Trial

February 27, 2007
The New York Times
By NEIL A. LEWIS

WASHINGTON, Feb. 26 — The judge presiding over the perjury trial of I. Lewis Libby Jr. dismissed one of the jurors in the midst of deliberations Monday and ruled that the case should go forward with the remaining 11-member jury.

The judge, Reggie B. Walton, said the dismissed juror had improperly learned some information about the case outside of the courtroom, but he did not explain further. Judge Walton said it appeared the juror had not done so intentionally but through some unspecified misunderstanding.

After questioning the jurors, Judge Walton said no one else had been tainted by the information. Jurors are supposed to decide cases solely on the evidence and testimony presented in the trial. Deliberations resumed after the juror was dismissed and are to continue on Tuesday.

The dismissed juror was a woman who had worked for years as a curator at the Metropolitan Museum of Art in New York, before moving to Washington. Judge Walton ruled, over the objections of the prosecution, that he would not replace her with one of two alternates on standby and would instead have the remaining 11 jurors continue to try to decide the case.

“I don’t think it would be appropriate to throw away those two and a half days,” he said, referring to the more than 18 hours of deliberations the jurors had completed by Monday morning.

If Judge Walton had replaced the juror, he would have been required to instruct the newly reconstituted jury to begin its deliberations from the beginning, as if there had been no previous discussions.

Theodore V. Wells Jr., Mr. Libby’s lead defense lawyer, said that to add a new juror and restart deliberations would be prejudicial to his client. “It would be inappropriate and unfair” to discard the deliberations thus far, Mr. Wells argued.

Patrick J. Fitzgerald, the chief prosecutor, said that the government believed a replacement juror should be seated and that there was no doubt the 11 remaining jurors would follow the judge’s instructions to begin their deliberations anew.

But Judge Walton said he did not want to “throw away” the time the jury had already spent considering the case.

The alternates are two women who sat through the entire case as part of a panel of 14 jurors and were informed by Judge Walton that they were alternates only just before deliberations began. He told them at the time that they could be recalled to participate in the deliberations if needed and warned them to continue to abide by his instructions to avoid any news coverage of the case.

The decision by Mr. Libby’s defense team to urge that the trial proceed without a new 12th juror seemed to be counter to conventional wisdom in such situations, lawyers said.

Because a unanimous jury is needed for a guilty verdict, a defendant need convince only one juror of his innocence to avoid a conviction. As a result, lawyers said, defense lawyers prefer to have as many sitting jurors as possible to increase the chances of having someone who refuses to vote for a guilty verdict.

But Neal R. Sonnett, a Miami lawyer who is the former president of the National Association of Criminal Defense Lawyers, said there were often other factors at play. Mr. Libby’s defense team would have made a judgment about the alternate’s inclination toward the case, Mr. Sonnett said.

“The lawyers are always looking at who that person would be,” he said. “And then they are engaging in a little mind-reading, trying to guess from that person’s body language” whether it would be helpful or harmful to insert him into the deliberations.

In this case, the replacement juror would have been a middle-aged woman who identified herself as an insurance industry consultant. Some reporters at the trial observed her taking notes assiduously during the monthlong proceedings.

The dismissed juror was also notable in that she was the only one of the pool of 14 who declined to don a T-shirt with a heart on Valentine’s Day as a gesture of good will to the judge and the court staff.

Mr. Libby, who is known by his nickname, Scooter, is the former chief of staff to Vice President Dick Cheney. He is charged with five felony counts, accused of lying to a grand jury and F.B.I. agents investigating the leak in the summer of 2003 of the identity of a C.I.A. operative, Valerie Wilson.

Her identity was first disclosed publicly in a July 14, 2003, column by Robert D. Novak. Only days earlier, The New York Times had published an Op-Ed article by her husband, Joseph C. Wilson IV, asserting that the Bush White House had willfully distorted intelligence as to whether Iraq had tried to obtain uranium from Africa to bolster the case for going to war.

Mr. Fitzgerald, who was named special counsel for the investigation, never charged anybody with illegally leaking Ms. Wilson’s name. But he said Mr. Libby had discussed Ms. Wilson in conversations with two reporters and had denied under oath having done so. Mr. Libby’s lawyers said that the reporters were mistaken about those conversations and that, in any event, any misstatements he made were a result of innocent failures of memory.

    Judge Dismisses Juror in Libby Trial, NYT, 27.2.2007, http://www.nytimes.com/2007/02/27/washington/27libby.html?hp

U.S. court upholds same-sex teaching to children

Sat Feb 24, 2007 11:20AM EST
Reuters

BOSTON (Reuters) - A federal judge in Boston has dismissed a suit by two families who wanted to stop a Massachusetts town and its public school system from teaching their children about gay marriage, court documents show.

The families last year filed the suit asserting that the reading of a gay-themed book and handing out to elementary school students of other children's books that discussed homosexuality without first notifying parents was a violation of their religious rights.

Federal Judge Mark Wolf ruled on Friday that public schools are "entitled to teach anything that is reasonably related to the goals of preparing students to become engaged and productive citizens in our democracy."

"Diversity is a hallmark of our nation. It is increasingly evident that our diversity includes differences in sexual orientation," he said.

He said the courts had decided in other cases that parents' rights to exercise their religious beliefs were not violated when their children were exposed to contrary ideas in school.

The complaint filed against the town of Lexington, about 12 miles west of Boston, had said the school had "begun a process of intentionally indoctrinating very young children to affirm the notion that homosexuality is right and normal in direct denigration of the plaintiffs' deeply held faith."

The book that sparked the case was "King & King" which tells the story of a crown prince who rejects a bevy of beautiful princesses, rebuffing each suitor until falling in love with a prince. The two marry, sealing the union with a kiss, and live happily ever after.

The Lexington school system had said reading the book was not intended as sex education but as a way to educate children about the world in which they live, especially in Massachusetts, the only U.S. state where gays and lesbians can legally wed.

A lawyer for the families said they would appeal the ruling, the Boston Globe reported on Saturday.

    U.S. court upholds same-sex teaching to children, R, 24.2.2007, http://www.reuters.com/article/domesticNews/idUSN2434298220070224

Court Endorses Law’s Curbs on Detainees

February 21, 2007
The New York Times
By STEPHEN LABATON

WASHINGTON, Feb. 20 — A divided federal appeals court on Tuesday upheld a new law stripping federal judges of authority to review foreign prisoners’ challenges to their detention at Guantánamo Bay, Cuba.

The decision set the stage for a third trip to the Supreme Court for the detainees, who will once again ask the justices to consider a complex issue that tests the balance of power among the White House, Congress and the courts in the murky context of the fight against international terrorism.

It also prompted some senior Democratic lawmakers, who have fought the Bush administration on the matter before and who now hold sway in Congress, to vow enactment of a law more favorable to the prisoners.

The Supreme Court previously ruled twice that federal statutes empowered the courts to consider Guantánamo prisoners’ habeas corpus petitions challenging the grounds for their detention. In response to those rulings, Congress twice rewrote law to limit the detainees’ avenues of appeal. The most recent rewriting was at issue in Tuesday’s 2-to-1 decision.

That law, the Military Commissions Act of 2006, was signed by President Bush last October. Its enactment followed the Supreme Court’s rejection of his administration’s earlier arguments that the right of habeas corpus — the fundamental right, centuries old, to ask a judge for release from unjust imprisonment — did not apply to foreigners being held outside the United States as enemy combatants.

The new law explicitly eliminated the federal courts’ jurisdiction over habeas challenges by such prisoners. It instead set up military panels to review the justification of detention in individual cases, with limited right of appeal to the courts afterward.

In its ruling Tuesday, the United States Court of Appeals for the District of Columbia Circuit found that the new law did not violate the constitutional provision that bars the government from suspending habeas corpus except in “cases of rebellion or invasion.” Two of the three appeals court judges, citing Supreme Court and other historical precedent, held that the right of habeas corpus did not extend to foreign citizens detained outside the United States.

The majority decision was written by Judge A. Raymond Randolph, whose two earlier opinions on habeas corpus and Guantánamo prisoners had also favored the Bush administration. Those opinions were reversed by the Supreme Court, but on statutory grounds rather than constitutional ones.

The dissenting judge on Tuesday, Judith W. Rogers, said the new law did violate the constitutional provision restricting the suspension of habeas corpus.

Administration officials welcomed the decision as a vindication of its position on the rights of detainees, after years of its halting efforts to create a legal process that would withstand tests in court.

“The decision,” said Erik Ablin, a Justice Department spokesman, “reaffirms the validity of the framework that Congress established in the Military Commissions Act permitting Guantánamo detainees to challenge their detention through combatant status review tribunals with the opportunity for judicial review before the D.C. Circuit.”

Tony Snow, the White House spokesman, said at his daily news briefing, “The court decided the position that we put forward.” He declined to say more.

Lawyers representing the detainees vowed to seek a new review by the Supreme Court.

Shayana Kadidal, a lawyer at the Center for Constitutional Rights, which represents many of the detainees, said, “This decision empowers the president to do whatever he wishes to prisoners without any legal limitation as long as he does it offshore.”

Mr. Kadidal said the ruling encouraged “a contempt for international human rights law” and “such notorious practices as extraordinary rendition”: sending terrorism suspects abroad for interrogation, where, rights advocates say, they may face torture.

Democrats now in control of Congress said they would move quickly on legislation they recently introduced that would unambiguously give federal courts the right to consider detainees’ habeas petitions.

“The Military Commissions Act is a dangerous and misguided law that undercuts our freedoms and assaults our Constitution by removing vital checks and balances designed to prevent government overreaching and lawlessness,” said Senator Patrick J. Leahy, the Vermont Democrat who heads the Senate Judiciary Committee.

Last week Mr. Leahy joined a group of other Senate Democrats, including Christopher J. Dodd of Connecticut, Russell D. Feingold of Wisconsin and Robert Menendez of New Jersey, in introducing the legislation restoring habeas rights for the Guantánamo prisoners. Senator Arlen Specter of Pennsylvania, the Judiciary Committee’s ranking Republican, also endorsed that measure last week, and said Tuesday that he believed the dissent from the new appeals court decision would ultimately prevail in the Supreme Court.

But other Republican lawmakers, including Senators John Cornyn of Texas and Lindsey Graham of South Carolina, both of whom also serve on the committee, applauded the ruling.

The decision, Lakhdar Boumediene v. George W. Bush, involved a consolidation of the cases of 63 detainees, all from foreign countries, who had sought review in two federal district courts. One judge had ruled that she had the authority to consider the cases, while another had ruled that he did not, and granted the administration’s motion to dismiss the inmates’ habeas petitions.

Writing for the appeals court, Judge Randolph first turned to the statutory issue. He said arguments put forward by the detainees’ lawyers that the new law was not meant to apply to the prisoners at Guantánamo Bay “are creative but not cogent.” Congress, he said, clearly meant to keep the federal courts from considering the detainees’ cases.

Turning to the question of whether Congress had acted within the Constitution, he said there had been no earlier cases in which a court had granted a habeas corpus petition for a foreign national held at an overseas military base. The Constitution, he said, “does not confer rights on aliens without property or presence within the United States.”

The opinion was also signed by Judge David B. Sentelle.

In her dissent, Judge Rogers said: “Prior to the enactment of the Military Commissions Act, the Supreme Court acknowledged that the detainees held at Guantánamo had a statutory right to habeas corpus. The M.C.A. purports to withdraw that right but does so in a manner that offends the constitutional constraint on suspension.”

    Court Endorses Law’s Curbs on Detainees, NYT, 21.2.2007, http://www.nytimes.com/2007/02/21/washington/21gitmo.html?_r=1&hp&oref=slogin

Judge Limits New York Police Taping

February 16, 2007
The New York Times
By JIM DWYER

In a rebuke of a surveillance practice greatly expanded by the New York Police Department after the Sept. 11 attacks, a federal judge ruled yesterday that the police must stop the routine videotaping of people at public gatherings unless there is an indication that unlawful activity may occur.

Four years ago, at the request of the city, the same judge, Charles S. Haight Jr., gave the police greater authority to investigate political, social and religious groups.

In yesterday’s ruling, Judge Haight, of United States District Court in Manhattan, found that by videotaping people who were exercising their right to free speech and breaking no laws, the Police Department had ignored the milder limits he had imposed on it in 2003.

Citing two events in 2005 — a march in Harlem and a demonstration by homeless people in front of the home of Mayor Michael R. Bloomberg — the judge said the city had offered scant justification for videotaping the people involved.

“There was no reason to suspect or anticipate that unlawful or terrorist activity might occur,” he wrote, “or that pertinent information about or evidence of such activity might be obtained by filming the earnest faces of those concerned citizens and the signs by which they hoped to convey their message to a public official.”

While he called the police conduct “egregious,” Judge Haight also offered an unusual judicial mea culpa, taking responsibility for his own words in a 2003 order that he conceded had not been “a model of clarity.”

The restrictions on videotaping do not apply to bridges, tunnels, airports, subways or street traffic, Judge Haight noted, but are meant to control police surveillance at events where people gather to exercise their rights under the First Amendment.

“No reasonable person, and surely not this court, is unaware of the perils the New York public faces and the crucial importance of the N.Y.P.D.’s efforts to detect, prevent and punish those who would cause others harm,” Judge Haight wrote.

Jethro M. Eisenstein, one of the lawyers who challenged the videotaping practices, said that Judge Haight’s ruling would make it possible to contest other surveillance tactics, including the use of undercover officers at political gatherings. In recent years, police officers have disguised themselves as protesters, shouted feigned objections when uniformed officers were making arrests, and pretended to be mourners at a memorial event for bicycle riders killed in traffic accidents.

“This was a major push by the corporation counsel to say that the guidelines are nice but they’re yesterday’s news, and that the security establishment’s view of what is important trumps civil liberties,” Mr. Eisenstein said. “Judge Haight is saying that’s just not the way we’re doing things in New York City.”

A spokesman for Police Commissioner Raymond W. Kelly referred questions about the ruling to the city’s lawyers, who noted that Judge Haight did not set a deadline for destroying the tapes it had already made, and that the judge did not find the city had violated the First Amendment.

Nevertheless, Judge Haight — at times invoking the mythology of the ancient Greeks and of Harold Ross, the founding editor of The New Yorker — used blunt language to characterize the Police Department’s activities.

“There is no discernible justification for the apparent disregard of the guidelines” in his 2003 court order, he said. These spell out the broad circumstances under which the police could investigate political gatherings.

Under the guidelines, the police may conduct investigations — including videotaping — at political events only if they have indications that unlawful activity may occur, and only after they have applied for permission to the deputy commissioner in charge of the Intelligence Division.

Judge Haight noted that the Police Department had not produced

evidence that any applications for permission to videotape had ever been filed.

Near the end of his 51-page order, the judge warned that the Police Department must change its practices or face penalties.

“Any future use by the N.Y.P.D. of video and photographic equipment during the course of an investigation involving political activity” that did not follow the guidelines could result in contempt proceedings, he wrote.

At monthly group bicycle rides in Lower Manhattan known as Critical Mass, some participants break traffic laws, and the police routinely videotape those events, Judge Haight noted. That would be an appropriate situation for taping, he said, but police officials did not follow the guidelines and apply for permission.

“This is a classic case of application of the guidelines: political activity on the part of individuals, but legitimate law enforcement purpose on the part of the police,” Judge Haight wrote. “It is precisely the sort of situation where the guidelines require adherence to certain protocols but ultimately give the N.Y.P.D. the flexibility to pursue its law enforcement goals.”

Gideon Oliver, a lawyer who has represented many people arrested during the monthly bicycle rides, said he was troubled by the intensive scrutiny of political activities.

“I’m looking forward to a deeper and more serious exploration of how and why this surveillance has been conducted,” Mr. Oliver said.

In the past the Police Department has said that it needed intelligence about the Critical Mass rides in order to protect the streets from unruly riders.

Patrick Markee, an official with another group that was cited in the ruling, the Coalition for the Homeless, said the judge’s decision ratified their basic rights to free speech.

“We’re gratified that Judge Haight found that the police shouldn’t engage in surveillance of homeless New Yorkers and their supporters when they’re engaged in peaceful, lawful political protest,” Mr. Markee said.

The Police Department’s approach to investigating political, social and religious groups has been a contentious subject for most of four decades, and a class action lawsuit brought by political activists, including a lawyer named Barbara Handschu, was settled in 1985. Judge Haight oversees the terms of that settlement, which are known as the Handschu guidelines, and which he modified in 2003.

At the time, Judge Haight said that the police could “attend any event open to the public, on the same terms and conditions of the public generally.”

But in yesterday’s ruling, he said that permission “cannot be stretched to authorize police officers to videotape everyone at a public gathering just because a visiting little old lady from Dubuque (to borrow from The New Yorker) could do so. There is a quantum difference between a police officer and the little old lady (or other tourist or private citizen) videotaping or photographing a public event.”

The judge said he bore some responsibility for misinterpretation of the guidelines.

“I confess with some chagrin that while the text of this opinion and its implementing order, read together, may not be as opaque as the irritatingly baffling pronouncements of the Oracle” at Delphi, “they do not constitute a model of clarity,” he wrote.

    Judge Limits New York Police Taping, NYT, 16.2.2007, http://www.nytimes.com/2007/02/16/nyregion/16police.html?_r=1&oref=slogin

U.S. Set to Begin a Vast Expansion of DNA Sampling

February 5, 2007
The New York Times
By JULIA PRESTON

The Justice Department is completing rules to allow the collection of DNA from most people arrested or detained by federal authorities, a vast expansion of DNA gathering that will include hundreds of thousands of illegal immigrants, by far the largest group affected.

The new forensic DNA sampling was authorized by Congress in a little-noticed amendment to a January 2006 renewal of the Violence Against Women Act, which provides protections and assistance for victims of sexual crimes. The amendment permits DNA collecting from anyone under criminal arrest by federal authorities, and also from illegal immigrants detained by federal agents.

Over the last year, the Justice Department has been conducting an internal review and consulting with other agencies to prepare regulations to carry out the law.

The goal, justice officials said, is to make the practice of DNA sampling as routine as fingerprinting for anyone detained by federal agents, including illegal immigrants. Until now, federal authorities have taken DNA samples only from convicted felons.

The law has strong support from crime victims’ organizations and some women’s groups, who say it will help law enforcement identify sexual predators and also detect dangerous criminals among illegal immigrants.

“Obviously, the bigger the DNA database, the better,” said Lynn Parrish, the spokeswoman for the Rape, Abuse and Incest National Network, based in Washington. “If this had been implemented years ago, it could have prevented many crimes. Rapists are generalists. They don’t just rape, they also murder.”

Peter Neufeld, a lawyer who is a co-director of the Innocence Project, which has exonerated dozens of prison inmates using DNA evidence, said the government was overreaching by seeking to apply DNA sampling as universally as fingerprinting.

“Whereas fingerprints merely identify the person who left them,” Mr. Neufeld said, “DNA profiles have the potential to reveal our physical diseases and mental disorders. It becomes intrusive when the government begins to mine our most intimate matters.”

Immigration lawyers said they did not learn of the measure when it passed last year and were dismayed by its sweeping scope.

“This has taken us by storm,” said Deborah Notkin, a lawyer who was president of the American Immigration Lawyers Association last year. “It’s so broad, it’s scary. It is a terrible thing to do because people are sometimes detained erroneously in the immigration system.”

Immigration lawyers noted that most immigration violations, including those committed when people enter the country illegally, are civil, not criminal, offenses. They warned that the new law would make it difficult for immigrants to remove their DNA profiles from the federal database, even if they were never found to have committed any serious violation or crime.

Under the new law, DNA samples would be taken from any illegal immigrants who are detained and would normally be fingerprinted, justice officials said. Last year federal customs, Border Patrol and immigration agents detained more than 1.2 million immigrants, the majority of them at the border with Mexico. About 238,000 of those immigrants were detained in immigration enforcement investigations. A great majority of all immigration detainees were fingerprinted, immigration officials said. About 102,000 people were arrested on federal charges not related to immigration in 2005.

While the proposed rules have not been finished, justice officials said they were certain to bring a huge new workload for the F.B.I. laboratory that logs, analyzes and stores federal DNA samples. Federal Bureau of Investigation officials said they anticipated an increase ranging from 250,000 to as many as 1 million samples a year.

The laboratory currently receives about 96,000 samples a year, said Robert Fram, chief of the agency’s Scientific Analysis Section.

DNA would not be taken from legal immigrants who are stopped briefly by the authorities, justice officials said, or from legal residents who are detained on noncriminal immigration violations.

“What this does is move the DNA collection to the arrest stage,” said Erik Ablin, a Justice Department spokesman. “The general approach,” he said, “is to bring the collection of DNA samples into alignment with current federal fingerprint collection practices.” He said the department was “moving forward aggressively” to issue proposed regulations.

The 2006 amendment was sponsored by two border state Republicans, Senator Jon Kyl of Arizona and Senator John Cornyn of Texas. In an interview, Mr. Kyl said the measure was broadly drawn to encompass illegal immigrants as well as Americans arrested for federal crimes. He said that 13 percent of illegal immigrants detained in Arizona last year had criminal records.

“Some of these are very bad people,” Mr. Kyl said. “The number of sexual assaults committed by illegal immigrants is astonishing. Right now there is a fingerprint system in use, but it is not as thorough as it could be.”

Ms. Parrish, of the rape victims’ organization, pointed to the case of Angel Resendiz, a Mexican immigrant who was known as the Railroad Killer. Starting in 1997, Mr. Resendiz committed at least 15 murders and numerous rapes in the United States. Over the years of his rampage, Mr. Resendiz was deported 17 times. He was executed in Texas in June.

“That was 17 missed opportunities to collect his DNA,” Ms. Parrish said. “If he had been identified as the perpetrator of the first rapes, it would have prevented later ones.”

Immigration lawyers said the DNA sampling could tar illegal immigrants with a criminal stigma, even though most of them have never committed any criminal offense.

“To equate somebody with a possible immigration violation in the same category as a suspected sex offender is an outrage,” said David Leopold, an immigration lawyer who practices in Cleveland.

Forensic DNA is culled either from a tiny blood sample taken from a fingertip (the F.B.I.’s preferred method) or from a swab of the inside of the mouth. Federal samples are logged into the F.B.I.’s laboratory, analyzed and transformed into profiles that can be read by computer. The profiles are loaded into a database called the National DNA Index System.

The F.B.I. also loads DNA profiles from local and state police into the federal database and runs searches. Only seven states now collect DNA from suspects when they are arrested; of those, only two states are authorized by their laws to send those samples to the federal database.

Mr. Neufeld, of the Innocence Project, said his group supported broad DNA collection from convicted criminals. But, he said, “There is no demonstrable nexus between being detained for an immigration matter and the likelihood you are going to commit some serious violent crime.”

The DNA amendment has divided women’s groups that are usually unified supporters of the Violence Against Women Act, which was adopted in 1994.

“We were stunned by the extraordinary, broad sweep of this amendment,” said Lisalyn Jacobs, vice president for government relations at Legal Momentum, a law group founded by the National Organization for Women. Ms. Jacobs recalled that the amendment had been adopted by a voice vote with little debate. She said many lawmakers eager to renew the act, which enjoys solid bipartisan support, appeared unaware of the scope of the DNA amendment.

“The pervasive problems of profiling in the United States will only be exacerbated by such a system,” Ms. Jacobs said, because Latino and other immigrants will be greatly over-represented in the database. She noted that the law required a court order to remove a profile from the system.

Many groups warned that the measure would compound already severe backlogs in the F.B.I.’s DNA processing. Mr. Fram of the F.B.I. said there had been an enormous increase in the samples coming to the databank since it started to operate in 1998, but no new resources for the bureau’s laboratory. Currently about 150,000 DNA samples from convicted criminals are waiting to be processed and loaded into the national database, Mr. Fram said.

He said the laboratory had added robot technology to speed the processing. But in the “worst case scenario,” where the laboratory receives one million new samples a year, Mr. Fram said, “there is going to be a bottleneck.”

    U.S. Set to Begin a Vast Expansion of DNA Sampling, NYT, 5.2.2007, http://www.nytimes.com/2007/02/05/washington/05dna.html?hp&ex=1170738000&en=4f5fb3a245f37a20&ei=5094&partner=homepage

Court Clears Way for Suit on New Orleans Flooding

February 3, 2007
The New York Times
By JOHN SCHWARTZ

Residents of several neighborhoods in the New Orleans area that were hardest hit by flooding after Hurricane Katrina can sue the Army Corps of Engineers over their claims that a government-built navigation channel was largely to blame, a federal judge ruled yesterday.

Successful lawsuits against the corps could result in billions of dollars in damage payments.

Since the flood, those who lived in the devastated neighborhoods near the east side of New Orleans — including the Lower Ninth Ward, New Orleans East and St. Bernard Parish — have contended that the Mississippi River Gulf Outlet caused much of their damage by intensifying the surge from the storm. The damage, they say, was foreseeable.

After residents filed lawsuits, the government tried to get them dismissed. The corps argued that it was protected from lawsuits by the Flood Control Act of 1928, which grants it immunity from liability for flood damage caused by flood-control projects, like levees.

But yesterday, Judge Stanwood R. Duval Jr. of the Federal District Court for the Eastern District of Louisiana, cited previous cases saying that the channel was not a flood-control project. Instead, Judge Duval said, the cases say the channel — known locally as Mr. Go — was built as an aid to navigation, so the protection from liability might not apply. And so, he said, the questions deserved to be decided at trial.

Pierce O’Donnell, a lawyer for those suing the government, called the ruling “a landmark victory for the Katrina victims.” But Joseph Bruno, another lawyer for the residents, acknowledged that the judge’s ruling was only the first step.

The 76-mile canal was completed in 1965 as a shortcut for ships heading from the Mississippi River to the Gulf of Mexico. Environmentalists and local officials have long argued that it has done great damage to the coastal environment by piping salt water inland and killing off the cypress swamps and grassy marshes that serve as natural barriers to storms.

During Hurricane Katrina, several scientists have said, the canal was a crucial part of a funnel that amplified the storm’s surge and brought its waters into the heart of the city.

A spokesman for the corps in New Orleans, René Poché, declined to discuss pending litigation. The corps has previously argued that the channel did not contribute greatly to the disaster, but announced a plan last year to close the outlet to navigation. That plan does not go far enough for the channel’s critics, who demand that it be filled in and the wetland buffer restored.

Also yesterday, President Bush nominated a new leader for the corps, Lt. Gen. Robert L. Van Antwerp Jr. of the Army. If approved by the Senate, General Van Antwerp will succeed Lt. Gen. Carl A. Strock, who announced last August that he intended to resign. General Van Antwerp has been serving as commanding general for the Army accessions command, which manages recruiting and initial training.

    Court Clears Way for Suit on New Orleans Flooding, NYT, 3.2.2007, http://www.nytimes.com/2007/02/03/washington/03corps.html

Killer of New York Detectives Gets Death Sentence

January 31, 2007
The New York Times
By MICHAEL BRICK

A federal jury sentenced a 24-year-old Staten Island man to death yesterday for killing two undercover police detectives in 2003. It was the first successful federal capital punishment prosecution in New York in more than 50 years.

After the verdict was read, the defendant, Ronell Wilson, 24, rubbed his palms, looked at his mother, then stuck his tongue out at the families of his victims. His younger brother loudly cursed the jurors, while their mother cried out that they were “the murderers now.”

The widows and other relatives of the slain detectives applauded briefly from the gallery, crying, “And the Lord rejoices.”

In December, the anonymous jury of seven men and five women convicted Mr. Wilson of shooting the two detectives, James V. Nemorin and Rodney J. Andrews, in the back of the head in a car during a weapons sting on Staten Island on March 10, 2003.

They reached their verdict yesterday after nine hours of deliberations that started Monday afternoon. They found Mr. Wilson devoid of remorse and directed Judge Nicholas G. Garaufis of federal court in Brooklyn to impose sentences of death by lethal injection on five counts.

Three men have been executed in federal cases in the United States in recent decades, first among them Timothy J. McVeigh, for the bombing of the Alfred P. Murrah Federal Building in Oklahoma City. Mr. Wilson will join 46 other people on the federal death row.

But in the 20 years since a moratorium on federal capital punishment was lifted, prosecutors in New York have failed to win death sentences against at least 14 defendants, including violent gang members. Federal jurors even refused to execute two terrorists involved in the bombing of United States embassies in East Africa in 1998, after their lawyers argued it would turn them into martyrs. The last federal inmate to be executed in the state was Gerhard Puff, in 1954, a bank robber convicted of killing an F.B.I. agent.

But the murder of two undercover detectives, found bleeding on a Staten Island street in the aftermath of a botched gun transaction, resounded in a city still shaken by the terror attacks of 2001. They were the first two officers killed by gunfire on a single day since 1988.

Working from 29 pages of questions, the jurors dissected a series of factors weighing for and against execution. Affirming elements of their conviction, they found that Mr. Wilson had acted with the intent to kill. They endorsed all the prosecution’s assertions, including that Mr. Wilson would remain a danger in prison.

The jurors, who declined interview requests conveyed by the judge, unanimously endorsed nearly all of the defense team’s mitigating factors, finding that Mr. Wilson had grown up depressed, sick and trapped in a realm of poverty, deprivation, drug abuse and violence. They wrote in another factor weighing against the death penalty: “Ronell Wilson was possibly subject to peer pressure.”

But they unanimously rejected the notions that he has adjusted well to federal prison, taken responsibility for his actions or “has remorse for the murder of Detectives Andrews and Nemorin.”

Federal prosecutors vigorously sought the death penalty against Mr. Wilson, taking the case from state prosecutors in Staten Island after the New York death penalty was largely invalidated in 2004. They endorsed plea bargains with seven defendants, young men based around the Stapleton Houses project in northeastern Staten Island.

The group members had forged their camaraderie on admiration for a slightly older man, nicknamed Keyo, who had been killed under unresolved circumstances.

“I heard different stories,” testified one group member, Mitchell Diaz, who has pleaded guilty to supplying the murder weapon.

Bearing Keyo tattoos and T-shirts, the men gave themselves nicknames like O and Mal-G, evidence and testimony showed. Between the humdrum stuff of growing up, community college courses, talent shows and outings to Six Flags Great Adventure, they mastered gang signs, sold crack cocaine and beat and robbed their rivals.

On that March night in 2003, the men sold a handgun to Detective Nemorin, 36, a Haitian immigrant and father of three, admired by other officers for his ability to convincingly shed dapper silk scarves for the trappings of a street tough.

As his supervisor would later testify, Detective Nemorin arranged to buy a second gun, a Tec-9 assault pistol, at a rendezvous by the Stapleton Houses a week later. For backup, he brought Detective Andrews, 34, a Navy veteran and divorced father of two with a reputation for making tough arrests.

In a police-issued Nissan Maxima, the detectives approached the towering Stapleton Houses with a handgun for protection and a surveillance transmitter disguised as a pager. As Detective Nemorin drove, they exchanged goofy banter between calls for directions.

On the other side of the telephone line, plans for the transaction were shifting from sale to robbery, members of the group later testified. Outside the housing project, Mr. Wilson climbed into the backseat with Jessie Jacobus, at 16 a 6-foot-3, 240-pound enforcer for the group.

As they circled the streets, Mr. Wilson voiced suspicions of a police presence in the neighborhood.

“It’s mad hot,” Mr. Wilson said, according to a surveillance recording.

He also questioned the presence of Detective Andrews, who Detective Nemorin claimed was his brother-in-law. The detectives sought to reassure him with canny street talk and evasive driving, to little discernable effect.

On a dark dead-end street, with no apparent warning, Mr. Wilson fired a single .44-caliber bullet into the skull of each man, starting with Detective Andrews. Gunpowder residue on Detective Nemorin’s hand would later bear evidence of his efforts to survive. It was never proved whether Mr. Wilson knew his victims were officers, and an accomplice’s recantation eventually prompted prosecutors to drop such charges.

But Mr. Jacobus testified that Mr. Wilson gave a reason for the shootings in the minutes after he pulled the trigger. He quoted Mr. Wilson as saying he did it because he did not care about anybody.

After losing their surveillance signal, police supervisors frantically searched Staten Island, only to find the blood-soaked bodies of their undercover detectives. They temporarily shut down traffic out of the borough, recalling departed ferries and closing bridges. They rounded up the crew within two days.

The prosecutors, Colleen Kavanagh, Morris J. Fodeman and Jack Smith, assisted by Special Agent Thomas Shelton of the Bureau of Alcohol, Tobaco, Firearms and Explosives, presented three weeks of testimony and evidence from members of the gang, scientific experts, civilian witnesses, investigators and audio and video surveillance recordings that led to the conviction.

Mr. Wilson’s lawyers, Ephraim Savitt, Mitchell Dinnerstein and Kelley J. Sharkey, sought to save Mr. Wilson’s life by recounting the circumstances of his childhood. Before the jury retired, Mr. Wilson read a brief, heavily edited statement of remorse.

And the prosecution, in proceedings that began two weeks ago, argued that Mr. Wilson did not deserve to live. They depicted a life of crime that started at 11 and included violent behavior in jail and out of it.

Yesterday afternoon, the jury foreman, dressed in a suit and tie, gave the panel’s answers in a loud crisp voice, glancing now and again at Mr. Wilson. He ordered the death sentence, in response to a question, with the word “yes.”

From the victim’s families came calls of “God bless.”

As the jurors receded, Mr. Wilson kissed his forefinger and middle finger, then waved to his mother.

The case could be appealed to the Second Circuit Court of Appeals in Manhattan, said Russell Neufeld, a capital defense lawyer who was not involved in the case. If a majority of judges upheld the sentence, it could ascend to the U.S. Supreme Court.

If the sentence is sustained on appeal, it will be carried out by lethal injection.

The appeal will be the second before the circuit under the modern federal death penalty. The first, from Vermont, entered the appeals court about a year ago and has yet to be decided.

Ephraim Savitt, a lawyer for Mr. Wilson, predicted an appeal based on the jury selection process, among other issues. He lamented the sentence. “It’s a very sad day for the justice system,” he said, “when justice and vengeance become one and the same.”

Michael Palladino, president of the Detectives Endowment Association, said that “If any case screamed out for the death penalty,” it was Wilson’s.

Roslynn R. Mauskopf, the United States attorney for the Eastern District of New York, said, “Today justice has been served, and it has been served by a jury from this community. “

In a statement, the police commissioner, Raymond W. Kelly, said, “I want to commend the jury for their difficult and courageous work.”

When the courtroom was cleared, the prosecutors emerged to a sustained round of applause.

Derek Williams, a cousin of Detective Andrews who testified in the penalty phase of the trial, said: “It is some measure of relief, but it is not full closure. It won’t be full closure until the sentence is carried out.”

The relatives of Mr. Wilson walked away in the dark, under the glare of TV camera lights. He was removed from the courtroom through a different passage.

Reporting was contributed by Clyde Haberman, Jennifer 8. Lee, William K. Rashbaum and Matthew Sweeney.

    Killer of New York Detectives Gets Death Sentence, NYT, 31.1.2007, http://www.nytimes.com/2007/01/31/nyregion/31death.html?hp&ex=1170306000&en=1819c2c03219f7bb&ei=5094&partner=homepage

Judge Puts Settlement on Katrina in Question

January 27, 2007
The New York Times
By JOSEPH B. TREASTER

A federal judge in Mississippi, citing the need for more information, has rejected — at least temporarily — a settlement by State Farm Insurance that was expected to provide several hundred million dollars to help policyholders rebuild homes destroyed by Hurricane Katrina 17 months ago.

In an eight-page order, Judge L. T. Senter Jr. of Federal District Court in Gulfport, Miss., said he was rejecting the agreement because it did not provide enough information for him to conclude that it was “fair, just, balanced and reasonable.”

State Farm said last night that it had expected the agreement to be approved and that it now looked forward to addressing the judge’s concerns.

The lead trial lawyer in the case, Richard F. Scruggs, and Mississippi officials also expected court approval.

Last night, Mr. Scruggs and Jim Hood, the attorney general of Mississippi, said they were optimistic that the agreement would be revived. Mr. Hood said he was confident that State Farm would “fix the things that need to be fixed.”

In the agreement, State Farm said it would pay at least $130 million to policyholders and participants in the negotiations and said costs to the insurer could increase by another $600 million. The State Farm settlement was expected to be a model for other insurers to use in seeking settlements, which would help jump-start the lagging recovery of Mississippi’s coast.

The dispute with State Farm and other insurance companies centered on the insurers’ refusal, as stated in their policies, to pay for damage from the heavy flooding — driven by the high winds of Hurricane Katrina — that swept over the Mississippi coast on Aug. 29, 2005. Some insurers refused not only to pay for flood damage, but declined to pay for harm to houses that had been battered by wind and waters.

Even so, the insurers paid $5.3 billion for wind damage to more than 330,000 homes in Mississippi and $10.3 billion for nearly a million homes in Louisiana. The rejected settlement did not include homeowners in Louisiana.

The settlement, which was announced on Tuesday, was twofold. One part settled 640 lawsuits arising from the hurricane for $80 million; the other required State Farm to reopen up to 35,000 damage claims that state officials and trial lawyers said had been underpaid. In that part, State Farm had agreed to pay at least $50 million.

Judge Senter’s order dealt exclusively with the second part, the reopening of the damage claims. It was not clear whether the settlement of the 640 lawsuits would proceed. But during the negotiations, participants said that State Farm had refused to settle unless both the lawsuits and the 35,000 damage claims were parts of one agreement.

A spokesman for State Farm, Phil Supple, said yesterday that the two elements were separate. But he would not respond to questions seeking to clarify the linkage and whether the entire agreement might be scuttled if the judge’s concerns about the 35,000 damage claims could not be resolved. In an interview, Mr. Scruggs said he expected the settlement of the 640 lawsuits to stand, partly because State Farm has already paid the first installment.

“We’re going to start dispersing those settlement funds next week,” Mr. Scruggs said.

As part of the overall settlement, Mr. Hood, the Mississippi attorney general, agreed to drop a criminal investigation into State Farm’s handling of hurricane damage claims and to remove the company from a civil lawsuit accusing it and other insurers of treating policyholders unfairly.

Mr. Hood said he was continuing the lawsuit against other insurers. On Thursday he urged other insurance companies to follow State Farm’s lead, to settle hundreds of other lawsuits and to reopen thousands of storm damage claims.

In rejecting the agreement, Judge Senter raised concerns about a lack of detail on how much money policyholders might receive. He noted that State Farm had agreed to pay at least $50 million for reopened claims. But, he said, “there is no way I can ascertain how this sum compares to the total claims” of the approximately 35,000 homeowners, nor “how thinly this large sum may be spread.”

He said he was also troubled about the potential unfairness of an arbitration process intended by the negotiators to provide an appeals process for homeowners who requested that their claims be re-evaluated. He said that under the agreement, arbitration hearings were to be limited to two hours and that there was no apparent provision for legal representation for homeowners.

Judge Senter said the agreement also failed to provide information on what the lawyers had done to justify an agreed-upon payment of up to $20 million in relation to reopening the 35,000 damage claims. The lawyers are to receive another $26 million for settling the 640 lawsuits.

Carl Tobias, a professor at the University of Richmond School of Law, said he thought Judge Senter was being “extraordinarily careful to attempt to protect the interests of all the homeowners.”

Professor Tobias said he did not think the settlement “was all over,” but, he added: “A lot of work has to be done to satisfy this judge.”

    Judge Puts Settlement on Katrina in Question, NYT, 27.1.2007, http://www.nytimes.com/2007/01/27/business/27insure.html

Bush Comments on Agents Who Shot Suspected Drug Dealer

January 20, 2007
The New York Times
By RACHEL L. SWARNS

WASHINGTON, Jan. 19 — President Bush waded this week into the furor surrounding two former border patrol agents who were each convicted and sentenced to more than a decade in prison in the shooting of a suspected Mexican drug dealer in Texas.

The case has become something of a cause among some advocates for tougher border security, who argue that the agents should be pardoned because they were doing their jobs in 2005 when they fired on the man, an assertion that has been contested by the federal prosecutors overseeing the case.

In an interview with KFOX-TV in El Paso, Mr. Bush was asked on Thursday whether he would consider a pardon for the two former agents, Ignacio Ramos and Jose Alonso Compean, who began serving their federal prison sentences of 11 years and 12 years respectively this week.

“There are standards that need to be met in law enforcement, and according to a jury of their peers, these officers violated some standards,” Mr. Bush said. “On this case, people need to take a hard look at the facts, at the evidence that the jury looked at, as well as a judge. And that’s — I will do the same thing.”

“Now, there’s a process for pardons,” he continued. “I mean, it’s got to work its way through a system here in government. But I just want people to take a sober look at the reality. It’s a case, as you said, it’s got a lot of emotions.”

Some interpreted Mr. Bush’s remarks to imply that he would consider a pardon for the two men. But Justice Department officials said on Friday that the two men were ineligible for consideration of a pardon at this time.

Requests for pardons, which are screened by the Justice Department before being considered by the White House, are not considered until at least five years after a petitioner has been convicted or released from jail or prison, according to the department’s guidelines.

A commutation of sentence, which reduces the period of incarceration, is not generally considered for people who are appealing their convictions, the guidelines said.

The two former agents have said they will appeal their convictions.

Johnny Sutton, the United States attorney who oversaw prosecution of the case, , dismissed the idea that the two men were simply doing their jobs or defending themselves. During their trial, the agents said they had scuffled with the suspected drug dealer, who they believed had a gun, before firing at him.

“Nothing could be further from the truth,” Mr. Sutton said in a statement last week, noting that the two men did not report the shooting to their superiors.

“These agents shot someone who they knew to be unarmed and running away,” Mr. Sutton said. “They destroyed evidence, covered up a crime scene and then filed false reports about what happened. It is shocking that there are people who believe it is O.K. for agents to shoot an unarmed suspect who is running away.”

    Bush Comments on Agents Who Shot Suspected Drug Dealer, NYT, 20.1.2007, http://www.nytimes.com/2007/01/20/washington/20border.html

Jury Spares Driver in Smuggling Deaths Case

January 19, 2007
The New York Times
By RALPH BLUMENTHAL

HOUSTON, Jan. 18 — The truck driver who carried 19 illegal immigrants to their deaths in his suffocating trailer in 2003 was spared execution on Thursday and sentenced instead to life in prison without parole.

In a punishment verdict after five days of deliberations, the federal jury that last month convicted the driver, Tyrone M. Williams, on all charges in the nation’s deadliest human smuggling case rejected the government’s calls for the death penalty but meted out the stiffest possible life sentence.

Mr. Williams, who turned 36 on Thursday, reacted with impassivity but was hugged by his lawyers. His lead counsel, Craig Washington, wept — “tears of joy,” he later said.

The foreman of the jury of seven women and five men said outside court that the death penalty had not been a close call.

“We felt as a consensus, as a jury, he didn’t deserve it,” said the foreman, an airline worker and one of three jurors who agreed to be interviewed afterward but insisted that their names not be disclosed.

The United States attorney in Houston, Don DeGabrielle, said prosecutors respected the verdict.

“We did everything we could to encourage them to impose a sentence of death,” Mr. DeGabrielle said, adding that “19 sentences of life imprisonment were not something to be disappointed about.”

On one count of conspiracy, the jury left it up to Judge Lee H. Rosenthal to impose sentence. She set Aug. 23 for a sentencing hearing.

The lead prosecutor, Daniel C. Rodriguez, presented anguished testimony of survivors and argued that Mr. Williams was the only one who could have saved the victims. But Mr. Washington repeatedly questioned why Mr. Williams, the only major African-American defendant among the ring of human smugglers, should be singled out for execution when co-conspirators made deals to testify for the government.

Mr. Williams was convicted on Dec. 4 of all 58 counts of human smuggling. Mr. Washington said he would appeal.

A first trial ended in March 2005 with the jury’s finding of guilty on 38 counts but deadlocking on 20 others, including some eligible for death. The incomplete verdict was thrown out by the United States Court of Appeals for the Fifth Circuit.

Evidence in both trials showed that Mr. Williams, a milk trucker and small-time drug dealer from Schenectady, N.Y., was recruited to transport at least 73 illegal immigrants from Harlingen past a Border Patrol checkpoint, where they were to be transferred to a van and a pickup. But the other vehicles were blocked, and Mr. Williams was told to drive toward Houston.

With the passengers punching air holes in the sweltering trailer, Mr. Williams halted in Victoria, about 100 miles southwest of Houston, where he opened the trailer’s doors, provided bottles of water and fled.

Along with the bodies of 19 victims, two of whom died later in the hospital, rescuers found 54 survivors. Some others may have escaped.

In his final prosecution arguments in the sentencing phase, Mr. Rodriguez said Mr. Williams had committed “acts of violence” by using what he called “in essence an unplugged refrigerator to transport these people.” He said Mr. Williams had been motivated by “the oldest reason in the world, greed.”

Mr. Washington, in his closing arguments, portrayed Mr. Williams as concerned about his riders once he realized their plight.

“I think the question is intent,” he said, arguing that the government had not proved “that Tyrone intended to kill these poor souls.”

And he said of the smuggling ringleaders: “Why aren’t they facing the death penalty? They’re all part of the conspiracy.”

Jurors said they began each session of deliberations with 19 seconds of silence — one for each victim.

Maureen Balleza contributed reporting.

    Jury Spares Driver in Smuggling Deaths Case, NYT, 19.1.2007, http://www.nytimes.com/2007/01/19/us/19smuggle.html?_r=1&oref=slogin

Convict charged in Idaho abductions, murder

Updated 1/18/2007 11:30 PM ET
AP
USA Today

BOISE (AP) — A man convicted in the 2005 slayings of three members of an Idaho family was charged Thursday in U.S. District Court with kidnapping the family's two youngest children and killing one of them.

The indictment against Joseph Edward Duncan III, issued by a federal grand jury in Coeur d'Alene, will allow the government to seek the death penalty, U.S. Attorney Tom Moss said.

The indictment accuses Duncan of kidnapping Dylan Groene, 9, and his sister Shasta, then 8 years old, sexually abusing them both and later killing Dylan in Montana.

Shasta was rescued as she and Duncan ate at a Coeur d'Alene, Idaho, restaurant in July 2005, about seven weeks after the abduction.

News of the indictment came hours after authorities in California said they were planning to charge Duncan with the 1997 kidnapping and murder of a 10-year-old boy whose bound, nude body was buried under a rock pile in the desert.

Duncan is also considered the prime suspect in the slayings of two children near Seattle.

Among the charges against Duncan, 43, in the Idaho case are kidnapping resulting in death, sexual abuse of both children and firearms counts.

The grand jury alleged that Duncan killed Dylan in an "especially heinous, cruel, and depraved manner," according to federal prosecutors. "The grand jury also found that the child's killing involved torture and serious physical abuse."

Roger Peven, Duncan's Idaho defense attorney, told The Associated Press late Thursday that the federal case will be resolved before any additional cases are tried in state court. He said his client would plead not guilty Friday.

"This will get the process going," Peven said. "We've been anticipating it for quite some time."

On Tuesday, federal prosecutors in Idaho charged Duncan with driving a stolen vehicle across state lines. The charge was considered a placeholder to make sure Duncan was not extradited for crimes in other states before the federal case was completed.

Duncan already pleaded guilty last October to first-degree murder and kidnapping in Idaho state court for the May 16, 2005, hammer slayings of the children's mother, Brenda Groene; her fiance, Mark McKenzie, and Groene's 13-year-old son, Slade. Duncan was sentenced to life in prison for those kidnapping counts but has not been sentenced on the murder counts.

Duncan stalked the Groene family for several days, then entered the home and bound and fatally bludgeoned the two adults and the teen.

Court documents allege that Duncan kidnapped the two youngest children and took them into the Montana mountains, where he sexually abused them for weeks before killing Dylan. The boy's body was found in a remote campsite.

Shasta was rescued when she and Duncan walked into a restaurant in Coeur d'Alene, Idaho, on July 2, 2005. Duncan has been quoted in court documents as saying he was trying to return the girl to her father.

Steve Groene, father of Shasta and the two slain boys, did not immediately respond to an e-mail request for comment. He is unable to speak because of surgery last year for throat cancer.

Prosecutors in California said Thursday that they intend to seek the death penalty against Duncan in the 1997 killing of Anthony Martinez, a case they say involved kidnapping, torture and child molestation.

Contributing: Associated Press writers Nick Geranios in Spokane, Wash., and Shannon Dininny in Boise contributed to this report.

    Convict charged in Idaho abductions, murder, UT, 18.1.2007, http://www.usatoday.com/news/nation/2007-01-18-idado-abductions_x.htm

Justice Dept. Names New Prosecutors, Forcing Some Out

January 17, 2007
The New York Times
By DAVID JOHNSTON

WASHINGTON, Jan. 16 — The Justice Department is removing several United States attorneys from their jobs, among them Carol C. Lam, the top federal prosecutor in San Diego, who led the corruption prosecution of former Representative Randy Cunningham.

Justice Department officials said Tuesday that Ms. Lam’s dismissal had nothing to do with the prosecution of Mr. Cunningham, Republican of California, but was based on her overall record in prosecuting firearms violations and crimes along the California border with Mexico.

But Senator Dianne Feinstein, Democrat of California, said that Ms. Lam and Kevin V. Ryan, the United States attorney from San Francisco, among others, were being pushed out “without cause.” Mr. Ryan’s office has been investigating the backdating of stock options granted to corporate executives.

Ms. Feinstein said on the Senate floor on Tuesday that Ms. Lam, appointed in 2002, was “a straight shooter and a good prosecutor.”

“To my knowledge,” Ms. Feinstein said, “there are no allegations of misconduct having to do with Carol Lam. She is a distinguished former judge. Rather, the only explanation I have seen are concerns that were expressed about prioritizing corruption cases over smuggling and gun cases.”

Representative Darrell Issa, a Republican from San Diego County who has criticized Ms. Lam’s record on illegal immigration, called the Cunningham prosecution “a credit to her leadership and her office” in a statement on Tuesday, but repeated his call for border enforcement and said her replacement “will bring new ideas and new strategies that will benefit our area.”

It is not clear how many United States attorneys are being forced out. Ms. Feinstein said the number was 5 to 10; Justice Department officials said the number was lower but would not provide a specific number.

“We in no way politicize these decisions,” Attorney General Alberto R. Gonzales told The Associated Press on Tuesday. Other Justice Department officials said some prosecutors were being dismissed and others were leaving voluntarily.

The Justice Department sent a letter defending its actions on Tuesday to Ms. Feinstein and Senator Patrick J. Leahy, Democrat of Vermont, chairman of the Judiciary Committee. “That on occasion in an organization as large as the Justice Department some United States attorneys are removed or are asked or encouraged to resign, should come as no surprise,” the letter said. It added that no action had been taken against United States attorneys “to retaliate against them or interfere with or inappropriately influence a particular investigation, criminal prosecution or civil case.”

Ms. Feinstein said in her statement that she knew of seven United States attorneys who had been dismissed without cause.

Those the Justice Department officials said had been asked to leave were Ms. Lam, Mr. Ryan, Daniel G. Bogden of Nevada, David C. Iglesias of New Mexico and H. E. Cummins III of Arkansas. Others who are said to be stepping down are Paul K. Charlton of Arizona and John McKay of Washington State. All were appointed by President Bush.

Ms. Feinstein noted that the two Arkansas senators, Mark Pryor and Blanche Lincoln, both Democrats, had raised concerns about Mr. Cummins’s replacement, J. Timothy Griffin, who was research director for the Republican National Committee. Justice Department officials said Mr. Griffin had a strong background as a military and civilian prosecutor.

The officials said that most of those being removed were being replaced based on a review of their performance in carrying out Mr. Gonzales’s violent crime priorities.

These officials sought to minimize the significance of the action. They said there were frequently changes in the ranks of United States attorneys after an election and that there were often 10 to 15 vacancies among the 93 posts around the country. But as presidential appointees, United States attorneys are rarely removed without a specific reason.

Ms. Feinstein said the departmentmight be removing the prosecutors to take advantage of a little-noticed provision in the 2006 reauthorization of the USA Patriot Act that expanded its authority to make indefinite interim appointments.

Previously, a federal judge would appoint an interim United States attorney to serve until the Senate confirmed the president’s nominee. Now the attorney general can nominate someone to serve without confirmation for the remainder of Mr. Bush’s term. Ms. Feinstein, Mr. Pryor and Mr. Leahy have introduced legislation to restore the role of naming interim prosecutors to the judiciary.

Justice Department officials said that there was no intention to use the law to skirt the confirmation process now that the Senate is in Democratic hands, and that the administration would submit nominees for Senate confirmation.

    Justice Dept. Names New Prosecutors, Forcing Some Out, NYT, 17.1.2007, http://www.nytimes.com/2007/01/17/washington/17justice.html

As Trial Begins, Cheney’s Ex-Aide Is Still a Puzzle

January 17, 2007
The New York Times
By SCOTT SHANE

WASHINGTON, Jan. 16 — Paradox seems to define I. Lewis Libby Jr., who remains a bit mysterious even to close colleagues. He is the White House policy enforcer who also wrote a literary novel; a buttoned-down Washington lawyer who likes knocking back tequila shots in cowboy bars and hurtling down mountains on skis and bikes; and a 56-year-old intellectual known to all by his childhood nickname, Scooter.

But now comes the most baffling paradox of all, as Mr. Libby, former chief of staff and alter ego to Vice President Dick Cheney, began his trial in federal court here on Tuesday on charges of perjury and obstruction of justice. By all accounts a first-rate legal mind and a hypercautious aide whose discretion frustrated reporters, he is charged with repeatedly lying to a grand jury and to the F.B.I. about his leaks to the news media in the battle over Iraq war intelligence.

“I don’t often use the word ‘incomprehensible,’ but this is incomprehensible to me,” said Dennis Ross, the veteran Middle East troubleshooter who is now at the Washington Institute for Near East Policy. “He’s a lawyer who’s as professional and competent as anyone I know. He’s a friend, and when he says he’s innocent, I believe him. I just can’t account for this case.”

Among Mr. Libby’s friends and former colleagues, the case brought by Patrick J. Fitzgerald, the special prosecutor, is considered not only unjust, but also a terrible irony.

“He’s going to be the poster boy for the criminalization of politics, and he’s not even political,” said Mary Matalin, Mr. Cheney’s former political adviser.

Critics of the Bush administration say nothing was more political than the administration’s use of defective intelligence to take the country to war, in which Mr. Libby was deeply involved. At a time of deep public distress over events in Iraq, the trial will inevitably carry symbolic weight beyond the legal question of whether Mr. Libby lied.

He was “Cheney’s Cheney,” in Ms. Matalin’s words, “an absolutely salient translator” of the ideas of the man considered perhaps the most powerful vice president in history. Mr. Libby had a role in virtually every national security initiative of the administration’s first five years.

It was Mr. Libby who helped assemble a dossier on Saddam Hussein and unconventional weapons and ties to Al Qaeda for Secretary of State Colin L. Powell’s speech to the United Nations on Feb. 5, 2003, fighting to keep in the speech evidence that Mr. Powell found questionable. It was Mr. Libby, at Mr. Cheney’s direction, who repeatedly spoke to reporters to rebut Joseph C. Wilson IV after Mr. Wilson, a former ambassador, publicly accused the White House of distorting intelligence.

“Libby didn’t plan the war,” said John Prados, a historian of national security who wrote a book in 2004 on the flawed Iraq intelligence. “But he did enable the administration to set out on that course. He was the facilitator.”

Both fans and critics of Mr. Libby might be surprised by some anecdotes from Yale, where Mr. Libby graduated in 1972. Fellow students recall his helping silkscreen T-shirts proclaiming “solidarity” between Yalies and the Black Panthers and going with shoulder-length blond hair and in a leather jacket to help at an anti-Vietnam War demonstration.

A couple of years after graduation, a classmate, Donald Hindle, met Mr. Libby, then a student at the Columbia Law School, and noted a decidedly nonpolitical talent.

“He could remember not only all 79 ‘Star Trek’ episodes, as I could, but he knew all the titles, too,” Mr. Hindle said. “I think he always liked fantasy.”

Mr. Libby and his brother Hank, a retired tax lawyer, were the first in the family to graduate from college. Their father, Irve Lewis Libby Sr., had dropped out to support his family in the Depression. The senior Mr. Libby, who called his son Scooter after seeing him scurry about his crib, became a successful businessman. The family lived in the Washington region, Miami and Connecticut before Scooter graduated from the Phillips Andover Academy in Massachusetts.

At college, Mr. Libby began writing a novel, a mystery set at a country inn in 1903 in Japan, where he had spent the summer of 1969. He rewrote the book off and on for 25 years before it was published as “The Apprentice” in 1996, to glowing reviews (“a small triumph of meticulous craftsmanship,” The Washington Post said), though after his indictment The New Yorker mocked its sex scenes.

Also at Yale, Mr. Libby took courses from a young political science instructor, Paul D. Wolfowitz, who became the chief intellectual theorist of the Iraq war. Seven years older, Mr. Wolfowitz was the critical mentor in recruiting Mr. Libby to the neoconservative camp, hiring him first in 1981 as a speechwriter and an Asia analyst at the State Department under President Ronald Reagan and in 1989 as a strategist in the Defense Department, headed by Mr. Cheney in the administration of the first President George Bush.

“He was fascinated by Paul’s thinking,” recalled a friend, Francis Fukuyama, who worked with him at the State Department. Some experts find the seeds of the current president’s assertive foreign policy in a 1992 military policy paper that Mr. Libby helped draft.

Between government stints, Mr. Libby practiced law with the firm of Leonard Garment, counsel to President Richard M. Nixon. Mr. Garment remembers him as “reliable, immensely hard working and guarded.”

Presented with the seemingly intractable tax problems of a fugitive commodities trader, Marc Rich, Mr. Libby “went off for a year and worked on it, closeted with his own intellect,” Mr. Garment said.

He emerged with a creative analysis, Mr. Garment added, that would ultimately help persuade President Bill Clinton to pardon Mr. Rich, an act that Republicans criticized because Mr. Rich’s former wife, Denise, was a Democratic donor.

It was in Mr. Garment’s firm that Mr. Libby met his future wife, Harriet Grant, a lawyer and onetime Democratic staff member of the Senate Judiciary Committee, where she handled Anita F. Hill’s challenge to the Supreme Court nomination of Clarence Thomas.

“She probably cancels his vote every four years,” said Jackson Hogen, a friend of Mr. Libby since his Andover days, a ski partner and a liberal Democrat. “It’s a credit to Scooter that he can maintain a friend like me and a wife like her all these years.”

Friends praise Mr. Libby’s courtly manners and dry humor, but they also note his reserve. As a lawyer and an aide, he has generally advocated for others, whether Mr. Rich or Mr. Cheney. Many in Washington saw his views as indistinguishable from the vice president’s, but some friends say they are uncertain about his personal opinions.

“He never struck me, even knowing him as I do, as an ideologue,” said Mr. Fukuyama, who has skied with Mr. Libby and both of whose children were on the same Little League team. “I wouldn’t say I have a particularly good handle on his worldview.”

In 2001, when Mr. Cheney lured Mr. Libby from his $535-an-hour law practice to the White House, one attraction for the vice president was his discretion, said Juleanna Glover Weiss, Mr. Cheney’s former press secretary.

“Like Cheney, Scooter’s a tomb,” Ms. Glover Weiss said. “Information can go in, but most of the time it doesn’t come out.”

Yet it is clear that long before Sept. 11, 2001, Mr. Libby, who studied the possibility of biological attacks in the Persian Gulf war in 1991, focused on the terrorist threat.

“What animates him is security,” Ms. Matalin said. “On 9/12, there were but a handful of people who had the strategic grasp of terrorism that he did.”

Some colleagues later wondered whether his focus on the threat had became too single-minded. Mr. Libby and his boss repeatedly pushed for widespread immunization against smallpox, disturbing others in the administration who worried about fatal reactions that some people might have.

C. Dean McGrath Jr., Mr. Libby’s deputy until the end of 2005, said that particularly after the shock of Sept. 11 “Scooter considered it to be part of his job to think about dire possibilities.”

By all accounts, Mr. Libby brought his worst-case approach to the debate over Mr. Hussein’s threat. When that debate led to the leak of a C.I.A. officer’s identity, the resulting criminal investigation produced one indictment, that of Mr. Libby for perjury and obstruction of justice. It landed just after the death of Mr. Libby’s mother and a fall that broke his foot and left him hobbling into the federal courthouse on crutches.

“He puts up a tough front,” said Mr. Hogen, his school and ski buddy. “But there’s a kind human being in there who’s really gotten beat up in this affair.”

Mr. Libby’s friends, including Mr. Cheney, have rallied behind him. The Hudson Institute, a research institution, has provided Mr. Libby with a place to work. His legal defense fund has a board that would be the envy of any conservative institution, including five former cabinet members, five former members of Congress and seven former ambassadors.

Friends say Mr. Libby, 56, has spent a lot of time at his home in McLean, Va., with his wife and children, a son in middle school and a daughter in elementary school. He has focused his legal acumen on a new client — himself.

Kenneth Adelman, a friend from the Reagan administration, invited the family for a week’s vacation in Colorado last summer and took Mr. Libby to lunch with a liberal, pacifist local columnist, Paul Andersen.

The two men had a long talk about wilderness and recited poetry from memory. Mr. Andersen learned later that he had been talking with a man whom he had considered a symbol for all that was wrong with an administration that he holds in contempt.

If Mr. Libby broke the law, Mr. Andersen said, he should be held accountable. But he said his views were more complicated after the lunch encounter.

“I got a feeling for him as a family man, a guy who likes the mountains,” Mr. Andersen said. “Later, it seemed like he was nursing some serious pain. It seemed a dreadful shame that circumstances can sometimes ruin lives.”

    As Trial Begins, Cheney’s Ex-Aide Is Still a Puzzle, NYT, 17.1.2007, http://www.nytimes.com/2007/01/17/washington/17libby.html?hp&ex=1169096400&en=8c459b1ef993e5aa&ei=5094&partner=homepage

Potential Jurors Queried on Views of Bush Administration

January 17, 2007
The New York Times
By NEIL A. LEWIS

WASHINGTON, Jan. 16 — The perjury trial of I. Lewis Libby Jr. began Tuesday with his lawyers trying to eliminate as jurors anyone who might have strongly negative feelings about the Bush administration in general and Vice President Dick Cheney in particular.

Mr. Libby, who was the vice president’s chief of staff, is facing five felony counts charging that he lied to F.B.I. agents and to a grand jury investigating who leaked the name of a Central Intelligence Agency operative and why. Judge Reggie M. Walton, who is presiding over the case in Federal District Court, has said he hopes to have the jury in place for opening statements on Monday.

The first day of jury selection on Tuesday went slowly, with only nine potential jurors interviewed. Two of them were excused by Judge Walton after they made it clear they were critics of the administration and Mr. Cheney.

One woman lasted barely 40 seconds on the witness stand before she was dismissed. She said “nothing that could be said here” would make her believe anything good about the administration. Another man, after about 15 minutes, acknowledged that his low regard for Mr. Cheney might figure into how he evaluated his testimony if it was in conflict with other witnesses.

Mr. Cheney is expected to be one of the star witnesses for the defense.

Mr. Libby’s lawyers, Theodore V. Wells and William H. Jeffress Jr., also explored whether potential jurors were open to one of their main lines of argument: that if Mr. Libby gave incorrect answers to the Federal Bureau of Investigation and the grand jury, it could have been a simple case of faulty memory.

They asked the potential jurors if they ever had the experience of believing something had happened only to learn later that they had remembered it incorrectly. They also asked if two people gave “different accounts of a conversation they had,” did that necessarily mean one of the participants was lying.

After the name of the C.I.A. officer, Valerie Wilson — who was known by her maiden name, Valerie Plame — appeared in a column by Robert D. Novak in July 2003, Patrick J. Fitzgerald was named as a special prosecutor to investigate the leak.

Mr. Fitzgerald looked into who leaked Ms. Wilson’s name, whether it violated the law against disclosing the identities of C.I.A. officers and whether the disclosure was devised to punish her husband, Joseph C. Wilson IV. Days before the column appeared, Mr. Wilson, a former ambassador, asserted in a commentary in The New York Times that the administration had knowingly distorted intelligence about Saddam Hussein’s efforts to obtain nuclear material to help the case for going to war in Iraq.

The indictment of Mr. Libby charges that he lied when he said he did not discuss Ms. Wilson’s identity in conversations with two reporters. The two reporters, Judith Miller, formerly of The New York Times, and Matthew Cooper of Time magazine, testified that Mr. Libby had, in fact, discussed Ms. Wilson and her employment at the C.I.A.

Mr. Libby’s defense is that those two reporters’ memories of their conversations may not be accurate. And, even if they were, Mr. Libby, also Mr. Cheney’s national security adviser, was preoccupied with far weightier issues than Ms. Wilson’s identity.

Potential jurors were also asked if they believed that the administration distorted intelligence to bolster the case for war with Iraq.

    Potential Jurors Queried on Views of Bush Administration, NYT, 17.1.2007, http://www.nytimes.com/2007/01/17/washington/17jury.html

Court Vacates Term of Algerian in Bomb Plot

January 17, 2007
The New York Times
By JENNIFER STEINHAUER

LOS ANGELES, Jan. 16 — A federal appeals court on Tuesday vacated the 2005 sentence of an Algerian man convicted of plotting to bomb Los Angeles International Airport.

The man, Ahmed Ressam, known as the Millennium Bomber because of prosecutors’ claims that he intended to bomb the airport on the eve of the millennium, was arrested in December 1999 in Washington State after driving off a ferry from British Columbia in a car with bomb-making materials in its trunk. He was convicted on nine counts, including document fraud and transportation of deadly explosives, and sentenced to 22 years in prison.

But on Tuesday, the United States Court of Appeals for the Ninth Circuit, in San Francisco, reversed his conviction on the ninth count, which charged that he was carrying explosives while committing the felony of making a false statement to customs officials about both his identity and the fact that he had explosives.

Mr. Ressam became a suspect when a customs agent felt that his itinerary seemed unusual and that he was acting in a peculiar manner.

But the evidence, according to the court’s written opinion, did not “show that the explosives ‘facilitated or played a role in the crime’ of lying on the customs declaration.” Further, the court said, “it is not enough for the government to prove that Ressam lied because he was smuggling explosives in the trunk of his car. Rather, the government must demonstrate that the explosives aided the commission of the underlying felony in some way.”

Given its reversal on that count, which carried a mandatory sentence of 10 years, the court opted to vacate the entire sentence.

Before his sentencing but after his conviction in 2001, Mr. Ressam cooperated with investigators in hopes of receiving a reduced sentence, but he failed to continue to provide information after two years, leading prosecutors to ask for a 35-year sentence.

But the Federal District Court instead imposed a sentence 13 years short of that, in a blow to prosecutors, who insisted that before his decision to stop cooperating Mr. Ressam provided important and material information about other terror suspects. Further, he testified against his co-conspirator, Mokhtar Haouari, and a Sept. 11 plotter, Mounir el-Motassadeq.

Mr. Ressam later recanted testimony against Hassan Zemiri, a fellow Algerian who was held as an enemy combatant at Guantánamo Bay, Cuba, and as a result of his refusal to cooperate further, federal prosecutors said, they were forced to dismiss indictments against two other terror suspects.

The appeals court sent the case back to the lower court to issue a new sentence. The United States attorney in Seattle, whose office prosecuted the case, said it would continue to recommend a 35-year sentence.

“Obviously we’re disappointed,” said Emily Langlie, a spokeswoman for the United States attorney’s office in Seattle. Ms. Langlie added that the office was “carefully reviewing the decision” to determine whether it would ask the United States solicitor general to have a broader panel of 15 judges from the circuit court review the case.

The court’s move essentially opens up a question of statutory interpretation about whether the carrying of explosives had to be in some way related or connected to the other felony — signing a false customs document — for the count to stand.

It is up to the judge to decide whether to reduce Mr. Ressam’s sentence. Because there are eight other counts on which he was convicted, including conspiracy to commit an act of international terrorism, it could remain unchanged.

“Losing a false-statement charge would not be a reason for the court to reduce the sentence significantly,” said Carol Chase, a law professor at Pepperdine University, adding that it depended on the range of mandatory sentences of the rest of the counts. It is unlikely, she said, that the sentence will be increased, even though the government maintains its position that the 22-year sentence imposed was too short.

    Court Vacates Term of Algerian in Bomb Plot, NYT, 17.1.2007, http://www.nytimes.com/2007/01/17/us/17bomber.html

Court Throws Out ‘Millennium Bomber’ Sentence

January 16, 2007
By THE ASSOCIATED PRESS
Filed at 2:22 p.m. ET
The New York Times

SAN FRANCISCO (AP) -- A federal appeals court on Tuesday threw out the sentence of a man who was convicted of plotting to bomb Los Angeles International Airport at the turn of the millennium.

Ahmed Ressam was arrested near the U.S.-Canadian border in December 1999 after customs agents found 124 pounds of explosives in the trunk of his car.

Prosecutors said he was intent on bombing the airport on the eve of the millennium. The arrest raised fears of terrorism attacks and prompted the cancellation of millennium celebrations at Seattle's Space Needle.

Ressam was sentenced to 22 years in prison after being convicted off all nine charges. On Tuesday, the 9th U.S. Circuit Court of Appeals in San Francisco reversed his conviction on one of the charges and sent the case back to a lower court to issue a new sentence and explain the rationale behind the original 22-year term.

The decision does not necessarily mean Ressam will get a shorter term. Judges are given wide latitude to sentence defendants as they see fit.

After his conviction in 2001, Ressam began cooperating with authorities in hopes of winning a reduced sentence.

Over the next two years, according to court documents, he provided information on more than 100 potential terrorists and testified against coconspirator Moktar Haouari and Sept. 11 plotter Mounir el-Motassadeq.

Ressam told authorities he saw Zacarias Moussaoui at a training camp in Afghanistan in 1998. He also told investigators about the type of shoe bomb Richard Reid attempted to detonate on a U.S.-bound airline flight in 2001, and provided information about a network of Algerian terrorists in Europe.

U.S. District Judge John Coughenour of Seattle, who sentenced Ressam, said the information he provided was ''startlingly helpful.''

But Ressam's cooperation came to a halt by early 2003, resulting in charges being dropped against two other coconspirators. His lawyers said years of solitary confinement, broken by periods of intense interrogation, had taken their toll on his mental health and corrupted his memory.

    Court Throws Out ‘Millennium Bomber’ Sentence, NYT, 16.1.2007, http://www.nytimes.com/aponline/us/AP-Millennium-Terror.html?hp&ex=1169010000&en=16170d661c3edfb9&ei=5094&partner=homepage

Judge Rejects Defamation Suit Against The Times

January 13, 2007
The New York Times
By NEIL A. LEWIS

WASHINGTON, Jan. 12 — A federal judge on Friday dismissed a suit against The New York Times by a former government scientist who said he was defamed by a series of columns about the deadly anthrax mailings in 2001.

The judge, Claude M. Hilton of Federal District Court in Alexandria, Va., granted a motion by The Times to dismiss the suit but did not provide an immediate explanation. He is expected to file a detailed written opinion in coming days.

It was the latest and, perhaps, final chapter in a suit that has gone to the Supreme Court.

The scientist, Dr. Stephen J. Hatfill, a specialist in biological weapons, had said in his suit that the columns by Nicholas D. Kristof about the anthrax mailings had defamed him.

Mr. Kristof wrote about a government scientist whom he initially identified as Mr. Z, saying he had become the overwhelming focus of the investigation. In August 2002, Mr. Kristof wrote that Dr. Hatfill, a former scientist at the Army bioweapons center at Fort Detrick, Md., had come forward and identified himself as Mr. Z and said the news media had treated him unfairly.

Five people died in the anthrax attacks. Although federal authorities identified Dr. Hatfill as a “person of interest,” he was never charged with any crime, and the attacks remain unsolved.

The Times argued in its dismissal motion that Dr. Hatfill was a public figure, at least for the purposes of the suit, in that he had thrust himself into the public debate about preparedness for a biological attack. That would present him with a far greater burden in showing that he was defamed and could, as the newspaper argued, prevent such a judgment.

The Times also argued that the columns did not blame Dr. Hatfill for the attacks, as he said in his suit. Instead, the paper’s lawyers said, the columns were aimed at pressing the Federal Bureau of Investigation to move more swiftly and either charge or clear Dr. Hatfill as a suspect.

Judge Hilton had dismissed the suit earlier, saying that no defamation had occurred. A three-judge appeals panel voted, 2 to 1, to reinstate the suit, saying a jury should decide whether the columns were defamatory.

The full appeals court, based in Richmond, Va., split, and the Supreme Court refused to intervene.

Judge Hilton’s latest dismissal, when his opinion is published, is expected to rest on a fuller argument than the last time and could thus be less vulnerable to being overturned. It is likely to deal with the issues raised in The Times’s dismissal motion and Dr. Hatfill’s response, including the question of whether he is a public figure for the purposes of defamation law.

Whether there is any leeway for Dr. Hatfill to mount an appeal as he did before would depend on how Judge Hilton fashions his ruling.

A lawyer for Dr. Hatfill, Mark A. Grannis, said, “Obviously we can’t make any statements as to what we’ll do until we see the ruling.”

Mr. Grannis said he did not believe that the case was over.

“It has always been our position,” he said, “that the evidence of defamation was extremely strong and Mr. Kristof fabricated parts of his column to falsely implicate Dr. Hatfill in the anthrax attacks.”

David E. McCraw, a lawyer for The Times, said in a statement: “We are gratified by the judge’s ruling today. In making our summary judgment motion, we believed that the plaintiff had failed to come up with the evidence necessary to bring this case to trial, and we are pleased that the court agreed.”

Mr. McCraw said the case had required a significant investment of time and money on the part of the newspaper, “but in the end, the law of defamation worked the way it was supposed to, by protecting aggressive, important journalism.”

    Judge Rejects Defamation Suit Against The Times, NYT, 13.1.2007, http://www.nytimes.com/2007/01/13/us/13hatfill.html?hp&ex=1168750800&en=a4cd271791f64849&ei=5094&partner=homepage

Appeals court nominees pull names from consideration, Republicans say

Posted 1/9/2007 12:49 PM ET
AP
USA Today

WASHINGTON (AP) — In a concession to the Senate's new Democratic majority, four of President Bush's ¼ appeals court appointees have asked to have their nominations withdrawn, Republican officials said Tuesday.

These officials said that William Haynes, William Myers and Terrence Boyle had all decided to abandon their quest for confirmation. Another nominee, Mike Wallace, let it be known last month that he, too, had asked Bush to withdraw his nomination.

Haynes is the Pentagon's top lawyer, and was an architect of the Bush's now-abandoned policy toward treatment of detainees in the war on terror. He had been tapped for the 4th U.S. Circuit Court of Appeals.

Boyle is a federal judge in North Carolina, and his appointment to the 4th Circuit provoked opposition from Democrats who cited his rulings in civil rights and disability cases, as well as his higher-than-average turnover rate by higher courts.

Several appeals court confirmations were left in limbo when the Senate adjourned for the 2006 elections.

Sen. Patrick Leahy, D-Vt., the chairman of the Judiciary Committee, has said only "consensus nominees" are likely to win confirmation under the new Democratic majority.

The Republicans who disclosed the withdrawal did so on condition of anonymity, saying they did not want to pre-empt a formal announcement at the White House.

    Appeals court nominees pull names from consideration, Republicans say, UT, 9.1.2007, http://www.usatoday.com/news/washington/judicial/2007-01-09-nominees_x.htm

Bush backs off fight on four court nominees

Tue Jan 9, 2007 4:09 PM ET
Reuters

WASHINGTON (Reuters) - Backing away from a confrontation with Senate Democrats, President George W. Bush has decided to withdraw four appeals court nominations whose selections had met with resistance, the White House said on Tuesday.

The nominations of William Haynes, Michael Wallace, William Myers and Terrence Boyle will be withdrawn, said White House spokeswoman Emily Lawrimore.

Haynes's role as general counsel for the Department of Defense and in advising the Bush administration on the treatment of terror suspects had stirred controversy and Democrats had criticized the records of the other nominees on issues like civil rights and the environment.

With the Senate now under Democratic control, prospects for their confirmations appeared slim.

"As many of America's courts lay vacant, the president's main focus now is to address this issue by moving forward in the 110th Congress with a new slate of highly qualified nominees," Lawrimore said.

    Bush backs off fight on four court nominees, R, 9.1.2007, http://today.reuters.com/news/articlenews.aspx?type=politicsNews&storyID=2007-01-09T210815Z_01_N09190970_RTRUKOC_0_US-BUSH-COURT.xml&WTmodLoc=Home-C5-politicsNews-3