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History > 2013 > USA > Justice Department, Federal Justice (I)




U.S. Judge Upholds

Most New York Gun Limits


December 31, 2013
The New York Times


A federal judge ruled on Tuesday that New York’s strict new gun laws, including an expanded ban on assault weapons, were constitutional, but struck down a provision forbidding gun owners to load more than seven rounds into a magazine.

The ruling offered a victory to gun control advocates at the end of a year in which efforts to pass new legislation on the federal level suffered a high-profile defeat in Congress, although some new restrictions were approved in state capitals.

The judge, William M. Skretny of Federal District Court in Buffalo, said expanded bans on assault weapons and high-capacity magazines were legally sound because they served to “further the state’s important interest in public safety.”

The new laws in New York, enacted in January 2013, are among the most restrictive in the country. Gov. Andrew M. Cuomo, a Democrat, pushed for the state to be the first to take action after the mass school shooting in Newtown, Conn.; gun rights groups accused him of ramming through new gun restrictions they called ill-conceived, poorly understood and unconstitutional.

In a 54-page ruling, Judge Skretny struck down a well-known but troubled portion of the law, which prohibited gun owners from loading more than seven rounds into a magazine. He called the limit “an arbitrary restriction” that violated the Second Amendment.

But, saying that “whether regulating firearms is wise or warranted is not a judicial question; it is a political one,” he found that Mr. Cuomo and lawmakers had acted within their bounds when they drafted the gun laws, and specifically cited the Bushmaster rifle and 30-round magazine used in the Newtown shooting.

“Of course, this is only one incident,” Judge Skretny wrote. “But it is nonetheless illustrative. Studies and data support New York’s view that assault weapons are often used to devastating effect in mass shootings.”

He said that the gun law “applies only to a subset of firearms with characteristics New York State has determined to be particularly dangerous and unnecessary for self-defense; it does not totally disarm New York’s citizens; and it does not meaningfully jeopardize their right to self-defense.”

Even after the Newtown shooting, states passed more legislation in the last year loosening gun laws than tightening them. But gun control advocates, who celebrated the New York measure as a leading success story, said the ruling confirmed their position that the government had the right to pass strict controls on firearms.

“A lot of states can take courage and take heart from this ruling, and maybe even Congress will take notice,” said Leah Gunn Barrett, the executive director of New Yorkers Against Gun Violence. “The Second Amendment does not preclude reasonable regulation. It doesn’t mean you can have guns that are extremely dangerous, like assault weapons.”

But the states that have passed new gun restrictions have seen a backlash. In Colorado, where there have been two highly publicized mass shootings — in Aurora and in Columbine — lawmakers voted to expand background checks and limit the capacity of ammunition magazines. The laws prompted recalls of two state senators in September; a third resigned in November rather than face a recall, and some sheriffs have declined to enforce the laws.

And in New York, the laws have damaged Mr. Cuomo’s standing upstate as he prepares to seek re-election in November; in a year-end progress report released on Friday, he only briefly mentioned the gun laws. A spokeswoman for the governor declined to comment on the judge’s ruling.

Thomas H. King, the president of the New York State Rifle and Pistol Association, which was among the lawsuit’s plaintiffs, said opponents of the law would appeal Judge Skretny’s ruling.

“Right from Day 1, I’ve been telling people that this is the first step,” he said. “This is going to the Supreme Court.”

Gun rights groups have responded with outrage to the new laws, holding demonstrations at the Capitol in Albany, denouncing politicians like Mr. Cuomo and questioning the laws’ legality. Some gun owners have said they will refuse to comply with a requirement that people who already own assault weapons register them with the state.

The seven-round limit on magazines, which Mr. Cuomo had highlighted when he signed the law, had run into problems before Tuesday’s ruling.

In March, in response to complaints that seven-round magazines were not available for sale, Mr. Cuomo and leaders of the State Legislature reached an agreement to modify that portion of the law so that 10-round magazines could still be bought.

But they kept the seven-round limit in effect, meaning that gun owners would still be forbidden to load more than seven rounds into a 10-round magazine, except at gun ranges, where they could load the full magazine.

In court papers, the plaintiffs argued that the seven-round limit threatened the ability of New Yorkers to defend themselves, while the state attorney general’s office said there was no evidence to support “fantastical scenarios involving multiple home invaders” that would necessitate a firearm loaded with more than seven rounds.

Judge Skretny sided with the gun owners, writing that the restriction could wind up “pitting the criminal with a fully-loaded magazine against the law-abiding citizen limited to seven rounds.”

    U.S. Judge Upholds Most New York Gun Limits, NYT, 31.12.2013,






This Week, Mass Surveillance Wins


December 27, 2013
The New York Times


Has the National Security Agency’s mass collection of Americans’ phone records actually helped to prevent terrorist attacks?

No, according to the 300-page report issued this month by a panel of legal and intelligence experts appointed by President Obama.

Yet in a ruling issued on Friday, Judge William Pauley III of the Federal District Court in Manhattan came to the opposite conclusion. “The effectiveness of bulk telephony metadata collection cannot be seriously disputed,” Judge Pauley wrote in a deeply troubling decision dismissing a lawsuit by the American Civil Liberties Union that challenged the constitutionality of the N.S.A.’s bulk data collection program.

The ruling, which repeatedly defers to the government’s benign characterization of its own surveillance programs, demonstrates once more the importance of fixing the law at its source, rather than waiting for further interpretations by higher courts.

Judge Pauley’s opinion largely disregards the concerns central to the presidential panel’s report and the ruling on Dec. 16 by a federal district judge in Washington, Richard Leon, who found that the agency’s program was “significantly likely” to be unconstitutional.

The government’s claim that the program is constitutional rests on a 1979 Supreme Court case, Smith v. Maryland, which held that a robbery suspect had no expectation of privacy — and no Fourth Amendment protection — in the telephone numbers he dialed. Judge Leon found the Smith decision to be inapplicable to a daily, indiscriminate sweep of hundreds of millions of phone records. Judge Pauley, however, said its logic still applied.

Judge Pauley’s opinion is perplexing in its near-total acceptance of the claim by the government that it almost always acts in accordance with the law and quickly self-corrects when it does not. For example, Judge Pauley said the N.S.A.’s director, Gen. Keith Alexander, was being “crystal clear” when he responded to charges that the agency was mining data from phone calls by saying: “We’re not authorized to do it. We aren’t doing it.”

That shows an alarming lack of skepticism, particularly in light of the testimony of James Clapper Jr., the director of national intelligence, who falsely told the Senate Intelligence Committee in March that the N.S.A. was not collecting any type of data at all on hundreds of millions of Americans.

It is also incorrect to say, as Judge Pauley does, that there is “no evidence” that the government has used the phone data for anything other than terrorism investigations. An inspector general’s report in September revealed at least a dozen instances in which government employees used the databases for personal purposes.

The presidential panel made many good recommendations to reform both the surveillance law and the intelligence court that rules on government surveillance requests. Congress and Mr. Obama should adopt as many of these as possible. Court rulings will not suffice to rein in an agency that continues to take advantage of the law’s vague and malleable standards.

    This Week, Mass Surveillance Wins, NYT, 27.12.2013,






Judge Upholds N.S.A.’s

Bulk Collection of Data on Calls


December 27, 2013
The New York Times


WASHINGTON — A federal judge on Friday ruled that a National Security Agency program that collects enormous troves of phone records is legal, making the latest contribution to an extraordinary debate among courts and a presidential review group about how to balance security and privacy in the era of big data.

In just 11 days, the two judges and the presidential panel reached the opposite of consensus on every significant question before them, including the intelligence value of the program, the privacy interests at stake and how the Constitution figures in the analysis.

The latest decision, from Judge William H. Pauley III in New York, could not have been more different from one issued on Dec. 16 by Judge Richard J. Leon in Washington, who ruled that the program was “almost Orwellian” and probably unconstitutional.

The decision on Friday “is the exact opposite of Judge Leon’s in every way, substantively and rhetorically,” said Orin S. Kerr, a law professor at George Washington University. “It’s matter and antimatter.”

The case in New York was brought by the American Civil Liberties Union, which said it would appeal.

“We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections,” said Jameel Jaffer, a lawyer with the group.

A spokesman for the Justice Department said, “We are pleased the court found the N.S.A.’s bulk telephony metadata collection program to be lawful.”

The next stops for the parallel cases are the appeals courts in New York and Washington. Should the split endure, the Supreme Court is likely to step in.

In the meantime, the decisions, along with recommendations issued on Dec. 18 by the presidential review group, illustrate the absence of agreement about the effectiveness and legality of the program, which, Judge Pauley said, “vacuums up information about virtually every telephone call to, from or within the United States.” That information is “metadata” — the phone numbers involved, when calls were made and how long they lasted.

The two judges had starkly differing understandings on how valuable that program is.

Judge Pauley, whose courtroom is just blocks from where the World Trade Center towers stood, endorsed arguments made in recent months by senior government officials — including the former F.B.I. director Robert S. Mueller III — that the program might have caught the Sept. 11, 2001, hijackers had it been in place before the attacks.

Judge Pauley began his opinion with an anecdote. In the months before Sept. 11, he said, the N.S.A. intercepted seven calls made to a Qaeda safe house in Yemen from the United States. They were from Khalid al-Mihdhar, who was living in San Diego and would become one of the hijackers.

But the security agency “could not capture al-Mihdhar’s telephone number,” the judge wrote, and “N.S.A. analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States.”

“Telephony metadata would have furnished the missing information and might have permitted the N.S.A. to notify the Federal Bureau of Investigation of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States,” Judge Pauley wrote.

Judge Leon, in Washington, took the opposite view, saying the government had failed to make the case that the program is needed to protect the nation. “The government does not cite a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature,” he wrote.

The presidential review group took a middle ground, though it seemed to lean toward Judge Leon’s position. It said the security agency “believes that on at least a few occasions” the program “has contributed to its efforts to prevent possible terrorist attacks, either in the United States or somewhere else in the world.” But it added that its own review suggested that the program “was not essential to preventing attacks,” and that less intrusive measures would work.

The group recommended that bulk storage of telephone records by the government be halted in favor of “a system in which such metadata is held instead either by private providers or by a private third party.” Access to the data, it said, should require a court order.

The two judges did not limit their disagreements to how well the program worked. They also drew different conclusions about its constitutionality.

“While robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the government’s bulk telephony metadata program is lawful,” Judge Pauley wrote on Friday. “This court finds it is.”

The main dispute between the judges was over how to interpret a 1979 Supreme Court decision, Smith v. Maryland, in which the court said a robbery suspect had no reasonable expectation that his right to privacy extended to the numbers dialed from his phone. “Smith’s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties,” Judge Pauley wrote.

But Judge Leon said that advances in technology and suggestions in concurring opinions in later Supreme Court decisions had undermined the Smith ruling. The government’s ability to construct a mosaic of information from countless records, he said, called for a new analysis of how to apply the Fourth Amendment’s prohibition of unreasonable government searches.

Judge Pauley disagreed. “The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search,” he wrote.

He acknowledged that “five justices appeared to be grappling with how the Fourth Amendment applies to technological advances” in a pair of 2012 concurrences in United States v. Jones. In that decision, the court unanimously rejected the use of a GPS device to track the movements of a drug suspect over a month. The majority said that attaching the device violated the defendant’s property rights.

In one of the concurrences, Justice Sonia Sotomayor wrote that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

The presidential review group said statements like that raised questions about whether the 1979 decision was “still good law.” But it said its job was “not to interpret the Fourth Amendment, but to make recommendations about sound public policy.”

Judge Pauley also said it was not for him to say where the law was heading, but for a different reason. “The Supreme Court,” he said, “has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases.”

As for changes in technology, he wrote, customers’ “relationship with their telecommunications providers has not changed” since 1979 “and is just as frustrating.”

    Judge Upholds N.S.A.’s Bulk Collection of Data on Calls, NYT, 27.12.2013,






Judge Questions Legality

of N.S.A. Phone Records


December 16, 2013
The New York Times


WASHINGTON — A federal district judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, describing its technology as “almost Orwellian” and suggesting that James Madison would be “aghast” to learn that the government was encroaching on liberty in such a way.

The judge, Richard J. Leon of Federal District Court for the District of Columbia, ordered the government to stop collecting data on the personal calls of the two plaintiffs in the case and to destroy the records of their calling history. But Judge Leon, appointed to the bench in 2002 by President George W. Bush, stayed his injunction “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” allowing the government time to appeal it, which he said could take at least six months.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote in a 68-page ruling. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures.

Andrew Ames, a Justice Department spokesman, said government lawyers were studying the decision, but he added: “We believe the program is constitutional as previous judges have found.”

The case is the first in which a federal judge who is not on the Foreign Intelligence Surveillance Court, which authorized the once-secret program, has examined the bulk data collection on behalf of someone who is not a criminal defendant. The Justice Department has said that 15 separate judges on the surveillance court have held on 35 occasions that the calling data program is legal.

It also marks the first successful legal challenge brought against the program since it was revealed in June after leaks by the former N.S.A. contractor Edward J. Snowden.

In a statement from Moscow, where he has obtained temporary asylum, Mr. Snowden praised the ruling.

“I acted on my belief that the N.S.A.’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” Mr. Snowden said in his statement. It was distributed by Glenn Greenwald, a journalist who received leaked documents from Mr. Snowden and wrote the first article about the bulk data collection. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights,” the statement said. “It is the first of many.”

The case was brought by several plaintiffs led by Larry Klayman, a conservative legal activist. Mr. Klayman, who represented himself and the other plaintiffs, said in an interview on Monday that he was seeking to turn the case into a class action on behalf of all Americans. “I’m extremely gratified that Judge Leon had the courage to make this ruling,” he said. “He is an American hero.”

Mr. Klayman argued that he had legal standing to challenge the program in part because, he contended, the government had sent inexplicable text messages to his clients on his behalf; at a hearing, he told the judge, “I think they are messing with me.”

The judge portrayed that claim as “unusual” but looked past it, saying Mr. Klayman and his co-plaintiff instead had standing because it was highly likely, based on the government’s own description of the program as a “comprehensive metadata database,” that the N.S.A. collected data about their phone calls along with everyone else’s.

Similar legal challenges to the N.S.A. program, including by the American Civil Liberties Union and the advocacy group Electronic Frontier Foundation, are at earlier stages in the courts. Last month, the Supreme Court declined to hear an unusual challenge to the program by the Electronic Privacy Information Center, which had sought to bypass lower courts.

The ruling on Monday comes as several government panels are developing recommendations on whether to keep, restructure or scrap the bulk data collection program, and as Congress debates competing bills over the program’s future.

Though long and detailed, Judge Leon’s ruling is not a final judgment on the program, but rather a preliminary injunction to stop the collection of data about the plaintiffs while they pursued their case.

He also wrote that he had “serious doubts about the efficacy” of the program, saying that the government had failed to cite “a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive.”

Judge Leon rejected the Obama administration’s argument that a 1979 case, Smith v. Maryland, had established there are no Fourth Amendment protections for call metadata — information like the numbers dialed and the date, time and duration of calls, but not their content. The 1979 case, which involved collecting information about a criminal defendant’s calls, helped establish the principle that people do not have a reasonable expectation of privacy for information they have exposed to a third party, like the phone company, which knows about their calls.

The surveillance court, which issues secret rulings after hearing arguments from only the Justice Department and without opposing lawyers, has maintained that the 1979 decision is a controlling precedent that shields the N.S.A. call data program from Fourth Amendment review. But Judge Leon, citing the scope of the program and the evolving role of phones and technology, distinguished the bulk collection from the 34-year-old case.

Last month, a federal judge declined to grant a new trial to several San Diego men convicted of sending money to a terrorist group in Somalia. Government officials have since acknowledged that investigators became interested in them because of the call records program. Citing Smith v. Maryland, the judge said the defendants had “no legitimate expectation of privacy” over their call data.

David Rivkin, a White House lawyer in the administration of the elder President George Bush, criticized Judge Leon’s reasoning.

“Smith v. Maryland is the law of the land,” Mr. Rivkin said. “It is not for a District Court judge to question the continuing validity of a Supreme Court precedent that is exactly on point.”

Judge Leon also pointed to a landmark privacy case decided by the Supreme Court in 2012 that held it was unconstitutional for the police to use a GPS tracking device to monitor a suspect’s public movements without a warrant.

Although the court decided the case on narrow grounds, five of the nine justices separately questioned whether the 1979 precedent was still valid in an era of modern technology, which enables long-term, automated collection of information.

    Judge Questions Legality of N.S.A. Phone Records, NYT, 16.12.2013,






3 Found Guilty in CityTime Corruption Trial


November 22, 2013
The New York Times


Three men who a prosecutor said had gotten “unbelievably rich” at the expense of New York City through a scandal-marred payroll modernization project were convicted on Friday in a federal corruption trial in Manhattan.

The lead defendant, Mark Mazer, a former consultant to the city’s Office of Payroll Administration, had been accused of taking about $30 million in kickbacks for steering work to favored contractors on the project, called CityTime.

Originally budgeted at $63 million, the cost of the project exploded to about $700 million by 2011, with almost all of the more than $600 million that the city paid to the prime contractor, Science Applications International Corporation, or S.A.I.C., “tainted, directly or indirectly, by fraud,” an indictment charged.

“Each one of these three men made a fortune from their crimes,” Andrew D. Goldstein, a federal prosecutor, told the jury in his closing argument this week. “They treated the city like it was their own giant A.T.M. machine.”

“We’ve had zero tolerance for corruption,” Mayor Michael R. Bloomberg said after the verdicts were announced, “and it’s why we have run the cleanest administration in New York City’s history.”

Mr. Bloomberg praised the city’s commissioner of investigation, Rose Gill Hearn, whose office uncovered the fraud and investigated the case with the office of Preet Bharara, the United States attorney in Manhattan.

Lawyers for each of the three defendants had argued during the trial, which lasted just over a month, that their clients had not committed crimes and that the city had approved the project and its increasing costs over the years. They said they would appeal the convictions.

Mr. Bharara said late Friday: “These three defendants and their partners in crime thought they had made off with nearly $100 million in taxpayer money, far more than they could have made by burglarizing banks, with a fraction of the effort. What they now stand to reap is lengthy prison terms.”

Mr. Mazer, 50, was convicted of bribery and conspiracies to commit wire fraud, bribery and money laundering.

A second defendant, Gerard Denault, 52, S.A.I.C.’s project manager for CityTime, had been accused of taking $9 million in kickbacks; he was convicted of conspiracies to commit wire fraud, honest services fraud and money laundering and was acquitted of one count of bribery conspiracy.

A third man, Dmitry Aronshtein, 53, whose name has also been spelled Dimitry, was convicted of conspiracies to commit bribery and money laundering. Despite their close age, he is an uncle of Mr. Mazer.

Judge George B. Daniels of Federal District Court ordered the three men, who had been free on bond, held in home detention with electronic monitoring pending sentencing on March 12. Each man faces a prison sentence of up to 20 years on at least one of the counts for which he was convicted, prosecutors said.

Prosecutors asked that they be jailed immediately after the verdict, which was announced by the jury at the end of the first full day of deliberations.

The fraud scheme, prosecutors contended, relied on an elaborate web of sham companies and shell bank accounts, the wiring of money overseas and the storing of more than a million dollars in cash in safe deposit boxes on Long Island.

It also involved bribery “the old-fashioned way,” Mr. Goldstein, the prosecutor, told the jury, in envelopes containing thousands of dollars in cash “handed off in quiet street corners, in massage parlor stairwells and in parked cars just outside New York City official offices.”

In 2012, the contractor, S.A.I.C., agreed to forfeit over $500 million as part of a settlement with the government. Mr. Bloomberg acknowledged at the time that “there will always be one or two bad apples.”

“Should we have known? Could we have known?” he asked. “We keep strengthening all our surveillance, and, hopefully, we’ll catch anything that happens again.”

In arguing that there had been no fraud, Mr. Mazer’s lawyer, Gerald L. Shargel, said: “There was an incredible amount of checks and balances. There was an incredible amount of supervision and independent examination.”

Mr. Denault’s lawyer, Barry A. Bohrer, said, “The City of New York had its eyes wide open.” The city, he added, “signed off on this because it was what it wanted and it was what it needed.”

Jeffrey C. Hoffman, who represented Mr. Aronshtein, accused prosecutors of “a constant, unfair, untruthful manipulation of facts.” His client, the only defendant to testify at the trial, denied that Mr. Mazer had ever asked him for money in return for work on the CityTime project.

In all, eight people have been convicted in the CityTime investigation, which Mr. Bharara has called “one of the largest and most brazen frauds ever committed” against the city.

Two defendants, including Carl Bell, who worked for S.A.I.C., pleaded guilty in 2011 and testified under cooperation agreements with the government. Three other defendants, who had been accused of working with Mr. Mazer to conceal kickbacks, entered guilty pleas in June.

One of those defendants, Mr. Mazer’s mother, Larisa Medzon, pleaded guilty to one count of structuring transactions to evade currency reporting requirements. A second, Mr. Mazer’s wife, Svetlana Mazer, pleaded guilty to one count of obstruction of justice. The third, Anna Makovetskaya, a cousin of Mr. Mazer’s wife, pleaded guilty to a charge of conspiracy to make false statements.

    3 Found Guilty in CityTime Corruption Trial, NYT, 22.11.2013,






Tables Turned,

Victims’ Relatives

Get Their Chance at Bulger


November 13, 2013
The New York Times


BOSTON — David Wheeler stood in the well of a federal courtroom here Wednesday, gesturing toward James (Whitey) Bulger, the elderly man who was once the overlord of the Boston underworld and who had ordered his father’s murder.

“Shame on you, Mr. Bulger,” Mr. Wheeler declared. “For all your notoriety, you are a punk and you don’t even matter anymore. You’ve turned from a government-sponsored assassin to a pile of jailhouse rags.”

And so it went, for 90 minutes at Mr. Bulger’s sentencing hearing, which followed his conviction in August for 11 murders and multiple racketeering charges. One after the other, grieving widows and fatherless children, now in middle age, stepped forward, many to curse the man who had robbed them of their loved ones, others to describe the holes that were suddenly left in their lives.

“We were a happy, loving young family with hopes and dreams, and he was the soul of our family,” said Patricia Donahue, whose husband, Michael, was an innocent bystander when he was gunned down. “Then on May 11, 1982, a complete stranger named Whitey Bulger crossed our paths, and everything we knew was gone in the blink of an eye.”

Others poured out the venom that had been eating at them for decades.

“You thought you were an Irish icon, but you are a domestic terrorist fueled by greed,” said Sean McGonagle, whose father, Paul, was another Bulger victim. “No one cares what legacy you leave or what code you live by,” he said as he called the gangster a mentally deficient, sad, lonely old man. Some called him a coward; others, a rat.

Mr. Bulger, 84, wearing an orange jumpsuit, rarely looked up as he scribbled on a yellow pad. The only word he uttered was “no” after Judge Denise Casper of Federal District Court asked him if he wanted to say anything before his sentencing on Thursday.

It was a striking scene, not only for the range of emotion on display but also for the sharp reversal of Mr. Bulger’s fortunes.

He once held this city captive in what prosecutors have described as a murderous reign of terror from the 1960s into the 1990s. Now, with the tables turned, many who had lived in fear of Mr. Bulger were condemning him.

But while they were no longer afraid, they were hardly triumphant. Their lives had been irrevocably altered, their murdered loved ones had missed important milestones in their lives, and they bared their anger and sorrow.

“I think of the things he missed out on in my life,” said Bill O’Brien Jr., whose father was killed four days before Mr. O’Brien was born. At baseball games, he said, “I saw all those other fathers with their sons, and me just standing there, wishing I had someone cheering me on, wishing I had someone adjusting my baseball cap.”

Many acknowledged that the absent loved ones were not perfect. But, they said, that did not justify their killings. “My father was no Boy Scout,” Mr. McGonagle said, “but he was a better man than you could ever be.”

Mrs. Donahue chose to share cherished memories, like the Christmas Eves her husband spent assembling bicycles for their three boys — only to see in the morning that he had put the wrong handlebars on the wrong bikes. He fancied himself a good cook, she said, but often “you didn’t know what you were eating.”

Theresa Bond, whose father, Arthur Barrett, was shot in the head by Mr. Bulger, was nonetheless charitable toward him.

“Could you please look at me?” she asked quietly as she began. He barely raised his head. “I don’t hate you,” she said. She asked whether he had remorse for taking her father’s life but did not seem to expect an answer, nor did he give one. “I think you do,” she concluded. “I forgive you.”

No one used the word “closure,” but some, like Meredith Rakes, whose father, Stephen, was extorted by Mr. Bulger, thought her years of agony would now cease. “The healing can begin,” she said. “The nightmare is over, the pain stops here.”

Some relatives talked about the stigma of being associated with a gangland slaying and acknowledged depression and suicide attempts in their families. They often had trouble, they said, with simple questions, like when someone would ask how their father had died.

Kathleen Connors Nichols said she struggled with whether to answer that her father had been almost “cut in half” by a hail of bullets, or to tell “the PG version.” She said he had been “flawed,” but that being murdered denied him the chance ever to say he was sorry.

Steve Davis, whose sister Debra was strangled, became overwhelmed with emotion when he spoke.

“This man has built up so much hate in my heart, I’d like to strangle him myself,” he said. He then erupted in fury that Mr. Bulger’s eyes were on his writing pad, calling the gangster a vulgar term and demanding, “Look at me!” Mr. Bulger put on his black-framed glasses and glanced his way.

“She did not deserve to die this way,” Mr. Davis said. “I hope Whitey dies the same way my sister did, gasping for breath as he takes his last breath.”

Mr. Wheeler unleashed a stinging rebuke of the F.B.I. His father had learned that a retired agent who was providing him security was stealing money from him and sending it to the Bulger gang, prompting the gang to send a henchman to kill the father. In court, David Wheeler, saying the “so called” Justice Department covered up the murder, declared the F.B.I. “as responsible as the defendant sitting here” for his father’s death.

There seems little doubt that Mr. Bulger, old and frail, will die in prison. Prosecutors have called for the maximum punishment of two consecutive life sentences, saying he has “no redeeming qualities.”

“The defendant has been getting arrested since the time that Harry Truman was president,” Brian Kelly, a prosecutor, told the court. “The carnage he has caused is grotesque.”

    Tables Turned, Victims’ Relatives Get Their Chance at Bulger, NYT, 13.11.2013,






Partial Victory for BP

in Dispute Over Settlement


October 2, 2013
The New York Times


HOUSTON — A federal appeals court gave BP a partial victory on Wednesday by ordering a lower court judge to reconsider his interpretation of a settlement with claimants who filed billions of dollars of claims against the oil company after the 2010 Deepwater Horizon oil spill disaster.

In a divided opinion, the majority found that the formula that measured a potential loss needed to be clarified. The third judge argued in a dissent that BP was trying to change the rules it had already agreed to.

BP has repeatedly complained about the claims process, arguing that the program’s administrator, Patrick Juneau, was approving fabricated payments for business economic losses based on an unsound interpretation of an agreement the company reached with victims last year.

BP has also repeatedly asked Judge Carl J. Barbier of United States District Court to suspend payments of private claims because of misinterpretations of the agreement and additional accusations of fraud. But Judge Barbier has refused, ruling that Mr. Juneau interpreted the settlement properly.

The United States Court of Appeals in New Orleans, while upholding the lower court’s dismissal of a BP lawsuit against Mr. Juneau, ordered Judge Barbier to give “further consideration” to the complaints.

“The district court had no authority to approve the settlement of a class that included members that had not sustained losses at all, or had sustained losses unrelated to the oil spill as BP alleges,” the court ruled. It concluded that in the event that the administrator was interpreting the settlement to include people who did not suffer spill damages, “the settlement is unlawful.”

The Appeals Court ordered Judge Barbier to develop a “narrowly tailored injunction” that will allow for “deliberate reconsideration of these significant issues.”

BP has also complained that private contractors working for the claims office have been wasting money and that the office has lacked antifraud controls. In a recent court filing, BP requested that payments be suspended until the former F.B.I. director Louis Freeh, who was appointed by Judge Barbier to investigate wrongdoing in the claims process, helps the claims office improve and execute antifraud procedures.

Mr. Juneau did not immediately respond to the decision, which was released late in the day.

“BP is extremely pleased with today’s ruling,” said Geoff Morrell, a BP spokesman. “Today’s ruling affirms what BP has been saying since the beginning: claimants should not be paid for fictitious or wholly nonexistent losses.”

    Partial Victory for BP in Dispute Over Settlement, NYT, 2.10.2013,






Why Judges Are Scowling at Banks


September 28, 2013
The New York Times


LAST week, for the first time since the financial crisis, the government faced off in court against a major bank over lending practices during the mortgage mania. Lawyers for the Justice Department contend that Countrywide Financial, a unit of Bank of America, misrepresented the quality of mortgages it sold to Fannie Mae and Freddie Mac, the taxpayer-owned mortgage finance giants, starting in 2007. Fannie and Freddie incurred gross losses of $850 million on the defective loans and net losses of $131 million, the government said.

Bank of America disagrees. Its lawyers say that Countrywide did not defraud Fannie or Freddie.

This case is undoubtedly big, but it is only one of many mortgage-related matters inching through the judicial system. And what is notable about some of the lower-profile matters is the tone and tack that federal judges are taking in their rulings. District court judges are not generally known as flamethrowers, but some seem to be losing patience with the banks.

For decades leading up to the foreclosure debacle, plaintiffs’ lawyers say, judges generally took the side of lenders when borrowers came to court complaining of problematic lending or predatory loan servicing. Many judges still do. But some are getting tough, perhaps having seen too many examples of dubious bank behavior.

“Maybe the judges are tired of the diet of baloney sandwiches the banks have been feeding them,” said April Charney, a foreclosure defense lawyer who for years represented troubled borrowers at Jacksonville Area Legal Aid in Florida. She is now in private practice.

Two recent rulings — one in New York involving Bank of America and one in Massachusetts involving Wells Fargo — serve as examples. In the Wells Fargo case, a ruling on Sept. 17 by Judge William G. Young of Federal District Court was especially stinging. In it, he required Wells Fargo to provide him with a corporate resolution signed by its president and a majority of its board stating that they stand behind the conduct of the bank’s lawyers in the case.

The case involved a borrower named Joseph Henning who fell behind on his mortgage, which he received from Wachovia, an entity later absorbed by Wells Fargo. In a suit filed against Wells Fargo in May 2009, Mr. Henning contended that the loan was predatory.

Judge Young agreed with the bank’s argument that federal laws pre-empted the state-law remedies Mr. Henning was seeking. But he did so reluctantly, calling it a win based “on a technicality.”

Then he chastised the bank. “The disconnect between Wells Fargo’s publicly advertised face and its actual litigation conduct here could not be more extreme,” the judge wrote. “A quick visit to Wells Fargo’s Web site confirms that it vigorously promotes itself as consumer-friendly,” he continued, “a far cry from the hard-nosed win-at-any-cost stance it has adopted here.”

If Wells Fargo does not supply the corporate resolution within 30 days of the ruling, the case will go to a jury trial, the judge said.

Mary Eshet, a spokeswoman for Wells Fargo, called the judge’s remarks in the ruling “inflammatory and unsubstantiated,” and added: “We believe Judge Young should follow the law which he recognizes and finalize his own judgment in this case.” The bank is asking an appellate court to require the judge to enter his dismissal order without the corporate resolution.

Valeriano Diviacchi, the lawyer for the borrower, said he had never seen a ruling requiring a corporate resolution as Judge Young’s did. Mr. Diviacchi said that he didn’t know why the judge made the ruling but that the judge appeared to want the case to be heard by a jury of Mr. Henning’s peers, people who may have had their own experiences with questionable bank practices.

“Judge Young is one of the few judges who will refer matters to juries — even when a cause of action does not entitle a party to a jury right — because he believes in it as a foundation of the justice system and a democratic society,” Mr. Diviacchi said.

The second case arose after Edwin Ramos and Michelle Ava Stouber-Ramos filed for bankruptcy and had the first and second mortgage on their Tampa, Fla., condominium discharged by the court. That kind of discharge protects a borrower from any attempts to collect the debts as a personal liability.

Bank of America received notice of the discharge in September 2010. But in spring 2012, the bank began sending letters to the Ramoses, saying their $26,991 second mortgage was “seriously delinquent” and demanding that they pay the amount owed immediately. Otherwise, the bank said, it would proceed with “collection action.”

According to Michael H. Schwartz, a lawyer in White Plains who represented the borrowers, Mr. Ramos started getting three phone calls a day from the bank, demanding repayment. When Mr. Ramos advised the bank’s representatives that the debt had been expunged in a bankruptcy proceeding, he was told “too bad,” according to a court filing.

The phone calls and letters continued even after Mr. Schwartz went back to court to ask that Bank of America be sanctioned for illegal attempts to collect the debt. During this time, Bank of America sold the servicing rights on the first mortgage to another company, which soon began sending its own demand letters to the Ramoses.

This month, the matter came before Robert D. Drain, a federal bankruptcy judge in New York. Judge Drain found Bank of America in contempt of the debt discharge order protecting the Ramoses and required the bank to pay Mr. Schwartz’s legal bills in the case. The judge also ordered the bank to pay $10,000 a month in sanctions to the Ramoses until it stopped making the repayment demands.

Judge Drain acknowledged that it wasn’t a lot of money to Bank of America. But, he said, he hoped that its lawyers would get the message. “This is not just a stupid mistake” by the bank, the judge said. “This is a policy.”

A Bank of America spokeswoman said the bank was working to resolve the court’s issues and “researching and investigating what transpired.”

But Mr. Schwartz said the Ramos case was just one of several in which he represented homeowners who were pursued by Bank of America over discharged debts. In another of his cases, court filings show that a homeowner received 105 phone calls and four threatening letters from the bank. “I believe the bank has made a conscious decision that it is less expensive to pay sanctions than to change its internal processes,” he said. “This problem is nationwide.”

Judges who take a more aggressive stance against the banks in such cases are doing what they can to hold these institutions accountable. It may not seem like a lot, but it is progress.

    Why Judges Are Scowling at Banks, NYT, 28.9.2013,






Ex-Soldier Became Contract Killer,

Authorities Say


September 27, 2013
The New York Times


His nickname was Rambo. He was a sergeant in the Army, and he trained soldiers to be snipers. But after leaving the military in 2004, the authorities say, he put his skills to work in a less honorable way: earning a living as a contract killer.

This past spring, the onetime sergeant, Joseph Hunter, 48, and two other former soldiers agreed to murder an agent of the United States Drug Enforcement Administration and one of that agency’s confidential informers, both in Liberia, for a total of $800,000, federal prosecutors said on Friday in Manhattan.

The plot had been proposed by men who held themselves out as Colombian drug traffickers, an indictment says.

“My guys will handle it,” Mr. Hunter wrote in an e-mail on May 30, responding to a question as to whether his team would be willing to carry out the killings, the indictment charges.

In fact, the authorities said, the purported drug traffickers were confidential sources for the D.E.A. and part of an undercover sting operation that ultimately led to the arrests of Mr. Hunter and two others: another former American Army sergeant, Timothy Vamvakias, 42, and a former German corporal, Dennis Gogel, 27. All three were charged with conspiracy to murder the agent and the informer, as well as conspiring to import cocaine into the United States.

Two other men, Michael Filter, 29, and Slawomir Soborski, 40, who served in the German and Polish militaries, respectively, have also been arrested and charged in the drug trafficking conspiracy, prosecutors said. They are awaiting extradition from Estonia, the authorities said.

“The charges tell a tale of an international band of mercenary marksmen who enlisted their elite military training to serve as hired guns for evil ends,” Preet Bharara, the United States attorney for the Southern District of New York, said at a news conference on Friday.

Mr. Bharara described the charges with Derek Maltz, who heads the D.E.A.’s special operations division.

Mr. Hunter referred to contract assassinations euphemistically as “bonus work” or “bonus jobs,” the indictment says, adding that he told the confidential informers that he had done such work before. Mr. Bharara said Mr. Hunter had successfully arranged for the murders “of numerous people,” though he did not name them.

The indictment says that Mr. Hunter began collecting résumés for prospective members of his so-called security team, which had planned to use pistols and submachine guns, with silencers, to carry out the murders. Mr. Gogel told one of the drug agency informers that the murders could be made to resemble an ordinary street crime, “like a bad robbery or anything, you know,” the indictment says.

Mr. Hunter told co-conspirators that they would be working for a Colombian cartel and that they could expect to “see tons of cocaine and millions of dollars,” the indictment says. They would also have the opportunity to participate in assassinations, he told them, according to the indictment. “Most of the bonus work is up close ... because in the cities ... you don’t get long-range shots,” the indictment quotes him as saying.

Part of an escape plan involved the use of sophisticated latex face masks that would make the wearer appear to be of another race, the indictment said.

Mr. Vamvakias, describing the proposed murders of the D.E.A. agent and the informer, was quoted in the indictment as saying, “You know, we gotta do this, hit it hard, hit it fast, make sure it’s done,” and then leave.

“That’s the biggest headache,” he added. “The job’s not the headache; it’s getting in and out.”

Mr. Hunter was taken into custody in Thailand, Mr. Bharara said, and was to be arraigned in Manhattan on Saturday. Mr. Vamvakias and Mr. Gogel were each sent to the United States from Liberia and arraigned on Thursday, when they were ordered detained and entered not guilty pleas, the authorities said.

Mr. Vamvakias’s lawyer, Bobbi C. Sternheim, said, “We are prepared to vigorously defend” against the charges. Mr. Gogel’s lawyer, Edward D. Wilford, declined to comment.

The case, with its use of confidential informers posing as drug traffickers, had echoes of other D.E.A. international sting operations, like the one in 2008 that ensnared the Russian arms trafficker Viktor Bout, who was brought to the United States and tried and convicted in 2011.

Mr. Bharara and Mr. Maltz made it clear that the drug agency had had its eye on Mr. Hunter for some time. After learning about him through a different investigation, Mr. Bharara said, the agency decided “to do something to incapacitate him.”

Mr. Maltz said the operation had lasted close to a year. He said the goal was to “be able to take these threats out before something bad happens.”

    Ex-Soldier Became Contract Killer, Authorities Say, NYT, 27.9.2013,






Smarter Sentencing


August 13, 2013
The New York Times


You know a transformational moment has arrived when the attorney general of the United States makes a highly anticipated speech on a politically combustible topic and there is virtually no opposition to be heard.

That describes the general reaction to Eric Holder Jr.’s announcement on Monday that he was ordering “a fundamentally new approach” in the federal prosecution of many lower-level drug offenders. What once would have elicited cries of “soft on crime” now drew mostly nods of agreement. As Mr. Holder said, it’s “well past time” to take concrete steps to end the nation’s four-decade incarceration binge — the result of harsh sentencing laws enacted in response to increased violent crime in the late 1960s and 1970s.

The statistics have been repeated so often as to be numbing: 1.57 million Americans in state and federal prisons, an increase of more than 500 percent since the late 1970s, at a cost of $80 billion annually. In 2010, more than 7 in 100 black men ages 30 to 34 years old were behind bars. The federal system alone holds 219,000 inmates, 40 percent above its capacity, thanks to strict sentencing guidelines and mandatory minimum sentences. Of these inmates, nearly half are in prison for drug-related crimes.

In Mr. Holder’s words, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Many criminal-justice experts have long felt the same way. What made Mr. Holder’s speech timely and important was that it reflected a fundamental shift in thinking about crime and punishment at the highest levels of government.

The harsher-is-better mind-set is giving way to a recognition that widespread incarceration is, as Mr. Holder put it, “both ineffective and unsustainable.” Even if the historic decrease in violent crime is partly attributable to putting more people in prison, the nation is long past the point of diminishing returns.

As for specific policies, Mr. Holder ordered prosecutors to pull back when pressing charges in low-level, nonviolent drug cases. Where a defendant does not have a significant criminal history or gang ties, he said, prosecutors should avoid triggering mandatory minimum sentences, which are pegged to drug quantities, by leaving those quantities out of the charges.

Mr. Holder also loosened the restrictions on releasing elderly, ill prisoners who pose no safety threat; called for the enhancement of alternatives to prison, such as drug treatment programs; and directed prosecutors to redouble efforts to reduce recidivism, which remains a vexing problem nationwide.

Mr. Holder oversees a Justice Department that is playing catch-up to the states, which house a vast majority of America’s prisoners. Many states have reduced their prison populations and saved money without increasing the risk to public safety. Texas has cut sentences for drug and property offenses, while its prisons have expanded their treatment of drug addiction and mental health. The state’s prison population, which had grown exponentially, has been stable or declining since 2007; and violent crime has decreased at the same time.

It will be years before the full impact of Mr. Holder’s changes becomes clear. Much will depend on details, including how broadly prosecutors define a defendant’s criminal history, and what it means to have “ties” to a gang. In the interest of fairness, Mr. Holder should also apply the policy to the tens of thousands of federal inmates already serving out mandatory minimum sentences for drug-related crimes.

It would help if Congress ratified the new policy. Presidents come and go, and it is entirely possible that without long-term legislative reform some future administration could regress. Thankfully, there’s evidence that Congress, too, is finally getting the message. In 2010, it passed the Fair Sentencing Act, reducing huge and unwarranted disparities in sentencing for cocaine possession, which, in turn, shortened thousands of unjustly long sentences and has already saved about a half-billion dollars.

And two bipartisan bills would reduce mandatory minimums and give judges more discretion in sentencing offenders. Both represent a growing consensus that includes the political right. From the antitax crusader Grover Norquist to the American Legislative Exchange Council, which has previously supported tough sentencing laws, conservatives are among the clearest voices in favor of broad-based prison reform.

Public opinion is also firmly on the side of reform. A 2012 Pew Charitable Trusts poll found that nearly half of voters believed that too many people were in prison, and more than 80 percent supported reducing prison time for low-risk, nonviolent offenders. One of the last missing pieces in the reform effort has been the support of federal law enforcement. In unmistakably strong terms, Mr. Holder has now supplied it.

    Smarter Sentencing, NYT, 13.8.2013,






Judge Rejects New York’s

Stop-and-Frisk Policy


August 12, 2013
The New York Times


A federal judge ruled on Monday that the stop-and-frisk tactics of the New York Police Department violated the constitutional rights of minorities in the city, repudiating a major element in the Bloomberg administration’s crime-fighting legacy.

The use of police stops has been widely cited by city officials as a linchpin of New York’s success story in seeing murders and major crimes fall to historic lows. The police say the practice has saved the lives of thousands of young black and Hispanic men by removing thousands of guns from the streets.

But the judge, Shira A. Scheindlin, found that the Police Department resorted to a “policy of indirect racial profiling” as it increased the number of stops in minority communities. That has led to officers’ routinely stopping “blacks and Hispanics who would not have been stopped if they were white.”

The judge called for a federal monitor to oversee broad reforms, including the use of body-worn cameras for some patrol officers, though she was “not ordering an end to the practice of stop-and-frisk.”

In her 195-page decision, Judge Scheindlin concluded that the stops, which soared in number over the last decade as crime continued to decline, demonstrated a widespread disregard for the Fourth Amendment, which protects against unreasonable searches and seizures by the government, as well as the 14th Amendment’s equal protection clause.

Mayor Michael R. Bloomberg angrily accused the judge of deliberately denying the city “a fair trial” and said the city would file an appeal.

Striking a defiant tone, Mr. Bloomberg said, “You’re not going to see any change in tactics overnight.” He said he hoped the appeal process would allow the current stop-and-frisk practices to continue through the end of his administration because “I wouldn’t want to be responsible for a lot of people dying.”

The judge found that for much of the last decade, patrol officers had stopped innocent people without any objective reason to suspect them of wrongdoing. But her criticism went beyond the conduct of police officers.

“I also conclude that the city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner,” she wrote, citing statements that Mr. Bloomberg and the police commissioner, Raymond W. Kelly, have made in defending the policy.

Judge Scheindlin ordered a number of remedies, including a pilot program in which officers in at least five precincts across the city will wear cameras on their bodies to record street encounters. She also ordered a “joint remedial process” — in essence, a series of community meetings — to solicit public comments on how to reform the department’s tactics.

The judge named Peter L. Zimroth, a partner in Arnold & Porter L.L.P., and a former corporation counsel and prosecutor in the Manhattan district attorney’s office, to monitor the Police Department’s compliance with the United States Constitution. The installation of a monitor will leave the department under a degree of judicial control that is certain to shape the policing strategies under the next mayor.

Judge Scheindlin’s decision grapples with the legacy of Terry v. Ohio, a 1968 ruling by the Supreme Court, which held that stopping and frisking was constitutionally permissible under certain conditions. But she said that changes to the way the New York Police Department employed the practice were needed to ensure that the street stops were carried out in a manner that “protects the rights and liberties of all New Yorkers, while still providing much needed police protection.”

The judge found that the New York police were too quick to deem suspicious behavior that was perfectly innocent, in effect watering down the legal standard required for a stop.

“Blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites,” she wrote.

She noted that officers routinely stopped people partly on the basis of “furtive movements,” a category that officers have testified might encompass any of the following: being fidgety, changing directions, walking in a certain way, grabbing at a pocket or looking over one’s shoulder.

“If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity,” Judge Scheindlin wrote.

She found that in their zeal to identify concealed weapons, officers sometimes stopped people on the grounds that the officer observed a bulge in the person’s pocket; often it turned out that the bulge was caused not by a gun but by a wallet.

“The outline of a commonly carried object such as a wallet or cellphone does not justify a stop or frisk, nor does feeling such an object during a frisk justify a search,” she ruled.

She emphasized what she called the “human toll of unconstitutional stops,” noting that some of the plaintiffs testified that their encounters with the police left them feeling that they did not belong in certain areas of the city. She characterized each stop as “a demeaning and humiliating experience.”

“No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life,” she wrote.

One of the plaintiffs in the case, Lalit Clarkson, 31, a union organizer, said after the ruling that “the stop-and-frisk policy criminalizes a whole race and community of people, just for going to work, going to get some food, going on a train to go downtown.”

The decision, he said, represents the legal system’s validation of what the black community has known for a long time: that the stop-and-frisk tactics rely on racial profiling.

“What we know, in our community, to be the truth, has never before gone through a massive legal process” and been “shown, point by point, step by step” to be true, he said.

The judge’s ruling, in Floyd v. City of New York, a 2008 class-action lawsuit that represents the broadest legal challenge to the department’s practices, follows a two-month nonjury trial in Federal District Court in Manhattan earlier this year. Her decision cites testimony of about a dozen black or biracial men and one woman who described being stopped, as well as the conclusions of statistical experts who studied police paperwork describing some 4.43 million stops between 2004 and the middle of 2012.

But the stops were not the end of the problem, Judge Scheindlin found. After officers stopped people, they often conducted frisks for weapons, or searched the subjects’ pockets for contraband, like drugs, without any legal grounds for doing so. Also, she found that during police stops, blacks and Hispanics “were more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband.”

About 83 percent of the stops between 2004 and 2012 involved blacks and Hispanics, even though those two demographics make up just slightly more than 50 percent of the city’s residents. Mr. Bloomberg and Mr. Kelly have explained that disparity by saying it mirrored the disproportionate percentage of crimes committed by young minority men. But Judge Scheindlin dismissed the Police Department’s rationale.

“This might be a valid comparison if the people stopped were criminals,” she wrote, explaining that there was significant evidence that the people being stopped were not criminals. “To the contrary, nearly 90 percent of the people stopped are released without the officer finding any basis for a summons or arrest.”

Rather, Judge Scheindlin found, the stops overwhelmingly involved minority men because police commanders had come to see them as “the right people” to stop.

“It is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals,” she wrote.

Mr. Bloomberg pledged that lawyers for the city, in appealing to the United States Court of Appeals for the Second Circuit, would argue that the judge was biased against the police. As evidence, he cited the fact that the judge, who has overseen numerous stop-and-frisk cases over the last decade, had encouraged the plaintiffs to steer the Floyd case into her courtroom by marking it as related to an earlier case she had overseen.

The mayor said the judge did “not understand how policing works” and had misinterpreted what the Constitution allowed.

    Judge Rejects New York’s Stop-and-Frisk Policy, NYT, 12.8.2013,






Justice Dept.

Seeks to Curtail Stiff Drug Sentences


August 12, 2013
The New York Times


WASHINGTON — In a major shift in criminal justice policy, the Obama administration will move on Monday to ease overcrowding in federal prisons by ordering prosecutors to omit listing quantities of illegal substances in indictments for low-level drug cases, sidestepping federal laws that impose strict mandatory minimum sentences for drug-related offenses.

Attorney General Eric H. Holder Jr., in a speech at the American Bar Association’s annual meeting in San Francisco on Monday, is expected to announce the new policy as one of several steps intended to curb soaring taxpayer spending on prisons and help correct what he regards as unfairness in the justice system, according to his prepared remarks.

Saying that “too many Americans go to too many prisons for far too long and for no good law enforcement reason,” Mr. Holder is planning to justify his policy push in both moral and economic terms.

“Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable,” Mr. Holder’s speech says. “It imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate.”

Mr. Holder will also introduce a related set of Justice Department policies that would leave more crimes to state courts to handle, increase the use of drug-treatment programs as alternatives to incarceration, and expand a program of “compassionate release” for “elderly inmates who did not commit violent crimes and have served significant portions of their sentences.”

The policy changes appear to be part of Mr. Holder’s effort, before he eventually steps down, to bolster his image and legacy. Turmoil over the Congressional investigation into the botched Operation Fast and Furious gun trafficking case ensnared him in the Obama administration’s first term, and more recently, controversy has flared over the department’s aggressive tactics in leak investigations.

In recent weeks, he has also tightened rules on obtaining reporters’ data in leak cases and started an effort to strengthen protections for minority voters after the Supreme Court struck down part of the Voting Rights Act of 1965. The move continued an assertive approach to voting rights and other civil rights enforcement throughout his tenure.

Mr. Holder’s speech on Monday deplores the moral impact of the United States’ high incarceration rate: although it has only 5 percent of the world’s population, it has 25 percent of its prisoners, he notes. But he also attempts to pre-empt political controversy by painting his effort as following the lead of prison reform efforts in primarily conservative-led Southern states.

Under a policy memorandum being sent to all United States attorney offices on Monday, according to an administration official, prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who meet the following four criteria: their conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.

For example, in the case of a defendant accused of conspiring to sell five kilograms of cocaine — an amount that would set off a 10-year mandatory minimum sentence — the prosecutor would write that “the defendant conspired to distribute cocaine” without saying how much. The quantity would still factor in when prosecutors and judges consult sentencing guidelines, but depending on the circumstances, the result could be a sentence of less than the 10 years called for by the mandatory minimum law, the official said.

It is not clear whether current cases that have not yet been adjudicated would be recharged because of the new policy.

Amid a rise in crime rates a generation ago, state and federal lawmakers began passing a series of “tough on crime” laws, including mandatory minimum sentences for drug possession. But as crime rates have plummeted to 40-year lows and reduced the political potency of the fear of crime, fiscal pressures from the exploding cost of building and maintaining prisons have prompted states to find alternatives to incarceration.

Driven in part by a need to save money, several conservative-leaning states like Texas and Arkansas have experimented with finding ways to incarcerate fewer low-level drug offenders. The answers have included reducing prison terms for them or diverting them into treatment programs, releasing elderly or well-behaved inmates early, and expanding job training and re-entry programs.

The policy is seen as successful across the ideological divide. For example, in Texas, which was an early innovator, taxpayers have saved hundreds of millions of dollars on what had been projected as a need to build prison space. With crime rates remaining at generational lows, the space is no longer necessary.

Several years ago, a group called Right on Crime formed to push what it calls the “conservative case for reform.” Its Republican affiliates include Jeb Bush, a former Florida governor; Edwin R. Meese III, an attorney general during the Reagan administration; and Newt Gingrich, a former House speaker.

“While the federal prison system has continued to slowly expand, significant state-level reductions have led to three consecutive years of decline in America’s overall prison population — including, in 2012, the largest drop ever experienced in a single year,” Mr. Holder’s speech says. “Clearly, these strategies can work. They’ve attracted overwhelming, bipartisan support in ‘red states’ as well as ‘blue states.’ And it’s past time for others to take notice.”

Still, in states that have undertaken prison and parole overhauls, the changes were approved by state lawmakers. Mr. Holder’s reform is different: instead of going through Congress for legislation to modify mandatory minimum sentencing laws, he is invoking his power of prosecutorial discretion to sidestep them.

Earlier in Mr. Obama’s presidency, the administration went through Congress to achieve policy goals like reducing the sentencing disparity between crack and powder forms of cocaine. But it has increasingly pursued a strategy of invoking unilateral executive powers without Congress, which the White House sees as bogged down by Republican obstructionism.

Previous examples, like Mr. Obama’s decision last year to issue an executive order allowing immigrants who came to the United States illegally as children to remain without fear of deportation and to work, have drawn fire from Republicans as “power grabs” that usurp the role of Congress.

Mr. Holder’s speech marches through a litany of statistics about incarceration in the United States. The American population has grown by about a third since 1980, he said, but its prison rate has increased nearly 800 percent. At the federal level, more than 219,000 inmates are currently behind bars — nearly half for drug-related crimes — and the prisons are operating at nearly 40 percent above their official capacity.

    Justice Dept. Seeks to Curtail Stiff Drug Sentences, NYT, 12.8.2013,






Grand Jury Decides Not to Charge

Officer Who Fatally Shot

Unarmed Youth in Bronx


August 8, 2013
The New York Times


Eighteen months after a police officer barged into a private residence and fatally shot an unarmed teenager in the bathroom of the home, the criminal case against the officer has collapsed with a grand jury’s decision to not bring charges in the case.

The decision, which was announced on Thursday morning, was met with shock from the Bronx district attorney, Robert T. Johnson, and it prompted calls for a federal civil rights investigation and an independent prosecutor. By late afternoon, the United States attorney’s office in Manhattan said it would review the evidence to “determine whether there were any violations of the federal criminal civil rights laws.”

Nonetheless, the grand jury decision stirred anger and talk of racism among supporters and relatives of the shooting victim, Ramarley Graham, 18. Mr. Graham was black; the officer, Richard Haste, is white.

Narcotics officers had become suspicious of Mr. Graham as he walked through the Wakefield section of the Bronx with two friends. Officer Haste, 31, pursued the teenager, forcing his way into the apartment where Mr. Graham lived with his grandmother. The officer confronted him in the bathroom and shot him, after he mistakenly interpreted a gesture as Mr. Graham reaching for a gun, according to the officer’s account to the grand jury.

The resulting tensions in the community had been largely calmed after Officer Haste was initially indicted last year on manslaughter charges. But a judge dismissed the indictment in May, saying prosecutors had improperly precluded the grand jury from considering Officer Haste’s claim that he believed that Mr. Graham was armed, based on what he had heard fellow officers say over a police radio.

The judge’s ruling allowed prosecutors to seek a new indictment. On Tuesday, Officer Haste told grand jurors that he had repeatedly directed Mr. Graham to “show me your hands,” according to the officer’s lawyer, Stuart London.

Mr. London acknowledged on Thursday that “it was surprising” for a grand jury in the Bronx to vote against prosecuting an officer after such a shooting. “The grand jury should be commended for the courage they had in the face of such a tragedy to keep an open mind and allow my client to tell his side of the story,” he said.

Although the officer will not face state charges for the shooting, he still faces the federal inquiry and a disciplinary review in the Police Department; Mr. Graham’s family is also suing the police.

At a news conference outside the district attorney’s office on Thursday, Mr. Graham’s father, Frank Graham, said, “Everything just seems dark.”

Speaking before two dozen protesters and several politicians, the father said: “We have to ask ourselves this question: ‘Had Ramarley been white, would this have happened? Would they have run in a white person’s home?’ ”

The turn of events is all the more surprising because Bronx juries tend to be far more skeptical of police actions than juries elsewhere. About 16 officers are currently under indictment there on charges related to a widespread ticket-fixing scandal that has also cast a pall over State Supreme Court in the borough, as defense lawyers cite the scandal to suggest that the police cannot be trusted to testify truthfully.

District Attorney Johnson said in a statement: “We are surprised and shocked by the grand jury’s finding of no criminal liability in the death of Ramarley Graham. We are saddened for the family of the deceased young man and still believe that the court’s dismissal of the original indictment was overly cautious.”

For a time it had appeared that Officer Haste would be the first New York City officer to stand trial in criminal court for a fatal shooting in the line of duty since three officers were tried — and acquitted — in 2008 for the shooting of Sean Bell, who died in a hail of 50 police bullets outside a Queens club.

The shooting of Mr. Graham provoked widespread outrage amid allegations of racial profiling and criticism of the aggressive tactics that led the police to pursue him and force their way into his apartment after finding the door locked. Anger over the shooting is memorialized even in Google’s mapping function: the street view of Mr. Graham’s home on East 229th Street shows a white fence thickly decorated with votive candles and posters criticizing the Police Department (one compares it to the Ku Klux Klan).

Immediately after the shooting, Mayor Michael R. Bloomberg expressed “real concerns.” The police commissioner, Raymond W. Kelly, ordered a review of the street narcotics enforcement units, which are responsible for arresting low-level street dealers and their customers. Untrained in undercover work, they are limited to making arrests after they witness a drug sale, often observed from afar through binoculars. In the wake of Mr. Graham’s death, the focus of the squads shifted from narcotics work to youth gangs.

On Feb. 2, 2012, something about how Mr. Graham moved his hands near his waist, as he walked down the street, led the narcotics officers to suspect he might be armed, and as the surveillance progressed, two officers said over the radio that they had seen the butt of a gun.

Officer Haste said he was relying on what his fellow officers had observed as he rushed to the scene and broke into Mr. Graham’s residence.

He told the grand jury on Tuesday over five hours of testimony, according to his lawyer, how he had confronted Mr. Graham, who had darted into the bathroom. Mr. Graham ignored repeated warnings to show his hands, and Officer Haste came to think the teenager was reaching for a gun, the lawyer said.

“He believed he would be shot and killed,” Mr. London said of his client. It was then that Officer Haste fired a single, fatal shot.

“I think the grand jury found there were many opportunities for Ramarley Graham to end the situation with no violence and no shooting and he did not avail himself of those opportunities,” Mr. London said.

A bag of marijuana was later found in the toilet, and investigators think Mr. Graham’s final act was a bid to flush the drugs away. No gun was found.


Randy Leonard contributed reporting.

    Grand Jury Decides Not to Charge Officer
    Who Fatally Shot Unarmed Youth in Bronx, NYT, 8.8.2013,






Warrantless Cellphone Tracking Is Upheld


July 30, 2013
The New York Times


In a significant victory for law enforcement, a federal appeals court on Tuesday said that government authorities could extract historical location data directly from telecommunications carriers without a search warrant.

The closely watched case, in the United States Court of Appeals for the Fifth Circuit, is the first ruling that squarely addresses the constitutionality of warrantless searches of historical location data stored by cellphone service providers. Ruling 2 to 1, the court said a warrantless search was “not per se unconstitutional” because location data was “clearly a business record” and therefore not protected by the Fourth Amendment.

The ruling is likely to intensify legislative efforts, already bubbling in Congress and in the states, to consider measures to require warrants based on probable cause to obtain cellphone location data.

The appeals court ruling sharply contrasts with a New Jersey State Supreme Court opinion in mid-July that said the police required a warrant to track a suspect’s whereabouts in real time. That decision relied on the New Jersey Constitution, whereas the ruling Tuesday in the Fifth Circuit was made on the basis of the federal Constitution.

The Supreme Court has yet to weigh in on whether cellphone location data is protected by the Constitution. The case, which was initially brought in Texas, is not expected to go to the Supreme Court because it is “ex parte,” or filed by only one party — in this case, the government.

But the case could renew calls for the highest court to look at the issue, if another federal court rules differently on the same question. And two other federal cases involving this issue are pending.

“The opinion is clear that the government can access cell site records without Fourth Amendment oversight,” said Orin Kerr, a constitutional law scholar at George Washington University Law School who filed an amicus brief in the case.

For now, the ruling sets an important precedent: It allows law enforcement officials in the Fifth Circuit to chronicle the whereabouts of an American with a court order that falls short of a search warrant based on probable cause.

“This decision is a big deal,” said Catherine Crump, a lawyer with the American Civil Liberties Union. “It’s a big deal and a big blow to Americans’ privacy rights.”

The group reviewed records from more than 200 local police departments last year, concluding that the demand for cellphone location data had led some cellphone companies to develop “surveillance fees” to enable police to track suspects.

In reaching its decision on Tuesday, the federal appeals court went on to agree with the government’s contention that consumers knowingly give up their location information to the telecommunications carrier every time they make a call or send a text message on their cellphones.

“That means it is not protected by Fourth Amendment when the government goes to a third-party service provider and issues something that is not a warrant to demand production of those records,” said Mark Eckenwiler, a former Justice Department lawyer who worked on the case and is now with the Washington law firm Perkins Coie. “On this kind of historical cell site information, this is the first one to address the core constitutional question.”

Historical location data is crucial to law enforcement officials. Mr. Eckenwiler offered the example of drug investigations: A cellphone carrier can establish where a suspect met his supplier and how often he returned to a particular location. Likewise, location data can be vital in establishing people’s habits and preferences, including whether they worship at a church or mosque or whether they are present at a political protest, which is why, civil liberties advocates say, it should be accorded the highest privileges of privacy protection.

The decision could also bear implications for other government efforts to collect vast amounts of so-called metadata, under the argument that it constitutes “business records,” as in the National Security Agency’s collection of Verizon phone records for millions of Americans.

“It provides support for the government’s view that that procedure is constitutional, obtaining Verizon call records, because it holds that records are business records,” said Mr. Kerr, of George Washington University. “It doesn’t make it a slam dunk but it makes a good case for the government to argue that position.”

An important element in Tuesday’s ruling is the court’s presumption of what consumers should know about the way cellphone technology works. “A cell service subscriber, like a telephone user, understands that his cellphone must send a signal to a nearby cell tower in order to wirelessly connect his call,” the court ruled, going on to note that “contractual terms of service and providers’ privacy policies expressly state that a provider uses a subscriber’s location information to route his cellphone calls.”

In any event, the court added, the use of cellphones “is entirely voluntary.”

The ruling also gave a nod to the way in which fast-moving technological advances have challenged age-old laws on privacy. Consumers today may want privacy over location records, the court acknowledged: “But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections.”

Cellphone privacy measures have been proposed in the Senate and House that would require law enforcement agents to obtain search warrants before prying open location records. Montana recently became the first state to require a warrant for location data. Maine soon followed. California passed a similar measure last year but Gov. Jerry Brown, a Democrat, vetoed it, saying it did not strike what he called the right balance between the demands of civil libertarians and the police.

    Warrantless Cellphone Tracking Is Upheld, NYT, 30.7.2013,






Halliburton Pleads Guilty

to Destroying Evidence After Gulf Spill


July 25, 2013
The New York Times


HOUSTON — Halliburton has agreed to plead guilty to destruction of critical evidence after the Gulf of Mexico oil spill in 2010, the Justice Department announced on Thursday.

The oil services company said it would pay the maximum allowable fine of $200,000 and will be subject to three years of probation. It will also continue its cooperation in the government’s criminal investigation. Separately, Halliburton made a voluntary contribution of $55 million to the National Fish and Wildlife Foundation.

The Justice Department filed one criminal charge against the company. In a statement, Halliburton said that the violation was a misdemeanor associated with the deletion of records created after the accident. Additionally, the company said, “The Department of Justice has agreed that it will not pursue further criminal prosecution of the company.”

Halliburton has suffered enormous damage to its reputation — as have BP and Transocean, the operator of the Deepwater Horizon rig — in the explosion that killed 11 workers and soiled hundreds of miles of beaches. All three companies have pleaded guilty to a criminal charge related to the spill.

The Justice Department said Halliburton had recommended to BP, the British oil company, before the drilling that the well include 21 metal centralizing collars to stabilize the cementing. BP chose to use six instead. During an internal probe after the accident, Halliburton ordered workers to destroy computer simulations that showed little difference between using six and 21 collars, the government said, after which the company continued to say that BP was neglectful to not follow its advice.

The development was not entirely unexpected after the first phase of the civil trial in New Orleans. Lawyers representing businesses and others that suffered from the spill had long accused the company of conducting undocumented cement tests and hiding the results. BP had accused Halliburton of destroying evidence of its cement testing.

But during the trial this year Thomas Roth, a senior company executive who was in charge of cementing operations when the spill occurred, acknowledged that because of the well design and other factors, “the cement placement was going to be a job that would have a low probability of success.”

Timothy Quirk, a Halliburton laboratory manager, testified that he conducted stability tests on cement samples from a similar blend that had been used in the well after the accident. Following instructions from a colleague, he said he did not prepare a laboratory work sheet. “It was unusual,” he said. He also acknowledged that he had thrown out his notes.

Later tests showed that the cement was not stable.

The failure of the cement foam seal set off a complex and ultimately deadly cascade of oil and gas up the well casing that exploded into flames to engulf the Deepwater Horizon rig. The blowout preventer, which is supposed to contain a well bore breach, also failed.

The presidential commission that investigated the accident reported that Halliburton officials knew before the explosion that the cement mixture they planned to use to seal the bottom of the well was unstable but still went ahead with the cementing.

The commission also found that at least one of three laboratory tests was given to BP, the operator of the drilling site, but it neglected to respond.

“There is no indication that Halliburton highlighted to BP the significance of the foam stability data or that BP personnel raised any questions about it,” the report said.

Legal scholars said the guilty plea would probably work against Halliburton in the civil trial in New Orleans to determine the share of damages owed to the Gulf states and businesses affected by the spill.

“This could impact how the civil litigation is resolved, potentially imposing more liability on Halliburton than we originally thought,” said Carl Tobias, a law professor at the University of Richmond.

It may also work in favor of BP, which has argued that while it made serious mistakes it shares responsibility for the accident with Halliburton and Transocean.

Last November, BP agreed to pay $4.5 billion in penalties and pleaded guilty to 14 criminal charges related to the explosion.

The Justice Department also has filed criminal charges against four BP employees in connection with the accident. Transocean agreed to plead guilty this year. The company was sentenced to pay $400 million and other penalties.

In recent years, the giant energy services company has had remarkable success as a leader in the oil and gas shale drilling revolution that is making the United States less dependent on foreign energy supplies.

But in the not-to-distant past, Halliburton found itself under scrutiny over accusations that it performed shoddy, overpriced work for the United States military in Iraq, bribed Nigerian officials to win energy contracts and did business with Iran at time when it faced sanctions.

“It’s another bad day for Halliburton and a very good day for BP,” said Fadel Gheit, a senior oil analyst at Oppenheimer.

    Halliburton Pleads Guilty to Destroying Evidence After Gulf Spill, NYT, 25.7.2013,






Judge Blocks

North Dakota Abortion Restrictions


July 22, 2013
The New York Times


A federal judge on Monday blocked enforcement of North Dakota’s recently enacted ban on most abortions, calling it “invalid and unconstitutional.”

The law under challenge, which was set to take effect Aug. 1, would have imposed by far the country’s most stringent limit on abortions. With few exceptions, it would bar the procedure once a fetal heartbeat is detected, often about six weeks into pregnancy — a point when many women are not aware they are pregnant.

From the moment in March when it was adopted, most legal experts said that the law would not survive because it posed a direct challenge to Supreme Court guidelines, which state that a woman has a right to an abortion until the fetus is viable outside the womb. Viability must be determined by a physician and often occurs around 24 weeks into pregnancy.

Some anti-abortion leaders and politicians argued that the presence of a heartbeat is in itself a form of viability. They expressed hope that the Supreme Court would revisit the issue.

When he signed the bill, Gov. Jack Dalrymple, a Republican, called it “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”

In a withering opinion issued on Monday, Judge Daniel L. Hovland of Federal District Court in North Dakota said he had no choice but to block the law. He described it as “in direct contradiction to a litany of United States Supreme Court cases addressing restraints on abortion.”

“The State has extended an invitation to an expensive court battle over a law restricting abortions that is a blatant violation of the constitutional guarantees afforded to all women,” Judge Hovland wrote. His decision on Monday imposed a temporary injunction, until the issue is decided at a trial.

The Center for Reproductive Rights, a group based in New York, brought the suit to block the law on behalf of the Red River Women’s Clinic in Fargo, the state’s only abortion clinic.

North Dakota’s law is the most far-reaching among scores of restrictive abortion statutes, many of them under court challenge, that have been passed by state governments in recent years.

An Arkansas law to bar abortions at 12 weeks of pregnancy, which, like North Dakota’s, was tied to detection of a fetal heartbeat, was blocked in May by a federal judge in Little Rock.

A dozen states, most recently Texas, have adopted laws barring abortions at 20 weeks after conception on the theory that the fetus can feel pain at that point. This approach, too, is inconsistent with Supreme Court doctrine and in the three states where it has been challenged in court so far — Arizona, Idaho and Georgia — it has been blocked.

In a different line of attack, anti-abortion groups have promoted stricter rules for abortion facilities, requiring clinics in certain states to meet costly building standards and requiring that abortion doctors have admitting privileges at nearby hospitals.

Medical groups call these measures unnecessary for patient safety. The Red River clinic, which relies on a doctor who flies in weekly, says it will be forced to close if the state’s admitting privileges law takes effect. The clinic’s court challenge to the rule is pending.

    Judge Blocks North Dakota Abortion Restrictions, NYT, 22.7.2013,






Guantánamo Rulings Change Little


July 22, 2013
The New York Times


Over the last two weeks, three federal judges have issued rulings on the legitimacy of the recent rough treatment being doled out to the detainees at Guantánamo Bay, Cuba. Under normal circumstances, two of the rulings would add up to a resounding victory for the detainees. But at Guantánamo Bay, where prisoners the government itself acknowledges are not security threats can see no end to their decade-plus imprisonment, nothing is “normal.”

The rulings began on July 8, when Judge Gladys Kessler opined that the force-feeding of detainees who have been on a hunger strike was “painful, humiliating and degrading” — which is to say, precisely, what the detainees and their lawyers have been claiming for months. She scoffed at the government’s contention that the detainees were receiving “timely, compassionate, quality health care.”

Three days later, Royce C. Lamberth, the chief judge for the Federal District Court in the District of Columbia, ruled that prison guards had to stop touching the genitals of the detainees as part of new, tougher search protocols. Since early this year, meetings and even phone calls between detainees and their lawyers have had to take place outside the prisoner’s own “camp.” This meant they had to be searched in this offensive manner both on the trip out to see their lawyers and on the trip back. Because many detainees had religious objections to the genital searches, they were refusing to speak to their lawyers.

(The third ruling, on July 16, by Judge Rosemary Collyer of Federal District Court, disagreed with Kessler. Collyer wrote that force-feeding was humane and that the detainees “had no right to commit suicide.”)

Did anything change as a result of the opinions by Kessler and Lamberth? No. Despite her clear dismay at the treatment of the detainees, Kessler concluded that she lacked the ability to do anything about it because, she said, the judiciary doesn’t have the authority to intervene over the conditions under which the detainees are being jailed.

Lamberth, on the other hand, ruled that he did have the right to intervene. That’s because of a 2008 Supreme Court ruling that detainees have the right to challenge the legality of their detention — for which they obviously need access to lawyers. (Not that it does them much good: the District of Columbia Court of Appeals has made it impossible for a detainee to win a habeas corpus ruling.)

When a lawyer a few days later tried to get the Defense Department to comply with Judge Lamberth’s ruling — he had scheduled a phone call with a client and didn’t want the prisoner’s genitals to be searched — he was told by the government that the Department of Defense would simply not comply with the order. Soon thereafter, the government asked for an “administrative stay” of Lamberth’s order. That meant that it wanted the appeals court to delay the judge’s order until it could get around to asking for an actual stay. As usual, the appeals court did what the government wanted.

And so it goes at Guantánamo Bay. The lawyers representing the detainees make motion after motion, appeal after appeal. It gets them nowhere. With the exception of that one Supreme Court ruling — which had been systematically undercut by the court of appeals — the court system has opted out of dealing with the problem that the Guantánamo prison represents to the country. If the detainees are ever going to get relief, it will have to come from elsewhere.

As I have mentioned previously, some 86 of the 166 detainees at Guantánamo Bay have already been “cleared” by a committee made up of national security officials, meaning they could leave the prison tomorrow without any threat to national security. Recently, the government sent letters to a number of lawyers informing them that their clients would soon be called before a review board that would determine whether they could be added to that list. Although the detainees themselves have largely given up hope of ever getting out — hence the hunger strike — one of their lawyers, David Remes, says, “I keep telling them that it is a lot better to be in Group A than Group B.”

The truth is, there is one person who could get them out tomorrow — if he chose. That same person could stop the military from force-feeding the detainees. I am referring, of course, to President Obama. Yet despite decrying the Guantánamo prison, the president has refused to do anything but stand by and watch the military inflict needless pain and suffering, much of it on men who simply shouldn’t be there. Indeed, in many of the legal briefs filed on behalf of Guantánamo prisoners, the defendant is Barack Obama.

“Article II, Section 2 of the Constitution provides that ‘[t]he President shall be the Commander in Chief of the Army and Navy of the United States,” wrote Judge Kessler in her pained but eloquent opinion. One longs for the day when he finally acts the part.

    Guantánamo Rulings Change Little, NYT, 22.7.2013,






Obama Plans 3 Nominations for Key Court


May 27, 2013
The New York Times


WASHINGTON — President Obama will soon accelerate his efforts to put a lasting imprint on the country’s judiciary by simultaneously nominating three judges to an important federal court, a move that is certain to unleash fierce Republican opposition and could rekindle a broader partisan struggle over Senate rules.

In trying to fill the three vacancies on the 11-member United States Court of Appeals for the District of Columbia Circuit at once, Mr. Obama will be adopting a more aggressive nomination strategy. He will effectively be daring Republicans to find specific ground to filibuster all the nominees.

White House officials declined to say who Mr. Obama’s choices will be ahead of an announcement that could come this week, but leading contenders for the spots appear to include Cornelia T. L. Pillard, a law professor at the Georgetown University Law Center; David C. Frederick, who often represents consumers and investors at the Supreme Court; and Patricia Ann Millett, a veteran appeals lawyer in Washington. All three are experienced lawyers who would be unlikely to generate controversy individually.

Several legal advocates who have been in communication with the West Wing said officials had repeatedly discussed those names in recent months.

Often called the second most important court in the country, the Washington court has overturned major parts of the president’s agenda in the last four years, on regulations covering Wall Street, the environment, tobacco, labor unions and workers’ rights.

With the confirmation last week of Sri Srinivasan, Mr. Obama’s first successful nominee to the court, it now has four Democratic appointees and four Republican appointees. But of the six additional “senior” judges, who previously served full time on the court and still regularly hear cases, five were appointed by a Republican president, giving the court a strongly conservative flavor.

“The court is critically important — the majority has made decisions that have frustrated the president’s agenda,” said Nan Aron, a liberal activist who has called for Mr. Obama to be more aggressive in nominating judges. “Our view is that balance must be restored on that court, and the empty seats must be filled.”

Senator Harry Reid of Nevada, the majority leader, said last week that the court’s rulings were “wreaking havoc” on the country.

Republicans in Congress are already preparing to do battle. Having approved Judge Srinivasan this month, Republican senators are pushing a proposal to eliminate the three empty slots from the court by shifting them to circuits in other parts of the country.

If that strategy, which Democrats have compared to President Franklin D. Roosevelt’s failed attempt to change the size of the Supreme Court, does not work, Republicans could filibuster Mr. Obama’s nominees to prevent them from joining the court. Republicans currently hold 45 of the Senate’s 100 seats, and 41 are needed for a filibuster.

“The whole purpose here is to stack the court,” Senator Mitch McConnell of Kentucky, the Republican leader, said of Democratic efforts to fill the court’s vacancies.

Mr. Obama’s decision to make the nominations all at once is part of a broader strategy by Democrats to shine a spotlight on what they say is Republican obstruction in the Senate.

Democrats cite the case of Caitlin J. Halligan, a former New York State solicitor general, whom Mr. Obama twice nominated to fill one of the vacancies on the Washington circuit court. Republicans filibustered her nomination both times.

Republicans deny that they are obstructing the president’s nominees and say Mr. Obama’s picks are being confirmed more quickly than were President George W. Bush’s nominees when Democrats controlled the Senate. Republicans recall the case of Miguel Estrada, a lawyer nominated to the Washington circuit court in 2001. Democrats blocked his nomination with a filibuster.

Senator Charles E. Grassley, Republican of Iowa, said the Democratic accusations are “nonsense.”

“This is part of the majority’s attempt to create the appearance of obstruction where none exists,” Mr. Grassley said last week in a speech on the floor of the Senate. “It is a transparent attempt to manufacture a crisis.”

Democrats say Republicans in the Senate have violated long-standing traditions by routinely requiring 60 votes to approve even the most uncontroversial legislation or nomination.

Democrats are preparing to escalate the dispute this summer by scheduling numerous confirmation votes in a short period of time. If, as Democrats expect, Republicans block those nominations, Mr. Obama and his allies hope the public will notice.

With enough public pressure, some Democrats hope that they could change the Senate rules to prohibit filibusters on judicial nominations and in some other areas.

“A single blocked nomination may not generate much publicity, but by blocking so many nominees at once, the Republicans are overplaying their hand,” Senator Charles E. Schumer, Democrat of New York, told reporters on Thursday. “The other side must be careful. If they think they can win a debate over whether the Senate should change its rules, they might very well be mistaken.”

In the meantime, the Washington circuit court continues to churn out decisions, some of which are undermining the president’s hard-fought legislative and executive agenda.

In one case in 2011, a three-judge panel of the court — randomly chosen from among the full-time and senior judges, as is typical — struck down an important Wall Street regulation. The regulation, part of the banking legislation that was championed by Mr. Obama after the economic collapse in 2008 and passed by Congress, would have made it easier for shareholders to propose their own nominees to corporate boards of directors.

A similar panel last year struck down efforts by the Environmental Protection Agency to regulate air pollution across state lines. A third panel ruled in January that Mr. Obama could not make recess appointments to the National Labor Relations Board in the face of Republican efforts to block his picks.

Democrats say the confirmation of Mr. Obama’s likely nominees would make it more conceivable that the president’s agenda would get a fair hearing.

Ms. Pillard has worked at the American Civil Liberties Union and the NAACP Legal Defense and Education Fund. She has argued nine cases before the Supreme Court, including Nevada Department of Human Resources v. Hibbs in 2003, in which, to the surprise of many, she persuaded a court that had been protective of states’ rights to allow suits against states under the Family and Medical Leave Act.

Mr. Frederick served as a law clerk to Justice Byron R. White and worked in the Justice Department, spending five years in the solicitor general’s office. He has argued more than 40 cases before the Supreme Court.

Ms. Millett served in the solicitor general’s office for a decade and has argued 32 cases before the Supreme Court on behalf of the federal government. She now leads the appellate practice for one of Washington’s largest law firms.

Lawyers close to the administration said they did not know whether other candidates were also being considered.


Adam Liptak contributed reporting.

    Obama Plans 3 Nominations for Key Court, NYT, 27.5.2013,






Spying on The Associated Press


May 14, 2013
The New York Times


The Obama administration, which has a chilling zeal for investigating leaks and prosecuting leakers, has failed to offer a credible justification for secretly combing through the phone records of reporters and editors at The Associated Press in what looks like a fishing expedition for sources and an effort to frighten off whistle-blowers.

On Friday, Justice Department officials revealed that they had been going through The A.P.’s records for months. The dragnet covered work, home and cellphone records used by almost 100 people at one of the oldest and most reputable news organizations. James Cole, a deputy attorney general, offered no further explanation on Tuesday, saying only that it was part of a “criminal investigation involving highly classified material” from early 2012.

Attorney General Eric Holder Jr. said he could not comment on the details of the phone records seizure, which he said was an open investigation — although he was happy to comment on the open investigation into the tax audits of conservative groups, which he said might have been criminal and were “certainly outrageous and unacceptable.”

Both Mr. Holder and Mr. Cole declared their commitment — and that of President Obama — to press freedoms. Mr. Cole said the administration does not “take lightly” such secretive trolling through media records.

We are not convinced. For more than 30 years, the news media and the government have used a well-honed system to balance the government’s need to pursue criminals or national security breaches with the media’s constitutional right to inform the public. This action against The A.P., as the Reporters Committee for Freedom of the Press outlined in a letter to Mr. Holder, “calls into question the very integrity” of the administration’s policy toward the press.

The records covered 20 phone lines, including main office phones in New York City, Washington, Hartford, and the Congressional press gallery. The guidelines for such subpoenas, first enacted in 1972, require that requests for media information be narrow. The reporters’ committee said this action is so broad that it allowed prosecutors to “plunder two months of news-gathering materials to seek information that might interest them.”

Mr. Holder said the leak under scrutiny, believed to be about the foiling of a terrorist plot in Yemen a year ago, “put the American people at risk,” although he did not say how, and the records sweep went far beyond any one news article. Gary Pruitt, the president of The A.P., said two months’ worth of records could provide a “road map” to its whole news-gathering operation.

Under the guidelines, the administration should have sought information from other sources. Mr. Cole said it did. But the administration made the troubling and discrediting decision not to inform The A.P. in advance. The guidelines require investigators to provide notice unless it would “pose a substantial threat to the integrity of the investigation.” That is intended to prevent destruction of evidence, an impossibility in this case.

The Obama administration has indicted six current and former officials under the Espionage Act, which had previously been used only three times since it was enacted in 1917. One, a former C.I.A. officer, pleaded guilty under another law for revealing the name of an agent who participated in the torture of a terrorist suspect. Meanwhile, President Obama decided not to investigate, much less prosecute, anyone who actually did the torturing.

The Justice Department is pursuing at least two major press investigations, including one believed to be focused on David Sanger’s reporting in a book and in The Times on an American-Israeli effort to sabotage Iranian nuclear works. These tactics will not scare us off, or The A.P., but they could reveal sources on other stories and frighten confidential contacts vital to coverage of government.

    Spying on The Associated Press, NYT, 14.5.2013,






Phone Records of Journalists

Seized by U.S.


May 13, 2013
The New York Times


WASHINGTON — Federal investigators secretly seized two months of phone records for reporters and editors of The Associated Press in what the news organization said Monday was a “serious interference with A.P.’s constitutional rights to gather and report the news.”

The A.P. said that the Justice Department informed it on Friday that law enforcement officials had obtained the records for more than 20 telephone lines of its offices and journalists, including their home phones and cellphones. It said the records were seized without notice sometime this year.

The organization was not told the reason for the seizure. But the timing and the specific journalistic targets strongly suggested they are related to a continuing government investigation into the leaking of information a year ago about the Central Intelligence Agency’s disruption of a Yemen-based terrorist plot to bomb an airliner.

The disclosures began with an Associated Press article on May 7, 2012, breaking the news of the foiled plot; the organization had held off publishing it for several days at the White House’s request because the intelligence operations were still unfolding.

In an angry letter to Attorney General Eric H. Holder Jr. on Monday, Gary Pruitt, the president and chief executive of The A.P., called the seizure, a “massive and unprecedented intrusion” into its news gathering activities.

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” he wrote. “These records potentially reveal communications with confidential sources across all of the news gathering activities undertaken by The A.P. during a two-month period, provide a road map to A.P.’s news gathering operations, and disclose information about A.P.’s activities and operations that the government has no conceivable right to know.”

The development represents the latest collision of news organizations and federal investigators over government efforts to prevent the disclosure of national security information, and it comes against a backdrop of an aggressive policy by the Obama administration to rein in leaks. Under President Obama, six current and former government officials have been indicted in leak-related cases so far, twice the number brought under all previous administrations combined.

Justice Department regulations call for subpoenas for journalists’ phone records to be undertaken as a last resort and narrowly focused, subject to the attorney general’s personal signoff. Under normal circumstances, the regulations call for notice and negotiations, giving the news organization a chance to challenge the subpoena in court.

The Justice Department referred questions about the subpoena to a spokesman for Ronald C. Machen Jr., the United States attorney for the District of Columbia, who was assigned by Mr. Holder last June to lead one of two major leak investigations. Those inquiries came amid a Congressional uproar over several disclosures of national security information in the media.

“We must notify the media organization in advance unless doing so would pose a substantial threat to the integrity of the investigation,” Mr. Machen’s spokesman, William Miller, said.

“Because we value the freedom of the press,” Mr. Miller added, “we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.”

But First Amendment experts and free press advocates portrayed the move as shocking in its breadth.

The Newspaper Association of America issued a statement saying: "Today we learned of the Justice Department’s unprecedented wholesale seizure of confidential telephone records from the Associated Press. These actions shock the American conscience and violate the critical freedom of the press protected by the U.S. Constitution and the Bill of Rights.”

A spokeswoman for Dow Jones, which owns The Wall Street Journal, said the company was concerned about the “broader implications” of the action.

Jay Carney, a White House spokesman, said the White House was not involved in the subpoena. “Other than press reports, we have no knowledge of any attempt by the Justice Department to seek phone records of the A.P.,” he said, adding “we are not involved in decisions made in connection with criminal investigations.”

The Justice Department did not respond to a question about whether a similar step was taken in the other major government leak investigation Mr. Holder announced last June. It is believed to be focused on a New York Times reporter, David E. Sanger, and his disclosures in articles and in a book about a joint American-Israeli effort to sabotage Iranian nuclear centrifuges with the so-called Stuxnet virus.

David McCraw, a lawyer for The New York Times, said, “We’ve had no contact from the government of any sort.”

Mr. Holder announced the two special leak investigations in June amid calls in Congress for a crackdown on leaks after a spate of disclosures about the bomb plot, cyberwarfare against Iran, Mr. Obama’s procedures for putting terrorism suspects on a “kill list,” and the raid that killed Osama bin Laden. The revelations had been published by The New York Times, The A.P. and in several books.

Republicans accused the administration of deliberately leaking classified information, jeopardizing national security in an effort to make Mr. Obama look tough in an election year — a charge the White House rejected. But some Democrats, too, said the leaking of sensitive information had gotten out of control.

Mr. Holder’s move at the time was sharply criticized by Republicans as not going far enough. They wanted him to appoint an outside special counsel, and a Senate resolution calling for a special counsel was co-sponsored by 29 Republican senators.

On Monday, however, after The A.P. disclosed the seizure of the records, some Republican leaders criticized the administration as going too far. Michael Steel, a spokesman for House Speaker John A. Boehner, said: “The First Amendment is first for a reason. If the Obama Administration is going after reporters’ phone records, they better have a damned good explanation.”And Doug Heye, a spokesman for Representative Eric Cantor of Virginia, the majority leader, linked the revelation to a brewing controversy over the targeting of Tea Party groups for greater scrutiny by the Internal Revenue Service, saying “these new revelations suggest a pattern of intimidation by the Obama administration.”

The A.P. said Monday that it first learned of the seizure of the records last Friday afternoon when its general counsel, Laura Malone, received a letter from Mr. Machen, the United States attorney. The letter to Mr. Holder said the seizure included “all such records for, among other phone lines, an A.P. general phone number in New York City as well as A.P. bureaus in New York City, Washington, D.C., Hartford, Connecticut, and at the House of Representatives.”

The Associated Press is a nonprofit global news cooperative owned by its American newspaper and broadcast members.


Charlie Savage reported from Washington,

and Leslie Kaufman from New York.

Christine Haughney contributed reporting from New York.

    Phone Records of Journalists Seized by U.S., NYT, 13.5.2013,






Secrecy of Memo on Drone Killing

Is Upheld


January 2, 2013
The New York Times


WASHINGTON — A federal judge in Manhattan refused on Wednesday to require the Justice Department to disclose a memorandum providing the legal justification for the targeted killing of a United States citizen, Anwar al-Awlaki, who died in a drone strike in Yemen in 2011.

The ruling, by Judge Colleen McMahon, was marked by skepticism about the antiterrorist program that targeted him, and frustration with her own role in keeping the legal rationale for it secret.

“I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret,” she wrote.

“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” Judge McMahon wrote, adding that she was operating in a legal environment that amounted to “a veritable Catch-22.”

A lawsuit for the memorandum and related materials was filed under the Freedom of Information Act by The New York Times and two of its reporters, Charlie Savage and Scott Shane. Wednesday’s decision also rejected a broader request under the act from the American Civil Liberties Union.

David E. McCraw, a lawyer for The Times, said the paper would appeal.

“We began this litigation because we believed our readers deserved to know more about the U.S. government’s legal position on the use of targeted killings against persons having ties to terrorism, including U.S. citizens,” Mr. McCraw said. “Judge McMahon’s decision speaks eloquently and at length to the serious legal questions raised by the targeted-killing program and to why in a democracy the government should be addressing those questions openly and fully.”

Jameel Jaffer, a lawyer with the A.C.L.U., said his group also planned to appeal. “This ruling,” he said, “denies the public access to crucial information about the government’s extrajudicial killing of U.S. citizens and also effectively greenlights its practice of making selective and self-serving disclosures.”

A Justice Department spokesman said only that lawyers there were reviewing the decision.

Judge McMahon’s opinion included an overview of what she called “an extensive public relations campaign” by various government officials about the American role in the killing of Mr. Awlaki and the circumstances under which the government considers targeted killings, including of its citizens, to be lawful. The Times and the A.C.L.U. argued that the government had waived the right to withhold its legal rationale by discussing the program extensively in public.

(Samir Khan, a naturalized American citizen who lived at times on Long Island and in North Carolina, was also killed in the strike, on Sept. 30, 2011. Another strike two weeks later killed a group of people including Mr. Awlaki’s 16-year-old son, Abdulrahman al-Awlaki, who was born in Colorado.)

President Obama and Defense Secretary Leon E. Panetta both acknowledged that the United States played a role in the elder Mr. Awlaki’s death, Judge McMahon wrote. But she focused in particular on a March speech by Attorney General Eric H. Holder Jr. at Northwestern University.

When United States citizens are targeted for killing, Mr. Holder said, the Constitution’s due process protections apply. But due process does not require “judicial process,” he added.

On the one hand, Judge McMahon wrote, “the speech constitutes a sort of road map of the decision-making process that the government goes through before deciding to ‘exterminate’ someone ‘with extreme prejudice.’ ” On the other hand, the speech was “a far cry from a legal research memorandum.”

The government’s public comments were as a whole “cryptic and imprecise,” Judge McMahon said, and were thus insufficient to overcome exemptions in the freedom of information law for classified materials and internal government deliberations.

“It lies beyond the power of this court to conclude that a document has been improperly classified,” she wrote, rejecting the argument that legal analysis may not be classified.

Judge McMahon said she had not reviewed the withheld documents, including the one at the heart of the case, which was prepared by the Justice Department’s Office of Legal Counsel. She said the memorandum must contain more detailed legal analysis than the broad statements in Mr. Holder’s speech “unless standards at O.L.C. have slipped dramatically.”

The Times published an account of the Office of Legal Counsel memorandum in October 2011, citing people who had read it.

Even as she ruled against the plaintiffs, the judge wrote that the public should be allowed to judge whether the administration’s analysis holds water.

“More fulsome disclosure of the legal reasoning on which the administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable ‘hot’ field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated,” she wrote.

    Secrecy of Memo on Drone Killing Is Upheld, NYT, 2.1.2013,




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