History > 2009 > USA > Federal Department / Federal Justice (I)
Puts the C.I.A. and Justice Dept.
August 28, 2009
The New York Times
By PETER BAKER,
DAVID JOHNSTON and MARK MAZZETTI
This article is by Peter Baker, David Johnston and Mark Mazzetti.
WASHINGTON — With the appointment of a prosecutor to investigate detainee
abuses, long-simmering conflicts between the Central Intelligence Agency and the
Justice Department burst into plain view this week, threatening relations
between two critical players on President Obama’s national security team.
The tension between the agencies complicates how the administration handles
delicate national security issues, particularly the tracking and capturing of
suspected terrorists overseas. It also may distract Mr. Obama, who is trying to
move beyond the battles of the Bush years to focus on an ambitious domestic
agenda, most notably health care legislation.
The strains became evident inside the administration in the past several weeks.
In July, Leon E. Panetta, the C.I.A. director, tried to head off the
investigation, administration officials said. He sent the C.I.A.’s top lawyer,
Stephen W. Preston, to Justice to persuade aides to Attorney General Eric H.
Holder Jr. to abandon any plans for an inquiry.
Mr. Preston presented what was, in effect, a closing argument in defense of the
C.I.A., contending that many potential cases against intelligence operatives
were legally flawed and noting that they had already been investigated, some
more than once. In none, he said, had prosecutors found grounds for charges.
But the Justice Department was unmoved, officials said. Despite the C.I.A.
pressure and the stated desire of the White House not to dwell on the past, Mr.
Holder went ahead with an investigation that will determine whether agents broke
the law in their brutal interrogations.
The officials interviewed for this article spoke anonymously so that they could
discuss debates over classified matters.
On the day the decision was announced, Mr. Panetta phoned Mr. Holder, according
to people familiar with the call. In the conversation, which lasted less than a
minute, the C.I.A. director told the attorney general that the agency would
cooperate but expressed his displeasure and swore mildly, if only once.
Mr. Holder and Mr. Panetta are each confronting difficult balancing acts. Mr.
Holder inherited a dispirited department accused of carrying out the political
wishes of the Bush White House, and he now must show independence while
continuing to work with the rest of the administration.
For his part, Mr. Panetta, who is also new to his job and lacks a background in
intelligence, must carry out White House orders to make a clean break with some
of the Bush administration’s intelligence policies, including ending the
C.I.A.’s harsh interrogations. At the same time he must soothe frayed nerves at
Rahm Emanuel, the White House chief of staff, said that reports of shouting
matches were overblown and that the protagonists were simply advocating for
their agencies’ viewpoints in robust discussions, as they should. “Leon’s
representing his institutional building,” Mr. Emanuel said. “Eric’s representing
his institutional responsibilities.”
While top C.I.A. officials are angry at the Justice Department, Mr. Panetta has
also quarreled over turf with Dennis C. Blair, the director of national
intelligence, to whom he reports. The White House has occasionally been
frustrated with both Mr. Panetta and Mr. Holder. And some in the administration
have taken aim at Gregory B. Craig, the White House counsel, blaming him for
some of the troubles in handling the detainee issue.
The behind-the-scenes fighting began in April when, in response to an A.C.L.U.
lawsuit, the Justice Department prepared to release legal opinions written by
its lawyers during the Bush administration authorizing the C.I.A. to use brutal
Mr. Obama disavowed the harsh methods, like waterboarding and wall-slamming, but
the legal opinions were filled with embarrassing details about the C.I.A.’s
aggressive approach. Mr. Panetta sought to heavily edit the memos before
releasing them but was overruled when Mr. Obama sided with Mr. Holder, who
wanted more detailed disclosures, the officials said.
Though he lost on the memos, Mr. Panetta’s camp came away thinking that at least
they had won a tacit understanding, said some administration officials; the
embarrassing details would be aired, but Justice would back off from any new
In April, C.I.A. officers felt reassured by Mr. Emanuel’s comments on ABC News,
in which he said that Mr. Obama “believes that people in good faith were
operating with the guidance they were provided; they shouldn’t be prosecuted.”
But White House and Justice officials said that there was no such bargain and
that all Mr. Emanuel meant was that C.I.A. officers who followed interrogation
guidelines were safe from prosecution.
For his part, Mr. Holder had arrived in office in January thinking he might open
an inquiry, and his resolve hardened after reading graphic classified reports of
detainee abuse, including several deaths of prisoners in C.I.A. custody in Iraq
Still, it came as a shock to the C.I.A. when Newsweek reported in July that Mr.
Holder was leaning toward an investigation. Given that the information was
contained in an exclusive profile of Mr. Holder, the agency took it as a signal
that an inquiry was coming. Mr. Panetta felt blindsided and had several
conversations with White House officials about the long-term damage he believed
such an inquiry could do to the C.I.A. He said the C.I.A. had already taken
disciplinary action against the officers who had committed the most egregious
At the time, Mr. Panetta felt besieged on several fronts. Mr. Blair, the
intelligence director, was pushing to appoint the senior intelligence officials
in each country overseas, a traditional prerogative of the C.I.A.
And other administration officials complained when the C.I.A. sent documents
about the detention program to the Senate Intelligence Committee without giving
the White House time to consider whether there were any executive privilege
The interagency debate grew heated enough that Mr. Emanuel summoned Mr. Panetta,
Mr. Blair and other officials to the White House to set down rules for what
should be provided to Congress. Mr. Panetta complained that he was being
chastised for excessive openness after being criticized for excessive secrecy
when he pushed to withhold details from the interrogation memos.
The various issues raised by the Bush-era interrogation and detention policies
have caused other tensions within the Obama team. Mr. Emanuel and others have
concluded that the White House mishandled the planning for the closing of the
detention center at Guantánamo Bay, Cuba.
Some in the administration blamed Mr. Craig, the White House counsel, for not
anticipating and managing the political reaction to the decisions on Guantánamo
and other issues. After The Wall Street Journal suggested that Mr. Craig was on
the way out, a White House official said Mr. Emanuel reassured Mr. Craig that it
was nonsense, and Mr. Craig’s defenders said he had been handed a thankless
Throughout the summer, Mr. Holder indicated that he was still weighing whether
to appoint a prosecutor. The C.I.A. dismissed that as empty posturing. To the
agency, it was clear that Mr. Holder had already made up his mind and was
planning to announce the investigation, as he did Monday even as the inspector
general report was released.
Few cabinet officers are closer to Mr. Obama than Mr. Holder, and the issue has
been awkward for the two. Aides said that they could not rule out that the two
discussed the matter but said that there was never a formal White House meeting
Sensitive to the problems other administrations have had regarding politicizing
the Justice Department, Mr. Obama left the decision to Mr. Holder, aides said.
Abuse Issue Puts the
C.I.A. and Justice Dept. at Odds, NYT, 28.8.2009,
New York’s Disgrace
August 25, 2009
The New York Times
The Justice Department has sued several state juvenile detention systems for
subjecting children to neglect and abuse. The department is now threatening to
sue New York for the same reasons, and rightly so. A recently completed federal
investigation has documented unsafe and, in some cases, heartbreaking conditions
in several New York state detention facilities.
This problem has been festering for decades. Elected officials who have ignored
it will need to clean house as swiftly as possible, closing down the worst
institutions and ensuring that children in custody are protected from abuse in
compliance with federal law.
In an angry letter to Gov. David Paterson, the department describes a hellish
environment where excessive force is commonplace and children risk serious
injury — concussions, knocked-out teeth and fractured bones — for minor offenses
like laughing too loudly, getting into fistfights or “sneaking an extra cookie”
at snack time.
The investigators focused on four facilities — including the infamous Tryon Boys
Residential Center, in upstate Fulton County, where an emotionally disturbed
15-year-old named Darryl Thompson died in 2006 after being pinned face down on
the floor and held there by two grown men. Three staff members who were trained
in cardiopulmonary resuscitation and required to administer it failed to do so.
The medical examiner labeled the death a homicide, but the grand jury declined
to indict the two men involved.
The report notes that the physical restraints used just before Darryl died have
been banned in many parts of the country. But at the time of the investigation,
it says, staff members in New York facilities were still being trained to use
dangerous restraint techniques and used them, often at the slightest
The report further suggests that acts of violence and abuse against children
have been routinely covered up. Officials fail to act in a timely fashion, or at
all, when cronies are caught violating policy in dangerous ways. A 300-pound
staff member who slammed a young woman to the floor, causing a concussion, is a
The section of the letter on mentally ill children, who make up a significant
part of the incarcerated population, is enough to make the reader weep.
Psychiatric services, such as they are, are shamefully inadequate. Children
often get several different diagnoses within the same institution, which makes
it impossible to treat them effectively. Medications appear to be handed out
almost at random, without proper monitoring or clear therapeutic goals. Although
many detained youths have drug problems, treatment programs are in a shambles.
The Justice Department report fully vindicates Gladys Carrión, the reform-minded
commissioner of New York’s Office of Children and Family Services, who assumed
office in 2007. Ms. Carrión has closed many facilities, downsized others, and is
working to emphasize treatment and rehabilitation instead of force.
She has faced resistance from lawmakers, who want to keep juvenile centers open
in their districts at all costs, and the unions, which are committed to some of
the practices the Justice Department finds unconstitutional. Her opponents must
now contend with the federal government, which was bound to intervene.
The Justice Department lays out a list of steps the state must take to bring its
system into compliance with federal law and basic standards of decency. For
starters, it must protect children from excessive force, and provide mental
health care and rehabilitative treatment. If not, the state will almost surely
New York’s Disgrace,
Justice Dept. Report Advises Pursuing C.I.A. Abuse Cases
August 24, 2009
The New York Times
By DAVID JOHNSTON
WASHINGTON — The Justice Department’s ethics office has recommended reversing
the Bush administration and reopening nearly a dozen prisoner-abuse cases,
potentially exposing Central Intelligence Agency employees and contractors to
prosecution for brutal treatment of terrorism suspects, according to a person
officially briefed on the matter.
The recommendation by the Office of Professional Responsibility, presented to
Attorney General Eric H. Holder Jr. in recent weeks, comes as the Justice
Department is about to disclose on Monday voluminous details on prisoner abuse
that were gathered in 2004 by the C.I.A.’s inspector general but have never been
When the C.I.A. first referred its inspector general’s findings to prosecutors,
they decided that none of the cases merited prosecution. But Mr. Holder’s
associates say that when he took office and saw the allegations, which included
the deaths of people in custody and other cases of physical or mental torment,
he began to reconsider.
With the release of the details on Monday and the formal advice that at least
some cases be reopened, it now seems all but certain that the appointment of a
prosecutor or other concrete steps will follow, posing significant new problems
for the C.I.A. It is politically awkward, too, for Mr. Holder because President
Obama has said that he would rather move forward than get bogged down in the
issue at the expense of his own agenda.
The advice from the Office of Professional Responsibility strengthens Mr.
The recommendation to review the closed cases, in effect renewing the inquiries,
centers mainly on allegations of detainee abuse in Iraq and Afghanistan. The
Justice Department report is to be made public after classified information is
deleted from it.
The cases represent about half of those that were initially investigated and
referred to the Justice Department by the C.I.A.’s inspector general, but were
later closed. It is not known which cases might be reopened.
Mr. Holder was said to have reacted with disgust earlier this year when he first
read accounts of abusive treatment of detainees in a classified version of the
inspector general’s report and other materials.
In examples that have just come to light, the C.I.A. report describes how C.I.A.
officers carried out mock executions and threatened at least one prisoner with a
gun and a power drill. It is a violation of the federal torture statute to
threaten a prisoner with imminent death.
Mr. Holder, who questioned the thoroughness of previous inquiries by the Justice
Department, is expected to announce within days his decision on whether to
appoint a prosecutor to conduct a new investigation; in legal circles, it is
believed to be highly likely that he will go forward with a fresh criminal
Paul Gimigliano, a C.I.A. spokesman, said Sunday that the Justice Department
recommendation to reopen the cases had not been sent to the intelligence agency.
He added: “Decisions on whether or not to pursue action in court were made after
careful consideration by career prosecutors at the Justice Department. The
C.I.A. itself brought these matters — facts and allegations alike — to the
The report by the Justice Department’s ethics office has been under preparation
for more than five years, and its critique of legal work on interrogations
provoked bitter complaints from Attorney General Michael B. Mukasey as he was
leaving office as the Bush administration’s final attorney general.
The Justice Department’s report, the most important since Mr. Holder took
office, was submitted by Mary Patrice Brown, a veteran Washington federal
prosecutor picked by Mr. Holder to lead the Office of Professional
Responsibility earlier this year after its longtime chief, H. Marshall Jarrett,
moved to another job in the Justice Department.
There has never been any public explanation of why the Justice Department
decided not to bring charges in nearly two dozen abuse cases known to be
referred to a team of federal prosecutors in Alexandria, Va., and in some
instances not even the details of the cases have been made public.
Former government lawyers said that while some detainees died and others
suffered serious abuses, prosecutors decided they would be unlikely to prevail
because of problems with mishandled evidence and, in some cases, the inability
to locate witnesses or even those said to be the victims.
A few of the cases are well known, like that of Manadel al-Jamadi, who died in
2003 in C.I.A. custody at Abu Ghraib prison in Iraq after he was first captured
by a team of Navy Seals. Prosecutors said he probably received his fatal
injuries during his capture, but lawyers for the Seals denied it.
Over the years, some Democratic lawmakers sought more details about the cases
and why the Justice Department took no action. They received summaries of the
number of cases under scrutiny but few facts about the episodes or the
department’s decisions not to prosecute.
The cases do not center on allegations of abuse by C.I.A. officers who conducted
the forceful interrogations of high-level Qaeda suspects at secret sites,
although it is not out of the question that a new investigation would also
examine their conduct.
That could mean a look at the case in which C.I.A. officers threatened one
prisoner with a handgun and a power drill if he did not cooperate. The detainee,
Abd al-Rahim al-Nashiri, was suspected as the master plotter behind the 2000
bombing of the Navy destroyer Cole.
All civilian employees of the government, including those at the C.I.A., were
required to comply with guidelines for interrogations detailed in a series of
legal opinions written by the Justice Department. Those opinions, since
abandoned by the Obama administration, were the central focus of the Justice
Department’s internal inquiry.
It has been known that the Justice Department ethics report had criticized the
authors of the legal opinions and, in some cases, would recommend referrals to
local bar associations for discipline.
But the internal inquiry also examined how the opinions were carried out and how
referrals of possible violations were made — a process that led ethics
investigators to find misconduct serious enough to warrant renewed criminal
Justice Dept. Report
Advises Pursuing C.I.A. Abuse Cases, NYT, 24.8.2009,
Judge Orders Guantánamo Detainee to Be Freed
July 31, 2009
The New York Times
By WILLIAM GLABERSON
WASHINGTON — A federal judge on Thursday ordered that one of the youngest
detainees at Guantánamo Bay, Cuba, be released by late August in a case that
drew wide attention because of rulings that he had been tortured by Afghan
officials and abused in American custody.
“Enough has been imposed on this young man to date,” the judge, Ellen Segal
Huvelle, said in a courtroom crowded with people drawn by what had become a
confrontation between the judge and the Obama administration.
But it was not clear Thursday whether Judge Huvelle’s order will mean freedom
for the detainee, Mohammed Jawad, who has long faced American charges that, as a
teenager, he threw a hand grenade in Kabul in 2002 that injured two American
servicemen and their Afghan interpreter.
The ruling on Thursday came after a concession by the government last week that
it could no longer defend Mr. Jawad’s military detention in the habeas corpus
case before Judge Huvelle. She had declared that the administration’s case for
continuing his detention after nearly seven years was “riddled with holes” and
that virtually all of the government’s evidence came from confessions he made
after being threatened with death.
Justice Department officials said they were studying whether to file civilian
criminal charges against Mr. Jawad. If they do, officials say, he could be
transferred to the United States to face charges, instead of being sent to
Afghanistan, where his lawyers say he would be released to his mother.
“It is a very real possibility,” a Justice Department official said in an
interview, “but whether we can compile enough evidence to support a case is a
question we don’t yet know the answer to.” The official spoke on condition of
anonymity because the department does not discuss investigations.
Mr. Jawad’s military lawyer, Maj. David J. R. Frakt, said he would file court
challenges to any effort by the administration to move his client to the United
States to face charges. But Major Frakt conceded that the Aug. 21 deadline Judge
Huvelle gave the government to send Mr. Jawad to Afghanistan also gave
prosecutors time to work on a grand jury investigation.
“We have won the battle,” he said outside the federal courthouse here. “Have we
won the war? Perhaps it remains to be seen.”
The Obama administration had asked for the 22 days to comply with a recently
passed provision requiring that Congress be given 15-days notice of any detainee
transfer. The administration said it needed an additional week to prepare the
Mr. Jawad’s age is unknown, but his lawyers say he was 14 or 15 at the time of
the grenade attack. Military prosecutors have been pursuing war crimes charges
against Mr. Jawad in the military commission system at Guantánamo. But their
case foundered after a military judge ruled last year that it was largely based
on confessions Mr. Jawad gave after being tortured.
Justice Department lawyers told Judge Huvelle they would no longer use those
statements. But they said they had additional evidence, including witnesses to
From the bench on Thursday, Judge Huvelle criticized the government for what she
described as inattention to the case and a “continuing pattern” of delay both by
the Bush and Obama administrations. She said any prosecution would face
difficulties, including what she said was a possible denial of Mr. Jawad’s right
to a speedy trial and evidence that his treatment at Guantánamo was harsher than
any juvenile defendant would face in the United States.
“I hope,” Judge Huvelle said, “the government will succeed in getting him sent
Judge Orders Guantánamo
Detainee to Be Freed, NYT, 31.7.2009,
Madoff Is Sentenced to 150 Years for Ponzi Scheme
June 30, 2009
The New York Times
By DIANA B. HENRIQUES
A criminal saga that began in December with a string of superlatives — the
largest, longest and most widespread Ponzi scheme in history — ended the same
way on Monday as Bernard L. Madoff was sentenced to 150 years in prison, the
maximum for his crimes.
Mr. Madoff, looking thinner and more haggard than when he pleaded guilty in
March, stood impassively as Federal District Judge Denny Chin condemned his
crimes as “extraordinarily evil” and imposed a sentence that was three times as
long as the federal probation office suggested and more than 10 times as long as
defense lawyers had requested.
Though many questions still surround the case, the judge’s pronouncement offered
a brief sense of resolution, followed by a short burst of applause and one
stifled cheer from the victims who filled the soaring Lower Manhattan courtroom.
Only a few moments before, Mr. Madoff had apologized for the harm he inflicted
on the clients who had trusted him, his employees and his family. He blamed his
pride, which would not allow him to admit his failures as a money manager.
“I am responsible for a great deal of suffering and pain. I understand that,” he
said, leaning slightly forward over the polished table, his charcoal suit
sagging on his diminished frame.
“I live in a tormented state now, knowing of all the pain and suffering that I
At the end of his personal statement, Mr. Madoff abruptly turned to face the
courtroom crowd. He was no longer the carefully tailored and coiffed financier.
His hair was ragged. His eyes were sunken into deep gray shadows. His voice was
a little raspy, and he stopped on occasion to sip water.
“I am sorry,” he said, and abruptly added: “I know that doesn’t help you.”
Nine victims, some choked by sobs or swiping at tears, told the court of the
damage he had caused, describing him as a psychopath and a monster who had
destroyed their lives.
“It feels like a nightmare that we can’t awake from,” said Carla Hirschhorn, a
physical therapist who said her daughter was juggling two jobs in her junior
year to help pay for college expenses that their lost savings were supposed to
Michael Schwartz, who said Mr. Madoff had stolen money set aside to sustain his
disabled brother, expressed the hope that “his jail cell will become his
In meting out the maximum sentence, Judge Chin pointed out that no friends,
family or other supporters had submitted any letters on Mr. Madoff’s behalf that
attested to the strength of his character or good deeds he had done.
Mr. Madoff returned to his cell at the Metropolitan Correctional Center in Lower
Manhattan while federal prison officials determine where he will serve his
sentence. The defense has 10 days to decide whether to appeal the sentence.
Although Judge Chin suggested that Mr. Madoff be assigned to a prison in the
Northeast, at the request of the defense, the judge said the Bureau of Prisons
would decide what kind of facility will become his permanent home.
No members of Mr. Madoff’s immediate family were in court.
In his statement, Mr. Madoff acknowledged the “legacy of shame” he has created
for his family.
His wife, Ruth, later released a statement — her first since her husband’s
arrest — expressing her grief for the victims and her sense of shock and
betrayal when she learned of the crime.
Mrs. Madoff has not been charged in the crime and insists that she did not know
of it until her husband told her just before his arrest. But she acknowledged
that her silence, imposed by lawyers protecting her own interests, “has been
interpreted as indifference or lack of sympathy for the victims.” That, she
added, “is exactly the opposite of the truth.”
She said she felt “devastated” by the harm her husband had done. “I am
embarrassed and ashamed. Like everyone else, I feel betrayed and confused,” said
Mrs. Madoff, who has forfeited all but $2.5 million in assets. “The man who
committed this horrible fraud is not the man whom I have known for all these
Many victims also accused regulators and lawmakers of betraying them for decades
by failing to stop Mr. Madoff, and failing them again by not helping them deal
with their financial hardships since they learned their savings had evaporated.
Judge Chin cautioned one speaker that those entities “are not before me,” but,
in a larger sense, the Madoff case seemed to put an entire era on trial — a
heady time of competitive deregulation and globalized finance that climaxed last
fall in a frenzy of fear, panic and loss.
The blame has been spread wide — to arcane credit-default swaps, to lax
enforcement of weak regulations, to poorly understood risks and badly managed
But with his arrest on Dec. 11, Mr. Madoff, a senior statesman in the private
corridors of Wall Street who was respected for his vision and trusted by tens of
thousands of customers, put a human face on those abstractions.
Mr. Madoff’s luxurious lifestyle, including a penthouse, yachts and French
villa, all quickly became fuel for public outrage.
Every move in the case was closely watched, including his confession to his
sons, Andrew and Mark, who were in his business; his guilty plea to 11 counts of
various financial crimes in March; and his wife’s legal efforts to save some
family assets from a sweeping government forfeiture.
The fury increased in January with Congressional testimony from a whistle-blower
who had repeatedly alerted the Securities and Exchange Commission about his
suspicion that Mr. Madoff was operating a gigantic fraud. An internal
investigation is now under way at the S.E.C. to determine why the agency did not
detect Mr. Madoff’s scheme and shut it down years ago.
The S.E.C. and the Securities Investor Protection Corporation, a
government-chartered program to compensate customers of failed brokerage firms,
were criticized repeatedly in the courtroom statements by the victims on Monday,
and at a rally of victims held near the courthouse afterward.
The litigation already filed in and around the Madoff case will help shape how
regulators, the courts and SIPC respond to large-scale Ponzi scheme losses in
the future. How the losses of victims will be addressed is just one of many open
The criminal investigation is continuing, as prosecutors try to determine who
else bears responsibility for the crime. So far, only Mr. Madoff’s accountant
has been arrested on criminal charges, but securities regulators have filed
civil suits against several of his long-term investors, accusing them of
knowingly steering other investors into the fraud scheme for their own gain.
And the bankruptcy trustee has sued more than a half-dozen hedge funds and large
investors, seeking to recover more than $10 billion withdrawn from the fraud in
its final months and years. It is uncertain how much money he will be able to
recover to share among the victims and how long that effort will take.
And the sentence itself is likely to leave a mark as well, according to legal
experts on white-collar crime.
In remarks before announcing his decision, Judge Chin acknowledged that any
sentence beyond a dozen years or so would be largely symbolic for Mr. Madoff,
who is 71 and has a life expectancy of about 13 years.
But “symbolism is important for at least three reasons,” he said, citing the
need for retribution, deterrence and a measure of justice for the victims.
Judge Chin said he did not agree with the suggestion by Ira Lee Sorkin, Mr.
Madoff’s lead lawyer, that victims were seeking “mob vengeance” through a
“They are placing their trust in the system of justice,” he said, adding that he
hoped the sentence he imposed would “in some small way” help the victims to
Several former prosecutors called Judge Chin’s decision somewhat surprising but
“The judge sent a powerful deterrent message and an ominous signal to possible
co-conspirators,” said George Jackson III, a lawyer with Bryan Cave and a former
federal prosecutor in Chicago.
Richard L. Scheff, a lawyer with Montgomery, McCracken, Walker & Rhoads and an
assistant secretary for law enforcement for the Treasury Department, said the
magnitude of the sentence “demonstrates real concern for the harm caused by
Madoff to so many victims.”
He added, “Am I surprised? Yes, to a degree — but I strongly suspected that the
sentence would be tantamount to a life sentence.”
To Robert S. Wolf, with the law firm Gersten Savage, the sentence “sent a clear
and resounding message that Judge Chin felt that Madoff had not come clean and
told all about the enormity of his criminal activity and others who
But James A. Cohen, an associate professor of law at Fordham, said he was
troubled by the sentence. “I don’t think symbolism has a very important part in
sentencing,” he said. “I certainly agree that a life sentence was appropriate,
but this struck me as pandering to the crowd.”
The victims who spoke in the courtroom were unanimous in their demand for a
maximum sentence, saying that Mr. Madoff had forfeited his right to live in
society. They pointed to the extent of the crime: a fraud that ensnared
millionaires, private foundations, a Nobel Prize laureate and hundreds of small
investors who lost their life savings to an investment guru they had trusted
Burt Ross, who lost $5 million in the fraud, cited Dante’s “The Divine Comedy,”
in which the poet defined fraud as “the worst of sin” and expressed the hope
that, when Mr. Madoff dies — “virtually unmourned” — he would find himself in
the lowest circle of hell.
Prosecutors said Mr. Madoff deserved the maximum term for carrying out one of
the biggest investment frauds in Wall Street history. Mr. Madoff’s lawyers said
he should receive only 12 years.
After Mr. Madoff’s victims finished speaking, his lawyer, Mr. Sorkin, said the
government’s request for a 150-year sentence bordered on absurd. He called Mr.
Madoff a “deeply flawed individual,” but a human being nonetheless. “Vengeance
is not the goal of punishment,” Mr. Sorkin said.
Even with a lesser term, Mr. Sorkin added, Mr. Madoff expects to “live out his
years in prison.”
Zachery Kouwe and Jack Healy contributed reporting.
Madoff Is Sentenced to
150 Years for Ponzi Scheme, NYT, 30.6.2009,
Judge Allows Civil Lawsuit Over Claims of Torture
June 14, 2009
The New York Times
By JOHN SCHWARTZ
The decision issued late Friday by a judge in San Francisco allowing a civil
lawsuit to go forward against a former Bush administration official, John C.
Yoo, might seem like little more than the removal of a procedural roadblock.
But lawyers for the man suing Mr. Yoo, Jose Padilla, say it provides substantive
interpretation of constitutional issues for all detainees and could have a broad
Mr. Padilla was held as an “enemy combatant” in solitary confinement for more
than three years in the Navy brig in Charleston, S.C. Mr. Padilla, who was
convicted of supporting terrorism and other crimes, demands that Mr. Yoo be held
accountable for actions that Mr. Padilla claims led to his being tortured.
During the time Mr. Padilla was held in the brig, according to his filings in
the case, he “suffered gross physical and psychological abuse at the hands of
federal officials as part off a systematic program of abusive interrogation
intended to break down Mr. Padilla’s humanity and his will to live.”
In the 42-page ruling, Judge Jeffrey S. White of Federal District Court in San
Francisco characterized the conflict as one that embodies the tension “between
the requirements of war and the defense of the very freedoms that war seeks to
Mr. Yoo, as part of a senior administrative group called the War Council, helped
to shape Bush administration policy in the war on terrorism, and as deputy
attorney general in the Office of Legal Counsel from 2001 to 2003, wrote many
memorandums authorizing harsh treatment. Mr. Yoo had argued that he should be
immune from the suit because it was not clearly established that the treatment
would be unconstitutional.
Judge White, who was appointed by President George W. Bush, rejected all but one
of Mr. Yoo’s immunity claims and found that Mr. Padilla “has alleged sufficient
facts to satisfy the requirement that Yoo set in motion a series of events that
resulted in the deprivation of Padilla’s constitutional rights.”
Tahlia Townsend, one of Mr. Padilla’s lawyers, called it “a significant victory
for American values, government accountability and our system of checks and
balances.” Mr. Padilla’s legal team also included students from Yale Law
School’s international human rights clinic.
Ms. Townsend said the decision “announced that fundamental protections against
abuse apply to all individuals detained by the government” and established what
federal officials should know about the limits of abuse. “That holding goes a
long way to making sure that what happened to Mr. Padilla can never happen
again,” she said.
Mr. Padilla and his mother, Estela Lebron, are seeking $1 in damages along with
a declaration by the court that his treatment was unconstitutional.
As a former government official, Mr. Yoo is being represented by the Justice
Department. Charles S. Miller, a department spokesman, said, “We’re reviewing
Mr. Yoo, now a law professor at the University of California, Berkeley, did not
respond to an e-mail message seeking comment, but in a column he wrote about the
suit last year in The Wall Street Journal, he said, “The legal system should not
be used as a bludgeon against individuals targeted by political activists to
impose policy preferences they have failed to implement via the ballot box.”
Mr. Padilla, a Brooklyn-born convert to Islam, was arrested in June 2002 and
initially charged with taking part in a plot by Al Qaeda to detonate a
radioactive “dirty bomb” in the United States. After his time in the brig, the
government tried him in Miami, and in 2007, he and two co-defendants were found
guilty of conspiracy to murder, kidnap and maim people in a foreign country. Mr.
Padilla was sentenced to more than 17 years in prison.
Judge Allows Civil
Lawsuit Over Claims of Torture, NYT, 13.6.2009,
U.S. Lawyers Agreed on the Legality of Brutal Tactic
June 7, 2009
The new York Times
By SCOTT SHANE and DAVID JOHNSTON
WASHINGTON — When Justice Department lawyers engaged in a sharp internal
debate in 2005 over brutal interrogation techniques, even some who believed that
using tough tactics was a serious mistake agreed on a basic point: the methods
themselves were legal.
Previously undisclosed Justice Department e-mail messages, interviews and newly
declassified documents show that some of the lawyers, including James B. Comey,
the deputy attorney general who argued repeatedly that the United States would
regret using harsh methods, went along with a 2005 legal opinion asserting that
the techniques used by the Central Intelligence Agency were lawful.
That opinion, giving the green light for the C.I.A. to use all 13 methods in
interrogating terrorism suspects, including waterboarding and up to 180 hours of
sleep deprivation, “was ready to go out and I concurred,” Mr. Comey wrote to a
colleague in an April 27, 2005, e-mail message obtained by The New York Times.
While signing off on the techniques, Mr. Comey in his e-mail provided a
firsthand account of how he tried unsuccessfully to discourage use of the
practices. He made a last-ditch effort to derail the interrogation program,
urging Attorney General Alberto R. Gonzales to argue at a White House meeting in
May 2005 that it was “wrong.”
“In stark terms I explained to him what this would look like some day and what
it would mean for the president and the government,” Mr. Comey wrote in a May
31, 2005, e-mail message to his chief of staff, Chuck Rosenberg. He feared that
a case could be made “that some of this stuff was simply awful.”
The e-mail messages are now in the hands of investigators at the department’s
Office of Professional Responsibility, which is preparing a report expected to
be released this summer on the Bush administration lawyers who approved
waterboarding and other harsh methods. The inquiry, under way for nearly five
years, will be the Justice Department’s fullest public account of its role in
the interrogation program, which President Obama has ended.
In years of bitter public debate, the department has sometimes seemed like a
black-and-white moral battleground over torture. The main authors of memorandums
authorizing the methods — John C. Yoo, Jay S. Bybee and Steven G. Bradbury —
have been widely pilloried as facilitators of torture.
Others, including Mr. Comey, Jack Goldsmith and Daniel Levin, have largely
escaped criticism because they raised questions about interrogation and the law.
But a closer examination shows a more subtle picture. None of the Justice
Department lawyers who reviewed the interrogation question argued that the
methods were clearly illegal.
¶Mr. Goldsmith, now a Harvard law professor, unnerved the C.I.A. in June 2004 by
withdrawing a 2002 memorandum written by Mr. Yoo that said only pain equal to
that produced by organ failure or death qualified as torture.
In addition, in a previously undisclosed letter to the agency, Mr. Goldsmith put
a temporary halt to waterboarding. But he left intact a secret companion
memorandum from 2002 that actually authorized the harsh methods, leaving the
C.I.A. free to use all its methods except waterboarding, including
wall-slamming, face-slapping, stress positions and more.
¶Mr. Levin, now in private practice, won public praise with a 2004 memorandum
that opened by declaring “torture is abhorrent.” But he also wrote a letter to
the C.I.A that specifically approved waterboarding in August 2004, and he
drafted much of Mr. Bradbury’s lengthy May 2005 opinion authorizing the 13
¶Mr. Comey, who had forced a 2004 showdown with White House officials over the
National Security Agency’s surveillance program, concurred in that Bradbury
opinion. His objections focused on a second legal opinion that authorized
combinations of the methods. He expressed “grave reservations” and asked for a
week to revise the memorandum, warning Mr. Gonzales that “it would come back to
haunt him and the department,” Mr. Comey said in a 2005 e-mail message to Mr.
Justice Department lawyers involved in the opinions felt torn between what was
legal and what was advisable, Mr. Levin said. “Obviously you can only do that
which is legal,” he said in a recent interview. “But that does not mean you
should automatically do something simply because it is legal.”
The e-mail messages and documents provide new details about a critical year in
the interrogation saga, beginning in mid-2004. The C.I.A. inspector general had
questioned the legality and effectiveness of the harsh methods, prompting a
review of the program. Under intense White House pressure, the Justice
Department lawyers in May 2005 approved a series of opinions that reauthorized
the harshest practices.
The lawyers had to interpret a 1994 antitorture law written largely with
despotic foreign regimes in mind, but used starting in 2002, in effect, as a set
of guidelines for American interrogators. The law defined torture as treatment
“specifically intended to inflict severe physical or mental pain or suffering.”
By that standard, a succession of Justice Department lawyers concluded that the
C.I.A.’s methods did not constitute torture.
The only issues that provoked debate were waterboarding, which Mr. Goldsmith
questioned, and some combinations of multiple techniques, which Mr. Comey
Some outside experts agree that the language of the 1994 law is strikingly
narrow. “There’s no doubt whatsoever that a great deal of coercive treatment
that most people would call torture is not prohibited by the federal antitorture
statute,” said Benjamin Wittes, a Brookings Institution scholar who has studied
But many believe that even under that law, the Justice Department should have
recognized that waterboarding, at least, was torture. To argue otherwise, said
Brian Z. Tamanaha, a St. John’s University law professor who has studied the
interrogation memorandums, required “extraordinary contortions in language and
Waterboarding, the near-drowning method that Mr. Obama has described as torture,
was used on three operatives for Al Qaeda in 2002 and 2003. The C.I.A. never
used the technique after it was reauthorized in 2005.
C.I.A. officials had been nervous about the legality of their proposed methods
from the start in 2002. They had asked Michael Chertoff, then head of the
Justice Department’s criminal division, to grant interrogators immunity in
advance from prosecution for torture. Mr. Chertoff refused, but neither did he
warn the agency against the methods it was proposing.
The agency’s worst fears about the potential liability of its officers returned
with a vengeance in 2004, after the sharp criticism from the agency’s inspector
general and Mr. Goldsmith’s withdrawal of the first torture memorandum. C.I.A.
officials demanded a comprehensive legal review.
But Mr. Goldsmith resigned in July 2004, and his successor as acting head of the
Office of Legal Counsel, Mr. Levin, quickly set to work on the review, assisted
by his top deputy, Mr. Bradbury.
On July 22, 2004, the Justice Department offered the C.I.A. interim assurance
that it could use all methods except waterboarding, which Mr. Goldsmith had
questioned. On Aug. 6, Mr. Levin issued another interim letter reauthorizing
waterboarding, as long as rules were followed.
But in February 2005, when Mr. Levin moved to a job as legal adviser to the
National Security Council, the new interrogation opinions had not been approved
by all necessary officials. The day before his departure, Mr. Levin stopped by
and apologized to Mr. Bradbury for leaving it to him to sign the volatile
By April 2005, the opinions were in final form, and Mr. Comey, who had set his
own resignation for August, concurred in the 46-page opinion affirming the
legality of the 13 techniques. But he told Mr. Gonzales that he strongly
objected to Mr. Bradbury’s second opinion, allowing multiple techniques to be
used in a single interrogation session.
Mr. Gonzales told him that he was “under great pressure” from Vice President
Dick Cheney to complete both memorandums and that President George W. Bush had
asked about them, Mr. Comey recounted in one of the 2005 e-mail messages.
Later, after reading a revised draft of the second opinion, Mr. Comey added that
“my concerns were not allayed, only heightened.” He said he wanted more time to
fix the memorandum, but Mr. Gonzales’s chief of staff, Theodore Ullyot, told him
the White House would not wait.
Mr. Comey wanted an analysis centered on actual interrogations in an effort to
limit the type and combination of techniques that would be permissible,
according to someone familiar with his thinking.
“I told him the people who were applying pressure now would not be there when
the [expletive] hit the fan,” Mr. Comey wrote in another e-mail message. “It
would be Alberto Gonzales in the bull’s-eye. I told him it was my job to protect
the department and the A.G. and that I could not agree to this because it was
wrong. I told him it could be made right in a week, which was a blink of an eye,
and that nobody would understand at a hearing three years from now why we didn’t
take that week.”
U.S. Lawyers Agreed on
the Legality of Brutal Tactic, NYT, 7.6.2009,
President’s Detention Plan Tests American Legal Tradition
May 23, 2009
The New York Times
By WILLIAM GLABERSON
President Obama’s proposal for a new legal system in which terrorism suspects
could be held in “prolonged detention” inside the United States without trial
would be a departure from the way this country sees itself, as a place where
people in the grip of the government either face criminal charges or walk free.
There are, to be sure, already some legal tools that allow for the detention of
those who pose danger: quarantine laws as well as court precedents permitting
the confinement of sexual predators and the dangerous mentally ill. Every day in
America, people are denied bail and locked up because they are found to be a
hazard to their communities, though they have yet to be convicted of anything.
Still, the concept of preventive detention is at the very boundary of American
law, and legal experts say any new plan for the imprisonment of terrorism
suspects without trial would seem inevitably bound for the Supreme Court.
Mr. Obama has so far provided few details of his proposed system beyond saying
it would be subject to oversight by Congress and the courts. Whether it would be
constitutional, several of the legal experts said in interviews, would most
likely depend on the fairness of any such review procedures.
Ultimately, they suggested, the question of constitutionality would involve a
national look in the mirror: Is this what America does?
“We have these limited exceptions to the principle that we only hold people
after conviction,” said Michael C. Dorf, a constitutional law professor at
Cornell. “But they are narrow exceptions, and we don’t want to expand them
because they make us uncomfortable.”
In his speech on antiterrorism policy Thursday, Mr. Obama, emphasizing that he
wanted fair procedures, sought to distance himself from what critics of the Bush
administration saw as its system of arbitrary detention.
“In our constitutional system,” Mr. Obama said, “prolonged detention should not
be the decision of any one man.”
But Mr. Obama’s critics say his proposal is Bush redux. Closing the prison at
Guantánamo Bay, Cuba, and holding detainees domestically under a new system of
preventive detention would simply “move Guantánamo to a new location and give it
a new name,” said Michael Ratner, president of the Center for Constitutional
Rights. Defense Secretary Robert M. Gates suggested this month that as many as
100 detainees might be held in the United States under such a system.
Mr. Obama chose to call his proposal “prolonged detention,” which made it sound
more reassuring than some of its more familiar names. In some countries, it is
called “administrative detention,” a designation with a slightly totalitarian
ring. Some of its proponents call it “indefinite detention,” which evokes the
Bush administration’s position that Guantánamo detainees could be held until the
end of the war on terror — perhaps for the rest of their lives — even if
acquitted in war crimes trials.
Mr. Obama’s proposal was a sign of the sobering difficulties posed by the
president’s plan to close the Guantánamo prison by January. The prolonged
detention option is necessary, he said, because there may be some detainees who
cannot be tried but who pose a security threat.
These, he said, are prisoners who in effect remain at war with the United
States, even after some seven years at Guantánamo. He listed as examples
detainees who received extensive explosives training from Al Qaeda, have sworn
allegiance to Osama bin Laden or have otherwise made it clear that they want to
Other countries, including Israel and India, have had laws allowing indefinite
detention of terrorism suspects, said Monica Hakimi, an assistant professor of
law at the University of Michigan who has written about the subject. But, she
said, few provide for essentially unending detention, and several European
countries have restricted preventive detention to days or weeks.
Mr. Obama’s proposal, Professor Hakimi said, appears to be “an aggressive
approach that is not commonly taken in other Western developed countries.”
In a letter to the president on Friday, Senator Russ Feingold, Democrat of
Wisconsin, said he was not sure Mr. Obama’s idea would prove constitutional, and
added that “such detention is a hallmark of abusive systems that we have
historically criticized around the world.”
Some critics of the Bush administration, who have become critics of Mr. Obama as
well, have long said they are skeptical that there are detainees who are a
demonstrable risk to the country but against whom the government can make no
But some proponents of an indefinite detention system argue that Guantánamo’s
remaining 240 detainees include cold-blooded jihadists and perhaps some so
warped by their experience in custody that no president would be willing to free
them. And among them, the proponents say, are some who cannot be tried, in part
for lack of evidence or because of tainted evidence.
Benjamin Wittes, a senior fellow at the Brookings Institution, said Mr. Obama’s
proposal was contrary to the path his administration apparently hoped to take
when he took office. But that was before he and his advisers had access to
detailed information on the detainees, said Mr. Wittes, who in a book last year
argued for an indefinite detention system.
“This is the guy who has sworn an oath to protect the country,” he said, “and if
you look at the question of how many people can you try and how many people are
you terrified to release, you have to have some kind of detention authority.”
Civil liberties lawyers say American criminal laws are written broadly enough to
make it relatively easy to convict terrorism suspects. They say Mr. Obama has
not made the case persuasively that there is a worrisome category of detainees
who are too dangerous to release but who cannot be convicted. The reason to have
a criminal justice system at all, they say, is to trust it to decide who is
guilty and who is not.
“If they cannot be convicted, then you release them,” said Jameel Jaffer, a
lawyer at the American Civil Liberties Union. “That’s what it means to have a
Plan Tests American Legal Tradition, NYT, 23.5.2009,
Lawyer’s Ways Spelled Murder, U.S. Is Charging
May 21, 2009
The New York Times
By DAVID KOCIENIEWSKI
NEWARK — He spent a decade as a top prosecutor, trying murder cases in New
Jersey, drug cases in federal court and a wide range of offenses in the military
He went on to become one of the state’s most prominent defense lawyers,
representing clients as varied as Abu Ghraib defendants, the rap stars Lil’ Kim
and Queen Latifah and members of Newark’s notorious street gangs.
But federal authorities charged Wednesday that the success their former
colleague, Paul Bergrin, had in defending drug dealers and gang leaders was
based on a brutal calculus that he had boiled down to a phrase he repeated like
a slogan: No witnesses, no case.
In an indictment unsealed on Wednesday in United States District Court in
Newark, prosecutors accused Mr. Bergrin, 53, of orchestrating the murder of a
confidential witness by leaking his name to drug dealers who shot him in broad
daylight on a Newark street corner; of traveling to Chicago to hire a murderer
to kill a witness in another case; of coaching some eyewitnesses to lie; and of
paying others to change their stories or leave town on the day they were to
The charges, which left Mr. Bergrin in federal custody and facing a possible
death penalty, were a stunning development for a flamboyant man who owned a
Mercedes and a Bentley, hobnobbed with movie stars and boasted of beach homes in
New Jersey and the Caribbean.
To prosecutors, the charges are the latest example of the deadly challenge they
face protecting witnesses at a time when the criminal justice system has few
resources to shield them and the prevailing street code in many cities urges
civilians to “stop snitching.”
Ralph Marra, the acting United States attorney for New Jersey, said he and other
law enforcement officials felt a profound sense of betrayal to see Mr. Bergrin —
a lawyer who had once taken an oath to uphold the sanctity of the court system —
act like a “one-man crime spree” by conspiring to kill, encouraging perjury,
arranging drug deals and laundering narcotics money for leaders of street gangs
like the Bloods and the Latin Kings.
“Mr. Bergrin operated as an outlaw, as sort of a mob leader,” Mr. Marra said
during a news conference on Wednesday in Newark.
Mr. Bergrin stood impassively during his appearance at a court hearing later
Wednesday. His lawyer, Gerald L. Shargel, said that Mr. Bergrin would plead not
guilty to all 14 counts in the indictment. Four other people who either worked
for Mr. Bergrin or with him were also indicted.
Mr. Bergrin was raised in Brooklyn, the son of a New York City police officer.
After law school, he served seven years on active duty in the Army — some of
that time in the jungles of Central America, some as a lawyer in the judge
adjutant general’s office.
During his subsequent rise to power and prominence, he liked to remind those
around him that he still considered himself “a street kid,” according to his
statements in news interviews.
As a state prosecutor in Essex County, one of New Jersey’s most crime-ridden, he
never lost any of his nearly two dozen murder cases. He moved on to the United
States attorney’s office, but his service as a federal prosecutor ended in
controversy in 1989, when he appeared as a defense witness for two county
investigators accused of corruption.
His early years as a defense lawyer were rocky: he was accused of witness
tampering by the authorities, but those charges were dropped. With his tireless
work ethic and hard-charging style, Mr. Bergrin gradually built a reputation on
the street as one of New Jersey’s most effective advocates.
In late 2003, however, a wiretapped conversation between Mr. Bergrin and one of
his clients led prosecutors to view him as not just a legal adversary but a
According to court records, the conversation captured him telling his client’s
cousin, one of Newark’s most powerful drug lords, the identity of a confidential
witness: Deshawn McCray, known as Kemo. A few days later, the authorities say,
Mr. Bergrin met with his client’s cousin again and told him “No Kemo, no case.”
Mr. McCray was shot to death three months later in a brutal ambush, forcing
prosecutors to drop the charges against Mr. Bergrin’s client, William
Although the authorities had testimony accusing Mr. Bergrin of providing both
the inducement and identity that led to Mr. McCray’s killing, the case could not
be prosecuted after a judge ruled — and the prosecutors acknowledged — that they
mishandled the wiretap tapes, rendering them inadmissible as evidence.
But as they began examining Mr. Bergrin’s legal work, they now say, they noticed
what appeared to be a pattern; in at least four other cases, his clients had
been cleared after witnesses were either killed or changed their stories.
The indictment that was opened on Wednesday charged that several witnesses told
investigators that during the 1990s, Mr. Bergrin either coached them to lie or
paid them to do so.
One of those cases is that of Norberto Velez, a Newark man accused of murdering
his wife by stabbing her 27 times in front of their 8-year-old daughter. The
child changed her story between the time of her mother’s killing and the day she
testified at her father’s murder trial, and later acknowledged in court that Mr.
Bergrin had coached her to lie on the stand, according to the indictment.
The most substantial portion of the new evidence in the indictment involved the
prosecutor’s contention that Mr. Bergrin hired a hit man in 2008 to murder a
witness against Vincente Esteves, a man charged by Monmouth County officials
with running a narcotics ring.
The indictment says that investigators secretly taped Mr. Bergrin and an
associate during numerous conversations in which they tried to hire a killer to
murder a witness known as Junior the Panamanian before he could testify. In one
of the conversations, investigators say, Mr. Bergrin ordered the gunman to rob
his target’s apartment so that the killing would appear to be part of a
“Make it look like a robbery; this can’t look like a hit,” court papers quote
Mr. Bergrin as saying.
Law enforcement officials said that unlike many of the cases Mr. Bergrin is
accused of trying to tamper with, which hinged on the testimony of a single
witness, the charges against Mr. Bergrin and his four co-defendants were pieced
together using a wide assortment of documents, recorded conversations and
testimony from numerous witnesses.
“He liked to say ‘No witnesses, no case,’ but we have witnesses, we have
evidence and we have a good case,” said Weysan Dun, special agent in charge of
the New Jersey office of the F.B.I.
Lawyer’s Ways Spelled
Murder, U.S. Is Charging, NYT, 21.7.2009,
Judge Issues Split Ruling on Who Can Be Detained
May 21, 2009
The New York Times
By CHARLIE SAVAGE
WASHINGTON — A federal district judge on Tuesday sought to define how much
involvement with Al Qaeda or the Taliban is necessary to make someone subject to
indefinite detention without trial at Guantánamo Bay. The ruling gave neither
the Obama administration nor the attorneys representing the detainees what they
In a 22-page opinion, District Judge John D. Bates said that a detainee must
have been an actual member of Al Qaeda, the Taliban, or associated forces, or
have directly participated in belligerent acts, to be detained indefinitely.
Judge Bates rejected the Obama administration’s contention that it should also
be able to indefinitely detain people who merely “supported” those
But the judge also ruled that anyone who “receives and executives orders or
directions” from those groups may be detained, even if he never directly
participated in hostilities. That part of the ruling rejected the detainee
lawyers’ claim that the laws of war do not allow the president to detain
“civilians” merely for being members of an enemy group.
Judge Bates’s ruling was the latest step in long-running litigation over the
rights of terrorism suspects. The Supreme Court has ruled that the military can
imprison Al Qaeda and Taliban members indefinitely and without trial, but it has
also ruled that detainees have a right to go to court and make the case that
they are not terrorists.
In order to make such a determination, district judges first need a standard for
how much involvement with Al Qaeda or the Taliban is required to make someone
subject to detention. Earlier this year, the Obama administration changed the
standard that the Bush administration had proposed using — for one thing,
dropping the term “enemy combatant.”
Judge Bates’s mixed ruling on the Obama administration’s proposed standard is
likely to add to the legal confusion surrounding the rights of Guantánamo
His ruling applies only to a set of Guantánamo-detainee habeas corpus cases that
are pending in his courtroom, and other judges on the federal district court for
the District of Columbia remain free to adopt different standards.
Indeed, two other district judges have already adopted two other standards that
appear to give greater power to the government.
“Even with what we perceive as its flaws, it is the best decision from the
detainees’ point of view,” said Peter Ellis, a Boston attorney who is
representing one of the detainees.
Mr. Ellis said the detainees’ legal team had not yet decided whether to appeal
the part of Judge Bates’s ruling that they disagree with now, or to go forward
with individual hearings under his definition and save the issue for later.
Similarly, Dean Boyd, a Justice Department spokesman, said that the
administration is still reviewing the decision.
Legal specialists say that it is likely that the Court of Appeals for the
District of Columbia will eventually issue a single standard that all judges can
apply uniformly — and that they expect the dispute to reach the Supreme Court
before it is resolved.
Judge Issues Split
Ruling on Who Can Be Detained, NYT, 21.5.2009,
Torture Memos Will Not Result in Prosecutions
May 6, 2009
The New York Times
By DAVID JOHNSTON and SCOTT SHANE
WASHINGTON — An internal Justice Department inquiry into the conduct of Bush
administration lawyers who wrote secret memorandums authorizing brutal
interrogations has concluded that the authors committed serious lapses of
judgment but should not be criminally prosecuted, according to government
officials briefed on a draft of the findings.
The report by the Office of Professional Responsibility, an internal ethics unit
within the Justice Department, is also likely to ask that state bar associations
consider possible disciplinary action, including reprimands or even disbarment,
for some of the lawyers involved in writing the legal opinions, the officials
The conclusions of the 220-page draft report are not final and have not yet been
approved by Attorney General Eric H. Holder Jr. The officials said it is
possible the final report might be subject to revision, but they did not expect
major alterations in its main findings or recommendations.
The draft report is described as very detailed, tracing e-mail messages between
Justice Department lawyers and officials at the White House and the Central
Intelligence Agency. Among the questions it is expected to consider is whether
the memos reflected the lawyers’ independent judgments of the limits of the
federal anti-torture statute or were skewed deliberately to justify what the
At issue are whether the Justice Department lawyers acted ethically in writing a
series of legal opinions from 2002 to 2007. The main targets of criticism are
John Yoo, Jay S. Bybee, and Steven G. Bradbury, who as senior officials in the
department’s Office of Legal Counsel were the principal authors of the memos.
The opinions permitted the C.I.A. to use a number of interrogation methods that
human rights groups have condemned as torture, including waterboarding,
wall-slamming, head-slapping and other techniques. The opinions allowed many of
these practices to be used repeatedly and in combination.
Several legal scholars have remarked that in approving waterboarding — the
near-drowning method that President Obama and his aides have described as
torture — the Justice Department lawyers did not cite cases in which the United
States government had prosecuted American law enforcement officials and Japanese
interrogators in World War II for using the procedure.
In a letter made public on Monday, the Justice Department advised two Democratic
senators on the Judiciary committee, Richard J. Durbin of Illinois and Sheldon
Whitehouse of Rhode Island, that the former department lawyers who wrote the
opinions had until Sunday to submit written appeals to the findings.
The draft report on the interrogation opinions was completed in December and has
provoked controversy within counterterrorism circles, which has intensified
since last month when the Obama administration disclosed four previously secret
opinions written from 2002 and 2005, which for the first time detailed the
Torture Memos Will Not
Result in Prosecutions, NYT, 6.5.2009,
Transsexual Wins $500, 000 Lawsuit
April 29, 2009
Filed at 11:00 a.m. ET
By THE ASSOCIATED PRESS
The New York Times
WASHINGTON (AP) -- A federal judge has awarded a former Army Special Forces
commander nearly $500,000 because she was rejected from a job at the Library of
Congress while transitioning from a man to a woman.
Diane Schroer of Alexandria, Va., applied for the terrorism analyst job while
she was still a man named David Schroer. He was offered the job, but the offer
was pulled after he told a library official that he was having surgery to change
U.S. District Judge James Robinson ruled Tuesday that Schroer was entitled to
$491,190 in back pay and damages because of sex discrimination.
The Library of Congress and the Justice Department argued unsuccessfully that
discrimination because of transsexuality was not illegal sex discrimination
under the Civil Rights Act.
The American Civil Liberties Union had argued the case on Schroer's behalf. Paul
Cates with the ACLU's Lesbian and Gay Rights Project said the ruling was
significant because a federal judge said that discriminating against someone for
changing genders is sex discrimination under federal law.
Schroer is a former U.S. Army colonel who directed a classified group that
tracked and targeted terrorists. Schroer retired in 2004 and worked briefly in
the private sector before applying for the Congressional Research Service job at
the Library of Congress.
After being offered the job, Schroer had lunch with a Library of Congress
official and explained the upcoming surgery. Schroer testified the official
called the next day and said the position would not be a ''good fit.''
Transsexual Wins $500, 000 Lawsuit, NYT,
Contraception Pill Strictures Are Eased by a Judge
March 24, 2009
The New York Times
By NATASHA SINGER
A federal judge ordered the Food and Drug Administration on
Monday to make the Plan B morning-after birth control pill available without
prescription to women as young as 17.
The judge ruled that the agency had improperly bowed to political pressure from
the Bush administration in 2006 when it set 18 as the age limit.
The agency has 30 days to comply with the order, in which the judge also urged
the agency to consider removing all restrictions on over-the-counter sales of
Plan B. The drug consists of two pills that prevent conception if taken within
72 hours of sexual intercourse.
Some women’s health advocates hailed the decision.
“It is a complete vindication of the argument that reproductive rights advocates
have been making for years, that in the Bush administration it was politics, not
science, driving decisions around women’s health,” said Nancy Northup, president
of the Center for Reproductive Rights, the attorneys for the plaintiff in the
suit against the F.D.A.
But some conservative groups voiced concern that the ruling could promote sexual
promiscuity. “Now some minor girls will be able to obtain this drug without any
guidance from a doctor and without any parental supervision,” the Family
Research Council said in a statement.
Plan B has been available by prescription in the United States since 1999.
But because the drug must be taken so soon after intercourse to be effective, in
2001 more than five dozen public health groups, with endorsements from World
Health Organization and the American Medical Association, asked the F.D.A. to
make Plan B available over the counter.
Not until 2006 did the F.D.A. rule, saying that the drug could be sold without a
prescription only to women over 18. In order to enforce the age restriction, the
agency also ordered that Plan B be stocked behind pharmacy counters, in contrast
to other over-the-counter contraceptives like condoms.
On Monday, in a decision that criticized former F.D.A. officials, Judge Edward
R. Korman of Federal District Court in New York threw out the F.D.A. ruling.
Judge Korman wrote that officials of the agency had repeatedly delayed action on
the petition, moving only when members of Congress threatened to hold up
confirmation hearings on acting F.D.A. commissioners. Several officials also
violated the agency’s own policies, he wrote.
Citing depositions, Judge Korman wrote that agency officials had improperly
communicated with White House officials about Plan B. And, he said, F.D.A.
employees sought to influence decisions by appointing people with anti-abortion
views to an independent panel of experts reviewing Plan B for the agency.
The agency also departed from its normal procedures, the judge wrote, by
ignoring favorable conclusions about the drug by an advisory panel as well its
own scientists and officials who found that the drug could be safely used by
women at least as young as 17.
Such “political considerations, delays and implausible justifications” showed
that the F.D.A. had acted without good faith or reasoned decision making, Judge
Susan F. Wood, a former F.D.A. director of women’s health who resigned in 2005
to protest the handling of Plan B, said Monday that the judge’s decision to send
the drug back for reconsideration signaled hope of the agency’s ability to act
independently under a new administration.
There is a new chance to “restore the scientific integrity of the F.D.A.,” said
Ms. Wood, now a professor of public health at George Washington University.
In response to a query from a reporter, an F.D.A. spokeswoman wrote Monday in an
e-mail message that the agency was still reviewing the decision.
Strictures Are Eased by a Judge, NYT, 24.3.2009,
California's video game law ruled unconstitutional
Fri Feb 20, 2009
By Gina Keating
LOS ANGELES (Reuters) - A U.S. appeals court ruled Friday that a California
law restricting the sales and rental of violent video games to minors and
imposing labeling requirements is too restrictive and violates free speech
The Ninth U.S. Circuit Court of Appeals found that the labeling requirement
unfairly forces video games to carry "the state's controversial opinion" about
which games are violent.
The unanimous opinion by a three-judge panel could have a far-reaching impact on
efforts by other states to establish mandatory video game labeling requirements.
The court upheld a lower court finding that California lawmakers failed to
produce evidence that violent video games cause psychological or neurological
harm to children.
"Even if it did, the Act is not narrowly tailored to prevent that harm and there
remain less restrictive means of forwarding the state's purported interests,"
the court wrote.
Those alternative measures include the voluntary ratings system established by
the Entertainment Software Rating Board, educational campaigns and parental
controls, the court said.
State Sen. Leland Yee, the author of the legislation, said he will urge
California Attorney General Jerry Brown to appeal the court's ruling to the U.S.
"I've always contended that the ... law the governor signed was a good one for
protecting children from the harm from playing these ultra-violent video games,"
Yee told Reuters. "I've always felt it would end up in the Supreme Court."
Bo Andersen, president and chief executive of the Entertainment Merchants
Association, said the ruling vindicates his group's position that "ratings
education, retailer ratings enforcement, and control of game play by parents are
the appropriate responses to concerns about video game content."
Andersen and Michael Gallagher, president and CEO of the Entertainment Software
Association, urged the state to abandon any further appeals of the case.
"This is a clear signal that in California and across the country, the reckless
pursuit of anti-video game legislation like this is an exercise in wasting
taxpayer money, government time and state resources," Gallagher said in a
The 2005 law, which requires games described as violent to carry an "18" label,
has been contested by video game publishers, distributors and sellers.
A lower court had barred the law from taking effect in 2006, and later
invalidated it. The state appealed that case, titled Video Software Dealers
Association v. Arnold Schwarzenegger (CV-05-04188), last October.
Entertainment Software Association members include Disney Interactive Studios,
Electronic Arts, Microsoft Corp, THQ Inc, Sony Computer Entertainment America,
and Take-Two Interactive Software.
(Reporting by Gina Keating; additional reporting by Jim Christie in San
Francisco; editing by Gerald E. McCormick, Richard Chang)
California's video game
law ruled unconstitutional, R, 20.2.2009,
Remarks on Torture Could Lead to Legal Changes
January 17, 2009
The New York Times
By SCOTT SHANE
WASHINGTON — Just 14 months ago, at his confirmation hearing, Attorney
General Michael B. Mukasey frustrated and angered some senators by refusing to
state that waterboarding, the near-drowning technique used on three prisoners by
the Central Intelligence Agency, is in fact torture.
This week, at his confirmation hearing, Eric H. Holder Jr., the attorney
general-designate, did not hesitate to express a clear view. He noted that
waterboarding had been used to torment prisoners during the Inquisition, by the
Japanese in World War II and in Cambodia under the Khmer Rouge.
“We prosecuted our own soldiers for using it in Vietnam,” Mr. Holder said.
“Waterboarding is torture.”
In the view of many historians and legal authorities, Mr. Holder was merely
admitting the obvious. He was agreeing with the clear position of his
boss-to-be, President-elect Barack Obama, and he was giving an answer that
almost certainly was necessary to win confirmation.
Yet his statement, amounting to an admission that the United States may have
committed war crimes, opens the door to an unpredictable train of legal and
political consequences. It could potentially require a full-scale legal
investigation, complicate prosecutions of individuals suspected of committing
terrorism and mire the new administration in just the kind of backward look that
Mr. Obama has said he would like to avoid.
Mr. Holder’s statement came just two days after the Defense Department official
in charge of military commissions at Guantánamo Bay, Cuba, said in an interview
with The Washington Post that she had refused to permit a trial for one detainee
there, Mohammed al-Qahtani, because she believed he had been tortured.
Together the statements, from a current and an incoming legal official, cover
both the Central Intelligence Agency, which has acknowledged waterboarding three
captured operatives of Al Qaeda, and the military’s detention program.
Legal experts across the political spectrum said the statements would make it
difficult for the incoming administration to avoid a criminal investigation of
torture, even as most also say a successful prosecution might well be
Two obvious obstacles stand in the way of a prosecution: legal opinions from the
Justice Department that declared even the harshest interrogation methods to be
legal, and a provision in the Military Commissions Act of 2006 that grants
strong legal protections to government employees who relied on such legal advice
in counterterrorism programs.
Still, Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch,
said, “It would be contrary to the principles of the criminal justice system for
the attorney general to say he believes a very serious crime has been committed
and then to do nothing about it.”
Charles D. Stimson, who served as the Defense Department’s top official on
detainee affairs from 2004 to 2007 and is now a senior legal fellow at the
conservative Heritage Foundation, said the statements “certainly will increase
the pressure on Holder to mount some kind of investigation.”
In addition to domestic political pressures, the United States appears to have a
legal obligation as a party to the international Convention against Torture to
follow up on the torture statements. That treaty requires signatory states to
conduct a “prompt and impartial investigation, wherever there is reasonable
ground to believe that an act of torture has been committed in any territory
under its jurisdiction.”
The Bush administration placed its interrogation operations offshore, at the
American base in Cuba and at secret C.I.A. sites, and officials have sometimes
argued that they were not on territory under American jurisdiction. But that
assertion has been eroded by court decisions concerning the Guantánamo detention
center, and it is unlikely that the Obama administration would use such a
loophole to avoid the torture convention’s effect.
“There’s a moral, legal and practical obligation of the United States to follow
this allegation in good faith wherever it leads,” said Juan E. Méndez, a veteran
human rights lawyer who is president of the International Center for
Transitional Justice in New York.
Where such an inquiry might lead is an unsettling question for departing Bush
administration officials, who have long worried that aggressive policies could
make them vulnerable to civil or criminal liability.
If rank-and-file interrogators are protected by the Justice Department’s
assurance that their actions were legal, what about the lawyers who gave the
assurances? What about the senior officials, including President Bush, who
approved the use of waterboarding and other such tactics?
Such questions are so legally daunting and politically complex that Mr. Obama
has played down, while not ruling out, the possibility of a criminal
investigation or a national commission to examine past policies. In an interview
with ABC last Sunday, he said “my orientation’s going to be to move forward”
rather than looking back.
In recent weeks, Mr. Bush, Vice President Cheney and other officials have
strongly defended their counterterrorism methods and credited them with
preventing attacks on the United States since 2001. Their implicit argument —
that the Obama administration should not question policies that protected
Americans — was made more explicit and personal by Michael V. Hayden, the
departing C.I.A. director, in a session with reporters on Thursday.
“If I’m going to go to an officer and say, ‘I’ve got a truth commission, or I
want to post all your e-mails, or, well, we’ve got this guy from the bureau who
wants to talk to you,’ ” Mr. Hayden said, it would discourage such a C.I.A.
officer from taking risks on behalf of the new president’s policies.
“We have no right to ask this guy to bet his kid’s college education on who’s
going to win the off-year election,” Mr. Hayden said, alluding to legal fees
that such a C.I.A. officer might face.
At his confirmation hearing, Mr. Holder was asked by Senator Orrin G. Hatch,
Republican of Utah, whether he would pursue a criminal investigation of the
Mr. Holder hedged his response, saying, “Senator, no one’s above the law, and we
will follow the evidence, the facts, the law, and let that take us where it
But he added, quoting Mr. Obama, that “we don’t want to criminalize policy
differences” and finally pleaded for time to study the matter.
“One of the things I think I’m going to have to do,” Mr. Holder said, “is to
become more familiar with what happened that led to the implementation of these
Remarks on Torture Could
Lead to Legal Changes, NYT, 17.1.2009,
Judge Rules Madoff Can Remain Free on Bail
January 13, 2009
The New York Times
By DIANA B. HENRIQUES
A federal magistrate on Monday refused a government request that Bernard L.
Madoff be jailed until he can be tried on charges of operating a $50 billion
Ponzi scheme, saying that the government had not proved that he was a flight
risk or a security risk.
The ruling, by United States Magistrate Judge Ronald L. Ellis, allows Mr. Madoff
to remain in his Manhattan apartment, wearing an electronic monitor device and
watched around the clock by a security team paid for by his wife.
Prosecutors had asked the court to revoke Mr. Madoff’s $10 million bail, secured
by various family homes held in his wife’s name, after he violated a
court-ordered asset freeze by mailing out roughly $1 million in expensive
watches and jewelry to family and friends on Christmas Eve.
“The decision speaks for itself, and we intend to comply with all the conditions
of his bail,” said Ira Lee Sorkin, a lawyer for Mr. Madoff, after the ruling was
released. “But we have no comment with respect to its impact on his day-to-day
The judge did place additional restrictions on the bail requirements, many of
which had already been imposed by the Judge Louis L. Stanton of United States
District Court, who is handling the civil suit.
“For the government’s detention application to succeed,” Judge Ellis wrote, “the
court would have to find that the government has met its burden of showing — by
clear and convincing evidence, that no condition or combination of conditions
will reasonably assure the safety of any other person and the community; or by a
preponderance of the evidence, that there is no condition or combination of
conditions that would reasonably assure the ‘presence of the defendant at trial
if released.’ ”
“The court finds that the government has failed to meet its burden to either
ground,” the ruling said.
Included in the restrictions is one that bars Mr. Madoff from transferring any
assets. Mr. Madoff’s wife, Ruth, must also compile with restrictions on the
transfer of assets.
In addition, the ruling said, Mr. Madoff shall compile an inventory of all
“valuable portable items” in his Manhattan apartment and give it the government.
Casale Associates or another security company approved by the government shall
then check the inventory every two weeks, the judge said. Mr. Madoff and the
government shall agree on a threshold value of the items within a week.
The security firm will also be required to examine all outgoing mail to assure
no property has been transferred.
Mr. Madoff was charged last month with securities fraud but has remained free
since posting bail.
So far, Mr. Madoff has not been indicted, but has been charged in a criminal
complaint with a single count of securities fraud. Typically, such complaints
contain fewer details about the crime than a formal indictment does.
Under federal court rules, Monday would have been the deadline for the
prosecution to indict Mr. Madoff, or submit to a preliminary hearing to explain
to a judge why a formal indictment had not yet been issued. On Friday, lawyers
for Mr. Madoff agreed to a 30-day extension of that deadline.
Monday’s ruling came a week after prosecutors first went to court to have Mr.
Madoff’s bail revoked for violating the terms of his bail, one of which was a
requirement not to dispose of any assets.
Prosecutors said that Mr. Madoff and his wife sent at least a million dollars
worth of jewelry as gifts to family members and friends. In addition,
prosecutors said, Mr. Madoff had plans to transfer $200 million to $300 million
of investors’ money to family members and friends. Indeed, when authorities
searched Mr. Madoff’s office desk, they found $173 million in signed checks
ready to be sent off.
The packages Mr. Madoff sent, prosecutors said, contained 13 watches, 4 diamond
brooches, a jade necklace, 2 sets of cufflinks and other jewelry. Most of the
items sent were recovered.
In a response, Mr. Sorkin and Daniel J. Horwitz, who represent Mr. Madoff, have
argued that jailing him would be unfair and wrong. Mr. Madoff is already being
watched around the clock, both for his protection and to prevent flight, and has
an electronic monitoring device, his lawyers wrote.
In addition, they said, Mr. Madoff is too widely known at this point and too
disliked to get very far in any effort to flee. Instead of jail, they said, Mr.
Madoff would accept having his property inventoried and all his outgoing mail
checked to make sure he did not try to transfer valuables again.
Mr. Madoff’s lawyers characterized the jewelry he sent as “a few sentimental
personal items.” Mr. and Mrs. Madoff’s decision to mail it, they said, was an
“Mr. Madoff gathered a number of watches that he had collected over the course
of years, knowing that, due to the sudden change in his circumstances, he would
never have an occasion to wear these watches again. To Mr. and Mrs. Madoff, the
value of these items was purely sentimental,” the lawyers wrote.
Marc O. Litt, an assistant United States attorney, first asked for bail
revocation at a hearing a week ago. “The case against the defendant is strong
and it continues to grow stronger as the government’s investigation continues,”
Mr. Litt said at the hearing. “Given the defendant’s age, the length of the
likely sentence, the strength of the proof against the defendant, including his
confessions, these facts present a clear risk of flight.”
Mr. Madoff told F.B.I. agents last month that he had overseen a financial fraud
and estimated that it had cost investors as much as $50 billion, according to a
criminal complaint filed in federal court in Manhattan. The fraud was continuing
just days before Mr. Madoff confessed it to the F.B.I., according to a lawsuit
filed by a New York company that asserts Mr. Madoff took in $10 million from it
on Dec. 5.
A government-appointed receiver has now taken over his firm, and agents from the
Securities and Exchange Commission agents and F.B.I. investigators are
conducting a far-flung investigation to see who may have aided Mr. Madoff. On
Monday, the trustee overseeing the liquidation of Mr. Madoff’s firm sent 8,000
claim forms to people who may have invested with Mr. Madoff, asking them to
detail what they believe they are owed.
Benjamin Weiser contributed reporting.
Judge Rules Madoff Can
Remain Free on Bail, NYT, 13.1.2009,
Judge Tosses Suit Challenging Tobacco Settlement
January 6, 2009
Filed at 11:32 a.m. ET
The New York Times
By THE ASSOCIATED PRESS
LOUISVILLE, Ky. (AP) -- A federal judge has dismissed a challenge to the 1998
Master Settlement Agreement between the states and 19 tobacco product makers
saying there's no legal basis for attacking the compact.
U.S. District Judge Jennifer Coffman ruled Tuesday that the lawsuit, brought by
General Tobacco, failed on all fronts because the company couldn't prove the
settlement amounted to either a conspiracy or anti-competitive behavior by the
The Master Settlement Agreement was a product of work by state attorneys
general, who represented their states in the negotiation, the judge ruled.
''While such acts are not immune from every kind of challenge, they are immune
from challenge as a violation of antitrust laws,'' Coffman wrote.
General Tobacco, the sixth-largest tobacco company in the U.S. and maker of
GT-One brand cigarettes, sued 52 attorneys general and the tobacco makers,
seeking more than $1 billion in damages. It also asked the court to stop states
from penalizing the company for not making payments while the lawsuit was
pending in U.S. District Court in Louisville.
The company argued that the Master Settlement Agreement between tobacco
companies and states is more expensive for new entrants to the industry. The
1998 agreement requires tobacco manufacturers who signed on to make annual
payments to the states, partly to pay for billions of dollars in health care
costs related to treating tobacco-related diseases under state Medicaid
''We appreciate Judge Coffman's consideration of this case. It was our position
that General Tobacco was party to the negotiations and agreed to the terms of
the settlement,'' said Allison Martin, a spokeswoman for Kentucky Attorney
General Jack Conway.
General Tobacco's executive vice president, J. Ronald Denman, was traveling and
did not immediately return a call seeking comment.
A message left with the National Association of Attorneys General in Washington,
D.C., was not immediately returned Tuesday morning.
General Tobacco said it has paid about $470 million under the MSA and has
another $36 million in escrow.
The Mayodan, N.C.-based company said it sued after the attorneys general ended
two years of negotiations over proposed changes to the agreement.
The Master Settlement Agreement ultimately prevented companies from being sued
by state governments for the costs of health care for smokers. The settlement
required a combination of yearly payments to states and voluntary restrictions
on tobacco advertising and marketing.
The settlement also covers cigarette wholesalers and retailers from liability.
General Tobacco claims that nonparticipating companies are almost excluded from
selling tobacco products in the United States because no wholesaler or retailer
will risk selling a brand not covered by the agreement.
The settlement separated participants into two camps -- original participants
and subsequent participants. General Tobacco, which was a latecomer to the
settlement, said it is unfairly required to pay millions more because it signed
on to the agreement later than 19 other companies.
Judge Tosses Suit
Challenging Tobacco Settlement, NYT, 6.1.2009,