How Appealing Extra

How Appealing Extra

Friday, May 25, 2007

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May 25, 2007

Proposal Would Add Judges After Bush Leaves Office

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - For the first time in 17 years, Congress is moving to substantially boost the ranks of the federal judiciary, including up to a dozen new district judgeships for California's overworked courts, a leading senator said Thursday.

But don't get too excited: Democrats don't want any legislation to take effect until after President Bush leaves office, which isn't for 18 months.

Sen. Patrick J. Leahy, D-Vt., chair of the Senate Judiciary Committee, said Thursday that he wants a bill that responds to the U.S. Judicial Conference's urgent pleas for additional judges.

Seven 9th Circuit Slots
At the top of the list is California, which needs 12 district judges, the conference said in its March report, while other needy states include Texas, New York and Arizona.

A total of 67 district judgeships is needed nationwide to keep up with growing caseloads, the report said.

The conference has asked for 15 new appellate judgeships, seven of which would be earmarked for the San Francisco-based 9th U.S. Circuit Court of Appeals.

Leahy revealed his intentions Thursday as the Judiciary Committee approved a bill that would restore several temporary judgeships around the country, including one in the Eastern District of California.

"I hope to put together a comprehensive bill," Leahy said. "I want to have something that's so solid ... based on need ... that we can get it passed."

Overburdened Central District
Sen. Dianne Feinstein, D-Calif., who sits on the committee, enthusiastically supports Leahy's plan, which is still in early stages.

She noted that Congress hasn't added a significant number of judgeships since it passed a comprehensive bill in 1990.

During that time, California district judges - especially those in the Los Angeles-based Central District, which is the second busiest district in the nation - have become increasingly overburdened.

Furthermore, the 9th Circuit has the second highest caseload of the 11 appellate circuits nationwide.

"This has got to end," Feinstein said of the increasing caseloads. "I have got to find out ways to get new judgeships."

Republicans, while agreeing with the need for new judges, reacted negatively to Leahy's suggestion that the law should take effect after Bush leaves office.

They don't think the president should be denied the chance to nominate judges if the bill is passed during his administration.

Leahy said he wants to take presidential politics out of the equation by passing the bill before anyone knows whether the next president will be a Republican or a Democrat.

Sen. Jon Kyl, R-Ariz., disagreed, saying it would be a political act by Democrats if they didn't allow Bush to nominate the judges.

"It should be based on need, not politics," he said. "The reality is we need them now."

Leahy said later he would be willing to sit down with colleagues from both sides of the aisle to discuss the timing.

Judicial politics expert Arthur Hellman, a law professor at the University of Pittsburgh, said senators could likely reach a compromise on that issue by phasing in the new judgeships.

Under that scenario, Bush could appoint some, and his successor could appoint the rest.

Back in 1984, Congress passed a similar bill towards the end of President Reagan's first term, Hellman noted.

In the last few years, attempts to add new judgeships have failed in part because Republican members of the House, including former Judiciary Committee Chairman F. James Sensenbrenner of Wisconsin, would only support legislation if it included a provision to split the 9th Circuit in two.

Conservatives have long considered the 9th Circuit too liberal and have proposed the split as a way to reduce the court's influence.

Democrats, who now control both chambers, have resisted splitting the court and are unlikely to insist on such a caveat, making it more likely that legislation could pass, Hellman said.

It is not yet clear whether the House is planning legislation similar to Leahy's.

A House Judiciary Committee aide said it's "something we are looking at" but that Chairman John Conyers, D-Mich., has not yet made a decision on whether to introduce a bill.

In a separate effort, Feinstein and Kyl have introduced legislation that would add one judgeship to the 9th Circuit by re-allocating a judgeship from the D.C. Circuit, which has a much lower caseload.

Friday, May 18, 2007

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May 17, 2007

Repartee, Spectator Outburst Energize High-Court Justices

By Brent Kendall
Daily Journal Staff Writer

WASHINGTON - It was a day that won't be forgotten by anyone who had a seat in the courtroom.

On a long-anticipated November morning, the U.S. Supreme Court heard its first major abortion case in six years, and the tension was palpable. The court's police officers appeared to be on extra high alert- as it turned out, for good reason.

Priscilla J. Smith of the Center for Reproductive Rights was eight minutes into her argument against the federal Partial Birth Abortion Ban Act when Rives Miller Grogan, an anti-abortion protester from Los Angeles, stood suddenly and began shouting.

With the justices looking on, officers ran through the stunned crowd and swarmed Grogan. The police dragged Grogan kicking and screaming from the courtroom, his message muffled in the commotion: "Abortion ... innocent blood ... you will perish ... Jesus says...!"

Chief Justice John G. Roberts Jr. tried to lighten the mood.

"We'll give you an extra 30 seconds," he said to Smith with a smile. "Proceed."

Although Smith regained her composure, the case ended in bitter disappointment for abortion rights advocates. A 5-4 court upheld the law in April.

Grogan's outburst, the first such disruption of a Supreme Court proceeding in 20 years, cost him 15 days in jail, a $500 fine and a year's probation.

The interruption was one of many memorable moments during the court's 2006-07 oral arguments, Act II of the Roberts court, in which the justices again seemed to be a more energetic and lively bunch under their younger, more assertive chief justice.

It wasn't the only jaw-dropping moment of the year, thanks to well-known Harvard law professor Arthur R. Miller, who delivered perhaps the best one-liner of the term, and certainly the riskiest, during a key securities-fraud case in March.

When Justice Antonin Scalia, the court's resident flamethrower, suggested that a plaintiff's fraud allegations needed to be very strong to go to trial, Miller shot back with some fire of his own.

"Is that because you never met a plaintiff you really liked?" Miller asked.

Eyes widened. The audience gasped. All of the justices laughed, looking at one another with wide grins as their outspoken colleague seemed temporarily at a loss for words.

"I took a liberty there with the justice," a grinning Miller said during the laughter.

Scalia wasn't silent for long, jumping in a short time later when Miller told Roberts not to take one of his statements literally.

"Let me write that down: We should not take you literally," Scalia said. "All right."

Roberts interrupted to declare a truce.

"OK, you two are even now," he said.

Miller did not return repeated calls for comment.

Although Miller delivered the line of the year, Frances Forsman, the federal public defender for Nevada, delivered one of the best arguments - and received a highly unusual compliment for it.

Forsman, making her first high-court appearance, had the challenge of convincing the court that its 2002 ruling in Crawford v. Washington, which severely limited the admissibility of out-of-court statements made by witnesses who did not appear in person, should apply retroactively.

The task was a tall one. The court had said that only its most bedrock holdings, like the right to counsel, are so important that they should allow defendants to reopen old cases.

Forsman's argument, however, was nearly flawless. If she seemed ready for each and every question, it's because she was. Thanks to four rigorous moot courts, the justices didn't come up with a single question that she hadn't heard before.

"I was on automatic pilot," she said.

Forsman even improvised, mentioning the morning's first case, a dispute involving Duke Energy Corp.

Not even Duke's high-priced lawyers, she said, could have saved her client if out-of-court statements could be used against him. That's why, she said, the right to confront one's accusers in court is so important.

As Forsman prepared to submit her case, 87-year-old Justice John Paul Stevens, the court's elder statesman, spoke up.

"May I ask you a personal question?" Stevens asked. "Were you a moot-court finalist?"

Blushing, Forsman said, no.

"I attended a moot court at Notre Dame in about your year, and it was an awfully good moot court," Stevens said.

The court almost never praises an advocate from the bench, not even in the round-about way that Stevens approached it. His intent, however, was unmistakable.

"Obviously, I was extremely flattered by Justice Stevens' comment," Forsman said.

Even better, she said, was that her "ancient old" wheelchair-bound father was in the courtroom to hear it.

"That was one of the nicest parts of it," she said. "That was probably one of the last trips he'll take."

In the end, however, Stevens' rare compliment was all Forsman got: She lost the case 9-0, proving that even the best oral arguments don't always win.

Although Forsman finished her argument thinking that she had at least an outside shot at winning her case, the justices made clear to Thomas C. Goldstein of Akin Gump Strauss Hauer & Feld that he would not be winning his, a patent case that was among the term's most notable.

Goldstein was in the unfortunate position of having to defend an important and much criticized legal test used by the U.S. Court of Appeals for the Federal Circuit to determine when an invention was obvious and therefore not deserving of patent protection.

The justices, pulling no punches, made clear early and often that they intensely disliked what the Federal Circuit had done. Goldstein, whose case never had a chance, took the beating of the year, and perhaps of a career.

"We always had an idea that we were behind, but I didn't have the sense that they would be so befuddled or so hostile," Goldstein said.

Roberts labeled the lower court's test as "worse than meaningless."

Scalia preferred to call it gobbledygook.

Justice Stephen G. Breyer said he'd read the appeals court's opinion 20 times and still couldn't figure out what it had done.

The jokes rained down.

When Goldstein said that experts had concluded that his client's patent was not obvious, Roberts couldn't resist.

"Who," Roberts asked, "do you get to be an expert to tell you something's not obvious? The least insightful person you can find?"

Goldstein, described in the next day's New York Times as "the straight man in a courtroom comedy," said the argument was by far the most intense onslaught he'd ever faced.

"You have almost no friends," he said.

"You just have to take a very significant step back," he said, which meant urging the court not to radically rewrite patent law.

"In total candor, that worked," he said. "The tone of the opinion is totally different from the tone of the oral argument."

The experience, Goldstein said, underscored a basic lesson about the court: "It's impossible to predict a Supreme Court oral argument."

With the court's hearing fewer cases in recent years, the competition among private practitioners for argument time has grown ever more intense.

And although the group of regular Supreme Court advocates is mostly a men's club, this year's leader was a woman, Maureen Mahoney of Latham & Watkins.

Mahoney, the most accomplished woman advocate at the Supreme Court today, had four arguments this term, the most of any lawyer in private practice. She beat out a handful of male counterparts who had three.

"It's the first time I've led the pack," Mahoney said of her demanding year. "I enjoyed it."

Mahoney, best known for her victory in the 2003 Grutter v. Bollinger case that preserved the narrowly tailored use of race in college admissions, said she was not doing anything different than she did in years past.

"It's just a question of who calls," she said, though she conceded that her high-profile win in Grutter, along with a 2005 win in a case involving Arthur Andersen, had increased her visibility.

"I don't think any of them want it to be a boys club," Mahoney said of her male peers.

It would be best for everyone, she said, if women were arguing more cases.

Things were headed in the right direction, she said, but "it's slower than I would have expected."

Goldstein said Mahoney was a hot commodity these days, "and deservedly so."

"For the first time ever," he said, "we have a woman who is one of the top three advocates before the court."

Wednesday, May 09, 2007

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May 09, 2007

Government Seeks Protective Order on Communications

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - On January 24, 2006, guards at the U.S. government's prison at Guantanamo Bay, Cuba, overheard an inmate reading a book entitled "The Torture Papers: The Road to Abu Ghraib."

The guards immediately confiscated the book, which was marked with a statement that it was a legal document supplied by the detainee's attorneys.

Distrust for Lawyers
"It was a serious threat to the security of the camp," U.S. Navy Commander Patrick M. McCarthy said in an affidavit filed with court papers later that year.

It was also an example of the distrust the government has shown for the detainees' lawyers over the last five years.

Edited by two prominent lawyers, "The Torture Papers" contains a selection of public documents that outline the Bush administration's approach to the war on terror, including the detention and interrogation of suspected enemies.

The title is a reference to the notorious prison in Iraq where U.S. personnel were photographed abusing prisoners.

"Such materials could incite detainees to violence, leading to a destabilization of the camp," McCarthy wrote in his affidavit.

As the result of episodes such as this at the Guantanamo prison camp, the government is now taking its fight with detainee lawyers to a new level.

The Bush administration has taken the controversial step of asking the U.S. Circuit Court of Appeals for the District of Columbia to severely limit the rights of defense attorneys to communicate with their clients confidentially.

Hearing for Protective Order
The court is due next Tuesday to hear oral arguments on the proposed protective order in a case involving eight detainees. Haji Bismullah, et al. v. Donald Rumsfeld, 06-1197.

The order would apply only to those eight men, but would likely set a precedent for future cases, experts say.

The co-editor of the confiscated book, Karen J. Greenberg, executive director of the Center on Law and Security at New York University, said she is somewhat bemused that the government would deem it to be so provocative.

She does not think the book, which contains no classified information, could be considered inflammatory.

But she said she understands where the government is coming from.

On the one hand, she said, lawyers need to communicate with their clients, but Greenberg recognizes that the government has a right to regulate what outside information the suspected terrorists receive.

"The only reason they shouldn't be able to read that book is because they would feel they were being treated unfairly," she said of the detainees.

It's no secret that the Bush administration is no fan of the lawyers who have stepped forward to advocate for the inmates at Guantanamo Bay.

The government claims the detainees, many of whom were captured in Afghanistan in 2001, are "enemy combatants." Government attorneys have repeatedly attempted, with some success, to limit their legal rights.

In January, Defense Department official Charles "Cully" Stimson called it "shocking" to see major law firms helping the detainees and wondered aloud whether corporate clients would boycott the firms. He resigned when his comments during a radio interview provoked a backlash from the legal establishment.

American Bar Association President Karen J. Mathis said the latest proposal would "threaten competent representation without at all advancing national security."

The legal battle is playing out amid concerns that some detainees have lost faith in their lawyers, while other inmates are said to suspect that their attorneys are actually U.S. government representatives in disguise.

At issue before the D.C. Circuit next week is how tightly the government can restrict both personal visits and written communication between defense attorneys and their heavily guarded clients.

There have always been limits on lawyers representing the Guantanamo detainees.

When the U.S. District Court in Washington began hearing habeas corpus claims after the first detainees were captured in the fall of 2001, the court prohibited the lawyers from passing classified information to detainees. In a protective order, the court also authorized a process for the government to seek permission to withhold certain information.

Both sides agree this arrangement has operated fairly well over the last few years.

"While not without its challenges, it has fundamentally worked," said Bingham McCutchen partner Susan Baker Manning, who represents detainees.

The proposed new order goes much further, to the point that lawyers would be limited to three visits.

The government says there is no need for counsel to have unlimited access to their clients because "counsel does not have a need to engage in factual development," according to court papers.

That's a reference to the Detainee Treatment Act, passed by Congress in 2005, which states that attorneys cannot challenge the government's facts.

Defense lawyers can argue only that the government did not follow its own procedures when carrying out a review process known as the Combatant Status Review Tribunal.

The government also wants a shorter leash for all other communications with the detainees.

All written communications would be subject to review. The review team, however, would not share any of the content with the government "except in carefully limited circumstances where communications relate to imminent acts of violence or could harm the national security," according to court filings.

Manning equates this review with censorship. She voiced concern that already fragile attorney-client relationships will suffer further if both parties know their letters are being intercepted.

"Who are they to say what's relevant to my case?" she said of government officials.

Ordinarily, a trial judge would take first crack at fashioning any kind of protective order. But because the Detainee Treatment Act requires all detainee appeals to be heard by the D.C. Circuit, the current dispute is skipping over the U.S. District Court.

The stakes are high for the 385 detainees at Guantanamo because their legal rights are so limited.

Under current law, they have no habeas corpus rights, a status reinforced by the D.C. Circuit earlier this year when it upheld the Military Commissions Act, passed by Congress last October.

With retroactive language, that legislation specifically provided that no one captured in the aftermath of Sept. 11, 2001, is entitled to assert habeas corpus.

Although the Supreme Court thus far has declined to address whether a denial of habeas corpus rights is unconstitutional, it has left the door open for future review.

Lawyers for the detainees say the government therefore has to be cautious in restricting access.

Some of these issues could be litigated in the future if habeas corpus is reinstated, according to Shayana Kadidal, an attorney at the New York-based Center for Constitutional Rights, which has helped coordinate legal representation for the detainees.

He noted, for example, that lawyers need to visit the prison so they can check on the living conditions of the detainees.

"The government has to be careful," he said.

Defense attorneys recently received some support from an unexpected source.

The commander of the Guantanamo prison, Rear Admiral Harry Harris, told the Miami Herald that he no longer thinks it's necessary to limit the number of lawyer visits.

He said the original petition for the new protective order, filed last August, came at a turbulent time when there was a lot of unrest at the prison.

That unrest has since subsided, he said, and prison guards are better able to prepare for visits by the lawyers.

Justice Department spokesman Erik Ablin said the government's official position has not changed.

"The position of the United States is driven by base security concerns which are within the purview of the Department of Defense to evaluate," he said.

A spokesman for the Defense Department declined to discuss the issue.

Whatever the D.C. Circuit decides, representing a detainee is never going to be easy, said Manning.

She has only had time to visit Guantanamo twice. Most of her communications are through letters.

Her clients, a group of seven Muslims from western China who lived in Afghanistan at the time of the U.S. invasion in 2001, have been held at the camp since 2002.

Manning said she and her colleagues have "scrupulously complied" with the terms of the old protective order when communicating with the detainees.

She said that if the D.C. Circuit approves the government's petition, it would seriously undermine her ability to build a relationship with her clients.

She recalled that she once sent a photograph of her newly born daughter via legal mail to try to build a rapport with her clients. But she's worried that this kind of innocent gesture could be curtailed in the future.

"Apparently sending them a picture of my daughter is the best thing I have done," she said. "They were very pleased to see it. I can't do my job if they don't trust me."

Friday, May 04, 2007

© 2007 The Daily Journal Corporation.
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May 04, 2007

Former Official Testifies Only Ryan's Performance Was an Issue

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - The former second in command to U.S. Attorney General Alberto Gonzales testified Thursday that he identified job performance problems with only one of the eight U.S. attorneys ultimately fired by the Bush administration.

That was Kevin Ryan in San Francisco.

Former Deputy Attorney General James Comey told lawmakers that before he left office in mid-2005, he knew nothing of a plan to dismiss U.S. attorneys.

He asserted he had no idea that Gonzales' chief of staff, Kyle Sampson, and others were in negotiations with the White House early that year over possible firings.

Comey, a former U.S. attorney himself, also spoke of his admiration for several of the dismissed U.S. attorneys, including Carol Lam in San Diego, and said he knew of no reason why they should be fired.

He appeared before Congress Thursday as part of an ongoing investigation into the firings, a burgeoning scandal that has sparked calls for Gonzales' resignation. Comey oversaw the Justice Department's day-to-day operations, including the nation's 93 U.S. attorneys, but he did not supervise Sampson, who reported directly to Gonzales.

Comey was able to cast little new light on why the attorneys were fired or who made the decision, but Democrats quickly seized upon his testimony to press home their point that there were no valid reasons for firing several of the prosecutors.

Democrats have alleged that the dismissals were politically motivated, aimed at U.S. attorneys who were actively investigating Republican politicians or were perceived to be neglecting to indict Democrats.

Lam successfully prosecuted San Diego Republican Rep. Randy "Duke" Cunningham and had expanded her investigation to focus on other Republicans at the time she was dismissed.

During his testimony before the House Judiciary Subcommittee on Commercial and Administrative Law, Comey recalled conversing with Sampson in February 2005 about possible dismissals.

That was the period during which Sampson first made a list of U.S. attorneys to be fired.

Comey, the former U.S. attorney for Manhattan and a line prosecutor before that, served as deputy attorney general from 2003 until August 2005. He then took his current position as general counsel for Lockheed-Martin Corp.

He said he had no idea that there was a systematic plan to fire some of the prosecutors, but he remembered Sampson asking if there were any weak performers.

In response, Comey mentioned Ryan, whose office had experienced well-publicized management problems during his tenure.

He described Ryan as "a fine guy" who "just had management challenges."

But as Democrats pointed out, Ryan ranked favorably in a March 2005 list Sampson made of U.S. attorney performance, in large part because of his loyalty to the Bush administration.

Comey admitted under questioning that he was not in the loop despite his high-ranking position.

"I never saw it or any version of it," he said of the list. "I was not even aware there was any process going on."

He said he was unable to comment on the White House's involvement in drawing up the list and noted that he has never met senior presidential adviser Karl Rove, who Democrats believe may have played a role in selecting the fired prosecutors.

As for other attorneys on Sampson's list that were earmarked for dismissal including Lam, Daniel Bogden of Nevada and David Iglesias of New Mexico, Comey had only positive things to say about them.

Bogden is "as straight as the Nevada highway", Iglesias is "the Bogden of New Mexico," and Lam was "a fine U.S. attorney," he said.

Speaking about the low level of gun prosecutions in Lam's office, mentioned by Justice officials as one of the reasons for her dismissal, Comey conceded that he had spoken to Lam about it in 2004 at the behest of then-Attorney General John Ashcroft.

He also spoke at that time to the nine other U.S. attorneys whose districts ranked in the bottom 10 for gun prosecutions.

Comey noted that numbers alone "tell you nothing in a vacuum" and that he was always keen to consult with the individual U.S. attorneys to hear what they had to say.

He added that none of the other prosecutors who had conspicuously weak records on gun enforcement were fired.

Comey acknowledged that his communication to Lam was "to a certain degree" a sign that the department wasn't entirely happy with her performance.

But he stressed that he was not "threatening or beating up" on her or the other prosecutors he had to call.

Lam herself mentioned her conversations with Comey in her written responses to congressional investigators, released this week.

She said he "listened carefully" to her explanation why her gun prosecution figures were low - namely because local prosecutors were doing the brunt of the cases - and reported that he "accepted my approach as a reasonable one."

Thursday's hearing prompted claims from Republicans that the Democrats leading the U.S. attorney investigation are making little headway in their attempts to show that there were nefarious reasons for the firings.

"So far this seems to be a fishing expedition that has come up dry," said Rep. Chris Cannon of Utah, the ranking member on the subcommittee.

To the contrary, Los Angeles Democratic Rep. Linda Sanchez, the chair of the subcommittee, said Comey's testimony was "important and, frankly, refreshing," because it cast doubt upon the Justice Department's original contention that the prosecutors were fired for performance reasons.

Thursday, May 03, 2007

© 2007 The Daily Journal Corporation.
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May 03, 2007

Lawmakers Pursue Possible Effort to Avoid Confirmation

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Lawmakers are questioning whether the Justice Department intended to avoid Senate confirmation for the U.S. attorney who was to replace Carol Lam in San Diego.

Lam has told congressional investigators that a Justice Department official hinted about a plan to replace her with someone from outside her district.

Local Committee
That person would not have to be vetted by the local committee normally used in California, she claims the official told her.

Some lawmakers in Washington are wondering whether the Justice Department intended to do what it did in Arkansas and attempt an end run around the Senate in order to install a Bush administration loyalist.

Purge of Prosecutors
"The Justice Department has consistently cited the opinions of lawmakers in the decision to fire Ms. Lam, so it would be especially troubling if they sought to bypass those lawmakers in selecting her replacement," Democrat Rep. Linda Sanchez of Los Angeles said Wednesday.

Sanchez is one of the leaders of the congressional inquiry into the firing of eight U.S. attorneys, including Lam and Kevin Ryan in San Francisco.

Sen. Dianne Feinstein, D-Calif., was more circumspect but clearly shares Sanchez's concerns.

"I have no way of knowing what the intent was," she said. "But what I do know is that they didn't interview anybody in the office for at least a month after they forced her to resign - after the issue was made public.

"If they were going to fire her, I would think they had somebody in mind for the position, but I can't prove that."

When the purge of several prosecutors in different states first hit the headlines Jan. 12, the Justice Department quietly appointed Karen P. Hewitt, who worked under Lam, to fill the position temporarily.

But a week earlier, Lam said, she was led to believe by a senior Justice Department official that the department was considering replacing her with an outsider.

According to written responses to questions from lawmakers made public Wednesday, Lam's conversation with Michael Elston, chief of staff to Deputy Attorney General Paul McNulty, took place Jan. 5.

Lam wrote that Elston told her "he 'suspected' and 'had a feeling' that the interim U.S. attorney who would succeed me would not be someone from within my office."

Furthermore, "the person picked to serve as interim U.S. attorney would not have to be vetted by the committee process used in California," she added.

Justice Department officials did not respond Wednesday to a request for comment.

According to internal documents, some within the department wanted to use a little-known provision inserted into the Patriot Act reauthorization last year to appoint interim U.S. attorneys indefinitely, thereby removing the need to nominate candidates officially and seek confirmation.

That was the plan in the Eastern District of Arkansas, where the Bush administration hoped to replace U.S. Attorney Bud Cummins with GOP insider Tim Griffin.

The scheme backfired when Arkansas Democrat Sen. Bill Pryor and others objected.

In another development Wednesday, Cummins said in his own written responses to Congress that he was told the original plan was conceived by the White House and was not supported within the Justice Department.

Elston's comments to Lam, if accurate, suggest there may have been a similar plan in San Diego.

A year earlier, Sampson, who was Attorney General Alberto Gonzales' chief of staff, had in fact mentioned some possible replacements for Lam.

All of them were Justice Department insiders.

They were Deborah Rhodes and Jeffrey Taylor, two former San Diego prosecutors, and Daniel Levin, who was once a federal prosecutor in Los Angeles.

But by the time Lam was asked to leave office in December, Rhodes had been confirmed as the U.S. attorney for the Southern District of Alabama, and Taylor was serving as interim U.S. attorney for the District of Columbia.

Levin, who at one point tried to be appointed the U.S. attorney in Los Angeles, is a partner with WilmerHale in Washington, D.C.

Lam also revealed in her written answers to Congress that she had asked to stay on in her position for longer than initially planned in order to oversee "several significant cases."

This request was rejected, with Elston telling her that the request was "not being received positively."

Elston told her she had to leave "in a matter of weeks" in accordance with instructions "coming from the very highest levels of the government," Lam said, directly quoting Elston.

At that time, Lam's office was preparing indictments for Brent Wilkes and former CIA official Dusty Foggo, who were both implicated in the bribery scandal that led to the conviction of San Diego Republican Rep. Randy "Duke" Cunningham.

Some Democrats have claimed that Lam's departure may have been linked to her zealous pursuit of the investigation.

Sanchez said Lam's explanation raised some troubling questions.

"If Carol Lam's response is accurate, it would be a chilling contradiction of the Justice Department's stated intent to keep the continuity of the important public corruption cases developed and led by Lam and her staff," Sanchez said.

In a related development, Feinstein said Wednesday she plans to introduce legislation that would prevent U.S. attorneys from taking additional internal positions that take them outside of their home district.

Feinstein was acting in response to the news that William Mercer, the U.S. attorney for Montana, spends most of his time in Washington, where he has a senior position at the Justice Department.

© 2007 The Daily Journal Corporation.
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Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

May 03, 2007

Latest High Court Rebuff Shifts Focus to Guantanamo Legislation

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Rebuffed by the U.S. Supreme Court, lawyers for enemy combatants held at Guantanamo Bay are looking desperately to Congress to restore habeas-corpus rights for their clients.

The court refused twice last month to hear cases relating to the detainees' legal rights. Attorneys for the inmates hope that will spur the Democrat-controlled Congress into action.

Several senior lawmakers pledged in the fall to restore habeas-corpus rights for detainees after the November election, but Congress has made little progress on the issue. Although Congress can act more quickly than the courts can, there is a chance President Bush would veto legislation that passes, legal experts say.

The Supreme Court rejected the latest appeal Monday, declining to grant certiorari in a joint action filed by two detainees facing military tribunals. Hamdan v. Gates, 06-1169.

Earlier last month, the court declined to hear the first case challenging habeas-corpus-stripping provisions of the Military Commissions Act, which Congress passed in September. Boumediene v. Bush, 06-1195, and Al-Odah v. U.S., 06-1196.

The court did not rule out hearing such a case in future, but Justices Anthony M. Kennedy and John Paul Stevens issued a statement saying that they believe plaintiffs should exhaust their existing appeals before seeking Supreme Court review.

That could take "many months," according to detainee attorney Gary A. Isaac, counsel at Mayer, Brown, Rowe & Maw in Chicago.

Joshua Colangelo-Bryan, an associate at Dorsey & Whitney in New York who also represents detainees, agrees that time is of the essence.

"If the Supreme Court had granted cert., the issues could have been heard more quickly," he said.

Responding to the Supreme Court's refusal to hear the recent cases, attorneys for Guantanamo detainees are turning their attention to sympathetic lawmakers.

"It puts pressure on this Congress to restore the balance," said Vincent Warren, executive director of the Center for Constitutional Rights, which helps coordinate the legal effort.

Some lawmakers are equally concerned.

Rep. Jan Schakowsky, D-Ill., said this week that the court's refusal to hear the cases is "even more outrageous" than Congress' vote to strip habeas-corpus rights.

"We have seen a steady erosion of our civil rights," she said.

Many lawmakers were conflicted when Congress passed the Military Commissions Act, which effectively rubber-stamped the Bush administration's proposals for dealing with enemy combatants. The measure reversed a June 2006 decision in which the Supreme Court held that the Detainee Treatment Act, passed by Congress in December 2005, could not be applied to enemy combatants captured before its passage. Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).

The Detainee Treatment Act contained the original habeas-corpus-stripping language.

When Congress debated the Military Commissions Act, senior lawmakers from both parties made their concerns clear. A Senate amendment that would have struck the habeas-stripping provision failed narrowly by a 51-48 vote.

With Democrats now in charge, senior lawmakers including Patrick J. Leahy, D-Vt., chairman of the influential Senate Judiciary Committee, are hopeful they can reverse that outcome.

"I think Congress made a horrible mistake," he said this week. "I really want to see us reverse it."

Leahy describes last fall's vote as one of Congress' biggest errors during recent years, comparing it with 1964's Gulf of Tonkin Resolution, which authorized President Lyndon B. Johnson to escalate the conflict in Vietnam. His committee is set to hold a hearing this month on bills that would restore habeas-corpus rights.

Leahy's spokeswoman, Tracy Schmaler, said the senator is speaking with his colleagues to drum up support.

The Supreme Court's decision Monday "certainly reinforces Sen. Leahy's contention that Congress needs to act to correct" the Military Commissions Act, she added.

California's Democratic senators, Dianne Feinstein and Barbara Boxer, support restoring habeas-corpus rights for Guantanamo detainees.

In the House of Representatives, 136 members support companion legislation introduced by Rep. Jerrold Nadler, D-N.Y.

Feinstein also has introduced a measure to close the detention facility at Guantanamo Bay and move the trials of suspected terrorists to the United States. Feinstein has said the facility has hurt America's credibility abroad because of allegations of abuse and doubts about the legal rights afforded detainees.

Meanwhile, the detainees' only legal recourse is a narrow review procedure set up by the Detainee Treatment Act and conducted by the U.S. Court of Appeals for the District of Columbia Circuit.

The only avenue open to them is to prove that the U.S. military did not follow its own procedures, according to legal experts. The detainees cannot introduce evidence or challenge the government's facts.

"We believe the Detainee Treatment Act proceedings are not an adequate and effective substitute for habeas corpus," Isaac said.

In addition, the government recently petitioned the court to restrict the right of detainee attorneys to see their clients, arguing that such a move would be in the interest of national security. Government lawyers claim that lawyers have stirred unrest at the prison by telling inmates about world events and sharing information about their clients with the media.

The move has been condemned widely by the legal community, including the American Bar Association.

The court is set to hear oral arguments on the issue May 15.