How Appealing Extra

How Appealing Extra

Thursday, September 27, 2007

© 2007 The Daily Journal Corporation.
All rights reserved.

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.

September 27, 2007

Deal Floated On Liability Of Telecoms
Damages Cap for Those Involved in Secret Wiretapping?

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - The Bush administration may want retroactive immunity for telephone companies that participated in its secret wiretapping program, but some in Washington are floating a compromise solution.

There is the possibility - raised by legal experts and mentioned by a senior senator at a hearing this week - that Congress could allow the lawsuits to go ahead but impose a cap on the potential damages.

Potential Catastrophe
That would protect the telephone companies from potential catastrophe if they lose the various cases that a federal judge in San Francisco is hearing.

Under the terms of the Foreign Intelligence Surveillance Act, people who can prove they were surveilled unlawfully can claim damages of $100 a day for each day of the violation and a minimum of $1,000.

If, as attorneys for the plaintiffs contend, millions of people were affected, the telephone companies could face huge losses, experts say.

Hot Topic
The issue is a hot topic in Washington at the moment because emergency legislation Congress passed in August that gives the administration permission to continue its wiretapping program will expire in February.

The temporary legislation did not tackle the immunity issue, which is one of the administration's top priorities, according to J. Michael McConnell, director of national intelligence at the White House.

Sen. Edward Kennedy, D-Mass., brought up the question of a cap when questioning McConnell at a hearing Tuesday.

Granting immunity would be a "bad precedent," Kennedy said, because it would create a situation in which companies could "violate the law thinking that sometime in the future they can get immunity by talking about bankruptcy."

"There are alternative ways of doing it. ... There is limited damages," he said.

Kennedy's spokeswoman, Melissa Wagoner, elaborated on Kennedy's views, saying the senator is "not committed to a damage cap" at this time but is keen to determine exactly why the administration is in favor of immunity.

Kennedy is concerned that the administration wants to dispose of the lawsuits to prevent details of the warrantless wiretapping program from being made public, she said.

"Kennedy's point was to call the administration's bluff," Wagoner said.

Not surprisingly, lawyers for the plaintiffs aren't keen on the idea of a cap, although they accept that it would be better than immunity.

"It would be less bad," said Kurt Opsahl, senior staff attorney at the San Francisco-based Electronic Frontier Foundation. "We are opposed to any form of retroactive immunity."

One former Capitol Hill staffer following the issue said capping damages is an obvious compromise, and the former staffer confirmed that it is "one of the issues on the table."

But the source said that where individual lawmakers stand is unclear at this point, except that Democrats are in general hostile to granting broad immunity.

Intelligence expert James X. Dempsey, who runs the San Francisco office of the Center for Democracy and Technology, is one of those who proposed a cap. Dempsey testified before committees in the House and Senate in the last week.

"I think there's interest in it," he said of the proposal.

But Dempsey, who once worked on Capitol Hill himself, stressed that, at this stage, it is just one of several options.

One alternative could lead to the government's substituting itself for the defendants, meaning it would pay any subsequent damages.

Another scenario would have the government indemnify the phone companies.

Finally, there's always the possibility that Congress could do nothing and let the cases proceed, Dempsey said.

"It's impossible to predict at this point," he said. "It's completely uncertain."

Justice Department spokesman Dean Boyd said the administration is sticking by its original proposal - submitted to Congress in April - that calls for blanket immunity. But Boyd noted that dialogue with Congress is continuing.

"We have laid out our position," he said. "We are willing to look at other proposals. We would thoroughly vet any proposals before we make a decision on whether to support them."

The cases before U.S. District Judge Vaughn Walker in San Francisco relate to both the legality of the government program and whether the telephone companies - AT&T, Verizon and BellSouth (which has since merged with AT&T) - violated the law by passing on confidential information about their customers.

The parties are waiting for the 9th U.S. Circuit Court of Appeals to rule on the government' assertion of state-secrets privilege. Walker rejected that argument.

Representatives from the telephone companies declined to comment on the immunity issue.

Thursday, September 13, 2007

© 2007 The Daily Journal Corporation.
All rights reserved.

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.

September 13, 2007


By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Theodore B. Olson is a man with two resumes.

The official one lists his professional accomplishments as a senior partner for Los Angeles-based law firm Gibson Dunn & Crutcher.

It notes that he is one of the nation's top Supreme Court advocates and is routinely cited by various legal publications as one of the most-respected attorneys of his generation.

Then there's the political résumé, the one that critics point to as the White House considers whether to nominate Olson to replace departing Attorney General Alberto Gonzales.

This chronicles the career of Olson the political animal, the man who was part of what Hillary Clinton famously dubbed "the vast right-wing conspiracy" in the 1990s and who led President Bush's successful legal team during the 2000 election controversy.

It is this Olson whom the Senate narrowly confirmed to be solicitor general in 2001 by a Republican-controlled Senate. With the other party now in charge, Senate Majority Leader Harry Reid, D-Nev., vowed Wednesday to block Olson if the president nominates him.

Just how much Olson's political activities make him damaged goods in the eyes of a Democratic-controlled Senate is the key issue White House officials have to weigh before making their choice.

But in Olson's favor is his reputation within the legal community.

"The question is not so much whether he is political - he clearly is - but whether he would be able to separate his political background from the way he runs the Justice Department," said Robert S. Litt, a senior Justice Department official during the Clinton administration.

If the White House decides against picking Olson, media reports suggest that the president could turn to the likes of Michael Mukasey, a former federal judge in New York, or former Deputy Attorney General Larry Thompson, who would be the first black attorney general.

George Terwilliger III, who was deputy attorney general under the first President Bush, also reportedly is on the White House's shortlist.

Olson himself told the Daily Journal Wednesday he is trying to focus on his legal practice while the president makes his decision.

"All this flurry of activity can drive someone crazy," he said. "I'm working on a brief."

Olson declined to comment on the White House's job search, saying of a potential nomination only "I'll cross that bridge when I come to it."

Told of Reid's pledge to block his nomination if he is chosen, he joked that "it's good to know before there's a nomination."

Litt said he believes Olson does have the qualities to succeed in the job if he can prove to Democrats that he will not politicize the activities of the department.

"First, he is an excellent lawyer," Litt said. "More importantly, he has served in the department. I would hope he would have a respect for the institution."

Recently departed Deputy Attorney General Paul McNulty, a partner in the Washington office of Baker & McKenzie, believes Olson has all the necessary qualities, based largely on his broad knowledge of the law.

As attorney general, Olson would have to make decisions on a wide variety of legal issues and be required to "understand the law in all its complexities," McNulty noted.

"The term 'learned in the law' would be a great way to describe him as a lawyer," he said.

One of Olson's colleagues at Gibson Dunn, former Democratic congressman Mel Levine, agrees.

"While Ted and I have very different political philosophies, I have worked closely with him as a lawyer, and he is a superb lawyer," Levine said.

Another Gibson Dunn partner, Theodore Boutrous, who describes himself as apolitical, said he found Olson to be a "straight shooter" when dealing with both legal and management issues within the firm.

They are co-chairs of Gibson Dunn's appellate practice.

Boutrous joined the firm just as Olson returned after serving as head of the Office of Legal Counsel under President Reagan.

"He never asked me my politics," Boutrous said. "It was just not a factor."

In addition to his legal skills, Olson would bring management expertise to the Justice Department, having served on the firm's executive committee for years, Boutrous added.

Olson, who holds a law degree from Boalt Hall, is the ultimate Washington insider.

With Gibson Dunn as his base since 1965, Olson has served in the Justice Department under two presidents, Reagan and Bush, and played an active role in Republican circles.

He spent three years as solicitor general during Bush's first term.

During his periods in private practice, Olson built a reputation as one of the capital's top Supreme Court litigators.

One case that perhaps symbolizes his position at the center of both the legal and political spheres was Bush v. Gore in 2000, when Olson spearheaded Bush's legal victory before the Supreme Court.

Olson was also associated with American Spectator magazine during the 1990s, during which it ran a series of stories on the private lives of Bill and Hillary Clinton.

During his confirmation hearing in 2001 for the solicitor general position, Olson denied being involved with the investigation into the Clintons, but the issue likely will surface again if Bush picks him.

Several senior senators - Republicans and Democrats - had stated that Olson would face a tough confirmation battle if he were the nominee, before the majority leader voiced his opposition.

Litt, a partner in the Washington office of Arnold & Porter, stressed that senators have a duty to ask searching questions of Olson during confirmation about specific department activities, such as hiring practices and the role of career prosecutors.

Those issues are particularly important in the aftermath of the U.S. attorney firing scandal that led to Gonzales' departure.

"There has to be a degree of probing," Litt said.