How Appealing Extra

How Appealing Extra

Wednesday, October 17, 2007

© 2007 The Daily Journal Corporation.
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October 17, 2007

AG Nominee and National-Security Expert Defended in an Obscenity Case

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Attorney general nominee Michael B. Mukasey recently picked an obscenity case as one of the 10 most important he litigated during his long and distinguished career.

What social conservatives won't be pleased to know, as they continue to complain that the Bush administration fails to pursue enough of these cases, is that Mukasey wasn't the prosecutor.

Instead, the nominee, whose confirmation hearing before the Senate starts today, was lead counsel for the defendant, Carlin Communications Inc., a company that specialized in "dial-a-porn" services.

Mukasey won the case, successfully arguing 22 years ago in a Utah federal court that the Reagan administration's Justice Department failed to establish that his client committed a crime. Mukasey's victory was upheld on appeal. U.S. v. Carlin Communications Inc., 815 F.2d 1367 (10th Cir. 1987).

Social conservatives have long griped that the Bush administration, while paying lip service to their concerns, hasn't done enough to crack down on obscenity.

They were leery of the Mukasey nomination, according to news reports, in part because liberal New York Democrat Sen. Charles E. Schumer supported his candidacy.

Mukasey's record suggests that conservatives may have had good reason to believe that the nominee, known for his expertise on national-security issues, does not share their views on social matters.

At the time President Bush nominated Mukasey in September, Tony Perkins of the Family Research Council, a conservative group, raised that very issue.

"We hope that Mukasey's dedication to security issues extends to keeping families safe from obscenity and pornography," Perkins said in a statement.

He was not available for comment Tuesday.

If confirmed, Mukasey, who also has represented several New York newspapers in First Amendment cases, is set to strike a different tone from Bush's first attorney general, socially conservative John Ashcroft.

During his tenure, the former Missouri governor and senator famously ordered that a bare-breasted statute in the Justice Department be covered up so that he could not be photographed standing in front of it.

Robert S. Litt, who was a senior official at the Justice Department under President Clinton, said Mukasey would be unlikely to adopt a similar tone.

"I would assume that, coming from New York, he is less likely to be a zealot [on socially conservative issues] than someone from Missouri," Litt added.

Mukasey mentioned the 1985 obscenity case in the questionnaire he returned to the Senate in September as part of the confirmation process.

He was in private practice with New York firm Patterson, Belknap, Webb & Tyler at the time.

Prominent Los Angeles attorney John H. Weston, who specializes in representing companies that produce sexually oriented media, was co-counsel with Mukasey.

During his 40-year career, Weston has argued seven cases before the Supreme Court and testified before Congress.

Weston said he has no recollection of ever having an in depth discussion with Mukasey about First Amendment issues. But he doubted Mukasey would have taken the case if he didn't feel some affinity with the cause.

"Clearly, one would not be involved in a case in which expression is involved in the face of government attempts to limit it unless one had a strong commitment to the First Amendment," Weston said.

First Amendment scholar Ron Collins, of the nonpartisan Freedom Forum, said Mukasey's role in the case hints that he is more of a conservative libertarian than an Ashcroft-style social conservative.

Collins added that the case was interesting because it involved a government attempt to regulate telephone communications.

"It's one of those area that brings together not just libertarian principles but also a rather important business interest," Collins said.

The run-up to Mukasey's confirmation hearing, which could run into Thursday, has been low-key.

Liberal groups have put pressure on Democrats to question the nominee on such issues as torture and surveillance, areas in which they have accused the Bush administration of over-reaching.

Conservative organizations generally have stood on the sidelines.

Mukasey has won broad backing in the Senate so far, largely because of the good will he fostered within the legal community during his 18 years on the federal bench in New York.

He made his name presiding over national-security-related cases, including the initial hearings involving suspected terrorist Jose Padilla, an American citizen held as an enemy combatant after the Sept. 11, 2001, attacks.

Early in his career, Mukasey served as a federal prosecutor in New York.

Weston, for one, believes Mukasey will make a fine attorney general.

"I was so dismayed with what's happened at the Department of Justice," he said. "The idea of having someone of Mukasey's intellect ... experience, and practicality ... is just like a breath of fresh air."

Calls to Mukasey and to the White House were referred to the Justice Department, which did not respond to requests for comment.

Thursday, October 11, 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.

October 11, 2007

Telecom Immunity Firing Up Congress' Surveillance Debate

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - A bruising political battle is developing in Washington over whether Congress should grant legal immunity to the telecommunications companies that allegedly participated in the government's secret surveillance program.

The House Judiciary Committee approved a new surveillance bill Wednesday.

It contains safeguards to prevent potential government abuses, but Democratic leaders pointedly left out any language dealing with immunity, which is a top priority for the Bush administration.

Whether to give the phone companies any relief has now become a major partisan sticking point, with Republicans almost universally calling for immunity.

That won't stop the bill progressing in the House, but experts say the Senate version of the legislation is very likely to include an immunity provision.

The telecommunications companies are pushing for immunity as they attempt to fend off numerous lawsuits over their role in the government's wiretapping program.

U.S. District Judge Vaughn Walker of San Francisco is presiding over the cases.

During Wednesday's committee debate on the bill, several Republicans, including Sacramento Rep. Dan Lungren, spoke out in favor of immunity.

Republicans also attempted unsuccessfully to pass amendments to the bill that would include the immunity language favored by the Bush administration.

Lungren, a former California attorney general, was particularly dismissive of the various groups that filed the lawsuits, which include the San Francisco-based Electronic Frontier Foundation.

He said such organizations believe that they are "going to solve the problems of terrorism with lawsuits."

Adopting a more measured tone, the ranking Republican on the committee, Lamar Smith of Texas, said the telephone companies should not have to pay a price for assisting the government in the war on terror.

"These companies deserve our thanks," he told his colleagues. "They do not deserve a flurry of lawsuits seeking access to documents, the disclosure of which would harm our country."

Democrats, however, refused to budge.

Committee Chairman John Conyers of Michigan maintained his position that he will refuse to address immunity for the telephone companies until he knows more about what they did.

"Until we receive the underlying documents relating to their conduct from the administration - and we have been waiting for more than nine months - we cannot even begin to consider this request," he said.

Furthermore, Rep. Jerrold Nadler of New York insisted the courts are best positioned to decide whether the cases against the companies have any merit.

"That's why we have courts," he said.

The bill would increase judicial and congressional oversight of wiretapping in the United States while giving the administration wide latitude to eavesdrop overseas. It now goes to the House floor.

The Senate has not yet moved on its version of the bill, which could end up being quite different, according to experts following the debate.

James X. Dempsey, policy director of privacy advocacy group the Center for Democracy and Technology, said senators, especially those on the intelligence committee with access to classified information, may be more inclined to provide some relief for the telecommunications companies.

"I just think they are more favorably disposed to the carriers," he said. "They may feel they have more information."

Thursday, October 04, 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.

October 04, 2007

Civil War Era Law May Prohibit Use of Military's Satellites

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - The Bush administration's hopes of using military satellites for domestic law enforcement has hit an unlikely obstacle: a 19th century law passed in the wake of the Civil War.

The statute in question is the Posse Comitatus Act that Congress passed in 1878 in reaction to concerns from former Confederate states that Union forces would seek to supervise elections in occupied areas.

It effectively prevents the military from acting in any law enforcement capacity within the United States.

Illegal Satellite Surveillance?
The Department of Homeland Security was set to launch its National Applications Office this week, but has backed down following complaints from members of Congress that the use of satellites could be illegal. Under the proposed plan, the new agency would process requests from local and federal law enforcement agencies seeking access to high-quality satellite photos that would be helpful to ongoing investigations.

Los Angeles County Democrat Rep. Jane Harman has played a leading role in challenging the administration on the issue.

Some critics point to the fact that the program could violate privacy laws by spying on citizens unlawfully, but others point to the Posse Comitatus Act as an equally troublesome impediment.

Barry Steinhardt, director of the American Civil Liberties Union's Technology and Liberty Project, raised his concerns about the act at a hearing before the House Homeland Security Committee last month.

'Power of the Country'
"We believe the program probably is illegal," he said in an interview this week.

The title Posse Comitatus comes from a Latin phrase meaning "power of the county," which is the term used to describe the power a sheriff had to rouse men to assist him in law enforcement activities. The act is codified at 18 U.S. Code Section 1385.

Steinhardt said the law "clearly prohibits" the government from using military equipment within U.S. borders.

"It seems to us - and many members of Congress - that Posse Comitatus is implicated," he said.

Harman, the chair of the intelligence subcommittee, is one of those who share the ACLU's concerns.

She and Homeland Security Committee Chairman Rep. Bennie Thompson, D-Miss., wrote in a letter to the administration last month that they wanted reassurances about the program's legality, including "an analysis of how the program conforms with Posse Comitatus."

When the Department of Homeland Security announced the delay of the program's launch this week, Harman issued a statement saying she is looking forward to "reviewing the legal documents" on that issue.

Harman was not available for interview Wednesday.

The Bush administration maintains that the program would be legal.

At the House hearing in September, Hugo Teufel, the Department of Homeland Security's chief privacy officer, assured Harman that government attorneys had vetted the issue.

"My understanding is that the lawyers have looked at the Posse Comitatus issue and that it is not violated," he said, according to a transcript.

Teufel added that the department believes the law is not violated as long as any military involvement is "under the direction of law enforcement."

Legal experts not actively involved with the debate are divided as to whether Posse Comitatus is at issue, although they retain concerns about whether the program will violate privacy rights.

Scott L. Silliman, director of the Center for Law, Ethics & National Security at Duke University School of Law, said there are precedents for the government using military equipment for law enforcement purposes.

He cited the government's 1993 raid of the Branch Davidian religious compound near Waco, Texas, as an example.

In that case, some members of the military were present in an advisory capacity, and federal agents used some military equipment, he said.

"The mere use of military equipment by another agency I don't think would violate Posse Comitatus," Silliman concluded.

But Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland, pointed out that military personnel would be operating the equipment if the government was using spy satellites.

He noted that Congress has created some exceptions where the act does not apply, such as natural disasters, but said no such exception exists for the use of satellites for law enforcement.

"A 24-hour eye-in-the-sky to my mind needs a statutory basis to trump Posse Comitatus," Greenberger said.

Congress would therefore need to pass a new exception for the program to be legal, he added.

That is not a step the Department of Homeland Security believes is necessary, at this point.

A spokesman said the agency put the program on hold merely so it could finalize its answers to the lawmakers' questions.

"We believe that with those answers the committee members will be satisfied," the spokesman said.