By Carlyn Kolker 

Freedom vs. surveillance 

8/8/12

Post-9/11, U.S. citizens have had to make significant trade-offs between their individual liberty and privacy and the government's need to engage in counterterrorism measures. A ruling by the 9th Circuit Court of Appeals on Tuesday now seems to tip that trade-off in favor of the government.

Back in 2010, Judge Vaughn Walker of the U.S. District Court for the Northern District of California ruled in favor of an Oregon-based Islamic charity after finding that the government couldn't conduct domestic surveillance without a warrant. The ruling was considered, according to a New York Times report, a "blow to the Bush administration's claims that its surveillance program  secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful." But on Tuesday, a three-member panel of the 9th Circuit reversed Walker's order and ruled that the government had legal immunity from the lawsuit brought by the now defunct charity.

The appeals court ruled that "when Congress wrote the law regulating eavesdropping on Americans and spies, it never waived sovereign immunity in the section prohibiting targeting Americans without warrants." In other words, even if Americans had their constitutional rights violated by the U.S. government, Congress never granted them permission to sue the government.

Josh Gerstein writes in his blog at Politico that the U.S. Supreme Court announced in May that it will hear a case emanating from New York's challenge of the constitutionality of the warrantless wiretapping program. Clapper v. Amnesty International USA, which will be heard by the court in October, arises from a lawsuit that challenges the constitutionality of amendments to the Foreign Intelligence Surveillance Act that Congress adopted in 2008. "The amendments significantly expanded the federal government's authority to engage in electronic surveillance that supposedly targets only foreign nationals, but may pick up communications involving Americans," wrote Lyle Denniston on the SCOTUSblog.

Although the Supreme Court will not consider the constitutionality of the warrantless wiretapping program itself, it will rule on "whether groups and individuals fearing that their sensitive conversations will be monitored have a right to go to court to challenge that program."

(Reporting by Suhrith Parthasarathy)

Light relief 

8/8/12

Readers of SCOTUSblog will be familiar with the comic wit of Washington-based appellate lawyer John Elwood. It's little surprise that his writing also finds a home at The Green Bag, "An Entertaining Journal of Law."

For the uninitiated, The Green Bag produces a quarterly journal of what it describes as "short, readable, useful, and sometimes entertaining legal scholarship." (It's also home to a legal take on that deeply prized piece of Americana, the bobblehead.)

This summer, Elwood teamed up with associate Eric White from his law firm, Vinson and Elkins, to provide The Green Bag with a wrap-up of the Supreme Court's October 2011 term. The result is the most enjoyable rundown of the last term that Summary Judgments has come across.

It's a rare talent that can combine a Kanye West quote -- "No one man should have all that power" (the associated footnote reads, "Mr. West was apparently referring to Chief Justice Roberts, possibly based on a pre-cert petition Court leak") -- with a succinct digest of the most important cases of the Supreme Court's term.

Picking a favorite line in the piece is tough given the numerous contenders, but for Summary Judgment's money, this one can't be beat:

"There is a word for people who accurately predicted the Court would uphold the Affordable Care Act's 'Individual Mandate' by a 5-4 vote with the Chief Justice providing the decisive vote and Justice Kennedy in dissent: liars."

(Reporting by Rebecca Hamilton)

Access to lawyers 

8/8/12

The U.S. government can decide when to grant Guantanamo detainees regular access to their lawyers, the Justice Department says.

In a 52-page filing, the Obama administration said prisoners who don't have current or impending habeas petitions can't bring challenges if they are denied continued access to counsel. According to CNN, the filing was the first time the government had spelled out its proposed changes to detainee legal rights. Under its new plan, the U.S. Navy base commander at Guantanamo would have veto power over attorney access and access to classified material, including information gained from interrogations.

The filing is a reply to a motion by four detainees who sought to voluntarily dismiss their habeas cases but at the same time wanted to keep the same access to counsel that they had during litigation, according to Lawfare Blog. Lawyers for the prisoners say they deserve regular access to their clients even if there are no charges or habeas challenge pending.

According to SCOTUSblog, the issue of lawyers' access has been in federal court since the 2008 Supreme Court decision in Boumediene v. Bush gave Guantanamo prisoners a right to test their detention in court. The government's new plan would turn over control to the military.

What will the fate of prisoners' legal rights be? The issue is now under Judge Royce Lamberth in U.S. District Court for the District of Columbia. The prisoners' lawyers must respond to the filing by Aug. 13. A hearing has been tentatively set for Aug. 17.

(Reporting by Caitlin Tremblay)

The ABA, past and present 

8/8/12

The American Bar Association tweeted an interesting question yesterday: "Which ABA president received the Nobel Peace Prize?" The answer can be found on an infographic timeline on its website.

When Summary Judgments checked out the timeline, we picked up a few less flattering factoids as well. The first African-American lawyer membership in the ABA didn't come until 1950. Its first woman president was in 1995, its first African-American president in 2003 and its first Hispanic president in 2010.

But things are looking brighter for the next generation of lawyers. Although racial and ethnic minorities compromised just 10 percent of the legal profession, they accounted for 29 percent of the leadership positions in the Young LawyersDivision in 2005, the last date for which ABA statistics on this are available. And while women currently make up just 30 percent of the legal profession, they accounted for 40 percent of the leadership positions in the ABA's Young Lawyers Division this year.

(Reporting by Rebecca Hamilton)

When leaks can be good 

8/8/12

Proposed "anti-leak" legislation -- including a section on "preventing unauthorized disclosures of classified information" -- passed by the Senate Intelligence Committee may now be reconsidered, after coming under sharp criticism from several sections of the media. As Cora Currier explains in a piece in ProPublica, there's no single law criminalizing the disclosure of such information, with the Obama government regularly deriving prosecutorial power from the Espionage Act. The new bill, introduced by Senator Dianne Feinstein, while not endeavoring to replace the Espionage Act, includes "several provisions that could stymie reporting on national security." If passed in its original form, as Greg Miller reports in The Washington Post, the bill "would make it illegal for the CIA and other intelligence agencies to make analysts available to discuss unclassified national security issues unless the experts are identified publicly," eliminating a "long-standing practice."

This, Bill Keller contends in the opinion pages of The New York Times, is an unwarranted measure: "More often, what 'leaks' have done is inform Americans about what is being done in their name -- the good (successful targeting of militants, cyberdisruption of Iran's nuclear program) and the not so good (warrantless eavesdropping, torture)." Keller highlights a recent report that disclosed the U.S. had successfully planted a double agent within Al Qaeda in Yemen, helping disrupt the suicide bombing of an airliner. Such leaks, while appearing to be irresponsible, "turn out, on closer study, to be something else." The revelations, he writes, "may well have been good for American security: sowing some corrosive mistrust among the fanatics, and creating a potential hero for young Muslims disenchanted with jihad."

David Ignatius, writing in The Washington Post, says the "draconian" bill is not uniformly applied to all branches of the government that disclose classified information unlawfully. "Most damaging leaks don't come from U.S. intelligence agencies. They come from overseas, or they come from the executive branch, or they come, ahem, from Congress. The bill doesn't address the real source of the leaks it seeks to halt," he wrote.

The widespread criticism, as The Hill reports, has caused lawmakers to consider softening the penalties for leaks. "Sen. Feinstein is looking at the comments and is open to changes going forward. She has said the bill is a work in progress," spokesman Brian Weiss is quoted as saying. But as the report points out, the disapproval from the media has not stopped the Defense Department from instituting its own rules to prevent information leaks from the Pentagon. Defense Secretary Leon Panetta has, according to Pentagon spokesman George Little, directed the undersecretary of Defense for intelligence and the assistant secretary for Public Affairs to join together to "monitor all major, national-level media reporting for unauthorized disclosures of Defense Department classified information."

(Reporting by Suhrith Parthasarathy)

Summary Judgments for Aug. 7 

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Summary Judgments for Aug. 3  

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