Americans traveling internationally have been subject to electronic searches that have resulted in the government's seizure and copying of information from their laptops, cell phones, and BlackBerrys without any suspicion of a crime having been committed, the Washington Post reported. Two San Francisco-based civil liberties groups are filing suit against the government to force it to disclose its policy on border searches, including the "boundaries for asking travelers about their political views, religious practices and other activities potentially protected by the First Amendment."

The Association of Corporate Travel Executives filed a Freedom of Information Act request last year in order to get information from the government regarding what happens to data the government has collected. Susan Gurley, executive director of ACTE, asked, “Is it destroyed right then and there if the person is in fact just a regular business traveler?”

Several corporations are changing their policies to make sure that those traveling do not do so with confidential information on the lap top or even so far as to only travel with “blank laptops” where the hard drive is empty. 

by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First

[Editor's note: Earlier posts from Guantanamo can be found here and here.]

Hamdan to Request Transfer from Solitary Confinement

Guantánamo Naval Base, February 6—When I visited the headquarters of the U.S. Southern Command (SOUTHCOM) in November 2007 – the Pentagon’s combatant command under which U.S. forces at Guantánamo fall – a U.S. military officer there asserted that conditions at Guantánamo had improved significantly over the past year and now compare with the “best-run prisons” in the United States. Perhaps conditions have improved. But the vast majority of Guantánamo’s detainees are still housed in solitary confinement in Camps 5 and 6, under heavily restrictive conditions that may be harming their mental and physical health.

At a military commission pretrial hearing tomorrow, detainee Salim Ahmed Hamdan is expected to request a transfer out of Camp 5, where he has been held most recently for approximately six weeks. Hamdan is alleged to have served as bodyguard and driver for Osama bin Laden. He has been kept in solitary confinement at various points throughout his more than four years of detention at Guantánamo. Before Camp 5, he was held in solitary confinement in Camp 6 for nearly a year. Camps 5 and 6 are both maximum-security facilities where detainees are kept in small, single-occupancy cells with meals served through a slot. The cells in Camp 6 are completely cut off from natural light and air, and detainees are confined to their cells for up to 22 hours per day.

Students, practitioners, and law schools are benefiting from Supreme Court litigation clinics established at several high profile schools, the ABA Journal reported. In light of the increasing influence of experienced advocates before the Supreme Court and its diminished caseload, clinics offer practitioners the benefits of what are essentially “miniature pro bono law firms,” providing the resources necessary to carry cases through the appellate level along with additional opportunities to argue before the high court. Students gain valuable hands-on experience and perhaps a once-in-a-lifetime opportunity to be involved in a Supreme Court case. Law schools gain bragging rights and a recruiting tool to attract talented students.

A number of experienced litigators have led the way in sharing their expertise and time with students. For example, Thomas Goldstein, a partner at Akin Gump Strauss Hauer & Feld and author of SCOTUSblog, volunteers with Stanford Law School's clinic. Joseph Guerra, a partner with Sidley Austin, volunteers with Northwestern.  

Pamela S. Karlan, who founded Stanford's clinic, explains that "for many firms, [volunteering with a clinic is] almost a loss leader. . . . [C]lients go to the firms with the understanding that, although hardly ever does a case go to the Supreme Court, this is a firm that's capable of taking it there if it does."

A new study by researchers at Columbia Law School and the Society of American Law Teachers  reported that nationwide enrollment of African-American and Mexican-American students in U.S. law schools has fallen 8.6% in the past 15 years, and could continue to fall.

Applications to law schools among those minority groups have remained constant since 1992, and law school enrollment overall has continued to rise. Vernellia Randall, a professor at Dayton Law, cited law schools’ reliance on LSAT scores as a cause of declining enrollment. “It’s going to get a whole lot worse before it gets better,” she said.

UPDATED: Here is an ACS briefing on diversity in the legal profession

CIA Director Lt. Gen. Michael Hayden said “waterboarding has been used on only three detainees” in testimony before the Senate Intelligence Committee yesterday. In light of Attorney General Michael B. Mukasey declining to define waterboarding as torture, Human Rights First issued a statement saying that, “Waterboarding detainees amounts to illegal torture in all circumstances.”

At an ACS event on the destruction of the CIA interrogation tapes, Elisa Massimino, Washington Director of Human Rights First, said:

I really think that the reason why those tapes were destroyed is that people who knew what was on them [knew that they contained] . . .  conduct that shocks the conscience under the legal standard and is not permitted. 

Also in response to General Hayden’s statements, Human Rights Watch declared:

General Hayden’s acknowledgment that the CIA subjected three detainees to waterboarding is an explicit admission of criminal activity. Those who authorized these crimes have to be held accountable.

Recently proposed regulations by the Small Business Administration to limit federal contracting set-asides for women-owned business have come under fire as having "no basis in law" and portending "doom" for the seven-year old program, according to the East Bay Business Times. Besides limiting set-asides to four industries, the proposed rule also requires each federal agency to make a finding that it had discriminated against women before setting aside contracts.

Jennifer Brown, Vice President and Legal Director of Legal Momentum, a legal advocacy organization dedicated to securing equality and justice for women, condemned the proposed rule, saying:

It is frankly impossible to imagine any federal agency making a formal determination that it had engaged in sex discrimination in awarding government contracts. [This would not only] embarrass the agency but presumably open it to litigation by past disappointed contractors.

She added that no court decisions require individual agencies to make such findings.

Denise Farris, a commercial construction lawyer, said, "the practical effect of this rule is that virtually no contracts will ever be successful set aside under this program."

by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First

Guantanamo Naval Base, February 5, 2008--After more than six years, the basic questions of who can be tried by military commission, for what charges and under what procedures remain unresolved. Yesterday’s pretrial hearing in Omar Khadr’s case only underscored this point. Yet the U.S. government continues to insist on trying to use these military commissions as an end-run around standards and procedures for criminal justice that have served the United States well for over 200 years.

Four Lessons Learned

Lesson 1: Many long-standing principles of fundamental justice – American or international – seem not to count in Guantanamo (Part A: juvenile justice).

Omar Khadr is accused of killing U.S. Army Sergeant First Class Christopher Speer in Afghanistan in 2002. The government alleges that Khadr threw a hand grenade at the soldier from a house during a firefight with U.S. forces. Khadr was fifteen years old at the time.

If Khadr ultimately is tried by military commission, he may not be the first person ever put on trial for alleged war crimes committed while a minor, but it could well be a first for the United States. The defense argued yesterday that Congress never intended to have these military commissions try juvenile offenders.

DOJ Pride, an organization comprised of current and former Justice Department employees and contractors and their significant others, will now be treated equally with all other DOJ employee affinity organizations under a revised equal-employment-opportunity policy promulgated by Attorney General Michael Mukasey, the Washington Post reported. "The Department has not been a welcoming employer for GLBT individuals" is how the organization described the work environment under Attorneys General Ashcroft and Gonzales in an October 2007 letter to Senator Feingold.

In 2003, then-Attorney General John Ashcroft barred the group from holding its annual pride celebration in accordance with an unwritten policy that prohibited the agency from sponsoring events without a presidential proclamation. DOJ Pride was also prohibited from using email, public bulletin boards, and meeting rooms. Other agencies have sponsored similar events, and former Attorney General Janet Reno had permitted these events under her tenure. The new policy will allow the use of meeting rooms, the advertisement of events, and the annual pride celebration in one of the department's main halls, just like all other employee affinity organizations.

ACS released an issue brief in 2006 on methods to protect LGBT workers in the absence of clear statutory protections.

Abner Mikva, former Congressman, Chief Judge of the District of Columbia Circuit, and White House Counsel, is the subject of a lengthy profile in Roll Call today. (subscription required).  Judge Mikva is a member of ACS's Board of Advisors.

[A]s Land of Lincoln voters cast their ballots for federal candidates today, dominating the Democratic spotlight will be the political legacy of longtime House of Daley agitator Abner Mikva, a former Member of Congress whose two protégés, presidential candidate Sen. Barack Obama and consultant Dan Seals, likely will walk away with wide victories. . . .

The Daily Calumet, a now defunct right-wing newspaper popular with South Side blue-collar workers, once referred to him in print as “Martin Luther Mikva” after the then-Illinois Assemblyman urged the civil rights leader to come to Chicago. King signed a copy of the editorial for him.

"The largest onslaught of employment cases on the docket in years" is how Law.com characterizes the U.S. Supreme Court's grant of certiorari to three retaliation cases. Each case arises under a different civil rights law, with two cases scheduled for argument next week.

ACS will host a briefing on the cases on Tuesday, February 12, at the National Press Club in Washington, D.C. A panel of experts will discuss the issues presented and significance of each case. The panelists are:

• Eric Dreiband, Partner, Akin Gump Strauss Hauer & Feld LLP
• Jocelyn Frye, General Counsel, National Partnership for Women & Families
• Daniel Kohrman, Attorney, AARP Foundation Litigation
• William L. Taylor, Chair, Citizens' Commission on Civil Rights, and Vice Chairman, Leadership Conference on Civil Rights
• Moderator, Michael Gottesman, Professor of Law, Georgetown University Law Center

A purely political process has placed 370 individuals and 112 organizations on a watch list that subjects them to a world-wide asset freeze and travel ban, the Economist reports. Unlike the better known terrorist watch list maintained by the U.S. government, this terrorist watch list is run by the United Nations.

Getting on the UN's list requires a unanimous vote by the Security Council's Sanctions Committee. Getting off the list requires the committee's approval, with the burden of proof on the petitioner. This has created a legal conflict with the European Union.

The EU maintains a watch list, but requires everyone on it to be convicted of a terrorist-related offense (or be subject to prosecution) and be able to challenge the charges. Two cases before the European Court of Justice have challenged the supremacy of the UN Charter over all other laws, with one judge writing an advisory opinion that concluded that where fundamental values are at stake, the European Court may be able to annul the Security Council's measures. A ruling is expected this summer.

In Brief

• Voter ID fraud isn't a big problem, but printing enough ballots may be
• Congress examined the state secrets privilege and is considering amendments to FISA while the White House allowed the Privacy and Civil Liberty Oversight Board to go dark
• President Bush has filled nearly all vacant spots in the Justice Department's Office of Legal Policy while current and former DOJ officials face protests by law students

Here is a comprehensive list of House and Senate hearings. The following links are to the daily calendars for the House and Senate. Here is the weekly House whip information (majority/minority) and the Senate floor schedule.

On Monday, the Senate will resume consideration of amendments to the Foreign Intelligence Surveillance Act. (More info). On Thursday, the Senate Judiciary Committee will hold hearings focused on ensuring public access to the founder's papers. Also on Thursday, the Senate Committee on Finance will hold hearings on the need for accountability and oversight of marketing and sales by Medicare private plans.

by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First

Attorney General Mukasey’s refusal this week to declare waterboarding illegal is still ringing in my ears as I prepare to board a military flight on Saturday en route to Guántanamo Bay. Waterboarding, which dates back to the Spanish Inquisition, causes the physical agony of drowning or suffocation, and creates a fear of imminent death. Our nation’s top military lawyers call it torture. So does former Homeland Security Secretary Tom Ridge. So does the director of national intelligence, Mike McConnell. And so even does Mr. Mukasey, were it to be performed on him. However, when asked about waterboarding others, Mr. Mukasey continues to equivocate.

Next Week’s Line Up

I am traveling to Guántanamo on behalf of Human Rights First to observe two military tribunal hearings. On Monday, February 4, proceedings continue in the case of Omar Khadr, a twenty-one year old Canadian accused of throwing a grenade that killed a U.S. solider in Afghanistan in 2002. On Thursday, February 7, a hearing will be held in the case of Yemeni national Salim Ahmed Hamdan, the alleged bodyguard and driver for Osama bin Laden.

Both men have repeatedly captured headlines. Khadr was a child soldier -- just fifteen years old -- when he was apprehended by the U.S. military, and he has spent more than a quarter of his life at Guántanamo, now in his sixth year there. Hamdan’s challenge to the original military commission process made it all the way to the Supreme Court, where he won.

The military commissions next week will consider the men’s legal motions.  Khadr has moved to dismiss his case on several grounds, including that he’s accused of murdering a soldier -- not a civilian -- and killing a combatant during armed conflict isn’t a crime. Khadr also contends that the other charges filed against him (conspiracy, providing material support for terrorism, and spying) are not crimes under the law of war and were not crimes under applicable U.S. law when he was on the battlefield.

Hamdan has sought access to other Guántanamo detainees who were previously in CIA custody and are currently being held in seclusion at a site called Camp 7.  

In a speech last week, South Carolina Supreme Court Chief Justice Jean Toal defended the court's decision to throw out results of a section the bar exam, allowing 20 additional people to pass.

The controversy arose after the Jim Harrison, chairman of the state's judiciary committee, and Circuit Judge Paul Burch contacted the court after their daughters flunked the exam, although they deny any intent to obtain special treatment. The Court did uncover one examinee that was incorrectly certified as having passed the test. To avoid a potential lawsuit, the Court threw out the section, thereby allowing the daughters, and 18 others, to pass.

Using the example of the infamous convicted Georgia murderer Brian Nichols, Jeffrey Toobin examines the “troubling paradox” of death penalty jurisprudence:  the more heinous a crime and the more incontrovertible the evidence of guilt, the greater the cost to the defendant and, in cases of indigent defendants, the state.

In an unrelated death penalty case in Atlanta, a judge replaced the defendant’s two experienced private defense attorneys with local, less costly public defenders in an effort to solve funding problems. 

In a macabre version of habeas corpus, an Ohio couple has initiated a federal class action because their 30 year old son was buried without his brain, which had been removed by medical examiners.  The issue before the court involves due process questions under the state constitution and who, the next of kin or the state, should make decisions on how to dispose of organs no longer needed for testing. 

Mississippi State Supreme Court Chief Justice Jim Smith called for the appointment of state appellate judges rather than their election, citing increasingly expensive judicial campaigns and an ongoing federal judicial bribery investigation. Law and policy experts across the country have expressed similar concerns.

A recent study found that campaign donations to Louisiana Supreme Court justices by litigants — and not the judge's underlying philosophical orientation — often sway the outcome of cases, reported the New York Times. The Brennan Center for Justice and the Justice at Stake Campaign have compiled extensive information on judicial elections.

Based on its diverse programming and an excellent record of working with ACS’ Student Chapters department, the ACS Chapter at Emory is the latest Student Chapter of the Week for 2008. 

The chapter has brought in speakers from the local U.S. Attorney’s office, Federal Defender’s Office, DeKalb County District Attorney’s Office, the ACLU, a filmmaker and an author.  Because of the excellent collaboration and the breadth of activities, they are our latest Student Chapter of the Week. For more great ideas from other chapters, click here for a list of all ACS events.

Stories:

• Judge Patricia Wald testified on the state secrets privilege.
• A federal judge's top ten observations on sentencing.
• An analysis of whether statements made by U.S. Supreme Court nominees provide any insight into their future behavior.
• Coverage of a presidential signing statement in which the President declared his intent to ignore provisions of the 2008 National Defense Authorization Act.
• A district attorney has hired a defense lawyer to free those wrongly convicted by his office.

Resources:

• ACS announced the judges for its Richard D. Cudahy Writing Competition on regulatory and administrative law.
• ACS released an issue brief by Fatima Goss Graves on Restoring Effective Provisions Against Sexual Harassment in Schools.
• This past week's Congressional hearings.

Some law students, faculty, and alumni of Boston College Law School are speaking out against the administration's selection of Attorney General Michael Mukasey as the law school's 2008 commencement speaker, according to news reports. One alum started a group on Facebook called "waterboarding is torture" to discuss the issue. The name of the discussion group refers to the Attorney General's refusal, during his confirmation hearings, to declare that waterboarding constitutes torture.

In announcing Attorney General Mukasey's acceptance of the invitation to speak at commencement, Dean of the Boston College Law School John Garvey said "It is a singular honor for Boston College to have the Attorney General of the United States as our commencement speaker."

According to the Yale Daily News, 25 Yale law students donned bags so as to appear similar to hooded prisoners held at Guantanamo Bay to protest the presence of Judge Jay Bybee, who, while working for the White House in 2002, approved a memorandum (commonly known as the "torture memo") that narrowly defined torture as the infliction of "physical pain . . . equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

The protestors, pictured here, left upon the request of organizer of the event, and Judge Bybee proceeded to speak for 30 minutes.

Glenn Greenwald analyzes reports of an agreement regarding how Congress will proceed with votes to amend FISA on Monday.

The essence of the new agreement is that most of the [proposed amendments to FISA] will be subject to a simple up-or-down vote -- if they get 50 votes, then they pass -- while several of the amendments will require 60 votes to pass. . . .

There are certain amendments that are not going to get even 50 votes -- including the Dodd/Feingold amendment to strip telecom immunity out of the bill -- and, for that reason, [conservatives] were more than willing to agree to a 50-vote threshold, since they know those amendments won't pass even in a simple up-or-down vote.

But then, there are other amendments which might be able to get 50 votes, but cannot get 60 votes -- such as Feinstein's amendment to transfer the telecom cases to the FISA court and her other amendment providing that FISA is the "exclusive means" for eavesdropping -- and, thus, those are the amendments for which the [conservatives] insisted upon a 60-vote requirement.

Here is a highly technical summary of the rules under which debate will occur.

Senator Feingold, who is sponsoring a number of amendments, explained that issues beyond granting retroactive immunity to telecommunications companies are at play.

This ACSBlog post explores the various legislative approaches to amending FISA.

ACS has a host of background materials on the separation of powers, privacy, and surveillance.

• Read an article by Marty Lederman and David Cole on "The National Security Agency's Domestic Spying Program."
• Listen to Neil Kinkopf, Leslie Harris, David Kris, Robert Turner, and Mary DeRosa discuss "Domestic Surveillance and the Rule of Law."
• Read a transcript of a discussion with Michael Greenberger, Gary Hart, Morton Halperin, and Bruce Fein on "Warrantless Domestic Surveillance: Its Roots and Where We Go From Here."
• Watch Farhana Khera, Alasdair S. Roberts, Suzanne Spaulding, and Wyndee Parker discuss "Building Checks and Balances for National Security Policy: The Role of Congress."
• Watch Kate Martin, Milt Bearden, Deborah Pearlstein, and James Johnson discuss "The Challenges of Gathering Intelligence and Conducting Investigations."
• Listen to former Vice President Al Gore speak on "Restoring the Rule of Law."
• Listen to Senator Hillary Clinton speak about privacy.
• Watch a conversation with Gary Hart, Dawn Johnsen, Doug Kmiec, Harold Koh, Beth Nolan, and Ronald Weich on "Separation of Powers: Restoring the Balance Among the Branches."

Former U.S. Court of Appeals Judge (and ACS Board Member) Patricia Wald testified on the ability of federal judges to administer the state secrecy privilege "in a manner that will not endanger national security" while permitting litigants "to the maximum degree feasible to pursue valid civil claims for injuries" before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.

The time is now ripe for [Congress to legislate regarding the secrecy privilege] in the civil arena; litigants and their counsel are confused and unsure as to how to proceed in cases where the government raises the privilege; the courts themselves are confronted with precedent going in many different directions as to the scope of their authority and the requirements for exercising it.

Judge Wald discussed seven principles to consider regarding enacting of state secrecy privilege legislation.

"Confirmation hearings statements about a nominee's preferred interpretive methodologies provide very little information about future judicial behavior," according to a recently published analysis.

In "An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court," Jason J. Czarnezki, William K. Ford, and Lori A. Ringhand examined statements made by Supreme Court nominees regarding three different methods of constitutional interpretation and their subsequent behavior.

Confirmation hearings are . . . a strategic environment where Senators ask certain questions to please constituents and nominees answer questions to land a job. The nominees’ incentives, therefore, are almost certainly to provide as little information as possible. Moreover, even genuinely held interpretive preferences may make very little difference in directing results in actual cases. Our point, then, is not to generate astonishment at the lack of correlation between nomination statements and judicial performance, but to stimulate thinking on how the confirmation hearings could be better structured to provide more reliable predictors of judicial performance if, indeed, such predictors are a desirable or feasible way of increasing judicial accountability.

Seth Rosenthal argued for litigator-led questioning of Supreme Court nominees in this issue brief released by ACS last September.

(H/T Legal Theory Blog)