In his new ACS Issue Brief, University of Chicago Law Professor Geoffrey R. Stone called for a rebalancing of governmental secrecy and accountability. He wrote that “the Bush Administration has tilted too far in the direction of secrecy at the expense of accountability and informed self-governance. Although the danger to the United States is real and not to be underestimated, so too is the danger of an overly aggressive insistence on secrecy.”

After evaluating the right to publish secrets and the right to know secrets, Professor Stone issued four policy recommendations:

1. The executive should only be allowed to classify information when “the potential harm to the national security outweighs the value of the disclosure to public access.” This should be accomplished either through an executive order or an amendment to the Freedom of Information Act.
2. Greater protection should be afforded to national security whistleblowers through enactment of the Federal Employee Protection of Disclosures Act.
3. The state secrets privilege should be clarified and limited through enactment of the State Secrets Protection Act.
4. Journalists should be afforded a qualified privilege through enactment of the Free Flow of Information Act.

The ACS Issue Brief, “On Secrecy and Transparency: Thoughts for Congress and a New Administration,” is available here. Professor Stone will explore government secrecy and public access to information as part of a panel discussion at next week’s ACS National Convention.

Three things you could have done but didn’t and now regret:

• Bought Google stock in 2004 when it was first offered.

• Traded in your giant Land Rover for a Mini Cooper when gas was “only” $2.00 a gallon.

• Written down the date and starting time of the bar exam.

All is not lost. You still have time to eliminate one regret if you register today for the 2008 American Constitution Society (ACS) National Convention. But you need to act now. Registration closes Friday at Midnight. Click here to register.

That’s right. You have just 24 hours left to register for the 2008 Convention, June 12-14, and secure your spot alongside many of the nation’s legal and policy superstars. This year’s ACS Convention, at the Hyatt Regency Capitol Hill, will be two days chock full of the most engaging discussions and interactions about law, justice and public policy issues for today, the next four years and beyond.

If you register now you will be confirmed to:

• Hear Senate Judiciary Chair Patrick Leahy’s keynote address;

• Hear former Deputy Attorney General and U.S. Attorney Eric Holder, Jr.;

• Engage with a luncheon panel of Supreme Court journalists, including Robert Barnes, Linda Greenhouse, Dahlia Lithwick and Tony Mauro, moderated by Tom Goldstein.

But that’s just the beginning.

The Washington Post reported that Khalid Sheik Mohammed and four alleged 9/11 co-conspirators will be arraigned before Military Commission tribunals tomorrow. The article explains that the “conspiracy case could end up focusing as much on evidence of the suspects' wrongdoing as on the legitimacy of the military commissions themselves, with lawyers challenging their legality, the use of statements obtained via coercive interrogation methods, and rules that allow hearsay evidence.”

ACS resources on this topic are available below the fold.

by Gabor Rona, International Legal Director, Human Rights First

Ever since the first detainees began arriving at Guantánamo Bay in 2002, there has been debate about the proper legal framework for detention and trial of suspected terrorists.  Critics of prosecution using the existing civilian criminal justice system have written in support of a variety of alternative approaches: continued use of the Guantánamo Military Commissions, creation of a new “national security court” for terrorism prosecutions, and a new regime of “administrative detention” without charges or trials.

The issue of how to handle terrorism suspects is expected to take on increasing significance as part of a larger debate over the future of the Guantánamo detention system and in the aftermath of the Supreme Court’s ruling in Boumediene v. Bush, a Guantánamo case on which the Supreme Court is expected to rule this month.

Over a year ago, we at Human Rights First noted the absence of any comprehensive study of the criminal justice system’s experience with international terrorism cases. Believing that one need not “fix what ain’t broke,” we decided to conduct such a study in order to determine whether or not repairs, let alone alternatives, are indeed needed. 

by Lisa Graves, Deputy Director of the Center for National Security Studies, and former Deputy Assistant Attorney General in the Department of Justice’s Office of Policy Development (now known as the Office of Legal Policy)

As a former career Deputy Assistant Attorney General at the Justice Department, I read with dismay Attorney General Michael Mukasey's recent speech at Boston College Law School's graduation. The speech is essentially a defense of John Yoo (and David Addington, etc.) without naming names. At its core, I think it signifies what many of us knew before the Senate confirmed Judge Mukasey to replace Alberto Gonzales: first, that the administration would brook no break in its defense of its terrorism policies; and second, that being a judge before becoming Attorney General does not make you any less partisan or ideological.

In a new book, High Performance with High Integrity, Ben Heineman argues that contemporary corporations must couple high performance with high integrity, lest they face legal and ethical catastrophes. He writes that CEOs must drive eight core integrity principles and associated practices deep into business operations, thereby allowing companies to achieve affirmative benefits inside the company, in the marketplace, and in the broader society.

In an interview with Bloomberg.com, Heineman explained how he defines corporate integrity.

"Integrity has three elements. First, robust adherence to the spirit and letter of formal rules, legal and financial. Second, voluntary adoption of global ethical standards that bind the company and its employees to act in its enlightened self-interest. And, third, employee commitment to the core values of honesty, candor, fairness, reliability and trustworthiness -- values which infuse the creation and delivery of products and services and which guide internal and external relations."

In its review, Management Today called the book a "compelling thesis." Ben Heineman, Jr. is a distinguished senior fellow at Harvard Law School’s Program on the Legal Profession and former Senior Vice President-General Counsel of GE.

Here is this week's congressional hearings schedule, with links to the daily calendars for the House and Senate, the weekly House whip information (majority/minority), and the Senate floor schedule.

Of note: On Wednesday, the House Committee on Foreign Affairs will hold an oversight hearing on City on the Hill or Prison on the Bay, Part III: Guantanamo—The Role of the FBI. Also on Wednesday, the Senate Committee on the Judiciary will hold hearings to examine ways to improve the detainee policy, focusing on handling terrorism detainees within the American justice system. In addition, the House Committee on the Judiciary will hold a hearing to examine problems with immigration detainee medical care.

The U.S. Supreme Court issued three decisions today.

Richlin Security Service v. Chertoff: A prevailing party may recover its paralegal fees from the government at market rates under the Equal Access to Justice Act (i.e., what the party paid to its attorneys), and not be limited to “reasonable costs” (i.e., what the firm actually paid for its paralegals). Justice Alito wrote the opinion, joined by all of the justices, although Justices Scalia and Thomas did not sign on to a few sections. The decision is available here; the argument transcript is available here.

U.S. v. Santos: The High Court affirmed the 7th Circuit’s holding that, under the federal money-laundering statute, the term “proceeds” applies only to transactions involving criminal profits, not criminal receipts (i.e., it applies to the amount of money “earned,” not the gross amount taken in). Justice Scalia announced the plurality decision, joined by 3 other justices. Justice Stevens concurred in the judgment only, and thus wrote the controlling opinion. Justice Alito dissented, joined by 3 justices, and Justice Breyer wrote a separate dissent. The decision is available here; the argument transcript is available here. SCOTUSBlog has more on the precedential effect of the various opinions.

Cuellar v. U.S.: The court defined money laundering as requiring more than mere evidence that funds were concealed during transport, but that the purpose of the transport (and not just its effect) was to conceal or disguise the funds’ nature, location, source, ownership, or control. Justice Thomas delivered the Court’s unanimous opinion. Justice Alito wrote a concurring opinion, joined by Justices Roberts and Kennedy. The decision is available here; the argument transcript is available here.

This morning’s Legal Times profiled the Constitutional Accountability Center, a new progressive think tank and public interest law firm that asserts that the “the Constitution’s text and history are on the progressive side.” The organization will be headed by Doug Kendall, founder and executive director of the public interest group Community Rights Counsel, which will become part of the new organization.

According to Kendall, the organization’s theoretical approach is grounded in the scholarship of Akhil Amar, Jack Balkin, Charles Black, and Laurence Tribe.

Kendall discussed whether federalism can be progressive at a panel discussion at ACS’s national convention. ACS hosted a symposium entitled “Keeping Faith with the Constitution in Changing Times,” which discussed modes of constitutional interpretation and resulted in a number of papers, including this one on fidelity to text and principle by Professor Balkin.

District Court Judges Mary A. McLaughlin and James B. Zagel have been appointed to fill seven year terms on the Foreign Intelligence Surveillance Court, replacing judges whose terms expired in May. The court’s duties include reviewing government applications for wiretaps of domestic subjects and physical searches of suspected foreign intelligent agents or terrorists.

A California appeals court ruled that the California Legislature acted unconstitutionally when it passed a statute limiting the amount of medical marijuana that patients could possess. The court concluded that the Compassionate Use Act of 1996 could not be amended without voter approval.

A state affiliate of James Dobson’s Focus on the Family is urging a federal court to invalidate a provision in the Florida Code of Judicial Conduct that requires judges to recuse themselves in cases where they’ve committed themselves to one side of an issue. The Florida Family Policy Council says the provision is an unconstitutional infringement on the free speech rights of candidates.

The group sued the Florida Judicial Qualifications Commission after one judicial candidate refused to answer the group’s questionnaire, which asks candidates to give their opinions on issues including reproductive rights and same-sex marriage, because of the judicial code’s mandate.

Stories

• An examination of due process for immigrants, by Donald Kerwin, Executive Director of the Catholic Legal Immigration Network, Inc.
• A discussion of the importance of civil justice in our legal system, by Andrea Batista Schlesinger, Executive Director of The Drum Major Institute for Public Policy
• An update on President Bush’s use of the pardon power
• A discussion of recent legislation to address copyright issues for “orphan works”
• Coverage of a recent protest at the D.C. Superior Court
• An article about White House allegedly interfering with an EPA decision on tailpipe emissions

Resources

• A new report on terrorism and the court system from Human Rights First
• Information about a new initiative aimed at creating equal opportunities in state jobs and contracts, launched by Massachusetts Governor Deval L. Patrick
• An article about creating public access to legal information, by the Open House Project
• ACS resources related to class action lawsuits and the emerging threat of regulatory preemption

by Kent Greenfield, professor of law at Boston College Law School

[Editor's note: ACSBlog covered the controversy surrounding Attorney General Mukasey's appearance here. His speech is available here.]

Don't ask Attorney General Michael Mukasey to speak at a graduation ceremony if you want a milquetoast speech extolling the virtues of community service, sun screen, or calls to your mother. He came to Boston College Law School, where I teach, last Friday and offered a substantive, and deeply troubling, message to our graduates.

I was among those on the faculty who criticized Mukasey's invitation. I did not want to offer a bully pulpit to a principal defender of the Bush Administration's discredited and embarrassing views on waterboarding.

His speech was more aggressive than I had feared. He went beyond the waterboarding controversy to offer a full-throated defense of those government lawyers who "provided legal advice supporting the nation's most important counterterrorism policies" after 9/11. He clearly included in his defense those Justice Department attorneys who authored the infamous 2002 "torture memo," which told the administration it was not bound by federal or international anti-torture law and defined torture so narrowly that it justified all but the most heinous interrogation techniques.

The U.S. Supreme Court issued three opinions this week.

In the first of two employment law decisions, the Court held 7-2 in CBOCS West v. Humphries that section 1981 of the Civil Rights Act covers race-based claims of retaliation in the workplace. In Gomez-Perez v. Potter, the Court held 6-3 that federal employees are also protected against retaliatory action for complaining about age bias in the workplace.

The U.S. Supreme Court ruled in Riley v. Kennedy that a 1985 Alabama law dealing with county commission vacancies did not alter election law in violation of the Voting Rights Act. The Court noted that the law, which had been struck down by the Alabama Supreme Court when the governor began resuming a practice of appointment to fill commission vacancies, had never actually been in effect. 

The Future of Music Coalition has this blog entry on recently proposed legislation to resolve the copyright question of “orphan works.” As the article explains, orphan works are “copyrighted works [e.g., a piece of music] whose owners are difficult or impossible to locate.”

This is important because, without the permission of the copyright owner, the work cannot be licensed for additional uses. According to an FMC fact sheet, orphan works comprise the majority of the creative works of the 20th century.

by Donald Kerwin, Executive Director of the Catholic Legal Immigration Network, Inc.

Over the course of more than 120 years, two overarching themes have emerged in U.S. jurisprudence regarding the interplay between immigration control and the rights of non-citizens. On the one hand, the political branches of the federal government enjoy “plenary” authority to determine who can enter, who must leave, and who can stay. On the other, constitutional protections extend to “people” or “persons,” including non-citizens.

Not every restriction on immigrants implicates the government’s power to regulate immigration, and our immigration laws must be enforced in ways that respect constitutional norms. As the Supreme Court said in 2001, “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent.”

Most deportation proceedings – now called “removal” – suffer from a fundamental deficiency. Immigrants cannot effectively represent themselves in these complex and consequential proceedings, yet, even in the most meritorious cases, most have no choice but to proceed pro se because of the absence of appointed counsel.

The trial of 35 protestors of Guantanamo Bay prison got underway with some flare at a District of Columbia Superior Court this week.

Many of the protestors, donning orange jumpsuits and taking the names of Guantanamo detainees, are representing themselves before the court against charges of violating a federal law that regulates protesting at the U.S. Supreme Court. The law makes it illegal to “parade, stand, or move in processions or assemblages” around the Court or to display a “flag, banner, or device designed to bring into public notice a party, organization, or movement.” The protestors are part of an organization called “Witness Against Torture,” described as a “campaign to shut down Guantanamo.” They were arrested in January at the Supreme Court during a demonstration to close the Guantanamo prison.

Some of the defendants told the D.C. Superior Court that they would not mount a defense until Guantanamo detainees are treated differently. “We will not exercise our rights when our own country continues to deny the rights of others,” one protestor said. Legal Times’ Tony Mauro reported that another protestor told the superior court that the “Guantanamo Concentration Camp” should be shuttered.

Assistant U.S. Attorney Magdalena Acevedo claimed in her opening statement that the case was not about free speech rights of the protestors or the treatment of detainees at Guantanamo. The case, she maintained, centers on the defendants’ alleged violation of a law that specifies the manner in which they could protest.

Human Rights First released a new 182-page report today that concludes that “the court system is generally well-equipped to handle most terrorism cases.” (An executive summary is available here; key findings are available here). Human Rights First reviewed over 100 international terrorism cases prosecuted in federal courts over the past fifteen years, and determined that "existing laws provide an effective basis for detaining, monitoring, and prosecuting terrorist suspects."

The report dismissed proposals for new “national security courts” to handle terrorism prosecutions, explaining that:

Creating a brand new court system from scratch would be expensive, uncertain, and almost certainly controversial. Indeed, there is the risk that the very same issues now debated simply would be transferred to a new arena for resolution. In our view, before dramatic changes are imposed—such as the creation of an entirely new court or new detention scheme—it is important to take a step back and evaluate the capability of the existing federal courts and the existing body of federal law to handle criminal cases arising from international terrorism.

Building on an executive order issued last year, Mass. Gov. Deval L. Patrick (D) has launched an initiative aimed at ensuring equal opportunity in state jobs and contracts.

Called, the “Access and Opportunities” initiative, Patrick’s plan includes the goals of ensuring that small businesses, owned by minorities and women, are able to compete on a level playing field for state contracts and eradicating state programs and practices that may impinge on the ability of individuals to achieve economic advancement.

“The people of Massachusetts deserve transparency and accountability from their government,” Patrick said in a May 22 statement about the initiative. “By helping to ensure that rights, protections, privileges and responsibilities of citizenship are accessible to all whom live here, this effort will help us to continue to build a better Commonwealth.”

The governor’s statement added that the initiative would help ensure “all individuals, no matter their race, gender, ethnicity, sexual orientation or physical disability, have an equal opportunity to work and contract with state government.”

Patrick’s equality plan buttresses an executive order issued last year that reaffirmed Massachusetts’ commitment to ensuring equal opportunity and promoting diversity in all aspects of state government.

The Washington Post published a brief profile of Ronald L. Rodgers, selected last month by President  Bush to head the DOJ's pardon office. The Post reports that the office "suffered under substantial backlogs after its previous leader was accused of mismanagement and of making racially offensive statements."

Since 2001, President Bush has pardoned 157 people and commuted 6 sentences. By contrast, President Ronald Reagan granted 393 pardons and President Bill Clinton granted 396 during their respective terms. In December, the Los Angeles Times reported that the federal clemency system has the largest backlog of cases in recent history. According to the Post, more than 2,000 requests for commutations and pardons are pending.

Margaret Colgate Love, who was quoted in the article and served as President George H. W. Bush's pardon attorney, wrote this ACS Issue Brief in October 2007 on "Reinventing the President's Pardon Power." She described her Issue Brief as follows:

This essay argues for a reinvigoration of the constitutional pardon power – a reinvention if you will – by a president who has the political courage to use that beneficent power as the Framers intended. It describes the historical use of the power, explains how pardon fell into disuse and disrepute late in the last century, and proposes that pardon can and should be restored to a useful and respectable role in our present-day justice system, and in our national politics.

David Sirota was interviewed in Newsweek about his new book, the Uprising, which discusses the re-emergence of populist politics in America. He recently authored this article in The New York Times Magazine on the intersection of populist politics, energy policy, and the Rocky Mountain West.

John Wonderlich of the Open House Project has an interesting article on the “Legal Information Institute,” which is working to create public access to legal information. He writes:

All around the world, without centralized planning, institutes have sprung up in response to a pressing need: non-lawyers have a real use for legal information, but can’t get it. In countries across several continents, new initiatives online are successfully giving the general public information that they wouldn’t have been able to search before, information that used to be controlled exclusively by the legal information publishing businesses. As businesses, they have a mandate to make profitable decisions, and not necessarily to serve the greater needs of a society. As a result, the public gets locked out of the very laws that control their lives, unable to understand and analyze the legislation or case history that forms the legal structures under which their actions are evaluated by the government.

Not anymore, though. . . . (read more)

by Andrea Batista Schlesinger, Executive Director of The Drum Major Institute for Public Policy.
[Editor’s note: DMI recently released this report on principles to guide the civil justice system, and sponsors this blog.]

The next time someone says that the biggest challenge facing our legal system is how to reduce frivolous lawsuits, you can just point that person to the newspaper. There the headlines will demonstrate that the real problem facing our legal system is the attack on regular people’s legal rights.

Take the Supreme Court’s Ledbetter decision severely limiting access to justice in pay discrimination claims, and Congress’ failure to restore this important right through legislation. Or Jamie Leigh Jones’ tooth-and-nail fight to be able to sue her former employer, KBR, for confining her to a shipping container after she reported being sexually assaulted by a coworker. Or the battle for nursing home patients’ rights and safety—a battle between patients who just want the legal tools to fight abuse and neglect, and the industry which wants to remain protected from the lawsuits that punish ineffectively-regulated safety violations and patient abuse.

The White House allegedly interfered with an EPA decision that would have allowed California to limit tailpipe emissions, according to a House Committee report. The agency’s career staff unanimously supported at least a partial granting of California’s request for a waiver and argued that any other decision would not stand up to court scrutiny.

The EPA’s Administrator purportedly favored granting California’s request. An administration spokesperson denied White House interference.

In a related news analysis, federal courts have limited the Bush administration’s “de facto deregulation of the environment,” giving the administration few legal victories on environmental matters except when it appears before the U.S. Supreme Court. The article noted that “many judges have scolded the administration over its legal tactics and what they said was disregard for the law and science.”