Monday, March 30, 2009

Worksite Immigration Raids Put On ICE

This just in from the Washington Post:
Homeland Security Secretary Janet Napolitano has delayed a series of proposed immigration raids and other enforcement actions at U.S. workplaces in recent weeks, asking agents in her department to apply more scrutiny to the selection and investigation of targets as well as the timing of raids, federal officials said.
A senior department official said the delays signal a pending change in whom agents at U.S. Immigration and Customs Enforcement choose to prosecute -- increasing the focus on businesses and executives instead of ordinary workers.
Was DHS Secretary Napolitano for immigration enforcement before she was against it?

Saturday, March 28, 2009

Drug Smuggling Increasingly Land Based

As part of its coverage of the security situation in Mexico, global intelligence clearinghouse STRATFOR has posted an informative and timely analysis of the changing nature of the drug trade in the Western Hemisphere:
While the United States remains the top destination for South American-produced cocaine, and Mexico continues to serve as the primary transshipment route, the path between Mexico and South America is clearly changing.
These changes have been most pronounced in Central America, where Mexican drug-trafficking organizations have begun to rely increasingly on land-based smuggling routes as several countries in the region have stepped up monitoring and interdiction of airborne and maritime shipments transiting from South America to Mexico.
The results of these changes have been extraordinary…Notwithstanding the difficulty associated with estimating drug flows, it is clear that Central America has evolved into a significant transshipment route for drugs, and that the changes have taken place rapidly. These developments warrant a closer look at the mechanics of the drug trade in the region, the actors involved, and the implications for Central American governments — for whom drug-trafficking organizations represent a much more daunting threat than they do for Mexico.
Click here for the complete STRATFOR report.

Update: U.S. trucking companies operating in Mexico or near the southwest border have been warned "to establish special security procedures in light of the surge in drug-related violence along the key commercial corridor."

Enemy Combatants To Get Welfare?

In his first news conference as an administration official, National Intelligence Director Dennis Blair suggested on March 26 that Gitmo detainees may soon be coming to a Social Services agency near you:
During his news conference, Blair also said the Obama administration is still wrestling with what to do with the remaining 240 detainees at the Guantanamo Bay Naval Base, which the president has ordered closed
Some of the detainees, deemed non-threatening, may be released into the United States as free men, Blair confirmed.
That would happen when they can't be returned to their home countries, because the governments either won't take them or the U.S. fears they will be abused or tortured. That is the case with 17 Uighers (WEE'-gurz), Chinese Muslim separatists who were cleared for release from the jail long ago. The U.S. can't find a country willing to take them, and it will not turn them over to China.
Blair said the former prisoners would have get some sort of assistance to start their new lives in the United States.
"We can't put them out on the street," he said.
Blair also said the administration has abandoned waterboarding, but is considering other, unspecified "enhanced interrogation techniques."

Thursday, March 26, 2009

Border Security Initiative Gets Mixed Reviews

On Tuesday, March 24, DHS Secretary Napolitano announced the administration's $700 million southwest border security initiative calling for "additional personnel, increased intelligence capability and better coordination with state, local and Mexican law enforcement authorities." However, some federal and state lawmakers say more needs to be done.
A plan by President Barack Obama to send more federal agents to the Mexican border is inadequate to control growing drug violence in the two countries, an influential U.S. senator said on Wednesday, and he said he would seek $385 million more from Congress.
Senator Joseph Lieberman, chairman of the Homeland Security Committee, said he would try to quickly pass funding to hire 1,600 more Customs and Border Patrol agents and extra immigration officers, build up law enforcement centers and fight human trafficking....
"I don't think it's enough," Lieberman said at a hearing of his committee. "The danger here is clear and present. It threatens to get worse."
More reaction from elected officials here. And Investor's Business Daily also finds the plan wanting, noting that what it calls "a wall of bureaucracy" is an insufficient method for securing the border.

Update: The head of the Border Patrol union is underwhelmed by the plan. And is really underwhelmed.

State Secrets Privilege To Be Tested

The Obama administration now seeks to invoke a more extensive state-secrets privilege then its predecessor, despite what was said on the campaign trail. Sound familiar? A ruling from Judge Vaughn R. Walker could be handed down at any moment:
Civil liberties advocates are accusing the Obama administration of forsaking campaign rhetoric and adopting the same expansive arguments that his predecessor used to cloak some of the most sensitive intelligence-gathering programs of the Bush White House.
The first signs have come just weeks into the new administration, in a case filed by an Oregon charity suspected of funding terrorism. President Obama's Justice Department not only sought to dismiss the lawsuit by arguing that it implicated "state secrets," but also escalated the standoff -- proposing that government lawyers might take classified documents from the court's custody to keep the charity's representatives from reviewing them.
The suit by the al-Haramain Islamic Foundation has proceeded further than any other in challenging the use of warrantless wiretaps, threatening to expose the inner workings of that program. It is the second time the new Justice Department has followed its predecessors in claiming the state-secrets privilege, which would allow the government to exclude evidence in a civil case on grounds that it jeopardizes national security.
See our earlier post on this matter here.

Update: Judge Walker denied the government's motion on April 17.

Wednesday, March 25, 2009

The War on Terror: Just Words?

More changes in the Obama administration's approved lexicon according to the Washington Post:
The end of the Global War on Terror -- or at least the use of that phrase -- has been codified at the Pentagon. Reports that the phrase was being retired have been circulating for some time amongst senior administration officials, and this morning speechwriters and other staff were notified via this e-mail to use "Overseas Contingency Operation" instead.
"Recently, in a LtGen [John] Bergman, USMC, statement for the 25 March [congressional] hearing, OMB required that the following change be made before going to the Hill," Dave Riedel, of the Office of Security Review, wrote in an e-mail.
"OMB says: 'This Administration prefers to avoid using the term "Long War" or "Global War on Terror" [GWOT]. Please use "Overseas Contingency Operation.'"
Riedel asked recipients to "Please pass on to your speech writers and try to catch this change before the statements make it to OMB."
In The Tyranny of Words by Stuart Chase, the author observes that "Language is apparently a sword which cuts both ways. With its help man can conquer the unknown; with it he can grievously wound himself."

Saturday, March 21, 2009

The AIG Bonus Tax: Constitutional?

In full damage-control mode, the U.S. House of Representatives on March 19 to much fanfare rushed through a bill to tax those notorious and controversial AIG bonuses. This legislation, which would impose a 90% tax rate on bonuses paid after Dec. 31, 2008, by any company (not just AIG) that received more than $5 billion in government bailout money, is meant to correct an error or omission by the in the so-called stimulus bill--a massive piece of spending legislation that was also rushed through both chambers by the Democrats without the American people, let alone the lawmakers themselves, having a chance to read it. Apparently Sen. Christopher Dodd (D-CT) or his staff egged on by the Obama administration inserted 1lth-hour language in the stimulus bill that permitted these taxpayer-funded bonuses.

Some legal observers maintain that the House-imposed tax levy violates Article 1, Section 9, of the Constitution (which rules out "bills of attainder or ex post facto laws), while others disagree based on the premise that the courts generally defer to Congress on tax matters.

So what is a bill of attainder anyway? In his outstanding book The Supreme Court, the late Chief Justice William Rehnquist wrote that in a 5-4 decision, the high court struck down--in Ex Parte Garland and Ex Parte Cummings--certain post-Civil War loyalty oaths on grounds they were unconstitutional bills of attainder and ex post facto laws.
The Constitution prohibited both the state and the national governments from enacting either of these things, so the question before the Court was whether the act of Congress or the Missouri statute came within the definition of the prohibited acts. These clauses of the Constitution are not of the broad, general nature of the Due Process Cause but refer to rather precise legal terms that had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them without the benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment. An ex post facto law was a law that punished for conduct that had occurred before its enactment. An early case from the Court, Calder v. Bull, had rather strongly intimated that this provision only applied to criminal laws.
Senate approval is required before the tax measure can become the law of the land. Some senators oppose the bill in its current form on constitutional or other grounds. There is also the issue of freedom of contract; that is, the law generally honors contracts freely entered into by private parties.

Even if the Senate and House ultimately agree on a measure, legal challenges are likely. And who knows how many additional loopholes will work their way into the final bill.

We're not losing sleep by any means over these corrupt Wall Street firms or their fat-cat executives (although we are losing sleep over the remnants of our 401(k)). There is no justification for making the taxpayer pick up the tab for these outrageous bonuses, which amounted to an incredible $165 million in AIG's case. However, leaving aside the constitutionality for a moment, the idea that the government could target the income of certain narrow groups of people sets an unsettling precedent, doesn't it?

Thursday, March 19, 2009

The Terrorist Next Door?

In John Gregory Dunne's novel Dutch Shea Jr., the title character, a lawyer on the edge, has an relationship with a judge nicknamed "Structured Setting Martha." When sentencing perpetrators, the judge would always say "I think you'd be better off in a structured setting."

Unlike garden-variety criminals, Gitmo detainees apparently aren't better off in a structured setting.
Attorney General Eric Holder said some detainees being held at Guantanamo Bay, Cuba, may end up being released in the U.S. as the Obama administration works with foreign allies to resettle some of the prisoners.
Mr. Holder, in a briefing with reporters, said administration officials are still reviewing individual cases of the approximately 250 detainees to determine which will be put on trial and which may be released to comply with plans to close the detention facility by next year.
Presumably the 9/11 plotters currently jailed at Gitmo will be locked up indefinitely. In legal papers released on March 10, the detainees were unrepentant about their involvement in the attack: "The five detainees...have filed a document with the military commission...expressing pride at their accomplishment and accepting full responsibility for the killing of nearly 3,000 people." The full document can be accessed here.

Wednesday, March 18, 2009

Terrorism Redefined as a "Man-Caused Disaster"

DHS Secretary Napolitano said on March 13 that that the administration would "soon" unveil a plan to address the U.S.-Mexico border violence.

In an interview with Newsweek, Napolitano similarly indicated that more law enforcement assets will be sent to the border in the coming weeks: "She said their mandate would be not just preventing drugs and cartel members from entering the United States but stemming the flow of cash and weapons from the U.S. to Mexico."

Yet oddly enough, one of the administrations priorities is to launch an investigation of Sheriff Joe Arpaio.

Separately, in an interview with the German news organization Spiegel, Napolitano suggested that in the new administration the word "terrorism" is going the way of enemy combatant.
SPIEGEL: Madame Secretary, in your first testimony to the US Congress as Homeland Security Secretary you never mentioned the word "terrorism." Does Islamist terrorism suddenly no longer pose a threat to your country?
Napolitano: Of course it does. I presume there is always a threat from terrorism. In my speech, although I did not use the word "terrorism," I referred to "man-caused" disasters. That is perhaps only a nuance, but it demonstrates that we want to move away from the politics of fear toward a policy of being prepared for all risks that can occur.
Meanwhile, the Washington Times is less than enamored with Napolitano's stewardship of the agency:
Department of Homeland Security chief Janet Napolitano seems to be floundering on immigration and national security issues.
Not only is she continuing her quixotic campaign against Real ID, the main federal law safeguarding the integrity of drivers' licenses and keeping them out of the hands of terrorists, but she has also been weak and apologetic about the efforts of Immigration and Customs Enforcement to do its job - removing illegal aliens from the United States.
And congratulations to Justice Sotomayor, who yesterday received Senate confirmation of her appointment. Click here for a review of a book written by one of her new colleagues.

Sunday, March 15, 2009

Enemy Combatants No Longer Exist?

In legal papers filed on Friday the 13th, the U.S. Justice Department declared the term "enemy combatant" null and void and indicated that it will evaluate the detention of individuals at Guantanamo on a case-by-case basis:
In a filing today with the federal District Court for the District of Columbia, the Department of Justice submitted a new standard for the government’s authority to hold detainees at the Guantanamo Bay Detention Facility. The definition does not rely on the President’s authority as Commander-in-Chief independent of Congress’s specific authorization. It draws on the international laws of war to inform the statutory authority conferred by Congress. It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial. And it does not employ the phrase "enemy combatant."… The government’s new standard relies on the international laws of war to inform the scope of the president’s authority under this statute, and makes clear that the government does not claim authority to hold persons based on insignificant or insubstantial support of al Qaeda or the Taliban.
The Washington Post says that this is merely symbolism with no real substantive change:
Though dropping the term "enemy combatant" was a symbolic break from the Bush administration, the practical effects of yesterday's action will not be known for months...Legal scholars and those representing detainees said that dropping the term "enemy combatant" was important but that the rest of the legal arguments may not change much about the nation's detention policy. Robert M. Chesney, an expert on national security law at Wake Forest University, said the changes would affect detainees "at the margins."
"They've changed the label, but the substance has changed only a little bit," Chesney said
Time will tell. The actual legal ramifications of this perhaps cosmetic change in terminology remain to be seen. However, as a practical matter, how does the government plan define "significant or substantial support" when it comes to these holding these actors in prison? We're getting the increasing sense that anti-terrorism and homeland security initiatives going forward will be more like a marketing campaign or perhaps even a law school hypothetical. Moreover, do we want the safety and security of the American people based on vague or theoretical notions of international law (given that international law has itself often been dubbed an oxymoron)? And this particular story about a Justice Department nominee does little to increase the confidence level in the new administration's counter-terrorism efforts.

In his book, Judge Posner suggests the following:
Civil libertarians are not always careful about history, perhaps because most of the rights they defend have no solid historical anchor, or perhaps because the lawyer's attitude toward history is a manipulative one (a tendency as pronounced on the legal Right with its "originalist" fantasies, as on the Left)…Civil Libertarians neglect genuine lesson of history: than the greatest danger to American civil liberties would be another terrorist attack on the United, even if it was on a smaller scale than the 9/11 attacks…
More important than the one-sidedness of the civil libertarians' historical narrative is the assumption that the past is a good guide to the future…The past does not include attacks on the United States by terrorists wielding nuclear bombs, dirty bombs, biological weapons capable of killing millions of people, or other weapons of mass destruction…We must not emulate the Bourbon kings, who learned nothing and forget nothing. Or, as another saying goes, if we want things to say the same, things will have to be different. Those who believe that since we survived decades of confrontation with the Soviet Union unscathed we have nothing to fear from a handful of terrorists are looking backward rather than forward.
Just as an aside, the inclusion by Judge Posner of that fascinating old saying about things must change to stay the same serves as a key line in the classic Luchino Visconti epic The Leopard starring Burt Lancaster as an Italian prince in a time of great social and political upheaval in that country known as the "Risorgimento." That important line of dialogue in the film was in turn taken from original novel authored by Giuseppe Tomasi Di Lampedusa.

Thursday, March 12, 2009

NFL, Others, Immune from Terror-Related Lawsuits

Remember the 1977 thriller Black Sunday, about a terrorist plot at the Super Bowl? If not, the film is out on DVD, and it does show up on TV occasionally--although it's certainly not in heavy rotation. Fortunately, homeland security officers do a great job in locking down the real Super Bowl venue each year, but in the highly unlikely event that such a horrible thing occurs during a pro football game, the lawyers would have a field day suing everyone from the hotdog vendor on up. Well, not exactly:
The National Football League and dozens of other companies and organizations have won exemption from lawsuits under a post-9/11 law that prohibits them from being sued if terrorists attack a site they are protecting.
The law, called the SAFETY Act (Support Anti-terrorism by Fostering Effective Technologies), aims to help security providers by guaranteeing they will not pay any claims that terror victims might file after an attack.
Qualifying for the legal protection against liability lawsuits (i.e., legal "immunity") requires Department of Homeland Security approval of the effectiveness of the organization's anti-terrorism measures.

Gitmo Alumni in Afghanistan

Another former detainee re-emerges according to the AP:
The Taliban's new top operations officer in southern Afghanistan had been a prisoner at the Guantanamo Bay detention center, the latest example of a freed detainee who took a militant leadership role and a potential complication for the Obama administration's efforts to close the prison. U.S. authorities handed over the detainee to the Afghan government, which in turn released him, according to Pentagon and CIA officials.

Wednesday, March 11, 2009

Border Chaos Could Destabilize U.S. and Mexico

News of the escalating violence at our southern border is starting to filter into the mainstream media as evidenced by this report from the Star-Telegram of Fort Worth, Texas:
The state and federal governments have prepared contingency plans to deal with "spillover violence" from across the border as Mexican troops clash with ruthless drug cartels terrorizing the United States’s southern neighbor.
"Anything you can think of that’s happened in Mexico, we have to think could happen here," said Steve McCraw, Gov. Rick Perry’s director of homeland security. "We know what they’re capable of."
A crackdown by Mexican President Felipe Calderon has turned the City of Juarez, just across the border from El Paso, into a war zone as federal troops battle feuding cartels.
The Armed Forces Journal warns that situation is even more dire:
Largely invisible to most Americans, just to the south, the security situation is worsening as a result of an intense conflict between the Mexican government and domestic drug cartels — and even among the narco-gangs themselves. Some observers have characterized the fighting in Mexico as a low-grade civil war. Worse yet, by many estimates, the violence is escalating — and getting increasingly grisly...Drug trafficking organizations already control stretches of the Mexican side of the border, which according to some experts could bring the Mexican government to its knees in the coming years. Worse yet, it also has the potential of spilling north across the border — in an ever bigger way.
The AFJ indicates that the Mexican court system is a major problem because of "bribery, reluctant judges, lack of investigative resources and overloaded courts."

Yesterday CNN aired this report on the situation along with an update on the status of the border fence.

Update: Administration officials tell Congress on March 12 that sending troops to the border is an unlikely last resort.

Tuesday, March 10, 2009

Federal Judge Posner on the War on Terror and Constitutional Law

We recently had an opportunity to read Judge Richard A. Posner's 2006 book Not a Suicide Pact: The Constitution in a Time of National Emergency. The title refers to Supreme Court Justice Robert Jackson's famous 1949 statement in his dissenting opinion in Terminiello v. City of Chicago, the gist of which is that the unless the high court applied common sense to legal doctrine, the Constitution might pave the way for the undoing of the United States.

Judge Posner writes that his book is about "the marginal adjustments in such rights that practical-minded judges make when the values that underlie the rights--values such as personal liberty and privacy--come into conflict with values of equal importance, such as public safety, suddenly magnified by the onset of a national emergency."

In his book, Judge Posner first reviews general constitutional principles, and then takes a provocative look at the constitutional issues that have emerged in the post-9/11 world. The general thesis is that the U.S. is faced with an ongoing national emergency owing to terrorism and possible WMD attacks, and that our democracy must accordingly arrive at a pragmatic balance between personal liberty and community safety. This concise 158-page book, skillfully written in plain, approachable language, predates some of the more recent legal and legislative enactments concerning the war on terror, but it is nonetheless a highly valuable, informative resource.

A prolific writer and highly respected legal scholar who serves on the Chicago-based U.S. Court of Appeals for the Seventh Circuit, Judge Posner achieved prominence in part as a proponent of the law and economics movement, a philosophy that evaluates incremental legal and public policy changes on the basis of costs vs. benefits. This analytical framework is even more controversial to some as applied to national security issues. In the book, the judge argues that "A minor present curtailment of civil liberties, to the extent that it reduces the probability of a terrorist attack, reduces the likelihood of a major future curtailment of those liberties."

Although the judge comes down on the side of giving the government more authority for national security and public safety, he can't necessarily be pidgeon-holed as a "national security hawk" (his term). For example, he supports habeas corpus rights for enemy combatants. Nor does Judge Posner appear to ascribe to the strict constructionist or original intent philosophy of constitutional analysis.
Much of the debate over how much force the government can employ against terrorists, how much snooping it can do, and so forth, without violating the Constitution, has revolved around the question of whether the United States is at war with terrorists or whether they are simply a particularly noxious form of political criminal. I argue that the terrorist threat is sui generis--that it fits the legal category neither of "war" nor of "crime." It requires a tailored regime, one that gives terrorist suspects fewer constitutional rights than people suspected of ordinary crimes, though not no rights.
[the Latin term sui generis generally means a class of its own or unique in its characteristics]

Civil disobedience is a term usually associated with protesters in the street. Judge Posner supports coercive interrogation, and suggests that U.S. security officials engage in "civil disobedience" of their own to obtain critical information from terror suspects in extreme situations such as a ticking time bomb scenario:
Many consciences will not be shocked at the use of torture when it will ward off a great evil and no other method would work quickly enough to be effective. The question arises whether we should relax the prohibition against torture in such a case or trust public officers to perceive and act on a moral duty that is higher than their legal duty. I favor the latter course.
Posner notes that President Lincoln engaged in this form of civil disobedience when he suspended habeas corpus during the Civil War.

To allay privacy concerns about electronic surveillance, the judge also advocates a new rule designed to forbid the intelligence services and the Justice Department from using intercepted communications for prosecuting most non-national security crimes:
It is more important that the public tolerate extensive national security surveillance of communications than that an occasional run-of-the-mill crime go unpunished because intelligence offers were not permitted to share evidence of such a crime with law enforcement authorities…If such a rule (with its exceptions) were in place, I believe the government could, in the present emergency, intercept all electronic communications inside or outside the United States, of citizens as well as of foreigners, without being deemed to violate the Fourth Amendment, provided that computes were used to winnow the gathered data, blocking human inspection of intercepted communications that contained no clue to terrorist activity.
In chapter one, Judge Posner suggests that constitutional rights are mainly created by the way the U.S. Supreme Court interprets the constitutional text rather than via the rights stated in the text of the Constitution itself. In his conclusion, he writes that "...the Constitution is not the sum total of civil liberties. Statutes and treats provide additional protections. Constitutional law is a looser garment, continually rewoven by Supreme Court justices mindful (one hopes) of the need to balance security and liberty concerns as the weights of these concerns shift.”

There is a lot more to this thought-provoking book, and we highly recommend it for your consideration. Agree or disagree, you will gain a greater understanding of the issues involved, and as such, this work is a unique addition to the public security vs. personal privacy debate.

Sunday, March 8, 2009

Obama Defends Bush DOJ Lawyer

In yet another example of the stark difference between campaigning and governing, the White House has decided to provide legal backing to former Justice Dept. official John Yoo, a man often decried by civil liberties absolutists within and without the administration:
The Obama Administration has decided to press on with the Justice Department's defense of a civil lawsuit brought against John Yoo, a former department lawyer attorney whose controversial legal opinions have been roundly criticized by many members of Obama's legal team.
At a court hearing Friday morning in San Francisco, government lawyers said that despite the change in administration, there has been no change in Yoo's government-run legal defense against a suit brought by Jose Padilla, an American citizen who spent more than three years in a Navy brig after being designated as an enemy combatant.
However, in what would be a highly ill-advised legal move, a London Telegraph writer claims that Obama is considering granting the International Criminal Court jurisdiction over U.S. military personnel and government officials.

Incidentally, the British media are doing a much better job than their American counterparts in reporting about the unprecedented number of Obama nominees who have fallen by the wayside. And another one bites the dust.

Saturday, March 7, 2009

Rudy Talks Justice, Politics, and Waterboarding

Former NYC mayor and 2008 GOP presidential candidate Rudy Giuliani spoke at the University of Connecticut School of Law on Thursday, March 5, as part of panel discussion about the U.S. Justice Department, Inside the DOJ.

We attended the event which was held at the law school's Hartford campus.

Joining Giuliani, who by the way speaks without a teleprompter, on the platform were former Connecticut U.S. Attorney (and former chief of staff to then-Attorney General Alberto Gonzales) Kevin O'Connor, and former assistant U.S. attorney Marc Mukasey--the son of the former Bush AG Michael Mukasey.

O'Connor recently joined the Connecticut office of Giuliani's international law firm, Bracewell & Giuliani, so to some degree the event might have been a marketing ploy. Mukasey works for the firm's NYC office.

In his introduction, Law Dean Jeremy Paul mentioned that "we run a non-partisan law school" (which, given the ideological makeup of the faculty, is an interesting statement), but that his participation at the event nonetheless posed difficulties for him. But it turned out he was making a joke about the "partisan" rivalry between Red Sox and Yankees fans--Giuliani being well known as Yankees booster. Giuliani got some laughs when he said he thought the panel was assembled to discuss steroids.

At the outset, the moderator asked Giuliani and O'Connor about any future political aspirations. Both men have been touted as prospective candidates for governor or U.S. Senator in their respective states. O'Connor gave a Sherman-like statement disavowing any run for office owing to family reasons, but Giuliani was noncommittal and left the door open, adding that he hasn't thought about it--which leads us to believe that he is a likely gubernatorial candidate in 2010!

In his opening remarks, Giuliani mentioned that he worked for the Justice Department in various capacities for some 18 years, both as U.S. Attorney in NYC and in the Washington DC Justice Department headquarters, and that he got in right after Watergate.

He explained that the Justice department is the "home office" of the government's legal department. It's a massive agency that handles both civil and criminal prosecutions. Giuliani maintained the Attorney General has the most complex job in the president's cabinet--the AG is involved in just about every single issue confronting the Executive Branch, that is, whether the Executive Branch can act, and how it should act. The Justice Department is the law firm of the U.S. Government (but not necessarily the president), Giuliani said, with criminal prosecutions only comprising about 20% of the workload.

As U.S. Attorney, O'Connor said the most important thing you do is hire good people. As political appointees, U.S. attorneys come and go, but assistant U.S. attorneys often stay in the DOJ for life.

Mukasey said that his proudest professional moment was representing the United States in court. It is an exhilarating feeling to announce in court that you are representing our country. He later said that the lawyers on both sides of cases he's handled, both on the criminal and civil side, get along very well on a personal level, despite the high-stakes litigation. The political views of the attorneys, if any, never come up, he said. U.S. attorneys "strike hard blows, but not foul blows," he said. The job of an assistant U.S. attorney is to "do justice," and then let the chips fall where they may. "Don't do a touchdown dance," he advised.

Speaking of the U.S. attorneys who serve at the pleasure of the president and can be removed at any time, former AG Gonzalez got into trouble in what appears to us as a media-hyped "scandal" over the firing of nine of the 94 U.S. attorneys during the Bush administration. Some scrutiny also occurred over so-called political hiring practices in the Justice Department (as if other administrations--particularly the current on--have not politicized the DOJ and other agencies). O'Connor served as the point man in the Congressional investigations. Perhaps playing to the audience, O'Connor called it a "huge scandal," but that only seven or eight DOJ functionaries tried to politicize the department.

Giuliani noted that the president has the right to change the policy decisions of the DOJ; the problem arises in any interference with individual cases. Both O'Connor and Giuliani noted that the president and the AG define policy, and policy in turn defines how the agency uses its resources. Those policy differences can be grounds for legitimate removal. Giuliani opined that DOJ had a history of nonpartisanship but things changed with the Supreme Court nomination of Judge Robert Bork. Judge Bork was "sabotaged" and "humiliated," Giuliani said, and it has been tit for tat between the Democrats and Republicans since then--particularly over the confirmation of judicial appointees. It occurred to us that the politicization of the war on terror might also date back to the contentious Bork hearings.

The panel also fielded a question about the rocky 2007 confirmation hearings for AG Mukasey, particularly when questioned about the administration's waterboarding policy. Mukasey refused to state unequivocally that waterboarding was illegal, which put his confirmation in some jeopardy (although he was later confirmed narrowly). Marc Mukasey defended his father's Senate testimony, saying it would be inappropriate for the nominee to second guess internal Justice Department legal memos that he hadn't read (memos that the administration had rescinded anyway). Mukasey said his dad paid a political price for taking that position.

Giuliani suggested that it is unclear whether waterboarding is illegal or how to define (at least in legal terms) the technique. Exigent circumstances determine whether it is illegal or whether it should carried out on a detainee. Giuliani also pointed out that Congress had three opportunities to make waterboarding explicitly illegal and failed to do so. The former mayor also mentioned that certain U.S. military personnel (e.g., special forces) undergo waterboarding as part of their training. Giuliani agree that the AG Mukasey did not get credit in the media or in Congress for his principled position.

[For the movie buffs out there, waterboarding is portrayed in the World War II yarn Black Book, but whether the Nazis actually used that technique or it was depicted in the film as a political "statement" by director Paul Verhoeven, is unclear.]

The panel also responded to a question about the effectiveness or lack thereof of the Securities and Exchange Commission given the corruption on Wall Street. Both O'Connor and Mukasey served in the SEC as staff attorneys. O'Connor conceded that the SEC has some explaining to do, but the agency's culpability is overblown. Anger at the good public servants in the agency is misdirected, he said. They--i.e., the SEC lawyers and accountants--weren't taking any money from anyone (although it occurred to us that the SEC's ineffectiveness did result in money being taken from innocent investors). He indicated that unraveling sophisticated transactions is a very difficult task, and that SEC attorneys are typically overmatched by their adversaries. Many of them are fresh out of law school, he said.

At present, the SEC can only levy fines, and the panel agreed that the SEC needs to be more proactive, but the agency also needs to be vested with the power to throw people in jail, and that the process for obtaining SEC subpoenas needs to be streamlined. Instead of getting rid of the SEC, the panel suggested that the SEC needs to be made more effective, with added staff resources along with the ability to impose more penalties and remedies. The panel agreed that the blame game is not getting us anywhere.

In terms of ethics generally in the practice of law (an oxymoron?), Giuliani said that you have to do the best you can based on your experience, especially with questions of enormous complexity. When faced with an ethical dilemma or moral crossroads, Giuliani cited his mentor, Judge Lloyd F. MacMahon, who said that if you have to think about and talk about it too much, don't do it. Giuliani added that the legal practitioner needs to analyze a situation, and get advice, but in a difficult or ambiguous situation, it's best to err on the side of not doing it.

Click here for an additional report on this event.

Bonus coverage: Overheard this factoid from someone sitting behind us in the audience before the event started. Star Trek, according this person, was an allegory for the Cold War. The Klingons were the Soviet Union, and the Romulans represented China. Discuss.

Wednesday, March 4, 2009

"Foiling" Terrorism

Foyle's War is a British series airing on American TV and available on DVD that follows the exploits of the soft-spoken yet dogged police detective Christopher Foyle who investigates crimes on the homefront during World War II.

According to the Wikipedia summary...
The programme is set during the Second World War in Hastings, England, where Detective Chief Superintendent Christopher Foyle (Michael Kitchen) attempts to catch criminals who are taking advantage of the confusion the war has created...Foyle, a widower, is quiet, methodical, and very observant and is frequently underestimated by his foes. Many of his cases concern profiteering, the black market, and murder. Foyle often comes up against high-ranking officials in the British military or intelligence services who would prefer that he mind his own business, but he is tenacious in seeking justice….The series is notable for its attention to historical detail and the drama is frequently moved along by historical events of WWII.
In addition to the historical backdrop, strong acting and set design are hallmarks of the series. Typical of British mysteries, the storylines unfold at a leisurely pace--which is not everyone's cup of tea, shall we way.

We've also noticed a jarring and inappropriate modern political correctness grafted onto some of the stories.

But an exchange at the end of a season three episode called They Fought in the Fields seemingly takes a different approach.

The naive (and perhaps well meaning) commander of a POW camp, Major Cornwall, who had been undermining an investigation by Foyle, feels the best way to get information out of captured soldiers is to be a nice guy, to adopt a friendly approach, which he says has yielded results. He tells Foyle that he tries to see the best in people, and that he spent a year in Heidelberg before the war during which he found the Germans to be civilized and gracious. An apologetic Cornwall admits all this at the end of this particular episode, after it is too late to "foil" the treachery of one of the POWs, a Luftwaffe lieutenant.

Foyle asks the major if he ever played football (i.e., soccer) against them. Cornwall says cricket is his game, but there is a dearth of cricket pitches in Heidelberg. Foyle responds that he played on a police soccer team in that played in Germany in 1936. The German team that met them--and wined and dined them--was very smart, hospitable, gracious, and civilized, Foyle says. The two groups partied all night long. When the British team got to the field the next morning, severely hung over, the found that the opposing team "that ran out to play us were 11 totally different men who'd be in bed before 10, [and] not touched a drop." The British team lost badly, a "complete stuffing" as Foyle puts it.

Foyle concludes: "They use different rules. But if we don't want to lose this war, I think first of all we've got to be sure about what game they're playing. And you're right - it's not cricket."

Good advice for the war on terror and protecting our national security?