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.

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.

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.

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.

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.

"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?