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Appeals court may let NSA lawsuits proceed
Topics | 2008/04/07 15:07

A federal appeals court on Wednesday appeared unwilling to end a pair of lawsuits that claim the Bush administration engaged in widespread illegal surveillance of Americans.

The 9th U.S. Circuit Court of Appeals repeatedly pressed Gregory Garre, the Bush administration's deputy solicitor general, to justify his requests to toss out the suits on grounds they could endanger national security by possibly revealing "state secrets."
Judge Harry Pregerson wondered: "We just have to take the word of members of the executive branch that it's a state secret. That's what you're saying, isn't it?"
A moment later Judge Michael Hawkins suggested that granting the request could mean "abdication" of our duties.

At the heart of both cases is the U.S. Justice Department's argument that any lawsuit claiming illegal activity on behalf of AT&T and the National Security Agency--even if the eavesdropping is known to have taken place--cannot proceed because it could let enemies and terrorists know how the government's surveillance apparatus works.
It "could compromise the sources, methods and operational details of our intelligence gathering capabilities," Solicitor General Garre said.

In the first case, called Hepting v. AT&T, the Electronic Frontier Foundation and other attorneys had filed a class action lawsuit against AT&T saying it unlawfully opened its networks to the NSA. Last summer, U.S. District Judge Vaughn Walker in San Francisco ruled that it could proceed.

The second case, Al-Haramain Islamic Foundation v. President Bush, is unique: it involves a classified document that the U.S. Treasury Department accidentally turned over to an attorney for the foundation. The top-secret document showed, according to the group, "Al-Haramain and its attorneys had been subjected to warrantless surveillance in violation of (federal law)." They responded by filing another lawsuit in February 2006 alleging violations of the Foreign Intelligence Surveillance Act.
The Justice Department says the Al-Haramain case must be thrown out because it, too, could endanger state secrets. The foundation's attorneys must not even be allowed to refer to it, government attorney Thomas Bondy said Wednesday, because their "mental recollections of the documents are also out of the case."

"I'm feeling like Alice in Wonderland," replied Judge M. Margaret McKeown.
While no decision was announced Wednesday, and a final ruling might not be reached for months, a three-judge panel of the 9th Circuit pressed prosecutors to justify asking that the case be dismissed based on declarations submitted by senior Bush administration officials. (All three judges are Democratic appointees.)

"The bottom line here is that once the executive declares that certain activity is a state secret, that's the end of it?" Pregerson asked. "No cases, no litigation, absolute immunity? The king can do no wrong?"

The conversation occasionally took bizarre turns, such as when the attorneys and the judges knew the contents of confidential documents they had all reviewed--but could not discuss those contents in a courtroom with reporters and the public in the audience.
Another odd twist was the repeated reference to the Bush administration's public claim that there is no widespread surveillance of Americans--meaning a kind of suspected electronic dragnet that would permit the NSA to sift through a large chunk of Internet communications. Last April, retired AT&T employee-turned-whistleblower Mark Klein described just that kind of arrangement at an AT&T switching facility in downtown San Francisco on Folsom Street.

But administration officials have never been willing to deny a dragnet program in a signed affidavit made under penalty of perjury. That might derail the lawsuit against AT&T for now, but on the other hand, it could carry threat of criminal prosecution if the affidavit turned out to be a lie.

"What would be wrong with a simple affidavit denying that the government has intercepted the telephone conversations of American citizens without a warrant," Hawkins asked.

In December 2005, after The New York Times reported the existence of the NSA eavesdropping program, the president replied by saying: "I authorized the National Security Agency to intercept the international communications of people with known links to al Qaeda and related terrorist organizations."

McKeown suggested this wording for an affidavit: "Without admitting or denying that the government has a relationship with AT&T, I, Mr. or Mrs. So-and-So from the executive branch under oath, essentially affirm what President Bush said." The judge also said that because the government denies the dragnet program "and says they do not do any such surveillance without a warrant and there is no such program," the affidavit should be no problem.

Garre replied that such an affidavit is unnecessary because the president has already made a public statement.



Ohio Settles Lawsuit Over Youth Prisons
Court Issues | 2008/04/04 15:07

The state of Ohio plans to pour money and resources into its juvenile detention system after settling a lawsuit alleging serious violations.

The state is promising $30 million in additional annual spending and the hiring of more than 100 extra guards. It also will hire additional psychologists, nurses, social workers and teachers, improve its off-hours programs for children and revamp its program for sex offenders.


A report released late last year found Ohio's youth prisons are overcrowded and understaffed and fail to educate children behind bars or keep them safe. It also found cases of excessive use of force.

The settlement ends legal challenges that began in 2004 with allegations of excessive force being used against girls at the Scioto Juvenile Correctional Facility.

A judge must still approve the settlement filed Thursday in federal court in Columbus.

The state is satisfied the agreement will bring much-needed change to the system, said Tom Stickrath, director of the Youth Services Department. He said the extra funding is a strain during tight budget times but eventually could lead to lower costs as the system improves.

The annual budget for the system, which serves about 1,700 children, is about $260 million.

"It's certainly a long-term investment in doing the right thing for the youth in our system, for the juvenile courts across the state and ultimately for the citizens," Stickrath said in an interview.

"It's a difficult time to be looking at any extra resources but I think it's a needed investment in our future," he said.

A veteran civil rights attorney who helped coordinate the lawsuit commended the state for settling.

"The plan safeguards public safety while working toward more youth being served in smaller, more appropriate, community-based facilities," said Cincinnati attorney Alphonse Gerhardstein.

In 2004, lawyers with the Children's Law Center of Kentucky sued the state over allegations of excessive force being used against girls at the Scioto Juvenile Correctional Facility. Around the same time, the Department of Justice launched an investigation over the same allegations.

Twelve employees at the Scioto facility were eventually charged with abusing and endangering inmates and in early 2005 the agency's director was forced to resign.

A year ago, the Children's Law Center and other groups updated the 2004 suit to include the entire agency, saying the state had made inadequate progress on its promises to address their concerns.

In addition to overcrowding and excessive force, a report found that guards regularly place children in solitary confinement for inappropriately long periods of time, a practice that "is unconstitutional on its face" and should cease immediately.



Climate Work Heating Up at Law Firms
Topics | 2008/04/04 15:01

Kenneth Berlin and his team at Skadden, Arps, Slate, Meagher & Flom have been working on climate-related matters for years. He headed the Justice Department's Environmental and Natural Resources Division, chaired the Environmental Law Institute and has shepherded a mountain of environmental litigation for major corporations.

Skadden hadn't needed a climate change group before: It simply tapped environmental, energy regulatory, intellectual property and tax lawyers to help out when the need arose. Partners, however, at the nation's highest-grossing law firm have changed their minds: This week, they were scheduled to launch a 23-lawyer group specifically devoted to climate change issues.

"The whole area is changing," says Berlin, who will head the group. "The area is developing so quickly now that it now merits a practice area."

The firm is joining an ever-growing list of major firms that are creating a climate change brand. Akin Gump Strauss Hauer & Feld, for example, debuted its climate change practice in November. Vinson & Elkins announced its climate change practice last spring, and many others have organized groups in recent months. In fact, 26 Am Law 100 firms tout some form of a climate change practice. A handful of others hype clean technology groups.

"Climate is hot in a way that nothing else has been before," says Latham & Watkins partner Robert Wyman Jr., the firm's lead counsel for Clean Air Act matters. "We're talking about transforming the energy and transportation economy."

Unlike other fleeting law firm trends -- remember those Y2K practices? -- there appears to be real work to be done here. Heightened regulation of companies releasing carbon dioxide and other greenhouse gases has led to a host of new legal questions. Although Congress is still working out federal emissions limits, corporate clients are facing state and regional emissions caps as well as standards outside the United States set by the Kyoto Protocol. The work, mainly, falls into two categories: helping companies navigate emissions caps issues and litigating disputes arising from emissions limits or from problems caused by greenhouse gases.

That said, there's still a marketing ploy at work: "Climate change" groups, primarily, rely upon lawyers from existing practice areas, such as corporate, energy, tax and, of course, environmental. Labeling a multidisciplinary group as a "climate change practice" is shorthand for clients who are genuinely fearful about regulation and litigation. "I don't think there's a single Fortune 100 company who has not had a board-level conversation about their exposure to climate change regulation," says Todd Glass, chair of Heller Ehrman's energy practice and a partner in the climate change group.

Naturally, there's money to be made here, too.

Covington & Burling's Rubén Kraiem, who co-chairs the firm's carbon markets, climate change and clean technology practice, says the 17-lawyer area has generated $1.5 million annually since its inception in 2005.

Kraiem estimates that at least 250 of the hours Covington lawyers spent for clients Kohlberg Kravis Roberts & Co. and Texas Pacific Group on their $45 billion leveraged buyout of TXU Corp. in 2007 were billed as climate change work. (Partner Stuart Eizenstat is the Covington group's other co-chairman. During the Clinton administration, Eizenstat led the U.S. delegation that negotiated the Kyoto Protocol.)

During the TXU buyout, investors became concerned about opposition from environmental groups because of the Texas energy company's coal-powered generation of electricity. The buyers wanted the deal to include a number of policies addressing climate change issues. Covington, Kraiem says, helped structure those commitments, which included increasing TXU's investments in renewable energy and creating an advisory board with representatives from environmental groups.

Latham's Wyman says his firm's global climate change practice, which started in 2004, is generating serious revenue. He says one of his current climate projects alone has brought in more than $1 million in fees. He declined to disclose the name of that client.

Claudia O'Brien, a partner in Latham's Washington office and a member of the global climate change practice, says she can recall at least 30 recent deals at the firm that have involved climate change.

Wyman, a partner in the firm's Los Angeles office, organized the California Climate Coalition and now counts it as one of his major clients. The coalition's 18 members include Shell, Chevron, General Electric, Northrup Grumman and a number of startup clean-technology companies. The startups can potentially provide the carbon-emitting members with ways to reduce their emissions, and, in turn, those members can invest in and help expand the startup companies.

Wyman formed the coalition in anticipation of the 2006 enactment of the California Global Warming Solutions Act, which mandates that greenhouse gas emissions from major industries are reduced to 1990 levels by 2020.

American Honda Motor Co. Inc. belongs to the carbon-emitting side of Wyman's coalition. David Raney, senior manager of environmental and energy affairs for Honda, says he sought out Latham, and specifically Wyman, for the firm's expertise on carbon trading. "We're breaking new ground," Raney says. "This is fundamentally asking some new legal questions."

One of the key business drivers for firms is the Kyoto Protocol. Though the United States has never adopted it, Kyoto took effect in much of the rest of the world in 2005 -- and U.S. companies are bound by it when they operate in international markets.

The protocol requires developed countries to reduce greenhouse gas emissions to below-1990 levels and allows companies to invest in clean energy projects in other countries in exchange for credits to offset emissions. The European Union, for example, has set up a cap-and-trade system under which companies are assigned emissions limits. They can then trade for carbon credits if they exceed their caps. Pending legislation in the United States could set up the same type of scheme here. (U.S. companies also engage in voluntary carbon trading, often in response to shareholder concerns.)

And that's where the "carbon lawyers" come in. Alston & Bird partner Kipp Coddington, for instance, helps his greenhouse gas-emitting clients navigate the carbon market by advising them on emissions trading issues. He says 90 percent of the practice's clients are new to Alston and were, specifically, looking for climate change expertise.

Coddington proudly declares himself a carbon lawyer. In many ways his practice bears the markings of traditional corporate work. The Washington partner leads the climate change and carbon management group and says Alston has 10 to 15 lawyers working full time for the practice.

Firms are also anticipating eventual federal regulation in the United States. Clifford Chance created its environmental and climatic trading group back in 2003. Washington counsel William Thomas says his energy and manufacturing clients are increasingly aware that the Securities and Exchange Commission may soon require companies to comply with climate-related disclosures. The firm is helping companies "craft appropriate communications in their financial statements and in their voluntary sustainability reports," Thomas says.

The Senate Committee on Banking, Housing and Urban Affairs, led by Sen. Christopher Dodd, D-Conn., has held hearings on getting the SEC to require public companies to disclose the financial impact of climate regulation. In September, a number of states and investors petitioned the SEC to expand and further explain disclosure requirements related to climate change. So far, the SEC hasn't taken definitive action.



Justices Weigh Definitions of Competency
Topics | 2008/04/03 14:44

The US Supreme Court took up a question that has plagued trial courts across the country. If a person is sane enough to stand trial, does that mean he is mentally competent to represent himself?

After five years and three findings of mental incompetency, Ahmad Edwards was finally judged to be competent to stand trial on attempted murder charges, but he wanted to represent himself. The Indiana trial judge ruled that Edwards was too disturbed and incoherent to act as his own lawyer. The state supreme court said Edwards had been denied his constitutional right to represent himself and the state appealed to the U.S. Supreme Court, which heard arguments in the case Wednesday.

Lawyer Mark Stancil, representing Edwards, says the Constitution protects the defendant's rights at trial, not the states' rights.

Indiana Solicitor General Thomas Fisher, says the state has an interest in the public perception of a fair process.



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