The BLT: The Blog of Legal Times

In Fourth Circuit, a Spotlight on Warrantless GPS Tracking

There's no dispute that the traffic stop one morning in May 2009 was legitimate. The driver of a Pontiac Grand Prix failed to use a signal before turning into an exit lane to leave Interstate 95 in South Carolina.

The authorities initiated a traffic stop on the exit ramp that morning near Charleston. The passenger, police would later say, was nervous. His arms and legs were shaking, according to court records.

The stop wasn't random. Local and federal investigators, working on a drug case, secretly were monitoring the movement of the car via a global positioning device—one that had been attached without a warrant.

The Morning Wrap

New rules: President Obama vows the development of new criteria for the use of drones in attacks against alleged terror targets, saying the United States is at a "crossroads" in the global fight against terrorism, The Washington Post reports. “As our fight enters a new phase, America’s legitimate claim of self-defense cannot be the end of the discussion,” Obama said in a speech Thursday. “To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance.” In today's New York Times: "C.I.A. to Focus More on Spying, a Difficult Shift." Reuters examines pending lawsuits around the country that are rooted in the government's targeted killing program. Obama in his speech called on the Justice Department to review its rules on subpoenas that target the media.

After Pat: From today's Chicago Tribune: "The lawyer picked Thursday to succeed Patrick Fitzgerald as Chicago's U.S. attorney is a former federal prosecutor best known for taking on corrupt politicians and powerful institutions such as the University of Notre Dame." The nominee, Zachary Fardon, oversees the Chicago litigation department at Latham & Watkins.

Confirmed: Sri Srinivasan, a top appellate lawyer at the U.S. Justice Department, will become the newest member of the U.S. Court of Appeals for the D.C. Circuit. The National Law Journal has this report. The confirmation was the first for the prominent appeals court in seven years, NPR reports. The Wall Street Journal has this report on Srinivasan.

Civil Liberties Group Asks Secret Court to Release Opinion

Six years ago, the Justice Department fought a civil liberties group's effort to obtain documents directly from a secretive Washington court that hears government surveillance requests. The American Civil Liberties Union, the government said, was trying to make an "end run" around federal public records laws.

Then another group, the Electronic Frontier Foundation, went to court to try to get a copy of an opinion from the Foreign Intelligence Surveillance Court. The advocacy group sued the Justice Department last year under the Freedom of Information Act. In that case, the government said prosecutors are not permitted, by the surveillance court's own rules, to disclose the requested opinion.

The DOJ legal positions left spinning heads—at least those of the challengers. Today, the Electronic Frontier Foundation said it was filing papers in the surveillance court asking it to release the requested opinion—an 86-page ruling in which the court found surveillance activity violated the law. Alternatively, the advocacy group asked the court for a determination that its rules don't bar the release of the requested material.

"EFF asserts the government cannot have it both ways," wrote David Sobel and Mark Rumold, lawyers for the group, in their motion in the surveillance court. "The argument DOJ seeks to advance in the district court would, if accepted, impose a 'Catch 22' preventing any judicial review of access rights to this court's materials."

D.C. Circuit: Bin Laden Death Images Can Remain Secret

Updated 1:30 p.m.

More than 50 images of Osama bin Laden taken after his death in Pakistan in 2011 can remain secret, exempt from public disclosure under public records laws, a federal appeals court in Washington said today.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said 52 post-mortem images were properly classified as Top Secret. The panel upheld a trial judge's ruling that blocked the release of images. The appellate court ruling is here.

The U.S. Justice Department argued in the trial and appellate courts that the disclosure of graphic images of bin Laden—including a gunshot wound to his head—could expose the United States to retaliation. The plaintiff, Judicial Watch, rejected the notion that less gruesome images—for instance, bin Laden's burial at sea—would incite violence.

"As the district court rightly concluded, however, the CIA’s declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al Qaeda could cause exceptionally grave harm," the D.C. Circuit panel said in its per curiam decision.

Q&A: McKenna Long & Aldridge's Joanne Zimolzak

Joanne Zimolzak took over as the managing partner of McKenna Long & Aldridge's Washington office in November. She not only oversees about 114 attorneys (according to our most recent Legal Times 150 survey) but also serves as head of the firm's insurance practice.

Zimolzak, who joined McKenna in 1994, focuses her business litigation practice on representing multi-national insurance carriers. She also has experience on matters related to regulatory compliance, internal investigations and fraud reporting.

Legal Times sat down with Zimolzak in the firm's K Street N.W. office to discuss what's keeping McKenna attorneys busy these days, growth in northern Virginia and women and diversity in the legal industry.

D.C. Superior Court Nominees Testify in the Senate

Two lawyers who spent most of their careers on opposite sides of a courtroom testified today before a U.S. Senate committee in the hopes of serving together on the District of Columbia Superior Court bench.

Washington solo practitioner Michael O'Keefe, whose practice is mostly in criminal defense and family law, and Robert Okun, chief of the special proceedings division at the U.S. attorney's office in D.C., were nominated by the White House in March. At today's hearing, they pitched their extensive history practicing in Superior Court and experience working with a variety of litigants, including those without a lawyer.

Neither nominee faced criticism. Sen. Mark Begich (D-Alaska), who chairs the subcommittee overseeing District of Columbia affairs, said they were "well-qualified" to serve. The nominees did face questions from Sen. Rand Paul (R-Ky.), the subcommittee's ranking member, about their views on the city's gun laws, which have been the subject of legal challenges; both said they would abide by rulings from the U.S. Supreme Court and District of Columbia Court of Appeals.

The Morning Wrap

Defending: Attorney General Eric Holder Jr. says he's confident prosecutors didn't botch any guidelines in the collection of phone records from The Associated Press, telling reporters that the investigation of a leak required "very aggressive" action. The National Law Journal has this report on the flap over the subpoenas. Holder told NPR that he's unsure how many media subpoenas he has authorized. POLITICO reports here on Holder's reemergence in the national spotlight.

Back again: "In the aftermath of a national tragedy, Kenneth R. Feinberg has become the essential man," The New York Times reports today. Feinberg has been a central figure in dividing up victim compensation funds following major catastrophes.

Pause button: A candidate for Brooklyn district attorney wants CBS to delay airing a reality series about the office's work under the leadership of Charles Hynes. The challenger, Abraham George, says the program would run afoul of election finance laws. "We are surprised that this candidate would not know about the First Amendment," a CBS spokesman said. "This is obviously a publicity push by a politician."

The limit: The National Transportation Safety Board is recommending states cut drunk-driving thresholds from .08 to .05. "The proposal, among others by the board, faces a long road before, if ever, becoming the law of the land. It took more than 20 years for all the states to act after the NTSB recommended reducing the drunk driving threshold in 1982," according to a report in The Baltimore Sun.

DOJ Defends Review of Associated Press Phone Records

Updated 11:20 p.m.

The U.S. Justice Department is defending its review of two months of phone records for a group of reporters and editors at the Associated Press, which called the government action "a massive and unprecedented intrusion" into newsgathering.

The news agency publicly disclosed the Justice Department's review of the phone records in a protest letter to Attorney General Eric Holder Jr. "There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters," Gary Pruitt, president and chief executive officer of the AP, wrote.

"That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling," Pruitt said. Prosecutors collected records on 20 separate phone lines.

A statement from the U.S. Attorney's Office for the District of Columbia did not reveal the nature of the investigation. The Justice Department, however, has previously disclosed that the Maryland and District of Columbia U.S. attorneys are investigating, among other national security matters, the leak of information that provided the substance of an Associated Press story, published in May 2012, about an alleged terrorist plot that was thwarted.

Members of Congress on Wednesday will get a chance to question Holder about the rare move to subpoena newspaper reporters' phone records. Holder is scheduled to testify at the House Judiciary Committee for an oversight hearing.

DOJ Asks D.C. Circuit to Keep Surveillance Law Memo Secret

The Justice Department wants to keep secret an internal legal memo that addresses the scope of the authority under which the FBI can seek records from telecommunications companies.

DOJ lawyers have asked the U.S. Court of Appeals for the D.C. Circuit to protect the Office of Legal Counsel memo from disclosure in an ongoing public records suit. The government contends the document is protected by the deliberative process privilege.

"Mandatory disclosure of OLC's opinions would chill deliberative discussions within the Executive Branch," Daniel Tenny, a Justice Department appellate lawyer, said in a brief filed in the appeals court May 7. "OLC serves a valuable role in providing confidential legal advice to federal agencies as they develop their policies."

Age Discrimination Suit Against Georgetown Law Dismissed

Former North Dakota Attorney General Nicholas Spaeth has lost his age discrimination lawsuit against Georgetown University Law Center. A Washington federal judge ruled yesterday that Georgetown presented non-discriminatory reasons – chiefly, Spaeth's lack of academic scholarship – for rejecting his application for a tenure-track teaching job.

After a long career practicing law in government and private practice, Spaeth began pursuing law school teaching posts around 2009. He sued Georgetown and five other schools in U.S. District Court for the District of Columbia after he failed to get an interview through the Association of American Law Schools faculty recruitment conference in 2010.

In yesterday's opinion, Huvelle found the record was clear that academic scholarship was a "primary concern" for Georgetown in weighing applicants. Spaeth failed to list any relevant publications in his application, she wrote, rebuffing Spaeth's argument that the focus on scholarship was a pretext for age-based bias. Even if Spaeth made it to the interview stage, she found, he failed to show he would have been hired over the three applicants who did get teaching jobs that year.