The BLT: The Blog of Legal Times

DOJ Defends Surveillance Programs

Deputy Attorney General James Cole defended secret domestic surveillance programs that sweep up American's phone records and target Internet communications, telling a House committee Tuesday that the initiatives are legal and have robust oversight.

"There are statutes that are passed by Congress. This is not a program that's off the books, that’s been hidden away," Cole said in testimony before the U.S. House Permanent Select Committee on Intelligence. "This is part of what government puts together and discusses. Statutes are passed. It is overseen by three branches of our government."

In a hearing by the Republican-controlled committee titled "How Disclosed NSA Programs Protect Americans, and Why Disclosure Aids Our Adversaries," Cole addressed secret orders from the Foreign Intelligence Surveillance Act court. The Washington-based court, which meets behind closed doors, hears government applications for search and surveillance requests in national security investigations.

Obama Picks Skadden Partner to Help Close Guantanamo

President Barack Obama will begin a new push to close the Guantanamo Bay detention center by appointing a well-known Washington attorney to a key government position, the State Department announced today.

Obama has asked Clifford Sloan, a partner at Skadden, Arps, Slate, Meagher & Flom in Washington, to reopen the State Department's Office of Guantanamo Closure, which has been closed since January.

Sloan, a specialist in litigation and appeals for intellectual property law, has previously served in high-ranking positions in all three branches of the federal government, including associate counsel to President Clinton and as assistant to the solicitor general in the U.S. Department of Justice during the George H.W. Bush administration.

The Morning Wrap

Data Requests: Facebook Inc. and Microsoft Corp. on Friday acknowledged for the first time that they've received Foreign Intelligence Surveillance Act requests, The Washington Post reports. Facebook said it had received as many as 10,000 requests from local, state and federal agencies during the last six months of 2012, affecting as many as 19,000 accounts. Microsoft said it received between 6,000 and 7,000 similar requests during that period, impacting as many as 32,000 accounts.

MIA: The whereabouts of Edward Snowden, who leaked details about the National Security Agency's collection of telephone and Internet data, are unknown, White House chief of staff Denis McDonough said Sunday on CBS’s "Face the Nation," Bloomberg reports. His last known location was Hong Kong.

Secret Session: Prosecutors and defense attorneys on Friday met for a closed session of the Guantanamo war crimes court in which the defendant was barred from the room, CBS News reports.

Top Former Justice Officials Defend Holder

A group of former senior officials of the Department of Justice is strongly defending Attorney General Eric Holder Jr. in response to a recent Washington Post column that criticized Holder's "mediocre performance" in the job.

Holder is "a leader with deep integrity, excellent judgment, and an unwavering commitment to do the right thing without regard for partisan preferences," the 24 officials said in a joint letter to the editor of the Post, set for print publication in abbreviated form on Sunday. The short version of the letter has already been published online; the full statement is here.

Among those signing the letter were former deputy attorney general David Ogden, former acting solicitor general Neal Katyal, and former assistant AGs Lanny Breuer, David Kris, Ignacia Moreno, Spencer Overton, Sharis Pozen, Laurie Robinson, Christopher Schroeder and Ronald Weich.

Lawyers Scrutinize Constitutionality of Surveillance Programs

Susan Freiwald, a professor at University of San Francisco School of Law, said today that two recently revealed government surveillance programs likely ran afoul of the Fourth Amendment. George Mason University School of Law Professor Nathan Sales countered that there was a national security need for broader surveillance programs and pointed to what he believed were certain protections already in place against government overreach.

Freiwald and Sales sparred during a panel on privacy and security during the American Constitution Society for Law and Policy's annual convention in downtown Washington. Moderator Jeffrey Rosen, president and CEO of the National Constitution Center, focused the discussion on the recent disclosure of the National Security Agency's PRISM system, which reportedly enabled the government to access information on communications through online companies, and another program that collected data from Verizon Wireless and other wireless carriers.

Notably, Google's privacy policy counsel, David Lieber, and Jamil Jaffer, Republican chief counsel and senior advisor to the U.S. Senate Committee on Foreign Relations, were originally expected to speak. Rosen said they both cancelled—jokingly speculating that it likely was due to recent events.

Lawyers Protest Guantanamo Bay Detainee Search Policy

Lawyers for detainees at the Guantanamo Bay detention center argued today in court that a new policy requiring genital searches of their clients before meetings and phone calls was degrading and part of an attempt to discourage communication with counsel.

U.S. District Chief Judge Royce Lamberth heard argument today on emergency motions filed by the detainees' lawyers to block the new search policy, which also applied to detainees' phone calls with family. Covington & Burling senior counsel S. William Livingston called the policy a situation "where something that isn't broken is being fixed." Much of the 90-minute hearing was sealed.

Lamberth did not rule from the bench and did not give any indication on how he might rule during the public portion of the hearing. The judge previously has struck down attempts by the federal government to change policies governing access to counsel at the detention facility.

The Morning Wrap

Pressure rising: Criticism of Attorney General Eric Holder Jr. continues to ramp up, as Republicans clamor about a perjury investigation and renew calls for the country's top law enforcement official to step down. The National Law Journal has this report. In meetings yesterday with media editors, Holder vowed new rules concerning how prosecutors go about seizing evidence from the press in criminal investigations. The Wall Street Journal has this report on Holder's pledge to change DOJ guidelines.

By the numbers: The 2013 Am Law 200 is now available. "One thing is clear: Second Hundred firms are on a hiring binge. What's not certain is when—or whether—it will pay off," the Am Law report says. From a comprehensive package of stories: "The 2013 Am Law 200: The Second Hundred Bets on Bulk," and "The Am Law 200's Haves and Have-Nots."

Comey's record: In today's New York Times, a spotlight on the record of James Comey, the longtime former Main Justice official who's the reported pick to lead the Federal Bureau of Investigation. The Times reports: "senior Senate aides said no immediate red flags were raised on Capitol Hill to indicate a bruising confirmation fight when President Obama makes his choice official." The National Law Journal reports today: "Obama's Reported FBI Pick Willing to Ruffle Feathers." Via The Washington Post today: "Civil liberties groups criticize Comey, but colleagues praise him."

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.