The BLT: The Blog of Legal Times

Judge: Yes, Detainees Can Ask to See Their Own Statements

Guantanamo detainees may ask to see copies of their own statements, even if the government has classified them, a federal judge ruled today.

Senior Judge Thomas Hogan of the U.S. District Court for the District of Columbia said judges could force the government to hand over the material if they found it was relevant to a detainee's case. The Justice Department had asked Hogan to deny the detainees any access to their own statements if they were deemed secret.

Lawyers for the detainees have been waging a long battle with the government over what material they should be permitted to share with their clients. In many of the habeas cases, the suspect’s own statements make up a major portion of the government’s evidence, Hogan wrote.

Without being able to see those documents, it would be difficult for the accused men to challenge the charges against them, the judge found.

“No one is better positioned to challenge the government’s reliance on a petitioner’s statements than the petitioner himself,” Hogan wrote.

Hogan also questioned how the government could argue that statements being used as evidence against a detainee weren’t material to their case. But he declined to issue a blanket judgment on the issue.

“[S]uch materiality determinations should be made by the Merits Judges on an individual basis,” he wrote.

Former AG Alberto Gonzales Joins Texas Tech Faculty

Former Attorney General Alberto Gonzales is going into academia, taking a post as a visiting professor in the political science department of Texas Tech University effective August 1, the university announced today.

Gonzales will be teaching a junior-level special topics course, “Contemporary Issues in the Executive Branch,” according to a statement from the university. Gonzales is also expected to guest lecture to classes across the campus. The Austin American Statesman first published the Gonzales hiring this afternoon. Click here for the statement from the university.

Gonzales, a Texas native who resigned as attorney general in August 2007 amid controversy over the firings of nine U.S. attorneys, will assist Texas Tech University and Angelo State University “with recruiting and retaining first generation and underrepresented students,” according to Texas Tech statement.

“His own upbringing in Houston as part of a migrant family with eight children makes him qualified to tell underrepresented Texas students that college is possible,” Texas Tech chancellor Kent Hance said in a statement. The interim dean of the university’s College of Arts and Sciences said in a statement that Gonzales brings a “rich perspective of the executive branch and issues and challenges facing our nation.”

DOJ Wins Rehearing in Suit Alleging Unlawful Wiretap, Surveillance

Scott Tooley narrowly won an appellate court victory earlier this year in his suit against top government officials, accusing them of invading his privacy through purported wiretaps, clandestine surveillance and “terrorist watch lists.” Now he may lose again.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled 2-to-1 in February that as “thin” as Tooley’s claims appear, he has standing to sue. (The trial judge had tossed Tooley’s suit.) Justice Department lawyers challenged the split decision, saying that it conflicts with other circuits’ views.

The D.C. Circuit on Wednesday granted a rehearing, a win for the government. The case will be argued again in October.

“Although the panel majority suggests that the government could deal with this problem by invoking the state secrets privilege, that privilege cannot be lightly invoked,” a Justice appellate lawyer, Teal Luthy Miller, wrote in the government’s petition for rehearing.

Miller, who argued the case in the D.C. Circuit, said in the brief: “Allowing this and other fanciful suits to go forward can subject the government to burdensome and ultimately pointless discovery in a sensitive area of national security, with perhaps an ultimate need to assert the state secrets privilege, even when the complaint offers no plausible basis for believing that the government had any connection with purported surveillance of the plaintiff.” To read the DOJ petition, click here.

Tooley’s suit, filed in the U.S. District Court for the District of Columbia, alleges that he has experienced intermittent clicking on his phone line as well as frequent detention and searches at airports. He is suing the attorney general and the Homeland Security secretary, among others, on the ground that the government has violated his privacy.

In the appeals court, Senior Judge Stephen Williams and Judge David Tatel voted to remand Tooley’s case to the trial court for further proceedings. “Under our system’s undemanding pleading rules, the district court was required to accept Tooley’s factual allegations as true,” Williams wrote. Click here for the opinion.

Chief Judge David Sentelle wrote in dissent that Tooley doesn’t have a case with his “fanciful beliefs.” Just because Tooley has been detained at airports doesn’t mean his name is on any watch list, the judge wrote.

“Stripped of his conclusory adjectives and adverbs, his allegations say that he has been searched or detained at airports,” Sentelle wrote. “It is unlikely that anyone who flies with any frequency has not. If his allegations concerning airport searches were sufficient, I venture to say that many members of this court could file a similarly sufficient complaint.”

Sentelle also dismissed Tooley’s conclusion that his phones are tapped. There’s no reason to believe that wiretaps cause bad connections, the judge said, because if that were true, phone taps would not be a useful tool for law enforcement.

Sentelle, Tatel and Williams all share one concern: the ultimate plausibility of Tooley’s claims.

Judge Dismisses Bagram Habeas Case

A federal judge today dismissed the habeas case of a detainee held at a U.S. military base in Afghanistan, finding that Congress had not acted unconstitutionally by stripping the court's ability to hear such cases.

The ruling comes three months after the same judge found that other prisoners at the Bagram Theater Internment Facility did have the right to challenge their status as enemy combatants. In those cases, the three men were non-Afghans who had been captured in other countries and brought to the prison, located just outside Kabul.

Judge John Bates of the U.S. District Court for the District of Columbia found that the men’s special circumstances entitled them to access American courts. He ruled that a fourth man, Haji Wazir, an Afghan citizen, did not have that right however, because his release could cause undue tension with Afghanistan’s government. The judge nonetheless held off on a final decision in the case in order to look at a separate set of constitutional issues.

That ruling came today. Wazir’s lawyers had argued that the Military Commissions Act of 2006, which banned federal courts from hearing habeas cases brought by detainees, violated the constitutional separation of powers by essentially telling judges how to decide cases that were already pending before them.

Bates found differently. Citing U.S. v. Klein, the judge ruled that Congress is allowed to pass statutes that affect the underlying law involved in a case, so long as they do not dictate specific factual findings or results to a court.

Group Targets Bar Licenses for Lawyers Involved in 'Torture Memos'

A group calling itself Velvet Revolution in May filed a dozen bar complaints against former and current government lawyers who had some role in signing off on detainee interrogation tactics that critics say amount to torture.

Velvet Revolution didn’t use a press release to announce the filing of three more ethics complaints, including one against CIA Acting General Counsel John Rizzo. In front of TV cameras and a room full of journalists, Velvet Revolution made its pitch at the National Press Club.

Civil rights lawyer, singer and poet Shahid Buttar, one of three speakers today, said the “court of public opinion” is the target audience considering the inactivity on the part of the Obama administration and Congress to punish government lawyers who reviewed harsh interrogation tactics.

Bruce Fein, a former Justice Department lawyer under the Reagan administration, urged Congress to “step up to the plate” and pursue full and open hearings regarding the so-called torture memos. The Justice Department Office of Professional Responsibility is preparing to release its own report on the memos. Fein, a former associate deputy attorney general, said the executive branch should not be allowed to investigate itself and have that be the final word.

Velvet Revolution filed ethics complaints with the D.C. Bar against Rizzo and Jonathan Fredman, former associate general counsel at the Central Intelligence Agency who has been assigned to the Office of the Director of National Intelligence. Click here for the complaints. A third complaint, against former CIA General Counsel Scott Muller, is expected to be filed Tuesday. Muller is now a partner in the New York offices of Davis Polk & Wardwell, where he practices in the litigation and global compliance groups.

The complaints allege Rizzo, Fredman and Muller advocated “immoral and unethical ‘extended’ or ‘enhanced’ interrogation techniques … that resulted in clear violations of U.S. and international law. “ Rizzo, admitted to the D.C. Bar in 1973, has no record of disciplinary history. Rizzo was not immediately reached for comment today. Fredman, a member of the D.C. Bar since 1988, declined to comment. Fredman has no prior record of disciplinary action.

Detainee Imprisoned by Al-Qaeda Before Gitmo Ordered Free

A federal judge ordered the government to release another inmate from Guantanamo Bay today, finding that although the man may have been briefly affiliated with al-Qaeda, his subsequent imprisonment and torture at the hands of the terrorist group seemed to indicate that their relationship had soured.

In reaching his decision, Judge Richard Leon of the U.S. District Court for the District of Columbia ruled that detainees who had cut their terrorist ties long before being captured by U.S. forces could be eligible for release.

Abdulrahim Abdul Razak al Ginco — referred to in the opinion as “Janko” — was a Syrian citizen captured in 2002 by U.S. troops in Kandahar, Afghanistan. Prosecutors alleged that Janko had traveled to Afghanistan in order to join Taliban and al-Qaeda forces. While there, they said, he stayed at a Taliban guest house and spent a brief period of time at a militant training camp.

But prosecutors also acknowledged that al-Qaeda members later imprisoned and tortured Janko into falsely confessing that he was a U.S. spy. He was then held in Kandahar’s Sarpusa prison for 18 months.

“Notwithstanding these extraordinary intervening events, the Government contends that Janko was still ‘part of' the Taliban and/or al-Qaeda when he was taken into custody after U.S. forces learned from a reporter of petitioner's presence at the abandoned prison in January 2002,” Leon wrote.

Declaring that the government’s position “defies common sense,” the judge wrote that the prosecutors were forcing him to decide whether a detainee’s relationship with the Taliban or al-Qaeda could become weak enough that he would no longer be considered a member of either group.

“The answer, of course, is yes,” Leon wrote, adding that “any preexisting relationship” between Janko and his militant captors “had been utterly destroyed.”

Holder Says Report on Interrogation Weeks Away

A Justice Department watchdog is modifying its report on the lawyers who wrote opinions authorizing harsh interrogation tactics, and the report is still weeks away from becoming public, Attorney General Eric Holder Jr. said today.

Holder also said that the full report might never become public because some information in it is classified, though he said he wants to release as much as he can.

Sens. Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) have been asking for months for the report from the Office of Professional Responsibility. At a hearing today at the Senate Judiciary Committee, Whitehouse noted that OPR circulated a draft report in December and that the comment period for lawyers mentioned in the report ended May 4.

Holder told senators that OPR investigators are still working off the lawyers’ comments to make changes to the report before it’s final. He also said that the release has been delayed because of a change in OPR’s leadership; Mary Patrice Brown, formerly of the U.S. Attorney’s Office for the District of Columbia, took over in April. Holder said the CIA is giving input for the report but is not holding it back.

“I think we’re talking about a matter of weeks” before the report’s completion, Holder said. “They’re pretty close to the end.”

The report is expected to address how the Justice Department’s Office of Legal Counsel came to support the legality and constitutionality of waterboarding and other interrogation techniques that previously had not been used. Former OLC officials Jay Bybee and John Yoo are expected to figure prominently in the report.

Others who have submitted comments include former Attorney General Michael Mukasey and former Deputy Attorney General Mark Filip, Holder said.

Holder said that some parts of the report might need to be declassified before they could be released, and he worried about the impact of releasing the report without the declassification. “I wouldn’t want to put into the record an incomplete report,” he said. But, he added later, “We’ll be pushing to declassify as much of this report as we can.”

New State Secrets Position Coming Soon, Holder Says

Attorney General Eric Holder Jr. says the Justice Department will be making recommendations soon for revising the state secrets privilege.

In testimony this morning before the Senate Judiciary Committee, Holder told senators to expect the recommendations within days, perhaps by tomorrow, when the committee is scheduled to consider legislation on the topic. He gave no hints about the direction the department is thinking of taking.

“We have some proposals we’ve been working on that I think we will make public within days,” Holder said.

He added that he thinks the recommendations “will be sufficient” to address the concerns of legislators who think the Bush administration overused the privilege to shield documents and other materials related to national security. The Obama administration has so far continued a similar use of the privilege, even as courts such as the U.S. Court of Appeals for the 9th Circuit have chipped away at it.

Judiciary Committee Chairman Patrick Leahy (D-Vt.) warned Holder that, if senators don’t hear the Justice Department’s views on the privilege, “we will go ahead and mark up the legislation.”

Press and Guantanamo Lawyers Score Victory Over Documents

A coalition of news organizations and Guantanamo lawyers won a round in federal court this morning, when a judge rejected the government’s request to seal hundreds of unclassified documents.

The files — known as factual returns — outline the government’s case for holding each individual Gitmo detainee. In most instances, the government has been required to file a classified version of the return for the detainees’ lawyers, as well as an unclassified version for the public. Late last year, the Justice Department asked for a protective order covering those public versions, explaining that classified information had accidentally slipped into the hastily compiled documents. It did not offer a time frame for fixing the mistakes.

Detainee lawyers objected, and a group of major media companies, including The Associated Press, New York Times and USA Today, filed intervening briefs, arguing the government was infringing on the public’s right to information.

Today Senior Judge Thomas Hogan sided against the government, calling its request overbroad and “devoid of specificity.” The judge noted prior cases in which the Justice Department was required to single out individual pieces of information it wanted protected.

Hogan did give the government a bit of leeway, however. He allowed the documents to remain protected until July 29, when Justice lawyers will be required to hand a judge versions of the documents with the specific words or lines it would like protected highlighted. Anything not submitted by then will be treated as public.

He added that the public had a limited First Amendment right to see the returns, as long as releasing them would not compromise national security.

“Public interest in Guantanamo Bay generally and these proceedings specifically has been unwavering,” Hogan wrote. “The public’s understanding of the proceedings, however, is incomplete without the factual returns.”

4th Circuit Rules for Insurance Carrier in Coverage Dispute

The insurance carrier for a company whose employees are accused of torturing detainees at Abu Ghraib is not obliged to defend the business because the allegations happened in Iraq, outside the coverage area, the U.S. Court of Appeals for the 4th Circuit ruled Thursday in a split decision.

The company, CACI International, was sued in U.S. District Court for the Eastern District of Virginia in 2004 by two groups of former Iraqi detainees and their survivors who allege CACI employees engaged in torturous behavior at Abu Ghraib and other prisons in Iraq. District Judge Leonie Brinkema ruled in favor of the carrier, St. Paul Fire and Marine Insurance Company, last summer. Hunton & Williams represents the carrier.

A lawyer for CACI, Kelley Drye & Warren partner John Heintz, argued in the 4th Circuit that underlying claims—including hiring and training issues—implicate events that happened in the United States and that other claims are covered because they are part of the exception for employees who are away from the coverage area for a short time. Heintz chairs the firm's insurance recovery practice.

Circuit Judge J. Harvie Wilkinson III, joined by Senior Judge David Faber of the Southern District of West Virginia, who was sitting by designation, dismissed CACI’s claims in a 16-page opinion.

“We agree with the district court that the underlying complaints cannot be read to allege events that happened in the coverage territory,” Wilkinson wrote. “Under well-established principles of insurance law, the place of the injury—not the place of some precipitating cause—determines the location of the ‘event’ for coverage purposes.”

Wilkinson further said CACI’s presence in Iraq was more than a brief visit. The judge wrote that the “process of interrogation alleged in the underlying complaints is not one that was quickly terminated. Rather, it relied on interrogators who became more skilled as time went by and who came to know the detainees—and each other—more personally.”

Circuit Judge Dennis Shedd wrote in dissent, saying: “None of the factual allegations in these complaints forecloses the possibility that one or more CACI employees traveled to Iraq for a short time and caused covered injuries to the plaintiffs, a scenario covered by the insurance policies’ ‘short time’ exception.” Shedd said that “possibility” requires the appellate court to reverse and remand for further discovery.

Hunton & Williams partner Walter Andrews, who represented the insurance carrier, was not immediately available for comment today. Heitz, for CACI, also was not immediately reached for comment.