The BLT: The Blog of Legal Times

Huffington Post Moves to Dismiss Lawyer's Defamation Lawsuit

The Huffington Post moved yesterday to dismiss a defamation lawsuit filed by a Panama-based lawyer, arguing that the site is an "interactive computer service provider" and can't be held liable for third-party content.

Juan Carlos Noriega sued The Huffington Post in December in U.S. District Court for the District of Columbia. Noriega claimed he'd had nothing to do with an article posted on the site in August under his name, and that the company had wrongfully refused to take it down.

The Huffington Post argued in its motion to dismiss (PDF) yesterday that it was immune to Noriega's claims under the federal Communications Decency Act. Even if The Huffington Post contributed to editing or promoting the post in any way, the media company argued that it's protected as long as a third-party provided the actual content.

Judge Questions DOJ Over Secrecy in Author’s First Amendment Case

A U.S. Justice Department lawyer faced sharp questions today from a Washington judge over the government effort to restrict an author's ability to challenge whether certain details in his book about the Afghan war should remain secret.

Retired Army Lt. Col. Anthony Shaffer, who penned a memoir titled "Operation Dark Heart," is pursuing a First Amendment case in Washington's federal trial court over the government's insistence that passages in the book contain classified information that cannot be publicly disclosed. In late 2010, Shaffer sued the CIA, the Defense Department and the Defense Intelligence Agency.

Shaffer's case presents thorny legal issues regarding the control and disclosure of classified information in civil litigation. U.S. District Judge Rosemary Collyer, at a hearing in the case today to discuss procedural issues, expressed concern that DOJ's litigation stance will hinder Shaffer's ability to present his contentions by restricting the information he's allowed to tell the court.

Scott Risner of the DOJ's Civil Division argued today that Collyer should not allow Shaffer to submit information to the court on his own. Instead, Risner insisted, Collyer should rely on the government's ex parte submissions in support of keeping select passages in the book blacked out.

DOJ Defends Secrecy of Post-Mortem Osama bin Laden Photos

Updated 2:46 p.m.

A U.S. Justice Department lawyer today defended the government's refusal to publicly disclose post-mortem images of Osama bin Laden, urging a federal appeals court in Washington to keep depictions of the body of the former Al Qaeda leader out of the public realm.

The attorney, Robert Loeb of DOJ's Civil Division, argued the disclosure of the images of bin Laden, killed in a U.S. raid in Pakistan in May 2011, would jeopardize the safety of Americans—potentially exposing them to retaliatory attacks. The prediction of adverse consequences, Loeb said, is not "mere conjecture."

A federal trial judge in Washington ruled for the CIA last year when he blocked the release of 52 images under the Freedom of Information Act. The judge, James Boasberg, found the CIA's concern about the potential harm to the national security compelling enough to block the publication of the images.

The challengers, the conservative group Judicial Watch, didn't get much sympathy in the U.S. Court of Appeals for the D.C. Circuit, where judges Merrick Garland and Judith Rogers, with Senior Judge Harry Edwards, heard the case today.

Judge: Government Can Rely on 'Top Secret' Information in Gitmo Case

The lawyers representing a detainee at Guantánamo Bay are not allowed to review the highest-level secret information in the government's hands, even if the material could be relevant to the prisoner's fight for freedom, a judge in Washington said today. The government, the judge said, can rely on that very same information.

U.S. District Judge Rosemary Collyer said she reviewed the "Top Secret" source-related information in chambers to ensure that, where possible, documents classified at a lower level were provided to the lawyers for the detainee, an Afghan man named Wali Mohammed Morafa. The detainee's attorneys first filed a petition challenging his detention in 2005 in Washington's federal trial court.

"Some source information contained in Top Secret documents reviewed in camera and ex parte could be relevant and material to Mr. Morafa’s case," Collyer wrote. The U.S. Justice Department, however, "argued persuasively that source and method information are particularly critical within the intelligence community and the nation's security and, thus, cannot be revealed to Mr. Morafa's counsel."

Collyer said the "ultimate question" is whether the prisoner's ability to see the top secret information is necessary for the judge's "own meaningful review of the evidence." The court, Collyer said, "concludes that it is not."

In D.C. Circuit, bin Laden Death Photos Take Spotlight

The Justice Department next week will ask a federal appeals court in Washington to keep secret dozens of images of Osama bin Laden's body taken after he was fatally shot in May 2011 in a special forces raid.

DOJ lawyers, representing the CIA and Defense Department in a public records suit, identified 52 responsive records—post-mortem images that the government describes as "graphic and gruesome"—that are being withheld from the public.

A federal trial judge in Washington ruled for the government in April, saying that "verbal descriptions of the death and burial of Osama bin Laden will have to suffice." The judge, James Boasberg, concluded the government's national security concern over the publication of the images "passes muster."

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on January 10 will take up whether the images are properly being kept from public review. Judges Merrick Garland and Judith Rogers, sitting with Senior Judge Harry Edwards, will hear the case.

Huffington Post Facing $3M Libel Lawsuit from Panama Lawyer

Updated 11:40 a.m.

On August 2, an article called "The Primacy of the Rule of Law" was posted on The Huffington Post. The problem, according to a defamation lawsuit (PDF) filed Friday in U.S. District Court for the District of Columbia, is that the author listed, Juan Carlos Noriega, claims he had nothing to do with the piece.

Noriega, a lawyer based in Panama, is suing the media company for $3 million in damages, a full retraction, and an investigation into who created an account on The Huffington Post's website under his name.

A representative of The Huffington Post also could not immediately be reached for comment. Noriega's lawyer, Patton Boggs partner Benjamin Chew, said that the company never made any effort to contact Noriega before publishing the article along with his photo and a biographical description.

Senate Questions D.C. Federal Court Nominee on Sentencing Guidelines

At a confirmation hearing this morning before the Senate Judiciary Committee, U.S. District Court for the District of Columbia judicial nominee Ketanji Brown Jackson fielded questions about her views on how she would handle terrorist detainee cases and how she would use federal sentencing guidelines.

Jackson, vice chair of the U.S. Sentencing Commission since early 2010, was nominated by President Barack Obama in September to fill the seat vacated by now-retired U.S. District Judge Henry Kennedy Jr. If confirmed, she would fill the sole open judgeship on the court.

Jackson didn't encounter opposition during today's hearing. Even her introduction was bipartisan: she was introduced by Representative Eleanor Holmes Norton (D-D.C.), who recommended Jackson to the White House, and Representative Paul Ryan (R-Wisc.), who is related to Jackson and offered his "unequivocal" support.

In 'Defeat Jihad' Lawsuit, WMATA Paid $35K in Attorney Fees and Costs

After a Washington federal judge ruled last month that local public transit officials ran afoul of the First Amendment in delaying the posting of a controversial advertisement in rail stations, the agency agreed to pay $35,000 in attorney fees and costs to the group behind the ad, according to a document (PDF) recently obtained by Legal Times.

The American Freedom Defense Initiative, a New York-based organization, sued the Washington Metropolitan Area Transit Authority in September after learning that the agency was postponing the ads. The ad read: "In any war between the civilized man and the savage, support the civilized man," with the tag, "Support Israel/Defeat Jihad."

WMATA lawyers argued that they had a "compelling" interest in delaying the ad because it posed a threat to public safety, but AFDI claimed that by indefinitely delaying the ad, the agency was in violation of the First Amendment. In early October, U.S. District Judge Rosemary Collyer ruled that while the ad did have elements of hate speech, it was nonetheless protected under the First Amendment and ordered WMATA to post it.

Group Presses for Officers' Names in Osama bin Laden Raid

The conservative group Judicial Watch today urged a judge in Washington to force the public disclosure of the names of five intelligence and military officials who participated in the planning of the raid that ended in the death of Osama bin Laden.

The U.S. Justice Department has said the government didn't waive keeping the names of the officers confidential after the information was provided to director Kathryn Bigelow and screenwriter Mark Boal for a film about the hunt for bin Laden.

Judicial Watch lawyers said in their court filing today that "the government cannot have it both ways in this case. If this information were very sensitive, it would not have been shared with the filmmakers."

"The public has a high interest in any information which could shed more light on the possibility of wrongdoing in the government’s decisions to disclose allegedly sensitive information about the raid that killed bin Laden," Judicial Watch's Chris Fedeli wrote in the papers filed this afternoon in U.S. District Court for the District of Columbia.

DOJ Defends Controversial Military Detention Provision

As presidential election returns rolled in Tuesday night, the U.S. Justice Department filed its opening brief defending a controversial military detention provision that a trial judge in Manhattan declared unconstitutional earlier this year.

The suit, filed in Manhattan federal district court by a group of journalists and activists, challenges a section of the National Defense Authorization Act that DOJ lawyers said reaffirms presidential detention authority under the Authorization for Use of Military Force, or AUMF. That authorization was passed in response to the Sept. 11 terror attacks.

Government lawyers said in the papers filed last night in the U.S. Court of Appeals for the Second Circuit that the plaintiffs "are in no danger whatsoever of being subject to capture and detention by the U.S. military." The provision in question allows the detention of people who "substantially supported" al-Qaeda or "associated forces."

"The district court nonetheless issued an extraordinary and sweeping injunction at their behest," DOJ lawyer August Flentje of the Civil Division said in the brief filed last night. Flentje said the trial judge, Katherine Forrest of U.S. District Court for the Southern District of New York, "entered a sweeping and permanent injunction against the president."