The BLT: The Blog of Legal Times

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."

The Morning Wrap

In plain sight: The Wall Street Journal today examines the role the CIA played in the collection of intelligence and provision of security in Benghazi. "The U.S. effort in Benghazi was at its heart a CIA operation, according to officials briefed on the intelligence. Of the more than 30 American officials evacuated from Benghazi following the deadly assault, only seven worked for the State Department," the WSJ report said. From The New York Times today: "C.I.A. Played Major Role Fighting Militants in Libya."

Going back: The U.S. Supreme Court is weighing whether a ruling addressing lawyers and their warning to clients about deportation should apply retroactively to thousands of people, The New York Times reports. Justice Samuel Alito Jr. predicted in 2010 that the court's ruling then "would lead to much confusion and needless litigation."

Mobilizing: "Days after Superstorm Sandy rumbled through the metropolitan area, leaving chaos in its wake, bar groups have begun mobilizing pro bono assistance for those affected by the disaster." The New York Law Journal has the story here.

Trafficking: From The Washington Post, a piece on the methamphetamine trade in Iran: "Even as Western sanctions ravage their economy, some Iranians are reaping a cash harvest from an unexpected source: a booming illicit drug industry that law enforcement officials say is producing record quantities of a powerful synthetic drug."

Prosecutors Outline ‘Stringent’ Safeguards in Second Chance at Blackwater Case

Federal prosecutors in Washington are moving forward with a new criminal case against a group of former Blackwater security guards whose first prosecution on manslaughter charges collapsed amid allegations of government misconduct.

A federal trial judge in Washington threw out the case against the guards after concluding that prosecutors unfairly used protected statements that the guards made following a fatal shooting of more than a dozen civilians in Iraq in 2007.

The government's trial team, U.S. District Judge Ricardo Urbina said in his ruling, "repeatedly disregarded the warnings of experienced, senior prosecutors" that seeking out those protected statements threatened the viability of the case. Last year, the U.S. Court of Appeals for the D.C. Circuit revived the prosecution, saying Urbina misapplied the law when he dismissed the case.

Now, prosecutors say, the government has "developed a thorough, careful filter process" to ensure that prosecutors and grand jurors will not be exposed to the tainted information that doomed the earlier case. "By adhering to this filter process, the defendants’ Fifth Amendment privilege against self-incrimination will be scrupulously protected," prosecutors Gregg Maisel, John Crabb Jr. and David Mudd said in a court filing Wednesday.

D.C. Judge Rejects Bagram Prisoners' Detention Challenge

Three years ago, a federal judge in Washington announced that prisoners held in U.S. custody at an air base in Afghanistan could use federal courts to challenge their detention. But the U.S. Court of Appeals for the D.C. Circuit struck the decision.

The judge, John Bates of Washington federal district court, today rejected renewed legal challenges, saying that the amended petitions from the government-declared enemy combatants do not undercut the foundation of the appellate court ruling. The judge's ruling is here.

Prisoners at the Guantanamo Bay naval facility can use federal trial courts to seek their freedom. The D.C. Circuit, however, distinguished Guantanamo from the Bagram airfield in Afghanistan. The appeals court, Bates wrote today, found "critical problems with allowing detainees at such a site" to bring petitions seeking their release.

Judge Explains Decision Ordering Metro to Post 'Defeat Jihad' Ad

On October 5, U.S. District Judge Rosemary Collyer ordered the Washington Metropolitan Area Transit Authority to post the controversial "Defeat Jihad" ad in rail stations. This past Friday, Collyer issued a 17-page opinion (PDF) explaining her decision, saying that while the ad did contain "hate speech," it was protected under the First Amendment.

The New York-based group behind the ad, the American Freedom Defense Initiative, sued Metro after learning that the agency was delaying its contract to post the ad. Metro officials claimed that they had a compelling public safety interest, but Collyer found that they failed to meet the "strict scrutiny" standard for restricting protected speech.

Collyer wrote that while Metro did have a compelling security interest, officials failed to choose the least restrictive option to achieve that goal. "WMATA’s failure to consider alternative placements plus the open-ended and purely subjective duration of its postponement were not narrowly tailored as required," she said in her opinion.

Judge Orders D.C. Metro to Post 'Defeat Jihad' Ads

A federal district judge in Washington has ordered the Washington Metropolitan Area Transit Agency to post controversial ads with the message, "Support Israel/Defeat Jihad," on First Amendment grounds, over the agency's objection that the ads posed a public safety threat. The ads are now set to go up by 5 p.m. on October 8, per the judge's order (PDF).

U.S. District Judge Rosemary Collyer granted the motion for a preliminary injunction filed by the American Freedom Defense Initiative, the New York-based organization behind the ad. The group had a contract to post the ad in Metro rail stations beginning September 24, but Metro informed the group on September 18 that they were delaying the ads due to public safety concerns. The group sued two days later.

Collyer heard arguments yesterday in the case. She did not issue an opinion explaining her decision at the same time as her order this afternoon, explaining that it would be coming later. Metro spokesman Dan Stessel said that Metro would comply with the order and that the ads would be up by 5 p.m. on October 8. Stessel declined to comment on the substance of the case, referring to court filings.

The Morning Wrap

Probing: The Wall Street Journal reports FBI agents have visited the damaged U.S. consulate in Benghazi, Libya, for the first time since Ambassador J. Christopher Stevens and three other Americans were killed there several weeks ago. Yesterday, Attorney General Eric Holder Jr. said he was satisfied with the steps the government have taken so far to investigate what he called "dastardly acts." The Washington Post has this story today: "In Libya, contingency plan seemed to go awry during attack on U.S. outpost."

Come here: The United States continues its legal fight to win the extradition of five detainees to face terrorism charges in courts here, The New York Times reports. British judges are set to rule today in the dispute. Authorities in Britain could "move instantly" to send the men to the United States if their appeal is rejected.

Notes of disapproval: From The New York Law Journal, a piece about wine and the law: "The statute of limitations bars billionaire wine aficionado William Koch from collecting damages from Christie's auction house for allegedly touting bottles of wine as coming from the cellars of Thomas Jefferson, the U.S. Court of Appeals for the Second Circuit ruled yesterday."

Judge Weighs Allowing Controversial 'Defeat Jihad' Ads in D.C. Metro Stations

A Washington federal district judge heard arguments today on whether to allow a controversial ad with the message, "Support Israel/Defeat Jihad," to be posted in Metro rail stations over the public safety-related objections of agency officials.

Today's hearing took place less than two weeks after the same ad went up in New York subway stations, following a Manhattan federal judge's finding that transit officials had run afoul of the First Amendment. U.S. District Judge Rosemary Collyer did not rule from the bench, saying she needed more time to consider a case that she did not find clear-cut.

The ad reads: "In any war between the civilized man and the savage, support the civilized man," with the tag, "Support Israel/Defeat Jihad." The American Freedom Defense Initiative, the New York-based group behind the ad, sued the Washington Metropolitan Area Transit Authority on September 20, two days after the agency told the group that it would not allow the ads to go up as planned in stations on September 24.

D.C. Circuit Questions Secrecy Over Drones in Records Dispute

The U.S. Justice Department today in a federal appeals court in Washington continued to press the government's claim that it has not officially acknowledged any CIA role in the use of drones to target and kill suspected terrorists abroad.

A top Justice lawyer, Stuart Delery, the acting head of the department's Civil Division, told the U.S. Court of Appeals for the D.C. Circuit that it should uphold the dismissal of a suit that seeks records about drones and targeted killing of alleged terrorists. A trial judge in Washington earlier ruled against the American Civil Liberties Union, which sued to access records about drones. The CIA has refused to confirm or deny the existence of any documents about drones.

Delery today disputed the notion that statements about drones by President Barack Obama and former CIA Director Leon Panetta amount to anything more than "ambiguous" remarks about the effort to fight terrorism. Statements from the president and Panetta, now the Defense Department secretary, are not "official acknowledgement" that the CIA has participated in drone strikes, Delery argued.

Judge Merrick Garland, who heard the case with judges David Tatel and Thomas Griffith, appeared the most skeptical of the government's position. Garland questioned Delery about whether disclosure of information about drones—for instance, any collateral damage assessment—would harm the national security. Likening the CIA to an "emperor," Garland said DOJ wants the appeals court to find the agency has clothes "even when the emperor's bosses say it doesn't."