The BLT: The Blog of Legal Times

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."

Privacy Group Pushes TSA to Start Review of Airport Screening Program

Privacy advocates are urging a federal appeals court in Washington to pressure the Transportation Security Administration to begin the rulemaking process on the agency's controversial airport screening program.

The Electronic Privacy Information Center in July filed a petition in the U.S. Court of Appeals for the D.C. Circuit asking the court to force the transportation agency to initiate the process, which would allow the public to provide comment about the use of whole body imaging screeners.

EPIC's lawyers, including Marc Rotenberg, said in court papers filed Monday that the appeals court should not tolerate "substantial agency delay." The D.C. Circuit, he said, should require the TSA to begin rulemaking within 60 days.

The legal action flows from a ruling in the appeals court last year that said the TSA failed to conduct notice-and-comment rulemaking before using whole body-imaging scanners at airports across the country. The D.C. Circuit, however, did not vacate the agency's underlying rule, saying that such a move "would severely disrupt an essential security operation." The appeals court instead instructed TSA to "promptly on remand" fix the "defect" over the implementation of the new scanners.

Judge Rebukes Feds Over Attempt to Change Gitmo Attorney-Client Rules

A federal judge in Washington, in a strong rebuke today against the government, refused to change the rules that have long governed communication and meetings between Guantanamo Bay detainees and their lawyers.

Chief Judge Royce Lamberth ruled against an attempt by the U.S. Justice Department to put more control in the hands of the Defense Department over counsel-access issues in certain cases. DOJ lawyers argued the changes should apply to detainees and their lawyers who are no longer actively litigating a detention challenge. Lamberth's decision is here.

Lawyers for detainees assailed any change to the rules that controlled their access to the base and to their clients. Lamberth today sided with the detainees' counsel, calling the government's effort to modify existing rules an "illegitimate exercise of Executive power." A protective order, the judge said, has been in place for four years without any notice from the government that an attorney has violated the rules.

"The old maxim 'if it ain't broke, don't fix it' would seem to caution against altering a counsel-access regime that has proven safe, efficient and eminently workable," Lamberth said today in his ruling. "Indeed, the government had no answer when the court posed this question in oral arguments."

DOJ: No Criminal Charges in Detainee Death Investigation

Updated 5:29 p.m.

The Justice Department today announced prosecutors will not pursue criminal charges rooted in the death of two detainees in United States custody overseas.

A special prosecutor, John Durham of the U.S. Attorney's Office for the District of Connecticut, announced last June the opening of a full criminal investigation of the deaths of the two detainees. That investigation is now closed.

"Based on the fully developed factual record concerning the two deaths, the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt," Attorney General Eric Holder Jr. said in a statement issued this afternoon.

Lawyers for Gitmo Detainees Argue Against New Attorney-Client Rules

Concerned that the federal government is moving to "hamstring" the rights of detainees at the Guantanamo Bay detention center, lawyers for detainees argued today against a new set of U.S. Department of Justice guidelines that would govern attorney-client relationships.

Protective orders issued by the U.S. District Court for the District of Columbia have since 2004 guided how attorneys can meet with their clients and how confidential information is handled. The government has asked attorneys for detainees who no longer have cases pending to sign a "memorandum of understanding" that would change some of those rules and give greater discretion to the commander of Joint Task Force-Guantanamo.

U.S. District Chief Judge Royce Lamberth pressed Justice Department lawyer James Gilligan about why the change was needed and why it wouldn’t run afoul of previous case law holding that detainees had a right to counsel to access the courts. Lamberth said he was "puzzled" by the move, given that lawyers on both sides hadn't run into problems with the protective orders so far, and that he was inclined to go by the old adage of, "If it ain't broke, don't fix it."

Judge Awards $300M to Grandson of Assassinated Iranian General

The grandson of an Iranian general assassinated in Paris in 1984 was awarded $300 million in punitive damages yesterday by a Washington federal judge.

Amir Reza Oveissi, who lives in the United States, sued the Iranian government in 2003 in U.S. District Court for the District of Columbia, accusing officials of orchestrating General Gholam Ali Oveissi's death. He won a judgment of $7.5 million in solatium damages in 2011, and then sued for punitive damages under the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act.

U.S. District Chief Judge Royce Lamberth issued an order yesterday awarding Oveissi $300 million in punitive damages, concluding in his opinion (PDF) that "defendant Iran must be punished to the fullest extent legally possible for the violent assassination of plaintiff's [grand]father."

DOJ Builds Criminal Case Against Blackwater Security Guards

Prosecutors in Washington are building a new criminal case against a group of former Blackwater private security guards whom the government believes wrongly killed more than dozen Iraqi civilians in a Baghdad shootout in 2007.

A federal judge in December 2009 dismissed the government's high-profile, controversial manslaughter case, saying that the prosecution was unlawfully built on protected statements that the guards made after the shooting. The prosecution, Urbina concluded, was tainted with information that the prosecutors should never have used.

The U.S. Court of Appeals for the D.C. Circuit last year revived the prosecution, and the U.S. Supreme Court in June declined to review the case. The appeals court concluded the trial judge, Ricardo Urbina, who has since retired from the bench, didn't apply the right law in dismissing the indictment.

Assistant U.S. attorneys Anthony Asuncion, John Han and T. Patrick Martin have taken over the manslaughter prosecution from another crew of federal prosecutors. Asuncion said today at a status hearing that the government is moving forward to obtain a superseding indictment. He did not discuss potential new charges.

D.C. Circuit Revives FBI Agent's Discrimination Claim Against Bureau

One of the highest-ranking Arab-American agents at the FBI today won a second chance to pitch a discrimination claim rooted in allegations the bureau bypassed him for a key counterterrorism role after the Sept. 11 attacks.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit revived discrimination claims that the agent, Bassem Youssef, an Egyptian-born American citizen, filed against the FBI in Washington's federal trial court.

The appeals court, however, upheld a jury's verdict that rejected Youssef's retaliation claims against the FBI. The discrimination part of the suit alleged the FBI should have put Youssef in a substantive counterterrorism role after the Sept. 11 attacks. The suit was first filed in 2003.

Youssef claimed in the complaint that the FBI should have used his experience and language skills in a counterterrorism position following the terror attacks. Youssef was instead placed in a new program in the FBI that examined written material seized in Afghanistan and Pakistan.

Judge Weighs Bagram Detainees' Challenge to Imprisonment

A federal judge in Washington is assessing for a second time whether certain detainees at an airbase in Afghanistan should have access to U.S. courts to contest their continued military imprisonment.

The U.S. Court of Appeals for the D.C. Circuit in May 2010 overturned U.S. District Judge John Bates' earlier ruling, a decision that went against the U.S. Justice Department. Bates ruled in favor of three non-Afghan detainees—a Tunisian and two Yemenis—in extending habeas rights to Bagram detainees. The U.S. Supreme Court in 2008 granted prisoners held at the Guantanamo Bay facility the right to use federal civilian courts to fight detention.

The appeals court, in overturning Bates, distinguished between the Bagram airbase, which is situated in a war zone, and the Guantanamo facility in Cuba, where the U.S. government has maintained control for more than a century. With the Bagram dispute back in the trial court, Bates is assessing the government's motion to dismiss the legal action.

Ramzi Kassem of the City University of New York Law School said in court today that the continued passage of time "makes a world of a difference" in cutting against the merits of continued detention at Bagram. The U.S. government, he also said, has demonstrated a capacity at Bagram to oversee trials there.

Judge Awards $813M to Victims of 1983 Beirut Terrorist Bombing

A Washington federal judge awarded $813 million to victims of the 1983 terrorist bombing at the U.S. Marine barracks in Beirut, Lebanon, the latest in a string of large money judgments awarded against Iran for its role in the attack.

As U.S. District Chief Judge Royce Lamberth noted in his opinion (PDF) opinion on July 3, the D.C. federal court has issued more than $8.8 billion in judgments against Iran to date for its role in the bombing. "Iran is racking up quite a bill from its sponsorship of terrorism," Lamberth wrote.

The attack killed 241 servicemen and wounded many others. In 2003, the court found the Iranian government liable for supporting the terrorists behind the attack, a ruling that's been applied to subsequent cases and the source of a few particularly large judgments in the past year. Lamberth awarded $2.1 billion in one case in March and $1.2 billion in another case in December.