The BLT: The Blog of Legal Times

U.S. Attorneys Assigned to Leak Probe Facing Tough Task

Attorney General Eric Holder Jr. says he is confident two U.S. attorneys will "doggedly follow the facts" as they investigate the possible unauthorized disclosure of classified national security information.

But a criminal prosecution--assuming there was a crime--is far from certain. And some critics, calling for a special counsel, said they're concerned about a potential conflict of interest within the executive branch.

Holder on Friday assigned Ronald Machen Jr., the U.S. attorney for the District of Columbia, and U.S. Attorney Rod Rosenstein of Maryland, to lead criminal investigations following press reports about President Barack Obama’s decision-making about the so-called “kill list” and the government’s alleged involvement in using a computer virus to attack Iranian nuclear systems. Holder has a chance Tuesday to defend the leak probe when he appears at a Senate Judiciary Committee oversight hearing.

“These two highly-respected and experienced prosecutors will be directing separate investigations currently being conducted by the FBI,” Holder said in the statement, which did not identify any particular leak. “I have every confidence in their abilities to doggedly follow the facts and the evidence in the pursuit of justice wherever it leads.”

DOJ Seeks Life Sentence in Rare Narco-Terrorism Case

Federal prosecutors in Washington are seeking a life sentence for an Afghan national convicted for his leadership role in an international heroin distribution network.

Haji Bagcho, charged in U.S. District Court for the District of Columbia in 2009, was convicted at trial in March. A mistrial was declared last year after jurors deadlocked in the rare prosecution under so-called “narco-terrorism” laws.

Bagcho was prosecuted under federal laws that target drug distributors abroad whose enterprises are connected to alleged terror activity. Prosecutors told jurors that Bagcho used money from the sale of heroin to “fund and supply powerful Taliban commanders.” Bagcho's trial was only the second ever under the narco-terrorism statute.

“It can be fairly said that the defendant is perhaps the largest drug trafficker by volume, and certainly the largest drug trafficker by share of global production, ever brought to justice in the United States,” DOJ lawyer Matthew Stiglitz, deputy chief of the human rights and special prosecutions section, said in a sentencing memo (PDF).

Wiretap Law Draws Scrutiny as Reauthorization Vote Nears

The Department of Justice wants Congress to reauthorize a five-year-old law that is one of the top tools for collecting foreign intelligence, but Democrats and privacy advocates say the public deserves more oversight on how it is used.

The Foreign Intelligence Surveillance Act allows the government to intercept e-mails and phone calls without a warrant. No detail of the programs results gets to the public, the critics complain, and little gets to Congress.

Rep. John Conyers (D-Mich.) said Director of National Intelligence James Clapper Jr. will not disclose even in closed-door security briefings with Congress how many people are being subjected to surveillance in the United States.

Judge Orders Syria and Iran to Pay $332M in State-Sponsored Terrorism Case

In what one attorney calls the first judgment of its kind, U.S. District Chief Judge Royce Lamberth recently ordered Iran and Syria to pay $332 million for their role in a 2006 suicide attack in Israel that killed eleven people.

The family of Daniel Wultz, an American sixteen-year-old killed in the attack, sued the Iranian and Syrian government in 2008 in U.S. District Court for the District of Columbia. The Wultz family accused both countries of providing financial and other material support to the group responsible for the attack, the Palestinian Islamic Jihad.

In an opinion (PDF)opinion published Monday, Lamberth found that both countries were liable for the attack under the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act. Robert Tolchin of the Berman Law Office in Brooklyn, NY, the Wultz family's lawyer, said he believed this was the first judgment ever entered in a U.S. court against Syria for supporting a terrorist attack in Israel.

Changing Roles on Secret Appeals Court in Washington

Judge Morris Arnold of the U.S. Court of Appeals for the Eighth Circuit will take over as the presiding judge of a secret federal appeals court in Washington this week, a court official said today.

Arnold, appointed to the Eighth Circuit in 1992, will serve as the presiding judge of the Foreign Intelligence Surveillance Court of Review until the remainder of his term, which expires in May 2015. Arnold replaces Judge Bruce Selya of the U.S. Court of Appeals for the First Circuit, whose term on the surveillance appeals court ends Friday.

The three-judge Foreign Intelligence Surveillance Court of Review hears government appeals from the lower Foreign Intelligence Surveillance Court. The surveillance court, based in the E. Barrett Prettyman U.S. Courthouse in Washington, examines national security wiretap applications from the government. The lower court’s proceedings, like the appeals court, are secret. Public rulings are rarely issued.

The Morning Wrap

Closing Time: Dewey & LeBoeuf's intellectual property group in Northern California will split and form an 11-attorney boutique, The Recorder reports. The firm's California offices are set to close next week. Meanwhile, the embattled firm was hit with a suit under the Worker Adjustment and Restraining Act, which seeks class certification on behalf of 450 employees terminated this month, The AmLaw Daily reports.

Think Small: Lawyers for Volkswagen Group of America are challenging the award of $30 million in attorney fees given to plaintiffs lawyers in a multidistrict case, The National Law Journal reports. The U.S. Court of Appeals for the First Circuit did not immediately rule yesterday.

Just Beat It: Former federal aviation chief J. Randolph Babbitt beat a drunken driving charge in Virginia after a judge found that a police officer stopped the ex-FAA official's vehicle without good reason, The Washington Post reports. The case led to Babbitt's resignation from the Federal Aviation Administration. Peter Greenspun represented Babbitt.

The Roots: The double-agent in Yemen who disrupted an al Qaeda bomb plot held a European Union passport and was raised in the West, The Wall Street Journal reports. The man's Western upbringing facilitated his travel.

The Morning Wrap

On Notice: Stephen Horvath, executive partner of Dewey & LeBoeuf, on Friday sent to the firm's U.S. employees a memo that said "it is possible that adverse developments could ultimately result in the closure of the Firm," providing the clearest signal yet that Dewey is close to shutting its doors, The Am Law Daily reports.

Growing: The legal sector expanded by 3,900 jobs in April, The Am Law Daily reports. The sector lost 1,700 positions in March.

'Peaceful Struggle': Khalid Sheikh Mohammed, the self-described mastermind of the Sept. 11 attacks, and four of his alleged co-conspirators on Saturday appeared for their arraignment in a Guantanamo Bay military courtroom, The Washington Post reports. The “arraignment demonstrates that this will be a long, hard-fought, but peaceful struggle against secrecy, torture and the misguided institution of the military commission," said James Connell, a lawyer for defendant Ali Abd Aziz Ali.

The Morning Wrap

Tossed: The 9th U.S. Circuit Court of Appeals threw out a convicted terrorist's lawsuit against John Yoo, a high-ranking Bush administration lawyer who wrote so-called "torture memos," the AP reports. Jose Padilla accused Yoo of authorizing harsh treatment of enemy combatants, but the court said the former deputy assistant attorney general wrote the memos in the two years after the Sept. 11 terror attacks, when the law defining torture and the treatment of enemy combatants was unsettled.

Spilled: A judge gave preliminary approval to BP's estimated $7.8 million settlement of more than 100,000 claims by individuals and businesses stemming from the 2010 Gulf of Mexico oil spill, Reuters reports. The settlement does not cover claims by the U.S. government or Gulf Coast states, which could amount to tens of billions of dollars.

Suspended: Could the handful of New Orleans Saints players, who were suspended on grounds they embraced a bounty program that gave monetary rewards for injuries to opponents, appeal their punishment to the Supreme Court?, USA TODAY ponders but does not answer.

DOJ Asks Judge to Keep Documents Secret in Detention Dispute

The Justice Department yesterday asked a federal judge in Washington to block the release of internal legal documents that a U.S. citizen detained in Yemen said he wants to review for his defense in a case there.

DOJ lawyers said the Office of Legal Counsel documents that the citizen, Sharif Mobley, wants to see, are classified and cannot be publicly disclosed. The government also maintains that attorney-client and other privileges should apply to keep the information secret.

Mobley’s suit in U.S. District Court for the District of Columbia gained some traction in February when U.S. District Judge Beryl Howell refused the government's request to dismiss the litigation. Mobley's lawyers contend the Justice Department in unlawfully holding onto internal documents that could pertain to his arrest and detention in Yemen.

The Morning Wrap

Hoping: The Obama administration's best hope to save its signature healthcare law is Justice Anthony Kennedy, Adam Liptak of The New York Times reports. Solicitor General Donald Verrilli Jr.'s closing remarks in the high court this week were targeted to Kennedy. The Wall Street Journal's Jess Bravin examines the role Chief Justice John Roberts Jr. will play in the discussion of the validity of the law.

Losing: A federal judge in Massachusetts this week refused to dismiss a suit against the government that claims the authorities seized electronics from a man who supports Bradley Manning, the soldier accused of disclosing classified information to WikiLeaks. The National Law Journal's Sheri Qualters said the trial judge determined the plaintiff, David House, has alleged sufficient facts to allow the suit to proceed.

Recruiting: Federal authorities in Virginia said they have dismantled a child prostitution ring, charging five gang members who allegedly recruited teenage girls via Facebook, Reuters' Jeremy Pelofsky reports.

Running and Hiding: In the nine years he was on the run, Osama bin Laden had four children and sought shelter in five safe houses, The New York Times' Declan Walsh writes. The testimony of one of bin Laden's wives has provided the most detailed account yet of the Al Qaeda leader's life. Bin Laden was killed in May 2011.

Winning: The estimated jackpot of tonight's Mega Millions lottery game is now at $540 million, the largest ever in U.S. history. Lottery agents in New York were selling 1.3 million tickets per hour yesterday. The cash option: about $390 million. Before taxes, of course. The Associated Press crunches the odds. Good luck tonight.