The BLT: The Blog of Legal Times

Verizon Wants Claims in NSA Surveillance Suit Dismissed

Shortly after a federal judge in Washington ruled that a National Security Agency phone surveillance program is "almost certainly" unconstitutional, Verizon Communications Inc. moved to dismiss claims against the company in the case.

The challengers sued to hold Verizon liable for allegedly complying with government requests for American citizens' phone records. Verizon said that if it was obeying court orders to provide that information-a claim the company didn't admit-that would make the telecommunications company immune from liability for any alleged privacy violations.

"Companies are required to comply with court orders and cannot be sued for allegedly doing so," Verizon's attorney, Randolph Moss of Wilmer Cutler Pickering Hale and Dorr, argued in the brief.

Judge Finds NSA Surveillance 'Almost Certainly' Violates Privacy Rights

The National Security Agency's bulk collection of telephone records likely violates privacy rights of individual Americans, a federal trial judge in Washington ruled today.

Describing the government's surveillance efforts as "almost-Orwellian," U.S. District Judge Richard Leon found the challengers in a lawsuit in Washington were likely to succeed on their Fourth Amendment privacy claims.

Leon granted an injunction that would have stopped national security officials from collecting telephone record data on two of the plaintiffs. (The challengers have not certified a class to date.) However, the judge put that order on hold pending the government’s likely appeal.

The Morning Wrap

Watching: "In an unusual move that raised the stakes in a major copyright battle between broadcast television networks and the upstart Aereo service, Aereo Inc. on Thursday urged the U.S. Supreme Court to resolve the dispute, even though it won in the court below," The National Law Journal reports. Bloomberg has this report, and Hollywood Reporter has coverage here.

Tracking: The full U.S. Court of Appeals for the Third Circuit will rehear a dispute over the warrantless use of GPS trackers, The Legal Intelligencer reports today. The panel ruled against the U.S. Justice Department, which urged the court to find police acted in good faith. Volokh Conspiracy blogger Orin Kerr has this analysis today. The panel ruling is here.

Reforming: The New York Times reports: "A presidential advisory committee charged with examining the operations of the National Security Agency has concluded that a program to collect data on every phone call made in the United States should continue, though under broad new restraints that would be intended to increase privacy protections, according to officials with knowledge of the report’s contents." Coverage here in The Wall Street Journal.

Hacking: Federal prosecutors in Alexandria are seeking a 10-month prison sentence in a computer hacking case in which an aspiring medical student tried to change his MCAT scores. The Washington Post reports: The "tech mercenaries got into the system, though their efforts did not go undetected. Now, the 24-year-old University of Michigan graduate whom prosecutors portray in court papers as a desperate — though not wholly unsuccessful — fraudster could be headed to prison. The government's sentencing memo is here.

After Acquittal on Piracy, Jury Hangs on Remaining Charges

A Washington federal district judge today declared a mistrial in the prosecution of a Somali man accused of aiding high-seas pirates. The jury in November acquitted Ali Mohammad Ali of piracy—the most serious of the crimes he was charged with—and, after more deliberations, deadlocked on two lesser charges.

Ali was sent back to jail following today's announcement of a mistrial in U.S. District Court for the District of Columbia. The government has the option of retrying Ali on the lesser charges of hostage-taking that were the subject of the mistrial, but not the piracy charge. The next court hearing is scheduled for Dec. 18.

In late 2008, according to court filings, pirates seized a ship in the Gulf of Aden close to the Horn of Africa. The ship's owner paid a $1.7 million ransom for the ship's release. Ali was accused of boarding the ship two days after the attack and serving as the pirates' negotiator.

Bucking Convention, Veteran Prosecutor Joins Plaintiffs Firm

As former federal prosecutor Matthew Axelrod puts it, there's a "well-trod" path between the U.S. Department of Justice and white-collar defense practices at big law firms.

Axelrod, who left the Justice Department earlier this month, is taking a less-traveled road. In January, he'll join Cohen Milstein Sellers & Toll as a partner in the firm's Washington office, handling class actions and other plaintiffs work.

"Joining a plaintiffs firm is natural extension of the work I did as a prosecutor over the past 10 years," he said in a phone interview. "It's still working to hold corporate wrongdoers accountable. It's just using the civil justice system instead of the criminal justice system to do that."

Air Force G.C. Heads to Arnold & Porter

A former general counsel for the U.S. Air Force who previously served as the top lawyer in the U.S. Army is headed to Arnold & Porter, the firm announced today.

Charles Blanchard is joining as partner the firm’s government contracts and national security practices in early January. Blanchard will focus on defense clients, particularly on issues that include weapons systems procurement, enforcement, classified programs and cyber security, the firm said.

Blanchard left the public sector because, he said, he felt his work was done and it was time for someone new to take over.

“In my experience after three or four years in these positions, it becomes comfortable, you’ve accomplished what you wanted to accomplish,” Blanchard said in an interview.

Justice Dept. Fights $2M Fee Request in Voting Rights Case

The U.S. Department of Justice is fighting a request from the lawyers for Shelby Co., Ala., for more than $2 million in legal fees and costs tied to their challenge of the constitutionality of a provision of the Voting Rights Act.

The government on Dec. 6 in Washington federal district court filed its opposition to the attorney fees and litigation expenses that Shelby County's lawyers—led by Bert Rein of Wiley Rein—contend they should receive for their work.

The U.S. Supreme Court in June, in a 5-4 decision, struck down the provision of the Voting Rights Act that established the formula for determining which jurisdictions were required to give the Justice Department or a federal court the authority to review certain electoral changes before they were implemented.

Justice Department lawyers argue in their papers that Shelby County—despite prevailing in the high court—is not entitled to legal fees from the federal government. The department's court filing is here.

D.C. Circuit Weighs Challenge to Groin Searches at Guantanamo Bay

A federal appeals court in Washington heard arguments today over a body search policy at Guantanamo Bay that lawyers for detainees contend restricts access to counsel.

A trial judge in July blocked the new policy, concluding the groin-area searches were religiously and culturally offensive to detainees and that the new policy was aimed at interfering with detainees' ability to meet with their lawyers. The U.S. Department of Justice today, defending the searches, asked a three-judge appellate panel to reverse that ruling. The government argued the trial judge lacked jurisdiction to block the new policy.

U.S. Department of Justice lawyer Edward Himmelfarb began arguments by explaining that the searches involved full-body frisks of fully clothed detainees. Judge Thomas Griffith jumped in, asking about the government's justification for groin-area searches detainees found "provocative" and "offensive."

D.C. Judge Reproached for 'Inappropriate' Comments

In a rare public rebuke, a judicial review commission found District of Columbia Superior Court Judge Natalia Combs Greene made "inappropriate" comments to litigants in court and at times behaved in a manner that was "rude" and "intimidating."

The D.C. Commission on Judicial Disabilities and Tenure received "numerous" complaints about Greene's "discourteous and impatient treatment of litigants," especially those without a lawyer, when she served in the busy landlord and tenant court, according to a Nov. 13 letter from the commission's chairwoman, U.S. District Judge Gladys Kessler, to Superior Court Chief Judge Lee Satterfield.

The commission ultimately recommended Greene for appointment as a senior judge following her retirement earlier this year. Kessler wrote that Greene's positive traits as a judge and "significant contribution to the Court" outweighed concerns about her temperament in certain cases. Still, the commission suggested she not be assigned in the future to landlord and tenant or other high volume calendars.

Justice Dept. Sued Over Access to Non-Prosecution Agreement

The U.S. Department of Justice is being sued over its refusal to publicly disclose a $2 million non-prosecution agreement prosecutors reached with a Houston-based tree services company that employed undocumented workers.

The U.S. Attorney's Office of the Southern District of Texas issued a news release in May 2012 revealing the deal between prosecutors and ABC Professional Tree Services Inc. The company agreed to forfeit $2 million in revenue that flowed from the use of undocumented workers between 2006 and 2011, DOJ officials said.

But prosecutors will not disclose a copy of the agreement between the government and ABC, according to a Freedom of Information Act lawsuit filed Nov. 26 in U.S. District Court for the District of Columbia. The Thomas Jefferson Center for the Protection of Free Expression represents the challenger, Jonathan Ashley, a business reference librarian at the University of Virginia School of Law.

Ashley and Brandon Garrett, a criminal justice professor at the law school, run a web site that features hundreds of deferred prosecution agreements and non-prosecution agreements. Garrett in 2007 published an article in the Virginia Law Review that explored these pre-trial deals—where the government often collects a fine, and demands remedial action, in exchange for not pursuing criminal charges.