The BLT: The Blog of Legal Times

Guantanamo Lawyers Fight DOJ Request for Shutdown Extension

Lawyers for detainees at Guantánamo Bay are fighting the U.S. Department of Justice's attempt to push back filing deadlines because of the government shutdown. The detainees' lawyers say the case, a dispute over access to counsel, is too important to delay.

The government is appealing a federal district judge's order from July blocking the U.S. Department of Defense from requiring detainees to undergo groin searches before meeting with lawyers. U.S. District Senior Judge Royce Lamberth in Washington found the search policy was designed to actively discourage detainees from communicating with their lawyers.

On October 11, the government asked the U.S. Court of Appeals for the D.C. Circuit to extend its deadline for a brief due October 22, citing the Justice Department's limited operations during the shutdown. Today, lawyers for the detainees replied that they would agree to push back the deadline by a few days, but not to the degree the government wanted.

House Armed Services Committee GC Heads to Covington

By Alex Zank

The former general counsel and deputy staff director of the House Armed Services Committee is joining Covington & Burling's public policy and government affairs practice. Roger Zakheim starts November 4.

On Capitol Hill, Zakheim worked on the passage of legislation authorizing the Defense Department’s $600 billion budget, and he participated in committee investigations and oversight hearings that focused on issues such as the prevention of sexual assaults in the military, defense budget cuts and the September 2012 attack on the U.S. diplomatic mission in Benghazi.

Zakheim, who joins Covington as of counsel, said he wants to help make the firm “a leader in the areas of national security and defense.” Covington partner David Fagan said Zakheim brings to the firm expertise in the defense industry and the Pentagon.

Lawmakers Sound Alarm Over Shutdown's Blow to Judiciary

By Todd Ruger and Zoe Tillman

Democratic lawmakers are raising increasing concern on Capitol Hill about the harm the government shutdown will impose on the federal judiciary, which is expected to run out of operating funds October 15.

Until now, the federal courts largely have remained on the sidelines of the shutdown debate as the more immediate and visible effects--the estimated 800,000 government workers furloughed and the closure of national parks and Washington attractions--dominated the discourse.

On Friday, House Judiciary Committee Democrats announced a forum on Capitol Hill where legal experts on the judiciary will examine the fallout from the shutdown, which began October 1. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) today delivered a floor speech highlighting the potential pitfalls for the federal courts when the judiciary's reserves are depleted. The court has been operating on reserve funds.

"Our courts have been forced to run on fumes for far too long, they can't run on empty, so we should stop playing games with our co-equal branch of government," Leahy said on the Senate floor today.

Intelligence Officials Warn of Consequences of Shutdown

By Alex Zank

The consequences of the government shutdown, now in its second day, are becoming increasingly more dire, James Clapper, the Director of National Intelligence, told the Senate Judiciary Committee at an oversight hearing today.

"On top of the sequestration cuts, this seriously damages our ability to protect the safety and security of citizens," Clapper said. He added: "This is not just a beltway issue." The shutdown, he said, will affect the intelligence community's effectiveness internationally.

Sen. Chuck Grassley (R-Iowa), the top Republican on the judiciary committee, expressed concern to Clapper and Keith Alexander, director of the National Security Agency, about the high number of government workers in the intelligence community (70 percent) who are not on the job now because of the shutdown. Grassley suggested that there are too many government employees working on tasks that are not essential to the protection of the national security.

Clapper said his intelligence office made tough decisions on which employees to keep on the job during the shutdown. The Office of the Director of National Intelligence, he said, kept staff “essential to protect against imminent threat,” as required by shutdown protocol.

D.C. Circuit Hears Guantanamo Detainee Challenge

The en banc U.S. Court of Appeals for the D.C. Circuit heard arguments today in a case that could undo a terrorism conviction and reshape how the government prosecutes criminal charges against other detainees held at Guantanamo Bay, Cuba.

The court was asked whether military commissions could hear charges that weren't defined as war crimes under international law when the defendant was accused of committing them. Congress passed a law in 2006 spelling out the jurisdiction of the military commissions, but detainee Ali Hamza al-Bahlul-along with other detainees at Guantanamo Bay-was charged several years earlier.

Retroactive application of new criminal statutes is generally considered unconstitutional. Today's arguments came down to whether the crimes al-Bahlul was convicted of-conspiracy, solicitation and material support for terrorism-were considered war crimes under the international law of war before 2006.

Privacy Board Set to Assess Surveillance Court, Patriot Act

The Senate Judiciary Committee today approved retired U.S. Circuit Judge Patricia Wald's re-nomination to a White House panel that's looking at privacy law in the context of the national security.

Wald, the former chief judge of the U.S. Court of Appeals for the D.C. Circuit and soon to be Medal of Honor recipient, has served on the recently-revived Privacy and Civil Liberties Oversight Board for more than a year. Wald's confirmation to the board is not controversial; she was approved in committee today with a voice vote and now awaits a vote in the full Senate.

Still, the board has moved into the national spotlight amid growing public concern about the scope of the National Security Agency's domestic telephone and internet surveillance programs. Senator Chuck Grassley (R-Iowa) noted in written remarks before today’s vote that he has concerns about the NSA surveillance review panel the Obama administration recently established.

Ex-FBI Contractor to Plead Guilty in Leak Case

A former FBI bomb technician and contractor will plead guilty to leaking information to the Associated Press about a thwarted terrorist plot, the U.S. Department of Justice announced today.

Donald Sachtleben was an FBI employee from 1983 to 2008, when he became a contractor for the agency. In 2009, Sachtleben began a source-reporter relationship with an AP reporter that culminated with him leaking information in 2012 on a foiled attack. The statement of offense didn't name the AP, but it included the title of an article published by the news outlet about the incident.

The Justice Department came under fire earlier this year when the AP revealed that its phone records were subpoenaed as part of the government's investigation into the leak. The department defended its actions, but U.S. Attorney General Eric Holder Jr. reached out to media outlets during the height of the controversy and the department subsequently revised its policies on gathering information from reporters.

Judge Unseals Information on Guantanamo Counsel Access

A Washington federal judge today unsealed new information in a dispute over access to counsel at the detention center at Guantanamo Bay.

In response to a motion filed by a reporter, U.S. District Senior Judge Royce Lamberth ordered the full version of a declaration on detainee search procedures filed by Col. John Bogdan be made public. The government originally filed the declaration under seal, and then released a redacted version. Today, Lamberth said the government had failed to justify keeping the remaining portions confidential.

"Before the Court will deem nonclassified information protected, 'the government must give the court a basis for withholding [the information] from public view,'" Lamberth wrote. "The government has failed to do so here."

DOJ, ACLU Quarrel in Suit Over Drone Records

Back in March, a federal appeals court in Washington revived a fight over the government's intent to keep secret any document about drone strikes. Ruling for the challengers, the U.S. Court of Appeals for the D.C. Circuit asked a trial judge in Washington to take a second look.

Now, with the case is back in Washington's federal trial court, the challengers contend the U.S. Department of Justice hasn't budged from its earlier position in the Freedom of Information Act lawsuit.

"Quite remarkably…the CIA’s position on remand is not much different than it was when plaintiffs first filed this suit," American Civil Liberties Union attorneys said in court papers filed September 13. The attorneys, including Hina Shamsi and Jameel Jaffer, added: "Although the agency now acknowledges the bare, obvious fact that it possesses records about the drone program, it refuses to describe these records, or even enumerate them."

FISA Court Orders Declassification Review of Select Rulings

Over the objection of the U.S. Department of Justice, the Foreign Intelligence Surveillance Court today ordered the government to conduct a declassification review of rulings that address the provision of federal law that allowed the government to collect data on hundreds of millions of phone calls.

The American Civil Liberties Union in June asked the surveillance court to disclose opinions that evaluate the "meaning, scope and constitutionality" of Section 215 of the USA Patriot Act. Under that provision, the National Security Agency obtains phone record data, including the time and duration of calls, from major telecommunications companies.

In ordering the government to conduct a declassification review, U.S. District Judge F. Dennis Saylor IV, who sits on the Foreign Intelligence Surveillance Court, today noted the ongoing, national debate about the scope of surveillance. That debate began this summer after The Guardian newspaper published a series of stories based on FISA court and other information former NSA contractor Edward Snowden obtained.

"The unauthorized disclosure in June 2013 of a Section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate about Section 215," Saylor, a federal trial judge in Massachusetts, wrote in today's ruling. "Publication of FISC opinions relating to this provision would contribute to an informed debate."