by Andrew Zajac

The Washington-based Secrecy News, a careful observer of government behavior in the capital, has posted this item about the appointment of a pair of federal judges, including James Zagel, of the Northern District of Illinois, to the secret court overseeing government applications for domestic eavesdropping under the Foreign Intelligence Surveillance Act.

INTEL SURVEILLANCE COURT GETS TWO NEW JUDGES

Two new judges were named to the Foreign Intelligence Surveillance Court this week, Secrecy News has learned, one a Clinton appointee and one a Reagan appointee.

Judge Mary A. McLaughlin of the Eastern District of Pennsylvania and Judge James B. Zagel of the Northern District of Illinois were appointed to seven year terms on the secret court by the Chief Justice to replace Judge James G. Carr and Judge Nathaniel M. Gorton, whose terms expired on May 18.

The Foreign Intelligence Surveillance Court is responsible for reviewing and approving government applications under the Foreign Intelligence Surveillance Act for domestic electronic surveillance and physical search of suspected foreign intelligence agents or terrorists.

But it does more than that. The Court also reinterprets the terms of the Act in an undisclosed fashion, producing in effect a body of "secret law," a matter discussed at an April 30 hearing of the Senate Judiciary Committee.

"The FISC has in fact issued... legally significant decisions that remain classified and have not been released to the public," observed Judge John D. Bates, a member of the FIS Court, when he denied an ACLU motion for disclosure of portions of those decisions last December.

The appointment of new judges to the FIS Court assumes particular importance today because of a proposal pending in Congress that would refer existing lawsuits alleging illegal warrantless surveillance to the secret FIS Court in what would likely be a severely constrained adjudicative process. The proposal is being considered as an alternative to granting outright immunity to telephone companies that allegedly cooperated with the President's surveillance program.

Judge Mary A. McLaughlin was appointed to the bench in 2000 by President Clinton. She was formerly an Assistant U.S. Attorney in the District of Columbia, and a special counsel to the Senate Judiciary Subcommittee on terrorism during the Ruby Ridge hearings in 1995.

Judge James B. Zagel was appointed in 1987 by President Reagan. Judge Zagel is "an intelligent, tough-minded jurist," said the Chicago Council of Lawyers, a public interest association, in a 1991 evaluation. However, "some lawyers are concerned that he will bring a political agenda to bear in certain classes of cases."

The new appointments were confirmed for Secrecy News today by Sheldon L. Snook of the administrative office at the D.C. District Court.

A new appointment to the Foreign Intelligence Surveillance Court of Review, an appeals court, has not yet been formally announced, he said.
But the Providence Journal (RI) reported on April 14 that Judge Morris Sheppard Arnold of the 8th District had been named to the Review Court.

An updated roster of the membership of the Foreign Intelligence Surveillance Court is here.

"During calendar year 2007, the Government made 2,371 applications to the Foreign Intelligence Surveillance Court for authority to conduct electronic surveillance and physical search for foreign intelligence purposes," the Justice Department told Congress in the latest annual report on FISA activity.

Andrew Zajac

The Swamp occasionally hears from viewers who want to note the passing of someone of unusual distinction.

One such message came from Milwaukee attorney Peter Coffey, who called our attention to the Washington Post obituary of James Unger, a revered and remarkably successful debate coach at Georgetown and American universities.

Unger also was a consultant on presidential debates to several media outlets.

Judging from comments made to a debate listserv, Unger was a larger than life figure who commanded respect and love decades after his students graduated. You can read some of the tributes here: Unger posts.doc

Constitutional scholar Laurence Tribe offered this tribute:

"For most of us during the crucial decade and a half starting in the mid-1970s - the decade in which many of us came of age or settled into our lifetime careers - Jimmy Unger WAS debate, debate as high art, debate as ritual, debate as relentless analysis, debate as bloodless battle. He lived it, breathed it, epitomized it, enjoyed it, perfected it, practiced it, and made it a permanent part of our lives. For all of that, and for the inestimable wit and twinkling wisdom that Jimmy exuded for so many years, we will all owe him a huge and permanent debt. May his memory live forever in and through those of us who cared about him and who were lucky enough to be his friends."

A memorial service is slated for later this afternoon at a Georgetown church.

Andrew Zajac

For decades, the University of Chicago Law School has been a proud beacon of conservative/libertarian thought, a key intellectual breeding ground for the Federalist Society, a proud bulwark against collectivist decision-making and groupthink.

So much so that its motto ought to be: We're not going to save you from yourself!

On second thought, maybe they are.

For the past several weeks the legal blogosphere has been atwitter with discussion about Dean Saul Levmore's ukase shutting off Internet access to law school classrooms.

This is hardly a bolt from the blue. Discussions about getting students off the Web during class has been kicking around law school circles for several years.

Last April, Georgetown Law Prof. David Cole wrote an intelligent Washington Post op ed argument in favor of restricting net access. (Reachable through the link above.)

But you could chalk up his position to being at a Jesuit school. Everyone knows that Jesuits aren't shy about doing something for your own good.

U of C, the midwestern mecca of free markets, was supposed to be different.

by James Oliphant

A Senate subcommittee Tuesday tried to give voice to hundreds of thousands of women in the Democratic Republic of Congo and other places around the world who have been victims of sexual violence during wartime.

"They're the forgotten women in a forgotten war," Lisa Jackson, a filmmaker who recently completed a documentary about rape victims in the Congo, told the committee. "They're the walking dead."

The Judiciary subcommittee on Human Rights and the Law is chaired by Sen. Dick Durbin (D-Ill.). Tuesday marked the first congressional attempt to hear testimony on the use of rape as a weapon in wartime.

"We have a moral obligation to take action to help these brave survivors," Durbin said.

by James Oliphant

Jay Sekulow may be one of the most influential conservatives in the nation. He's a lawyer for the American Center for Law and Justices, the ACLJ (and yes, the initials are on purpose).

Sekulow's largest claim to fame is that he has become the go-to litigator for the Christian Right and social conservatives on issues such as the Ten Commandments and school prayer. He's parlayed his influence into being part of a small group of advisers to President Bush on the issue of judicial nominations. Sekulow is also a prodigious fund-raiser and regularly exhorts his flock to send money so that he can keep up the good fight in Washington.

Here is a message he sent out today.

I am writing to you today about an imperative matter ... urging immediate action.

It is high time that the Senate Judiciary Committee stops playing partisan politics and starts fulfilling its constitutional responsibility.

Stand with the ACLJ on behalf of justice! Add your name right now to our online PETITION TO GIVE JUDICIAL NOMINEES AN UP-OR-DOWN VOTE and demand for a prompt vote for judicial nominees.

by James Oliphant

In what could be a historic decision, a majority of the Supreme Court Tuesday appeared ready to embrace the view that the Second Amendment creates an individual right to own a gun.

While that conclusion alone could elate many gun-rights supporters, that may not have been the most difficult question in the case argued today before the court.

That question is: If such a constitutional right exist, how may legislatures and city councils limit that right? And the profound disagreements Tuesday among the justices on that question suggest that the answer may come amid some serious shades of grey.

by James Oliphant

NEW YORK - Rachel Ehrenfeld writes about terrorism for a living. But now she is the one who feels targeted.

Her modest midtown Manhattan apartment is filled to the ceiling with books, most having to do with global terror networks and Mideast conflict. Sitting at her desk, she gazes out at the Hudson River. She says she has a hard time placing her work. She says she has been blacklisted. If she travels to England, she fears she will be arrested.

"I feel like a leper," she said.

Ehrenfeld faces a $225,000 judgment obtained in a British court in a libel suit brought by a former banker to the Saudi royal family, billionaire Khalid bin Mahfouz. "That's the Damocles sword effect. He's holding it above my head to intimidate me and others," she said.

The source of the trouble is Ehrenfeld's book, "Funding Evil: How Terrorism is Financed and How to Stop It," published by Bonus Books. In it, she named bin Mahfouz as a financier of Osama bin Laden and Al Qaeda. Bin Mahfouz responded by suing Ehrenfeld -- not in the U.S., but in England, which is friendlier to libel claims.

Bin Mahfouz maintains Ehrenfeld's statements about him are false and reckless and says she is perpetuating myths that have followed him around the globe, endangering his business affairs.

Read the full story at chicagotribune.com.

by James Oliphant

It's a shooting war, for certain.

Democrats versus Republicans, cities versus states, cops versus cops, scholars versus scholars, and most bizarrely, the Bush administration against itself.

The root of the conflict lies in a case that will be argued before the Supreme Court on Tuesday, one as dramatic as any in recent memory.

For the first time in almost 70 years, the court will consider whether the 2nd Amendment grants an individual the right to own a gun. It's a day long awaited by gun-rights activists, and long feared by those who favor gun control.

At issue is Washington, D.C.'s near-total ban on gun ownership, a ban declared unconstitutional last year by a federal appeals court. But the impact of the court's decision could have much greater scope, with Chicago having perhaps more at stake than any other city.

The city's gun ban is similar to Washington's, and opponents of that ban have pledged that Chicago will be their next target if they succeed at the high court.

Whether they will is anyone's guess. The Supreme Court hasn't examined the nature of the 2nd Amendment since 1939. For decades, the conventional wisdom has been that the amendment applies only to the arming of state militias, since it reads, "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Read the full story at chicagotribune.com.

Follow this link to read the briefs in the case, including the 67 amici briefs filed.

by James Oliphant

John Bolton, the outspoken former Bush administration official and UN ambassador, is joining Chicago-based Kirkland & Ellis as a senior adviser.

Bolton worked as a senior arms-control policymaker in the State Department and became known for his hawk-like views toward Iraq, Iran and North Korea and a belligerant personal style. His nomination as United Nations ambassador in 2005 became a highly charged affair, largely because Bolton had expressed tremendous antipathy toward the U.N.

He was once quoted as saying that "The Secretariat building in New York has 38 stories. If you lost ten stories today, it wouldn't make a bit of difference." Ultimately, he was never confirmed as U.N. ambassador but made a recess appointment by President Bush and again drew criticism for an abrasive manner while in New York.

But Bolton also earned praise for his hardline stances. In 2006, he was nominated for the Nobel Peace Prize for his efforts to expose Iran's alleged program to obtain nuclear weapons. (American intelligence reports have since rebutted Bolton's conclusions.) He left government service in 2006 and joined the American Enterprise Institute as a senior fellow.

Kirkland & Ellis has long been known as a comfortable environment for prominent conservatives. It still employs former Whitewater independent counsel Kenneth Starr, now the dean of the law school at Pepperdine. And many former and current legal luminaries in the Bush administration worked there at some point in their careers. The current solicitor general of the United States, Paul Clement, was a Kirkland lawyer, as was Brett Kavanaugh, a former White House lawyer who now sits on the federal appeals court in Washington, D.C.

Kirkland says that Bolton "will focus on counseling clients on domestic and international issues in complex corporate, litigation, internal investigations, regulatory and competition matters."

by James Oliphant

The calm couldn't last. Almost three years after the Senate confirmed two Supreme Court justices and rescued the judicial filibuster as part of an innovative bipartisan agreement, tensions are again rising over judicial nominations.

Sen. Arlen Specter (R-Pa.) Monday threw down the gauntlet on behalf of Republicans. In a lengthy floor speech, Specter complained that the Democratic majority in the Senate hadn't done enough to advance President Bush's picks for judgeships to the floor. "The conduct of the Senate today is elevating ideology and ego above substance," Specter said.

Specter pointed to statistics that said that during the last two years of President Clinton's term, the Republican-controlled Senate confirmed 15 circuit nominees and 57 district court nominees, while since the Democrats took over the Senate in 2005, Bush has been successful in confirming only six circuit court nominees and 34 district court nominees. Specter said a judicial "emergencies" exist, with key federal appellate and district slots remaining vacant for years and slowing litigation to a crawl.

by James Oliphant

The Federal Bureau of Investigation said Thursday that it had opened a preliminary investigation into whether retired pitcher Roger Clemens lied during his congressional testimony earlier this month.

Lying under oath before Congress is a federal crime. One of the points of contention, beyond whether Clemens was knowingly injected with steroids and human growth hormone, is whether he did or did not attend a party at ex-outfielder Jose Canseco's house in 1998.

Now, thanks to the Onion, we know why Clemens probably should have avoided Canseco's house altogether (as should every current major leaguer):

MIAMI—Former MLB star and admitted steroid user Jose Canseco extended an informal invitation Monday to over 500 current and former professional baseball players, requesting their presence at his house this coming weekend for his annual steroid party.

"Hey guys, big steroid bash at my place," Canseco said while handing out flyers at a Toronto Blue Jays spring training intrasquad game. "Nothing too fancy, just a bunch of guys, hanging out, taking steroids. Tell your friends."

The party is historically an extravagant affair, usually featuring women in bikinis carrying silver trays of various types of anabolic steroids, four VIP suites upstairs where guests can sample steroids from Canseco's personal collection, a giant 40-foot-tall ice syringe filled with Dianabol, oil paintings of steroids on the walls, a keg of steroids, a disco ball, and a punch bowl spiked with steroids. (read more)

Roger Clemens, then of the Houston Astros, pitches against the St. Louis Cardinals during Game Three of the National League Championship Series in Oct. 2005. (Photo by Brian Bahr/Getty Images)

by James Oliphant

Some key members of Congress are trying to bring down the Rocket.

Wednesday, the chairman and the ranking member of the House Government Reform Committee, Reps. Henry Waxman and Tom Davis, asked the Justice Department to investigate whether pitcher Roger Clemens lied under oath during his appearance before the committee earlier this month.

In a letter to Attorney General Michael Mukasey, the congressmen say that Clemens statements were at odds with the sworn testimony of his former trainer, Brian McNamee, who said he injected Clemens with steroids, and with his ex-teammate, Andy Pettitte, who said Clemens told him that he had used human growth hormone. (see Waxman's memo)

Perhaps more important, Waxman and Davis told Mukasey that McNamee and Pettitte back each other up:

by James Oliphant

The shipwreck of the Exxon Valdez happened almost 20 years ago. But many Alaskans feel like they live with the lasting damage caused by the oil spill every day.

Today, a civil suit filed by thousands of fishermen and small business owners finally reaches the Supreme Court. Exxon is appealing a $2.5 billion punitive damage award the company views as excessive. It says it has already spent $3.5 billion to clean up Prince William Sound and compensate victims of the spill.

Read more in today's Chicago Tribune. And the Swamp will have a summary of the oral arguments after the court session Wednesday.

Chuck Kennedy/MCT

by James Oliphant

Hello. Your correspondent is jammed into a seat in a House of Representatives office building that the people at Air Tran would envy. A line of onlookers hoping to get a glimpse of today's witness, star pitcher Roger Clemens, runs down the corridor. (One woman is wearing a Yankee jersey and cap, as if she's attending a spring training game.) It's the biggest day on the Hill in a long time. And the Swamp will will be bringing you the play-by-play as it happens. Stay here. (Refresh the page or reload this page often so that you can see the very latest.)

by Aamer Madhani

The Pentagon outlined its plans this morning to seek the death penalty against six terrorist suspects accused of planning, funding and organizing the Sept. 11 terrorist attacks--a trial that will undoubtedly refocus attention on the controversial military tribunal system at Guantanamo Bay.

The charges filed against the six, including purported Sept. 11 mastermind Khalid Sheik Mohammed, are for a litany of crimes of war and include conspiracy, murder, attacking civilians, terrorism and supporting terrorism. All six are being held at Guantamo Bay, Cuba.

"These charges allege a long term, highly sophisticated, organized plan by al-Qaeda to attack the United States of America," Brig. Gen. Thomas W. Hartmann, the legal adviser to the tribunal system, told reporters at news conference at the Pentagon.

Besides Mohammed, Walid Muhammad Salih Mubarek Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi, and Mohamed al Qahtani are charged as co-conspirators to the most deadly terrorist attack on U.S that left 2,973 people dead. Mohammed, Bin 'Attash, Binalshibh and Ali are also charged with hijacking or hazarding a vessel in connection with the four airplanes that were used in the attack.

Since its opening, Guantanamo has been criticized by some for being little more than an U.S. sanctioned gulag—where the ideals of American jurisprudence have been thrown out. The military tribunal has been criticized for it rules on legal representation for suspects, hearings behind closed doors and Guantanamo has been blasted for allegations of inmate abuse.

But Hartmann said the six accused men would be given the same rights as U.S. troops tried under a military justice system. The military is the process of forwarding to the convening authority for military commissions, Judge Susan Crawford, who can decide to refer some or all of them for trial.

by James Oliphant

Like many Americans, the Swamp has Super Bowl fever, which, according to today's Chicago Tribune, could kill you. So settle down.

Anyway. Those steamrolling New England Patriots apparently believe they are headed for something special. In December, the team filed paperwork to trademark the term "19-0 THE PERFECT SEASON" for use on gear and whatnot.

Teams have been trying to do this sort of thing ever since Pat Riley trademarked "Threepeat" back in his showtime Lakers days. (Hmm. Wonder if those royalties are still coming in?)

We talked to Craig Mende, an intellectual property lawyer in New York, and a Patriots fan. As with all diehard fans, he is horrified that his team would jinx themselves like this.

"I live in New York, but grew up in Boston in the 70s and 80s, so my first thought (as a fan of the '75 and '86 Red Sox and the '85-86 Patriots) is that if I owned the Patriots, I wouldn't want to jinx anything by applying to register THE PERFECT SEASON until (as I hope and expect) the Patriots win the Super Bowl and actually go 19-0," Mende says.

Mende says that the Patriots and their owner, Robert Kraft, have been beaten to the punch. A man in Denver filed to trademark the claim several years ago, when the Broncos were on their way to immortality. And of course, you know the rest:

"The week after he filed, the Broncos lost for the first time that season," Mende says. "So you can see why I'm superstitious."

That same Denver man refiled his trademark application this year before Kraft filed his on behalf of the Patriots. It might be the first time the Patriots have been beaten all year.

Mende, by the way, has first-hand experience in these matters. Last year, he helped beat back an attempt by the National Football League to trademark "The Big Game." Which is why you still hear that phrase on commercials prior to the Super Bowl. No other entity can use "Super Bowl" except for the NFL and the companies it permits to use the mark.

by James Oliphant

The New England Patriots have defeated all comers this season, and the odds have them doing it again to the New York Giants on Sunday.

But their fiercest opponent lies ahead: Sen. Arlen "Mad Dog" Specter. (Note: Nobody really calls him that.)

Specter is peeved about the NFL destroying tapes involved in the Patriots' infamous "spygate" incident earlier this season, when the team was caught taping the New York Jets' sideline and lost a draft pick for it.

And showing that Big Game hyperbole isn't limited to Arizona, Specter told the New York Times that "The American people are entitled to be sure about the integrity of the game. It’s analogous to the C.I.A. destruction of tapes.”

Or not.

Regardless, Specter has been pushing the commissioner of the National Football League, Roger Goodell, to explain why the tapes were destroyed. And so far the NFL hasnt responded. Anyone who has watched the ranking Republican on the Senate Judiciary Committee knows he hates being ignored. He may call Goodell down to Washington next month to voice his displeasure in person.

By the way, shouldn't Specter's football nickname be "The Galloping Ghost?" But that's taken.

by James Oliphant

With John Edwards out of the presidential race, those who would demonize the plaintiffs’ bar have some spare time on their hands -- enough time, apparently, to watch some television.

And so a pro-business trade group in Washington is wringing its hands over “Eli Stone,” a show that premieres on ABC tonight.

“Eli Stone” concerns a shark-like corporate defense attorney who only cares about two things: money and well, he can’t remember the second thing. But he begins having visions (of pop singer George Michael, for one, someone you usually need to travel to a county fair in the summer to see) which slowly convince him that he was put on this Earth to help others. It sends him off on a spiritual quest – to represent ordinary people against the very corporations he once defended.

(By the way, that’s not as preposterous as you would think. Many refugees of large corporate law firms will joke that they are “recovering” human beings.)

So, if you are keeping score at home, this means: Ordinary people = good, corporations = bad.

by James Oliphant

A day after its release, the Mitchell Report continues to roil baseball – and its legion of fans.

Billed before it was made public as a comprehensive look into the sport's drug culture over the past 10 years, it apparently has raised as many questions as it has answered. Because of that, a counteroffensive has been building since former Sen. George Mitchell's New York press conference Thursday afternoon.

Its critics charge that as a prosecutorial document, the report is flimsy at best, defamatory at worst. That's because Mitchell, who prepared the report with his law firm, DLA Piper, more often that not resorted to bootstrapping his inquiry to ongoing federal investigations, which led to a disproportionate reliance on just a couple of key snitches. One, a former New York Mets clubhouse attendant, Kirk Radomski, and another, Brian McNamee, a former trainer, both cooperated with federal investigators in the hope of receiving leniency. And you know what criminal defense lawyers do with people like that.