Politicians speak hyperbole as their native tongue, but Supreme Court justices are normally more careful with their facts and opinions. Over the past two months, however, Justice Ruth Bader Ginsburg has behaved more like a politician than a judge with an exaggerated attack on the Roberts Court as “one of the most activist” in history.
Ginsburg made the criticism in a succession of media interviews over the past two months. The accusation is unsupported by the numbers and is all the more unseemly because Ginsburg paired it with a vow to stay on the Court, in effect as the leader of the opposition, as long as her physical and mental health hold up.
“Activist” is an inherently imprecise term, but Ginsburg provided an objective metric: laws overturned. “If you take activism to mean readiness to strike down laws passed by Congress, I think the current Court will go down in history as one of the most active courts in that regard,” Ginsburg told USA Today’s Richard Wolf.
By that criterion, the Roberts Court thus far has been less activist than the previous Rehnquist and Burger Courts. In eight terms, the Roberts Court has explicitly ruled federal laws unconstitutional in 12 cases — or one-and-a-half per term. A compilation by the Library of Congress shows that the Rehnquist Court overturned 38 laws in Rehnquist’s 19 terms as chief justice: two per term. The Burger Court, in 17 terms, overturned federal laws in 31 cases — just shy of two per term.
No doubt, the Roberts Court has more than a touch of judicial activism. With little respect for Congress or precedent, the Court in 2010 invalidated the federal ban on corporate and labor union spending in political campaigns, narrowed the Medicaid enforcement provision of President Obama’s Affordable Care Act in 2012, and nullified part of the Voting Rights Act as the 2012-2013 term ended in June.
Three of the other Roberts Court decisions overturning federal laws, however, apply straightforward First Amendment principles in striking down free-speech restrictions. Ginsburg joined all three. Two others, barely noticed in general news media, struck down provisions dating from the 1980s that in one case expanded federal bankruptcy jurisdiction and in another limited the evidence for federal judges to consider in criminal sentencing. Ginsburg dissented in the former and joined the latter.
Ginsburg also joined two more newsworthy Roberts Court decisions striking down federal laws: the 2008 decision to eliminate restrictions on habeas corpus rights for Guantanamo prisoners and this year’s decision to strike down the Defense of Marriage Act (DOMA). Ginsburg did not write separately in either case. But in oral arguments in the DOMA case Ginsburg made absolutely clear that she would vote to strike it down as unconstitutional discrimination against same-sex couples despite its nearly unanimous enactment by Congress.
In all, Ginsburg joined six of the 12 Roberts Court decisions striking down federal laws. And Ginsburg would have nullified one federal law that the Court, in 2007, upheld: the federal ban on so-called partial birth abortions.
In terms of state laws ruled unconstitutional, the Roberts Court pales in comparison to the two previous courts, according to a compilation by the legal web site Justia.com. The Rehnquist Court ruled state laws unconstitutional in 87 cases — more than four rulings per term; the Burger Court count is 235 – or nearly 14 per term. The Roberts Court has overturned state laws so far only in 11 decisions — fewer than one-and-a-half per term. Ginsburg joined five of those rulings, dissented in six.
Raw numbers are not the only measure of the Court’s activism. Even with relatively few decisions, the Supreme Court engaged in strikingly bold bursts of activism by striking down the post-Civil War civil rights laws in the 19th century, nullifying the federal income tax and other progressive legislation in the late 19th and early 20th centuries, and overturning major New Deal programs in a three-year span in the mid-1930s. The Warren Court’s statistics on laws overturned — 17 federal laws, 128 state statutes— understate the profound impact of its decisions outlawing racial segregation, mandating legislative reapportionment, and revolutionizing criminal procedure.
Ginsburg would have dissented from those early bursts of activism, but she surely would have joined the celebrated Warren Court rulings. And, tellingly, Ginsburg first came to national prominence by crafting the legal strategy that led the Court to strike down federal and state laws that discriminated on the basis of sex.
Ginsburg’s media offensive began with an interview to Reuters’ veteran Supreme Court watcher Joan Biskupic, in which the 80-year-old justice signaled her intention to stay on the Court despite any pressure from liberals to step aside to allow Obama to appoint a like-minded successor. She repeated that vow along with the criticism of the Roberts Court’s activism in successive interviews with USA Today, the Associated Press, the New York Times, and Bloomberg News.
By preempting talk of retirement, Ginsburg appears to be trying to make herself the indispensable justice for the liberal wing. But playing the outside game seems ill designed to gain influence with justices in the other bloc, especially Anthony M. Kennedy — the only justice in the majority in all of the Roberts Court rulings striking down federal or state laws. With life tenure, however, Ginsburg is accountable only to herself and her own sense of how history will judge her two-decades-and-counting as a Supreme Court justice.
Tuesday, September 3, 2013
Sunday, August 25, 2013
Manning's Sentence Is Strong Signal to Whistleblowers
When the Nixon administration tried to stop the New York Times and Washington Post from publishing the Pentagon Papers, government lawyers argued that the information “could” or “might” prejudice national security. The Supreme Court rightly said that was not enough to justify the unprecedented step of ordering the newspapers, in effect, to stop the presses.
Four decades later, the government had a much easier case in prosecuting then-Pfc. Bradley Manning for leaking hundreds of thousands of classified, computerized documents to Wikileaks. As in the Pentagon Papers case, however, the government lawyers have yet to show — at least on the public record — that the publication of this classified information has actually harmed the United States.
The findings that U.S. Army Judge Denise Lind set out after having convicted Manning of multiple counts are silent on any actual harm to U.S. interests from Manning’s leaks. Here, complete with legal verbiage, is Manning’s most serious offense: “Wrongfully and Wantonly Causing Publication of Intelligence Belonging to the United States on the Internet Knowing the Intelligence is Accessible to the Enemy to the Prejudice of Good Order and Discipline in the Armed Forces or of a Nature to Bring Discredit Upon the Armed Forces.”
On that so-called espionage count, Lind found that Manning “had reason to believe” that the information “could be used to the injury of the United States or the advantage of any foreign nation.” But, she added, “the government is not required to prove that the information was actually used to injure the United States.” None of Manning’s other offenses — conversion, transmitting defense information, computer fraud, and violation of a “lawful general regulation” — required such proof either. Lind rejected the government’s most serious charge: aiding the enemy.
Manning, who now identifies as a woman and calls herself “Chelsea,” apologized during the sentencing hearing for her actions and acknowledged they were wrong. “I’m sorry that my actions hurt people,” Manning testified in a three-minute, unsworn statement from the witness stand. “I’m sorry that they hurt the United States.”
Manning’s contrition before a judge with the power to sentence her to up to 90 years’ imprisonment made perfect sense as a legal strategy. But, as Manning supporter Rainey Reitman points out in an article for the Freedom of the Press Foundation, Manning is actually contradicting earlier statements by current and former government officials that the information was not damaging U.S. interests.
Back when Wikileaks was publishing the fruits of Manning’s data dump, officials up to and including Vice President Joe Biden pooh-poohed any fears that the leaks were causing harm. “I don’t think there is any substantive damage, no,” Biden told MSNBC in an interview on Dec. 16, 2010.
Publicly, the State Department at the time was claiming “substantial damage” from the disclosures of the cables. But Reuters quoted congressional sources as saying that State Department briefers had privately described the leak just as Biden had: embarrassing but not damaging. The stronger public statements, the congressional sources explained, were needed to bolster legal efforts to shut down the Wikileaks web site and/or prosecute the leakers.
Manning had been identified by then as the leaker — fingered in May 2010 by an ex-hacker, Adrian Lamo, who feared Manning’s disclosures were putting Americans’ lives at risk. Manning, dealing with his own emotional difficulties while stationed in Iraq, had sought out Lamo through cyberspace as a fellow sufferer of Asperger’s disorder. In their computer exchanges, Manning took credit for Wikileaks’ disclosure of an indiscriminate U.S. helicopter airstrike in suburban Baghdad in July 2007 that took 12 lives, including two Reuters news agency employees.
Lamo, the self-confessed hacker of the New York Times’s computer system, had no information, only a layperson’s intuition, about the potential risk of Manning’s disclosures. Three years later, the government has yet to produce any evidence that the leaks resulted in any loss of life. Indeed, as Rainey points out, now retired Brig. Gen. Robert Carr, who had headed the Wikileaks “mitigation” effort, acknowledged during Manning’s sentencing hearing that he knew of no one killed as a result of having been identified in the so-called Afghan War Logs that Manning had leaked.
Weighed against what former Secretary of Defense Donald Rumsfeld candidly described as the “overwrought” reaction to the Wikileaks disclosures are the benefits to the public’s right to know. The so-called Iraqi War Logs, for example, indicate that the United States undercounted civilian deaths in post-Saddam Iraq and failed to investigate reports of abuse, torture, rape, and even murder by Iraqi police. The State Department cables have been “at least partially successful” in providing more “transparency” to international politics, according to Joshua Keating, associate editor of Foreign Policy.
Lind may or may not have taken all this into consideration in sentencing Manning to 35 years’ imprisonment [Aug. 21]; she said nothing to explain her reasons. The sentence was less than the 60 years the government had asked for — and less, according to Manning’s attorney, David Coombs, than the government had offered in a plea bargain. Still, it is the stiffest sentence ever for releasing classified documents. That will send a powerful warning against any future whistleblower who, like Manning, might think that exposing possible government wrongdoing will help make the world a better place.
Four decades later, the government had a much easier case in prosecuting then-Pfc. Bradley Manning for leaking hundreds of thousands of classified, computerized documents to Wikileaks. As in the Pentagon Papers case, however, the government lawyers have yet to show — at least on the public record — that the publication of this classified information has actually harmed the United States.
The findings that U.S. Army Judge Denise Lind set out after having convicted Manning of multiple counts are silent on any actual harm to U.S. interests from Manning’s leaks. Here, complete with legal verbiage, is Manning’s most serious offense: “Wrongfully and Wantonly Causing Publication of Intelligence Belonging to the United States on the Internet Knowing the Intelligence is Accessible to the Enemy to the Prejudice of Good Order and Discipline in the Armed Forces or of a Nature to Bring Discredit Upon the Armed Forces.”
On that so-called espionage count, Lind found that Manning “had reason to believe” that the information “could be used to the injury of the United States or the advantage of any foreign nation.” But, she added, “the government is not required to prove that the information was actually used to injure the United States.” None of Manning’s other offenses — conversion, transmitting defense information, computer fraud, and violation of a “lawful general regulation” — required such proof either. Lind rejected the government’s most serious charge: aiding the enemy.
Manning, who now identifies as a woman and calls herself “Chelsea,” apologized during the sentencing hearing for her actions and acknowledged they were wrong. “I’m sorry that my actions hurt people,” Manning testified in a three-minute, unsworn statement from the witness stand. “I’m sorry that they hurt the United States.”
Manning’s contrition before a judge with the power to sentence her to up to 90 years’ imprisonment made perfect sense as a legal strategy. But, as Manning supporter Rainey Reitman points out in an article for the Freedom of the Press Foundation, Manning is actually contradicting earlier statements by current and former government officials that the information was not damaging U.S. interests.
Back when Wikileaks was publishing the fruits of Manning’s data dump, officials up to and including Vice President Joe Biden pooh-poohed any fears that the leaks were causing harm. “I don’t think there is any substantive damage, no,” Biden told MSNBC in an interview on Dec. 16, 2010.
Publicly, the State Department at the time was claiming “substantial damage” from the disclosures of the cables. But Reuters quoted congressional sources as saying that State Department briefers had privately described the leak just as Biden had: embarrassing but not damaging. The stronger public statements, the congressional sources explained, were needed to bolster legal efforts to shut down the Wikileaks web site and/or prosecute the leakers.
Manning had been identified by then as the leaker — fingered in May 2010 by an ex-hacker, Adrian Lamo, who feared Manning’s disclosures were putting Americans’ lives at risk. Manning, dealing with his own emotional difficulties while stationed in Iraq, had sought out Lamo through cyberspace as a fellow sufferer of Asperger’s disorder. In their computer exchanges, Manning took credit for Wikileaks’ disclosure of an indiscriminate U.S. helicopter airstrike in suburban Baghdad in July 2007 that took 12 lives, including two Reuters news agency employees.
Lamo, the self-confessed hacker of the New York Times’s computer system, had no information, only a layperson’s intuition, about the potential risk of Manning’s disclosures. Three years later, the government has yet to produce any evidence that the leaks resulted in any loss of life. Indeed, as Rainey points out, now retired Brig. Gen. Robert Carr, who had headed the Wikileaks “mitigation” effort, acknowledged during Manning’s sentencing hearing that he knew of no one killed as a result of having been identified in the so-called Afghan War Logs that Manning had leaked.
Weighed against what former Secretary of Defense Donald Rumsfeld candidly described as the “overwrought” reaction to the Wikileaks disclosures are the benefits to the public’s right to know. The so-called Iraqi War Logs, for example, indicate that the United States undercounted civilian deaths in post-Saddam Iraq and failed to investigate reports of abuse, torture, rape, and even murder by Iraqi police. The State Department cables have been “at least partially successful” in providing more “transparency” to international politics, according to Joshua Keating, associate editor of Foreign Policy.
Lind may or may not have taken all this into consideration in sentencing Manning to 35 years’ imprisonment [Aug. 21]; she said nothing to explain her reasons. The sentence was less than the 60 years the government had asked for — and less, according to Manning’s attorney, David Coombs, than the government had offered in a plea bargain. Still, it is the stiffest sentence ever for releasing classified documents. That will send a powerful warning against any future whistleblower who, like Manning, might think that exposing possible government wrongdoing will help make the world a better place.
Monday, August 19, 2013
Policing Stop-and-Frisk in New York City
A Cleveland police officer, patrolling his regular beat, observed two men walking up and down in front of a store window a dozen times, conferring with each other after each of the walk-bys. The officer, suspecting the two men were “casing the joint,” stopped to question them and, after patting them down, discovered that both of the men, John Terry and Richard Chilton, were carrying weapons. Terry appealed his subsequent weapons conviction to the U.S. Supreme Court, which in Terry v. Ohio (1968) upheld the conviction after concluding that the officer had reasonable grounds for the initial “stop and frisk.”
Thus was born the Terry stop: the Supreme Court-approved practice of stopping an individual if an officer has a reasonable suspicion of criminal activity and frisking the individual if the officer has a reasonable fear the individual could be armed.
Four decades later, three New York City police officers stopped David Floyd as he was walking from the subway toward home in the Bronx. The officers asked Floyd for identification and, fearful after he reached inside a pants pocket for his cell phone, patted him down for weapons. No weapon was found, and no charge was filed. Floyd asked for the officers’ names and badge numbers, but they gave only their last names and badge numbers that did not match the names given.
Floyd’s encounter with the NYPD in April 2007 was one of more than 4.4 million stops that New York City police officers conducted in an eight-year period under an aggressive policy initiated by Police Commissioner Raymond Kelly and supported and now vigorously defended by Mayor Michael Bloomberg. As in Floyd’s case, the vast majority of the stops — almost 90 percent — resulted in no charges whatsoever. In about half of the stops, police also conducted a “frisk,” but weapons were found in only 1.5 percent of the patdowns.
Those are the statistics that a federal judge, Shira Scheindlin, relied on last week [Aug. 12] in a 195-page ruling in a class action brought in Floyd’s name, Floyd v. New York, that declared the NYPD’s stop-and-frisk practices unconstitutional. The numbers speak for themselves. “How reasonable is it if 90 percent of the time you’re wrong?” Wall Street Journal reporter Devlin Barrett asked rhetorically in an appearance on the public radio program To the Point.
The numbers are even more telling when broken down by race. More than half of the stops – 52 percent – involved African Americans, in a city where blacks make up about one-fourth of the total population. Hispanics were stopped in 31 percent of the encounters; they comprise about 29 percent of the city’s population. As Scheindlin found, the statistics indicate a pattern of racial profiling by the police.
Bloomberg, in the final months of his 12-year tenure, has defended the police department’s policies — what he calls “stop, question, and frisk” — as helping make New York the safest big city in the country. New York in fact has a low rate of homicides or other violent crimes compared to many big cities, but Bloomberg is taking credit for lowering the city’s crime rate in a decade when the rate was declining nationwide. Moreover, Scheindlin found no reason to believe that the stop-and-frisk policies were responsible for reducing crime. Instead, she said the policies may be counterproductive by reducing citizen cooperation with police, especially in the minority neighborhoods singled out for the tactic.
Bloomberg also has defended the city’s policies by stressing the supposedly detailed reports required for all stops — proof, he suggests, that the city has nothing to hide or be ashamed of. But Scheindlin was unimpressed after her examination of the reports: UF-250’s, in police department parlance. First, as in Floyd’s case, some number of stops are never documented at all. Moreover, the information in the UF-250’s is often limited. Instead of providing a narrative, officers typically simply check off boxes to indicate the reason for the stop; “furtive movements” and “high crime areas” are the ones most frequently given. And even though Terry requires police have reason to suspect criminal activity, Scheindlin found that officers failed to specify any suspected crime in slightly over one-third of the reports.
Along with her ruling on the city’s liability, Scheindlin issued a companion 39-page remedial order that designated Peter Zimroth, a private lawyer who was formerly the city’s corporation counsel and a chief assistant district attorney, as a monitor to help institute and oversee reforms. She left most of the details to be worked out, but as one immediate step she ordered that officers in one precinct in each of New York’s five boroughs to be equipped with body cameras to record all police encounters with civilians. Scheindlin said she will weigh later whether the benefits in reducing unconstitutional stops outweigh any financial or administrative hardships.
The city is vowing to appeal. Scheindlin is aptly described in her Wikipedia biography as an “aggressive” judge, and she has been reversed in several high-profile decisions. But several of the candidates vying to succeed Bloomberg responded last week by embracing the need to reform stop-and-frisk policies. Scheindlin stressed that she was not prohibiting stop-and-frisk, only insisting that the tactic be employed within constitutional limits. Bloomberg could serve his city better by cooperating toward that goal instead of defending a policy that, on close examination, seems to have gone beyond constitutional limits.
Thus was born the Terry stop: the Supreme Court-approved practice of stopping an individual if an officer has a reasonable suspicion of criminal activity and frisking the individual if the officer has a reasonable fear the individual could be armed.
Four decades later, three New York City police officers stopped David Floyd as he was walking from the subway toward home in the Bronx. The officers asked Floyd for identification and, fearful after he reached inside a pants pocket for his cell phone, patted him down for weapons. No weapon was found, and no charge was filed. Floyd asked for the officers’ names and badge numbers, but they gave only their last names and badge numbers that did not match the names given.
Floyd’s encounter with the NYPD in April 2007 was one of more than 4.4 million stops that New York City police officers conducted in an eight-year period under an aggressive policy initiated by Police Commissioner Raymond Kelly and supported and now vigorously defended by Mayor Michael Bloomberg. As in Floyd’s case, the vast majority of the stops — almost 90 percent — resulted in no charges whatsoever. In about half of the stops, police also conducted a “frisk,” but weapons were found in only 1.5 percent of the patdowns.
Those are the statistics that a federal judge, Shira Scheindlin, relied on last week [Aug. 12] in a 195-page ruling in a class action brought in Floyd’s name, Floyd v. New York, that declared the NYPD’s stop-and-frisk practices unconstitutional. The numbers speak for themselves. “How reasonable is it if 90 percent of the time you’re wrong?” Wall Street Journal reporter Devlin Barrett asked rhetorically in an appearance on the public radio program To the Point.
The numbers are even more telling when broken down by race. More than half of the stops – 52 percent – involved African Americans, in a city where blacks make up about one-fourth of the total population. Hispanics were stopped in 31 percent of the encounters; they comprise about 29 percent of the city’s population. As Scheindlin found, the statistics indicate a pattern of racial profiling by the police.
Bloomberg, in the final months of his 12-year tenure, has defended the police department’s policies — what he calls “stop, question, and frisk” — as helping make New York the safest big city in the country. New York in fact has a low rate of homicides or other violent crimes compared to many big cities, but Bloomberg is taking credit for lowering the city’s crime rate in a decade when the rate was declining nationwide. Moreover, Scheindlin found no reason to believe that the stop-and-frisk policies were responsible for reducing crime. Instead, she said the policies may be counterproductive by reducing citizen cooperation with police, especially in the minority neighborhoods singled out for the tactic.
Bloomberg also has defended the city’s policies by stressing the supposedly detailed reports required for all stops — proof, he suggests, that the city has nothing to hide or be ashamed of. But Scheindlin was unimpressed after her examination of the reports: UF-250’s, in police department parlance. First, as in Floyd’s case, some number of stops are never documented at all. Moreover, the information in the UF-250’s is often limited. Instead of providing a narrative, officers typically simply check off boxes to indicate the reason for the stop; “furtive movements” and “high crime areas” are the ones most frequently given. And even though Terry requires police have reason to suspect criminal activity, Scheindlin found that officers failed to specify any suspected crime in slightly over one-third of the reports.
Along with her ruling on the city’s liability, Scheindlin issued a companion 39-page remedial order that designated Peter Zimroth, a private lawyer who was formerly the city’s corporation counsel and a chief assistant district attorney, as a monitor to help institute and oversee reforms. She left most of the details to be worked out, but as one immediate step she ordered that officers in one precinct in each of New York’s five boroughs to be equipped with body cameras to record all police encounters with civilians. Scheindlin said she will weigh later whether the benefits in reducing unconstitutional stops outweigh any financial or administrative hardships.
The city is vowing to appeal. Scheindlin is aptly described in her Wikipedia biography as an “aggressive” judge, and she has been reversed in several high-profile decisions. But several of the candidates vying to succeed Bloomberg responded last week by embracing the need to reform stop-and-frisk policies. Scheindlin stressed that she was not prohibiting stop-and-frisk, only insisting that the tactic be employed within constitutional limits. Bloomberg could serve his city better by cooperating toward that goal instead of defending a policy that, on close examination, seems to have gone beyond constitutional limits.
Monday, August 12, 2013
Holder Wants to Accomplish More Before Leaving
Attorney General Eric Holder appears to have served notice to his critics that he is not going anywhere soon by announcing a laundry list of criminal justice reforms in a speech to the American Bar Association (ABA) on Monday [Aug. 12]. At the top of the list is a sensible but likely controversial move to combat prison overcrowding by limiting the impact of harsh mandatory sentence provisions in run-of-the-mill federal drug cases.
In an address to the ABA’s House of Delegates, Holder correctly noted the expensive and counterproductive practice of overincarceration in the United States — at the federal level and in many states. As Holder put it, the United States is “coldly efficient” at putting criminals behind bars and keeping them there. “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” Holder said.
With the highest incarceration rate of any country, the United States houses almost one-fourth of the world’s prisoners but has only one-twentieth of the world’s population, Holder noted. The federal prison population has increased 800 percent since 1980 while the country’s population has increased only about one-third. The 219,000 federal inmates fill federal prisons 40 percent beyond their intended capacity.
Speaking in San Francisco, Holder passed over — at least in his prepared text — specific mention of California’s own severe prison crisis. Two years ago, the Supreme Court upheld a well-documented order by a three-judge federal court that the state reduce prison population to 110,000 — or merely 30 percent above capacity. California Gov. Jerry Brown, once a liberal Democrat, insists the state has done enough by bringing the population down to 120,000. But the federal court refused to change its order and the Supreme Court earlier this month [Aug. 2] turned down the state’s appeal.
As Holder aptly noted, federal prison overcrowding has been driven by an increase in federal drug prosecutions and in particular by the long mandatory minimum sentences enacted by Congress in the 1980s and ’90s. Drug offenders comprise about half the federal prison population: some are in for serious drug trafficking, but many — probably most — are not. But the mandatory sentencing laws give judges little leeway for tempering the excesses that Congress has enacted.
Congress cannot repeal prosecutorial discretion, however. So Holder is moving to ease the sentencing law by directing U.S. attorneys in most cases to omit from formal charges the specific quantity of drug seized or sold and thus to avoid triggering the mandatory minimum prescribed for specified quantities. That policy, he said, will apply to low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels.
Holder said the Justice Department is also revising its policies for considering compassionate release for inmates who pose no threat to the public. The Bureau of Prisons already in April expanded compassionate release for medical reasons. Holder announced a further expansion for elderly inmates who did not commit violent crimes and who have served “significant portions” of their sentences. In addition, the Justice Department is looking into expanding diversion programs such as drug treatment or community service programs that serve as effective alternatives to incarceration.
Fittingly, Holder, the first African American to serve as attorney general, also addressed the continuing racial disparity in sentencing between white and black inmates. He cited one report, released in February, that indicates black male offenders in recent years have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. “This isn’t just unacceptable,” Holder said. “It is shameful.” For now, the only reform is to direct a group of U.S. attorneys to examine the disparities and develop recommendations on how to address them.
Holder has been a political lightning rod, as almost any attorney general is bound to be. He reportedly considered leaving at the end of Obama’s first term, but agreed to the president’s request to stay. White House aides have grumbled, anonymously, that Holder has a political tin ear. As one example, Holder retreated in the face of overwhelming political opposition from his decision in November 2010 to try the accused 9/11 mastermind Khalid Sheikh Mohammed in a federal court in New York City. More recently, Holder antagonized the news media by allowing the Justice Department to issue an intrusive subpoena against the Associated Press in a leak investigation.
In announcing the criminal justice initiatives, however, Holder signaled that he and Obama are tied at the hip on the issues. Holder recalled Obama’s work on such issues as a community organizer and in the Illinois legislature. He also noted the administration’s successful efforts in Obama’s first term to reduce the racial disparity in sentencing for crack versus powdered cocaine. And he made clear that “the president and I” had discussed and decided on the actions being taken and the proposals being studied.
The inside-the-beltway speculation about Obama’s tenure resurfaced in the spring in, among other places, a long article in The New York Times [June 4]. Unnamed West Wing aides were described in the story as wishing that Holder would go. But his former spokeswoman Tracy Schmaler told the Times that Holder is determined to stay long enough to “accomplish what he would like to do so that he could leave on his own terms.”
In an address to the ABA’s House of Delegates, Holder correctly noted the expensive and counterproductive practice of overincarceration in the United States — at the federal level and in many states. As Holder put it, the United States is “coldly efficient” at putting criminals behind bars and keeping them there. “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” Holder said.
With the highest incarceration rate of any country, the United States houses almost one-fourth of the world’s prisoners but has only one-twentieth of the world’s population, Holder noted. The federal prison population has increased 800 percent since 1980 while the country’s population has increased only about one-third. The 219,000 federal inmates fill federal prisons 40 percent beyond their intended capacity.
Speaking in San Francisco, Holder passed over — at least in his prepared text — specific mention of California’s own severe prison crisis. Two years ago, the Supreme Court upheld a well-documented order by a three-judge federal court that the state reduce prison population to 110,000 — or merely 30 percent above capacity. California Gov. Jerry Brown, once a liberal Democrat, insists the state has done enough by bringing the population down to 120,000. But the federal court refused to change its order and the Supreme Court earlier this month [Aug. 2] turned down the state’s appeal.
As Holder aptly noted, federal prison overcrowding has been driven by an increase in federal drug prosecutions and in particular by the long mandatory minimum sentences enacted by Congress in the 1980s and ’90s. Drug offenders comprise about half the federal prison population: some are in for serious drug trafficking, but many — probably most — are not. But the mandatory sentencing laws give judges little leeway for tempering the excesses that Congress has enacted.
Congress cannot repeal prosecutorial discretion, however. So Holder is moving to ease the sentencing law by directing U.S. attorneys in most cases to omit from formal charges the specific quantity of drug seized or sold and thus to avoid triggering the mandatory minimum prescribed for specified quantities. That policy, he said, will apply to low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels.
Holder said the Justice Department is also revising its policies for considering compassionate release for inmates who pose no threat to the public. The Bureau of Prisons already in April expanded compassionate release for medical reasons. Holder announced a further expansion for elderly inmates who did not commit violent crimes and who have served “significant portions” of their sentences. In addition, the Justice Department is looking into expanding diversion programs such as drug treatment or community service programs that serve as effective alternatives to incarceration.
Fittingly, Holder, the first African American to serve as attorney general, also addressed the continuing racial disparity in sentencing between white and black inmates. He cited one report, released in February, that indicates black male offenders in recent years have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. “This isn’t just unacceptable,” Holder said. “It is shameful.” For now, the only reform is to direct a group of U.S. attorneys to examine the disparities and develop recommendations on how to address them.
Holder has been a political lightning rod, as almost any attorney general is bound to be. He reportedly considered leaving at the end of Obama’s first term, but agreed to the president’s request to stay. White House aides have grumbled, anonymously, that Holder has a political tin ear. As one example, Holder retreated in the face of overwhelming political opposition from his decision in November 2010 to try the accused 9/11 mastermind Khalid Sheikh Mohammed in a federal court in New York City. More recently, Holder antagonized the news media by allowing the Justice Department to issue an intrusive subpoena against the Associated Press in a leak investigation.
In announcing the criminal justice initiatives, however, Holder signaled that he and Obama are tied at the hip on the issues. Holder recalled Obama’s work on such issues as a community organizer and in the Illinois legislature. He also noted the administration’s successful efforts in Obama’s first term to reduce the racial disparity in sentencing for crack versus powdered cocaine. And he made clear that “the president and I” had discussed and decided on the actions being taken and the proposals being studied.
The inside-the-beltway speculation about Obama’s tenure resurfaced in the spring in, among other places, a long article in The New York Times [June 4]. Unnamed West Wing aides were described in the story as wishing that Holder would go. But his former spokeswoman Tracy Schmaler told the Times that Holder is determined to stay long enough to “accomplish what he would like to do so that he could leave on his own terms.”
Sunday, August 4, 2013
Opening Up Foreign Intelligence Surveillance Court
Nearly two full years have passed since the Foreign Intelligence Surveillance Court (FISC) ruled unconstitutional something that the National Security Agency (NSA) was doing was either unconstitutional or illegal or both. Amazingly, in a country that venerates the rule of law, the very existence of this 86-page ruling was unknown until recently. And its exact contents are still unknown, not only to the public but also to members of Congress.
The 11-member court set up in 1978 in the wake of a quarter-century of CIA scandals has been much derided throughout its lifetime as a rubber stamp for the executive branch. But something that the NSA was doing in carrying out the government’s clandestine mass electronic surveillance program proved to be too much for the generally compliant court to approve. And the government is now facing a deadline of next week [Aug. 12] to respond to the effort by the Electronic Frontier Foundation (EFF), a digital rights organization, to unseal at least parts of the secret opinion.
The litigation over the secret opinion constitutes the most damning refutation of the argument from the Obama administration and congressional intelligence committee leaders that robust oversight by Congress and the court itself has kept the mass surveillance programs under control. Two gadfly members of the Senate Intelligence Committee, Democrats Ron Wyden of Oregon and Mark Udall of Colorado, have been raising alarms for a couple of years about privacy-invasive monitoring of U.S. citizens by the NSA. The committee’s rules prevented Wyden and Udall from being more specific.
The bombshell disclosures by the ex-NSA contractor Edward Snowden helped Wyden, Udall, and other surveillance critics finally gain front-page attention. The belated backlash on Capitol Hill forced the administration’s intelligence agencies into high-stakes lobbying to beat back a bipartisan attempt in the House of Representatives to rein in the NSA’s activities.
The amendment by Rep. Justin Amash, R-Mich., would have prohibited the NSA from bulk collection of phone records from U.S. carriers and cut off funding for the program as currently administered. The House rejected the amendment by a fairly narrow margin, 217-205. (Party breakdown: Democrats, 111-83; Republicans: 94-134.)
In the run-up to the vote, lawmakers in both chambers were complaining about the difficulty of getting straight answers and complete details from Obama administration officials about the NSA’s programs. The two Intelligence Committee chairs — Sen. Diane Feinstein, D-Calif., and Rep. Mike Rogers, R-Mich. — both have insisted from the start of the Snowden controversy that information about the program has been available to any member of Congress on request. But gadfly journalist-blogger Glenn Greenwald disclosed in The Guardian on Sunday [Aug. 4] unsuccessful efforts by two House members — Alan Grayson, D-Fla., and Morgan Griffith, R-Va. — to get more information: Grayson from the Intelligence Committee, Griffith from the NSA.
Snowden’s disclosure also helped bring to the surface criticism of the FISC’s role by one of its former members: James Robertson, now retired from the federal district court in Washington. Robertson served on the court from 2002 to 2005, but resigned in protest over disclosure of the Bush administration’s warrantless wiretapping program. Now, Robertson says the FISC has been put into an inappropriate position by being asked to rule not on individual applications for surveillance but on mass surveillance requests. Those are policy matters, Robertson says, that are better addressed by the other branches of government.
Robertson spoke to the newly established Privacy and Civil Liberties Oversight Board on July 12, just a few days after an article in The New York Times describing “more than a dozen classified rulings” from the FISC allowing expanded data collection by the NSA [July 7]. Reporter Eric Lichtblau quoted sources outside the court who insisted on anonymity in describing what he called “a secret body of law.” Judges on the court declined to comment, but Robertson said he was “frankly stunned” by the story.
The appointment of FISC judges has itself come under criticism. The law gives the chief justice the power to appoint judges, for fixed seven-year terms. Chief Justice John G. Roberts Jr. — who served in the executive branch under two Republican presidents, Ronald Reagan and George H.W. Bush — has used that power to stack the court with Republican-appointed judges with executive experience, according to a detailed analysis in The New York Times [July 26].
Various proposals to reshape the FISC are now in circulation, but all present practical problems that will help stand-pat lawmakers slow or defeat them in Congress. One proposal calls for presidential appointment and Senate confirmation of FISC judges. Robertson among others suggests creating some governmental entity that could appear before the FISC in opposition to the government so that the court would have the benefit of the usual adversarial process.
Disclosure of the FISC’s secret 2011 opinion could shed some light on these controversies. The court’s chief judge, Reggie Walton, issued an order on June 7 stating that the court itself would not object to the release of the decision pursuant to the Freedom of Information Act request filed by EFF. The matter is now pending before Judge Amy Berman Jackson in Washington. The government had asked to stay the proceedings until September, but Jackson ruled on July 9 that the government has to release the opinion by Aug. 12 or explain why not.
The 11-member court set up in 1978 in the wake of a quarter-century of CIA scandals has been much derided throughout its lifetime as a rubber stamp for the executive branch. But something that the NSA was doing in carrying out the government’s clandestine mass electronic surveillance program proved to be too much for the generally compliant court to approve. And the government is now facing a deadline of next week [Aug. 12] to respond to the effort by the Electronic Frontier Foundation (EFF), a digital rights organization, to unseal at least parts of the secret opinion.
The litigation over the secret opinion constitutes the most damning refutation of the argument from the Obama administration and congressional intelligence committee leaders that robust oversight by Congress and the court itself has kept the mass surveillance programs under control. Two gadfly members of the Senate Intelligence Committee, Democrats Ron Wyden of Oregon and Mark Udall of Colorado, have been raising alarms for a couple of years about privacy-invasive monitoring of U.S. citizens by the NSA. The committee’s rules prevented Wyden and Udall from being more specific.
The bombshell disclosures by the ex-NSA contractor Edward Snowden helped Wyden, Udall, and other surveillance critics finally gain front-page attention. The belated backlash on Capitol Hill forced the administration’s intelligence agencies into high-stakes lobbying to beat back a bipartisan attempt in the House of Representatives to rein in the NSA’s activities.
The amendment by Rep. Justin Amash, R-Mich., would have prohibited the NSA from bulk collection of phone records from U.S. carriers and cut off funding for the program as currently administered. The House rejected the amendment by a fairly narrow margin, 217-205. (Party breakdown: Democrats, 111-83; Republicans: 94-134.)
In the run-up to the vote, lawmakers in both chambers were complaining about the difficulty of getting straight answers and complete details from Obama administration officials about the NSA’s programs. The two Intelligence Committee chairs — Sen. Diane Feinstein, D-Calif., and Rep. Mike Rogers, R-Mich. — both have insisted from the start of the Snowden controversy that information about the program has been available to any member of Congress on request. But gadfly journalist-blogger Glenn Greenwald disclosed in The Guardian on Sunday [Aug. 4] unsuccessful efforts by two House members — Alan Grayson, D-Fla., and Morgan Griffith, R-Va. — to get more information: Grayson from the Intelligence Committee, Griffith from the NSA.
Snowden’s disclosure also helped bring to the surface criticism of the FISC’s role by one of its former members: James Robertson, now retired from the federal district court in Washington. Robertson served on the court from 2002 to 2005, but resigned in protest over disclosure of the Bush administration’s warrantless wiretapping program. Now, Robertson says the FISC has been put into an inappropriate position by being asked to rule not on individual applications for surveillance but on mass surveillance requests. Those are policy matters, Robertson says, that are better addressed by the other branches of government.
Robertson spoke to the newly established Privacy and Civil Liberties Oversight Board on July 12, just a few days after an article in The New York Times describing “more than a dozen classified rulings” from the FISC allowing expanded data collection by the NSA [July 7]. Reporter Eric Lichtblau quoted sources outside the court who insisted on anonymity in describing what he called “a secret body of law.” Judges on the court declined to comment, but Robertson said he was “frankly stunned” by the story.
The appointment of FISC judges has itself come under criticism. The law gives the chief justice the power to appoint judges, for fixed seven-year terms. Chief Justice John G. Roberts Jr. — who served in the executive branch under two Republican presidents, Ronald Reagan and George H.W. Bush — has used that power to stack the court with Republican-appointed judges with executive experience, according to a detailed analysis in The New York Times [July 26].
Various proposals to reshape the FISC are now in circulation, but all present practical problems that will help stand-pat lawmakers slow or defeat them in Congress. One proposal calls for presidential appointment and Senate confirmation of FISC judges. Robertson among others suggests creating some governmental entity that could appear before the FISC in opposition to the government so that the court would have the benefit of the usual adversarial process.
Disclosure of the FISC’s secret 2011 opinion could shed some light on these controversies. The court’s chief judge, Reggie Walton, issued an order on June 7 stating that the court itself would not object to the release of the decision pursuant to the Freedom of Information Act request filed by EFF. The matter is now pending before Judge Amy Berman Jackson in Washington. The government had asked to stay the proceedings until September, but Jackson ruled on July 9 that the government has to release the opinion by Aug. 12 or explain why not.
Monday, July 29, 2013
SAC Capital: Rotting From the Top
Nearly one-fourth of 250 finance industry professionals surveyed by a New York City law firm recently said they would likely engage in illegal insider trading to make $10 million if they could get away with it. It is not known whether billionaire hedge fund owner Steven A. Cohen was one of those questioned, but if he was — and if he answered honestly — then surely he was one of those willing to break the law for a good-sized profit.
Not only would Cohen trade on illegal inside information, but he actually did — often and at a substantial profit, according to the criminal indictment unsealed in federal court in Manhattan on Thursday [July 25] against his hedge fund, SAC Capital Advisors. The 41-page indictment depicts SAC Capital as an insider trading machine, whose outsize profits depended on “widespread solicitation and use of illegal inside information” and “an institutional indifference” to violations “on a scale without known precedent in the hedge fund industry.”
Cohen himself was not indicted — he was identified only as “SAC Owner” — but the indictment puts him and his $15 billion fund in the government’s crosshairs for the second time in a little over a week. The Securities and Exchange Commission (SEC) filed an administrative proceeding against Cohen on July 19, charging him with failing to investigate suspicious trading activity at SAC or to take steps to prevent illegal conduct.
Together, the government actions, if successful, could bar Cohen from managing investor funds and force SAC Capital to disgorge profits linked to illegal insider trading. SAC pleaded not guilty to the indictment on Friday; Cohen’s attorneys have vowed to contest the administrative proceeding. In the meantime, however, some investors are reportedly voting with their wallets by withdrawing money from the fund.
Far from being the clueless head of a company rotting from the bottom, Cohen is depicted in the indictment as the rot at the very top. SAC Capital’s hiring policies, trading operations, compliance systems, and compensation practices combined to make insider trading a way of life at the fund, according to the indictment.
To start, SAC sought to hire portfolio managers and research analysts “with proven access to public company contacts likely to possess inside information.” One new hire came with the recommendation that he had a house share with the chief financial officer of a Fortune 500 company and was “tight with management.” Richard Lee was hired at Cohen’s insistence in April 2009, over the objections of SAC’s legal department, despite information that he had been part of an “insider trading group” at the hedge fund where he had been working. Lee pleaded guilty to federal conspiracy and securities fraud earlier last week [July 23].
Employees were “financially incentivized,” according to the indictment, to recommend to Cohen “high conviction” trading ideas in which SAC would have an “edge” over other investors. As one example, research analyst Jon Horvath recommended selling Dell stock on Aug. 26, 2008, because of a “second hand read” from contacts inside the company about an upcoming unfavorable earnings report. Cohen liquidated his $12 million holding within 10 minutes after receiving the recommendation. Horvath pleaded guilty to conspiracy and securities fraud in connection with Dell trades in September.
In another example, Cohen liquidated $700 million in holdings in two drug companies, Elan and Wyeth, on July 20, 2008, after health care analyst Matthew Martoma passed along inside information about the soon-to-be-announced negative results of clinical trials of a new drug. By selling and shorting the stock, Cohen realized $276 million in profits or avoided losses. Martoma was indicted in December in connection with the trades. Cohen allegedly knew Martoma was paying a doctor involved in the drug trials for the tips.
SAC’s compliance systems reflected what the indictment calls “a lack of commitment” to address the insider trading issues. The indictment notes that up until 2009 the compliance department did not do keyword searches of employees’ e-mails for terms suggestive of insider trading. In the only insider trading violation uncovered internally, two portfolio managers were found to have used inside information to trade on a health company stock in July 2009. They were fined, but allowed to keep their jobs; no report was made to regulatory authorities.
Cohen and SAC Capital are Exhibit Number One of the ethics gap in the financial services industry identified by the survey released in mid-July by the law firm of Labaton Sucharow, which specializes in representing plaintiffs and whistleblowers in securities fraud litigation. More than half of the financial industry professionals surveyed — 52 percent — thought their competitors probably engaged in unethical or illegal behavior. Nearly one-fourth — 24 percent — thought some of their co-workers had done so. Substantial numbers viewed compensation systems as encouraging unethical conduct (26 percent) and top officials as likely to turn a blind eye to improper conduct by a “top performer” (17 percent).
Back in baseball’s steroid era, true fans knew the home run records were too good to be true. Financial experts know that some of the returns posted by hedge funds and individual investors are similarly too good to be true. Baseball can at least claim to be trying to clean house; the government's moves against SAC are one step in cleaning up the ethical rot on Wall Street.
Not only would Cohen trade on illegal inside information, but he actually did — often and at a substantial profit, according to the criminal indictment unsealed in federal court in Manhattan on Thursday [July 25] against his hedge fund, SAC Capital Advisors. The 41-page indictment depicts SAC Capital as an insider trading machine, whose outsize profits depended on “widespread solicitation and use of illegal inside information” and “an institutional indifference” to violations “on a scale without known precedent in the hedge fund industry.”
Cohen himself was not indicted — he was identified only as “SAC Owner” — but the indictment puts him and his $15 billion fund in the government’s crosshairs for the second time in a little over a week. The Securities and Exchange Commission (SEC) filed an administrative proceeding against Cohen on July 19, charging him with failing to investigate suspicious trading activity at SAC or to take steps to prevent illegal conduct.
Together, the government actions, if successful, could bar Cohen from managing investor funds and force SAC Capital to disgorge profits linked to illegal insider trading. SAC pleaded not guilty to the indictment on Friday; Cohen’s attorneys have vowed to contest the administrative proceeding. In the meantime, however, some investors are reportedly voting with their wallets by withdrawing money from the fund.
Far from being the clueless head of a company rotting from the bottom, Cohen is depicted in the indictment as the rot at the very top. SAC Capital’s hiring policies, trading operations, compliance systems, and compensation practices combined to make insider trading a way of life at the fund, according to the indictment.
To start, SAC sought to hire portfolio managers and research analysts “with proven access to public company contacts likely to possess inside information.” One new hire came with the recommendation that he had a house share with the chief financial officer of a Fortune 500 company and was “tight with management.” Richard Lee was hired at Cohen’s insistence in April 2009, over the objections of SAC’s legal department, despite information that he had been part of an “insider trading group” at the hedge fund where he had been working. Lee pleaded guilty to federal conspiracy and securities fraud earlier last week [July 23].
Employees were “financially incentivized,” according to the indictment, to recommend to Cohen “high conviction” trading ideas in which SAC would have an “edge” over other investors. As one example, research analyst Jon Horvath recommended selling Dell stock on Aug. 26, 2008, because of a “second hand read” from contacts inside the company about an upcoming unfavorable earnings report. Cohen liquidated his $12 million holding within 10 minutes after receiving the recommendation. Horvath pleaded guilty to conspiracy and securities fraud in connection with Dell trades in September.
In another example, Cohen liquidated $700 million in holdings in two drug companies, Elan and Wyeth, on July 20, 2008, after health care analyst Matthew Martoma passed along inside information about the soon-to-be-announced negative results of clinical trials of a new drug. By selling and shorting the stock, Cohen realized $276 million in profits or avoided losses. Martoma was indicted in December in connection with the trades. Cohen allegedly knew Martoma was paying a doctor involved in the drug trials for the tips.
SAC’s compliance systems reflected what the indictment calls “a lack of commitment” to address the insider trading issues. The indictment notes that up until 2009 the compliance department did not do keyword searches of employees’ e-mails for terms suggestive of insider trading. In the only insider trading violation uncovered internally, two portfolio managers were found to have used inside information to trade on a health company stock in July 2009. They were fined, but allowed to keep their jobs; no report was made to regulatory authorities.
Cohen and SAC Capital are Exhibit Number One of the ethics gap in the financial services industry identified by the survey released in mid-July by the law firm of Labaton Sucharow, which specializes in representing plaintiffs and whistleblowers in securities fraud litigation. More than half of the financial industry professionals surveyed — 52 percent — thought their competitors probably engaged in unethical or illegal behavior. Nearly one-fourth — 24 percent — thought some of their co-workers had done so. Substantial numbers viewed compensation systems as encouraging unethical conduct (26 percent) and top officials as likely to turn a blind eye to improper conduct by a “top performer” (17 percent).
Back in baseball’s steroid era, true fans knew the home run records were too good to be true. Financial experts know that some of the returns posted by hedge funds and individual investors are similarly too good to be true. Baseball can at least claim to be trying to clean house; the government's moves against SAC are one step in cleaning up the ethical rot on Wall Street.
Monday, July 22, 2013
Reporter May Be Bound for Jail Over Subpoena
James Risen may need to start packing a toothbrush and overnight bag because the Pulitzer Prize-winning reporter and author is headed to jail barring an unlikely change of heart by either the government or the federal judiciary.
Risen, who covers national security for the New York Times, got the bad news on Friday [July 20] that the federal appeals court in Richmond, Va., had upheld the government’s effort to force him to testify in the prosecution of an alleged CIA leaker. The government believes that ex-CIA agent Jeffrey Sterling leaked classified materials to Risen to use in his book State of War to recount a botched CIA operation a decade ago aimed at disrupting Iran’s nuclear program.
Risen has fought the subpoena, claiming a reporter’s privilege to protect confidential sources. Judge Leonie Brinkema, who is presiding over Sterling’s now-held-in-abeyance trial in federal district court in Alexandria, Va., ruled in July 2011 that Risen did not have to testify about any confidential sources. On Friday, however, the Fourth U.S. Circuit Court of Appeals reversed Brinkema’s ruling in a split decision by a three-judge panel.
For the majority, Chief Judge William Traxler found no reporter’s privilege under either the First Amendment or federal common law. In a sharp dissent, Judge Roger Gregory argued that the government does not actually need Risen’s testimony and that forcing him to testify would undermine freedom of the press in general and the ability of the press in particular to hold the government accountable on national security issues.
The ruling against Risen reflects the confluence of three unfavorable trends for reporters. Federal courts, starting with the Supreme Court in 1972, have been unreceptive to claims of a journalist privilege to refuse to disclose confidential sources. States have passed reporter shield laws, but they have been only partly effective and Congress has not acted on a federal shield law at all. And, most recently, the Obama administration has aggressively gone after government leakers, charging 11 people so far, including Sterling, with violating the federal Espionage Act and facing the risk of long prison sentences.
The Supreme Court started things going downhill for reporters with its 1972 decision in Branzburg v. Hayes that rejected a reporter’s privilege to protect confidential sources in three consolidated cases that involved reporting on marijuana users and black militants. Writing for the 5-4 majority, Justice Byron R. White, no fan of the press, said courts were entitled to testimony from reporters just like from anyone else. White disregarded such common law privileges as husband-wife, attorney-client, doctor-patient, and priest-penitent. Justice Lewis F. Powell Jr. added what has been labeled an “enigmatic” concurrence that seemed to recognize a limited privilege even while joining White’s majority opinion.
The Supreme Court has not revisited the issue. But Congress in 1975 approved a new provision for the Federal Rules of Evidence, Rule 501, that explicitly gives federal courts the authority to create new privileges. In 1996 the Supreme Court cited that provision in recognizing for the first time a psychotherapist privilege in federal courts (Jaffee v. Redmond).
Free press advocates use that precedent to argue for a federal common law privilege for journalists. But the argument failed before the D.C. Circuit in the case eight years ago that led to the jailing of New York Times reporter Judith Miller. And the Fourth Circuit panel rejected it as well in last week’s decision in Risen’s case. “[N]either Rule 501 nor Jaffee overrules Branzburg or undermines its reasoning,” Traxler wrote for the majority.
Risen’s case illustrates the heightened danger for reporters when the government decides to prosecute leakers themselves. In Branzburg, the reporters argued in part that the government did not need their testimony to prosecute the drug users or black militants for any crimes they may have committed. In the leak cases, however, the leak is the crime itself and the reporter may very well be a direct eyewitness.
As Traxler wrote, Risen “can provide the only first-hand account of the commission of a serious crime. . . .” (Risen has been granted immunity, so he cannot claim the Fifth Amendment privilege against self-incrimination.) In his dissent, Gregory disagreed, noting the circumstantial evidence the government has against Sterling, including records of telephone calls and e-mails between him and Risen. But Traxler says the government is entitled to the best evidence available: Risen’s own testimony about his sources.
The Obama administration is quite serious about going after government leakers, as documented in a thorough story in the Times on Sunday by reporter Sharon LaFraniere. “It is good to hang an admiral once in a while,” Dennis Blair, Obama’s first national director of intelligence and a former Navy man, is quoted as saying. He and Attorney General Eric Holder fashioned an anti-leak crackdown that filtered down to courtroom prosecutors.
Obama has turned aside criticism that the crackdown goes against his campaign promises for greater transparency. New Justice Department guidelines issued this month in response to media criticism seem to offer little help to Risen or others in like circumstances.
Risen and his lawyers are promising to appeal up to the Supreme Court if necessary. And Risen has indicated he will go to jail rather than comply with the subpoena. In his dissent, Gregory said the newsworthiness of Risen’s reporting outweighs any benefit to law enforcement from his testimony. Traxler brushed the argument aside, apparently willing to take the risk that reporters will find it that much more difficult to tell the public what the government does not want it to know about U.S. intelligence agencies.
Risen, who covers national security for the New York Times, got the bad news on Friday [July 20] that the federal appeals court in Richmond, Va., had upheld the government’s effort to force him to testify in the prosecution of an alleged CIA leaker. The government believes that ex-CIA agent Jeffrey Sterling leaked classified materials to Risen to use in his book State of War to recount a botched CIA operation a decade ago aimed at disrupting Iran’s nuclear program.
Risen has fought the subpoena, claiming a reporter’s privilege to protect confidential sources. Judge Leonie Brinkema, who is presiding over Sterling’s now-held-in-abeyance trial in federal district court in Alexandria, Va., ruled in July 2011 that Risen did not have to testify about any confidential sources. On Friday, however, the Fourth U.S. Circuit Court of Appeals reversed Brinkema’s ruling in a split decision by a three-judge panel.
For the majority, Chief Judge William Traxler found no reporter’s privilege under either the First Amendment or federal common law. In a sharp dissent, Judge Roger Gregory argued that the government does not actually need Risen’s testimony and that forcing him to testify would undermine freedom of the press in general and the ability of the press in particular to hold the government accountable on national security issues.
The ruling against Risen reflects the confluence of three unfavorable trends for reporters. Federal courts, starting with the Supreme Court in 1972, have been unreceptive to claims of a journalist privilege to refuse to disclose confidential sources. States have passed reporter shield laws, but they have been only partly effective and Congress has not acted on a federal shield law at all. And, most recently, the Obama administration has aggressively gone after government leakers, charging 11 people so far, including Sterling, with violating the federal Espionage Act and facing the risk of long prison sentences.
The Supreme Court started things going downhill for reporters with its 1972 decision in Branzburg v. Hayes that rejected a reporter’s privilege to protect confidential sources in three consolidated cases that involved reporting on marijuana users and black militants. Writing for the 5-4 majority, Justice Byron R. White, no fan of the press, said courts were entitled to testimony from reporters just like from anyone else. White disregarded such common law privileges as husband-wife, attorney-client, doctor-patient, and priest-penitent. Justice Lewis F. Powell Jr. added what has been labeled an “enigmatic” concurrence that seemed to recognize a limited privilege even while joining White’s majority opinion.
The Supreme Court has not revisited the issue. But Congress in 1975 approved a new provision for the Federal Rules of Evidence, Rule 501, that explicitly gives federal courts the authority to create new privileges. In 1996 the Supreme Court cited that provision in recognizing for the first time a psychotherapist privilege in federal courts (Jaffee v. Redmond).
Free press advocates use that precedent to argue for a federal common law privilege for journalists. But the argument failed before the D.C. Circuit in the case eight years ago that led to the jailing of New York Times reporter Judith Miller. And the Fourth Circuit panel rejected it as well in last week’s decision in Risen’s case. “[N]either Rule 501 nor Jaffee overrules Branzburg or undermines its reasoning,” Traxler wrote for the majority.
Risen’s case illustrates the heightened danger for reporters when the government decides to prosecute leakers themselves. In Branzburg, the reporters argued in part that the government did not need their testimony to prosecute the drug users or black militants for any crimes they may have committed. In the leak cases, however, the leak is the crime itself and the reporter may very well be a direct eyewitness.
As Traxler wrote, Risen “can provide the only first-hand account of the commission of a serious crime. . . .” (Risen has been granted immunity, so he cannot claim the Fifth Amendment privilege against self-incrimination.) In his dissent, Gregory disagreed, noting the circumstantial evidence the government has against Sterling, including records of telephone calls and e-mails between him and Risen. But Traxler says the government is entitled to the best evidence available: Risen’s own testimony about his sources.
The Obama administration is quite serious about going after government leakers, as documented in a thorough story in the Times on Sunday by reporter Sharon LaFraniere. “It is good to hang an admiral once in a while,” Dennis Blair, Obama’s first national director of intelligence and a former Navy man, is quoted as saying. He and Attorney General Eric Holder fashioned an anti-leak crackdown that filtered down to courtroom prosecutors.
Obama has turned aside criticism that the crackdown goes against his campaign promises for greater transparency. New Justice Department guidelines issued this month in response to media criticism seem to offer little help to Risen or others in like circumstances.
Risen and his lawyers are promising to appeal up to the Supreme Court if necessary. And Risen has indicated he will go to jail rather than comply with the subpoena. In his dissent, Gregory said the newsworthiness of Risen’s reporting outweighs any benefit to law enforcement from his testimony. Traxler brushed the argument aside, apparently willing to take the risk that reporters will find it that much more difficult to tell the public what the government does not want it to know about U.S. intelligence agencies.
Subscribe to:
Posts (Atom)