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Congress, Courts Examine 'State Secrets'
U.S. Legal News | 2007/11/26 11:42
In federal courts and on Capitol Hill, challenges are brewing to a key legal strategy President Bush is using to protect a secret surveillance program that monitors phone calls and e-mails inside the United States.

Under grilling from lawmakers and attack by lawsuits alleging Bush authorized the illegal wiretapping of Americans, the White House has invoked a legal defense known as the "state secrets" doctrine — a claim that the president has inherent and unchecked power to shield national security information from disclosure, either to plaintiffs in court or to congressional overseers.

The principle was established a half-century ago when, ruling in a wrongful-death case brought by the widows of civilians killed in a military plane crash, the Supreme Court upheld the Air Force's refusal to provide an accident report to the plaintiffs. The government contended releasing the document would compromise information about a secret mission and intelligence equipment.

Sen. Arlen Specter of Pennsylvania, the senior Republican on the Judiciary Committee, believes the White House has gone too far in invoking state secrets to halt civil lawsuits.

"We have the authority to define the state secrets doctrine," Specter says. "I don't think that the simple assertion of state secrets ought to be the end of the matter."

Specter, Sen. Edward Kennedy, D-Mass., and others are working on legislation that would direct federal judges to review the president's state secrets claims and allow cases with merit to go forward.

Practices among judges vary. Some accept state secrets claims outright, dismissing cases on the government's word. Others read the privileged information and decide for themselves, but almost invariably side with the government, according to legal scholars.

The draft legislation is modeled on procedures used in criminal cases that involve classified information. The Classified Information Protection Act lets judges review classified information a criminal defendant wants to use in his defense, but which could compromise national security if it were released publicly. The law allows the court to delete classified passages, substitute summaries of the information, or substitute a statement of facts that the classified information would prove.

The measure could become part of the Senate's new eavesdropping law, expected to be voted on in early December, the aides said.

In another challenge to Bush's position on classified material, a federal judge in Virginia last week ordered the government to give trial prosecutors, defense lawyers and her clerk security clearances to review classified material in a terrorism case. Defense lawyers say the material will show the government failed to turn over evidence obtained by illegally monitoring their client's communications, and they want a new trial. The government says the information is protected by the state secrets privilege.

And in a case in Oregon, a U.S. district court judge is set to decide whether the 1978 Foreign Intelligence Surveillance Act trumps presidential claims of secrecy.

Adopted after the Watergate scandal, FISA dictates when the government must get permission from a secret court to monitor electronic communications inside the United States. It also allows people who believe they were spied on illegally to sue the government for damages and to request materials that would prove the surveillance. If the attorney general says disclosure would harm national security, a district court may review the classified materials privately to determine if the surveillance was illegal.

That civil liability provision of FISA, however, comes up hard against the National Security Agency's Terrorist Surveillance Program.

Shortly after the Sept. 11, 2001, attacks, Bush secretly authorized the spy agency to intercept international communications coming in and out of the United States that were believed to involve foreign terrorist organizations. It did so without going through the FISA court, claiming the Constitution and Congress' authorization for the use of military force after the terrorist attacks were all the authority the president needed to undertake the program.

Privacy and civil liberties groups say the warrantless surveillance violates FISA's prohibition on domestic surveillance without court orders. But for someone to sue the government for FISA violations, they must prove they were directly injured by the government's action. That is nearly impossible because the government will not disclose its targets or methods.

One organization, however, believes it can demonstrate it has standing to sue because of an accidental document release in 2004. That February, the Bush administration froze the assets of the Al-Haramain Islamic Foundation, a Muslim charity the United Nations Security Council alleges is associated with al-Qaida. In preparation for a legal proceeding on the terrorist designation in August, the Treasury Department inadvertently gave the foundation's lawyers and directors a top secret document dated May 24, 2004.

The document appeared to be a government summary of phone conversations it monitored between foundation lawyers and directors, according to a Washington Post reporter who received a copy from the foundation.

The FBI took the document from the Washington Post and Al Haramain in October 2004.

Fourteen months later, The New York Times revealed the existence of the Terrorist Surveillance Program. That is when the foundation's lawyers realized what the top secret document was: proof the organization had been targeted for warrantless electronic surveillance under TSP. They believe that proves standing, unique among plaintiffs in dozens of surveillance cases filed across the country.

The government asserts the states secrets privilege and refuses to release the document or confirm its contents. In its first crack at the case in 2006, the federal court in Oregon partially agreed. It said the document was rightfully protected by state secrets, but the foundation's lawyers could describe what they remembered about it to establish standing in their lawsuit.

The government appealed that decision to the 9th Circuit Court in San Francisco, which last week upheld its state secrets claim. But it did not dismiss the case. Instead, it directed the Oregon court to tackle one question it had sidestepped: whether FISA overrides the common law state secrets privilege.

Whatever the lower court decides, its decision will almost certainly be appealed to the Supreme Court, legal experts and attorneys on the case say. The high court is unlikely to be friendly to a challenge to the state secrets doctrine. In October it unanimously declined to hear a CIA torture allegation case that the Bush administration wanted dismissed on secrecy grounds. And in 2005, the Supreme Court unanimously upheld the state secrets doctrine in an espionage contract case.



Ex-Prof Pleads Guilty to Killing Wife
Criminal Law Updates | 2007/11/26 11:24
A former Ivy League professor pleaded guilty Monday to voluntary manslaughter for killing his wife as she wrapped Christmas presents last year.

Rafael Robb, once a tenured economics professor at the University of Pennsylvania, faces a prison sentence of no more than seven years for bludgeoning his wife, Ellen, on Dec. 22.

Robb, 57, said Monday that he got into an argument with his wife about a trip she was taking with their daughter and whether they would be returning in time for the daughter to return to school.

"We started a discussion about that. The discussion was tense," Robb said. "We were both anxious about it. We both got angry. At one point, Ellen pushed me. ... I just lost it."



Supreme Court to look at gun law
Headline News | 2007/11/26 10:43

"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."

That's what the U.S. Constitution's Second Amendment says. Last week the Supreme Court agreed to decide what it means. It could be the most far-reaching decision on guns in almost 70 years.

That's when the high court rejected the notion of an individual right to possess guns for purposes unrelated to state militias. That 1939 decision allowed room for the federal government, the states and the District of Columbia to regulate and restrict gun ownership, and that has frustrated gun-rights advocates ever since. The case the court agreed to hear next March challenges D.C.'s 31-year-old handgun ban.

The Supreme Court shouldn't reverse this settled law.

A ruling that establishes a precedent for an individual's constitutional right to possess guns would open the floodgates and drown the courts in challenges of the existing, rational restrictions on gun ownership. And a sweeping decision could mean that the nation would soon be awash in ever more firearms.

With an estimated 192 million privately owned guns already in the country, that we don't need.



Enron law firm seeks $700 million in fees
Headline News | 2007/11/26 10:11

A law firm is asking a federal judge to approve nearly $700 million in legal fees for its efforts to help Enron Corp. shareholders and investors recoup billions they lost after the once-mighty energy company collapsed. Coughlin Stoia Geller Rudman & Robbins LLP said it has helped plaintiffs recover almost $7.3 billion so far.

About Coughlin Stoia Geller Rudman & Robbins LLP

Coughlin Stoia Geller Rudman & Robbins LLP (“Coughlin Stoia”) is a 190-lawyer law firm with offices in San Diego, San Francisco, Los Angeles, New York, Boca Raton, Washington, D.C., Houston and Philadelphia. Coughlin Stoia is actively engaged in complex litigation, emphasizing securities, consumer, insurance, healthcare, human rights, employment discrimination and antitrust class actions. Coughlin Stoia’s unparalleled experience and capabilities in these fields are based upon the talents of its attorneys who have successfully prosecuted thousands of class-action lawsuits. As a result, Coughlin Stoia attorneys have been responsible for recoveries of more than $45 billion.

This successful track record stems from our experienced attorneys, including many who left partnerships at other firms or came to Coughlin Stoia from federal, state and local law enforcement and regulatory agencies, including dozens of former prosecutors and SEC attorneys. Coughlin Stoia also includes more than 25 former federal and state judicial clerks.

Coughlin Stoia currently represents more institutional investors, including public and multi-employer pension funds – domestic and international financial institutions – in securities and corporate litigation than any other firm in the United States.

Coughlin Stoia is committed to practicing law with the highest level of integrity and in an ethical and professional manner. We are a diverse firm with lawyers and staff from all walks of life. Our lawyers and other employees are hired and promoted based on the quality of their work and their ability to enhance our team and treat others with respect and dignity. Evaluations are never influenced by one’s background, gender, race, religion or ethnicity.

We also strive to be good corporate citizens and to work with a sense of global responsibility. Contributing to our communities and our environment is important to us. We raised hundreds of thousands of dollars in aid for the victims of Hurricane Katrina and we often take cases on a pro bono basis. We are committed to the rights of workers and to the extent possible, we contract with union vendors. We care about civil rights, workers’ rights and treatment, workplace safety, and environmental protection. Indeed, while we have built a reputation as the finest securities and consumer class action law firm in the nation, our lawyers have also worked tirelessly in less high-profile, but no less important, cases involving human rights.



Family of alleged Bulger victim to get day in court
Lawyer Blog News | 2007/11/26 09:54

Another family of a man allegedly ordered killed by Whitey Bulger may be able to win damages against the FBI without going through a trial.

On February 19, U.S. District Court Judge Reginald Lindsay will consider a motion for summary judgment by the widow of Richard Castucci.

Bulger allegedly had the 48-year-old Castucci killed in 1976 because he told the FBI about the hiding place of 2 fellow gangsters. Bulger allegedly learned about Castucci from rogue FBI agent John Connolly.

Lindsay scheduled the Castucci hearing last week, right after he ruled the federal government liable for the 1982 murders of Edward Brian Halloran and Michael Donahue.

Halloran was allegedly murdered by Bulger after Connolly told him Halloran was going to implicate him in a murder. Donahue was an innocent bystander.



If you fail to pay, law firm will come calling
Headline News | 2007/11/26 09:02

If you refuse to pay your property taxes in Dallas County, chances are you're going to hear from a lawyer.

And the chances are even greater that lawyer will be from Linebarger Goggan Blair & Sampson.

Dallas County and most of its cities and other taxing entities pay the law firm to collect delinquent taxes each year and foreclose on properties when necessary.

Linebarger is a giant in the collections field – the largest law firm of its kind in the nation. The Austin-based firm has offices across the country. It aggressively seeks governmental contracts, uses an army of lobbyists and has millions to spend on political campaigns.

Linebarger has had the lucrative Dallas County tax collection contract since 1984. The firm represents nine of the 10 largest taxing authorities in Texas. It also handles collection efforts for governments in California, Florida, Illinois, Louisiana and Pennsylvania, as well as for the U.S. Treasury.

"We're good at it. There's a reason why people hire us," said DeMetris Sampson, a managing partner of the firm's Dallas office high atop the Univision tower downtown.

The incentive for Dallas County is that the firm's services are free to taxpayers. Delinquent property owners subsidize the collection effort by paying an additional attorney fee that's tacked onto their bill.

County officials say that they are pleased with Linebarger's work and that privatizing the tax collection process has been a success.

The firm says it has collected more than $374 million for Dallas County since 1984. This year alone, Linebarger will collect more than $1 billion for its 1,800 clients nationwide, Ms. Sampson said.

She declined to say how much the Dallas County contract is worth or how much her firm earns. But assuming a fee of at least 15 percent, its revenue this year could translate to $150 million.

Linebarger was one of three private collection firms the IRS began using last September to collect outstanding federal income taxes. But its contract was not renewed when it expired in March. The U.S. House voted in October to end the controversial private-collection program, but the measure died in the Senate.

Despite its successes, Linebarger has not avoided controversy. In 2002, a partner was indicted on charges of conspiring to bribe two San Antonio City Council members who had voted to award the firm a collection contract. Juan Pena resigned from the firm and pleaded guilty two years later.

The law firm settled a lawsuit around the same time from a competitor that accused Linebarger of offering illegal gifts and bribes and rigging bids to win collection contracts from several local governments.

Ms. Sampson said people can file lawsuits for just about anything. She said the firm wins contracts by relying on its track record.

But money doesn't hurt.

From 2000 through this July, Linebarger gave more than $1.9 million to candidates for statewide office, most of it to Texas Attorney General Greg Abbott and Gov. Rick Perry, according to data from the Texas Ethics Commission.

The law firm also gives generously to local Dallas County politicians.

Linebarger and its lawyers typically give between $1,000 and $5,000 to each Dallas County commissioner every year. In total, the firm has spent at least $90,000 in campaign contributions to Dallas County commissioners since 1999.

More than half of sum that went to commissioner John Wiley Price, campaign finance reports show.

Mr. Price said the campaign money does not influence his decision-making on matters related to the firm, which he praises for its work.

"They're in the business of trying to collect. What would you expect?" he said about the campaign donations. "I would expect them to be aggressive."

In 2002, the firm's Dallas office asked Dallas County for and received an increase in its fees from 15 percent to 20 percent of all delinquent taxes, penalties and interest it collects – the maximum allowed under state law.

That means the firm gets a fee equal to 20 percent of every dollar collected, regardless of whether the firm does anything on the case.

In 2005, Dallas County commissioners extended Linebarger's contract for seven additional years, from January 2008 to January 2015, in exchange for the firm agreeing to provide the county with a Web-based tax collection system.

"We think we're doing a great job," said Nancy Primeaux, regional manager of the firm's Dallas office.



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