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Is Vermont lawyer being wiretapped?
U.S. Legal News | 2007/09/23 16:40

A Vermont lawyer representing a client being held at Guantanamo, Cuba, is worried that his phone is being tapped by the federal government.

He ought to be. The federal government may have interpreted the revised federal surveillance law to allow it to wiretap the lawyers of Guantanamo prisoners.

The Vermont Public Service Board heard testimony last week about the suspicions of lawyer Bob Gensburg of St. Johnsbury, who says his phone line has inexplicably gone dead and has been subject to strange buzzing noises. Gensburg is one of Vermont's most respected lawyers, and he is not likely to be imagining these occurrences or to be making them up.

The PSB has already involved itself in the issue of unwarranted spying by the government, mounting an investigation into whether Verizon and AT&T had turned over phone calling records to the National Security Agency without warrants. The federal government has sued to block the PSB's investigation, and those in other states, on the grounds that it would jeopardize national security to talk about the activities of the telephone companies.

Mike McConnell, the director of national intelligence, may have undermined the government's case last month when he acknowledged in an interview that the telecommunications companies had helped the government carry out its program of warrantless electronic spying. It will be harder for the government to argue in court that it cannot talk about the phone companies' role now that the nation's spy chief has talked about it. The Public Service Board is now receiving briefs from the parties in the case in response to McConnell's admission.

Meanwhile, Gensburg wonders if his calls to Afghanistan on behalf of his client are being monitored by the government. If so, it would be an unconscionable breach of the lawyer-client privilege.

Gensburg is not the only Vermonter with connections to Afghanistan. Others have relatives working there or friends living there. One editor of our acquaintance telephoned a friend in Kabul within the past two years. The question inevitably arises: Was the telephone contact monitored or subject to the government's efforts at data mining?

Data mining and warrantless spying on international calls are being carried out in the name of the war on terrorism. So is the detention of Afghans and others at Guantanamo, without charges, with limited access to lawyers, and without recourse to the law. The possibility of unaccountable secret detention of American citizens still exists because of the erosion of the habeas corpus rights that are supposed to be part of our constitutional birthright. Last week the Senate failed to end a Republican filibuster of a bill authored by Sen. Patrick Leahy that would have restored our habeas corpus rights.

No one knows if Gensburg's phone has been tapped, but the Bush administration's disregard for constitutional protections creates an atmosphere of fear and suspicion that make the possibility seem real. One of the great advantages of a democracy is that we need not live in fear that the government will be rifling through our desk drawers or spying on private communications.

As for the telephone companies, it was their responsibility to know right from wrong and to stand up to the government when it sought their cooperation in illegal surveillance. The companies are seeking immunity in Congress for their actions. Instead, the investigations in Vermont and elsewhere need to move forward to hold those accountable, in government and the private sector, for actions that compromised our constitutional rights. No one in Vermont or anywhere else should have to fear that a phone call to Kabul is going to get them in trouble — unless the government has reasonable grounds to believe that a particular individual is actually involved in criminal activity.

For the government to monitor the phone calls of a lawyer or to cast out a vast electronic dragnet is for it to practice the methods of the Soviet Union or East Germany. The Vermont PSB now has an important role in checking the excesses of the government and private companies in spying on innocent Vermonters.

Senators Urge More Stringent Rules for Toy Safety
U.S. Legal News | 2007/09/13 15:50

Mattel's chief executive apologized to Congress on Wednesday for failing to stop toys coated in lead paint from reaching consumers and vowed to take immediate steps to prevent it from happening again. "I can't change the past, but I am changing how we do things," the executive, Robert A. Eckert, said in testimony before a Senate subcommittee. But senators at the hearing said the safety measures promised by Mr. Eckert and others in the toy industry were inadequate. They proposed a long list of legislative changes that go much further - including increased fines for selling or failing to report dangerous goods, and a prohibition, backed by possible criminal prosecution, against retailers selling recalled products.

"This is getting serious," said Senator Amy Klobuchar, a Minnesota Democrat. "It is time for us to take action."

Senators also called for a revamping of the Consumer Product Safety Commission, including giving it the power to ban lead in all children's toys, funds to increase the number of inspectors at ports and compliance officers in the field, and providing better equipment and better staff for the testing laboratory.

Mattel, the nation's largest toy company, and other members of the Toy Industry Association, whose members are collectively responsible for 85 percent of toys sold in the United States, support a federal mandate that toys be tested by independent laboratories before they are sold.

Failure by all parties to properly do such testing has "left our companies, the industry and most importantly our children exposed," Carter Keithley, president of the Toy Industry Association, said in his testimony.

Gerald L. Storch, chairman of Toys "R" Us, said the government and toy manufacturers should find a way to hasten the recall of products after flaws are discovered.

"We are troubled by the possibility that we could be continuing to sell toys that someone knows may have a problem, while we remain unaware until we receive word that a recall is coming," Mr. Storch said.

The hearing took place in a crowded chamber framed by two illustrations propped up behind the senators: one with a photograph of the Consumer Product Safety Commission's sole full-time toy tester in a cramped, poorly equipped laboratory, and a second with a chart showing that most of the consumer products recalled in the United States since December came from China.

Nancy A. Nord, the acting chairwoman of the Consumer Product Safety Commission, said she agreed with many of the proposals to confront these two problems, acknowledging, for example, that the agency's laboratory in Gaithersburg, Md., is woefully inadequate.

"It is an incredibly inefficient facility," she said of the lab, which is in a 1950s-era former missile defense site outside Washington.

But Democrats and the one Republican senator at the hearing - held by a Senate Appropriations subcommittee - expressed frustration with progress enforcing safety rules, particularly concerning flawed goods from China.

"We need to start pulling the club out," said Senator Sam Brownback, a Kansas Republican who is a presidential candidate.

Ms. Nord said it would help if Customs and Border Protection, which has a much larger force of inspectors at ports, could do more to help enforce consumer safety laws. "We all understand that Customs' first responsibility is homeland security," she said, but added that her agency had so few employees at ports that it could do little on its own.

Mr. Eckert of Mattel was questioned about allegations that his company intentionally delayed notifying United States authorities about initial reports that some of its toys contained lead.

He acknowledged that one initial report about lead contamination of a toy destined for a retailer in France may not have been reported, as the company believed it had intercepted the product before it reached the market, and that this item was not being sold in the United States.

Mattel, he said, will now test every batch of its contractors' toys for lead, and require them to buy paint only from approved vendors. Auditors hired by the company will also spot-check contractors' factories in China, he said.

Senator Richard J. Durbin, Democrat of Illinois, praised the toy industry for acknowledging that hazardous toys are a real problem.

"There is no corporate denial here," he said. "There is no defensive crouch."

But Mr. Durbin said he was disappointed with Ms. Nord and the safety commission, which he said did not appear to be attacking the problem aggressively enough, including moving too slowly to institute and enforce a ban on lead in children's jewelry.

He also mocked a new agreement with Chinese officials to block lead in toys, saying that the Chinese government told his office the policy had long been in place.

What is clear, Mr. Durbin said, is that the consumer product regulatory system - which largely relies upon manufacturers, importers and retailers to police themselves and report hazardous products - has not worked well enough.

"Those who have argued for so many years that we have to get government out of our lives understand that there are moments when we need government, when we need someone to make certain that the products on the shelves are always going to be safe," he said at the close of the hearing. "We need to step up to that responsibility."

Immigration Divides Romney and Giuliani
U.S. Legal News | 2007/08/15 16:32
Mitt Romney accuses former New York Mayor Rudy Giuliani of making his city a haven for illegal immigrants. Giuliani denies it, insisting he cracked down on lawlessness of every kind. It's the first real clash between two leading Republican candidates who are vulnerable on immigration, a volatile issue that infuriates Republican conservatives who hold sway over primary elections.

At issue are so-called sanctuary cities, places where city employees are not required to report illegal immigrants to federal authorities. Some, such as San Francisco, have declared themselves sanctuaries or refuges. Others, like New York, have never adopted the "sanctuary" moniker.

New York's policy, issued by Democratic Mayor Ed Koch in 1988, is intended to make illegal immigrants feel that they can report crimes, send their children to school or seek medical treatment without fear of being reported.

An estimated half-million illegal and undocumented immigrants live in New York, and only a fraction are deported each year.

"What's the best thing to do about that?" Giuliani asked in 1996. "Put them in a situation in which they keep children out of school? Put them in a situation in which they don't go to hospitals? Or put them in a situation in which they don't report crimes to the police?"

Giuliani went to court to preserve the policy, suing over a 1996 attempt by Congress to undo the city's protections. He lost, but Mayor Mike Bloomberg later issued a new, broader version of the policy that is still in effect.

In the presidential campaign, Giuliani and Romney are talking tough on immigration, even opposing the bipartisan immigration overhaul backed by President Bush. Yet their records are not necessarily tough. For example:

_Several illegal immigrants worked on Romney's lawn as employees of a lawn care company; Romney said he didn't know the company had hired illegal workers.

_As mayor, Giuliani often spoke positively about illegal immigrants: "If you come here, and you work hard, and you happen to be in an undocumented status, you're one of the people who we want in this city," he told The New York Times in 1994.

_Both Romney and Giuliani spoke favorably of 2006 legislation providing a path to citizenship for illegal immigrants; they opposed a similar bill earlier this year.

Immigration inflames conservatives in early voting states such as Iowa and South Carolina, where some argue that illegal immigrants are straining schools and hospitals, lowering wages or taking jobs from law-abiding citizens.

In Aiken, S.C., on Tuesday, Giuliani repeated a pledge to closely track immigrants with tamperproof identity cards, bolster fencing and law enforcement at the border and deport illegal immigrants who commit crimes.

Giuliani planned to highlight his support for a physical and technological fence with new radio ads beginning Wednesday in New Hampshire and Iowa. His technological fence would be a system of motion detectors, night vision monitors and video cameras.

Romney, inspecting border fencing and checkpoints Monday in San Diego, reiterated his plan to hire more Border Patrol agents, sanction employers who hire illegal immigrants and cut federal dollars for sanctuary cities.

Romney blames "don't tell" policies, and Giuliani's support for them, for luring millions of illegal immigrants to the United States.

"New York City was the poster child for sanctuary cities in the country," Romney said last week in Bettendorf, Iowa.

Giuliani's defense is that he cracked down on all crimes, including illegal immigration. "New York City had the least amount of illegality per capita of any major city in the country, and I brought that change about," he said last week in Colorado Springs, Colo.

And his campaign accused Romney of hypocrisy, pointing out that as governor of Massachusetts, Romney did not try to punish sanctuary cities _ Cambridge, Orleans and Somerville _ in his own state.

"He had three sanctuary cities in his own state," longtime Giuliani aide Randy Mastro said. "The New York City program was very different. We had a system that protected public safety by encouraging aliens to come forward to the authorities to report crimes, and then required authorities to cooperate in the investigation and prosecution of aliens who committed crimes."

Romney says he tried to curtail the problem by deputizing state police to enforce federal immigration laws.

"It was exactly in response to the fact that immigration laws were not being enforced," spokesman Kevin Madden said. "It was also in conjunction with his belief that enforcement has to be a joint state and federal effort."

Bloomberg, who may run for president himself, waded into the dispute this week. Asked Monday about the idea of New York as a sanctuary for illegal immigrants, he said, "Let 'em come."

"I can't think of any laboratory that shows better why you need a stream of immigrants than New York City," he added. "I don't know what to tell anybody. If they don't believe that immigrants add a heck of a lot more than they cost, they just aren't looking at the numbers."

Candidates stop short on same-sex marriage
U.S. Legal News | 2007/08/10 16:19

Melissa Etheridge confronted Hillary Rodham Clinton about her husband's gay rights record, accusing Bill Clinton of throwing gay and lesbian supporters "under the bus" by pushing for the "Don't Ask, Don't Tell" policy and the Defense of Marriage Act. The Democrats' top three candidates, including Clinton, pledged support for gay rights at the first-ever nationally televised same-sex issues presidential forum - but they and other Democratic candidates attending refused to back gay and lesbian marriages.

Facing successive 15-minute interviews by gay rights advocates in Los Angeles last night, Clinton, Barack Obama and John Edwards all vowed to battle for gay, lesbian and transgender rights. But they stopped short of endorsing gay marriage - a hot-button culture-war issue that could alienate millions of independents and religious conservatives.

Etheridge, who announced she was a lesbian shortly after Bill Clinton was inaugurated in 1993, expressed bitterness at his inability to pass gay rights measures he promised during the campaign.

"It was a very hopeful time," she said. "But in the years that followed, our hearts were broken, we were thrown under the bus, we were pushed aside. All of those great promises ... were broken."

Clinton, who had been warmly received by the studio audience, seemed surprised by Etheridge's comments.

"Obviously, Melissa, I didn't see it quite the way you describe it," she said. " ... We didn't get as much done as I would have liked, but I believe there was a lot of honest effort going on."

The candidates appeared in the order they accepted the invitation from the LOGO cable network and Human Rights Campaign, with Obama first - and Clinton last.

"This forum is a real measure of how far we've come as a community, but there are many of us in our community who'd like to see the candidates come farther on gay marriage," said Fred Hochberg, dean of the Milano urban policy institute at New School University, one of Clinton's highest-profile gay supporters.

Suffolk Legis. Jon Cooper, a supporter of Obama who attended the forum, echoed those sentiments, saying, "Although I would love them to come out in support of same sex civil marriage, it's not going to happen right now ... "

The forum underscored the gay paradox in the Democratic Party: The candidates support gay rights but are wary of alienating party conservatives and religious blacks in the South.

Earlier this year, Clinton and Obama angered Human Rights Campaign leaders by refusing to immediately and forcefully rebuke a general's claim that homosexuality was "immoral." They later released statements indicating their disagreement.

Ohio Rep. Dennis Kucinich and former Alaska Sen. Mike Gravel were the only Democrats who have expressed support for gay marriage. Sens. Joseph Biden and Christopher Dodd, who oppose same-sex marriage, declined the invitation, as did all Republican candidates, including Rudy Giuliani, who supports some gay rights.

All the Democrats in attendance pledged to back broad new anti-discrimination statutes, want to scrap Bill Clinton's "Don't Ask, Don't Tell" policy for the military, and believe in civil unions that allow same-sex couples the same rights as heterosexual couples.

"I'm going to be more sympathetic not because I'm black, I'm going to be more sympathetic because this is the cause of my life," Obama said.

Panelist Jonathan Capehart challenged Obama on his opposition to gay marriage, saying his position was "old school." Obama used the remark to point out he'd been the first candidate to accept LOGO's invitation. "There's a reason why I was here first," he said.

Etheridge challenged John Edwards on his recent comments suggesting he was opposed to same-sex marriage based on his religious convictions.

"I have heard in the past that you felt uncomfortable among gay people," she said. Edwards denied her assertion but offered an apology for linking gay issues and Christianity.

"I shouldn't have said that," he said. "I believe to my core in equality ... I will not impose my faith belief on the American people."

Gay activists react

"I was thinking 'When will they get it that equal means equal?' Senator Obama was talking about how he wanted to extend all rights of marriage to people through civil union. But laws are defined by marriage. Laws are not defined by civil union. We've learned that through New Jersey."

- David Kilmnick, executive director of Long Island Gay and Lesbian Youth

"I appreciated John Edwards speaking about the homeless teenagers in the L.A. community center. That was something that people didn't talk about yet and it's very important - people getting thrown out of the house because they're gay."

- Lauren Van Kirk, treasurer of the Stonewall Democrats of Suffolk County

"My family comes from the South, so I understand where he's [Obama's] coming from. But between him and Edwards, both of them fall short. They still fall short of calling it marriage. ... Civil union: it's second-class citizenship."

- Sheila Marino-Thomas, data entry worker for Marriage Equality New York, who has been with her partner for 14 years

"It sounded like she [Clinton] was handing the responsibility for moving the ball forward - fighting - and she said 'well, you guys in the human rights campaign are doing the right thing,' as if to say we can't be doing that in the political realm. It's an easier thing to say, rather than saying I'm going to take up that struggle."

Bush signs intelligence surveillance bill
U.S. Legal News | 2007/08/06 02:38
President Bush on Sunday signed into law an expansion of the government's power to eavesdrop on foreign terror suspects without the need for warrants.

The law, approved by the Senate and the House just before Congress adjourned for its summer break, was deemed a priority by Bush and his chief intelligence officials.

Bush signed the bill into law on Sunday afternoon at his retreat at Camp David, Md.

"When our intelligence professionals have the legal tools to gather information about the intentions of our enemies, America is safer," Bush said. "And when these same legal tools also protect the civil liberties of Americans, then we can have the confidence to know that we can preserve our freedoms while making America safer."

The administration said the measure is needed to speed the National Security Agency's ability to intercept phone calls, e-mails and other communications involving foreign nationals "reasonably believed to be outside the United States."

The law is designed to capture communications that pass through the United States.

Civil liberties groups and many Democrats say it goes too far, possibly enabling the government to wiretap U.S. residents communicating with overseas parties without adequate oversight from courts or Congress.

The new law updates the Foreign Intelligence Surveillance Act, and it will expire in six months unless Congress renews it. Bush wants deeper, permanent changes.

"We must remember that our work is not done," Bush prodded. "This bill is a temporary, narrowly focused statute to deal with the most immediate shortcomings in the law."

US Senate panel backs FDA tobacco regulation bill
U.S. Legal News | 2007/08/02 12:36

A Senate committee Wednesday embraced legislation that would for the first time allow federal regulation of cigarettes.

The bill, approved 13-8 by the Health, Education, Labor and Pensions Committee, would require the Food and Drug Administration to restrict tobacco advertising, regulate warning labels and remove hazardous ingredients.

The agency also would be given the authority to set standards for products that tobacco companies advertise as "reduced risk" products.

"This is an enormous step forward," said Matt Myers, president of the Campaign for Tobacco-Free Kids. "This could end up being the signature public health action this Congress takes."

The bill has broad bipartisan support in the Senate, where more than 50 senators have signed on as co-sponsors. A similar bill passed the chamber in 2004 but was blocked in the House.

The tobacco legislation was crafted through several years of negotiations led by Sen. Edward Kennedy, D-Mass., involving health groups and tobacco giant Philip Morris, which broke from its competitors to endorse FDA regulation.

The bill would allow the FDA to reduce the amount of nicotine in cigarettes, but only Congress could permanently ban them.

The committee adopted an amendment by Sen. Mike Enzi, R-Wyo., that would ban clove cigarettes, reversing a controversial decision by Kennedy to allow the FDA to make that decision.

Kennedy, the panel's chairman, said he was responding to several senators who contacted him with concerns that a ban on cloves would not be compliant with World Trade Organization rules. But Kennedy agreed to the ban after several senators objected.

Most cloves are marketed in Asia, and Philip Morris, a unit of New York-based Altria Group Inc. (MO), recently launched a Marlboro cigarette flavored with cloves in Indonesia.

Kennedy said at the meeting that Philip Morris had "nothing to do with our decision" and he supported the clove ban as long as it is WTO compliant.

Philip Morris's competitors are strongly opposed to the overall bill, saying it would lock in Philip Morris's dominant market share. The panel rejected several amendments by Republican Sen. Richard Burr, who represents R.J. Reynolds Tobacco Co. in his home state of North Carolina. Kennedy said that Burr's amendments would undermine the legislation.

After the hearing, Burr said he would not rule out trying to hold up the bill on the Senate floor.

Enzi, the top Republican on the panel, also opposes the legislation and has objected to Philip Morris's involvement.

"If this bill is good for big tobacco, how can it be good for public health?," Enzi asked after the hearing. "The fact is, it can't. This bill is nothing more than a 'Marlboro Protection Act,' written to keep Philip Morris at the top of the tobacco market."

Enzi has introduced his own bill that would aim to greatly shrink the size of the tobacco market over the next 20 years.

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