DOCSLIB.ORG

Klayman V. Obama, 957 F.Supp.2D 1 (2013) 59 Communications Reg

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Klayman V. Obama, 957 F.Supp.2D 1 (2013) 59 Communications Reg Mirdamadi, Michael 4/1/2014 For Educational Use Only Klayman v. Obama, 957 F.Supp.2d 1 (2013) 59 Communications Reg. (P&F) 825 [6] order would be stayed pending appeal, in light of national 957 F.Supp.2d 1 security interests and novelty of constitutional issues. United States District Court, District of Columbia. Klayman et al., Plaintiffs, Motions granted in part and denied in part, and order stayed v. pending appeal. Obama et al., Defendants. Klayman et al., Plaintiff, v. West Codenotes Obama et al., Defendants. Validity Called into Doubt Civil Action No. 13–0851 (RJL) 50 U.S.C.A. § 1861 | Filed December 16, 2013 Attorneys and Law Firms Synopsis Larry E. Klayman, Law Office of Larry Klayman, Background: Subscribers to certain telecommunications and Washington, DC, for Plaintiffs/pro se. Internet services brought actions against federal government and private service providers and their executive officers, James J. Gilligan, Rodney Patton, U.S. Department of challenging the constitutionality and statutory authorization Justice, Brian M. Boynton, Randolph D. Moss, Wilmer of certain of government's intelligence-gathering practices Cutler Pickering Hale & Dorr LLP, Washington, DC, for relating to wholesale collection of phone record metadata Defendants. for United States citizens and analysis of that data through National Security Administration (NSA). Subscribers moved Opinion for preliminary injunction to bar government from continuing to engage in bulk collection and querying of phone record MEMORANDUM OPINION metadata, and to require government to destroy any such metadata in its possession. [Dkt. # 13 (No. 13–0851), # 10 (No. 13–0881) ] RICHARD J. LEON, United States District Judge Holdings: The District Court, Richard J. Leon, J., held that: On June 6, 2013, plaintiffs brought the first of two related [1] court was barred from reviewing subscribers' claim lawsuits challenging the constitutionality and statutory that program exceeded government's statutory authority, in authorization of certain intelligence-gathering practices by violation of Administrative Procedure Act (APA); the United States government relating to the wholesale collection of the phone record metadata of all U.S. citizens. 1 [2] subscribers had standing to raise Fourth Amendment These related cases are two of several lawsuits 2 arising from challenge to collection and querying components of program; public revelations over the past six months that the federal government, through the National Security Agency (“NSA”), [3] program constituted search under Fourth Amendment; and with the participation of certain telecommunications and internet companies, has conducted surveillance and [4] subscribers were likely to succeed in showing that intelligence-gathering programs that collect certain data government's searches and NSA's analysis were unreasonable about the telephone and internet activity of American citizens under Fourth Amendment; within the United States. Plaintiffs—five individuals in total between No. 13–851 (“Klayman I ”) and No. 13–881 [5] subscribers demonstrated irreparable harm and public (“Klayman II ”)— bring these suits as U.S. citizens who interest to support injunctive relief; and are subscribers or users of certain telecommunications and © 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 Mirdamadi, Michael 4/1/2014 For Educational Use Only Klayman v. Obama, 957 F.Supp.2d 1 (2013) 59 Communications Reg. (P&F) 825 internet firms. See Second Am. Compl. (Klayman I ) [Dkt. using any phone number or other identifier associated with # 37] ¶ 1; Am. Compl. (Klayman II ) [Dkt. # 30] ¶ l. 3 [p]laintiffs ... and such other relief as may be found just They bring suit against both federal government defendants and proper.” Pls.' Mot. for Prelim. Inj. (Klayman I ) [Dkt. (several federal agencies and individual executive officials) # 13]; Pls.' Mot. for Prelim. Inj. (Klayman II ) [Dkt. # and private defendants (telecommunications and internet 10]; see also Pls.' Mem. P. & A. in Supp. of Mot. for firms and their executive officers), alleging statutory and Prelim. Inj. (Klayman I ) (“Pls.' Mem.”) [Dkt. # 13–1], constitutional violations.See generally Second Am. Compl. at 30–31. 4 In light of how plaintiffs have crafted their (Klayman I ); Am. Compl. (Klayman II ). requested relief, the Court construes the motions as requesting a preliminary injunction (1) only as against the federal 1 Plaintiffs' second suit was filed less than a week later on government defendants, and (2) only with regard to the June 12, 2013, and challenged the constitutionality and government's bulk collection and querying of phone record statutory authorization of the government's collection of metadata. Further, between the two cases, plaintiffs have both phone and internet metadata records. alleged with sufficient particularity that only two of the five named plaintiffs, Larry Klayman and Charles Strange, are 2 The complaint in ACLU v. Clapper, Civ. No. 13–3994, 5 which was filed in the United States District Court for telephone service subscribers. Accordingly, for purposes the Southern District of New York on June 11, 2013, of resolving these two motions, the Court's discussion alleges claims similar to those in the instant two cases. of relevant facts, statutory background, and legal issues See also In re Electronic Privacy Information Center, will be circumscribed to those defendants (hereinafter “the No. 13–58 (S.Ct.) (Petition for a Writ of Mandamus and Government”), those two plaintiffs (hereinafter “plaintiffs”), Prohibition, or a Writ of Certiorari filed July 8, 2013; and those claims. 6 petition denied Nov. 18, 2013); Smith v. Obama, Civ. No. 2:13–00257 (D.Idaho) (complaint filed June 12, 2013); 4 First Unitarian Church of Los Angeles v. NSA, Civ. No. Unless otherwise indicated, all citations to “Pls.' Mem.” 13–3287 (N.D.Cal.) (complaint filed July 16, 2013). and other docket items hereinafter shall refer to the filings made in Klayman I. 3 Plaintiffs' complaints reflect their intention to bring 5 both suits as class actions on behalf of themselves In Klayman I, plaintiffs Larry Klayman and Charles and “all other similarly situated consumers, users, Strange have submitted affidavits stating they are and U.S. citizens who are customers and users of,” subscribers of Verizon Wireless for cellular phone Second Am. Compl. (“Klayman I ”) ¶ 1, or “who service, see Aff. of Larry Klayman (“Klayman Aff.”) are subscribers, users, customers, and otherwise avail [Dkt. # 13–2], at ¶ 3; Suppl. Aff. of Larry Klayman themselves to,” Am. Compl. (“Klayman II ”) 11, the (“Klayman Suppl. Aff.”) [Dkt. # 31–2], at ¶ 3; Aff. of telecommunications and internet companies named in Charles Strange (“Strange Aff.”) [Dkt. # 13–3], at ¶ 2, the complaints. Plaintiffs have not yet, however, moved but neither the complaint nor the motion affirmatively to certify a class in either case and in fact have moved for alleges that Mary Ann Strange is a subscriber of Verizon extensions of time to file a motion for class certification Wireless or any other phone service, see Second Am. four times in each case. See Motion for Extension of Compl. ¶ 10 (describing plaintiff Mary Ann Strange). Time to Certify Class Action (Klayman I ) [Dkt. # # 7, And in Klayman II, where the complaint and motion 14, 27, 40]; (Klayman II ) [Dkt. # # 6, 11, 23, 33]. raise claims regarding the government's collection and analysis of both phone and internet records, the plaintiffs [1] Before the Court are plaintiffs' two Motions for neither specifically allege, nor submit any affidavits Preliminary Injunction [Dkt. *8 # 13 (Klayman I ), # 10 stating, that any of them individually is a subscriber of (Klayman II ) ], one in each case. As relief, plaintiffs seek either of the two named telephone company defendants, an injunction “that, during the pendency of this suit, (i) AT & T and Sprint, for telephone services.See Aff. bars [d]efendants from collecting [p]laintiffs' call records of Larry Klayman (Klayman II ) [Dkt. # 10–2], at ¶ under the mass call surveillance program; (ii) requires 3 (“I am also a user of internet services by ... AT & [d]efendants to destroy all of [p]laintiffs' call records already T....”); Suppl. Aff. of Larry Klayman (Klayman II ) collected under the program; and (iii) prohibits [d]efendants [Dkt. # 26–2], at ¶ 3 (same); Aff. of Charles Strange from querying metadata obtained through the program (Klayman II ) [Dkt. # 10–3], at ¶ 3 (“I am also a user © 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 Mirdamadi, Michael 4/1/2014 For Educational Use Only Klayman v. Obama, 957 F.Supp.2d 1 (2013) 59 Communications Reg. (P&F) 825 of internet services by ... AT & T....”); Am. Compl. relief. Second, to the extent plaintiffs challenge the ¶ 14 (“Plaintiff Garrison ... is a consumer and user of Government's targeted collection of internet data Facebook, Google, YouTube, and Microsoft products.”). content pursuant to Section 702 (50 U.S.C. § 1881a) Compare Am. Compl. (Klayman II ) ¶ 13 (“Plaintiff under the so-called “PRISM” program, which targets Ferrari ... is a subscriber, consumer, and user of Sprint, non-U.S. persons located outside the U.S., plaintiffs Google/Gmail, Yahoo!, and Apple. As a prominent have not alleged sufficient facts to show that the NSA private investigator, Ferrari regularly communicates, has targeted any of their communications. See Govt.'s both telephonically and electronically ....” (emphasis Opp'n at 21–22, 44. Accordingly, plaintiffs lack added)), withPls.'
Load more

Recommended publications
  • Government Turns the Other Way As Judges Make Findings About Torture and Other Abuse
    USA SEE NO EVIL GOVERNMENT TURNS THE OTHER WAY AS JUDGES MAKE FINDINGS ABOUT TORTURE AND OTHER ABUSE Amnesty International Publications First published in February 2011 by Amnesty International Publications International Secretariat Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom www.amnesty.org Copyright Amnesty International Publications 2011 Index: AMR 51/005/2011 Original Language: English Printed by Amnesty International, International Secretariat, United Kingdom All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publishers. Amnesty International is a global movement of 2.2 million people in more than 150 countries and territories, who campaign on human rights. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights instruments. We research, campaign, advocate and mobilize to end abuses of human rights. Amnesty International is independent of any government, political ideology, economic interest or religion. Our work is largely financed by contributions from our membership and donations CONTENTS Introduction ................................................................................................................. 1 Judges point to human rights violations, executive turns away ........................................... 4 Absence
    [Show full text]
  • District of Columbia Judicial Nomination Commission Report Of
    District of Columbia Judicial Nomination Commission Report of Recommendations and Chief Judge Designations and Presidential Appointments to the District of Columbia Court of Appeals and the Superior Court of the District of Columbia May 8, 1975 to September 30, 2013 INTRODUCTION On October 31, 2011, the District of Columbia Judicial Nomination Commission (“JNC” or “Commission”) published an historic report of JNC recommendations made to the President of the United States, Presidential appointments to the District of Columbia courts, and the JNC’s designations of the Chief Judges for those courts, with the commitment to update the report annually. The report relies on available records, including Congressional and District of Columbia Judicial Nomination Commission records, as well as notices published in the Daily Washington Law Reporter. This is the second annual update of the report. The Commission Chair, Judge Emmet G. Sullivan, gives special recognition and expresses his appreciation to Executive Director Kim M. Whatley and Summer Intern Joseph R.A. Fruth for their tireless and meticulous efforts in researching and compiling the initial report, which spans forty years and encompasses the various branches of both the federal and District of Columbia governments. Judge Sullivan also expresses his appreciation to Addy Schmitt, Esquire, for first suggesting this project more than five years ago and devoting many hours since then to its completion, and to Executive Assistant Eunice Holt-Martin for her assistance and support in this endeavor. The District of Columbia Court of Appeals and the Superior Court of the District of Columbia were established by Congress on July 29, 1970 (Public Law 91-358, 84 Stat.
    [Show full text]
  • SPRING 2020, Vol. 34, Issue 1 SPRING 2020 1
    SPRING 2020, Vol. 34, Issue 1 SPRING 2020 1 MISSION NAWJ’s mission is to promote the judicial role of protecting the rights of individuals under the rule of law through strong, committed, diverse judicial leadership; fairness and equality in the courts; and ON THE COVER 19 Channeling Sugar equal access to justice. Innovative Efforts to Improve Access to Justice through Global Judicial Leadership 21 Learning Lessons from Midyear Meeting in New Orleans addresses Tough Cases BOARD OF DIRECTORS ongoing challenges facing access to justice. Story on page 14 24 Life After the Bench: EXECUTIVE COMMITTEE The Honorable Sharon Mettler PRESIDENT 2 President's Message Hon. Bernadette D'Souza 26 Trial Advocacy Training for Parish of Orleans Civil District Court, Louisiana 2 Interim Executive Director's Women by Women Message PRESIDENT-ELECT 29 District News Hon. Karen Donohue 3 VP of Publications Message King County Superior Court, Seattle, Washington 51 District Directors & Committees 4 Q&A with Judge Ann Breen-Greco VICE PRESIDENT, DISTRICTS Co-Chair Human Trafficking 52 Sponsors Hon. Elizabeth A. White Committee Superior Court of California, Los Angeles County 54 New Members 5 Independent Immigration Courts VICE PRESIDENT, PUBLICATIONS Hon. Heidi Pasichow 7 Resource Board Profile Superior Court of the District of Columbia Cathy Winter-Palmer SECRETARY Hon. Orlinda Naranjo (ret.) 8 Global Judicial Leadership 419th District Court of Texas, Austin Doing the Impossible: NAWJ work with the Pan-American TREASURER Commission of Judges on Social Hon. Elizabeth K. Lee Rights Superior Court of California, San Mateo County IMMEDIATE PAST PRESIDENT 11 Global Judicial Leadership Hon. Tamila E.
    [Show full text]
  • Confidentiality Complications
    Confidentiality Complications: How new rules, technologies and corporate practices affect the reporter’s privilege and further demonstrate the need for a federal shield law The Reporters Committee for Freedom of the Press June 2007 Lucy A. Dalglish, Esq. Gregg P. Leslie, Esq. Elizabeth J. Soja, Esq. 1101 Wilson Blvd., Suite 1100 Arlington, Virginia 22209 (703) 807-2100 Executive Summary The corporate structure of the news media has created new obstacles, both financial and practical, for journalists who must keep promises of confidentiality. Information that once existed only in a reporter’s notebook can now be accessed by companies that have obligations not only to their reporters, but to their shareholders, their other employees, and the public. Additionally, in the wake of an unprecedented settlement in the Wen Ho Lee Privacy Act case, parties can target news media corporations not just for their access to a reporter’s information, but also for their deep pockets. The potential for conflicts of interest is staggering, but the primary concerns of The Reporters Committee for Freedom of the Press are that: • because of the 21st-century newsroom’s reliance on technology, corporations now have access to notes, correspondence and work-product information that before only existed in a reporter’s notebook; • the new federal “e-discovery” court rules allow litigants to discover vastly more information than a printed page – or even a saved e-mail – would provide during litigation; • while reporters generally only have responsibilities to themselves,
    [Show full text]
  • Newsfollowup.Com Transparencyplanet, Promote Open Govt/Biz
    NewsFollowUp.com TransparencyPlanet, Promote open govt/biz NewsFollowUp.com Franklingate sex scandal econ charts pictorial index sitemap home Mukasey, Gonazales U.S. Judiciary / DOJ_2 replacement ... Will Mukasey sabotage the Rosen Weissman trial? below back to Judiciary page 1 Conflict of interest, below DOJ, Mukasey, Rosen, Weissman Sibel Edmonds U. S. Supreme Court and Federal Courts Stacking courts International Courts Judge Reggie Walton Watch 'Protect Act' & Judicial discretion Giuliani / Mukasey / Kerik Conflicts of Interest Please Donate to NewsFollowUp.com to help us continue this work. News Research: Topic Index Plame / Wilson / Novak Pentagon mole, AIPAC Spies AIPAC, Giuliani, Mukasey Common Plamegate Timeline AIPAC Mukasey, Rosen, Weissman Flight 77, Pentagon Brewster Jennings & Assc. AIPAC - Cheney Clinton, AIPAC, Iran Marc Rich, L. Libby Flow chart AIPAC Rosen Weisman Iraq War Iran / Syria Operations Group Leakers, Leak Launderers? Trial Iran Iran, Iraq Miller, Judith & subpoena AMDOCS Rosen Weissman Timeline Israeli Art Students, 9/11 Anthrax Iraq War Plans 2001 Giuliani, Mukasey, Palfrey Ledeen - Fascism Miller, WMD deception 9/11 Propaganda Cheney / B-52 / Syria / Iran Niger, Forged Yellowcake Timeline Archive Israeli Intelligence, Iran Israel documents Timeline: 1970 1980 1990 2000 2001 2002 2003 2004 2005 Archive & (2006) under construction Mukasey, Rosen, Weissman and Clinton top PROGRESSIVE REFERENCE CONSERVATIVE* Alex Geana Blackwater / Blackstone group Family Research Council, stop filibuster of connections Summary Fed judges. Antiwar "in Rosen's own secretly-recorded Feinstein The shadow of Israel / AIPAC words – about the Khobar Towers terrorist over Washington. Whitehouse press releases, on Protect Act attack, which he claimed he had received Latest trial date January 14, 2008 McConnell, Mitch, Senator Conservative from U.S.
    [Show full text]
  • DISTRICT of COLUMBIA JUDICIAL NOMINATION COMMISSION DC SUPERIOR COURT the Honorable Emmet G
    DISTRICT OF COLUMBIA JUDICIAL NOMINATION COMMISSION DC SUPERIOR COURT The Honorable Emmet G. Sullivan 515 5th STREET, NW Chairperson SUITE 235 WASHINGTON, DC 20001 Bianca Garcia (202) 879-0478 (Phone) Executive Director (202) 737-9126 (Fax) Website: http://jnc.dc.gov Email: [email protected] February 11, 2019 The Honorable Charles Allen Chairperson, Committee on the Judiciary and Public Safety Council of the District of Columbia 1350 Pennsylvania Avenue, NW, Suite 110 Washington, DC 20004 Dear Chairperson Allen: On behalf of the District of Columbia Judicial Nomination Commission (“Commission”), I respectfully provide the following responses to the questions set forth in your letter dated January 15, 2019. General Questions 1. Please provide a current organizational chart for the agency, including the number of vacant, frozen, and filled positions in each division or subdivision. Include the names and titles of all senior personnel, and note the date that the information was collected on the chart. a. Please provide an explanation of the roles and responsibilities of each division and subdivision. Response: See Attachment 1, the Commission’s organizational chart. b. Please provide a narrative explanation of any changes to the organizational chart made during the previous year. Response: There were no organizational changes made during the previous year. 2. Please provide a current Schedule A for the agency which identifies each position by program and activity codes, with the employee’s name, title/position, salary, fringe benefits, and length of time with the agency. Please note the date that the information was collected. The Schedule A should also indicate if the position is continuing/term/temporary/contract or if it is vacant or frozen.
    [Show full text]
  • DCCA Opinion No. 97-CO-1141
    Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 97-CO-1141 GRANT ANDERSON A/K/A JIBRIL L. IBRAHIM, APPELLANT, v. UNITED STATES, APPELLEE. Appeal from the Superior Court of the District of Columbia (Hon. Reggie B. Walton, Trial Judge) (Submitted January 5, 1999 Decided June 8, 2000) Grant Anderson, pro se. Elizabeth H. Danello, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, and Thomas J. Tourish, Jr., Assistant United States Attorneys, were on the brief, for appellee. Before WAGNER, Chief Judge, and REID, Associate Judge, and MACK, Senior Judge. WAGNER, Chief Judge: Appellant, Grant Anderson, a/k/a Jibril L. Ibrahim, (Anderson) appeals from an order of the trial court denying his motion seeking recusal of the trial judge from further post-trial proceedings in his case. The trial court denied the motion, concluding that Anderson failed to state adequate grounds for granting it. We affirm. I. Anderson was convicted of assault with intent to commit rape while armed, assault on a police officer while armed, and two counts of first degree burglary while armed. His convictions were affirmed on appeal in an unpublished opinion on February 28, 1990, with instructions to the trial court to vacate one of the burglary convictions on double jeopardy 2 grounds.1 Thereafter, Anderson filed numerous post-trial motions pro se.2 Among these motions was an “Affidavit for Disqualification or Recusal of [Judge Reggie Walton]” which Anderson filed on August 8, 1994.
    [Show full text]
  • On the Bulk Collection of Tangible Things
    On the Bulk Collection of Tangible Things David S. Kris* Beginning in June 2013, in response to a series of unauthorized disclosures of classified information, the government confirmed and revealed information about its use of FISA’s tangible-things provision, 50 U.S.C. § 1861, to acquire telephony metadata in bulk. This paper discusses that use.1 Disclosure of the bulk metadata collection also contributed to a broader policy debate concerning the transparency and scope of intelligence activities, particularly signals intelli- gence, and the role of the FISA Court, among other issues. This paper also discusses those issues.2 UNAUTHORIZED DISCLOSURES AND HISTORICAL CONTEXT On June 5, 2013, the Guardian newspaper posted on its website a four-page order signed by Judge Roger Vinson of the FISC,3 the authenticity of which the government later acknowledged.4 The order, directed at a subsidiary of a * Former Assistant Attorney General for National Security, U.S. Department of Justice. 1. This paper was first submitted for prepublication review in mid-July 2013 based on information available as of that time, cleared in September 2013, and then submitted and cleared repeatedly through an iterative process as new information became available, including being submitted on January 28 and cleared in its present form on February 25, 2014. As such, it reflects developments only as of January 28, 2014. An earlier version of this paper was published on Lawfare. DAVID KRIS,ON THE BULK COLLECTION OF TANGIBLE THINGS (2013), available at http://www.lawfareblog.com/wp-content/uploads/ 2013/09/Lawfare-Research-Paper-Series-No.-4-2.pdf.
    [Show full text]
  • The Politics of Appointments to the US Foreign Intelligence Surveillance
    Justice System Journal ISSN: 0098-261X (Print) 2327-7556 (Online) Journal homepage: http://www.tandfonline.com/loi/ujsj20 Secret Law: The Politics of Appointments to the U.S. Foreign Intelligence Surveillance Court Nicholas R. Seabrook & Nicholas C. Cole To cite this article: Nicholas R. Seabrook & Nicholas C. Cole (2016) Secret Law: The Politics of Appointments to the U.S. Foreign Intelligence Surveillance Court, Justice System Journal, 37:3, 259-271, DOI: 10.1080/0098261X.2015.1110468 To link to this article: http://dx.doi.org/10.1080/0098261X.2015.1110468 Published online: 16 Nov 2015. Submit your article to this journal Article views: 41 View related articles View Crossmark data Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=ujsj20 Download by: [University of North Florida] Date: 20 July 2016, At: 08:51 JUSTICE SYSTEM JOURNAL 2016, VOL. 37, NO. 3, 259–271 http://dx.doi.org/10.1080/0098261X.2015.1110468 Secret Law: The Politics of Appointments to the U.S. Foreign Intelligence Surveillance Court Nicholas R. Seabrook and Nicholas C. Cole Department of Political Science and Public Administration, University of North Florida, Jacksonville, Florida ABSTRACT KEYWORDS This study investigates the politics of appointments to the United States FISC; judicial ideology; chief Foreign Intelligence Surveillance Court, the court established under the 1978 justice appointments; Foreign Intelligence Surveillance Act (FISA) to review secret federal surveillance government requests for warrants related to national security investigations. Since the FISA Court’s creation, its members have been appointed entirely at the discretion of the Chief Justice of the United States, who selects FISA Court judges from among the pool of existing U.S.
    [Show full text]
  • Republican Appointees and Judicial Discretion: Cases Studies from the Federal Sentencing Guidelines Era
    Republican Appointees and Judicial Discretion: Cases Studies From the Federal Sentencing Guidelines Era Professor David M. Zlotnicka Senior Justice Fellow – Open Society Institute Nothing sits more uncomfortably with judges than the sense that they have all the responsibility for sentencing but little of the power to administer it justly.1 Outline of the Report This Report explores Republican-appointed district court judge dissatisfaction with the sentencing regime in place during the Sentencing Guideline era.2 The body of the Report discusses my findings. Appendix A presents forty case studies which are the product of my research.3 Each case study profiles a Republican appointee and one or two sentencings by that judge that illustrates the concerns of this cohort of judges. The body of the Report is broken down as follows: Part I addresses four foundational issues that explain the purposes and relevance of the project. Parts II and III summarizes the broad arc of judicial reaction to aThe author is currently the Distinguished Service Professor of Law, Roger Williams University School of Law, J.D., Harvard Law School. During 2002-2004, I was a Soros Senior Justice Fellow and spent a year as a Visiting Scholar at the George Washington University Law Center and then as a Visiting Professor at the Washington College of Law. I wish to thank OSI and these law schools for the support and freedom to research and write. Much appreciation is also due to Dan Freed, Ian Weinstein, Paul Hofer, Colleen Murphy, Jared Goldstein, Emily Sack, and Michael Yelnosky for their helpful c omments on earlier drafts of this Report and the profiles.
    [Show full text]
  • Presidential Impunity and the Mueller Report
    Hastings Constitutional Law Quarterly Volume 48 Number 4 Summer 2021 Article 3 Summer 2021 Presidential Impunity and the Mueller Report: How the Department of Justice’s Failure to Subject the Special Counsel Regulations to Notice and Comment Undermined the Rule of Law M. Akram Faizer Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation M. Akram Faizer, Presidential Impunity and the Mueller Report: How the Department of Justice’s Failure to Subject the Special Counsel Regulations to Notice and Comment Undermined the Rule of Law, 48 HASTINGS CONST. L.Q. 536 (2021). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol48/iss4/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. PRESIDENTIAL IMPUNITY AND THE MUELLER REPORT Presidential Impunity and the Mueller Report: How the Department of Justice’s Failure to Subject the Special Counsel Regulations to Notice and Comment Undermined the Rule of Law by M. AKRAM FAIZER1 Abstract: Department of Justice (“DOJ”) Special Counsel, Robert S. Mueller, III’s two-volume, 448-page Report on the Investigation into Russian Inter- ference in the 2016 Presidential Election (“the Report”), did an outstanding job in evidencing that President Trump’s actions in office satisfied the fed- eral obstruction of justice standards. However, due to Mueller’s limited brief and his concern for maintaining the proper separation of powers, the Report, submitted confidentially to former Attorney General Barr as required by De- partment of Justice Regulations, abjured a determination as to Presidential criminality.
    [Show full text]
  • The Commander-In-Chief and the United Nations
    Note The Commander-in-Chief and the United Nations: Why the President Can Use the United Nations Security Council as the Constitutional Basis for Military Operations Short of War Samuel Kleinert I. IN TRO D UCTION ............................................................................................................................ 359 II. QUASI-CONSTITUTIONAL CUSTOM AND THE WAR POWER ......................................................... 362 III. THE CONSTITUTION AND THE U.S. ENTRANCE INTO THE UNITED NATIONS ............................... 366 A . D um barton O aks............................................................................................................... 367 B. Roosevelt, the United Nations, and Presidential Power ................................................... 370 C. Ratifying the U.N. Charter and Presidential Power...............................371 D. The United Nations Participation Act and Presidential Power......................................... 373 IV. U.N. SECURITY COUNCIL AUTHORIZATION AND FULL-SCALE WAR .......................................... 375 A . T he K orean W ar ............................................................................................................... 376 B. The Truman Administration's Flawed Interpretation of the UNPA................... 380 C . The G ulf W ar........................................................................................................... 381 V. U.N. SECURITY COUNCIL AUTHORIZATION AND MILITARY ACTION SHORT OF WAR ............. 386 A . S
    [Show full text]