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NATIONAL SECURITY AND THE LAW

24 The Unitary Executive BY KARL MANHEIM AND ALLAN IDES The theory of the unitary executive hinges on eliminating the distinction between executive and administrative power 35 Criminal Prosecutions and Classiﬁed Information BY JOHN D. CLINE AND K. C. MAXWELL Courts have consistently upheld the Classiﬁed Information Procedures Act despite its implications for defendants’ Fifth and Sixth Amendment rights Plus: Earn MCLE credit. MCLE Test No. 151 appears on page 37.

44 Indeﬁnite Detention and Extraordinary Rendition BY GARY WILLIAMS The executive’s treatment of enemy combatants has put the war on terror on a collision course with the Constitution

The magazine of The Los Angeles County LosAngelesLawyerBar Association DEPARTMENTS

10 Barristers Tips 54 By the Book What liability awaits Web 2.0? Radical Innocent BY DAVID J. BAILEY REVIEWED BY STEPHEN F. ROHDE

12 Practice Tips 60 Closing Argument U.S. immigration policies and the The inalienable right to ﬂy war on terrorism BY ROGER CLARK BY PETER SCHEY 57 Classiﬁeds 20 Practice Tips The employment rights of reservists 58 Index to Advertisers on active duty BY DONALD WARNER 59 CLE Preview

Cover Illustration: Hadi Farahani 52 Ethics Opinion No. 517 Indemniﬁcation of client’s litigation costs There is no substitute for experience. LosAngelesLawyer VISIT US ON THE INTERNET AT www.lacba.org/lalawyer ■ Over 1,000 Successful Mediations E-MAIL CAN BE SENT TO [email protected] ■ 12 years as a full-time mediator EDITORIAL BOARD Chair ■ 92% of Cases Resolved in 2005 JACQUELINE M. REAL-SALAS ■ Director, Pepperdine Law School’s Articles Coordinator CHAD COOMBS “Mediating the Litigated Case” program JERROLD ABELES DANIEL L. ALEXANDER HONEY KESSLER AMADO LEE JAY BERMAN, Mediator ETHEL W. BENNETT R. J. COMER 213.383.0438 www.LeeJayBerman.com ANGELA J. DAVIS KERRY A. DOLAN GORDON ENG DANIEL A. FIORE STUART R. FRAENKEL MICHAEL A. GEIBELSON AIMEE H. GOLD TED HANDEL JEFFREY A. HARTWICK STEVEN HECHT LAWRENCE J. IMEL SCOTT KLOPERT JOHN P. LECRONE PAUL MARKS SEAN MORRIS ELIZABETH MUNISOGLU RICHARD H. NAKAMURA JR. DENNIS PEREZ GARY RASKIN DAMON RUBIN KURT L. SCHMALZ DAVID SCHNIDER HEATHER STERN GRETCHEN D. STOCKDALE TIMOTHY M. STUART KENNETH W. SWENSON CARMELA TAN BRUCE TEPPER PATRIC VERRONE MICHAEL WISE STAFF Publisher and Editor SAMUEL LIPSMAN Senior Editor LAUREN MILICOV Senior Editor ERIC HOWARD Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA LONERO Account Executive MARK NOCKELS Account Executive PATTY MEDINA Marketing and Sales Coordinator TAL EDELSTEIN Advertising Coordinator WILMA TRACY NADEAU Administrative Coordinator MATTY JALLOW BABY LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August and a special issue in the fall, by the Los Angeles County Bar Association, 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012, (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association membership dues. Nonmember subscriptions: $28 annually; single copy price: $4 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: ADDRESS SERVICE REQUESTED. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055. Copyright ©2006 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is prohibited. Printed by Banta Publications Group, Liberty, MO. Member Business Publications Audit of Circulation (BPA). The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

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LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012-1881 Seeking an Experienced Arbitrator/Mediator? Telephone 213.627.2727 / www.lacba.org ASSOCIATION OFFICERS: President STEVEN RICHARD SAUER, ESQ. CHARLES E. MICHAELS President-Elect COUNSELOR AT LAW • SINCE 1974 GRETCHEN M. NELSON Senior Vice President “He is truly a master in his art.” DANETTE E. MEYERS Vice President 6,000 DON MIKE ANTHONY Settled over 5,000 Federal and State Litigated Cases Treasurer JULIE K. XANDERS Assistant Vice President 323.933.6833 TELEPHONE ■ [email protected] E-MAIL ALAN K. STEINBRECHER Assistant Vice President 4929 WILSHIRE BOULEVARD, SUITE 740, LOS ANGELES, CALIFORNIA 90010 LINDA D. BARKER Assistant Vice President JOHN D. VANDEVELDE Immediate Past President EDITH R. MATTHAI Executive Director STUART A. FORSYTH Associate Executive Director/Chief Financial Officer BRUCE BERRA Associate Executive Director/General Counsel W. CLARK BROWN BOARD OF TRUSTEES P. PATRICK ASHOURI NICOLE C. BERSHON GEORGE F. BIRD JR. DANIEL S. BISHOP JOHN M. BYRNE JOHN CARSON ANTHONY PAUL DIAZ STACY L. DOUGLAS ALEXANDER S. GAREEB ANTONIO J. GONZALEZ BRIAN S. KABATECK KARL H. KNICKMEYER JR. ROBERT N. KWAN PHILIP H. LAM DAVID A. LASH TOSHIBA digital copier, LAWRENCE E. LEONE TOSHIBA digital copier, RICHARD A. LEWIS CINDY J. MACHO a law office's best friend! ELAINE W. MANDEL DAVID F. MICHAIL JEFFREY P. PALMER ELLEN A. PANSKY THOMAS F. QUILLING SUSAN ERBURU REARDON ROGER D. REYNOLDS KELLY RYAN DEBORAH CRANDALL SAXE MARGARET P. STEVENS KIM TUNG GAVIN HACHIYA WASSERMAN ERIC A. WEBBER COPYFAX COMMUNICATIONS AFFILIATED BAR ASSOCIATIONS offers "NEW LACBA Member Benefit." BEVERLY HILLS BAR ASSOCIATION Automatic 30% Off on all models of new BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC. TOSHIBA Copiers that Copy, Fax, Print and CENTURY CITY BAR ASSOCIATION Scan to E-mail. CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES CULVER-MARINA BAR ASSOCIATION AUTOMATIC 30% DISCOUNT EASTERN BAR ASSOCIATION Quick and Easy - No Pricing Battle! GLENDALE BAR ASSOCIATION LIMITED TIME PROMO IRANIAN AMERICAN LAWYERS ASSOCIATION FREE Print and Scan Enabler for ITALIAN AMERICAN LAWYERS ASSOCIATION Networking Printing and Scanning! JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES SPECIAL LEASE JOHN M. LANGSTON BAR ASSOCIATION 0 Down - 0 Interest Lease JUVENILE COURTS BAR ASSOCIATION Includes All Service and Supplies. KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA Turn Key! LAWYERS' CLUB OF LOS ANGELES COUNTY LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES FULL REPLACEMENT WARRANTY LONG BEACH BAR ASSOCIATION It Runs Right Always or It's Replaced! MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SAN GABRIEL VALLEY BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION Serving the L.A. Legal Community since 1987 SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC. Please contact: Scott Baron @ 714.892.2444 ext 107 SOUTHEAST DISTRICT BAR ASSOCIATION 5266 System Drive • Huntington Beach SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION Tel: 714.892.2444 Fax: 714.892.2441 E-mail: [email protected] or http: //www.copyfax.net WHITTIER BAR ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

6 Los Angeles Lawyer September 2006

(310) 849-8653 BY JERRY ABELES, ANGELA J. DAVIS, AND [email protected] From the Chair STEVEN HECHT

Karen Natapoff he often debated location of the central front of the war on terror is not in Iraq, not in Afghanistan, and not in worldwide locales where Divorce Mortgage Specialist nonstate terrorist organizations can be found and destroyed. The cen- T tral front in this struggle is now in the legal system of the United States, “It is a rare mortgage broker with the skill and ability to bring to the dissolution table most particularly in the nation’s courts. On the ﬁve-year anniversary the expertise of a mortgage broker in com- of the terrorist attacks on September 11, 2001, this month’s National Security and bination with an in-depth understanding of the Law special issue of Los Angeles Lawyer examines the legal issues that have related family law matters.” ripened in the aftermath of those attacks. -Nancy A. Kearson There is great public debate about the legality of certain tactics and tools that Certified Public Accountant the government is using to carry out the war on terror. We think that a timely look “She has my highest endorsement, and I at some of the issues will help to clarify and advance the public discussion, in would recommend her,without reservation, which lawyers are often asked for their opinions and analysis. The discussion fre- as a professional in her field.” quently has been contentious. We did not ask the authors in this special issue to refrain

-Steven Knowles, Esq. from expressing their points of view. We requested only that they try to present the Trope and Trope arguments for all sides. The government’s war-ﬁghting tactics include the extended deployment of trained military forces, including members of the National Guard and the Reserves; the invasion of and exercise of authority over geographic territory; the detention of known or suspected enemy combatants (both abroad and at home), and the indeﬁnite

Metrocities Mortgage, LLC is a Delaware limited liability company licensed by detention and extraordinary rendition of detainees to other countries; attempts to the California Department of Corporations under CRMLA. Information is subject to change without notice. This is not an offer for extension of credit or a commit- control more effectively the presence in the country of noncitizens; and efforts to reg- ment to lend. 0706-150B ulate the relationship between attorneys and their clients. Supporting these tactics is an assertion of broad presidential power based on old principles but with a new twist. We examine the legal issues raised by these actions. A new mindset fuels the government’s chosen methods for conducting the war. The government states that it is taking these actions to prevent or minimize the damage from the next terrorist attack and the ones after that—any of which may be more deadly than the September 11 attack. Future attacks may not only be more deadly in the loss of life, but they also may lead to a tragic loss of a citizenry’s conﬁdence in and support of a system with guaranteed rights and liberties, checks on the exercise of authority, and balances in the employment of power. A great tension exists between our nation’s heritage of civil liberties and the use of expansive governmental power in the name of national security. For a system guaranteeing civil liberties but fearing unknown levels of devasta- tion, the potentially catastrophic consequences of future attacks leads unavoidably to a search for a new balance between maintaining individual rights and relaxing constraints on government behavior. As some have said, what good are civil liberties when we are dead? Prevention is paramount. The argument is that it is too dangerous to wait for an explicit act or trial-quality admissible evidence. Probable cause before taking action will be replaced by the probable cost of failing to take action. The American legal system must of necessity be involved in this discussion, particularly before action is required based on an overt act and during this time when the need to predict and thereby prevent future acts involves an expanding reliance on probing the thoughts, intentions, past actions, affiliations, and plans of others living within and outside the nation’s borders. In America all politics may be local, and all policy issues may ultimately be legal issues. The chosen tactics for ﬁghting the war on terror are now an active subject for attention by the American legal system, the central front of the war on terror. ■

Jerry Abeles is a partner in the Los Angeles law ﬁrm O’Brien Abeles LLP, where he specializes in commercial litigation involving construction, insurance, product liability, and trade secret issues. Angeles J. Davis is an assistant U.S. attorney in Los Angeles. Her views do not represent the Department of Justice. Steven Hecht practices transactional business law in Los Angeles. Abeles, Davis, and Hecht are coordinating editors of this special issue.

8 Los Angeles Lawyer September 2006 MARTY JOSEPHSON PAYS ATTENTION Barristers Tips BY DAVID J. BAILEY

What Liability Awaits Web 2.0?

WITH A CLICK, an unknown user uploaded horrifying images of Safe harbor protection also can be lost when service providers Reginald Denny, a truck driver, being beaten by rioters during the 1992 receive financial benefit directly attributable to infringing activity and Los Angeles riots. This act started a chain of events that resulted in have the right and ability to control the infringing activity. As the abil- a lawsuit for breach of copyright being filed against the owner of the ity to control unauthorized distribution increases with the maturity popular video sharing Web site YouTube.1 YouTube.com, which of digital rights management and watermarking technology, the abil- uses the slogan “Broadcast Yourself,” is a Web site that enables any- ity to rely on the safe harbor is likely to diminish. Of particular con- one to upload video for viewing by visitors to the site. The success cern will be the tendency of collaborative communities that form of the site has been meteoric. Founded in February 2005, YouTube.com around Web 2.0 sites to achieve rapid distribution of content to an now claims to achieve over 70 million video views a day. YouTube, extremely wide audience. A significant spike in revenue from, for exam- Inc., the company behind YouTube.com, is one of a new breed of ple, advertising that is directly related to the popularity of an infring- Internet companies that have become known as Web 2.0. The online, ing work might in the future give rise to liability. user-modifiable encyclopedia Wikipedia, which is itself identified as The emergence of technologies for controlling infringement could Web 2.0, defines the term as referring to “a second generation of ser- present another problem. The safe harbor provisions require the vices available on the world wide web that lets people collaborate and adoption of “standard technical measures” to protect or identify share information online.”2 The breach of copyright claim brought copyrighted works.7 Once such standards are adopted, failure to pro- against YouTube, Inc., by Robert Tur highlights the risk that Web 2.0 vide a compatible service could result in loss of safe harbor protec- businesses may be named as defendants in suits based on the actions tion irrespective of other measures taken. of others. Unauthorized content distribution is not the only risk faced by Web One of the principal risks of providing a Web 2.0 service is the dis- 2.0 service providers. The substance of the content can itself be tribution of content by those who have no right to distribute it. problematic. As with any public communication the potential exists Fortunately, the Online Copyright Infringement Liability Limitation for the content to be defamatory, invade privacy, or violate rights of Act of 19983 provides a safe harbor protecting online service providers publicity. Fortunately Web 2.0 service providers are shielded from lia- from liability for monetary relief for “infringement of copyright by bility for user conduct that is defamatory or involves an invasion of reason of the storage at the direction of a user of material that privacy by the Communications Decency Act of 1996, which provides: resides on a system or network controlled or operated by or for the “No provider or user of an interactive computer service shall be service provider.”4 Courts have interpreted the term “service provider” treated as the publisher or speaker of any information provided by expansively to encompass services distributing third-party content.5 another information content provider.”8 Rights of publicity are, Therefore, compliance with the provisions of the safe harbor, as however, intellectual property rights,9 which are specifically excluded codified in 17 USC Section 512(c), is likely to shield a Web 2.0 ser- from the effect of the Communications Decency Act.10 The potential vice provider from liability for copyright infringement by users. for a Web 2.0 service provider to be held liable for a user’s violation A service provider that distributes user content and seeks protection of rights of publicity can be reduced by requiring that users agree not under 17 U.S.C. Section 512(c) should take the initial steps of des- to use the service for commercial purposes. Any user license agree- ignating an agent for service and establishing a policy of terminating ment ideally also should include a general indemnity from liability for users who are repeat infringers. The process of designating an agent user conduct. ■ for service involves providing the information specified in 17 USC Section 512(c)(2) on the service’s Web site and to the U.S. Copyright 1 Robert Tur v. YouTube, Inc, No. 2:06-cv-04436 (C.D. Cal., filed July 14, 2006). Office. The policy of terminating repeat offenders, once established, 2 See http://en.wikipedia.org/wiki/Web_2.0. 3 must be communicated to users and enforced. The Online Copyright Infringement Liability Limitation Act of 1998 is the second title of the Digital Millennium Copyright Act of 1998 and is codified at 17 U.S.C. Following designation of an agent and promulgation of an appro- §512. priate policy, a Web 2.0 service provider will enjoy the benefits of the 4 17 U.S.C. §512(c). safe harbor provided that it does not possess knowledge of infring- 5 For example, Ebay Inc., the provider of an online auction Web site, was determined ing activity or facts that would make the infringing activity appar- to be a service provider in Hendrickson v. EBay Inc., 165 F. Supp 2d 1082 (C.D. ent. As soon as evidence of infringing activity comes to the service’s Cal. 2001). 6 attention or upon formal notice from a copyright holder,6 the service See 17 U.S.C. §512(c)(3). 7 See 17 U.S.C. §§512(c)(1)(B), (i). must act promptly to remove or disable access to the content in 8 47 U.S.C. §230(c)(1). question or lose the safe harbor. Very little case law exists concern- 9 See Perfect 10, Inc. v. CCBill, LLC, 340 F. Supp. 2d 1077 (C.D. Cal. 2004). ing the level of knowledge required to lose protection. However, an 10 47 U.S.C. §230(e)(2). abundance of caution suggests that popular content obviously dis- tributed without the copyright owner’s consent or some other sig- David J. Bailey is an associate with the Newport Beach office of the intellec- nificant usage involving copyright infringement cannot be ignored. tual property law firm of Christie, Parker & Hale, LLP.

10 Los Angeles Lawyer September 2006 THE NEXT GENERATION of GREAT LAWYERS is coming.

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As the only ABA-accredited law school in Inland Southern California, the University of La Verne College of Law is recognized as a progressive school, teaching legal theory, advocacy and practical skills necessary for success in public law, private practice and business. With a well-respected, practice-proven faculty and a prominent and supportive alumni network, the College of Law provides a unique environment for its students.

The University of La Verne College of Law serves Inland Southern California as: • The only ABA-accredited law school in Inland Southern California • A great source of legal talent for internships and clerkships • Support for legal professionals seeking to further their professional education • A local campus where our brightest legal minds can study law on a full- or part-time basis To find out more, visit us online at http://law.ulv.edu or call (877) 858-4529.

The University of La Verne College of Law is provisionally accredited by the American Bar Association. Practice Tips BY PETER SCHEY

U.S. Immigration Policies and the War on Terrorism

IN THE AFTERMATH of the September 11, 2001, terrorist attacks, the U.S. government initiated a range of policies involving noncitizens living in the United States. These policies included detaining noncitizens within the United States pending security checks, holding secret removal proceedings, firing airport security personnel who were not U.S. citizens, and making it more difficult for immigrants from certain countries to seek asylum. In each of these areas, parties affected by these policies eventually sought relief from the judicial branch of government. Over the objections of the Bush administration, most of these cases eventually led to decisions in which courts accepted their jurisdiction to review presented claims and found constitutional rights available to allegedly injured plaintiffs. The government’s war on terrorism adversely affected the rights of vast numbers of foreign nationals who had no more connection with terrorism than the vast majority of U.S. citizens. While the success of these antiterrorism measures is certainly difficult to measure, several of the policies appear to have been short-sighted and unpro- ductive in rooting out terrorists or their supporters planning to enter or already present in the United States. A review of pre- and post- September 11 immigration policy illuminates the current landscape for immigrants and their counsel. The FBI fairly quickly identified the 19 men responsible for hijacking and crashing four airliners on September 11. Unfortunately for immigrants living in the United States and those waiting in line for visas, his visa. In January 2001 he was briefly detained in the United Arab all of the 19 hijackers involved in the September 11 terrorist attacks Emirates because his name appeared on a terrorist alert list. The UAE were foreigners. And unfortunately for Middle Eastern men living in has stated that U.S. authorities were warned Atta intended to return the United States, 15 of the hijackers were from Saudi Arabia, one from to the United States. Atta arrived in Miami on January 10, 2001, and Egypt, one from Lebanon, and two from the Union of Arab Emirates. was admitted by INS officers based on a pending application for a change All apparently were members of al Qaeda. to trainee status. The INS granted the change in September 2002. Further investigation disclosed that the hijackers had entered the Given that the September 11 attackers were all foreign visitors, country on facially valid temporary visas. Four had attended flight most of whom had violated the terms of their visas, President Bush’s school in the United States. The 19 hijackers obtained over 60 state announced war on terrorism understandably included major com- driver’s licenses and identification cards in California, Florida, and ponents aimed at improving the government’s control over its bor- Virginia, and later used these documents to board the airplanes used ders and ports of entry, and the admission and stay of immigrants in in the September 11 attacks. the United States. Examination of the U.S. State Department and the Immigration The creation of the U.S. Department of Homeland Security (DHS) and Naturalization Service files of the hijackers revealed that most of combined the intelligence and law enforcement functions of more than the men had violated their immigration status without being detected 20 federal agencies. Under the Homeland Security Act of 2002—which or apprehended. Several had overstayed their nonimmigrant visas. Not was signed into law on November 25, 2002—all functions of the INS only that, national security concerns should have blocked several of were transferred to the DHS.1 On March 1, 2003, the INS ceased to them from entering the country in the first place. For example, before exist. Its service functions (generally the adjudication of visa and other entering the United States, one of the hijackers, Khalid al-Mihdhar, affirmative applications) were transferred to the new U.S. Citizenship was placed under surveillance by agents in Malaysia after receiving and Immigration Service (CIS), most enforcement functions were intelligence from the CIA regarding his suspected terrorist ties. He was transferred to the new U.S. Immigration and Customs Enforcement placed on a watch list for terrorists in August 2001 after entering the (ICE), and certain border inspection functions were transferred to the United States. Another hijacker, Nawaf al-Hamzi, was also placed on new U.S. Border and Customs Protection (BCP). a watch list for terrorists in August 2001. Mohamed Atta, an Egyptian who piloted the plane that struck the Peter Schey is president of the Center for Human Rights and Constitutional North Tower of the World Trade Center, attended flight school in Law, a Los Angeles-based nonprofit advocacy and litigation human rights organ-

RICHARD EWING Florida and departed the country in January 2001 after overstaying ization.

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Patriot Act, which was signed liminary injunction finding blanket closure of directive was not narrowly tailored. into law within two months after the deportation hearings in special interest cases According to the court, the government September 11 attacks, is intended to detect and to be unconstitutional.6 offered “no persuasive argument as to why disrupt terrorist activities within and outside On appeal the attorney general argued the Government’s concerns could not be of the United States.2 The act includes several that he had plenary authority over all immi- addressed on a case-by-case basis.”18 provisions modifying immigration policy: gration laws and decisions—both substantive After the Sixth Circuit decided Detroit • Section 402 authorizes a tripling of the and nonsubstantive—and therefore could Free Press, an opposite result was reached number of Border Patrol personnel, customs implement policies that would otherwise under similar facts by the Third Circuit Court personnel, and immigration inspectors along infringe on the First Amendment so long as of Appeals in North Jersey Media Group, the U.S. northern border and an additional such policies are facially legitimate and bona Inc. v. Ashcroft.19 The district court found for $100 million to improve monitoring tech- fide.7 The Sixth Circuit Court of Appeals the media plaintiffs and issued an order nology along the northern border. was unpersuaded by the government’s claim,8 enjoining the attorney general from denying • Section 403 grants the DHS and State highlighting the difference between substan- access. The attorney general appealed. While Department personnel access to the FBI’s tive and nonsubstantive immigration law. the Third Circuit court acknowledged a cur- NCIC-III and the Wanted Persons File in The former involves the determination of rent presumption of openness in most depor- order to check the criminal history of visa who may be allowed entry or who can be tation proceedings, it found that “this pre- applicants. deported.9 The court concluded that the sumption has neither the pedigree nor • Section 411 broadens the grounds for exclu- Creppy directive is strictly nonsubstantive, uniformity necessary to satisfy Richmond sion of immigrants with ties to terrorist orga- and if a First Amendment right of access Newspapers’ first prong,”20 and concluded nizations.3 It authorizes the exclusion of the exists, the government must show that it is a that “deportation hearings [do not] boast a spouses and children of immigrants who have narrowly tailored means of advancing a com- tradition of openness sufficient to satisfy engaged in activities linking them to terror- pelling interest.10 Richmond Newspapers.” While the distinc- ist organizations and makes inadmissible any Under the U.S. Supreme Court’s two-part tion between exclusion and deportation pro- alien who is determined to have been asso- “experience and logic” test from Richmond ceedings was a “tempting road to travel,” the ciated with or who supported any terrorist Newspapers v. Virginia, the Detroit Free Press court was unwilling “effectively to craft a organization. court concluded that a First Amendment right constitutional right from mere Congressional • Section 412 directs the DHS to detain and of access to deportation proceedings exists silence, especially when faced with evidence remove any alien certified to be engaged in ter- because “deportation hearings, and similar that some deportation proceedings were, and rorist activities. It authorizes the secretary proceedings, have traditionally been open to are, explicitly closed to the public or con- of the DHS to certify any alien as a terrorist the public, and openness undoubtedly plays a ducted in places unlikely to allow general if there are reasonable grounds to believe significant positive role in this process.”11 In public access.” Because immigration judges that he or she is affiliated with a designated addition, open hearings, apart from their value cannot be expected to assess with precision terrorist organization or engaged in terrorist to the community, have long been considered the harm that might result from disclosing activities. It restricts judicial review of the to advance fairness to the parties.12 Public seemingly trivial facts, “seeking closure on a detention to habeas corpus proceedings.4 access acts as a check on the actions of the case-by-case basis would ineffectively pro- • Section 413 authorizes the secretary of executive branch by assuring that proceed- tect the nation’s interests.”21 state to share with foreign governments infor- ings are conducted fairly and properly.13 In an Unlike the Sixth Circuit, which was will- mation in the State Department’s visa-look- area such as immigration, where the governing to consider the credibility of the security out database and—under certain circum- ment has nearly unlimited authority, “the press concerns expressed in government declara- stances—information regarding individual and the public serve as perhaps the only check tions, the Third Circuit was unwilling to do immigrants. The secretary of state may do so on abusive government practices.”14 Further, so because “national security is an area where for the purpose of combating terrorism. openness ensures that government does its job courts have traditionally extended great def- Ten days after the September 11 attacks, properly, without mistakes.15 erence to Executive expertise.”22 While the Chief Immigration Judge Michael Creppy The Sixth Circuit agreed that the govern- North Jersey Media Group court expressed issued a directive to all U.S. immigration ment has a compelling interest in preventing a keen awareness of the dangers presented by judges requiring closure of special interest terrorism. Inasmuch as the declarations of deference to the executive branch when con- removal cases.5 The Creppy directive required government agents established that certain stitutional liberties are at stake, on balance, that all proceedings in these cases be closed information revealed during removal pro- however, it was “unable to conclude that to the press and public, including family ceedings could impede the ongoing antiter- openness plays a positive role in special inter- members and friends. The record of the pro- rorism investigation, the court concluded est deportation hearings at a time when our ceeding should not be disclosed to anyone that the defendants had “demonstrate[d] a nation is faced with threats of such profound except a deportee’s attorney or representative, compelling interest for closure….”16 and unknown dimension.”23 “assuming the file does not contain classified Surprisingly, however, the court nevertheless Both the circuits rejected motions for information.” Moreover, “[t]his restriction on held that the defendants failed to make spe- rehearing en banc. The North Jersey Media information includes confirming or denying cific findings before closing the challenged Group plaintiffs filed a petition for certiorari whether such a case is on the docket or sched- deportation proceedings. In 1982, the U.S. with the Supreme Court that was denied. uled for a hearing.” Supreme Court held that in cases in which The law on secret hearings is therefore unre- In the U.S. District Court for the Eastern partial or complete closure is warranted, spe- solved. For now, the outcome of legal chal- District of Michigan, plaintiffs in three sep- cific findings must be made on the record so lenges to closed proceedings depends on the arate cases sought an injunction against that a reviewing court can determine whether circuit in which they are conducted. While the actions taken pursuant to the Creppy direc- closure was proper and whether less restric- Supreme Court as presently constituted may tive. The three suits were consolidated for pre- tive alternatives were available.17 lean towards the approach adopted by the trial matters. In the case, Detroit Free Press The Sixth Circuit also ruled that the blan- Third Circuit in North Jersey Media Group, v. Ashcroft, the district court granted a pre- ket closure rule mandated by the Creppy the positions taken by the majority in Detroit

14 Los Angeles Lawyer September 2006 Free Press—essentially that immigration compelling governmental interest, this court management ﬁrm Dubai Ports World—a com- judges possess the authority on a case-by- cannot conclude, at this pleading stage, that pany controlled by the United Arab Emirates case basis to protect the nation’s security by this categorical exclusion of all non-citizens government and managed entirely by non-U.S. closing hearings when appropriate to do so— from employment as screeners is the least citizens—was denied contracts earlier this likely provide the best balance between legit- restrictive means to further such govern- year to operate ports in several major U.S. imate national security concerns and the con- mental interest.”26 The district court subse- cities. Critics argued that the takeover raised stitutional right to open hearings that has quently issued a preliminary injunction in security concerns, noting that two of the been recognized repeatedly over many years. the plaintiffs’ favor.27 Adopting its prior rul- hijackers in the September 11 attacks came ing denying the defendants’ motion to dismiss, from the UAE and that the hijackers drew Airport Security the court found that the plaintiffs had suffi- funds from bank accounts in Dubai.30 One Section 11 of the Aviation and Transportation ciently alleged a constitutional deprivation to may reasonably question the rationale of Security Act (ATSA)—signed into law on warrant a ﬁnding of irreparable harm. The prohibiting lawful permanent residents from November 19, 2001—adds a new require- court concluded that preliminarily enjoining serving as airport security screeners when ment that all airport screeners must be U.S. the enforcement of the citizenship requirement the U.S. government supported noncitizens citizens. Prior to this time, lawful permanent would maintain the status quo pending a seeking to operate major ports at which tens residents of the U.S. were eligible for the determination of its constitutionality and of thousands of cargo holders arrive in the position. The underlying presumption of would merely delay the implementation of a United States each year. ATSA is, in effect, “that all noncitizens are a new statute, while the denial of a preliminary Furthermore, while noncitizens are barred terrorist threat.”24 injunction would result in the termination from holding airport screening positions, they ATSA was promptly challenged by lawful of the plaintiffs’ employment.28 may still work as airline staff piloting pas- permanent residents and a U.S. national from There is no reason to believe that a law- senger airplanes, checking in passengers, and American Samoa, all of whom had been ful permanent resident is any more or less handling their baggage. They may also pilot employed as airport screeners prior to the likely to use a job as an airport screener to noncommercial aircraft anywhere in the United statute’s implementation.25 In ruling on the facilitate a terrorist act than a U.S. citizen. States. It is difficult to understand how deny- government’s motion to dismiss for failure to Indeed, numerous domestic terrorist and hate ing noncitizens the opportunity for em- state a claim, the district court held that that groups exist in the United States—and the ployment as security screeners at airports adds government action must meet strict scrutiny goal of several of these home-grown groups anything of value to the war on terrorism. to constitutionally justify the exclusion from is to create social and political chaos leading government jobs of lawful resident aliens. to the violent overthrow of the U.S. govern- Immigration Policy Debate The court denied the motion, stating, ment by its own citizens.29 Widely differing sectors of the country have “Although improving aviation security is a After much public controversy, maritime for many years agreed that tolerating the

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Los Angeles Lawyer September 2006 15 presence of some 12 million undocumented is a fairly useless endeavor if the U.S. gov- Mexican President Vicente Fox engaged in immigrants within U.S. borders is not good ernment has no information of any type on talks about a legalization program for undoc- policy. These immigrants are favored by 12 million immigrants living in the country. umented immigrants, though not in the con- unscrupulous employers seeking to evade a Undocumented immigrants will not reg- text of national security. These discussions range of state and federal laws. Undocu- ister and provide essential data about their essentially came to a close after the September mented immigrants are afraid to report identities, addresses, and places of employ- 11 attacks.31 crimes, cross borders illegally, and are invis- ment if the result is their arrest and deporta- In December 2003 DHS Secretary Tom ible to government agencies charged with tion. A legalization program offering employ- Ridge called for “some kind of legal status” creating databases and other tools in the war ment authorization is likely the only approach for immigrants living illegally in the United on terrorism. that would induce significant numbers of States. Ridge “acknowledged that we have Any rational system of controlling immi- undocumented immigrants to come forward several million people who are here ille- gration would include capturing information and provide the government with the infor- gally...and for homeland security reasons on as many immigrants present in the coun- mation it needs to control immigration and [and] national security reasons, at some point try as possible. Keeping track of nonimmi- identify those who may be disposed to engage there needs to be an accounting for those grant visitors and denying visas to potential in acts of terrorism or support those who do. individuals so we can better identify them.”32 terrorists, as the law at present strives to do, Before September 11, President Bush and It was not until December 2005, however, that the House of Representatives passed H.R. 4437, an “enforcement only” bill criminal- izing all undocumented immigrants and calling for a massive buildup of law enforcement personnel along the border between the United States and Mexico. In May of this year, the Senate passed its own bill, S. 2611, that includes enhanced enforcement measures and a program aimed at registering and then legalizing several million immigrants. All applicants for legalization would be subject to detailed background security checks. However, the House and Senate appear to be far from compromise. The 9/11 attacks seem to have derailed rather than encouraged serious evaluation of the role a legalization program may play in defense of national security. Congress is unlikely to resume consideration of the subject until after the midterm elections in November.

Asylum Seekers and Refugees After September 11, a freeze on refugee admissions was put into effect for over two months while a comprehensive review of procedures was undertaken. Since then, as a result of new government policies, there has been a substantial drop in the approval of asylum requests in the United States. In 2000, about 44 percent of asylum cases were granted by the U.S. Asylum Office. By 2003, that number had dropped to about 29 percent.33 The government has justiﬁed stricter rules for asylum seekers as necessary for national security. Several new security measures were adopted as a result of the review. These include conducting additional security checks of applicants against existing databases, verifying in new ways the identity of all refugee travelers before they board flights to the United States, and ﬁngerprinting all approved I N C O R P O R A T E D applicants either before departure to or upon L A W Y E R S their arrival in the United States. The freeze and the enhanced security measures that followed led to a significant decrease in the number of refugees admitted to the United States in fiscal year 2002. Indeed, in that

16 Los Angeles Lawyer September 2006 period, with a ceiling of 70,000 authorized by the president, only 27,000 refugees were admitted.34 Shortly before the commencement of the war in Iraq, the administration announced a new program aimed at rooting out terrorists among potential asylum seekers in the United States.35 The program—one of the compo- nents of the DHS’s Operation Liberty Shield— mandates that asylum seekers from 34 nations that are deemed to be connected in some way with al Qaeda must be detained while their claims are decided.36 In defending the policy, DHS Secretary Ridge said, “We want to make absolutely certain during this period of time you are who you say you are….[We will] be looking, obviously scrutinizing all asylum seekers at this time, but there are countries that we believe are supportive of Al Qaeda or countries where we know there is an Al Qaeda network or other terrorist organizations.”37 Under Operation Liberty Shield, “no immigrant group, even those traditionally protected by U.S. immigrant policy, is immune from suspicion if it is associated, even unfairly, with al Qaeda.”38 Congress further added to the difficulties faced by asylum seekers when it enacted the REAL ID Act in 2005.39 Among other things, the act increases the burden of proof for an applicant seeking asylum or objecting to removal by requiring the applicant to actively demonstrate that his or her membership in a protected class (based on race, religion, nationality, social group, or political opinion) was or will be a central reason for his or her persecution. The REAL ID Act also allows immigration judges who decide asylum claims to demand corroborating evidence even for otherwise credible testimony—evidence most asylum seekers have great difficulty obtaining. No court may reverse findings concerning availability of corroborative evidence, and no court may review any discretionary judgment, decision, or action made in removal proceedings. These policy and statutory changes are unlikely to serve the goals of the war on terrorism. Asylum is a far more difficult way of THAT’S WHAT WE DO, EVERY DAY.® With Special Counsel, entering or remaining in the United States your search is over — that’s because we are the leading than other forms of relief available to immi- provider of legal staffing services nationwide. Whether you (323) 658-6065 grants, including nonimmigrant visitor and need attorneys, paralegals, or other legal staffing support, (800) 737-3436 student visas. New restrictions on asylum we can provide the most qualified professionals — from specialcounsel.com seekers are in no way limited to those who general workload management and litigation support to project match the profile of a terrorist or have sus- picious past associations or previously management for e-discovery and document review projects. engaged in criminal activity. Instead, the new And with specialized services like medical document review, asylum restrictions adversely affect those flee- deposition digesting, and court reporting, all of your legal needs ing all forms of persecution, including reli- are just a phone call away. gious and political persecution and genocide. They may also violate international refugee and human rights laws, including the prohibition on arbitrary detention embodied in ©2006 Special Counsel, Inc. All rights reserved. A member of the MPS Group Article 9 of the International Covenant on

Los Angeles Lawyer September 2006 17 Civil and Political Rights, the prohibition on –BEWARE– returning a refugee to persecution contained in the 1951 Convention Relating to the Status Immigration law of Refugees and its 1967 Protocol, and the changes constantly right to asylum extended in the Universal Declaration of Human Rights.

Earn 4 MCLE credits for watching this 9/11 Commission entertaining explanation of how the Restricting the rights of immigrants who are U.S. immigration system works hard-working, support economic growth, and ✔ Covers every single Visa and yearn for nothing more than to become citi- Green Card except those related zens of this country and play a positive role to doctors, nurses and asylum in its affairs does little, if anything, to further ✔ Use it to train your staff the war on terrorism. As the 9/11 Commission stated, in the post-9/11 world, threats are ✔ Includes 6 months of free law defined “more by the fault lines within soci- updates on our website so you eties than by the territorial boundaries between can be aware of the new and 40 upcoming changes them.” To largely poor and repressive countries that spawn those ready to die and kill Program is produced in entertaining plain innocent people to realize a so-called higher non-lawyerly English with travel footage cause, the United States must “offer an exam- and summary charts ple of moral leadership in the world, committed to treat people humanely, abide by the ANY QUESTIONS, JUST CALL rule of law, and be generous and caring to our CUSTOMER SERVICE AT neighbors….”41 If it does not do so, there is 702 241-4419 no immigration policy that the Congress, the To order our program go to White House, or the DHS can devise that www.immigrationousecall.com will deter foreign-born terrorists from coming to the United States one way or the other. www.immigrationhousecall.com That is not to say that immigration policy does not and should not continue to play an important role in the war on terrorism. However, restricting the rights of virtually all immigrants in the United States because an infinitesimal number engaged in the September 11 attacks is hardly justifiable. A IT’S ABOUT TIME surgical approach involving thorough background checks of all immigrants and effective One-Visit Dentistry investigations of the minuscule number of individuals that possibly pose a national security threat, combined with a broad and ongo- We know your time is valuable. That’s why we’ve invested ing legalization program so that the govern- in CEREC technology that allows for a faster experience ment always knows who is currently residing in the country, would be more consistent when you need crowns, fillings or veneers. With CEREC, with long-held notions of due process of law, there is no need for a temporary and return visit, in about the exercise of civil liberties, the right to seek an hour—leaving more time for whatever is important to asylum, and the right to family reunification. It would also better serve the national inter- you. est in fighting terrorism and protecting the security of the United States. ■ Ask us about CEREC and all of our other extraordinary dental services 1 Homeland Security Act of 2002, §§441(2), 442(a)(3), 451(b), 116 Stat. 2192, 6 U.S.C. §§251(2), 252(a)(3), 271(b) (2000 ed., Supp. II). 2 The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Conveniently located in Downtown Los Angeles • Next to Morton’s Steakhouse Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001). By appointment only 3 Under 8 U.S.C. §1182(a)(3), a noncitizen may be Esthetic Dentistry Dental Group denied admission or removed from the United States www.estheticdentistry.net for engaging in or supporting a terrorist act or organ- (213) 553-4535 ization that has engaged in a terrorist act, which includes, for example, “[t]he seizing or detaining…[of] Dr. Armen Mirzayan, D.D.S. Dr. Jean Lee-Mirzayan, D.D.S. another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition

18 Los Angeles Lawyer September 2006 for the release of the individual seized or detained,” or (1982)). 28 Id. at 969. the use of an “explosive, firearm, or other weapon or 11 Id. at 700. 29 The Southern Poverty Law Center has for years dangerous device…with intent to endanger, directly or 12 Id. at 702 (citing Richmond Newspapers v. Virginia, compiled information on domestic hate and terrorist- indirectly, the safety of one or more individuals or to 448 U.S. 555 (1980)). type groups. See http://www.splcenter.org. See also cause substantial damage to property.” This definition 13 Richmond Newspapers, 448 U.S. at 569. Nicholas D. Kristof, All-American Osamas, N.Y. is broad enough to encompass many of the Founding 14 Detroit Free Press, 303 F. 3d at 704. TIMES, June 7, 2002. Fathers; Nelson Mandela; members of the Northern 15 Id. (citing Kwock Jan Fat v. White, 253 U.S. 454, 464 30 See http://www.cnn.com/2006/POLITICS/02/21 Alliance, which fought alongside the United States to (1920)). /port.security/CNN (Feb. 22, 2006). oust the Taliban in Afganistan, and the contras, who 16 Id. at 707. 31 See, e.g., Transcript of interview with Vicente Fox, with President Reagan’s support fought to overthrow 17 Press-Enterprise Co. v. Superior Court of Cal. for the Fox News Sunday, at http://www.foxnews.com/story the Sandinista government in Nicaragua. County of Riverside, 478 U.S. 1, 13 (1982). /0,2933,108050,00.html (Jan. 12, 2004). 4 See Human Rights Watch letter of Feb. 13, 2004, to 18 Detroit Free Press, 303 F. 3d at 707. 32 Jerry Kammer & Marcus Stern, Ridge calls for legal- the United Nation’s Committee on the Elimination of 19 North Jersey Media Group, Inc. v. Ashcroft, 308 F. izing millions of undocumented immigrants, Copley Racial Discrimination, available at http://hrw.org 3d 198 (3d Cir. 2002). News Service, Dec. 10, 2003. /english/docs/2004/03/25/global8227.htm; The 20 Id. at 209-12. In 1893, the executive branch pro- 33 Remarks of Arthur E. Dewey, Assistant Secretary for Constitution Project, Report on Post-9/11 Detentions, mulgated the first set of immigration regulations, which Population, Refugees and Migration, to the American June 2, 2004, available at http://www.watchingjustice expressly stated that exclusion proceedings shall be con- Society for International Law, Apr. 3, 2003, available .org/reports/publication.php?docId=286. ducted “separate from the public.” See DEPARTMENT OF at http://www.state.gov/g/prm/rls/2003/37906.htm. 5 With the passage of the Illegal Immigration Reform and THE TREASURY, IMMIGRATION LAWS AND REGULATIONS 34 Id. Immigrant Responsibility Act of 1996, Congress changed 4 (1893). Congress codified those regulations in 1903 35 Operation Liberty Shield was announced on March the nomenclature of exclusion and deportation proceed- and ever since has repeatedly reenacted provisions 18, 2003. See http://www.dhs.gov/dhspublic/interapp ings. Both are now referred to as removal hearings. See closing exclusion hearings. In contrast, although /press_release/press_release_0115.xml. 8 U.S.C. §1229a. However, the historical and legal dis- Congress codified the regulations governing deporta- 36 See http://www.dhs.gov/dhspublic/display?content tinctions still remain. See Zadvydas v. Davis, 533 U.S. tion proceedings in 1904 and has reenacted them many =520 (Mar. 17, 2003). 678, 693, 150 L. Ed. 2d 653, 121 S. Ct. 2491 (2001). times, it has never authorized the general closure that 37 Philip Shenon, Threats and Responses: Immigration; 6 Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 937 has long existed for exclusion proceedings. See H.R. New Asylum Policy Comes under Fire, N.Y. TIMES, (E.D. Mich. 2002). REP. NO. 104-469, pt. I, at 124 (1996). Mar. 18, 2003, at A22. 7 See, e.g., Kleindienst v. Mandel, 408 U.S. 753 (1972) 21 North Jersey Media Group, 308 F. 3d at 212. 38 Karen C. Tumlin, Suspect First: How Terrorism (no First Amendment bar to excluding people because 22 Id. at 219 (citing Zadvydas v. Davis, 533 U.S. 678, Policy Is Reshaping Immigration Policy, 92 CAL. L. of their beliefs); Wong Wing v. United States, 163 U.S. 696 (2001)). REV. 1173, 1190 (2004). 228, 237 (1896) (courts cannot limit Congress from 23 Id. at 220. 39 The REAL ID Act of 2005 was attached to the expelling “aliens whose race or habits render them 24 Ahmad, A Rage Shared by Law, 92 CAL. L. REV. Emergency Supplemental Appropriation for Defense, undesirable as citizens”). 1259 n.90 (2004). the Global War on Terror, and Tsunami Relief, 2005, 8 Detroit Free Press v. John Ashcroft, 303 F. 3d 681, 685 25 Gebin v. Mineta, 231 F. Supp. 2d 971 (C.D. Cal. H.R. 1268, Pub. L. No. 109-13. (6th Cir. 2002). 2002). 40 THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE 9 Id. at 686 n.6. 26 Id. at 973. NATIONAL COMMISSION ON TERRORIST ATTACKS UPON 10 Id. at 693 (citing Globe Newspaper Co. v. Superior 27 Gebin v. Mineta, 239 F. Supp. 2d 967 (C.D. Cal. THE UNITED STATES 361-63 (Dec. 5, 2005). Court for the County of Norfolk, 457 U.S. 596, 606 2002). 41 Id. at 376.

Los Angeles Lawyer September 2006 19 Practice Tips BY DONALD WARNER

The Employment Rights of Reservists on Active Duty

ONE NOTABLE EFFECT of the post-9/11 war on terror and the way that stretch over many months or years. The employer’s circumstances may the Bush Administration has chosen to fight it has been the vastly change drastically during an employee’s absence of, for example, two increased use of the military reserves as active-duty troops. The years. But the law requires that the returning employee be treated as requirement that individual reserve members spend significant time if he or she had walked out the door a fortnight before.5 Moreover, in active-duty deployment has affected the troops, their families and many service personnel returning from deployment in the Middle East friends, and those with whom they have business dealings—most received disabling injuries. notably their employers. In the employer-employee relationship, the The reinstatement benefit, however, remains the same for reservists active duty requirement has implicated the possession of the rights serving either short- or long-term absences. The circumstances attend- of reservists to leaves of absence and reinstatement. ing the request for reinstatement are going to be different, leading to The employment relationship of the members of most military what are likely to be tough cases. reserve bodies, including the federal service reserves (the Army, Navy, Air Force, Marine, and Coast Guard) and the California Army and Procedural Requirements Air National Guard when federalized,1 is regulated by the Uniformed Before a court considers a tough case, however, it will have to review Services Employment and Reemployment Rights Act of 1994, codi- whether the parties, and particularly the employee-plaintiff, have met fied at 38 USC Sections 4301 et seq. USERRA sets forth a detailed the procedural requirements of USERRA. A failure to follow proce- regulatory scheme of leave rights and mechanisms for enforcement dure may affect rights under a statute in as profound a manner as of those rights. Similarly, when the California National Guard is called would the presence or absence of facts affecting the substance of the for state service, the rights of its members who have private employ- claim. ers are governed by certain provisions of the California Military Eligibility and coverage. All employees of all employers are cov- and Veterans Code. ered by USERRA. They are covered for five years of service, and all USERRA was enacted a few years after the first Gulf War. In 1994, periods of service are cumulative in reaching the five-year limitation.6 the United States depended completely on volunteers for filling the To be eligible, moreover, the returning service person must have ranks of its military forces. It had not always been so. Beginning in been released under honorable conditions.7 1940, and continuing through the Vietnam era in the 1960s and early Notice to the employer. It is a condition on the leave rights of the 1970s, America obtained much of the personnel for its Army (and, employee that the employee (or an officer of the service to which he to a lesser extent, its other forces) from the involuntary conscription or she belongs) has given advance notice, verbal or written, of the fact of young men. that the employee is leaving for service, unless the giving of such notice In 1994, however, the all-volunteer military was the policy in effect. is “impossible or unreasonable.”8 Under that policy, the armed forces consisted of three groups: 1) career Return to work. The time within which the reservist employee must soldiers, sailors, marines, and airmen, and their officers, 2) noncareer return to work or apply for reemployment varies based on the length full-time enlisted and officer personnel, and 3) the reserves. USERRA’s of time of the leave. An employee returning from a leave of less than policies were designed to address the needs of the latter two groups 31 days must report for work by the beginning of the first regularly and thereby encourage military service. scheduled work day following release from service, plus 8 hours. The The primary aim of USERRA is to ensure the reemployment of mil- period is extended to “as soon as possible” when reporting at the itary service members whose service is complete, as soon as possible required time is “impossible or unreasonable.”9 Employees absent on after that completion. To that end, the law prohibits discrimination USERRA leave from 31 to 180 days must report to the employer by employers in employment or reemployment based on military ser- within 14 days of the service completion date.10 If absent 181 days vice.2 It is also unlawful for an employer to refuse to grant a military or more, the returning employee has 90 days to report.11 Finally, all leave of absence.3 reporting time requirements are subject to extension for a period of The leave benefits provided by USERRA, and especially the pro- up to two years (and in some circumstances, longer) in the event that visions for reemployment after service, seek to place the returning ser- the employee has incurred an illness or injury in the service and vice member in the same position as if he or she had continued in the needs the time to convalesce.12 civilian job for the entire term of service.4 The implications are crucial: Setting aside some variations having The Employer’s Obligation to Reemploy to do with the time limits within which the service member must return Subject to the conditions on eligibility, notice, and time of return, to employment, the same reinstatement benefit that accrues under the USERRA provides that the returning service person “shall be entitled act to the reservist who has taken his or her annual two-week train- to reemployment rights and benefits.”13 Generally, the “reemployment ing leave also accrues to that same reservist after a multiyear term of service. If the reservist’s service included deployment to Iraq, Afghani- Donald Warner is is a labor and employment attorney who specializes in the stan, or Kuwait, the leave, and thus the reinstatement right, could representation of management.

20 Los Angeles Lawyer September 2006 right” is that, absent extenuating circum- employer bears the burden of proving the “membership, application for membership, stances, the employer must reinstate the existence of the relevant circumstances.19 performance of service, application for service, employee into the same job he or she would To date, there have been only a handful of or obligation” to a uniformed service of the have held but for the interruption for military reported appellate decisions interpreting United States.24 Here, as in the case of the service.14 The existence and extent of those USERRA’s requirements and exclusions. This reemployment obligation, Congress sought to extenuating circumstances constitute the prin- is not surprising considering the calendar. micromanage potential litigation, in this cipal potential grounds for litigation under The current Iraq invasion and occupation, instance by prescribing a specific burden of this aspect of the statute. which has been the principal destination for proof. The statute provides that an employer The problem posed for most employers most reserves called to arms, began in the shall be found to have discriminated if it is upon the return of an employee long absent spring of 2003. It is reasonable to expect established that the employee’s military ser- on military leave is that the returning employ- that a substantial number of appellate opin- vice status was a motivating factor in the ee’s job was filled by another. When must an ions will emerge from the federal judiciary in employer’s decision, unless the employer can employer displace an employee to reinstate a the next few years. prove that the same action would have been returning service person? Congress, in its Under USERRA, on return from leave, taken in the absence of the employee’s mili- heavy-handed way,15 attempted to provide an employee must be credited with seniority tary service status.25 some standards for the courts in evaluating and other rights and benefits that he or she What this provision does in the real world this question, and some predictability for the had on the date of commencement of ser- of employment litigation is to make it returning employee and his or her employer. vice.20 The employee must be given coverage extremely hard for an employer to obtain USERRA explains when the employer’s obli- under existing employee health plans, as summary judgment on the issue of military gation to rehire may be excused or modified. defined in ERISA,21 and provided coverage service discrimination. It is easy for an The statute indicates that the reemploy- under existing employee pension plans.22 employee to state a prima facie case, shifting ment obligation is excused if the employer’s After reinstatement, the returning service the burden of proof to the employer,26 and circumstances have so changed as to make person is protected from discharge, except for that an employer’s motion for summary judg- such reemployment impossible or unreason- cause. For short-term deployments, the period ment will be denied whenever there is any col- able.16 Moreover, in the case of former of protection lasts for 180 days; for longer orable issue of fact regarding the employer’s employees who have been disabled (or whose deployments, such as those typical for motivation for its acts.27 Three reported disabilities have been aggravated) while in the reservists deployed to Iraq, the protection is appellate decisions reversed a summary judg- service, there is an out for the employer based for one year.23 ment for the employer that the trial court on the undue hardship that would be imposed granted, although in two of those cases the by the accommodation of the employee’s dis- The Obligation Not to Discriminate court found other reasons for denying relief ability.17 Finally, there is an exclusion for USERRA also contains a sweeping prohibi- to the plaintiff.28 former employees who were temporary tion against discrimination in “any benefit of Claims for discrimination and failure to employees.18 For each exclusion or excuse, the employment” by an employer on the basis of reemploy in conformance with the statute

A Unique Institution Every Californian has a mental image of the National Guard in state service. Some of these images are positive, such as the guard handling disasters such as fires, floods, and earthquakes, or in providing logistics for local institutions in similar emergencies. Some images may elicit less benevolent associations, such as the guard deployed to control civil disturbances in San Francisco during the general strike of 1934 and the two Los Angeles disturbances of 1965 and 1992.1 These images of the National Guard as an instrumentality of state government mask a complex legal status. The state National Guards are creatures of federal law as much as of state law. The guard even has its own title in the United States Code, Title 32, wherein the organization, personnel, training, and financial structure (called “service, supply and procurement” in the code) of the National Guards of the states, territories, and the District of Columbia are ordained. The operation and structure of the California Army and Air National Guard are further regulated by provisions of the California Military and Veterans Code. Federal law makes clear that a primary function of the state guards is to be an additional ready reserve for the federal armed forces. Chapter 1211, “National Guard Members in Federal Service,” of Title 10 of the U.S. Code, which was added in 1994, the same year as the passage of USERRA, describes the crucial point of interface between the guard as a state entity and as a federal military reserve force. Chapter 1211 provides that the individual members of the various state guards “are not in active Federal service except when ordered thereto under law.”2 Prior to federalization, therefore, the members are, by default, members of a state guard only. But “[w]henever (1) the United States…is invaded or is in danger of invasion by a foreign nation; (2) there is a rebellion or a danger of a rebellion against the authority of the Government of the United States; or (3) the President is unable with the regular forces to execute the laws of the United States; the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary.”3 From and after a call from the president, the guard members and units become reserves of the federal Army or the Air Force.4 This statute seems to settle the issue of whether a state governor, faced by a major disaster at home, could act to recall state guard members and units that have been federalized and deployed abroad. Thus, during Hurricane Katrina and its aftermath, Governor Blanco of Louisiana could not have recalled the guard members and units of that state then serving in Iraq. Legally, they were no longer part of the Louisiana National Guard. The federal statute, however, leaves unsettled many questions concerning when, and under what circumstances, the various state guards may be federalized. In case of invasion and rebellion, yes—but when else? No appellate court has yet considered that issue.—D.W.

1 The nadir for the California Guard probably came in the spring of 1856, when William Tecumseh Sherman, the commanding general of the Second Division, California Militia (a precursor entity), called out the troops in response to the formation of the San Francisco Vigilance Committee and its takeover of the city. Sherman was unable to muster even a company of troops, for his men had all joined the vigilantes. 2 10 U.S.C. §12401. 3 10 U.S.C. §12406. 4 10 U.S.C. §12403.

Los Angeles Lawyer September 2006 21 are enforced administratively through the tains sweeping criminal and civil prohibi- ment and Reemployment Rights Act of 1994 and the U.S. Department of Labor, which is empow- tions against discrimination,31 and provi- California Military and Veterans Code. In practice, an employer that follows the federal law will be in com- ered to provide legal assistance to the service sions relating to reemployment of returning pliance with both. 29 32 person-claimant. Jurisdiction for enforce- members of the guard. 2 38 U.S.C. §4311. ment, in private actions as well as those Jurisdiction for enforcement of claims of 3 38 U.S.C. §4312. brought by the government, lies in the federal discrimination and loss of reemployment 4 Id., see also 38 U.S.C. §4313. district courts.30 rights lies with the superior courts. There 5 The first Gulf War required the mobilization and The California National Guard is often are, though, no reported decisions in deployment of massive numbers of troops, but the land campaign lasted only a few days, and most of the mobilized for state service, entirely separate California on the pertinent provisions of the reservists were in active service for only a few months. 33 from military engagements overseas. The Military and Veterans Code. Until there Congress passed USERRA shortly after that war ended. Military and Veterans Code applies to persons are, an employer is best counseled to comply Current conflicts in Iraq and Afghanistan, however, who are called up for what are typically with the requirements set forth in USERRA.■ apparently necessitate long deployments. 6 shorter durations than service as an active- There are eight categories and multiple subcate- gories of service. An employer faced with an issue 1 The rights of Guard members on federalized active duty reservist in the federal military. State involving the five-year service limitation should con- duty appear, judging from the texts of the laws, to be service is often related to disasters, including sult the U.S. Department of Labor Web site at www governed by the federal Uniformed Services Employ- fires, earthquakes, and floods. The code con- .dol.gov and search under “veterans reemployment rights.” 7 38 U.S.C. §4304. 8 38 U.S.C. §4312(a), (b). Note, however, that there are substantial exceptions to this requirement. See 38 U.S.C. §4312(b). 9 38 U.S.C. §4312(e)(1)(A). 10 38 U.S.C. §4312(e)(1)(C). 11 38 U.S.C. §4312(e)(1)(D). 12 38 U.S.C. §4312(e)(2). GROW YOUR FUTURE WISELY 13 38 U.S.C. §4313(a). 14 38 U.S.C. §4313(a)(1)(A). As a law professional, you know that growing your 15 “Heavy handed” because Congress, having in recent future wisely isn’t just choosing the right plan for years enacted several statutes that required reasonable accommodation of employees’ needs with those of your firm—it’s also choosing the right resource. So employers (such as the Americans with Disabilities Act when you’re ready for retirement planning, choose of 1990), could have relied on judicial precedent. the program created by lawyers for lawyers, and Instead, Congress included in USERRA specific and distinct language that will require judicial interpre- run by experts. tation. 16 38 U.S.C. §4312(d)(1)(A). ABA Retirement Funds has been providing tax 17 38 U.S.C. §§4312(d)(1)(B); 4313(a)(3), (a)(4), (b)(2)(B). qualified plans such as 401(k)s for over 40 years. 18 38 U.S.C. §4312(d)(1)(C). Today, our program offers full service solutions 19 38 U.S.C. §4312(d)(2). including plan administration, investment 20 38 U.S.C. §4316(a). 21 flexibility and advice. You just couldn’t make 38 U.S.C. §4317. 22 38 U.S.C. §4318. a wiser choice for your future. 23 38 U.S.C. §4316(c). 24 38 U.S.C. §4311(a). There is also a prohibition against retaliation. 38 U.S.C. §4311(b). 25 38 U.S.C. §4311(c). 26 Robinson v. Morris Moore Chevrolet-Buick, 974 F. Supp. 571 (E.D. Tex. 1997); Smith v. School Bd. of Polk County, 205 F. Supp. 2d 1308 (M.D. Fla. 2002); Jordan v. Air Prods. & Chems., Inc., 225 F. Supp. 2d 1206 (C.D. Cal. 2002); Vander Wal v. Sykes Enters., Inc., 327 F. Supp. 2d 1075 (D. N.D. 2004). 27 Gillie-Harp v. Cardinal Health, Inc., 249 F. Supp. 2d 1113 (W.D. Wis. 2003); Schmauch v. Hands of Am. Mfg., Inc., 295 F. Supp. 2d 823 (S.D. Ohio. 2006). 28 Gummo v. Village of Depew, 75 F. 3d 98 (2d Cir. 1996); Hill v. Michelin North Am., Inc., 252 F. 3d 307 LEARN HOW YOU CAN GROW YOUR FUTURE WISELY (4th Cir. 2001); Leisek v. Brightwood Corp., 278 F. Call an ABA Retirement Funds Consultant at 3d 895 (9th Cir. 2002). 29 1-800-826-8901 www.abaretirement.com 38 U.S.C. §§4321, 4322, 4323. 30 38 U.S.C. §4323(a)(1), (2). 31 MIL. & VET. CODE §394. Acts prohibited include refusal of entrance into “any public entertainment or place of amusement.” MIL. & VET. CODE §394(c). This section seems to be the descendant of a statute enacted in reaction to treatment of guard members after the guard’s participation in the state’s repression of the San For a copy of the Prospectus with more complete information, including charges and expenses associated with the Program, or to speak to a Program consultant, call Francisco General Strike of 1934. See K. STARR, (800) 826-8901, or visit www.abaretirement.com or write ABA Retirement Funds ALIFORNIA P.O. Box 5142 • Boston, MA 02206-5142 • [email protected]. C 208-11 (2005). Be sure to read the Prospectus carefully before you invest or send money. 02.2006 32 MIL. & VET. CODE §395.06. 33 MIL. & VET. CODE §395.06(c).

22 Los Angeles Lawyer September 2006 LOS ANGELES COUNTY BAR ASSOCIATION 39th Annual Securities Regulation Seminar

Price $ 225 Early registration for all by Oct. 1, 2005 $ 325 Other LACBA Members

$ 250 CLE+PLUS Cardholders $ 375 All Others $ 270 Sponsoring Section Members $ 395 At the door payment for all $1,350 Buy five tickets at a reduced rate, and get the sixth ticket free (all five tickets must be purchased together and by October 1, 2005, to receive the special free offer) Call for special rates for government employees & law students Sponsored by the Topics Friday, October 28, 2005 Los Angeles County Bar Association ■ Recent Developments in 8:30 a.m. – 5:00 p.m. Business & Corporations Law Section Securities Laws Continental Breakfast and Luncheon Program Included and the U.S. Securities & Exchange Commission ■ The General Counsel’s Perspective Co-Sponsored by the Breakout Session One California Department of Corporations • Corporation Finance Roundtable State Bar of California • When it’s Criminal Millennium Biltmore Hotel Business Law Section • Mergers and Acquisitions Workshop 506 South Grand Avenue North American Securities Administrators Association, Inc. Breakout Session Two Los Angeles • Financing Small and Medium-Sized NASD Companies Program Registration • Securities Litigation Update • Executive Compensation For phone registration with Visa, Mastercard or American Express: call (213) 896-6560, M – F, 9 am – 4 pm. ■ 6.75 hours Telephone registration closes at noon Enforcement Developments CLE credit on the day before the program. ■ Ethics and the Securities including You may also register by Lawyer—the Attorney-Client 1.25 hours ethics visiting our Website at Privilege http://www.lacba.org No refunds after October 1, 2005. Program Code 009105

Program Steering Committee Speakers Include: John F. Hartigan Craig S.Andrews Preston DuFauchard Jonathan Layne PROGRAM CHAIR Moderator Commissioner, California Gibson Dunn & Crutcher LLP Morgan, Lewis & Bockius LLP Heller Ehrmann LLP Department of Corporations Randall R. Lee Randall R. Lee Seth Aronson Martin P. Dunn Director, SEC Paciﬁc Regional SEC LIAISON Deputy Director, SEC Division of Office Securities and Exchange Commission Moderator O’Melveny & Myers Corporation Finance William S. Lerach TeLae M. Ellis Lerach Coughlin Stoia Geller SECTION ADMINISTRATOR James D.C. Barrall Daniel Esters Los Angeles County Bar Association Latham & Watkins, LLP Jefferies & Company Rudman & Robbins LLP William Capps Christine Ewell Simon M. Lorne Jeffer, Mangels, Butler & U.S. Attorney’s Office, Central Vice Chairman, Millennium Marmaro LLP District of California Management LLC Brian G.Cartwright Robert C. Friese Hon. Stanley Sporkin General Counsel, Securities & Shartsis Friese & Ginsburg LLP Moderator Exchange Commission Joseph Giunta Weil, Gotshall & Manges LLP Linda Chatman Thomsen Moderator Brian A. Sun Director, SEC Division of Skadden, Arps, Slate, Meagher & Moderator Enforcement Flom, LLP Jones Day Christopher Cox Timothy Hart William F. Sullivan Chairman, Securities & Exchange Gibson, Dunn & Crutcher LLP Paul, Hastings, Janofsky & Walker Commission John F. Hartigan LLP Robert Denham Moderator Thomas Welk Moderator Morgan, Lewis & Bockius LLP Cooley Godward LLP Munger, Tolles & Olson LLP David J. Johnson Debra W. Yang S. James DiBernardo Moderator U.S. Attorney, Central District Moderator O’Melveny & Myers LLP of California Morgan, Lewis & Bockius LLP Mary Ellen Kanoff Moderator Latham & Watkins LLP by karl manheim and allan ides

The Unitary

NATIONAL SECURITY & THE LAW SPECIAL ISSUE Executive Federal courts have almost always rebuffed assertions of unchecked power by the executive branch.

early every American The struggle over the breadth of executive president has claimed power goes back to the founding of the coun- powers broader than try, but it has gained urgency during the those explicitly set administration of George W. Bush. One rea- forth in Article II of son for this is President Bush’s advocacy of a the U.S. Constitution. “unitary executive” theory, which posits that An early example is all national executive and administrative Thomas Jefferson’s assertion of power to powers reside with the president. According Nvoid 25 of 42 late-term judicial appointments to the theory, any effort to limit executive made by his predecessor, John Adams. Other power is unconstitutional—whether the effort notable examples include Abraham Lincoln’s involves the imposition of congressional or suspension of habeas corpus, Franklin judicial oversight on executive actions or the Roosevelt’s internment of Americans of creation of so-called independent agencies Japanese ancestry, Harry Truman’s seizure with limited autonomy. of the nation’s steel mills, and Richard Nixon’s The principle of separation of powers wiretappings, press injunctions, and asser- implied in the Constitution’s tripartite struc- tions of executive privilege. All of these ture of government is firmly rooted in actions were taken without congressional American history, culture, and tradition. The authority. Constitution also incorporates a system of American constitutional history is rich checks and balances through which the with seminal cases on executive power:1 branches share in one another’s powers. The Marbury v. Madison,2 Ex Parte Milligan,3 president’s veto power, for example, allows Korematsu v. United States,4 Youngstown the president to share in the legislative func- Sheet and Tube Company v. Sawyer,5 New tion. As the Supreme Court observed in York Times v. United States,6 United States Mistretta v. United States, “[T]he greatest v. Nixon.7 With one exception, these cases security against tyranny…lies not in a her- rejected the president’s claim of power. Even metic division among the Branches, but in a the decision in Korematsu upholding the carefully crafted system of checked and bal- challenged internment orders was eventually repudiated by all three branches of the U.S. Karl Manheim and Allan Ides are professors of law government.8 at Loyola Law School. KEN CORRAL

24 Los Angeles Lawyer September 2006 anced power within each Branch.”9 act in a way disapproved by Congress. The to the reform movement was a redoubling of Nevertheless, the operation of the sepa- theory of the unitary executive seeks to resolve efforts to consolidate and amplify presiden- ration of powers doctrine throughout U.S. his- these problems simplistically by locating the tial power. The theory of the unitary execu- tory reveals that the doctrine has proven widest possible array of powers in the exec- tive grew out of this reactionary response. exceedingly difficult to define with precision. utive branch. Despite the recent vintage of unitary exec- Each branch has ventured onto territory the utive theory, its adherents argue that the the- Constitution reserves for the other branches. Impetus for the Theory ory is doctrinally grounded in the text of the For years, Congress exercised a legislative The phrase “unitary executive” entered the Constitution, particularly in the “vesting” veto by reviewing and revising the actions of general public discourse during the January and “take care” clauses of Article II. They the executive branch.10 Federal courts are 2006 Senate hearings on the nomination of believe that the theory reflects an under- often accused of “legislating from the bench” Judge Samuel Alito to the Supreme Court. The standing of the original intent of constitutional by creating law rather than simply inter- nominee was questioned on his apparent structure, which, in their estimation, involved preting it. Of course, American courts endorsement of what some have described as strict lines of separation between legislative, adopted the common law system long before an obscure legal philosophy or doctrine.13 executive, and judicial functions.15 Of course, the ratification of the Constitution, so some The impetus for these questions was a 2001 it is quite possible that a modern theory of degree of judicial policy making is to be speech Alito had given during an event spon- constitutional law could have deep roots in expected. The precise confines of a branch’s sored by the Federalist Society: constitutional traditions. If so, any objec- power is often more a question of politics than When I was in OLC [the Office of tions to that theory ought to be tempered by constitutional law. Legal Counsel]…, we were strong a fidelity to constitutional principle. However, The branch with the greatest need to exer- proponents of the theory of the unitary the unitary executive theory has no consti- cise integrated powers is the executive. In executive, that all federal executive tutional roots aside from those borne of the administering and enforcing the laws created power is vested by the Constitution desire of its adherents. by Congress, it is inevitable that some degree in the President. And I thought then, In a masterful article titled “The President of quasi legislating and quasi adjudicating and I still think, that this theory best and the Administration,” professors Lawrence will occur. This is most apparent with admin- captures the meaning of the Consti- Lessig and Cass R. Sunstein, both propo- istrative agencies, which promulgate law tution’s text and structure….[T]he nents of a unitary administrative model, defin- (such as rules and regulations) and apply it (in case for a unitary executive seems, if itively and effectively dismantle any potential agency courts). The Supreme Court has con- anything, stronger today than it was in textualist or originalist arguments in favor of sistently adopted an approach to the separa- the 18th Century. that model.16 The authors establish that the tion of powers that permits the national gov- Alito’s endorsement of this theory may Founders recognized a distinction between ernment to have flexibility in the resolution seen innocuous and unremarkable. However, executive power and administrative power. of complex, contemporary problems while at the theory is anything but. The unitary exec- Executive powers were those that were tex- the same time ensuring against the excessive utive theory embraces and promotes a notion tually lodged in the office of the president, accumulation of power in any one branch.11 of consolidated presidential power that essen- such as the powers over war and foreign The three-part framework used by Justice tially isolates the executive branch from any affairs. All other powers were administra- Robert Jackson in Youngstown Sheet and type of congressional or judicial oversight. tive. The former belonged to the president by Tube Company v. Sawyer remains instruc- Also, it is not simply an academic theory: It virtue of the vesting clause;17 the latter could tive.12 Justice Jackson divided presidential has real-world consequences for the country be lodged in the executive or elsewhere at the action into three “zones,” each describing and for the international community. discretion of Congress. Consistent with this particular interactions with Congress. In Zone It is worthwhile to keep in mind that the model of presidential and congressional pow- 1, Congress has delegated power to the exec- unitary executive theory is a product of the ers, early presidents were given relatively utive or otherwise authorized its actions. Here, late twentieth century and not a legacy broad autonomy over the Departments of the president enjoys the full power vested in bequeathed from the Founders. The theory— War and Foreign Affairs—powers at least the federal government, and no separation which is more about power that it is about partially given to the president by the text of of powers problems arise. In Zone 2, Congress law—grew out of reactions to abuses of pres- Article II—but Congress retained adminis- is silent on a particular matter, but the presi- idential power during the late sixties and trative authority over the Department of the dent acts on it anyway. The need for unilat- early seventies. Such events as President Treasury and the Post Office—policy-making eral presidential action is balanced against Johnson’s fabricated Gulf of Tonkin incident powers that are vested in Congress by virtue any harms to constitutional rights or structure. and President Nixon’s secret war in of Article I. Zone 2 has been described as the “zone of twi- Cambodia, among many other similar abuses Given these nonunitarian practices, which light,” in which unstated imponderables are of presidential power, led to efforts to curb were followed well into the nineteenth cen- at play. Inevitably, policy judgments will deter- what was perceived as an increasingly impe- tury, the Founders clearly did not envision mine the outcome of constitutional challenges rial presidency. For example, the Independent anything like a unitary executive. Rather, the in Zone 2 cases. In Zone 3, Congress has Counsel Act of 1978, later incorporated into lines of authority and separation were blurred, denied the president authority to act in a par- the Ethics in Government Act, was created as indistinct, and depended more on the function ticular way. The president may defy Congress a response to the Watergate scandal. It of an office rather than on the fact that an only in accordance with the executive’s reflected widely held perceptions regarding the office with administrative duties had been unshared Article II powers. inability of the executive branch to investigate created. While Justice Jackson’s approach pro- its own potential corruption. A recent exam- The theory of the unitary executive was vides a useful framework, it leaves the most ple of this phenomenon is President Bush’s initially crafted by Reagan administration perplexing problems unresolved, particularly decision to block the Justice Department officials as a justification for their efforts to those that arise in Zone 3. These include from investigating the legality of the secret establish “a highly centralized bureaucratic whether the president has unilateral power domestic surveillance program he had structure of government that would ensure (either inherent or implied from Article II) to approved.14 The almost immediate response that ultimate control of decision making in all

26 Los Angeles Lawyer September 2006 Executive Branch agencies, including inde- we think is more than the text will bear.”24 officers or employees of the executive branch. pendent regulatory agencies, would rest in the Only Justice Antonin Scalia, the lone dis- It also means that Congress has no authority hands of the President or his delegate.”18 senter, accepted the administration’s vision. In to create independent regulatory agencies Unitary executive theory, in this version, was doing so, Scalia speciﬁcally referred to and de- within the executive branch whose officials a theory of administrative law. According to fended the theory of the unitary executive.25 are not fully accountable to the president. Nor then-Attorney General Edwin Meese: The theory of the unitary executive did not does Congress have authority to vest execu- [F]ederal agencies performing executive functions are themselves properly agents of the executive. They are not “quasi” this or “quasi” that. In the tripartite scheme of government a body with enforcement powers is part of the Executive Branch of government. Power granted by Congress should properly be understood as power granted to the Executive.19 According to these early advocates of the unitary executive theory, the president, as the head of the executive branch, should have the authority to control the operations of that branch. But this iteration of the theory ignores the modern realities of government and politics, and it belies the broader implications of the theory, some of which place the executive branch above traditional constitutional checks and balances and essentially make the president a temporary monarch. Thus the Reagan administration claimed and exercised a unilateral authority to ignore or circumvent congressional directives that were thought to interfere with executive branch prerogatives. For example, the administration knowingly and ﬂagrantly violated the Boland Amendment, which prohibited the federal government from providing military aid for the overthrow of the Sandinista government in Nicaragua. These actions resulted in the Iran-Contra scandal. The Reagan administration’s efforts to apply and enforce its unitary executive theory met with an almost uniform judicial resis- tance. Perhaps the most noteworthy example occurred in Morrison v. Olson,20 in which the Reagan administration endorsed Theodore Olson’s constitutional challenge to the independent counsel provisions of the Ethics in fade away when Ronald Reagan left office. tive branch officers with a discretion that is Government Act. In its amicus brief,21 the Instead, it moved to the academy, where it unreviewable by the president. Under this Reagan administration argued that Article became fodder for the publish-or-perish obli- model, the Federal Communications Com- II’s vesting clause22 required that all members gations of former Reagan administration offi- mission, the Federal Reserve Board, and the of the executive branch be subordinate to cials.26 It fermented slowly in the heat of Federal Bureau of Investigation would all be the president’s will and thus removable by the academic debate and awaited its eventual unconstitutional as presently constituted. president at will.23 The brief further argued return to Washington. In 2001, the theory It may seem that the unitary executive that the for-cause removal provision in the act found a welcome home in the administration theory proposes no more than a particular violated that principle. of George W. Bush. view of administrative law, one that simply The Supreme Court, by a 7-1 margin, insulates the internal operations of the exec- rejected the administration’s argument. The Exclusive and Plenary utive branch from congressional tinkering. But Court, in an opinion authored by Chief Justice At its most fundamental level, the modern the- the theory actually is a bold, revisionist analy- William Rehnquist, stated, “This rigid demar- ory of the unitary executive postulates that the sis of constitutional law, and its contours are cation—a demarcation incapable of being authority to enforce federal law and to imple- not bounded by the discipline of adminis- altered by law in the slightest degree, and ment federal policy rests exclusively in the trative law. At its core, the unitary executive applicable to tens of thousands of holders of executive branch and ultimately, and most theory is about the exclusivity and plenary offices neither known nor foreseen by the importantly, in the president. This means nature of the powers that are said to be vested framers—depends upon an extrapolation that the president retains a complete and by the Constitution solely in the executive from general constitutional language which unreviewable authority to remove any and all branch. For adherents to the theory, the

Los Angeles Lawyer September 2006 27 notion of exclusivity implies a strong princi- pretation of the law.33 ing statements demonstrates a ‘radically ple of noninterference from the other The Meese strategy was designed by then- expansive view’ of executive power which branches. Thus, the unitary executive the- Deputy Assistant Attorney General Samuel ‘amounts to a claim that he is impervious to ory is designed to justify and make constitu- Alito, who wrote to the Department of Justice the laws that Congress enacts’ and repre- tional a type of presidency that is largely Litigation Strategy Working Group: “Our sents a serious assault on the constitutional insulated from the checks and balances nor- primary objective is to ensure that Presidential system of checks and balances.”43 mally associated with a republican form of signing statements assume their rightful place For example, in signing the Defense government. The primary role for Congress in the interpretation of legislation [so as to] Supplemental Appropriations Bill for 2006, in this brave new world of unified presiden- increase the power of the Executive to shape which contained the so-called “torture ban” tial power is to provide the necessary fund- the law.”34 Alito anticipated congressional sponsored by Senator John McCain, President ing for presidential initiative. In short, the the- opposition due to the “novelty of the proce- Bush stated: ory of the unitary executive is designed to dure and the potential increase of presiden- The executive branch shall construe maximize presidential power and minimize tial power,” but he nonetheless felt it impor- Title X in Division A of the Act, relat- constitutional restraints on that power, cre- tant that the president have “the last word on ing to [treatment of] detainees, in a ating a version of the presidency that is not questions of [statutory] interpretation.”35 manner consistent with the constitu- only not traceable to the Founders but one Creating “executive history” through the tional authority of the President to that would have been anathema to them. use of signing statements is a novel device to supervise the unitary executive branch The ramifications of the theory are pro- expand the president’s legislative power. The and as Commander in Chief and con- found. For example, just as the generic exec- Constitution grants the president two limited sistent with the constitutional limita- utive power is vested in the president by powers in the legislative arena: to “recom- tions on the judicial power….[T]he Article II, so too are the specific powers over mend to [Congress] such measures as he shall executive branch shall construe sec- war and foreign affairs. Following the logic judge necessary and expedient,”36 and to tion 1005 to preclude the Federal courts of the unitary executive theory, the presi- sign or veto bills.37 These are not insubstan- from exercising subject matter juris- dent’s power over these matters is also exclu- tial powers, but they do not give the president diction over any [judicial challenge by sive and plenary—and not subject to direct a line item veto over the parts of a bill that enemy combatants], including appli- congressional or judicial oversight. Statutes, the president dislikes nor a power to amend cations for writs of habeas corpus.44 treaties, and provisions of the Bill of Rights bills after they are passed.38 Indeed, for two Three features of the president’s signing that ostensibly limit the president’s discre- centuries, presidents had to choose between statement were designed to advance his the- tion in the conduct of war and foreign affairs signing bills despite their objection to certain ory of the unitary executive. First is his insis- would violate the principle of the unitary provisions in them or vetoing them. These lim- tence on an authority to interpret and enforce executive by transgressing presidential prero- its on the president’s legislative functions the statute according to his own theory of gative. This is the precise version of the uni- invariably lead to policy compromises presidential power, rather than accede to lim- tary executive theory defended by Justice between the White House and Congress. itations imposed by Congress or even the Clarence Thomas in his dissent in Hamdi v. But President Reagan found a third route: courts. As conservative activist Grover Nor- Rumsfeld.27 Essentially, the unitary executive Sign a bill and then, via a signing statement, quist recently said, under this theory, “you theory instructs us that aside from political excise or revise provisions he disliked. This is don’t have a constitution; you have a king.”45 accountability, presidential power must re- far preferable, for a unitary executive, than Second, the signing statement operates as main unrestrained by the niceties of the law. having to negotiate language with Congress a directive to agencies and personnel in the or vetoing the bill and taking responsibility executive branch, subjecting them to presi- Signing Statements for the political fallout. Congress can override dential control. It has become commonplace An example of the unitary executive theory a veto and enact a law over the president’s for Congress to impose limits and require- in action is President Bush’s use of signing objection. But a signed bill, revised by sign- ments on agencies. For example, the Defense statements, which he often issues when signing statement, divests Congress of its consti- Authorization Act for 2006 requires the ing a bill into law. Signing statements were tutional power to craft legislative policy.39 In Department of Defense to provide to the used occasionally during the ninteenth century effect, the president has exercised an absolute House and Senate Intelligence Committees “a to express presidential misgivings about parts veto—a power the Constitution denies him.40 report providing a comprehensive inventory of bills that were being signed.28 The state- When this device is coupled with another of Department of Defense intelligence and ments were rare partly because of congres- feature of the unitary executive—total control intelligence-related programs and projects.”46 sional opposition;29 some presidents, includ- over administrative agencies—presidential This was in response to the controversial ing Franklin Pierce, even apologized for power is concentrated and consolidated. reports of domestic spying authorized by issuing them.30 From the presidency of James The Bush administration has vastly secret executive order. Yet, in his January 6, Monroe through Jimmy Carter’s term, 75 expanded the use of signing statements to 2006, signing statement, President Bush signing statements were issued.31 revise, rather than veto, laws. In six years in directed the Department of Defense to essen- Consistent with the push toward a unitary office, the president has only vetoed one bill tially disregard the statute.47 Such directives executive, presidential signing statements but has issued 130 signing statements object- put at risk the delicate balance between exec- gained prominence during the Reagan ing to more than 750 laws.41 More important utive and legislative power that has emerged administration. In 1986, Attorney General than the numbers is their unconstitutionality. since the New Deal. Meese announced his effort to “improve In August an American Bar Association task Third, President Bush’s signing statement statutory interpretation by making clear the force concluded in a report that the president’s is notable by its very issuance and the sig- President’s understanding of legislation at strategy is inconsistent with “the limitations nificance he intends for it. To be sure, presi- the time he signs a bill.”32 He arranged with imposed on his office by the Constitution dents often issue public statements as part of West Publishing Company to have the state- [and] poses a serious threat to the rule of the bill signing process, often for ceremonial ments published alongside statutory legisla- law.”42 The report further noted that “the use, or political purposes. But President Bush’s tive history to present the president’s inter- frequency, and nature of the President’s sign- signing statements are usually private, not

28 Los Angeles Lawyer September 2006 meant to be informative but to be controlling withhold evidence (the so-called Watergate history or provide alternate interpretations law. They are implementation directives to tapes) from a criminal proceeding. Nixon than those formed by Congress is a violation administrative agencies or expressions of dis- argued that the executive determines if and of basic separation of powers principles. agreement with Congress, or both. They are when executive privilege applies.58 For- If the president can execute the laws also intended to serve as a new and inde- tunately, the Supreme Court rejected the rad- according to his own legal interpretation, pendent record of executive intent to guide a ical notion that presidents are entitled to then he can authorize conduct that Congress court’s statutory construction in a manner determine the scope of their own power. or the Constitution forbids. He can authorize favorable to presidential policy and away Federal courts give deference to agency warrantless searches of opposition groups, from congressional policy.48 interpretations under Chevron U.S.A. Inc. v. military action against friendly nations,65 NRDC.59 Shouldn’t presidents be entitled to domestic spying in violation of the Foreign Refusal to “Faithfully Execute the Law” the same deference? Perhaps they are to the Intelligence Surveillance Act,66 or any action President Reagan’s efforts at creating a uni- extent that Congress confers discretion on he deems necessary to protect national secu- tary executive were not limited to his signing presidential action, as exemplified by the rity. Indeed, he could wage war in violation statements. He routinely defied statutes (such congressional authorizations for the use of of the War Powers Resolution67 or by secur- as the Anti-Apartheid Act49) that he deemed military force in Afghanistan and Iraq.60 But ing congressional assent with fabricated evi- to impinge on his constitutional power. He when Congress is explicit regarding the range dence. The options available to a unitary was “the first President in over a century and of permissible executive action, no deference executive are limitless. only the second in history to defy a statute is given. For example, in Gonzales v. that was enacted over his veto.”50 The prac- Oregon,61 the Supreme Court refused to defer The War Presidency tice was continued by his successor, President to the attorney general when he interpreted At its extreme, unitary executive theory holds George H. W. Bush. Together, “they assailed the Controlled Substances Act as prohibiting that executive power is as broad as the exec- the validity of more than 200 statutes, half the use of prescription drugs for physician- utive says it is. The unitary executive the- again as many as all of their predecessors assisted suicide. The court held that the act ory—when blended with other theories of combined.”51 provided no such discretion to him. Whether inherent power, especially during wartime— Meese has argued that constitutional inter- a statute confers discretion is a judicial ques- too often leads to excesses, such as those pretation is not the sole province of the tion in the first instance. Deferring to execu- that have occurred in the conduct of the war Supreme Court: “The executive and legislative interpretations of that threshold question on terror. tive no less than the judicial…has a duty to is circular reasoning of the worst kind. In The president is commander-in-chief of the interpret the Constitution in the performance the absence of discretion, a federal agency armed forces. He also may have an inherent of its official functions.”52 Of course, every must follow the command of Congress, to the power to protect the nation from attack. state and federal official must uphold the extent it is constitutional. The president must Advocates of the unitary executive argue that Constitution, a duty that may require them do likewise. the president’s vital powers should not be to interpret it, at least in the absence of other The Constitution requires “bicameralism second-guessed by persons without diplo- controlling interpretations.53 But an official and presentment.”62 These may seem like matic responsibilities or who lack access to enjoined to enforce the law cannot refuse to mere technicalities, more in the nature of intelligence. In their view, the president’s do so simply because he or she deems it procedural regularity than central features actions in matters of national security should unconstitutional.54 If the rule were to the of republican government. But in INS v. not be subject to a separation of powers contrary, every executive official would have Chadha, the Supreme Court treated them as analysis. As Justice Thomas has argued: the power to unilaterally suspend the laws. bulwarks of our system of checks and bal- The Founders intended that the Even the King of England was divested of the ances.63 Every measure of legislative conse- President have primary responsibil- “suspending power” a century before the quence must be agreed to—not just in prin- ity—along with the necessary power— American Revolution.55 Can it be that the fed- ciple but also in letter—by the House, the to protect the national security and to eral Constitution restored this royal prerog- Senate, and the president (except in the case conduct the Nation’s foreign relations. ative to a unitary executive?56 of a veto override). These are democracy- They did so principally because the A president’s interpretation of a law is enforcing provisions of no little consequence. structural advantages of a unitary highly relevant to his decision whether to Yet when the president provides his own Executive are essential in these sign or veto it. He can even come to his own binding interpretation of a law after Congress domains.68 conclusion of constitutionality during that has concluded its business, the action under- A principal architect of this legal theory process and share that with the nation. But mines the core protections of divided gov- is John Yoo, a professor at Boalt Hall and for- can he revise basic mandates in the law? Of ernment. In short, the president cannot exer- mer deputy assistant attorney general in the course not, but that is exactly what recent cise a line item veto over expenditures or Office of Legal Counsel. Yoo is best known presidents have tried to do. The separation of substantive law.64 for the infamous “Bybee torture memo,”69 powers problem is compounded when con- The Constitution enjoins the president to which he helped draft. The memo gained stitutional interpretations diverge. Can the “faithfully execute the laws.” By whose inter- notoriety for its narrow definition of torture, president operate under his interpretation of pretation? If he is to execute the laws as he allowing the infliction of pain unless “equiv- a law or the Constitution if the interpretation interprets them, then having to do so “faith- alent in intensity…to organ failure, impair- differs from that of Congress or a court? fully” is rather pointless. Instead, the presi- ment of bodily function, or even death.” But This country would have to overrule Marbury dent must be faithful to the law as passed by it also argues that the federal torture statute70 v. Madison57 and two centuries of constitu- Congress and interpreted by the courts. If is “unconstitutional if applied to interroga- tional culture to give the president that power. the president takes action at odds with con- tions undertaken of enemy combatants pur- gressional intent, the president is squarely in suant to the President’s powers as comman- Presidential Primacy Justice Jackson’s Zone 3—and the action is der-in-chief.” More broadly, “courts and In United States v. Nixon, President Nixon presumptively unconstitutional. The use of prosecutors should reject prosecutions that unsuccessfully asserted executive privilege to signing statements to “correct” legislative apply federal criminal laws to activity that is

Los Angeles Lawyer September 2006 29

authorized pursuant to one of the President’s constitutional powers.” Yoo also authored another memo of the same date71 in which he argued that the Torture Convention72 did not impose additional limitations on interrogation techniques WE ARE A LAW FIRM. used by the United States because the ﬁrst Bush administration included an “understanding” to the contrary in its submittal of WE FORM AND the treaty. Moreover, torture by American interrogators would not be considered a “war crime” because President Bush has conclu- MAINTAIN ENTITIES. sively determined that the Geneva Convention does not apply to suspected al Qaeda oper- atives.73 In other words, neither federal law nor international law can constrain the actions of the unitary executive. As Richard Nixon stated, after he resigned the presidency, “When the president does it, that means that it is not illegal.”74 The theory of the unitary executive is designed to validate a particular vision of presidential authority in which a vast array of governmental powers are consolidated into the presidency and insulated from the checks and balances so integral to a republican form of government. Its proponents seek the cover of the Constitution, but in truth their theory wreaks havoc on the most fundamental principles of American constitutional traditions. This theory and the practices that emanate from it need to be resound- ingly rejected by the American public. As former Justice Sandra Day O’Connor recently said: “It takes a lot of degeneration before a THAT’S ALL. country falls into dictatorship, but we should avoid these ends by avoiding these begin- nings.”75 ■

1 This issue predates the Constitution. Indeed, the Declaration of Independence listed many abuses of royal power. 2 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 3 Ex Parte Milligan, 71 U.S. 2 (1866). 4 Korematsu v. United States, 323 U.S. 214 (1944). 5 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 6 New York Times v. United States, 403 U.S. 713 (1971). 7 United States v. Nixon, 418 U.S. 683 (1974). 8 Formal apologies to the internees were issued by President George H. W. Bush and President Bill Clinton; see also The Civil Liberties Act of 1988 (reparations for surviving detainees); Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984) (reversing Korematsu’s conviction). 9 Mistretta v. United States, 488 U.S. 361, 381 (1989). 10 See INS v. Chadha, 462 U.S. 919 (1983) (legislative veto declared unconstitutional). 11 Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986). 12 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 592 (1952) (Jackson, J., concurring). 13 Dana Milbank, In Cheney’s Shadow, Counsel Pushes Los Angeles San Diego San Francisco Toll-Free the Conservative Cause, WASHINGTON POST, Oct. 11, 310.772.7700 858.550.0191 415.876.6210 866.JEFF UNGER 2004, at A21. 14 Bush Blocked Ethics Inquiry, Official Says, N.Y. TIMES §A, at 14 (July 19, 2006).

32 Los Angeles Lawyer September 2006 15 See, e.g., Morrison v. Olsen, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting). 16 Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994). DepoSums 17 U.S. CONST. art. II, §1, cl. 1. 18 Morton Rosenberg, Congress’s Prerogative over DEPOSITION SUMMARIES Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan Administration’s Theory of the ➤ Experienced ➤ 3-step proof-reading ➤ E-mailed direct to Unitary Executive, 57 GEO. WASH. L. REV. 627, 628- 29 (1989). summarizers process your computer 19 Id. at 629 n.4. 20 Morrison v. Olson, 487 U.S. 654 (1988). 21 Morrison v. Olson, 1988 WL 1031600 (Amicus Los Angeles’ Finest Digesting Service Brief of the United States). 22 U.S. CONST. art. II, §1, cl. 1. FOR MORE INFORMATION: 23 Morrison, 1988 WL 1031600, Amicus Brief at *8. 24 Morrison, 487 U.S. at 690 n.29. 800.789.DEPO • www.deposums.biz 25 Id. at 697, 704-15, 727-32 (Scalia, J., dissenting). 26 See, e.g., Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992); Steven G. Calabresi, Some Normative Arguments for the Unitary To sign up for our free Executive, 48 ARK. L. REV. 23 (1995). 27 Hamdi v. Rumsfeld, 542 U.S. 507, 579 (2004) electronic newsletter (Thomas, J., dissenting). 28 See LOUIS FISHER,CONSTITUTIONAL CONFLICTS CASE DEVELOPMENTS BETWEEN CONGRESS AND THE PRESIDENT 128 (3d ed.). IN EMPLOYMENT & 29 Congress reacted to a signing statement issued by BUSINESS LAW President John Tyler in 1843, branding it “a defacement of the public records and archives” and an “evil exam- visit our web site at ple for the future.” See Christopher May, Presidential www.socalmediator.com Deﬁance of “Unconstitutional” Laws: Reviving the Royal Prerogative, 21 HASTINGS CONST. L.Q. 865, or call us at 929 (1994) (quoting H.R. REP. NO. 909, 27th Cong., (949) 852-0550 2d Sess. 2, 12 (1842)). 30 Id. 31 See http://en.wikipedia.org/wiki/Unitary_executive. 32 Address by Attorney General Edwin Meese III to the National Press Club, Washington, D.C. (Feb. 25, 1986). 33 See U.S. Code, Congressional & Administrative News (USCCAN) (“Legislative History”). 34 Memorandum from Deputy Assistant Attorney General Samuel Alito to the Department of Justice Litigation Strategy Working Group, Feb. 5, 1986, available at http://www.archives.gov/news/samuel- alito/accession-060-89-269/Acc060-89-269-box6-SG- JACK TRIMARCO & ASSOCIATES LSWG-AlitotoLSWG-Feb1986.pdf. 35 Id. POLYGRAPH/INVESTIGATIONS, INC. 36 U.S. CONST. art. II, §3. 37 U.S. CONST. art. I, §7, ¶¶2, 3. 38 See Clinton v. City of New York, 524 U.S. 417 (1998). 39 See Marc Garber & Kurt Wimmer, Presidential Signing Statements as Interpretations of Legislative 9454 Wilshire Blvd. Intent: An Executive Aggrandizement of Power, 24 HARV. J. ON LEGIS. 363 (1987). Sixth Floor 40 See May, supra note 29, at 878. 41 See Dahlia Lithwick, Sign Here: Presidential Signing Beverly Hills, CA 90212 Statements Are More Than Just Executive Branch Lunacy, at http://www.slate.com/id/2134919 (Jan. 30, (310) 247-2637 TEL 2006). 42 AMERICAN BAR ASSOCIATION, TASK FORCE ON (310) 306-2720 FAX PRESIDENTIAL SIGNING STATEMENTS AND THE SEPARATION OF POWERS DOCTRINE 20 (Aug. 2006), available at Jack Trimarco - President http://www.abanet.org/op/signingstatements. Former Polygraph Unit Chief 43 Id. at 27 (citing Neil Kinkopf, Signing Statements and Los Angeles F.B.I. (1990-1998) the President’s Authority to Refuse to Enforce the email: [email protected] Law, available at American Constitution Society, CA. P.I. #20970 www.jacktrimarco.com http://www.acslaw.org/node/2965). 44 President’s Statement on Signing of H.R. 2863, the Member Society of Former Special Agents Former Polygraph Inspection Team Leader Department of Defense, Emergency Supplemental Federal Bureau of Investigation Office of Counter Intelligence Appropriations to Address Hurricanes in the Gulf of U.S. Department of Energy Mexico, and Pandemic Inﬂuenza Act, 2006, available at http://www.whitehouse.gov/news/releases /2005/12/20051230-8.html (emphasis added).

Los Angeles Lawyer September 2006 33 45 See Elizabeth Drew, Power Grab, THE NEW YORK REVIEW OF BOOKS, June 22, 2006, at 10. – Dale A. Eleniak – 46 National Defense Authorization Act for Fiscal Year Expert Witness/Litigation Analysis 2006 §932(a). 47 According to the president’s signing statement, “The Real Estate/Commercial & Residential executive branch shall construe such provisions in a manner consistent with the President’s constitutional • Standards of Care, Standards and Practices • Broker Supervison authority to withhold information the disclosure of • Agency and Disclosure which could impair foreign relations, national security, the deliberative processes of the Executive, or the per- Attorney, RE broker, C.A.R. panel attorney, DRE Approved Instructor, over 3,000 real estate formance of the Executive’s constitutional duties.” inquiries per year since 1991, author of “The Six Page Deposit Receipt” and over 400 R/E related President’s Statement on H.R. 1815, the National articles published as “Dales Legal Corner.” Defense Authorization Act for Fiscal Year 2006, available at http://www.whitehouse.gov/news/releases TEL 805-579-7834 ■ Dale A. Eleniak, PLC ■ FAX 805-579-7845 /2006/01/20060106-12.html. 633 BRECKENRIDGE PLACE, SIMI VALLEY CA 93065 48 See Christopher S. Kelley, The Unitary Executive and [email protected] the Presidential Signing Statement (2003) (Ph.D. dis- sertation, Miami University). 49 The Anti-Apartheid Act of Oct. 2, 1986, Pub. L. No. 99-440, 100 Stat. 1086. 50 May, supra note 29, at 979. 51 Id. at 980. 52 Edwin Meese III, Perspective on the Authoritativeness of Supreme Court Decision: The Law of the Constitution, 61 TUL. L. REV. 979, 986 (1987). 53 See Bowsher v. Synar, 478 U.S. 714, 733 (1986) (“Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.”). 54 There may be limited circumstances in which a president may decline to enforce a patently unconstitutional law. See May, supra note 29, at 988. 55 Id. at 869; see also Memorandum from Walter Dellinger to the Counsel to the President, The Legal Signiﬁcance of Presidential Signing Statements (Nov. 3, 1993), available at http://www.usdoj.gov/olc /signing.htm. 56 May, supra note 29, at 977. 57 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). See also Cooper v. Aaron, 358 U.S. 1 (1958). 58 United States v. Nixon, 418 U.S. 683, 693 (1974). 59 Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). 60 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001); Authorization for Use of Military Force Against Iraq, Pub. L. No. 107- 243, 116 Stat. 1497-1502 (2002). 61 Gonzales v. Oregon, 126 S. Ct. 904 (Jan. 17, 2006). 62 U.S. CONST. art. I, §7. 63 INS v. Chadha, 462 U.S. 919 (1983). 64 Clinton v. City of New York, 524 U.S. 417 (1998). 65 Act of Aug. 9, 1955, Pub. L. No. 84-294, 69 Stat. 579. 66 50 U.S.C. §§1801 et seq. 67 War Powers Resolution, Pub. L. No. 93-148 (1973). 68 Hamdi v. Rumsfeld, 542 U.S. 507, 580 (2004) (Thomas, J., dissenting). 69 Memorandum by Jay S. Bybee to Alberto Gonzales, Counsel to the President, Aug. 1, 2002. Shortly after authoring the memo, President Bush appointed Bybee to the Ninth Circuit U.S. Court of Appeals. Bybee was conﬁrmed on March 13, 2003. 70 18 U.S.C. §§2340 et seq. 71 Memorandum from John C. Yoo to Alberto Gonzales, Counsel to the President, Aug. 1, 2002. 72 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (Dec. 10, 1984). 73 Yoo’s conclusion is undermined by the Supreme Court’s decision in Hamdan v. Rumsfeld, which holds that the Geneva Convention applies to Guantanamo detainees. Hamdan, 126 S. Ct. 2749 (2006). 74 From an interview conducted by David Frost, May 19, 1977. 75 Speech by former Justice Sandra Day O’Connor at Georgetown University, as quoted by Nina Totenberg, NPR Morning Edition, Mar. 10, 2006.

34 Los Angeles Lawyer September 2006 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 37.

by john d. cline and k. c. maxwell Criminal

NATIONAL SECURITY Prosecutions & THE LAW SPECIAL ISSUE and Classiﬁed Information The use of classiﬁed information in court proceedings imposes unique burdens on the defense

he September 11 attacks information at trial. The court must strike a have led to a heightened balance between the government’s national emphasis on protecting security interest and the defendant’s Fifth national security through and Sixth Amendment right to present a criminal prosecutions. defense. These federal criminal Through the Classified Information cases increasingly involve Procedures Act,1 enacted in 1980, Congress classified information. For example, classified sought to address these competing interests Tinformation issues may arise in terrorism and to solve the problem of “graymail”—the cases, espionage cases, export control cases, threat by a defendant to reveal classified and even corruption cases. In prosecutions as information in open court without an oppor- varied as those of Oliver North, Robert tunity for the government to object. CIPA Hanssen, Wen Ho Lee, and Zacarias Mous- governs federal criminal cases2 from before saoui, classified information has played a indictment through trial. As the title of the act crucial role. suggests, Congress intended CIPA to be purely Cases involving classified information procedural; the statute contains no substan- place unique demands on the prosecution, tive standards. the defense, and the court. The prosecution The legislative history of CIPA declares must negotiate with the intelligence agencies that the defendant “should not stand in a that originate the information, craft the worse position, because of the fact that clas- charges to reduce the amount of classified sified information is involved, than he would information necessary for the case, and without this Act.”3 Despite this legislative address defense requests for the information intent, CIPA imposes extraordinary and after indictment. The defense must work under difficult conditions (usually in a secure John D. Cline and K. C. Maxwell are attorneys at room at the courthouse). It must fight even Jones Day in San Francisco. They have participated harder than usual to obtain discovery, and it in the defense of several cases involving classified must disclose far more of its strategy than it information, including United States v. Wen Ho normally does if it wants to use classified Lee and United States v. James J. Smith.

Los Angeles Lawyer September 2006 35 largely one-sided disclosure burdens on the sion whether to prosecute a violation of the potential defendant never receives access defense—and courts have uniformly rejected Federal law in which, in the judgment of the to classified information preindictment, and constitutional challenges to these disclosure Attorney General, there is a possibility that defense counsel rarely does. In insider cases, obligations.4 Also, CIPA imposes substan- classified information will be revealed.” In by contrast, the government may grant cleared tial practical constraints on defense counsel, 1980, then-Attorney General William French defense counsel, and sometimes even the who must do much of their work in a secure Smith established guidelines in response to potential defendant, access to classified infor- room and who often cannot analyze key doc- Section 12. The guidelines require the DOJ to mation to facilitate a resolution of the case. uments, interview witnesses, or even review weigh the benefits to the government of pros- their own notes in their offices because of ecuting the case against the potential harm to Postindictment and Prediscovery rules governing the handling of classified national security from the foreseeable dis- Soon after indictment in a case involving information. closure of classified information at trial. classified information, the parties and the Although CIPA procedures do not change CIPA has no provisions that regulate the court must take several steps to address the from case to case, their practical application potential defendant’s conduct preindictment. logistics of handling the information. At the depends on the nature of the alleged offense The extent to which the potential defendant outset, the court enters a protective order and the extent of the defendant’s prior access and his or her counsel receive access to clas- under CIPA Section 3.7 The protective order to the classified information. “Outsider” sified information preindictment rests in the sets the conditions under which defense coun- cases—for example, terrorism cases—involve government’s discretion. In outsider cases, sel, the defendant, and potential defense wit- defendants who have never had access to classified information. The defendant rarely is allowed to see relevant classified informa- Civil Cases and the State Secrets Privilege tion, and even defense counsel with the nec- In criminal cases, the government has no absolute privilege that allows it to deny the defendant access essary security clearance may receive nothing to classified information that is material to the defense. As the Supreme Court declared more than a half- more than unclassified summaries of the century ago, “[S]ince the Government which prosecutes an accused also has the duty to see that justice underlying classified information. “Insider” is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental priv- cases, by contrast, involve defendants who ileges to deprive the accused of anything which might be material to his defense.”1 have had access to classified information in In civil cases, by contrast, the government may invoke the “state secrets” privilege to deny access connection with their work and are charged to information that, if disclosed, would harm national security.2 When properly invoked—by the head of with job-related offenses. An example of the agency with responsibility for the information, based on the agency head’s personal knowledge— insider cases are those that were brought the state secrets privilege is absolute; it cannot be overcome no matter how great the showing of need against the Iran-Contra defendants. Both the for the information.3 And if the information at issue goes to the core of the claim or a potential defense, defendant and defense counsel generally then the court must dismiss the case.4 The government may invoke the privilege in suits between pri- receive access to almost all relevant classified vate parties and in suits in which it is the defendant. information. The central battle in insider The government has invoked the state secrets privilege with increasing frequency in recent years.5 cases turns on the defendant’s ability to pre- In May 2006, for example, the government obtained the dismissal of a suit brought by Khaled El-Masri sent classified information in his or her defense alleging violations of his constitutional rights through the CIA extraordinary rendition program. The dis- at trial. trict court acknowledged that “if El-Masri’s allegations are true or essentially true, then all fair-minded Before Indictment people…must…agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy.” In light of the state secrets privilege, however, the court concluded that “the only sources of CIPA and related Department of Justice guide- that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch.”6 The gov- lines impose two principal preindictment ernment has also invoked the privilege to obtain the dismissal of, for example, 1) Notra Trulock’s suit against obligations on the government in a case that Wen Ho Lee,7 2) a whistleblower suit against the Department of Justice,8 and 3) an employment dis- may implicate classified information: coor- crimination case against the CIA.9 dination and evaluation. In a rare setback for the government, Chief Judge Vaughn R. Walker of the U.S. District Court for the First, the DOJ—principally through the Northern District of California recently denied the government’s motion to dismiss the suit brought Internal Security Section of the Criminal against AT&T for its alleged complicity in illegal domestic surveillance by the National Security Agency. Division—must coordinate with the intelli- Judge Walker concluded that the government and AT&T had disclosed enough information about the pro- gence agencies that originated the classified gram publicly that at least some discovery could proceed without violating the state secrets privilege. The information. CIPA Section 9A,5 which was court left open the possibility that the privilege could require dismissal at a later point in the litigation.10— added in the wake of the Wen Ho Lee pros- J.D.C. & K.C.M. ecution, requires DOJ officials to 1) brief the senior official of the originating intelligence 1 United States v. Reynolds, 345 U.S. 1, 12 (1953); see, e.g., Jencks v. United States, 353 U.S. 657, 671 (1957); United States v. agency “as soon as practicable after [the Andolschek, 142 F. 2d 503, 506 (2d Cir. 1944). DOJ] determine[s] that a prosecution or 2 See, e.g., Sterling v. Tenet, 416 F. 3d 338, 346 (4th Cir. 2005), cert. denied, 126 S. Ct. 1052 (2006); Kasza v. Browner, 133 F. potential prosecution could result” and 2) 3d 1159, 1165-67 (9th Cir. 1998); Ellsberg v. Mitchell, 709 F. 2d 51, 56 (D.C. Cir. 1983). provide further briefings as necessary “to 3 See, e.g., Kasza, 133 F. 3d at 1166; In re Under Seal, 945 F. 2d 1285, 1288 (4th Cir. 1991); Halkin v. Helms, 690 F. 2d 977, 990 keep the senior agency official concerned (D.C. Cir. 1982). 4 See, e.g., Sterling, 416 F. 3d at 347-48; Kasza, 133 F. 3d at 1166-67. fully and currently informed of the status of 5 See The State Secrets Privilege: Selected Case Files, at http://www.fas.org/sgp/jud/statesec/index.html. the prosecution.” 6 El-Masri v. Tenet, 2006 U.S. Dist. LEXIS 34577, at *28-*29 (E.D. Va. May 12, 2006). Second, the DOJ must evaluate whether 7 Trulock v. Lee, 66 Fed. Appx. 472 (4th Cir. 2003) (unpublished). to proceed with the prosecution in light of the 8 Edmonds v. United States Dep’t of Justice, 323 F. Supp. 2d 65 (D. D.C. 2004), aff’d mem., 161 Fed. Appx. 6 (D.C. Cir.), cert. classified information issues. Under CIPA denied, 126 S. Ct. 734 (2005). 9 Sterling v. Tenet, 416 F. 3d 338, 347-48 (4th Cir. 2005), cert. denied, 126 S. Ct. 1052 (2006). Section 12,6 the U.S. attorney general must 10 Hepting v. AT&T Corp., Case No. C 06-0672-VRW, Order (N.D. Cal. July 21, 2006); see Hepting v. AT&T Corp., 2006 U.S. Dist. establish “guidelines specifying the factors LEXIS 41160 (N.D. Cal. June 6, 2006). to be used by [the DOJ] in rendering a deci-

36 Los Angeles Lawyer September 2006 MCLE Answer Sheet #151 MCLE Test No. 151 CRIMINAL PROSECUTIONS AND CLASSIFIED INFORMATION The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 hour. Name Law Firm/Organization 1. Courts have held that the extraordinary disclosure 12. CIPA Section 4, which governs classified discovery, burdens mandated by the Classified Information allows the government to argue ex parte that it be Address Procedures Act violate the Fifth and Sixth Amendment allowed to delete classified information from discovery City rights of defendants. it provides or to furnish substitutions for the classified True. information in the form of summaries or admissions. State/Zip False. True. E-mail 2. Outsider and insider defendants are entitled to False. Phone unfettered access to classified information to use in their 13. A defendant seeking to rebut the government’s defense because they “should not stand in a worse CIPA Section 4 request to limit discovery will not be per- State Bar # position, because of the fact that classified information mitted to make an ex parte presentation explaining the is involved, than they would without [CIPA].” relevance of classified information to a potential INSTRUCTIONS FOR OBTAINING MCLE CREDITS True. defense. 1. Study the MCLE article in this issue. False. True. 2. Answer the test questions opposite by marking 3. CIPA was enacted to strike a balance between the gov- False. the appropriate boxes below. Each question ernment’s need to protect classified information and 14. CIPA does not impose any heightened burden that has only one answer. Photocopies of this the defendant’s Fifth and Sixth Amendment right to pre- the defendant must satisfy to obtain classified dis- answer sheet may be submitted; however, this sent a defense and to solve the problem of graymail. covery. form should not be enlarged or reduced. True. True. 3. Mail the answer sheet and the $15 testing fee False. False. ($20 for non-LACBA members) to: 4. Graymail is a lesser included offense of blackmail. 15. The government may make only one request for sub- Los Angeles Lawyer True. stitutions for classified information during the CIPA MCLE Test False. litigation process. P.O. Box 55020 5. The court determines whether the benefits to the gov- True Los Angeles, CA 90055 ernment of prosecuting a case outweigh the potential False. Make checks payable to Los Angeles Lawyer. harm to national security from the disclosure of clas- 16. Under CIPA Section 6(c)(1) the court will grant the 4. Within six weeks, Los Angeles Lawyer will sified information at trial. government’s motion for substitution if it finds that the return your test with the correct answers, a True. statement or summary would “provide the defendant rationale for the correct answers, and a False. with substantially the same ability to make his defense certificate verifying the MCLE credit you earned 6. The court may resolve classified information issues as would disclosure” of the classified information. through this self-assessment activity. through secret pretrial proceedings under CIPA Section True. 5. For future reference, please retain the MCLE 6 and, if necessary, during trial if the defendant has pro- False. test materials returned to you. vided written notice under CIPA Section 5(a) that he or 17. If the court denies the government’s motion for ANSWERS she reasonably expects to disclose classified infor- substitution and the government refuses to disclose the Mark your answers to the test by checking the mation at trial. classified information at issue, the court must dismiss appropriate boxes below. Each question has only True. the indictment unless “the court determines that the one answer. False. interests of justice would not be served by dismissal.” 7. A defendant has a right to an interlocutory appeal True. 1. ■ True ■ False after an adverse ruling on the use, relevance, and ad- False. ■ ■ missibility of classified information. 18. The detailed procedures outlined in CIPA provide 2. True False True. federal criminal defendants with numerous advan- 3. ■ True ■ False False. tages, including the ability to work in the comfort of a 4. ■ True ■ False 8. A CIPA protective order requires defense counsel and SCIF. 5. ■ True ■ False other members of the defense team to obtain security True. clearances before receiving access to classified infor- False. 6. ■ True ■ False mation. 19. If a defendant “reasonably expects to disclose or 7. ■ True ■ False True. to cause the disclosure of at trial” certain classified 8. ■ True ■ False False. information but does not list that information on the ■ ■ 9. CIPA applies to all state and federal criminal and civil CIPA Section 5 notice, the court may exclude the infor- 9. True False matters involving classified information or state secrets. mation at trial. 10. ■ True ■ False True. True. 11. ■ True ■ False False. False. 12. ■ True ■ False 10. The state secrets privilege is absolute and per- 20. The Department of Justice under the current admin- ■ ■ mits the government to deny access to information istration does not favor the broad invocation of the 13. True False that, if disclosed, would harm national security. state secrets privilege in civil cases. 14. ■ True ■ False True. True. 15. ■ True ■ False False. False. 16. ■ True ■ False 11. The state secrets privilege may be invoked in crim- ■ ■ inal cases if the information at issue goes to the core 17. True False of the claim or a potential defense. 18. ■ True ■ False True. 19. ■ True ■ False False. 20. ■ True ■ False

Los Angeles Lawyer September 2006 37 nesses may review classified discovery, estab- information produced in discovery under the 4,13 which governs classified discovery, allows lishes procedures for filing classified pleadings, restrictions of the protective order. As the the court to authorize the government, “upon and prohibits anyone associated with the court recently noted in the I. Lewis “Scooter” a sufficient showing,” to delete classified defense from revealing publicly the classified Libby prosecution, the government permits information from the discovery it provides or information to which access is granted.8 such access by the defendant “presumably, in to furnish substitutions for the classified infor- The protective order also appoints Court part, because he previously had access to mation in the form of summaries or admis- Security Officers in accordance with the secu- those [classified] documents as a national sions. The statute also provides that “[t]he rity procedures adopted by the U.S. chief jus- security official and has consented to the var- court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the The SCIF contains safes to hold court alone.” In insider cases, the government gener- classified documents, secure computers ally produces classified discovery without invoking the ex parte procedure that Section 4 contemplates and without proposing sub- on which to prepare classified stitutions.14 In outsider cases, however, the government typically attempts to convince the pleadings, an approved copier, and a court, usually through an ex parte submission, that unclassified summaries or admissions shredder. In cases involving large ensure that the defendant has substantially the same ability to make his or her defense as he or she would with the classified information. amounts of classified material— In some instances, courts permit the defense to make an ex parte presentation explaining especially insider cases—defense the relevance of classified information to a potential defense.15 counsel and the defendant must do the When the government produces classified information in outsider cases, it seeks to limit the disclosure to cleared defense counsel and bulk of their work in the SCIF. This to prohibit the defendant from reviewing the information. Courts have rejected defendants’ creates practical problems. contention that disclosure only to counsel violates a defendant’s Sixth Amendment right tice under CIPA Section 9(a).9 Although the ious protective orders issued in this case.”12 to counsel.16 CSOs work for the DOJ, they are independent The protective order requires the defense CIPA does not impose any heightened of the prosecution team. They advise the par- to maintain all classified information in a burden that the defendant must satisfy to ties and the court on the proper handling of Sensitive Compartmented Information obtain classified discovery. Some courts, how- classified information, and they serve as con- Facility, or SCIF. The SCIF consists of one or ever, have recognized a qualified “classified duits for the flow of classified discovery and more secure rooms, usually in the federal information privilege,” akin to the govern- pleadings among the parties and the court.10 courthouse where the case is being heard. It ment privilege for informants, which requires The protective order requires defense is protected by locks and other security the defendant to demonstrate that the infor- counsel and other members of the defense devices. The construction of the SCIF can mation “may be helpful to [the defendant’s] team to obtain security clearances before take months, resulting in further delay. The defense.”17 receiving access to classified discovery.11 SCIF contains safes to hold classified docu- Classified information cases frequently Although the CSOs facilitate the clearance ments, secure computers on which to prepare present issues concerning the scope of the process, it may take weeks or months to classified pleadings, an approved copier, and prosecution’s disclosure obligation. The pros- complete. Before counsel receives a clear- a shredder. In cases involving large amounts ecution typically seeks to limit its obligation ance, he or she cannot discuss classified infor- of classified material—especially insider to documents in the possession of the DOJ, mation with the defendant. Especially in cases—defense counsel and the defendant including the FBI. It generally disavows any insider cases, the inability to discuss crucial must do the bulk of their work in the SCIF. obligation to produce documents in the pos- facts early on can impede counsel’s ability to This creates practical problems, ranging from session of intelligence agencies, such as the obtain bail, make discovery requests, and obtaining the necessary office supplies to CIA and the NSA. But courts have held that begin to prepare the defense. maintaining defense counsel’s involvement documents are in the possession, custody, or In outsider cases, the defendant almost in other cases. If defense counsel want to control of the government (for the purposes never receives access to classified information. discuss classified information with potential of Rule 16 of the Federal Rules of Criminal In insider cases, however, the government witnesses, those discussions generally must Procedure and Brady v. Maryland18) when the generally acquiesces to the defendant’s access occur in the SCIF—and the witnesses must agency that holds the documents participated to the relevant classified information. This cre- have (or obtain) a security clearance and sign in the investigation of the defendant, or when ates a practical problem, because defendants a memorandum of understanding accepting the prosecutor has “knowledge of and access usually lose their security clearance at or the terms of the CIPA protective order. to the documents.”19 Applying these princi- before indictment, and the government is Once the protective order is in place, ples, the district court in the Libby prosecu- reluctant to restore it. The parties generally defense counsel has the necessary clearance, tion held that the prosecution must produce reach an accommodation allowing the defen- and the SCIF is ready, the parties begin the otherwise discoverable documents in the pos- dant to review all or most of the classified classified discovery process. CIPA Section session of the CIA, because the CIA referred

38 Los Angeles Lawyer September 2006 the matter to the DOJ for prosecution and pretrial that briefly describes the classified in the defendant’s CIPA Section 5 notice.27 cooperated with the investigation.20 information that it “reasonably expects to dis- The court applies ordinary evidentiary stan- If the court rules against the government close or to cause the disclosure of” at trial.24 dards in making these determinations. As under CIPA Section 4 and requires it to pro- Classified information that the defense rea- the Wen Ho Lee court observed, “When duce the requested classified information, the sonably expects to disclose but does not list determining the use, relevance and admissi- government may take an interlocutory appeal on the CIPA Section 5 notice may be pre- bility of the proposed evidence [under CIPA under CIPA Section7,21 which authorizes the cluded from use at trial.25 The CIPA Section Section 6], the court may not take into government to take an immediate appeal 5 notice may list classified documents (or account that the evidence is classified; rele- from any order “authorizing the disclosure of portions of classified documents) that the vance of classified information in a given classified information, imposing sanctions defendant reasonably expects to disclose, and case is governed solely by the standards set for nondisclosure of classified information, or it may also contain a narrative of classified forth in the Federal Rules of Evidence.”28 refusing a protective order sought by the information that the defendant anticipates At the CIPA Section 6 hearing, the defen- United States to prevent the disclosure of revealing through testimony or in counsel’s dant must establish the relevance of each classified information.”22 The defendant has questions or argument. listed item of classified information. This no corresponding interlocutory appeal right The CIPA Section 5 notice compels the affords the prosecution a unique insight into under CIPA. A defendant’s only recourse if he defendant to disclose classified information the defense strategy, as defense counsel sets or she is dissatisfied with the court’s CIPA rul- that will be revealed 1) in the opening state- forth the theory of the defense and ties par- ings is an appeal following conviction. ment and closing argument, 2) by defense ticular pieces of evidence to that theory. In no counsel’s questions or otherwise elicited on other part of the criminal justice system must The CIPA Notice and Hearing Procedure cross-examination of government witnesses the defendant provide such a complete expla- CIPA establishes procedures for determining at trial, and 3) in the defendant’s testimony. nation of the defense before trial without a before trial the use, relevance, and admissi- In light of this broad, compelled pretrial dis- reciprocal obligation on the prosecution. As bility of classified information that the defense closure of defense evidence and strategy, with other aspects of CIPA, however, courts reasonably expects to disclose.23 The classi- defendants have contended that CIPA violates have found no constitutional defect in the fied information subject to these procedures their Fifth and Sixth Amendment rights, but Section 6 procedures.29 includes any classified information that the courts have rejected these arguments.26 Third, as to any classified information government produces in discovery and any Second, at the prosecution’s request, the that the court finds relevant and admissible, such information that the defendant inde- court must hold an in camera pretrial hear- the government may move to replace the pendently knows or possesses. This process ing under CIPA Section 6(a) at which the information with a statement admitting rel- involves four steps. court determines the “use, relevance, or evant facts that the information would tend First, the defense must file a sealed notice admissibility” of classified information listed to prove, or to substitute a summary of the

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Los Angeles Lawyer September 2006 39 information. Under CIPA Section 6(c)(1), the disclosure of the classified information. For ness.”34 The Court added: court will grant the government’s motion if example, Congress noted that if the defendant Evidence thus has force beyond any lin- it finds that the statement or summary would wishes to show his or her access to a partic- ear scheme of reasoning, and as its “provide the defendant with substantially ular type of classified data, an admission by pieces come together a narrative gains the same ability to make his defense as would the government to that effect, without dis- momentum, with power not only to disclosure” of the classified information.30 closure of the underlying data, may suffice.33 support conclusions but to sustain the Courts often find that substitutions meet In many insider cases, however, the classified willingness of jurors to draw the infer- this standard in outsider cases, either at the information is too closely woven throughout ences, whatever they may be, necessary discovery stage under CIPA Section 4 or at the the case to permit an easy substitution. Trial to reach an honest verdict. This per- trial stage under CIPA Section 6(c)(1).31 The courts recoil at the prospect of presenting suasive power of the concrete and par- classified information in such cases often has scripted direct examinations and cross-exam- ticular is often essential to the capac- no significant bearing on the disputed issues inations to the jury. This problem is particu- ity of jurors to satisfy the obligations in the case. For example, if the government larly acute for the defendant’s testimony. that the law places on them.35 has intercepted the defendant’s telephone Jurors study defendants carefully as they tes- Particularly in insider cases, substitutions conversation through a classified intelligence tify, searching for any sign of evasiveness. A may deprive the defendant of the “persuasive method, an unclassified description of the defendant who must adhere to a script for sig- power of the concrete and particular” and method may suffice for the defendant to nificant portions of his or her direct or cross thus violate his or her Fifth and Sixth move to suppress the recording pretrial and may well strike the jury as evasive when the Amendment right to present a defense. to challenge its authenticity at trial. The leg- defendant is merely trying to comply with the The Fourth Circuit’s decision in United islative history of CIPA contains similar exam- court’s CIPA substitution rulings. States v. Fernandez,36 arising from the Iran- ples of acceptable substitutions. In testimony Substitutions in insider cases present the Contra affair, illustrates the difficulty of devis- before the Senate Judiciary Committee, the problems that the Supreme Court identified ing substitutions that protect the defendant’s DOJ posited a case in which the defendant in rejecting, for most purposes, defense stip- right to a fair trial when the defendant works sought to demonstrate that a government ulations in place of the prosecution’s proof. with classified information and the charges agent urged him to commit the crime, and the The Court declared that “[t]he ‘fair and legit- arise from his or her work. Fernandez—the government would be permitted to admit or imate weight’ of conventional evidence show- former CIA station chief in Costa Rica—was summarize the relevant facts without dis- ing individual thoughts and acts amounting charged with false statements and obstruction closing the agent’s name.32 to a crime reflects the fact that making a case arising in part from interviews he had given Even in some insider cases substitutions with testimony and tangible things not only to investigators about an airstrip project in may afford the defendant “substantially the satisfies the formal definition of an offense, but Costa Rica. To establish the truth of his state- same ability to make his defense” as would tells a colorful story with descriptive rich- ments (and the absence of obstruction),

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40 Los Angeles Lawyer September 2006 Fernandez sought to discuss classified aspects The government may appeal the court’s choice defense case. Or the prosecution may cross- of his work, including the relationship of sanction under CIPA Section 7(a), just as examine the defendant or another defense between the airstrip project and three other it may appeal most other adverse rulings witness in a manner that requires the witness projects with which he was involved. The involving classified information. to disclose classified information to present a district court rejected the prosecution’s pro- truthful and complete answer. posed substitutions, and the Fourth Circuit At Trial Under these circumstances, CIPA Section affirmed. CIPA Section 843 provides the court with 5(a) requires the defendant to “notify the The court of appeals noted that the sub- several tools for addressing classified infor- attorney for the United States and the court stitutions “fell short of informing the jury mation issues at trial. Section 8(b) permits the in writing as soon as possible” and to include about…information about the origin, pur- court to admit only unclassified portions of “a brief description of the classified informa- pose, and scope of the three projects.”37 It a document, “unless the whole ought in fair- tion.”44 The statute prohibits the defense from explained: ness be considered.” Section 8(c) permits the disclosing the classified information until it has To address [the charge of lying about prosecution to object to any question or line given the notice, the government has had a the airstrip] requires Fernandez to of inquiry that may require a witness to dis- “reasonable opportunity” to seek a CIPA paint a concrete and detailed picture of close classified information that has not been Section 6 hearing, and the time for the gov- his working environment as he saw found admissible. Upon such an objection, the ernment to appeal an adverse decision by the it. We agree with Fernandez’s con- court must take appropriate steps to ensure district court has expired or the appeal has tention that the substitutions would that classified information is not disclosed. It been resolved.45 Thus, CIPA creates a signif- preclude the defense from “present[ing] may, for example, require either the govern- icant possibility that trial testimony can be a coherent case of its own, since it ment or the defense to provide a proffer of the interrupted virtually midsentence for a sealed would be shackled to a script written witness’s anticipated testimony. CIPA hearing and a potential government by the prosecution.” If the vague, CIPA contemplates that the court will appeal. Particularly in insider cases, the pos- extremely abbreviated descriptions of resolve most classified information issues sibility of a classified information train wreck the projects were accepted as exclusive through secret pretrial proceedings under lurks throughout the trial, requiring the gov- substitutes for Fernandez’s own testi- CIPA Section 6. But these issues may arise ernment to tread carefully in presenting its case mony about his role in and under- unexpectedly at trial when the defense and questioning defense witnesses. standing of the projects, for classified encounters a previously unforeseen need to While CIPA effectively prevents graymail, cables written by him that corrobo- disclose classified information. For example, the statute solves this problem at a tremen- rated his understanding, and for his a prosecution witness may present surprise dous price. It imposes cumbersome and time- direct and cross-examination of wit- testimony that requires the use of classified consuming procedures on the parties and the nesses involved in these projects, information on cross-examination or in the court. And it is particularly unfair to the Fernandez’s constitutionally guaranteed ability to present a defense would be severely compromised.38 In other insider cases as well the defendant’s need to “paint a concrete and detailed picture of his working environment as he saw it” may preclude the use of substitutions for classified information. Fourth, if the court denies the government’s motion for a statement or substitution, the court will, upon objection by the attorney general, prohibit the defendant from disclosing the classified information. As a sanction for the nondisclosure, the court must dismiss the indictment, with the exception that “when the court determines that the interests of justice would not be served” by dismissal, the court will take an appropriate alternative action.39 It may, for example, dismiss “specified counts of the indictment or informa- Confidence At The Courthouse. tion,” find “against the United States on any Business litigation is increasingly complex. That is why we believe valuation issue to which the excluded classified infor- issues must be addressed with the same meticulous care mation relates,” or “strik[e] or preclud[e] all as legal issues. Analysis must be clear. Opinions must be or part of the testimony of a witness.”40 defensible. Expert testimony must be thorough and Thus, in Fernandez, the court dismissed the articulate. HML has extensive trial experience and can indictment when the government refused to provide legal counsel with a powerful resource for expert disclose the classified information at issue.41 testimony and litigation support. As to any classified information that the court determines may be disclosed at trial, the court For More Information Call 213-617-7775 “shall, unless the interests of fairness do not Or visit us on the web at www.hmlinc.com so require, order the United States to provide • • • the defendant with the information it expects BUSINESS VALUATION LOSS OF GOODWILL ECONOMIC DAMAGES LOST PROFITS to use to rebut the classified information.”42

Los Angeles Lawyer September 2006 41 criminal defendant, who must lay out his or her defense pretrial and whose counsel must labor in a SCIF under the practical constraints of a CIPA protective order. Courts have repeatedly upheld the constitutionality of the statute, however, and it is here to stay. As a broader range of cases implicate classiﬁed information, defense counsel must become familiar with CIPA’s intricacies and insist that courts apply the statute’s procedures consistent with the defendant’s Fifth and Sixth Amendment rights. ■

1 18 U.S.C. app. 3. See generally Ralph V. Seep, Validity and Construction of Classified Information Procedures Act, 103 A.L.R. FED. 219 (1991 & Cum. Supp.) (sum- marizing cases interpreting CIPA). 2 CIPA does not apply in federal or state civil cases or in state criminal cases. 3 S. REP. NO. 96-823, at 9, reprinted in 1980 U.S. CODE CONG. & ADMIN. NEWS 4294, 4302; see United States v. Lopez-Lima, 738 F. Supp. 1404, 1407 (S.D. Fla. 1990); United States v. North, 698 F. Supp. 316, 320 (D. D.C. 1988). 4 See, e.g., United States v. Collins, 720 F. 2d 1195, 1200 (11th Cir. 1983); United States v. Bin Laden, 2001 U.S. Dist. LEXIS 719 (S.D. N.Y. Jan. 25, 2001); United States v. Lee, 90 F. Supp. 2d 1324 (D. N.M. 2000); United States v. Ivy, 1993 U.S. Dist. LEXIS 13572 (E.D. Pa. Aug. 12, 1993); United States v. Poindexter, 725 F. Supp. 13 (D. D.C. 1989); United States v. North, 708 F. Supp. 399 (D. D.C. 1989). 5 18 U.S.C. app. 3 §9A. 6 18 U.S.C. app. 3 §12. 7 18 U.S.C. app. 3 §3. 8 The protective order under CIPA §3 applies only to disclosures of classified information in connection with the case. The government must rely on other statutes or on contractual provisions to prohibit the defendant from making extrajudicial disclosures of classified information. See United States v. Pappas, 94 F. 3d 795, 801-02 (2d Cir. 1996). 9 18 U.S.C. app. 3 §9(a). The procedures, issued by Chief Justice Warren Burger in 1981, appear in a note following CIPA §9. 10 See 9 UNITED STATES ATTORNEY’S MANUAL, CRIMINAL RESOURCE MANUAL §2054(I)(C) (1997) (describing the role of CSOs). 11 Courts have uniformly rejected the argument that requiring defense counsel to obtain a security clearance violates the defendant’s Sixth Amendment right to counsel of choice or counsel’s right to privacy. See, e.g., United States v. Al-Arian, 267 F. Supp. 2d 1258, 1266- 67 (M.D. Fla. 2003); United States v. Bin Laden, 58 F. Supp. 2d 113 (S.D. N.Y. 1999); cf. United States v. Joliff, 548 F. Supp. 232, 233 (D. Md. 1981); United States v. Smith, 899 F. 2d 564, 570 (6th Cir. 1990). 12 United States v. Libby, 429 F. Supp. 2d 18, 20 n.2 (D. D.C. 2006). 13 18 U.S.C. app. 3 §4. 14 The current prosecution of I. Lewis “Scooter” Libby marks one of the few insider cases—and perhaps the only one—in which the government has sought to invoke the substitution and ex parte provisions of CIPA §4. 15 See, e.g., United States v. Clegg, 740 F. 2d 16, 17 (9th Cir. 1984); Libby, 429 F. Supp. 2d at 26; United States v. Poindexter, 727 F. Supp. 1470, 1479 & n.16 (D. D.C. 1989); United States v. North, 698 F. Supp. 322, 324 (D. D.C. 1988). 16 See, e.g., United States v. Bin Laden, 2001 U.S. Dist. LEXIS 719, at *7-*15 (S.D. N.Y. Jan. 25, 2001). 17 United States v. Rezaq, 134 F. 3d 1121, 1142 (D.C. Cir. 1998); see United States v. Yunis, 867 F. 2d 617,

42 Los Angeles Lawyer September 2006 623 (D.C. Cir. 1989). 18 Brady v. Maryland, 373 U.S. 83 (1963). Brady holds TRUST DEED FORECLOSURES M. NAIR, M.D. that, as a matter of due process, the prosecution must Board Certified: provide defendants with information that would tend “Industry Specialists For Over 18 Years” to exculpate them. t Witkin & Eisinger we specialize in the Non-Judicial – Psychiatry 19 United States v. Santiago, 46 F. 3d 885, 893-94 A Foreclosure of obligations secured by real property – Child Psychiatry (9th Cir. 1995) (quotation omitted); see also United or real and personal property (mixed collateral). – Forensic Psychiatry States v. Marshall, 132 F. 3d 63, 69 (D.C. Cir. 1998). When your client needs a foreclosure done profession- – Psychopharmacology 20 United States v. Libby, 429 F. Supp. 2d 1, 5-11 (D. ally and at the lowest possible cost, please call us at: – Addiction Medicine D.C. 2006); see also 9 UNITED STATES ATTORNEY’S 1-800-950-6522 – Harvard and UC Trained MANUAL, CRIMINAL RESOURCE MANUAL §2052(B)(1) We have always offered free advice to all attorneys. (2002). Consultations • IME • Deposition • Record Review 21 18 U.S.C. app. 3 §7. Second Opinion • Trial Testimony • Civil Litigation 22 Id.; see, e.g., United States v. Clegg, 846 F. 2d 1221, WITKIN 1223 (9th Cir. 1988) (government appeal from rele- LLC 562.493.2218 ■ psychiatryforensic.com vance and substitution rulings). EISINGER, State Bar Approved MCLE provider & ◆ RICHARD G. WITKIN, ESQ. CAROLE EISINGER 23 See, e.g., United States v. Fernandez, 913 F. 2d 148, 433 N. Camden Dr., Suite 600, Beverly Hills, CA 90210 151 (4th Cir. 1990) (describing procedures); United States v. North, 910 F. 2d 843, 898-99 (same), modified on other grounds, 920 F.2d 940 (D.C. Cir. 1990). 24 18 U.S.C. app. 3 §5(a). 25 18 U.S.C. app. 3 §5(b). 26 See supra note 4. 27 18 U.S.C. app. 3 §6(a). 28 United States v. Lee, 90 F. Supp. 2d 1324, 1326 n.2 (D. N.M. 2000) (citing United States v. Baptista- Rodriguez, 17 F. 3d 1354, 1364 (11th Cir. 1994)); see, e.g., United States v. Ivy, 1993 U.S. Dist. LEXIS 13572, at *4 (E.D. Pa. Aug. 12, 1993); United States v. North, 698 F. Supp. 316, 318 (D. D.C. 1988). The Fourth Circuit has applied a classified information privilege in determining admissibility and at the discovery stage as well. See United States v. Smith, 780 F. 2d 1102 (4th Cir. 1985) (en banc). The Ninth Circuit has thus far declined to decide whether the government may assert the privilege to exclude otherwise admissible classified evidence at trial. See United States v. Rewald, 889 F. 2d 836, 847-48 (9th Cir. 1989). 29 See supra note 4. 30 18 U.S.C. app. 3 §6(c)(1); see, e.g., United States v. Moussaoui, 382 F. 3d 453, 476 (4th Cir. 2004), cert. denied, 125 S. Ct. 1670 (2005); United States v. Fernandez, 913 F. 2d 148, 154 (4th Cir. 1990). 31 See, e.g., United States v. Dumeisi, 424 F. 3d 566, 577-78 (7th Cir. 2005), cert. denied, 126 S. Ct. 1570 (2006); United States v. Moussaoui, 382 F. 3d 453, 477- 82 (4th Cir. 2004), cert. denied, 544 U.S. 931 (2005); United States v. Rezaq, 134 F. 3d 1121, 1142-43 (D.C. Cir. 1998). 32 See, e.g., Hearing on S. 1482 Before the Subcomm. on Criminal Justice of the Senate Comm. on the Judiciary, 96th Cong., 2d Sess. 9 (1980) (statement of Assistant Attorney General Philip B. Heymann). 33 See, e.g., S. REP. NO. 96-823, 96th Cong., 2d Sess. 9, reprinted in 1980 U.S. CODE CONG. & ADMIN. NEWS 4294, 4302. 34 Old Chief v. United States, 519 U.S. 172, 187 (1997). 35 Id. at 189; see also United States v. Allen, 798 F. 2d 985, 1001 (7th Cir. 1986); Parr v. United States, 255 F. 2d 86, 88 (5th Cir. 1958). 36 United States v. Fernandez, 913 F. 2d 148 (4th Cir. 1990). 37 Id. at 158. 38 Id. at 161 (upholding rejection of other proposed substitutions on similar grounds); see also United States v. Clegg, 846 F. 2d 1221, 1224 (9th Cir. 1988) (affirm- ing district court’s rejection of proposed substitution). 39 18 U.S.C. app. 3 §6(e)(2). 40 Id. 41 Fernandez, 913 F. 2d at 162-64. 42 18 U.S.C. app. 3 §6(f); see United States v. North, 910 F. 2d 843, 901-02, modified on other grounds, 920 F. 2d 940 (D.C. Cir. 1990). 43 18 U.S.C. app. 3 §8. 44 18 U.S.C. app. 3 §5(a). 45 Id.

Los Angeles Lawyer September 2006 43 by gary williams

Indefinite

NATIONAL SECURITY Detention & THE LAW SPECIAL ISSUE and Extraordinary Rendition

Recent court decisions throw into doubt the executive’s claims for extraordinary authority over enemy combatants

n the aftermath of the September Military Force (AUMF).3 Part of this resolu- 11 attacks on the United States, tion states: writers and politicians expressed [T]he President is authorized to use the view that everything changed.1 all necessary and appropriate force One change was the government’s against those nations, organizations, or adoption of a radically restrictive persons he determines planned, autho- approach to individual liberties rized, committed or aided the terror- that emphasizes safety and prevention of ist attacks that occurred on September Ifuture acts of terrorism and de-emphasizes 11, 2001, or harbored such organiza- concerns about the civil liberties of persons tions or persons, in order to prevent suspected of terrorist connections or activi- any future acts of international ter- ties. Evidence of this changed approach can rorism against the United States by be found in the terms “enemy combatant,” such nations, organizations or per- “indefinite detention,” and “extraordinary sons.4 rendition.” Pursuant to the AUMF the United States The federal government’s claims regard- invaded Afghanistan in 2001. During that ing its authority to declare American citi- invasion, the federal government began to zens enemy combatants and detain them,2 and invoke the concept of the enemy combat- its willingness to use indefinite detention and ant.5 Its theory is that some people captured extraordinary rendition when dealing with during that conflict and during the invasion foreign nationals suspected of terrorist con- of Iraq and the continuing war on terror are nections, raise questions about the depth of this nation’s commitment to preserving con- Gary Williams is a professor of law at Loyola Law stitutional freedoms while it is engaged in School, where he teaches civil rights litigation. the war on terror. He is a past president and current member of the One week after the September 11 attacks, Board of Directors of the ACLU of Southern

Congress passed the Authorization for Use of California. KEN SUSYNSKI

44 Los Angeles Lawyer September 2006 enemy combatants who are not entitled to due arrested in Chicago after stepping off a flight argued this power applied because he was process protection under the U.S. Constitution from Pakistan. He was arrested as a “mate- seized while U.S. troops were in combat in or to the protections afforded by the Geneva rial witness” pursuant to a warrant issued in Afghanistan.16 In the case of Padilla, the gov- Convention to prisoners of war during incar- connection with a grand jury investigation of ernment argued this power is broad enough ceration, treatment, and adjudication.6 In the September 11 attacks.12 Padilla was ini- to justify the indefinite detention of an judicial proceedings the government has tially held in the maximum security wing of American citizen arrested on American soil.17 argued the president has exclusive and vir- the Metropolitan Correctional Center in New According to the government’s position, tually unreviewable authority to determine York and was in the custody of the Bureau of the president, as commander in chief, has whether a person is an enemy combatant. Prisons and the U.S. Marshals Service. “inherent authority” to detain any person The United States claims an enemy combat- On May 15 Padilla appeared before Chief who takes up arms against the United States, ant may be detained without charges until the Judge Michael B. Mukasey of the U.S. District regardless of that person’s status or where the president decides that person may be tried, or Court for the Southern District of New York. person is arrested. Because this power is determines the detainee no longer presents a Judge Mukasey appointed Donna Newman inherent in the office of the president, the threat to the United States. Further, access to to represent Padilla. On June 7, Newman argument continues, its exercise does not judicial review and counsel may be denied moved to vacate the material witness warrant require congressional authorization. When “unless and until it (the government) makes after conferring extensively with Padilla. the president exercises this power as com- the determination that access to counsel or When the court set a hearing date of June 11, mander in chief, the government argues, further process is warranted.”7 The federal the president issued an order designating courts must accord great deference to his government also claims any process due Padilla an enemy combatant and ordering decision to designate a person an enemy com- enemy combatants is satisfied by the special Secretary of Defense Donald Rumsfeld to batant.18 military commissions authorized by President transfer Padilla to military custody. The mil- The second argument asserts that George Bush for the express purpose of try- itary transported Padilla to a brig in South Congress, by passing the AUMF, granted ing enemy combatants.8 Carolina. Thereafter Padilla was not allowed authority to the president to designate and This extraordinary claim of power has to confer with his counsel, and he was pro- detain enemy combatants, and to determine been applied to two U.S. citizens. Yaser Esam hibited from communicating with his family whether and when they are entitled to advice Hamdi, who was born in the United States in or any nonmilitary personnel. While in mil- of counsel or a hearing. The Supreme Court 1980, was residing in Afghanistan when the itary custody Padilla was subjected to “ongo- first addressed these arguments in Hamdi v. invasion took place. In 2001 the Northern ing questioning regarding the al Qaeda net- Rumsfeld. The Court accepted the notion Alliance, an ally of the United States, deliv- work and its terrorist activities.”13 Padilla that the AUMF grants the president the ered Hamdi to U.S. military forces. Hamdi was held for 18 months. authority to designate and detain enemy com- was interrogated in Afghanistan, then trans- When Padilla was transferred to military batants: “[D]etention of individuals falling ferred to the U.S. naval base in Guantanamo custody, his attorney filed a habeas corpus into the limited category we are considering Bay, Cuba, in January 2002. After inter- petition with the district court as his next (enemy combatants as defined in the case) for rogators learned Hamdi was an American friend. In response to the petition, the federal the duration of the particular conflict.…is citizen, the government transferred him to a government filed an affidavit alleging that so fundamental and accepted an incident of naval brig in Norfolk, Virginia. While this was Padilla traveled to several Middle East war as to be an exercise of the ‘necessary happening, the president concluded Hamdi nations, and that some time between 1999 and appropriate force’ Congress has autho- was “affiliated with a Taliban military unit and 2000 he became “closely associated with rized the President to use.”19 and received weapons training.” The gov- known members and leaders of al Qaeda.” Even so, the majority concluded the pres- ernment further charged that because the The affidavit further alleged that Padilla ident does not have the power to detain U.S. Taliban was a hostile force engaged in armed became involved in a plan to explode a “dirty citizens indefinitely without notice of the conflict with the forces of the United States, bomb” in the United States and that he had charges and a hearing. It also rejected the individuals associated with the Taliban “were returned to the United States to conduct notion that the president’s decision to detain and continue to be enemy combatants.”9 reconnaissance on behalf of al Qaeda. and designate a citizen as an enemy combat- Thus Hamdi was designated an enemy com- The president’s decision to declare Padilla ant is virtually unreviewable. The essence of batant. an enemy combatant was based on findings the majority’s holding on these questions Hamdi was 20 years old when he was that Padilla 1) was closely associated with al rests in these words from Justice Sandra Day first detained. Because he was designated an Qaeda, 2) had engaged in warlike acts, includ- O’Connor: “[A] state of war is not a blank enemy combatant, he was not permitted to ing conduct in preparation for acts of inter- check for the President when it comes to the contact his family, was denied access to coun- national terrorism against the United States, rights of the nation’s citizens.”20 sel, and was not advised of the charges against 3) had intelligence that could assist the United The Court struck a middle ground. Noting him. During most of his years of incarcera- States to ward off future terrorist attacks, there is a high risk of erroneous deprivation tion Hamdi was held in solitary confine- and 4) was a continuing threat to U.S. secu- of liberty, the majority concluded an American ment.10 Hamdi was not allowed access to rity.14 citizen who disputes classification as an enemy the courts. His father filed a habeas corpus The United States advanced two principal combatant must receive notice of the factual petition seeking his release. In the affidavit arguments to support its claim the president basis for the designation and “a fair oppor- supporting the petition, Hamdi’s father possesses this extraordinary authority to tunity to rebut the Government’s factual declared that Hamdi was simply a young, detain American citizens indefinitely and assertions before a neutral decision maker.” inexperienced aid worker who was “caught without charges. First, it argued the president The Court went on to specify these rights in the wrong place at the wrong time.”11 has “plenary authority” as commander in must be granted “at a meaningful time and The second American citizen known to chief, under Article II, Section 2, of the in a meaningful manner.”21 The Supreme have been held as an enemy combatant is Constitution15 to detain any person he deter- Court declined to address the inherent author- Jose Padilla. On May 8, 2002, Padilla, who mines has taken up arms against the United ity argument in the Hamdi decision.22 was born in Brooklyn, New York, was States. In the case of Hamdi, the government After Hamdi was announced, the gov-

46 Los Angeles Lawyer September 2006 ernment elected to release Hamdi to Saudi petition for writ of habeas corpus seeking foreseeable future, the government must rebut Arabia rather than try him.23 When Padilla his release. By then Nadarajah had been in that showing or release the alien from cus- sought Supreme Court review of his detention custody nearly five years. tody.32 Based on these principles, the Ninth as an enemy combatant in the wake of In response, the government urged it had Circuit concluded Nadarajah must be released Hamdi, the government transferred him to the authority to detain Nadarajah “indefi- from custody because his nearly five-year civilian custody. It then indicted Padilla on nitely” pursuant to the general immigration detention “far exceeds…any period of con- criminal charges that he was part of a violent detention statutes.29 Those statutes simply finement found reasonable by the [Supreme] terrorism conspiracy rooted in North America state that if an asylum officer determines that Court.”33 but directed at sending money and recruits an alien has a credible fear of persecution, the overseas to “murder, kidnap and maim.” alien shall be detained for further consider- Extraordinary Rendition These criminal charges make no mention of ation of the asylum application, and that if the “Extraordinary rendition” is the CIA’s term Padilla’s alleged involvement in a plot to det- examining officer concludes the alien is not for its practice of sending people suspected of onate a dirty bomb, or his supposed recon- clearly entitled to be admitted, the alien shall terrorist ties or activities to other countries for naissance mission for al Qaeda.24 Padilla is now awaiting trial in federal court in Miami.

Detention of Aliens Subsequent to September 11, the federal government asserted it has the authority to detain an alien indefinitely if it determines the alien poses a threat to the United States. This claim was tested in Nadarajah v. Gonzales.25 Ahilan Nadarajah is a citizen of Sri Lanka and a member of the Tamil minority. He left Sri Lanka in 2001 after being detained and tortured by Sri Lankan authorities three times. Nadarajah reached the United States in October 2001, where he was apprehended and detained by immigration authorities. Nadarajah applied for asylum, claiming that if he was returned to Sri Lanka he would be tortured and/or killed because of his ethnic- ity. The government opposed Nadarajah’s application and presented evidence alleging that Nadarajah was a member of the Tamil Tigers, a group that the United States has designated as a terrorist organization. The Tamil Tigers are involved in a civil war with the Sri Lankan government and have used guerrilla and terrorist tactics in that war.26 During hearings on his application for asylum, Nadarajah denied that he was a member of the Tamil Tigers. In the second hearing the government relied on testimony of a Department of Homeland Security agent who concluded, based on hearsay evidence, be detained for a proceeding. interrogation.34 According to published that Nadarajah must be a member of the The Ninth Circuit rejected this expansive reports, this practice can include kidnaping Tamil Tigers because he was allowed to leave interpretation of the immigration statutes. terrorism suspects and “persons of interest” a region of Sri Lanka controlled by that Relying principally on Zadvydas v. Davis,30 on foreign soil.35 U.S. officials have acknowl- organization.27 On two occasions, the last in the Ninth Circuit ruled that the immigration edged that by late December 2005, between 2004, an immigration judge ruled Nadarajah’s statutes do not authorize the indefinite deten- 100 and 150 people were seized in rendi- petition should be granted under the tion of aliens. In reaching this conclusion, the tions that involved detaining terror suspects Convention against Torture. On the second Ninth Circuit noted the Supreme Court’s dec- in one country and flying them to their home occasion, the Bureau of Immigration Appeals laration in Zadvydas that a “statute permit- country or another country where they were (BIA) affirmed the judge’s decision granting ting indefinite detention of an alien would wanted.36 In response to allegations that the asylum to Nadarajah. The chairperson of raise a serious constitutional problem.”31 U.S. engages in extraordinary rendition so that the BIA then referred Nadarajah’s case to The Ninth Circuit concluded detention detainees may be tortured, Secretary of State the attorney general, “seeking guidance from is permissible only while removal of the per- Condoleezza Rice has stated that the United the Attorney General on whether he wishes son remains “reasonably foreseeable.” The States does not torture prisoners or hand to exercise his discretion and de novo review court went further, holding that six months them over to governments that do.37 authority in this case of national interest.” The was a presumptively reasonable period for Two cases of extraordinary rendition that BIA did not order Nadarajah’s release pend- detention. After six months, if the alien pro- were widely publicized have led to litigation ing that review and set no timetable for his vides good reason to believe there is no sig- in U.S. courts. One case involves Maher Arar, release from detention.28 Nadarajah filed a nificant prospect of removal in the reasonably a citizen of Canada and Syria who resides in

Los Angeles Lawyer September 2006 47 Canada. On September 26, 2002, Arar was transported to Afghanistan. There he was tody, and because the defendants acted pur- flying to Montreal, Canada, from Tunisia. To held for four months in a CIA facility known suant to U.S. law. However, the Torture reach Montreal he had to catch a connecting as the Salt Pit. While held in Afghanistan, El- Prevention Act prohibits torture “under color flight in New York. Arar was detained when Masri was repeatedly questioned about his of law of any foreign nation.” The govern- he deplaned at JFK Airport, allegedly because alleged association with terrorists. Two of ment contended Arar’s Fifth Amendment he was a member of al Qaeda. Arar was his interrogators identified themselves as claims could not be recognized because he interrogated by U.S. officials for eight hours Americans. After he went on a prolonged never entered the United States. According to that day and for five hours the following day. hunger strike, El-Masri was force-fed through this argument, technically Arar never entered Arar repeatedly denied any connection with tubes inserted in his nose and mouth.44 El- the country because he was detained as soon al Qaeda or any other terrorist activities or Masri remained in captivity in Afghanistan as he landed. Therefore, Arar was not enti- organizations. After this questioning of Arar, until May 28, 2004. At that time he was tled to claim constitutional violations because he was transported to the Metropolitan blindfolded, placed on a private jet, and flown the federal court lacked jurisdiction to address Detention Center in New York, where he to Albania, where he was left on a deserted those claims. The government relied on was held until October 8.38 road. With the assistance of Albanian author- Johnson v. Eisentrager, which held that “in While he was in U.S. custody, Arar made ities, El-Masri returned to Germany, only to extending constitutional protections beyond repeated requests to be returned to Canada. discover his wife and children had moved to the citizenry…it was the alien’s presence He told Immigration and Naturalization Lebanon because they believed he had aban- within its territorial jurisdiction that gave Service officials and FBI agents that he did not doned them.45 the judiciary the power to act.”51 The gov- want to be sent to Syria because he feared he Ultimately the United States seemingly ernment further argued that even if the Fifth would be tortured. He was allowed to speak admitted that its detention of El-Masri was Amendment did apply to Arar’s detention to a Canadian consular officer, and his fam- a case of mistaken identity. El-Masri’s com- and treatment, the defendants were entitled ily hired an attorney to represent him. Despite plaint alleges two CIA agents told him that to immunity under an exception to the Bivens Arar’s requests and expressions of fear, on the detention was a mistake, but he could not doctrine52 because the case involved foreign October 8 Arar was flown to Aman, Jordan, be released without permission from policy and national security concerns. where he was handed over to Syrian author- Washington.46 While Secretary of State Rice The Bivens exception argument was ities.39 was in Germany defending the practice of accepted by Judge David Trager of the U.S. During Arar’s first 12 days in Syrian cus- extraordinary rendition, she stated if the District Court for the Eastern District of New tody, he was questioned for 18 hours daily, United States made mistakes it would do York. Judge Trager dismissed Arar’s case, beaten on his palms and lower back with a everything it could to rectify them.47 explaining in his ruling: “[T]his case raises two-inch-thick electric cable, and struck by his Arar and El-Masri filed lawsuits in U.S. crucial national-security concerns and for- captors’ fists in the stomach, face, and neck. federal courts. Arar’s suit names former eign policy considerations, implicating the Arar was repeatedly accused of and ques- Attorney General John Ashcroft and former complicated multilateral negotiations con- tioned about terrorist activity.40 Secretary of Homeland Security Tom Ridge, cerning efforts to halt international terror- Held in Syria for approximately 10 while El-Masri, who says the United States has ism.” In support of his conclusion that for- months, Arar was released to Canadian cus- never offered any compensation for his eign policy concerns mandated dismissal, tody on October 5, 2003. No charges of ter- ordeal,48 filed suit against former CIA Director Judge Trager observed, “One need not have rorist activities were filed against him. Arar George Tenet and unknown CIA agents.49 much imagination to contemplate the nega- sued the United States and various federal offi- Arar argued that his detention and rendition tive effect on our relations with Canada if dis- cials, arguing that his detention in the United violated the Torture Victim Prevention Act.50 covery were to proceed in this case and were States and his subsequent rendition to Syrian This statute, enacted in 1992, creates a civil it to turn out that certain high Canadian offi- authorities violated his statutory and consti- cause of action against an individual who, cials had, despite public denials, acquiesced tutional rights.41 under actual or apparent authority, or color in Arar’s removal to Syria.”53 Another well-known case of extraordi- of law of any foreign nation, subjects a per- El-Masri filed suit against the United States nary rendition involved Khaled El-Masri, a son to torture. The statute defines torture as in the U.S. District Court for the Eastern German citizen of Lebanese descent. On any act that inflicts “severe pain or suffer- District of Virginia, claiming his detention and January 1, 2003, El-Masri was seized by ing.…whether physical or mental…inten- ordeal violated the Fifth Amendment.54 El- Macedonian authorities as he was attempting tionally inflicted on that person for such pur- Masri’s suit also included claims that his to cross the border between Macedonia and poses as obtaining from that individual or a treatment by the United States violated inter- Serbia.42 El-Masri was imprisoned by third person information or a confession.” national legal norms prohibiting prolonged Macedonian authorities for 23 days. During The statutory definition of mental pain or suf- arbitrary detention and cruel, inhuman, or that period he was not allowed to contact an fering includes “prolonged mental harm degrading treatment.55 attorney, a German consular officer, or his caused by or resulting from…the intentional The government moved to dismiss El- wife. El-Masri was continuously questioned infliction or threatened infliction of severe Masri’s lawsuit, claiming that litigating the about al Qaeda, and he consistently denied he physical pain or suffering; the administra- case would compel disclosure of state secrets. had any connection with that group. On tion or application, or threatened adminis- The state secrets privilege, recognized by the January 23, 2004, El-Masri was taken from tration or application of mind altering sub- U.S. Supreme Court in United States v. the room where he was being held and told stances…and the threat of imminent death.” Reynolds,56 mandates dismissal “if sensitive he was being flown to Germany. Instead he Arar also claimed his rendition to Syria vio- military secrets will be so central to the liti- was transported to an airstrip where he was lated his Fifth Amendment right to substan- gation that any attempt to proceed will again questioned as he was beaten, stripped tive due process. threaten disclosure of privileged matters.”57 of his clothing, and sodomized with a foreign The United States filed a motion to dismiss While a court must determine whether the object. El-Masri was then shackled, blind- Arar’s lawsuit. It argued the Torture Victim state secrets privilege applies in a given case, folded, drugged, and placed in an airplane.43 Prevention Act did not apply because the the Supreme Court held it must do so with- El-Masri later discovered he had been torture occurred while Arar was in Syrian cus- out forcing disclosure of the information the

48 Los Angeles Lawyer September 2006 privilege protects.58 El-Masri’s case was dis- James Comey publicly lauded this deprivation, terrorist activity, and does not brook judicial missed on May 12, 2006. The district court declaring that much of the information review of the designation, or of the treat- concluded that the government’s showing in against Padilla was acquired through inter- ment accorded the citizen after that designa- support of its assertion of the state secrets rogation after Padilla was transferred to mil- tion. privilege was more than sufficient: itary custody, denied access to counsel, and The decision to detain Nadarajah indefi- El-Masri would have to prove he was stripped of the protections given to criminal nitely even though he had been adjudicated abducted, detained and subjected to defendants.67 eligible for asylum by two immigration judges cruel and degrading treatment, all as Enemy combatant status deprives citizens after full hearings deprived Nadarajah of his part of the United States’ extraordinary of the Sixth Amendment right to a speedy liberty without due process of law. The CIA rendition program.…[A]ny answer to trial. In Hamdi the government unhesitat- practice of extraordinary rendition that, in the the complaint by the defendants risks ingly stated that persons designated enemy Arar and El-Masri cases, resulted in those men the disclosure of specific details about combatants are not entitled to a speedy trial.68 being tortured, flies in the face of the Eighth the rendition argument.…These thresh- As argued by the government, once an Amendment directive that the United States old answers alone would reveal con- American citizen was designated an enemy should not inflict cruel and unusual punish- siderable detail about the CIA’s highly combatant, if the government decided that cit- ment. Arar was sent to Syria for questioning classified overseas programs and oper- izen could have process that hearing would after he had obtained counsel, and El-Masri’s ations.59 be held before a military commission estab- requests to consult with counsel were ignored Designating American citizens as enemy lished for the express purpose of trying enemy before he was sent to Afghanistan. To the combatants deprives them of their Sixth combatants. These military commissions do extent these men were entitled to consult Amendment right to notice of the charges not comport with the Sixth Amendment guar- with counsel under the Sixth Amendment, against them.60 While Hamdi was in U.S. antee that an accused shall have an impartial that right was denied. El-Masri and Arar custody for nearly three years, he was never jury trial. The commissions are composed of were subjected to “coercive” questioning formally charged with a crime. Once the a presiding officer who serves as the judge and after they were “rendered” to Afghanistan Supreme Court ruled Hamdi was entitled to three military officers charged with making and Syria, in contravention of the Fifth notice of the charges against him and a hear- findings and sentencing decisions. The mili- Amendment guarantee that people accused of ing, the United States quickly negotiated his tary officers who decide the fate of alleged crime cannot be compelled to incriminate release to Saudi Arabia.61 Padilla was held as enemy combatants are chosen by the secretary themselves. an enemy combatant for three and a half of defense or a designate.69 Austrian psychiatrist Alfred Adler years. During that time the government pub- A citizen declared an enemy combatant did observed, “It is easier to fight for one’s prin- licly alleged he was involved in a plot to not, according to the government, have the ciples than to live up to them.” When explode a dirty bomb in the United States and Sixth Amendment right to confront accusers. President Bush declared war on terror, he that he returned to the United States to con- Under the rules of the military commissions assured Americans, “We will not sacrifice duct reconnaissance for al Qaeda. But charges established for the purpose of trying enemy the freedoms that make our land unique.”72 to that effect were never filed. Soon after the combatants, the accused could be precluded The use of enemy combatant status, indefinite Hamdi decision the United States transferred from learning of evidence if the presiding detention, and extraordinary rendition poses Padilla to civilian custody and charged him officer decided to close portions of the pro- a stark question: While we fight terrorism, will with crimes that have no connection with ceeding for national security reasons. Any we live up to the constitutional principles bombs or reconnaissance. evidence, including testimonial hearsay and that are an essential part of the freedoms Enemy combatant status, as structured evidence obtained through coercion, could be that make our land unique? ■ by the government, deprives citizens of the admitted against the accused if the presiding Sixth Amendment right of the accused to officer determined it had probative value. 1 See, e.g., Michael Kranish, Bryan Bender, et al., have access to counsel. Padilla was working Testimony from confidential informants could Fighting Terror: The Washington Strategy, BOSTON with appointed counsel when the govern- be admitted even though the accused could GLOBE, Dec. 31, 2001, at A1; Carla Seaquist, Needed— A New American Spirit, CHRISTIAN SCIENCE MONITOR, ment decided to declare him an enemy com- not hear their testimony, see them, or learn June 8, 2005, at 9; Georgie Anne Geyer, Even Protests batant. Thereafter the government denied their names—much less cross-examine Are Undergoing Change, SAN DIEGO UNION-TRIBUNE, counsel access to Padilla for consultation62 them.70 Oct. 4, 2001, at B-14; John Aloysius Farrell, It’s Iraq, and even argued counsel had no standing to These practices, coupled with the open- Stupid, That’s Hurting Bush, DENVER POST, May 23, file the habeas corpus petition on his behalf.63 ended detention of citizens designated enemy 2004, at A-25. 2 Hamdi was not allowed access to legal coun- combatants, deprives people of their liberty Some constitutional concerns apply to the government’s use of the enemy combatant designation to sel during the three years he was held as an without due process of law—the bedrock detain foreign nationals in military brigs at Guantanamo enemy combatant.64 principle of the Fifth Amendment. The inher- Bay, Cuba. See Hamdan v. Rumsfeld, 548 U.S. __, No. Enemy combatant designation strips cit- ent power to designate citizens enemy com- 05-184 (June 29, 2006), in which a majority of the U.S. izens of the Fifth Amendment right not to be batants, as argued by the government in Supreme Court held the government could not use compelled to incriminate themselves. Hamdi Hamdi, allows the president to apply that des- specially constituted military commissions to adjudi- cate the charges against foreign enemy prisoners because was interrogated while he was in military ignation to any American citizen deemed a they did not comport with military law or the Geneva brigs in Virginia and Guantanamo, all while threat to the United States. Under the gov- Convention. he was denied access to counsel.65 When ernment’s construction of this inherent power, 3 S.J. RES. 23, 107th Cong. (2001). Padilla was declared an enemy combatant that presidential designation may not be 4 Id. §2(a). 5 and transferred to military custody, he was reviewed by the judiciary so long as the deten- The term “enemy combatant” can be found in Ex Parte Quirin, 317 U.S. 1, 31 (1942): subjected to “ongoing questioning regard- tion has “legal authorization.”71 This asser- Unlawful combatants are likewise subject to ing the al Qaeda network and its terrorist tion of unbridled presidential power is breath- capture and detention, but in addition they activities” while being denied access to the taking. It does not require the president to are subject to trial and punishment by military counsel who had been appointed to represent specify the charges against the citizen, gives tribunals for acts which render their bel- him.66 In June 2004 Deputy Attorney General the citizen no right to challenge allegations of ligerency unlawful. The spy who secretly and

Los Angeles Lawyer September 2006 49 without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. The military and the Bush Administration now use the term “enemy combatant” to distinguish detainees from prisoners of war. 6 In Hamdan, 548 U.S. ___ , No. 05-184 (June 29, 2006), the Supreme Court rejected the government’s claim that the Geneva Convention does not apply to enemy combatants. The Court held that enemy combatants are protected by provisions of the Geneva Convention that require trial by “a regularly constituted Quo Jure Corporation 1-800-843-0660 court affording all the judicial guarantees which are rec- www.quojure.com ognized as indispensable by civilized peoples.” Slip [email protected] op. at 62-72. LAWYERS’ WRITING & RESEARCH 7 Id. 8 These tribunals were not ordinary court martial pro- When you can’t do it yourself, but you still need a brief or ceedings. See Hamdan, 548 U.S. ___, slip op. at 50-51. memo done—and done well, by experienced attorneys who 9 Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004). are skilled writers—turn to Quo Jure Corporation. 10 Joel Brinkley, From Afghanistan to Saudi Arabia, via Guantanamo, N.Y. TIMES, Oct. 16, 2004, at A4. 11 Hamdi, 542 U.S. at 510, 554. Quo Jure provides premium legal writing and research services 12 Padilla, 352 F. 3d 695, 699 (2d Cir. 2003). The to practicing attorneys. Our work has contributed to million- statute governing material witnesses may be found at dollar settlements and judgments. Oppositions to motions for 18 U.S.C. §3144. summary judgment are our specialty. Call for a free analysis 13 Padilla, 352 F. 3d at 700. TM and estimate. The Winning Edge 14 Id. 15 U.S. CONST. art. II, §2: “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states when called into the actual service of the United States.” 16 Hamdi, 542 U.S. at 516. 17 Padilla, 352 F. 3d at 712. 18 Id. 19 Hamdi, 542 U.S. at 518. The majority relied, in part, on Ex Parte Quirin, 317 U.S. 1 (1942), in which Local Retired Judge Offers the Court held that an American citizen captured as part of a German team attempting to inﬁltrate the United States during World War II could be tried by a military $5000 Reward. tribunal. In that case the Court concluded: “[C]iti- zens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are Judge Peter S. Smith (Ret.) recently completed The Magistrates: enemy belligerents within the meaning of…the law of Murder at the Rose Bowl, the eagerly awaited sequel to his war.” Id. at 37-38. 20 Hamdi, 542 U.S. at 536. award-winning novel, The Magistrates. 21 Id. at 533. 22 Id. at 516-17. 23 Brinkley, supra note 10. Hamdi, who held dual cit- To promote both books, Judge Smith is having a contest. If you izenship in the United States and Saudi Arabia, was can correctly answer 10 simple questions based on the required to renounce his U.S. citizenship as a condition of his release. Id. contents of both novels, you could win FIVE THOUSAND 24 Jerry Markon, Justices Order Padilla Terror Case Moved to Civilian Court, WASHINGTON POST, Jan. 5, DOLLARS! 2006, at A1. 25 Nadarajah v. Gonzales, No. 05-56759, 2006 U.S. App. LEXIS 6615 (9th Cir. 2006). L.A. County District Attorney Steve Cooley said, “Murder at 26 Id. at *2-*5. the Rose Bowl would make an extraordinary movie.” 27 Id. at *9. 28 Id. at *13. 29 8 U.S.C. §1225(b)(1)(B)(ii), §1225 (b)(2)(A). 30 Zadvydas v. Davis, 533 U.S. 678 (2001). HURRY! Details at 31 Id. at 678, 701. www.jadapromotion.com 32 Nadarajah v. Gonzales, 2006 U.S. App. LEXIS 6615, at *27. 33 Id. at *28. 34 David Ignatius, “Rendition” Realities, WASHINGTON POST, Mar. 9, 2005, at A21.

50 Los Angeles Lawyer September 2006 35 European Union Report Details Secret CIA Activities Since 2001, DETROIT FREE PRESS, Apr. 27, 2006, at 7. 36 Id. Turn-key Professional Office Space for Lease 37 Paul Richter, Rice Warns Europe on Questioning U.S. Tactics, LOS ANGELES TIMES, Dec. 6, 2005, at A1. 3500 square feet It must be noted that President Bush, in signing the McCain amendment banning torture of prisoners by Stand alone building in West Orange County U.S. military and other personnel, issued a signing $8,000/month statement declaring the administration would interpret the legislation “in a manner consistent with the con- Lease includes furnished law library, conference room, stitutional authority of the president to supervise the copiers, phone/voice mail system, desks, electronics, etc. unitary executive branch and as commander in chief and consistent with the constitutional limitations on judi- for at least 10 attorney/secretary work stations cial power.” Elisabeth Bumiller, For President, Final Say on a Bill Sometimes Comes after the Signing, N.Y. (888) 244-9881 TIMES, Jan. 16, 2006, at A11. 8070 Westminster Avenue, Westminster CA 92683 38 Arar v. Ashcroft, 414 F. Supp. 2d 250, 253-54 (E.D. N.Y. 2006). 39 Id. at 253-54. 40  Id. at 255. 41 Id. 42 El-Masri v. Tenet, No. 1:05cv 1417, 2006 U.S. Dist. LEXIS 34577 (E.D. Va. 2006). 43 Id. at *3-*4. 44 Id. at *5. 45 Id. at *5-*6. 46 Id. See also Richard Bernstein, Germany Says It Pressed U.S. over Detention of One of Its Citizens, N.Y. TIMES,Dec. 15, 2005, at A13. 47 El-Masri, 2006 U.S. Dist. LEXIS 34577. 48 Id. 49 Id. 50 28 U.S.C. §§1350 et seq. 51 Johnson v. Eisentrager, 339 U.S 763, 771 (1950), cited in Arar v. Ashcroft, 414 F. Supp. 2d 250, 275 (E.D. N.Y. 2006). 52 The Bivens doctrine created a remedy for constitutional violations by federal officials. Bivens v. 6 Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 53 Arar, 414 F. Supp. 2d at 281. 54 In keeping with rules on sovereign immunity, El- Masri sued George Tenet, the head of the CIA, and other federal officials in their official capacities. He also sued officials of Keeler and Tate, a private entity. El- Masri, 2006 U.S. Dist. LEXIS 34577, at *7-*8. 55 Id. at *9. 56 United States v. Reynolds, 345 U.S. 1 (1953). 57 El-Masri, 2006 U.S. Dist. LEXIS 34577, at *21- *22. 58 Reynolds, 345 U.S. at 8. 59 El-Masri, 2006 U.S. Dist. LEXIS 34577, at *22- *23. 60 U.S. CONST. amend. VI: “[I]n all criminal prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusation.” 61 Brinkley, supra note 10. 62 Padilla v. Rumsfeld, 352 F. 3d 695, 700 (2d Cir. 2003). 63 Id. at 702-03. 64 Hamdi v. Rumsfeld, 542 U.S. 507, 511 (2004). 65 Id. at 511, 513. 66 Padilla, 352 F. 3d at 700. 67 Mike Dorning, U.S. Releases Details in Case against Padilla, CHI. TRIB., June 2, 2004, at 1. 68 Hamdi, 542 U.S. at 510-11. 69 Department of Defense Military Commission Order No. 1 (Mar. 21, 2002). 70 Hamdan, 548 U.S. ___ , slip op. at 50-52. These features were key reasons why the Court declared the trial by the commissions did not comport with U.S. law or the Geneva Convention. Id. at 60-63. 71 Hamdi, 542 U.S. at 597-98. 72 Richard Wolffe, Attack on Afghanistan Military Strikes, FINANCIAL TIMES OF LONDON,Oct. 9, 2001, at 2.

Los Angeles Lawyer September 2006 51 Ethics Opinion Los Angeles County Bar Association Professional Responsibility and Ethics Committee

Formal Opinion No. 517: Indemniﬁcation of Client’s Litigation Costs

SUMMARY: An attorney may agree to advance the reasonable expenses of prosecuting or defending a client’s matter and waiving the

right to repayment by the client if there is no recovery. Similarly, at either the inception of the representation or during the course of

litigation, an attorney may agree to indemnify the client for court ordered costs if the client is not the prevailing party.

AUTHORITIES CITED: Code of Civil Procedure §§998 and 1034; Ripley v. Pappadopolous, 23 Cal. App. 4th 1616 (1994); California Rules

of Professional Conduct, Rules 3-310(B) and 4-210(A); State Bar Formal Opinion 1976-38; Los Angeles County Bar Association, Professional

Responsibility and Ethics Committee, Formal Opinion No. 495.

STATEMENT OF FACTS: Attorney seeks to represent clients in civil litigation matters who are unable or unwilling to pay costs in the

event they do not prevail in the litigation. Attorney wants to indemnify the clients from any costs that may be awarded by the court if

the clients are not a prevailing party. In some cases, the request for an indemnity arises at the inception of the representation and in

other cases it arises during the course of the litigation.

QUESTIONS PRESENTED: contingent on the outcome of the matter.”) Additionally, State Bar Is it permissible for a lawyer or law firm to indemnify a client for costs Formal Opinion 1976-38 provides that Rule 4-210 does not prohibit associated with litigation in the event the client loses and the prevailing a lawyer from advancing expenses for which the client is responsi- party files a memorandum of costs? ble, even when there is a substantial likelihood that the client does not have the means to pay them. (Re-cited by analogy in State Bar DISCUSSION: Formal Opinion 1994-138 and Interim Opinion 92-0010). Los California Rule of Professional Conduct 4-210(A) provides: Angeles County Bar Association Formal Opinion No. 495 concludes A member shall not directly or indirectly agree to pay, guar- that “an attorney may advance the reasonable expenses of prosecuting antee, represent or sanction a representation that the member or defending an action notwithstanding the client’s refusal to pay such or the member’s law firm will pay the personal or business costs, after they were incurred and even though the expenses might expenses of a prospective or existing client, except that this rule not be repaid.” shall not prohibit a member: Rule 4-210(A)(3) does not expressly address indemnifications of .… clients for costs if the client does not prevail. However, such an (3) From advancing the costs of prosecuting or defending a indemnification is no different from advancing costs repayment of claim or action or otherwise protecting or promoting the which is contingent on the outcome. To the extent an indemnifica- client’s interests, the repayment of which may be contingent on tion is not considered a form of advancing costs through an indirect, the outcome of the matter. Such costs within the meaning of potential, or ancillary obligation, the Committee believes it is permitted this subparagraph (3) shall be limited to all reasonable expenses either at the inception of a matter or during the course of litigation of litigation or reasonable expenses in preparation for litigation or in providing any legal services to the client. (emphasis The LACBA Professional Responsibility and Ethics Committee (PREC) pre- added). pares written opinions and responds to questions by lawyers concerning The unambiguous language of Rule 4-210(A)(3) permits an attor- lawyers’ ethical duties and responsibilities. You may access PREC's formal ney to agree to pay a client’s reasonable litigation costs. (See Ripley opinions through the LACBA’s Web page at www.lacba.org/showpage.cfm v. Pappadopolous, 23 Cal App. 4th 1616, 1626, fn. 17 (1994), not- ?pageid=427. Formal opinions are completed within six months to a year. If ing that the rule allows “an attorney to advance the costs of prose- you have a legal ethics issue (not currently in litigation), please contact cuting or defending a claim and also permits repayment to be made Grace Danziger at (213) 896-6407 or [email protected].

52 Los Angeles Lawyer September 2006 under the general exception of “otherwise of the intended legal action against the defen- no opening statement, then at the time of the protecting or promoting the client’s interests.” dant and that legal action could result in a administering of the oath or affirmation to judgment against the defendant that would the first witness, or the introduction of any evi- Further, since the indemnified expenses of lit- include the costs and necessary disbursements dence. igation are to be decided by the trial court as allowed by this paragraph. (c) (1) If an offer made by a defendant is not mandated under Code of Civil Procedure 1034. (a) Prejudgment costs allowable under accepted and the plaintiff fails to obtain a §§1033 and 1034,1 the amount determined by this chapter shall be claimed and contested in more favorable judgment or award, the plain- the court is presumptively reasonable and, accordance with rules adopted by the Judicial tiff shall not recover his or her postoffer costs therefore, permissible under Rule 4-210(A). Council. and shall pay the defendant’s costs from the (b) The Judicial Council shall establish by rule time of the offer. In addition, in any action or A related question is whether a proposed allowable costs on appeal and the procedure for proceeding other than an eminent domain indemnification of costs agreement between claiming those costs. action, the court or arbitrator, in its discretion, an attorney and client implicates ethical con- 2 Rules of Professional Conduct, Rule 3-310(b): may require the plaintiff to pay a reasonable sideration under Rule of Professional Conduct A member shall not accept or continue repre- sum to cover costs of the services of expert wit- 3310(B)2 by creating an adverse interest sentation of a client without providing written nesses, who are not regular employees of any disclosure to the client where: party, actually incurred and reasonably nec- between the attorney and the client. In the (1) The member has a legal, business, financial, essary in either, or both, preparation for trial Committee’s view, the proposed agreement professional, or personal relationship with a or arbitration, or during trial or arbitration, of does not create a legal, business, financial, pro- party or witness in the same matter; or the case by the defendant. fessional, or personal relationship with the (2) The member knows or reasonably should (2) (A) In determining whether the plaintiff client in violation of Rule 3-310(B)(1) or know that: obtains a more favorable judgment, the court (a) the member previously had a legal, business, or arbitrator shall exclude the postoffer costs. Rule 3-310(b)(3), nor does it create a legal, financial, professional, or personal relation- (B) It is the intent of the Legislature in enact- business, financial, or professional interest ship with a party or witness in the same mat- ing subparagraph (A) to supersede the holding in the subject matter of the representation in ter; and in Encinitas Plaza Real v. Knight, 209 violation of Rule 3-310(B)(4). In this instance, (b) the previous relationship would substan- Cal.App.3d 996, that attorney’s fees awarded the interests of the attorney and the client are tially affect the member’s representation; or to the prevailing party were not costs for pur- the same as they are with any other type of (3) The member has or had a legal, business, poses of this section but were part of the judg- financial, professional, or personal relation- ment. cost or expense associated with a contin- ship with another person or entity the member (d) If an offer made by a plaintiff is not accepted gency case. The specter of increasing costs, as knows or reasonably should know would be and the defendant fails to obtain a more favor- the case proceeds to trial or in the face of a affected substantially by resolution of the mat- able judgment or award in any action or pro- Code of Civil Procedure §9983 offer, are pre- ter; or ceeding other than an eminent domain action, sent in every contingency case. The proposed (4) The member has or had a legal, business, the court or arbitrator, in its discretion, may financial, or professional interest in the subject require the defendant to pay a reasonable sum indemnity does not present a different ethi- matter of the representation. to cover postoffer costs of the services of expert cal result and is simply a contractual expan- 3 CODE CIV. PROC. §998 provides: witnesses, who are not regular employees of sion of the scope of reasonable expenses of lit- The costs allowed under Sections 1031 and any party, actually incurred and reasonably igation to be encompassed within the ambit 1032 shall be withheld or augmented as pro- necessary in either, or both, preparation for trial of Rule 4210(A)(3). vided in this section. or arbitration, or during trial or arbitration, of (b) Not less than 10 days prior to commence- the case by the plaintiff, in addition to plain- This opinion is advisory only. The ment of trial or arbitration (as provided in tiff’s costs. Committee acts on specific questions sub- Section 1281 or 1295) of a dispute to be (e) If an offer made by a defendant is not mitted ex parte and its opinions are based resolved by arbitration, any party may serve an accepted and the plaintiff fails to obtain a more only on such facts as are set forth in the offer in writing upon any other party to the favorable judgment or award, the costs under questions ■ action to allow judgment to be taken or an this section, from the time of the offer, shall be award to be entered in accordance with the deducted from any damages awarded in favor terms and conditions stated at that time. The of the plaintiff. If the costs awarded under this 1 CODE CIV. PROC. §§1033 and 1034 state that: written offer shall include a statement of the section exceed the amount of the damages 1033. (a) Costs or any portion of claimed costs offer, containing the terms and conditions of awarded to the plaintiff the net amount shall be shall be as determined by the court in its dis- the judgment or award, and a provision that awarded to the defendant and judgment or cretion in a case other than a limited civil case allows the accepting party to indicate accep- award shall be entered accordingly. in accordance with Section 1034 where the tance of the offer by signing a statement that (f) Police officers shall be deemed to be expert prevailing party recovers a judgment that could the offer is accepted. Any acceptance of the witnesses for the purposes of this section. For have been rendered in a limited civil case. offer, whether made on the document con- purposes of this section, “plaintiff” includes a (b) When a prevailing plaintiff in a limited taining the offer or on a separate document of cross-complainant and “defendant” includes a civil case recovers less than the amount pre- acceptance, shall be in writing and shall be cross-defendant. Any judgment or award scribed by law as the maximum limitation signed by counsel for the accepting party or, if entered pursuant to this section shall be deemed upon the jurisdiction of the small claims court, not represented by counsel, by the accepting to be a compromise settlement. the following shall apply: party. (g) This chapter does not apply to either of the (1) When the party could have brought the (1) If the offer is accepted, the offer with proof following: action in the small claims division but did not of acceptance shall be filed and the clerk or the (1) An offer that is made by a plaintiff in an do so, the court may, in its discretion, allow or judge shall enter judgment accordingly. In the eminent domain action. deny costs to the prevailing party, or may case of an arbitration, the offer with proof of (2) Any enforcement action brought in the allow costs in part in any amount as it deems acceptance shall be filed with the arbitrator or name of the people of the State of California proper. arbitrators who shall promptly render an award by the Attorney General, a district attorney, or (2) When the party could not have brought the accordingly. a city attorney, acting as a public prosecutor. action in the small claims court, costs and nec- (2) If the offer is not accepted prior to trial or (h) The costs for services of expert witnesses for essary disbursements shall be limited to the arbitration or within 30 days after it is made, trial under subdivisions (c) and (d) shall not actual cost of the filing fee, the actual cost of whichever occurs first, it shall be deemed with- exceed those specified in Section 68092.5 of the service of process, and, when otherwise specif- drawn, and cannot be given in evidence upon Government Code. ically allowed by law, reasonable attorneys’ the trial or arbitration. (i) This section shall not apply to labor arbi- fees. However, those costs shall only be (3) For purposes of this subdivision, a trial or trations filed pursuant to memoranda of under- awarded to the plaintiff if the court is satisfied arbitration shall be deemed to be actually com- standing under the Ralph C. Dills Act (Chapter that prior to the commencement of the action, menced at the beginning of the opening state- 10.3 (commencing with Section 3512) of the plaintiff informed the defendant in writing ment of the plaintiff or counsel, and if there is Division 4 of Title 1 of the Government Code).

Los Angeles Lawyer September 2006 53 By the Book REVIEWED BY STEPHEN F. ROHDE

Radical Innocent

Radical Innocent: Upton Sinclair Nothing the 27-year old Sinclair had done prepared him for the By Anthony Arthur overnight success of The Jungle, which Arthur calls “a landmark of Random House, 2006 twentieth-century American literary realism.” The New York Evening $27.95, 353 pages World announced: “Not since Byron awoke one morning to find himself famous has there been such an example of world-wide celebrity Even among people who do not con- won in a day by a book as has come to Upton Sinclair.” The novel fuse Upton Sinclair with Sinclair would change American society and identify Sinclair as a powerful Lewis, most only know that he was new voice for social justice. the muckraker who wrote The Jungle Sinclair, outraged at how the strike by 20,000 workers at the filthy in 1906. His vast library of over 100 and dangerous Chicago stockyards had been brutally suppressed, con- books, pamphlets, and plays—along ceived of the novel that would become The Jungle. For seven weeks with countless articles—spanning a in 1904 Sinclair lived with slaughterhouse workers, who warmly remarkable life of 90 years, has embraced him. Years later in his autobiography, Sinclair described how receded from the American memory. he submerged himself in the lives of these struggling men and women. Yet, as Anthony Arthur shows in his Exhausted and sickened by the experience, on Christmas Day, 1904, engaging new biography, Radical Innocent: Upton Sinclair, despite Sinclair began his momentous novel. For three months, Sinclair foibles and excesses, Sinclair made a difference with his life. He would later recall, “I wrote with tears and anguish, pouring into the showed that fiction could be an instrument for social good and a means pages all the pain that life had meant to me.” of educating the public on the causes of odious conditions in society Within days of publication of The Jungle, every major newspaper that the mainstream press was ignoring or deliberately concealing. In carried front-page stories about Sinclair’s sensational new novel. addition, Sinclair demonstrated that writers could and should be active President Theodore Roosevelt received hundreds of outraged letters in public life. And on a personal level, Sinclair revealed admirable a week demanding immediate action to clean up the disgusting tenacity in response to repeated setbacks. Chicago stockyards. Six months later, Congress passed the Pure Arthur calls Sinclair “a teacher and a preacher,” whose lasting sub- Food and Drug Act and the Beef Inspection Act. President Roosevelt ject would be “the conflict between idealism and materialism in signed the bills with great public fanfare, but privately he sent Sinclair America,” which Sinclair would explore through “his extraordinary a backhanded compliment: “Tell Sinclair to go home and let me run talent for mastering difficult subjects and making them accessible to the country for a while.” a wide audience of readers.” Arthur also strives to explain why Sinclair failed to write works “that the twentieth-century literary estab- The Effect of The Jungle lishment would praise as high art.” Arthur locates Sinclair’s flaws in In writing The Jungle, Sinclair had endeavored to awaken sympathy his “indifference to the complexities of human psychology and his aver- for the plight of working people in America as well as to demonstrate sion to modernist innovations in narrative technique.” According to how socialist solutions would lead to industrial democracy. But few Arthur, Sinclair’s “greatest handicap was his lack of the psycholog- readers of the novel were converted to Socialism or, for that matter, ical sensitivity that all great writers have, not necessarily about them- even detected Sinclair’s political message. Instead, most readers were selves but about others.” shocked by Sinclair’s vivid portrayal of the threat to America’s food This is where Arthur finds the innocence of the book’s title. supply. As Sinclair himself later put it: “I aimed at the public’s heart Sinclair devoted most of his long career to exposing the ills of and by accident I hit it in the stomach.” American society, yet “he was constantly being unpleasantly surprised, The Jungle became a bestseller in America and in England for six like Candide, by the human potential for treachery.” Yet, as Arthur straight months and was quickly translated into 17 languages. “This effectively demonstrates, the “same innocence that helped to cause terrible book,” Winston Churchill wrote, “pierces the thickest skull his troubles was also a renewable resource of energy that let him start and most leathery heart.” But Sinclair would not enjoy anything anew after every disaster or setback.” approaching such literary acclaim for another 20 years. In the mean- In many ways, Arthur helps us realize that we need Sinclair today time, he went through a painful first marriage and continued to more than ever. His greatest strength was incisively exposing the engage in political activism. excesses of such institutions as organized religion, capitalism, schools, In 1923, Sinclair spoke at a rally in San Pedro to support strik- and the press. In words as true today as when he wrote them in 1920, ing members of the Industrial Workers of the World. At a site known Sinclair argued that “American newspapers as a whole represent private interests and not public interests” and that they are largely Stephen F. Rohde, author of American Words of Freedom and Freedom of owned or controlled, like everything else in America, by “perhaps a Assembly, is a partner with Rohde & Victoroff, specializing in civil litigation score of powerful individuals.” and constitutional law.

54 Los Angeles Lawyer September 2006 as Liberty Hill, Sinclair began by reading the First Amendment and was promptly arrested. Outraged citizens began holding public protest meetings. Sinclair warned the police: “I have a conscience and a religious faith, and I know that our liberties were not won without suffering, and may be lost again through our cowardice.” The charges were dropped, but those gatherings were what led to the founding of the American Civil Liberties Union of Southern California, which Arthur observes Sinclair considered “one of his great accomplishments.”

Oil! and Boston After years of lackluster books, in 1927 Sinclair rebounded with the bestselling novel Oil!, which enjoyed literary acclaim and popular acceptance. The novel was prompted by the Teapot Dome Scandal and Sinclair’s own observations of the Signal Hill oil boom in Long Beach. Sinclair conceived of a “real novel,” complete with an intriguing plot and dimensional characters rather than the stick ﬁgures serving propagandistic purposes that he was sometimes accused of employing. The story pits an oil magnate and former teamster against his son, who turns ﬁrst to Socialism and later to Communism for inspiration and meaning. Oil! joins The Jungle as one of Sinclair’s three best novels—the third being Boston, his massive two-volume work, which would prompt Arthur Conan Doyle to call Sinclair “one of the greatest novelists in the world, the Zola of America.” Outraged at the execution of Italian radicals Sacco and Vanzetti in August 1927, Sinclair dedicated himself to writing Boston at a feverish pace. Meticulously researched and based largely on the transcripts of the seven-year criminal proceedings, Boston struck the right balance between fiction and documentary history. Despite his sympathies, Sinclair harbored growing doubts about the anarchists’ innocence. Eventually, he would conclude that Sacco was guilty and Vanzetti probably not, but willing to go to his death rather than squeal on his friend. The New York Times wrote that Boston “deserves praise as a literary achievement.…It is wrought into a narrative on the heroic scale with form and coherence…full of sharp observation and savage characteriza- tion…[and demonstrates] a craftsmanship in the technique of the novel that the author has seldom displayed before.”

The EPIC Campaign After losing three runs for Congress and a race for governor of California, all on the Socialist ticket, in 1934 Sinclair mounted another serious gubernatorial campaign, this time as a Democrat. The year before, he previewed

Los Angeles Lawyer September 2006 55 the End Poverty In California (EPIC) campaign in the optimistically titled pamphlet I, Governor of California and How I Ended Poverty: A True Story of the Future. Sinclair’s growing appeal with average Californians prompted the invention of neg- ative political advertising. Concocted by MGM moguls Louis B. Mayer and Irving Thalberg, newsreels were exhibited in movie theaters featuring respectable-looking men supporting the reelection of Frank Merriam and hobos with exaggerated Russian accents supporting Sinclair. Remarkably, Sinclair won the Democratic primary, but he did not overcome the unprece- dented smear campaign that had been mounted against him. Merriam was reelected with 1,138,620 votes, but Sinclair garnered an impressive 879,537 votes, with a pivotal 302,519 votes going to the Progressive Party candidate. Sinclair’s respectable showing con- firmed his immense influence in 1934. A Literary Digest survey asking 240 American newspapers to rank the most outstanding people in the world placed Sinclair fourth behind the unlikely trio of Roosevelt, Hitler, and Mussolini.

The Lanny Budd Series From 1938 to 1953, Sinclair was consumed by a vast project, the “biggest story I have written.” In 11 novels known as the World’s End series or the Lanny Budd series, Sinclair traced 35 years of European history, examining the rise and—while the series was being written—the defeat of fascism. At 60, Sinclair launched a panoramic literary achievement “ that would capture him a Pulitzer Prize, solid- A miss is as good ify his international reputation as a historical storyteller, and place him in the National Institute of Arts and Letters. as a mile.” With the Lanny Budd series, Sinclair enjoyed critical and popular recognition unmatched since The Jungle. Theodore Dreiser wrote, “As I look back over Upton Sinclair’s period in the world, I am struck by Even the smallest slip-up in your transactional research can the fact that, had people read his books 20 ruin your next deal. So doesn’t it make sense to use the best years ago, America would not be in the dire tools? Only GSI offers the most comprehensive, easy-to-use condition it is now, struggling for breath transactional research, backed by the most solid customer service under the massive posterior of the corpora- in the industry. And now we’re raising our own standards even tions. Sinclair was that rare manifestation, a higher with new due diligence tools, enhanced content for M&A thoroughly honest writer…showing up the Fuhrers of American business for what they Models, and a more powerful search interface for no-action letters. are.” Find out what you might be missing. On November 25, 1968, at a nursing home in Bound Brook, New Jersey, Upton Sinclair died at the age of 90. A few years ear- Visit us online at gsionline.com or call your lier, Sinclair had written his own epitaph: “I GSI sales representative at 800.669.1154. don’t know whether anyone will care to examine my heart, but if they do they will ﬁnd two words there—‘Social Justice.’” Today, anyone who cares about social justice will ﬁnd much to emulate in Arthur’s illuminating © 2006 Global Securities Information, a division of West L-319471/2-06 biography. ■

56 Los Angeles Lawyer September 2006 Classiﬁeds

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Los Angeles Lawyer September 2006 57 Index to Advertisers

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The California Academy of Distinguished Neutrals, p. 30, 31 Paulson Reporting & Litigation Service, Inside Back Cover Tel. 310-341-3879 www.CaliforniaNeutrals.org Tel. 800-300-1214 www.paulsonreporting.com

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LACBA Business & Corp. Section, p. 23 University of La Verne College of Law, p. 11 Tel. 213-896-6560 www.lacba.org Tel. 877-858-4529 http://law.ulv.edu

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Arthur Mazirow, p. 56 Witkin & Eisinger, LLC, p. 43 Tel. 310-255-6114 e-mail: [email protected] Tel. 310-670-1500

58 Los Angeles Lawyer September 2006 CLE Preview

The New E-Discovery Rules TEN COMMON ELECTRONIC DISCOVERY On Tuesday, September 19, the Los Angeles County Bar Association will present a program led by speaker Russell Jackman covering the new rules and responsibilities MISTAKES for the disclosure, discovery, review, production, and use at trial of electronic On Tuesday, October 10, the Los evidence such as e-mail messages and MS Office documents. Now that over 90 Angeles County Bar Association will percent of business communication is in the form of e-mail and over 93 percent of feature a webinar, or online seminar. business records are maintained electronically, the rule appropriately makes the This program, led by Alexander H. use of electronic discovery nonoptional. This program will help attorneys Lubarsky, will address the most understand and comport with their new obligations and will offer advice from common errors made by attorneys, industry experts on how electronic discovery can be streamlined. Special attention corporate IT staff, paralegals, record to new forensic solutions and law and motion strategies that lend your client the upper hand will be shared with the participants in this first-of-its-kind presentation. managers, and even law firm litigation The program will take place at the LACBA Conference Center, 281 South Figueroa support technology staff and vendors Street, Downtown. Reduced parking is available with validation for $9. On-site when dealing with electronic discovery. registration and the meal will begin at 5 P.M., with the program continuing from 5:30 Learn how to avoid sanctions and to 9:15. The registration code number is 009376. The prices below include the meal. adverse inference rulings by not $90—CLE+PLUS members spoiling your metadata, running afoul $120—LACBA members of reasonable retention policies, $150—all others 3.5 CLE hours causing your client’s data to be deemed inadmissible, failing to file Investigative Research appropriate motions in support of or in opposition to e-discovery techniques, On Thursday, September 14, the Los Angeles County Bar Association will host a session going over budget, and breaking the led by Heidi Walter on how to search real estate ownership and real estate sales records; find information on jury verdicts and settlement agreements; obtain UCC filing all-important chain of custody. Learn data; retrieve bankruptcy filings; locate addresses and phone numbers for individuals from others’ mistakes before you make and businesses; obtain data on suits and judgments filed against a company or an them yourself. The registration code individual; discover a company’s officers and directors, and how it is incorporated, and number is 009420, and the much more. The program will take place at the LACBA Conference Center, 281 South registration time is from 11:50 A.M.to Figueroa Street, Downtown. Reduced parking is available with validation for $9. On-site noon on October 10. registration and lunch will begin at 11:30 A.M., with the program continuing from noon $55—CLE+PLUS members to 1:30 P.M. The registration code number is 009370. $80—Barristers, Litigation, and Family The prices below include the meal. $15—CLE+PLUS members Law Section members $75—LACBA members $100—LACBA members $125—all others $125—all others 1.5 CLE hours 1 CLE hour

The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs listed on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at http://calendar.lacba.org/. For a full listing of this month’s Association programs, please consult the County Bar Update.

Los Angeles Lawyer September 2006 59 Closing Argument BY ROGER CLARK

The Inalienable Right to Fly

IN THE HIGH AND THE MIGHTY, a 1954 film about a doomed airliner to leave rather than submit to the search….”6 struggling across the Pacific from Hawaii to San Francisco, an angry But this year, in United States v. Daniel Kuualoha Aukai, the husband pulls a handgun out of his coat pocket and threatens to shoot Ninth Circuit explained, “The existence and scope of implied con- another passenger whom the husband suspects of having an affair with sent must be examined in light of all the circumstances, and such cir- his wife. But before he can take the fatal shot the aircraft shudders cumstances—and correlated societal expectations—may change over as the outboard engine explodes in fire, and another passenger uses time.”7 The Ninth Circuit essentially said that in the post-2001 the distraction to take the pistol away. Amazingly, after calming world the right of passengers to avoid a search by electing not to fly down, the distraught passenger gets his pistol back. is no longer good law. The court reasoned that “allowing a passen- Whatever its artistic merit, this movie is a classic celluloid time cap- ger in Aukai’s position to revoke his consent would…encourage air- sule. The passenger was not searched for weapons before he boarded. line terrorism by providing a secure exit where detection was threat- There was no security checkpoint, no magnetometer, no x-ray machine, and no bodily pat-down. The passenger was not arrested for carrying a weapon, assault We tolerate current security measures at airports and elsewhere only with a deadly weapon, or attempted murder. He was not indicted for making terrorist threats. The incident simply passes because they are temporary, not permanent. without any suggestion of illegal conduct. How things have changed! We still have, as we did in 1954, a “constitutionally protected right to trav- ened…and thus undermine the essential deterrent purpose of such el.”1 However, today you cannot board a commercial airliner with- airport screenings.…The Fourth Amendment does not require that out first surviving a government-mandated gauntlet of electromag- passengers be given a safe exit once detection is threatened.” netic surveillance and “secondary searches.” Indeed, you would not Aukai underscores just how much our “societal expectations” have even want to board the aircraft unless you knew the person in seat changed from 1973 when the court decided Davis. We now accept 14B had suffered through the same search. There is no need to show what is essentially a micro-police state in an airport, giving up our probable cause because the courts say you have given your implied right of free speech and giving up our right to be free of search consent to the search.2 except upon probable cause. We do this to protect ourselves, and, for In fact, poor taste in humor can now be prosecuted as a felony in the most part, the self-protective measures we have taken are rea- our commercial airports, even when those around you know you are sonable and necessary given the threats we face. joking. Just ask John Barron, who joked he had a bomb in his shoe.3 But Aukai also reminds us that our “societal expectations” have Or ask an angry Anna Mustafa, who, after receiving news that her become a casualty of the war on terrorism. World War II, another era father had died, and because she was concerned that she might miss during which we sacrificed some of our civil liberties to defend our- her flight home due to the slow pace of the searches, sarcastically sug- selves, was over in less than four years. We are already into the fifth gested, “Maybe I have a bomb in my purse. Nobody checked that.”4 year of the war on terror, and there is no end in sight. So we must We all understand why we make these sacrifices. But it would serve remember that we tolerate current security measures at airports and us well to pause and think about how much our attitudes have elsewhere only because they are temporary, not permanent—while we changed over the past few decades, because if we forget where we came patiently await a more genteel era. And it would be helpful from time from we will never find our way back. Things began to change to time to remind ourselves what we once were by watching a cellu- around 1968 when hijacking of commercial aircraft reached serious loid time capsule like The High and the Mighty. ■ proportions. In 1970, President Richard Nixon announced a program to deal with airplane hijacking. As a result, on December 5, 1972, the 1 Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969). Federal Aviation Administration ordered that searches of all carry- 2 See United States v. Daniel Kuualoha Aukai, 440 F. 3d 1168 (9th Cir. 2006). 3 on items and magnetometer screening of all passengers be instituted Illinois v. Barron, 808 N.E. 2d 1051, (2004). 4 Mustafa v. Chicago, 442 F. 3d 544 (2006). Mustafa was acquitted. by January 5, 1973. 5 See WAYNE LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT We initially resisted the idea that someone had the right to look §10.6 at 636-37 (3d ed. 1996). into our bags simply because we had entered an airport with the intent 6 See United States v. Charles Davis aka Marcus Anderson, 482 F. 2d 893 (9th Cir. to take a flight.5 And the courts were in accord: “[A]irport screen- 1973) and United States v. Moore, 483 F.2d 1361 (9th Cir. 1973). ing searches of the persons and immediate possessions of potential 7 Aukai, 440 F. 3d 1168. passengers for weapons and explosives are reasonable under the Fourth Amendment provided each prospective boarder retains the right Roger Clark is managing partner of Clark & Goldberg in Santa Monica.

60 Los Angeles Lawyer September 2006

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