On September 12, 2012, Judge Katherine B. Forrest of the United States District Court for the Southern District of New York issued a permanent injunction barring the government from enforcing a statute authorizing the indefinite detention without trial of terrorism suspects. On September 17, 2012, Judge Raymond J. Lohier of the Court of Appeals for the Second Circuit granted an interim stay until a panel of judges hold a hearing scheduled for September 28.

NAFUSA held a two hour panel in New York in 2010 on the prosecution of terrorism suspects and Charlie Savage of The New York Times moderated the panel. Two years later this issue has not gone away and Savage writes in The Times,

The United States has been detaining terrorism suspects indefinitely since 2001, relying on an authorization by Congress to use military force against perpetrators of the Sept. 11 attacks and those who helped them. Last year, Congress decided to create a federal statute that codified authority for such detentions.

The new statute went beyond covering the perpetrators of the Sept. 11 attacks to also cover people who were part of or substantially supported Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States or its allies. Its enactment was controversial in part because lawmakers did not specify what conduct could lead to someone’s being detained, and because it was silent about whether the statute extended to American citizens and others arrested on United States soil.

It was challenged by Chris Hedges, a journalist who interacts with terrorists as part of his reporting, and by several prominent supporters of WikiLeaks. They argued that its existence chilled their constitutional rights by creating a basis to fear that the government might seek to detain them under it by declaring that their activities made them supporters of an enemy group.

In May, Judge Forrest agreed, issuing a preliminary injunction barring the government from relying on the law to detain anyone without trial, and Wednesday she made that injunction permanent in a 112-page opinion.

This afternoon the Justice Department released the 471-page report from Michael Horowitz, the DOJ Inspector General, finding  federal agents and prosecutors in Phoenix primarily responsible for the failed effort to infiltrate weapons into smuggling rings in the operation named “Fast and Furious”.

According to The Washington Post in an article entitled Justice IG Critical of ATF in Gun Operation,

The long-awaited report also directed sharp criticism at senior officials from the Justice Department and its Bureau of Alcohol, Tobacco, Firearms and Explosives in Washington for lax oversight of the attempt to block the flow of weapons to Mexico’s violent drug cartels. Many of the weapons later turned up at crime scenes in Mexico and the United States, including one in which a Border Patrol agent was killed.

The inspector general’s report recommended that the Justice Department consider taking disciplinary action against 14 current officials from the department and ATF. Among them were former acting Deputy Attorney General Gary Grindler, Assistant Attorney General Lanny Breuer, former acting ATF Director Kenneth Melson, former ATF Special Agent in Charge William Newell and Deputy Assistant Attorney General Jason Weinstein.

Weinstein resigned today but called the IG’s conclusion that he knew about and failed to stop the practice of allowing guns to cross the border “completely false.” Weinstein is represented by NAFUSA member and former DOJ Inspector General Michael Bromwich.

The IG’s report failed to criticize Attorney General Eric holder Jr., finding that he had no advance knowledge of the tactics and risks involved in the operation.

The New York Times, in an article entitled Guns Inquiry Urges Action Against 14 in Justice Dept., and written by Charlie Savage, who will moderate a panel at the Atlanta NAFUSA conference, states,

In a scathing report, the inspector general, Michael Horowitz, laid primary blame on what he portrayed as a dysfunctional and poorly supervised group of Arizona-based federal prosecutors and agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives. As part of the operation, those officials did not act to seize illegal weapons in hopes of bringing a bigger case against a gun-smuggling network linked to a Mexican drug gang.

 

While it found no evidence that officials at the Justice Department in Washington had authorized or approved the tactics, it faulted several officials for related failures, including not recognizing red flags and failing to follow up on information about both Operation Fast and Furious and a similar, earlier investigation called Operation Wide Receiver, in which guns also reached drug gangs.

 

The ABA Journal reported that Chief Judge David Sentelle of the U.S. Circuit Court of Appeals for the District of Columbia told a Judicial Conference meeting at the U.S. Supreme Court on Tuesday, September 11, 2012, that unless a federal budget impasse is resolved by Congress, all federal civil jury trials may have to be eliminated in 2013.

Judge Sentelle is the chairman of the executive committee for the Judicial Conference. The committee is making contingency plans to deal with a possible need for $500 million in cost-cutting next year, as the judicial system’s share of $1.2 trillion in spending cuts due to take effect next year, absent a new budget agreement.

On March 29, 2012, the United States Senate confimed Michael E. Horowitz to be the Inspector General at the Department of Justice and Kathryn Keneally to be the Assistant Attorney General for the Tax Division. Both were nominated by President Obama in 2011 and their confirmations ended months of delay in the Senate.

Horowitz served as Chief of Staff to Assistant Attorney General (and Past President of NAFUSA) James K. Robinson in the Clinton Administration (succeeding NAFUSA Executive Director Rich Rossman, Robinson’s first Chief of Staff). Horowitz also served as Chief of Staff to Michael Chertoff, the first Assistant Attorney General for the Criminal Division in the Bush Administration. Horowitz also served on the U.S. Sentencing Commission. He leaves a partnership in the Washington, DC office of Cadwalader, Wickersham & Taft. He is a graduate of Harvard Law School.

More than 100 former federal prosecutors, including many members of NAFUSA, have joined more than 125 signatories of  Call for Congess to Reform Federal Criminal Discovery (click here to read the full statement as well as review a list of all signatories to date). The Call for Reform, dated March 15, 2012, states that “we have seen a troubling number of cases involving failures to disclose evidence to the defense pursuant to Brady v. Maryland and its progeny. It cites the prosecution of Senator Ted Stevens as “most notable.”

The Call for Reform concludes:

Only federal legislation can adequately address these continued violations by federal prosecutors, creating a uniform standard for what must be disclosed and what remedies will exist for non-disclosure, and sending a strong message to the DOJ that there will be consequences when federal prosecutors violate their discovery obligations.

The legislation that we envision would do the following:

1. Provide that the scope of the prosecution’s discovery obligation extends to all information—regardless of admissibility at trial—that could reasonably be considered favorable to the defendant, with respect to pretrial motions, guilt, impeachment of witnesses, or sentencing. Requiring disclosure of all “favorable” information requires less room for interpretation on the part of the prosecutors than a materiality standard.

2. Clarify that prosecutors have an obligation to exercise due diligence in obtaining any favorable evidence, beyond what is in their possession, from other parties involved in the investigation and/or prosecution, including federal, state and local law enforcement or other agencies.

3. Require that prosecutors disclose favorable information without delay, as soon as they become aware of it, thus clarifying that the Jencks Act does not trump this disclosure requirement. If the government has legitimate objections to disclosure due to concerns about a witness’ safety, a desire to protect classified information, or other reasons, prosecutors may raise those concerns with the court, which can issue a protective order if appropriate.

4. Impose an appropriate remedy in the case of non-compliance, including exclusion of evidence or witness testimony, a new trial, dismissal of the charges, or other remedies to be determined by the court. Courts generally have the power to fashion appropriate remedies under their general supervisory powers, but this law would clarify that the court shall use that power to fashion an appropriate remedy each time a violation of the disclosure requirement has occurred.

On March 15, 2012, Senator Murkowski introduced a bill that closely mirrors the reforms called for in the statement. The Department of Justice has issued a statement expressing opposition to any legislation reforming criminal discovery practices.

On January 24, 2012, the Department of Justice held a celebration of the life and career of John C. “Jack” Keeney. The event was held in the Great Hall and attended by former Attorney Generals and many additional current and former Justice officials.

NAFUSA member David Margolis, a long time close friend of Keeney’s, presided. The speakers were James Cole, Deputy Attorney General, former Assistant Attorney General of the Criminal Division, Jo Ann Harris, the current Assistant Attorney General for the Criminal Division, Lanny Breuer, former Deputy AG Philip Heymann, Director Robert Mueller of the FBI and Attorney General Eric Holder. A moving video tribute, produced by DOJ photographer Lonnie Tague, was one of the highlights of a special rememberance of a legend who served the Department for 59 years.

 

On January 11, 2012, NAFUSA’s six-member Liaison Committee met with Attorney General Eric Holder in his conference room at Main Justice. It was the most recent of several periodic meetings with the General, which began in 2010. Following the meeting with the AG, the committee also met with the Attorney General’s Advisory Committee (AGAC). The Liaison Committee is chaired by NAFUSA President Rick Deane and is composed of President Elect Jay Stephens, Secretary Matt Orwig , board member Doug Jones and Executive Director Rich Rossman. Committee member Wayne Budd was unable to attend, and board member Joe Whitley attended in his absence.

President Deane began the meeting by proposing that NAFUSA sponsor a lecture series intended to foster and promote ethics and professionalism within the Department, with a particular focus (though not exclusively), on United States Attorneys. The goal would be to offer something inspiring and perhaps aspirational, rather than a discussion of ethics rules. The committee mentioned the presentation that William Ruckelshaus, the former Deputy Attorney General in the Nixon Administration, gave to NAFUSA at its annual conference in Seattle in 2009 as an example of such a lecture. The General was very open to this suggestion and the committee later discussed it with the AGAC, whose members were very receptive. We agreed to attempt to put something together for the upcoming U.S. Attorney conference to be held in March.

We had an extensive discussion with the AG about the budgetary impact on Department resources. The General said Justice has done better than some departments of government, but it has been a tough budgetary cycle. He feels he has the capacity to handle the problems, but for how long. He mentioned that the Bush Administration had left a good structure in place in the national security area and that there is much more cooperation between agencies than was the case in the past.

Terrorism, of course, is the major focus. There are more terrorism cases around the country, not just in New York and Virginia. It will have to be decided whether the FBI will primarily be a national security agency. The state and local law enforcement agencies are also feeling the pinch and looking to help from federal prosecutions. It is a challenge to find the agencies to do the investigations. There is a need for seasoned, experienced agents, not just new hires. The threat of terrorism has not diminished, but is changing. The “lone wolf” continues to be a real concern.

A hiring freeze has been in effect for a year. There are hundreds and hundreds of applicants, but no ability to hire. The General hopes that will change soon. He argues to OMB that the Department can make money for the government if it has the resources. Through attrition the U.S. Attorney offices lose about 700 a year in AUSAs and support staff. There have been some volunteers who work without pay. Several field antitrust offices are closing and the work being centralized in Washington. The Bureau of Prison population is growing and taking budget from other areas. It will be worth looking at studies to seek methods to ease reentry in hopes to reduce prison population. Health care fraud is a priority. The civil rights effort has been beefed up.

The committee also proposed a NAFUSA “Day at Justice” as part of our national conference to be held in 2013 in Washington. NAFUSA would seek to host a half day at the Great Hall and ask major leaders at Justice to speak to us on the priorities and state of the Department. The General was very supportive.

The committee then had an hour meeting with the AGAC. President Rick Deane explained the purpose of NAFUSA and our dedication to the Department and the institution of U.S. Attorney. He explained that we are nonpartisan in our nature and not involved in partisan debates. He told them we look forward to their future membership in NAFUSA, whenever their terms might end. President Elect Jay Stephens discussed NAFUSA’s Bradford Award and told the AGAC that the process will begin soon to select a winner for 2012. He encouraged the AGAC members to make nominations. As mentioned above, the AGAC was very open to our suggestion of a planned lecture series.

AGAC chair Paul Fishman said that due to Eric Holder “being one of us as a former U.S. Attorney and willing to listen to the AGAC”, the committee has more influence than in the past. He said each office could double in size and not run out of work to do. He said the total budget for U.S. Attorneys is $1.9 billion and they took in $6.5 billion in forfeitures, fines and the like. He made the point that the offices are cash positive.

The Liaison Committee felt it had a very productive day in Washington and is hopeful that these sessions will become institutionalized and remain in place through future administrations.

The photo above is from the July 20, 2011, meeting with the Attorney General. Shown from the left, Doug Jones, President Rick Deane, Secretary Matt Orwig, Attorney General Eric Holder, Immediate Past President Bill Lutz, Executive Director Rich Rossman and Wayne Budd. Current Liaison Committee member and President Elect Jay Stephens and alternate Joe Whitley are not shown.

The U.S. Department of Justice will hold a celebration of the life of John “Jack” C. Keeney, former Deputy Assistant Attorney General, Criminal Division, who passed away on November 19, 2011. Keeney served in the Criminal Division for 59 years. The celebration will take place on Tuesday, January 24, 2012 from 2:00 p.m. until 3:30 p.m. in the Great Hall. All NAFUSA members are invited to attend. Please see the invitation below. If you plan to attend, please R.S.V.P. as indicated by Friday, January 20th.