Archive: February 2007

Meanwhile, at the Padilla Hearing

What would you do if you were on trial for conspiring to engage in terrorism against the United States and your co-defendant was Jose Padilla, the former "dirty bomb" suspect and "enemy combatant"? You would probably do precisely what his two real co-defendants are doing-- try to get the hell away from Padilla as their case gets nearer to trial. Adham Amin Hassoun and Kifah Wael Jayyousi both have asked a federal judge to sever their trials from Padilla's trial so that they can be free from what they call "spill-over prejudice" that they say taints Padilla. Smart move. And it would be a smart move for U.S. District Judge Marcia Cooke to grant their requests. Whatever else these men may be, and whatever it is they are accused of doing, they deserve to be judged upon their own conduct and not upon the Padilla's government-inspired infamy. Jayyousi, for example,...

By Andrew Cohen | February 27, 2007; 9:15 AM ET | Comments (1)

A Problem That Could Have Been Worse

Jury deliberations in the perjury and obstruction of justice trial of I. Lewis "Scooter" Libby got off to a rocky start this morning when we learned that one of the jurors inappropriately saw or heard or read something about the case over the weekend. The juror, a woman, was promptly booted off the jury and U.S. District Judge Reggie Walton then agreed to allow deliberations to continue with just 11 jurors. The defense had asked him to allow the jury to proceed this way. Prosecutors had wanted an alternate juror to replace the dismissed one and for the deliberations to start from scratch with a newly-constituted jury. Apparently, neither side wanted a mistrial. So on we go. Why did Libby's lawyers vote for 11? Probably because they saw the start of brand-new deliberations as a pressure point among the panel that might have prompted a quick series of guilty verdicts....

By Andrew Cohen | February 26, 2007; 12:35 PM ET | Comments (25)

What a Good Judge Would Have Done

Sorry, but yesterday's final pathetic act in the saga of Anna Nicole Smith was so beyond the pale, so revolting, and so far removed from the reality of law and justice in America that I have to blog about it. I truly apologize to those of you who have come here looking for refuge from the storm of coverage that has washed over America since she died earlier this month. Let me speak now only about the trial judge. He was in so far over his head that you couldn't even see ripples in the water. His performance over the past week was so bad, so unseemly, and so inappropriate that the Florida bar ought to immediately launch an investigation into whether he is truly fit to determine the rights and liberties of others. Yesterday, the Evening News used a soundbyte of mine in which I said: "he guy wants...

By Andrew Cohen | February 23, 2007; 8:15 AM ET | Comments (4)

Watching the Wheels Go Round and Round

Today is a day for suspended animation in the world of the law-- a day to wait and watch and ponder how and when some of the current moving pieces will fall to rest. The I. Lewis "Scooter" Libby perjury and obstruction of justice trial in federal court in Washington has gone to the jury and the Anna Nicole Smith crazy-fest is maybe one day away from being over, at least for now. Also in Florida, and also speaking of crazy-fests, we are awaiting an important hearing in the case of Jose Padilla, the not-so-dirty-not-so-bomber, whose lawyers are in federal court arguing that he is a not competent to stand trial in April on terror conspiracy charges. Indeed, my dream for today is that every nincompoop journalist covering the Smith hearing would track down to Miami to cover the Padilla hearing, where genuinely important questions about our government's treatment of...

By Andrew Cohen | February 22, 2007; 8:30 AM ET | Comments (2)

Quick Takes on Anna Nicole, Scooter Libby and Guantanamo

What a morning. In the span of just a few hours we've had the start of the circus-like hearing in Fort Lauderdale Florida to determine where Anna Nicole Smith is to be buried; the start of closing arguments in the perjury and obstruction of justice trial of former White House aide I. Lewis "Scooter" Libby; an important Supreme Court ruling that limits punitive damage awards; and a big decision by a federal appeals court that could break the latest logjam over what legal rights the Guantanamo Bay detainees are entitled to. Here is your single soundbyte analysis. The Smith case? The trial judge continues to act like a buffoon and fail to control his courtroom, even as he makes more complex what should have been a simple hearing. The Libby case? Prosecutors preempted a key defense argument by telling jurors that whatever else Libby is, he is not a victim....

By Andrew Cohen | February 20, 2007; 12:30 PM ET | Comments (3)

The Long Weekend Begins

Did you know that Jet Blue officials have been working for years to assist the U.S. government in its efforts at extraordinary rendition? Don't like that one? Okay, how about this one. Who was held in captivity without rights longer-- those poor Jet Blue passengers the other night, stuck in a plane on the tarmac for 10-plus hours or the terror detainees at Guantanamo Bay? I hope the airline gets the pants sued off it. And I hope that the latest Congressional effort to prevent airlines from treating their customers this way doesn't also include some sort of industry-friendly protection from such lawsuits. But I digress. While I am travelling a bit this weekend-- thankfully not on Jet Blue-- lawyers in the I. Lewis "Scooter" Libby perjury and obstruction trial will be preparing their summations for jurors, who no doubt will be spending the weekend themselves trying not to think...

By Andrew Cohen | February 16, 2007; 8:30 AM ET | Comments (1)

Libby's Judge Jumps Ugly on the Defense

The perjury and obstruction trial of former White House aide I. Lewis "Scooter" Libby took another extraordinary turn today when the trial judge in the case, U.S. District Judge Reggie Walton, scolded the defense for deceiving him into thinking that Libby would testify in his own behalf. The Associated Press' Matt Apuzzo put it this way in his lead sentence: "Defense attorneys misled the court into thinking that former White House aide I. Lewis 'Scooter' Libby would testify in his CIA leak trial, a federal judge said Wednesday, as he blocked Libby from using some classified evidence in the case." Apuzzo continued: "Walton appeared upset and seemed to stake his reputation on the decision. Libby's attorneys indicated they would appeal the decision if Libby is convicted. 'If that's what the Supreme Court is going to say (in any ruling on an appeal), they might as well say the government's not...

By Andrew Cohen | February 14, 2007; 2:28 PM ET | Comments (30)

Finally, the Right Move on Gitmo

The best news of the week so far comes from icy, snowy Washington, where Senate Democrats yesterday introduced legislation that would correct some of the worst errors in last year's dreadful Military Commissions Act. The Washington Post's Josh White reports: "A group of Senate Democrats, led by Sen. Christopher Dodd (D-Conn.) introduced a bill yesterday that would restore habeas corpus rights to all detainees in U.S. custody and would narrowly define what it means to be an "enemy combatant" against the United States, a measure designed to challenge laws ushered in by the Republican-controlled Congress last year." White reports that the legislation has bipartisan support. It will need it to overcome an expected veto from the White House, which likely would offer the same tired, lame and unconstitutional arguments about how the detainees down at Gitmo will be getting all the fairness and justice they deserve through the Commissions Act...

By Andrew Cohen | February 14, 2007; 8:57 AM ET | Comments (15)

No Cheney, No Libby For the Defense

Imagine this. Something in Washington, D.C. being completed early! We just learned that Vice President Dick Cheney will NOT testify at I. Lewis "Scooter" Libby's perjury and obstruction of justice trial in federal court in Washington. More importantly, we also are learning that Libby himself will not testify -- a strategic decision by his lawyers that has cut the defense case down to its nub. Closing arguments now are tentatively scheduled for next Tuesday -- several weeks before anything thought this circus of a trial would end. What does it all mean? One thing it means is that Libby's attorneys clearly felt that the risk of bringing Cheney and Libby to the stand were too great to offset whatever reward they may have offered in the way of testimony. This isn't too surprising in Cheney's case -- everyone knows he was going to say his former assistant was/is a good...

By Andrew Cohen | February 13, 2007; 3:24 PM ET | Comments (26)

The Anti-Anna Agenda for Journalists

The death of Anna Nicole Smith dooms me to an immediate future of commentary and analysis on any and all of the following legal issues: who will win the looming paternity suit, who will get control and custody of her newborn baby, who will get the money, and who will be responsible for whatever will she may have left. This is my fate. However, it certainly doesn't have to be yours. Save yourselves. Get out while you can. And because I love and respect each and every one of you, I am going to give you, and my media colleagues, a list of 10 other law-related stories we all could be following instead of the Smith story which, reports journalism.org., accounted for 50 percent (you read that right) of all cable news from February 8-9. Here goes: 1. Britain's Attorney General condemned the U.S. government's latest plan to try the...

By Andrew Cohen | February 13, 2007; 2:45 PM ET | Comments (13)

A Hero in Every Sense of the Word

I am not a big fan of Vanity Fair magazine because, well, it's so vain, because Dominick Dunne (forgive the blasphemy here, folks) has become unreadable, and because one of my first girlfriends ever used to work there and when I look at the masthead now I want to barf. But let's give credit where credit is due. If you can make it past all the gossipy crap and high-faluting image-making junk in the March issue of the magazine, Marie Brenner's profile of JAG lawyer Charles Swift is a fascinating and important and detailed look at one of the most important and heroic legal figures of the 21st century. You are probably surprised by that description because you probably don't know who Charles Swift is. He is the military lawyer who stood up to his bosses at the Pentagon and fought the good fight-- indeed is still fighting it-- against...

By Andrew Cohen | February 13, 2007; 8:45 AM ET | Comments (3)

The Libby Defense Starts with a Bank Shot

If I lived in Washington today I would sneak into the offices of The Washington Post and see if I could use all of the empty desks in the newsroom. Why? Because it seems like half the staff at the Post either is covering the I. Lewis "Scooter" Libby perjury and obstruction of justice trial or participating in it as witnesses. This morning, two venerable Post reporters, Walter Pincus and Bob Woodward, testified for the defense. And now, this afternoon, a venerable columnist whose column appears in The Post, Robert Novak, is doing the same. So far, Libby's lawyers have not exactly blown away court observers with their first witnesses-- and of course you never get a second chance to make a first impression. Pincus told the panel that it was former White House spokesman Ari Fleischer who first told him about Valerie Plame Wilson, the CIA agent and wife...

By Andrew Cohen | February 12, 2007; 12:47 PM ET | Comments (59)

Karl Rove Not Testifying for Libby: CNN

CNN's Ed Henry just reported that fallen White House political guru Karl Rove now will likely not be called to testify after all on behalf of I. Lewis "Scooter" Libby in the latter's perjury and obstruction of justice trial. Libby's defense begins this morning. There are just a few things worth noting about this "development"-- if you can call it that. First, it is a reminder that the "witness lists" that attorneys offer to the court and to each other prior to trial almost always are longer than are the list of witnesses who actually make it to the stand to testify at trial. Lawyers want to keep their options open, pre-trial, so they put onto their lists the names of people who could conceivably help their cause, either by providing affirmative testimony or by offering testimony that undercuts one or more of the witnesses on the other side of...

By Andrew Cohen | February 12, 2007; 9:00 AM ET | Comments (1)

The Libby Case Crests for Prosecutors

It stands to reason that the prosecution's case almost always looks best just before the first defense witness takes the stand. In the Lewis "Scooter" Libby perjury and obstruction of justice case, for example, the only genuine narrative jurors have heard so far has been exclusively shaped by special prosecutor Patrick Fitzgerald. His few but powerful witnesses all have helped portray Libby, to varying degrees, as a guy who was so hands-on and involved in L'Affaire Plame-Wilson that it is hard to imagine, beyond a reasonable doubt or otherwise, that he genuinely forgot what the truth was when questioned under oath. So a long weekend now awaits Team Libby. Not only have they had to endure a tight case-in-chief, they now have to figure out what to do with two testimonial pillars of their cause. For months we'd heard that Libby himself would testify that he honestly couldn't remember what...

By Andrew Cohen | February 9, 2007; 8:45 AM ET | Comments (8)

An A.B.A. Backtrack That Makes No Sense

What in the world is the American Bar Association thinking? The New York Times's Adam Liptak reports this morning that an A.B.A. panel is recommending a change to the language in the Code of Judicial Conduct that would soften to the point of unenforceability certain restrictions on judicial "impropriety and the appearance of impropriety." Apparently, the decision was so controversial that it prompted the immediate resignation of one panel member. Here is the gist of the story in Liptak's words; "The very first canon of the proposed revisions continues to say that judges `shall avoid impropriety and the appearance of impropriety.' But recently added language in the introduction to the code says that while that and other canons provide "important guidance," judges cannot be disciplined for violating them. The canons are followed by rules that are more specific (judges may not, for instance, use the prestige of their offices for...

By Andrew Cohen | February 6, 2007; 8:32 AM ET | Email a Comment

Another "No Exit" Strategy Is Failing

The current edition of The New York Review of Books has an excellent overview of the self-defeating nature of the government's strategy and tactics toward the Guantanamo Bay detainees-- this one written by the acclaimed journalist Joseph Lelyveld. The Pulitzer-Prize-winning author offers in clinical detail the elements of the case against the Bush Administration's policy of "indefinite detention" for the hundreds of men still being held in the terror prison on the island of Cuba. The question, writes Lelyveld, "hangs over our discussions like a far-off thundercloud, darkening a little with each passing year and each report of another suicide attempt at Guantánamo. From the standpoint of the detainees, nothing much has changed over the years." Nothing much, indeed, despite the best efforts of the White House to process the detainees using unfair procedures (subsequently rejected by the Supreme Court) or the submission of the Congress, which just a few...

By Andrew Cohen | February 5, 2007; 8:00 AM ET | Comments (1)

After "Cully" Sullies, he Quits-- and Good Riddance

The best news of the week comes near its very end. Charles "Cully' Stimson, the out-of-line Bush administration lawyer who outrageously sullied detainee defense attorneys and their law firms earlier this month, resigned from his post today as deputy assistant secretary of defense for detainee affairs. Good riddance. There is no place in government for people with the views Stimson expressed during an interview for Federal News Radio a few weeks. And Sen. Patrick Leahy (D-Vt.), the Chairman of the Senate Judiciary Committee, agrees. This afternoon he issued this comment to me following word of Stimson's resignation: "This was the right decision," Sen. Leahy said in an email.. "Mr. Stimson undermined his own effectiveness with his reprehensible comments that showed a lack of commitment to foundational principles of our law and legal system." When Stimson's remarks first came out, I wrote about it for the Washintonpost.com. Other lawyers, journalists and...

By Andrew Cohen | February 2, 2007; 4:16 PM ET | Comments (2)

The Libby Trial, Two Weeks In

Now that the perjury and obstruction trial of I. Lewis "Scooter" Libby is two full weeks in, and in case you haven't been following it from pregnant moment to moment, it's time to identify a few kernels of truth about the case. 1. It's now obvious why Libby's lawyers intend to focus on a "faulty memory" defense on behalf of their client. Witness after witness, several of them eminently credible, have come forward to tell jurors that Libby knew about Valerie Plame Wilson, the covert CIA agent, before the time frame he later disclosed to grand jurors and federal investigators. If jurors have to choose only between Libby's statements at face value and the testimony of all those other witnesses, Libby will lose and be convicted. But if jurors come to believe that Libby merely made a mistake, he has a chance. 2. In order to make it harder for...

By Andrew Cohen | February 2, 2007; 9:30 AM ET | Comments (77)

Here Come the Investigations

As soon as it became clear on Election Night last November that the Democrats were going to control Congress it became clear that 2007 would become the Year of the Congressional Investigation. After six years of the Bush presidency, the loyal opposition would finally have the votes in the House and Senate to demand answers to the pent-up questions they have had about key White House policies, from the war in Iraq to the legal war on terror. One month into the year of the Investigation, the Democrats haven't disappointed their supporters or surprised their foes. The Boston Globe's Charlie Savage has a great piece this morning on the launch of an investigation by the House Judiciary Committee into the Bush Administration's controversial penchant for attaching presidential "signing statements" to legislation. The key quote from the piece comes from the chairman of the Committee, the ageless John Conyers, Jr. (D-Mich),...

By Andrew Cohen | February 1, 2007; 8:35 AM ET | Email a Comment

 

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