FedSoc Blog

The Washington Post reports that the Department of Defense may allow families of Guantanamo Bay detainees to visit them in the prison, after discussing options for a potential visitation program with the International Committee of the Red Cross.

After hearing about these talks, some Republicans have attempted to block the access, with Rep. Howard P. "Buck" McKeon of California, the Chairman of the House Armed Services Committee, inserting language in the annual legislation authorizing activities of the Pentagon that would prevent such visits. However, a later version of the bill would only prevent the Department of Defense funding such visits.

The Pentagon will not discuss any such program and only states that "we are constantly reviewing detention policies with regard to our detention operations globally."

In response to reports of DOD considering authorizing families to visit detainees, Rep. Peter T. King of New York, Chairman of the House Committee on Homeland Security, sent a letter to Secretary of Defense Robert Gates and Joint Chiefs of Staff Chairman Admiral Michael Mullen demanding an explanation. From the letter:

As Chairman of the House of Representatives' Homeland Security Committee, and the Representative from the Third District of New York, approximately 150 of whose constituents were murdered on September 11, 2001, I am gravely concerned with the potential damage to our national security posed by the prospect of the detained terrorists at Guantanamo Bay receiving family or conjugal visits.

The letter outlines a number of potential issues that may arise as a result of this decision and requests a reply by May 20, 2011.

Listen to the audio here.

On April 4, the Supreme Court announced its decision in Cullen v. Pinholster. The questions in this case were the following: 1) Under federal habeas corpus law, is review of a state court decision limited to the record that was before the state court that adjudicated the claim on the merits? 2) Did the state court unreasonably apply clearly established federal law?

In an opinion delivered by Justice Thomas, the Court held that 1) under federal habeas corpus law, "review is limited to the record that was before the state court that adjudicated the claim on the merits" and 2) the state court did not unreasonably apply clearly established federal law.

To discuss the case, we have Ronald Eisenberg, who is the Deputy District Attorney for the Law Division of the Philadelphia District Attorney's Office.

Click here to view this article on the source site »

Prof. Todd J. Zywicki of the George Mason School of Law has an article in The Washington Times proposing reforms of the new Consumer Financial Protection Bureau, created by the Dodd-Frank Wall Street Reform and Consumer Protection Act of last year. His desired reforms seek greater accountability of the agency and a change in its focus to create lower prices and greater choice in addition to protecting consumers.

Click here for a review of the financial reform legislation for the Federalist Society's New Federal Initiatives Project by John Shu.

Monica Goodling, former senior counsel to the U.S. Attorney General in the Bush Administration, was publicly reprimanded today by the Virginia Bar for involving politics in hiring decisions while she worked for the Department of Justice.

The bar made its decision after the special prosecutor appointed by Attorney General Eric Holder Jr. determined in July 2010 that he did not have enough evidence to pursue charges against Goodling and others in the Bush Administration's DOJ who allegedly contributed to these hiring decisions.

Click here to read the story at the Blog of Legal Times.

Listen to the audio here.

On April 27, 2011, the Supreme Court heard oral argument in Nevada Commission on Ethics v. Carrigan. The question in this case is the following: In light of the First Amendment, how strictly should courts scrutinize state laws that require state officials to recuse themselves from voting on matters in which they have an alleged conflict of interest?

To discuss the case, we have Supreme Court advocate Erik S. Jaffe.

Click here to view this article on the source site »

Michael B. Mukasey, former U.S. Attorney General and current Federalist Society Board of Visitors member, wrote an op-ed in The Wall Street Journal today crediting the Bush Administration's use of coercive and forceful tactics in interrogations of terrorist detainees with creating the intelligence needed to kill Osama Bin Laden.

However, he argues that under the Obama Administration's policies publicizing the interrogation tactics officials use on detainees and preventing many such tactics from being used, such valuable intelligence will be difficult to come by:

Immediately following the killing of bin Laden, the issue of interrogation techniques became in some quarters the "dirty little secret" of the event. But as disclosed in the declassified memos in 2009, the techniques are neither dirty nor . . . were their results little. As the memoranda concluded . . . the techniques were entirely lawful as the law stood at the time the memos were written, and the disclosures they elicited were enormously important. That they are no longer secret is deeply regrettable.

Mukasey also asserts that the Obama Administration should end its investigations of CIA operatives for using harsh techniques against detainees.

The op-ed comes on the heels of an op-ed from John Yoo in The Wall Street Journal criticizing the Obama Administration for using methods to kill rather than capture terrorists so that U.S. officials would not have to deal with the question of whether to use harsh techniques to elicit information from detainees.

Erick Smith in USA Today writes that the U.S. Department of Justice has sent a letter to the National Collegiate Athletic Association (NCAA) asking the organization why it continues to support the Bowl Championship Series system and will not hold a playoff to determine the national champion in college football.

Assistant Attorney General Christine A. Varney questioned whether the bowl system violated antitrust laws by not allowing some conferences to participate in major bowl games:

Serious questions continue to arise suggesting that the current BCS system may not be conducted consistent with the competition principles expressed in federal antitrust laws.

This comes after Mark Shurtleff, Attorney General of Utah, said last month that he plans a suit against the BCS because it is "an illegal monopoly." The BCS promises answers to the questions from the DOJ. Bob Williams, the NCAA vice president of communications, writes:

When we actually receive the letter from the Department of Justice we will respond to their questions directly. . . . It should be noted that President Emmert consistently has said . . . that the NCAA is willing to help create a playoff format for Football Bowl Subdivision football if the FBS membership makes that decision.

The Federalist Society's Silicon Valley Lawyers Chapter will hold a luncheon featuring former U.S. Secretary of Homeland Security Michael Chertoff on Wednesday, May 18, at 11:30 AM. At the event, which will be held at the Stanford Park Hotel in Menlo Park, CA, Mr. Chertoff will discuss the topic "Privacy 3.0."

Click here for more details and to RSVP.

Click here to view this article on the source site »

Listen to the audio here.

On March 1, the Supreme Court announced its decision in Staub v. Proctor Hospital. The question in this case was under what circumstances an employer may be held liable under the Uniformed Services Employment and Reemployment Act (USERRA) for employment discrimination based on the animus of an employee who influenced, but did not actually make, the final employment decision.

In an opinion delivered by Justice Scalia, the Court held that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."

To discuss the case, we have Victoria Dorfman, who is a partner at Jones Day. Ms. Dorfman is on an amicus brief in support of the respondent.

Click here to view this article on the source site »

Join the Chicago Lawyers Chapter on Monday, May 16 at 5 PM for a reception and book signing featuring former U.S. Secretary of Defense Donald Rumsfeld, who has recently come out with a new book, Known and Unknown: A Memoir. The event will be held at the University Club of Chicago.

For more details, and to RSVP, click here.

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David Ingram posted yesterday on The Blog of Legal Times about the legal justification of the killing of terrorists and, specifically, the killing of al-Qaeda leader Osama bin Laden Sunday at a compound in Abbottabad, Pakistan.

While many lawyers assert that the operation to kill Bin Laden was on solid legal footing, with the operation falling in the "sweet spot" of the Authorization for Use of Military Force against al-Qaeda passed by Congress in 2001, they predict that this killing will renew the debate about when and how it is appropriate to use deadly force against alleged terrorists in the War on Terror.

For more on targeted killings and the use of predator drones in the War on Terror, click here to listen to a practice groups podcast entitled "Predator Drones and Targeted Killings" with Prof. Michael W. Lewis of Ohio Northern University Pettit College of Law and Mr. Ben Wizner of the ACLU.

Listen to the audio here.

On April 27, the Supreme Court announced its decision in AT&T Mobility v. Concepcion. Section 2 of the Federal Arbitration Act (FAA) makes agreements to arbitrate "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." The question in this case was whether the FAA bars states from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures.

In an opinion delivered by Justice Scalia, the Court held by a vote of 5-4 that because state laws that condition the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures is "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," the FAA bars such laws.

To discuss the case, we have Brian T. Fitzpatrick, who is an Associate Professor of Law at Vanderbilt University Law School.

Following King & Spalding's decision last week to end its representation of the House of Representatives in defending the Defense of Marriage Act in federal court, Virginia Attorney General Ken Cuccinelli has decided to end his office's collaboration with King & Spalding on the ground that he could not trust the Atlanta law firm to continue providing its services to Virginia, reports the Washington Examiner.

Attorney General Cuccinelli said in a letter to King & Spalding's D.C. office:

King & Spalding's willingness to drop a client, the U.S. House of Representatives, in connection with the lawsuit challenging the Defense of Marriage Act (DOMA) was such an obsequious act of weakness that I feel compelled to end your legal association with Virginia so that there is no chance that one of my legal clients will be put in the embarrassing and difficult situation like the client you walked away from, the House of Representatives.

Virginia had retained King & Spalding on September 15, 2009, and the termination, Cuccinelli wrote, was "effective immediately."