Bring Back Government in the Sunshine! It's the best disinfectant. . . .

Do you remember the "Government in the Sunshine Act?" It was passed in 1976. Basically the idea was something like a Freedom of Information Act for what Government agencies do on behalf of the citizens. It requires advance notice of meetings and meetings open to the public. We could use a lot more sunshine on what our Government has been doing in our name around the world that has brought our reputation to such a tarnished state.

I just learned this afternoon that the Supreme Court has ruled that someone who claimed to be a victim of "extraordinary rendition," Khaled el-Masri, cannot get a trial in the United States on his claims of violation of his 5th Amendment right to due process of law before being subjected to treatment that "shocks the conscience" or deprives him of his liberty. In addition, Mr. el-Masri asserted claims against the CIA and various private companies that allegedly cooperated in his abduction and interrogation that they had violated his rights under the Alien Tort Statute not to be abducted and subjected to prolonged, involuntary detention and to cruel, inhumane or degrading treatment prohibited by customary international law. The high Court declined to hear Mr. el-Masri's case on appeal from the US Court of Appeals for the Fourth Circuit in Richmond. The appeals court upheld the decision of the trial judge that the "state secrets doctrine" prohibits disclosure of the truth about what happened to Mr. el-Masri.

Years ago I worked in the Office of International Affairs in the US Department of Justice. That office is responsible for shepherding all international extradition cases involving US requests to prosecute people who are abroad but wanted for prosecution in the United States and vice versa. These extraditions are governed by US treaties with other nations (mostly bi-lateral treaties negotiated by the two nations involved) and US law that implements the treaties. The US has a statute that provides our federal courts with a road map of the finding that must be made, based upon limited evidence, that the person is a fugitive from justice (or just plain wanted for prosecution by the lawful authorities based on a warrant) in the Requesting State, that the person before the court is the one that is wanted, and that there is probable cause to believe that he committed a crime that is a crime at the felony level under the law of both nations. The implementing laws in other countries are similar to ours. The procedure followed in the US is simple. The person wanted for extradition who is found in the United States is afforded a hearing before a US magistrate judge, and the right, if found extraditable, to challenge the decision by way of a writ of habeas corpus (basically a complaint that states he is being held unlawfully) and finally, an appeal directly to the US Secretary of State.

When I was at DOJ, however, every once in awhile, when there was a high stakes "target" and extradition was unlikely or would take too long, the FBI or DEA or other agency would arrange with some cooperative third government to have the target lured there, arrested and quickly put on a plane to, say, Miami where a coterie of US Marshals would be waiting at the airport outside of town. Back in those days, the targets were usually major drug dealers who hailed from Colombia during the days when it was the policy of the Colombian government not to extradite its own nationals who happened to be among the most sought after global criminals. Because of what is known as the "Ker-Frisbie" doctrine (named after a couple of old Supreme Court cases), a US court will not look behind the fact that someone arrived in the US to question whether they got here lawfully. So, a criminal defendant who is the subject of an "extraordinary rendition" basically has no way of challenging the way he arrived in the US as a reason to throw his case out of court.

But el-Masri's case was different. What he said was that the US Government and its agents and cooperating companies that arranged for his secret and secure transportation abducted him in Macedonia and arranged for him to take an involuntary trip to Kabul, Afghanistan where he was subjected to interrogation techniques that were much worse than the ones my father used to use on me when I got in late at night. Basically, el-Masri sought the assistance of the US courts to expose the practice and condemn it and award him damages. Forgeddaboutit, said the American judges. If we let our countrymen and the world know what happened to you, it would expose a program or a technique that is important to national security according to what the Government lawyers told us --- hence, it is a state secret.

As more of these operations go forward to spirit away people wanted for interrogation in a manner that would not pass the smell test in the US, our reputation in the world, in my view, sinks lower and lower. Why do we think that the world is fooled simply because we outsource our interrogations to places and sometimes interrogators who are, as my mother would say, "not our type, dear." Do they think that these operations are not totally under our control? As a potential client said to me, part of my career cannot be discussed because it never officially happened. Isn't that chilling (not to mention unhelpful when it comes time for promotion).

An Italian magistrate has issued warrants for the extradition of CIA agents who were believed to have been involved in a similar abduction in Italy. It is hard to believe that anything goes on in Italy in law enforcement without the complete knowledge and cooperation of our two governments. In the days when Ed Meese was Attorney General, he loved to go to the biennial meetings with his Italian counterparts to manage the bilateral cooperative effort against the Mafia, drug traffickers, and the occasional terrorist. However, the magistrate, who acts like a grand jury in Italy, was sufficiently outraged that he wants to apply the law to what is alleged to have been done to a Muslin cleric, Hassan Osama Nasr, who was abducted in Milan. He has even arrested the deputy head of Italy's military intelligence service and put his predecessor under house arrest because they allegedly cooperated with the CIA in the operation. The affected CIA agents, if they were involved at all, have had their utility limited as they undoubtedly cannot travel outside the US without being subject to being arrested for extradition to Italy.

Ronald Reagan famously described the United States of America as a shining city on a hill. The image was an apt one because it summed up the admiration that he had for the land he loved -- the land of the free and the home of the brave. While I was never a big fan of President Reagan, his simple words had a way of saying what we as a nation are supposed to stand for. I am certain that he would be appalled at the abuses at Abu Ghirab which were exposed. I am not so certain what he would think about what our courts have done to protect the black hole of extraordinary rendition from Government in the Sunshine. My hope is that the United States under the next administration will once again become the admiration of all the world -- one that believes in and adheres to the norms of international law that it fought to develop. It is hard to remember that we were the ones who led the fight for the Geneva Conventions beginning at the end of the 19th century through the founding of the United Nations.

I remember being invited to be part of the faculty at a program sponsored by the UN High Commissioner for Refugees in Minsk, Belarus many years ago -- before there was even a McDonald's in Minsk. The topic of the conference, for Belarussian government officials, was "Human Rights and Police Procedures" with an emphasis on United Nations policy documents governing those issues . Many of the UN resolutions on these topics drew heavily from the US Constitution and caselaw. When I arrived in Minsk, I discovered that half the invited faculty had not shown up. I was asked to give the keynote speech at the last minute. I did so. The next day, about half of the attendees who had been present at the previous session did not return. The translator told me they were afraid to be identified as attending a conference where such dangerous concepts as due process of law and universal human rights to avoid cruel, inhuman and degrading treatment were being discussed. The Government of Belarus was then, as now, a monument to Communism. Local human rights protesters had to be clever (announcing their demonstration for a particular place and then holding it elsewhere, for example. It was suggested that I not attend the protest because I did not come fully equipped -- I did not bring my own bandages!). I felt proud to be bringing concepts accepted the world over through the United Nations to the attention of a people long subjected to dictatorial rule.

It is very troubling that our Government is now in need of the same lecture on human rights and police procedures. No matter how hideous and dangerous our opponents, we must hold our system of Government up as an example -- not just as something that is expedient when the threat level is lower than "yellow" or "orange." Democracy is very fragile; we must fight every day to support its principles. Bring back Government in the Sunshine!

On Liberty -- Revisited

"If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind." -- John Stuart Mill

President Lee Bollinger of Columbia University is to be commended for providing a forum by which the President of Iran could engage in some interchange with Americans. Undoubtedly Bollinger's guest does not get the opportunity for robust debate at home. However distasteful his views and his government's actions as a state sponsor of terrorism, it is better for him and for us to be exposed to each other's views so we may better understand them. My only question is whether President Bollinger's "introduction" might have been better had he respected George Washington's admonition, "Use no Reproachful Language against any one neither Curse nor Revile." Our first President said this about how to deal with low lifes,
"Never express anything unbecoming, nor Act against the Rules Moral before your inferiors."

Perhaps a few words of welcome to the land of the free and the home of the brave might have been in order to mark the solemnity of the occasion of the introduction of the visiting despot to academic discourse -- American style. While President Bollinger was certainly justified in condemning President Ahmadinejad's dictatorial regime, the tone was certainly not one that would impress the visitor that he was welcome to express his views -- however untutored and unpopular they might be. Ironically, it was Columbia that in 1968 suppressed dissent of its students by inviting the New York Police Department to force more than a thousand encamped protesters out of five buildings at Columbia -- an action that ended a seven day siege but may still rank as the largest police action ever undertaken at an American University. While President Bollinger has little in common with his stuffy and insufferable predecessor, Grayson Kirk, he might have considered the idea that President Ahmadinejad, like his university, might be better educated with civility and reason than self-righteousness and ridicule.

What a life!

I just learned of the passing of a long time friend and colleague, Whitney Adams -- a true pioneer in the law. Whitney was 61 but her true age was more like 41. She was a bundle of energy.

I first met Whitney when we were in the US Attorney's Office in DC. She was in the generation ahead of me which meant that she was among the first 25 women ever hired by the Office (I found out years ago that I was #25). We became good friends when she left Rogers & Wells to set up her own practice and we had adjacent offices at 888 16th Street. While I showed her some of the "ropes" for solo practice, her practice took off almost immediately due to her wide circle of friends and professional contacts. We shared lots of laughs and good times there before she eventually decided to move her office to McLean. She was always the source of good advice and she had terrific instincts about how to handle just about any situation. Eventually she became inhouse counsel to a technology firm.

Whitney was a trailblazer for women in so many ways. She was one of the founders of the Independent Women's Forum. While I did not agree with Whitney's politics, I was happy to support her when she ran for office in Virginia. Unfortunately for the voters there, she was unsuccessful in her run for state office. She also joined the Women's Economic Alliance that promoted breaking the glass ceiling with assertiveness training.

Whitney was a devoted mother to her two sons, Taylor and McLean, and often took them with her to professional events. She was so proud of them and their achievements. She was a real soccer mom. Taylor graduated from Princeton. McLean is a senior at UVa.

The only thing that Whitney could not conquer was breast cancer. As I recall from our conversation about it, she was misdiagnosed and the delay in her treatment caused the recurrence of it some years later. I sincerely hope that she got some justice before she passed. She fought the cancer with dogged determination.

Last week as she lay in her hospital bed, two friends of ours, Carol Bruce and Liz Medaglia, told her what an inspiration she had been to other women. Whitney wanted to make sure that her message got out to other women, "You need to tell them they can do it! They can do it!" she said.

Whitney, you did it. With style!

O.J. Simpson revisited

The media hype over the recent arrest of O.J. Simpson recalled for me the beginnings of my career as a legal pundit on TV. One day as I was being ushered into the studios at CNN to do some commentary, I queried the young booker as to why the network was devoting so much time to the OJ Simpson murder trial. She told me "our ratings go up every time we put on the trial." What was astonishing to me then -- that the public was fixated on a perfectly normal murder case -- seems commonplace today. It is almost impossible to get much in the way of useful news from television because so much time is devoted to the latest spectacular crash on the Nascar highway or to the antics of Britney Spears --whoever she is (I'm too old to care).

A conservative Republican recently advised that to survive in the Regulatory State it is vital to understand that the public tunes out most information of global or national significance, focuses upon factoids of personal importance and has an attention span that is most receptive to sound bites. Why, then, does CBS News feel it must email me with the breaking news that OJ has been released on bail? Personally, I am wondering where he got the funds to post bond since he's supposed to be paying Fred Goldman millions. Guess he's got a really clever asset protection plan at one of those beachfront banks in the Caymans.

In the old days I queried O.J. Simpson as to who in the world of Faye Reznick was the "real killer" and what physical evidence did he have that anyone was the killer but himself. He was completely inarticulate. During Watergate we heard the refrain, "follow the money." With O.J. we were introduced to DNA evidence and, as it turns out, it was right on the money -- or at least right on. So, I tell you with any case involving the "Juice," look for the physical evidence because it does not lie and cannot be successfully cross examined.

In the Beginning

One has to start somewhere. I envision this blog to be a running commentary on all manner of things dealing with the rule of law, legal developments, ethics, and practical advice for lawyers and those who seek our advice. I will comment on the political scene, add humor, and generally do my best to entertain and challenge you, the readers. Please feel free to comment.