• June 8, 2010
    The federal government may be ill-equipped to stop the torrent of oil coursing through the Gulf of Mexico following the April 20 explosion of the Deepwater Horizon oil rig, but it has the means to prosecute those responsible for the environmental disaster, writes David M. Uhlmann.

    In a recent column for The New York Times, Uhlmann, a law professor at the University of Michigan and former head of the environmental crimes section of the Justice Department, maintains that the oil spill - unlikely a result of weather - increasingly appears to have been caused by "negligence or worse in the events leading to the explosion of the rig." So, Uhlmann writes, "Now it's up to Attorney General Eric H. Holder Jr. to ensure that the legal response to the calamitous oil spill in the Gulf of Mexico is better than the emergency response."

    Uhlmann notes the entities the government should focus on: BP, Transocean, owner of the drilling rig, and Halliburton, which worked on the creation of the deepwater drilling structure. And if news reports on missed warning signs about the potential for disaster are accurate, Uhlmann writes that DOJ should lodge "criminal charges against BP, and possibly Transocean and Halliburton, for violations of the Clean Water Act, the Migratory Bird Treaty Act and the Refuse Act - the same charges brought in the Exxon Valdez case."

    Uhlmann continues:

    No one thinks BP, Transocean or Halliburton intended to spill oil into the gulf. But given good evidence, the government could argue that the companies cut corners or deviated so much from standard industry practice that they knew a blowout could happen. Or, the government could argue that, even if the initial gusher involved only negligence (a misdemeanor under the Clean Water Act) each additional day represents a knowing violation. Both approaches are untested, because there have been so few oil spill cases - but the gulf disaster warrants trying aggressive strategies.

    In 2008 ACS released an Issue Brief by Uhlmann, in which he urged Congress to bolster criminal penalties for the violations of the Occupational Safety and Health Act (OSHA). That Issue Brief is available here.

  • April 15, 2010
    During a Senate Judiciary Committee hearing, Attorney General Eric Holder "offered a passionate and sharp denunciation ... of the attacks leveled by Liz Cheney and others accusing his department of aiding al Qaeda sympathizers," The Huffington Post's Sam Stein reports.

    For several months Sen. Charles Grassley has loudly called for Holder to release more information about Department of Justice attorneys who, before entering government service, had provided legal representation to military detainees. Grassley's effort was backed by former Vice President Dick Cheney's daughter, Liz, when a group she helps lead released a scathing YouTube video tagging the DOJ attorneys the "Al Qaeda Seven." At yesterday's oversight hearing, Grassley again sought to wrench more information from Holder about the attorneys.

    But Holder pushed back. "There has been an attempt to take the names of the people who represent Guantanamo detainees and to drag their reputations through the mud," Holder said. "There were reprehensible ads in essence to question their patriotism. Their names are out there now. I'm simply not going to be a part of that effort. I would not allow good, decent lawyers who have followed the best traditions of American jurisprudence ... I will not allow their reputations to be besmirched. I will not be a part of that."

    Stein reported that Holder's defense was applauded by Committee member Sen. Richard Durbin, who said, "I think you are standing up for a very fundamental principle and rule of law here that goes back to John Adams."

    Cheney's YouTube ad ignited a backlash, with prominent Republicans weighing in against the attacks. Former Independent Counsel Kenneth Start blasted the attacks on the DOJ attorneys as "shameful. For more on the matter, see ACSblog posts here

  • March 17, 2010
    Attacks leveled by conservatives against Department of Justice (DOJ) attorneys who provided legal representation to military detainees before joining the government continue to reverberate with lawyers, including many with ACS affiliations, have countered the tactics in newspaper op-ed pages across the country. The attacks triggered by Sen. Charles Grassley's criticism of the DOJ attorneys have been fueled by Liz Cheney's group called Keep America Safe.

    In a Chicago Tribune column published today, Seattle attorney Harry H. Schneider Jr. and Chicago attorney Thomas P. Sullivan lambasted Cheney's Keep America Safe group for producing an inflammatory YouTube video tagging the DOJ the "Department of Jihad," and the attorneys the "Al Qaeda Seven."

    Schneider and Sullivan write:

    It is hard to imagine a more reckless charge. Well, on second thought, we can think of one. Her video is reminiscent of similar tactics used during one of the darker episodes in American history, when Sen. Joseph McCarthy charged that those who insisted on due process for anyone he accused must be a Communist sympathizer or a closet enemy of the U.S.

    The two defend the DOJ attorneys' previous work on behalf of military detainees, writing:

    Our constitutional system requires that we afford due process to defendants even in times of genuine threat to our nation and attacks on our people. The courts depend on the willingness of lawyers to represent those accused of crimes, although their clients may be feared or hated. We have long since accepted that a lawyer who is acting as counsel for a person accused of a crime does not make the lawyer a criminal.

    In an op-ed piece for the Boston Globe, Sabin Willet, an attorney with Bingham McCutchen, who has represented military detainees, wrote, "Some Americans will see the rule of law as a threat, and lawyers as the enemy. Small men with loud voices will exploit their fears on cable television. Petty politicians will mine them for votes."

  • March 5, 2010
    Conservatives, including Sen. Charles Grassley and a group affiliated with Liz Cheney, Keep America Safe, have attracted plenty of media attention for sharply criticizing Department of Justice lawyers who represented military detainees earlier in their careers. A hyperbolic video by Keep America Safe called "DOJ: Department of Jihad?" has been blasted as "beyond a cheap shot" by former Bush White House attorney Reginald Brown.

    But what's gone largely missing in the story is comparison with a similar situation that occurred during the George W. Bush administration. A top Pentagon official, Charles "Cully" Stimson, commented in a radio interview that he found it "shocking" that a number of U.S. law firms had represented Guantanamo Bay detainees. Stimson also suggested that some of the firms were not forthcoming about who was paying for the representation, telling Federal News Radio the firms should be pressed on the matter. "Some will maintain they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that."

    Just as the current attacks by Keep America Safe have sparked bipartisan criticism, Stimson's January 2007 comments drew sharp critiques across the political spectrum. As noted by The Huffington Post's Sam Stein, Ted Olson, former solicitor general during the Bush administration and a member of the Federalist Society's Board of Visitors, co-authored with then-Georgetown law school professor Neal Katyal an article for Legal Times blasting Stimson's comments. (About a month after his attacks on the law firms, Stimson resigned his Pentagon post.)

    Olson (pictured) and Katyal wrote: 

    The ethos of the bar is built on the idea that lawyers will represent both the popular and the unpopular, so that everyone has access to justice. Despite the horrible Sept. 11, 2001, attacks, this is still proudly held as a basic tenet of our profession.

    When government officials are called 'war criminals' and when public-interest lawyers are called 'terrorist huggers,' it not only cheapens the discourse, it scrambles the dialogue. The best solutions to these difficult problems will emerge only when the best advocates, backed by weighty resources, bring their talents to bear. And the heavy work of creating solutions for these complicated issues can only move forward when the name-calling ceases.


  • February 4, 2010

    Dawn Johnsen's nomination to lead the Justice Department's Office of Legal Counsel (OLC) was delayed again by the Senate Judiciary Committee this morning. Johnsen, a former member of the ACS Board of Directors, was first announced as President Obama's OLC nomination in January 2009. After prior support of the Senate Judiciary Committee, Johnsen's nomination spent the better part of 2009 -- a year of unprecedented obstruction -- languishing on the Senate floor without a vote.

    The New York Times and The Wall Street Journal published editorials today staking out opposing views on Johnsen's nomination. This battle of the editorial boards follows last week's Los Angeles Times editorial stating that "the obstruction of this nomination is and always has been unjustified."

    The Journal's editorial criticized Johnsen for her views on the OLC's role under the Bush administration, when that office produced the infamous "torture memos," noting: 

    During the Bush years she [Johnsen] has said that OLC gave "horrific legal advice" and "advice premised on an extreme and unfounded view of presidential power to justify desired counter terrorism policies." On issues such as the use of domestic electronic surveillance or interrogation policies, she has called the Bush Administration's practices controversial and "sometimes flatly illegal."

    Considering these same facts, The Times editorial called Johnsen "a highly qualified choice" whose nomination has drawn "baseless objections" causing "unreasonable delay."