Supreme Court Justice Anthony M. Kennedy has joined the list of legal leaders speaking out on the slow pace of judicial confirmations to the federal bench.

During the 2010 Ninth Circuit Judicial Conference, Kennedy questioned whether the Senate confirmation process is "working the way it should be," asking lawyers and law schools to study the process to identify "neutral" principles to guide both parties through the confirmation process, according to a release issued by the United States Courts for the Ninth Circuit.

"It's important for the public to understand that the excellence of the federal judiciary is at risk," Kennedy told the Los Angeles Times. "If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled."

Obama's judicial confirmation rate is "the lowest since analysts began detailed tracking [of] the subject 30 years ago," according to the LA Times, "with 47% of his 85 nominations winning Senate approval so far." There are currently 102 vacancies, out of 876 seats on the federal bench.

Christopher H. Schroeder, assistant attorney general for the Office of Legal Policy, said if the current rate of replacing judges continues, nearly half of all federal judgeships will be vacant by the end of the decade.

"A determined minority is skillfully navigating the process to prevent an up-or-down vote on nominees," Schroeder told an audience during the conference. Schroeder is the co-author Keeping Faith With the Constitution, originally released by ACS and republished this summer by Oxford University Press.

Kennedy focused in particular on the Eastern District of California, which has five active judges, "and the statistics tell us we need 15," he said.

The jurisdiction, which includes slightly more than half of the state's population, currently has six judge seats, one of which has been vacant for 18 months, according to the release.

Two bills pending before Congress, one national judgeship bill, and one limited to the California district, would add four permanent judgeships and one temporary judgeship to the jurisdiction.

"Our committed, dedicated, brilliant federal judges (in the district) are struggling with this caseload ... their dedication must be recognized," Kennedy added.

Kennedy and Schroeder join other leaders who have questioned the slow pace of judicial confirmations, including fellow Supreme Court Justice Ruth Bader Ginsburg, President Barack Obama and ACS Executive Director Caroline Fredrickson.

"We're at a point of unprecedented partisanship and bitter feuding between the two parties over judicial nominees at a level that has never happened before. And the impact is that you have nominees who are languishing for months and some of them for over a year," Fredrickson told NPR in a report on Senate obstruction of judicial nominations.

To follow developments on judicial nominations and vacancies on the federal bench, visit JudicialNominations.org.

 

---

A conversation between Dennis Parker, ACLU Racial Justice Program Director, and Marjorie Esman, ACLU of Louisiana Executive Director, about Hurricane Katrina and the racial injustices that it exposed to the rest of the country.

---

Dennis Parker: Let me begin the conversation by asking you, Marjorie, as a New Orleans resident and rights and liberties advocate, what you think was the most important lesson learned from the disaster?

Marjorie Esman: Katrina showed the world what we here always knew: New Orleans is a city divided by race and class. Those divisions played a major role in everything that followed in aftermath of the flood. Still, we and the rest of the country were shocked by the images of thousands of poor black people trapped in terrible conditions and the never-ending stories of abuse. The ACLU did a report bringing to light the police abuse, racial profiling, housing discrimination and the dangerous lack of planning at the Orleans Parish Prison that disproportionately impacted the black population.

DP: Sadly, we didn't learn the lesson that systematic discrimination and inequality exist not only in New Orleans but in the United States as a whole. Katrina wasn't the first time that inequality was revealed, and sadly, it won't be the last. Remember how surprised everyone was 20 years ago when statistical evidence confirmed what communities of color had long known, that black and brown people are subjected unfairly to racial profiling? But I'm not sure we learned any lasting lessons. Look at the extreme "show me your papers" law in Arizona that basically requires police to racially profile Latinos. Where are we five years later in New Orleans?

ME: The anniversary of Katrina offers us an opportunity to reevaluate the discriminatory systems in place and to assess whether those systems have improved. The report card is mixed. Our police force is now being monitored by the U.S. Justice Department because of longstanding police misconduct, some of which was uncovered after Katrina. It's too soon to know whether this and other recent changes will have lasting effects. On the other hand, because of the connection between race and poverty, race has played a major factor in determining who can return to the affected areas.

DP: To illustrate your point, just a few days ago a federal court in Washington, D.C., blocked the state of Louisiana from continuing to use a discriminatory formula as part of the federally-funded Road Home program meant to help homeowners rebuild after the devastating damage resulting from Hurricanes Rita and Katrina.

The program gave relief funds based on home appraisals. The problem is that homes in poor neighborhoods, many of which are predominately black, aren't valued as highly as similar homes in white neighborhoods. People who lived in the poorer neighborhoods didn't receive equal relief even though materials and labor for reconstruction don't cost any less in one neighborhood than they do in another. The program was designed by the Louisiana Recovery Authority and approved by the U.S. Department of Housing and Urban Development, but both Louisiana and the federal government failed to take the reality of racial and economic inequality into account.

ME: Tragically, the ruling only impacts the families who qualify for future Road Home funding. Thousands of others who lost their homes to Katrina or Rita will not be receiving any additional money to rebuild even though the court recognized that they did not receive equitable funding because of where they lived. This means that poorer areas, many of which are black neighborhoods, will remain full of destroyed and empty houses.

DP: It's an unfortunate example of what happens when we refuse to acknowledge or forget our sad legacy of racial and economic inequality despite all of the evidence that it still persists. I believe that New Orleans and the United States will be able to more successfully address the persistent effects of racial discrimination if we stop pretending that it doesn't exist.

ME: Yes, it's time that as a country we honestly look at race and what it means. New Orleans remains a city divided by race, despite our shared experience in surviving this disaster. Five years later, despite significant improvements, we still fight the legacy of racial discrimination. Katrina made the world see the problem, and we need to remember that the problem hasn't gone away.

[Photo courtesy of Infrogmation]

---

Bert Brandenburg is executive director of the Justice at Stake Campaign, a nonpartisan campaign with 50 state and national partners that works to keep courts fair, impartial and free from special-interest influence.

---

The last 10 years have brought a revolution in the election of state Supreme Court judges. Special-interest cash has become king. Most Americans fear that justice is for sale.

This week, three reform groups released the first comprehensive national overview of spending on high court elections in the 2000-2009 decade, and on the political powerhouses seeking to tilt the scales of justice.

The report, "The New Politics of Judicial Elections, 2000-2009: Decade of Change"- released by Justice at Stake, the Brennan Center for Justice and the National Institute on Money in State Politics - describes a decade-long attack on the very notion of impartial justice. And the campaign trail attacks are paired with a litigation crusade to destroy meaningful election regulation.

Some of the report's findings:

• Spending on state Supreme Court elections more than doubled in 2000-2009; candidates raised $206.9 million, compared with just $83.3 million in the 1990s.
• Outside groups - funded by business groups, plaintiffs' lawyers and unions - poured in at least $39 million more in TV ads not approved by court candidates, ads that often viciously attacked and distorted the candidates' records. Much of this involved secret money from unknown bankrollers.
• Twenty of the 22 states that hold at least some competitive elections for Supreme Court had their costliest election ever.

There is nothing new about states electing judges. About 85 percent of all state judges face some form of election.

What is new is the tidal wave of money. High court judges must routinely raise big money from parties who appear before them in court. Outside groups are spending millions more on ads to pressure judges and trash their reputations.

All this money has caused profound unease. Polls repeatedly have shown that three Americans in four believe campaign cash affects courtroom decisions. And Justice Sandra Day O'Connor says public trust is injured when elected judges appear beholden to a small group of self-interested bankrollers.

"This crisis of confidence in the impartiality of the judiciary is real and growing," she wrote in the report's foreword. "Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold."

Why did special interests discover court elections? Two words: tort wars.

In the 1990s, some state supreme courts overturned limits on civil damages, and multi-billion dollar awards in tobacco and asbestos litigation triggered a counterattack by big business.

Beginning in 2000, groups like the U.S. Chamber of Commerce and National Association of Manufacturers, aided by leaders of such corporate giants as Home Depot and AIG insurance, began pouring record amounts into high court races. Plaintiffs' lawyers and unions have spent millions of their own, creating a full-fledged arms race for control of the courts.

In 2004, the winner of an Illinois Supreme Court seat said the $9.3 million raised by him and his opponent was "obscene." That same year, coal executive Don Blankenship spent $3 million to help elect a West Virginia justice, seeking a friendlier court to overturn a $50 million jury award. The justice, Brent D. Benjamin, was ultimately disqualified in a landmark 2009 U.S. Supreme Court case, Caperton v. Massey.

Several states have enacted reforms. North Carolina, New Mexico, Wisconsin and West Virginia have enacted public financing, so that judges don't have to dial for dollars. And Michigan established a new rule making it easier to disqualify judges from cases involving campaign benefactors.

But even these reforms are under threat in federal court. Using a radically expansive interpretation of the First Amendment, while trying to waive off the Constitution's guarantee of due process, opponents of campaign laws have attacked public financing, corporate spending bans, financial disclosure laws, and limits on explicitly partisan activity by judges.

In Missouri, Tennessee and Alaska, interest groups have battled another longstanding method for insulating courts from special interests: merit selection commissions, which identify qualified judicial candidates before governors make a final appointment.

If these groups get their way, special interests could spend unlimited amounts, in total secrecy, to elect the judges of their choice, presumably to get the rulings that they want.

That might be a cozy world for those writing checks, but it's a scary world for the rest of us - businesses and individuals alike - who depend on courts for a fair, impartial resolution of our disputes. Big money, campaign politics, and secret spending have little to do with the words carved over the Supreme Court's bronze doors: Equal Justice Under Law.

 

A bipartisan group of former senior Department of Justice attorneys and other federal prosecutors recently lodged an amicus brief with the Supreme Court urging it to leave intact a Louisiana jury verdict against prosecutors who withheld evidence in a case that produced a murder conviction. The unique collaboration of the DOJ and federal prosecutors maintains in its friend-of-the-court brief filed in Connick v. Thompson that prosecutors should be responsible for ensuring that constitutional rights are not subverted in the process of securing convictions. The Supreme Court will hear oral argument in Connick early in its forthcoming term, which starts on Oct. 4. 

In the Connick case, a jury awarded John Thompson $14 million, in part, because prosecutors withheld evidence to help secure his murder conviction. Thompson spent 18 years in prison and had come close to being executed before he was acquitted in a retrail. Following his acquittal, Thompson sued Harry F. Connick, who led the district attorney's office at the time Thompson was convicted in 1985. (Connick is the father Harry Connick Jr., the Grammy-award winning singer.) The New Orleans district attorney's office has fought the jury award, arguing that it should not be liable for the actions of prosecutors in the case. As The Associated Press noted, the Supreme Court has "approved only narrow instances in which local government agencies can be sued for wrongdoing of their rank-and-file employees."

Thompson's attorneys have argued that prosecutors violated his rights pursuant to federal law, 42 U.S.C. Sec. 1983, which requires prosecutors to discharge their duties in a manner that does not violate constitutional rights. In Supreme Court precedent regarding Sec. 1983, such as Brady v. Maryland, the high court held that withholding evidence is a violation of prosecutors' obligations. Thompson's legal action maintained that the New Orleans district attorney's office violated the federal law because it failed to train its prosecutors on avoiding Brady violations.

The coalition of former DOJ attorneys, in its amicus brief, states that its "interest is in ensuring that Section 1983 realizes its promise as a remedy for conduct that causes constitutional violations and that the balance of interests carefully struck by this Court's precedents is preserved. The Court's precedent with respect to section 1983 failure-to-train claims promotes respect for the rule of law by holding municipal entities to account when they demonstrate deliberate indifference to constitutional rights and cause constitutional violations. Although successful failure-to-train claims are, and should be, rare, their continued availability strengthens public respect for the criminal justice system, particularly against criticism that the system is indifferent (if not hostile) to the rights of those charged, especially those wrongly charged, with criminal acts."

The coalition includes former Assistant Attorneys General and Acting Assistant Attorneys General Bill Lann Lee and William Yeomans, both ACS participants. Counsel for the coalition of attorneys includes former Solicitor General Paul D. Clement, who served during the administration of President George W. Bush, and Stanford law school professor and ACS Board member Pamela S. Karlan. See the entire amicus brief here.

Oral argument in Connick v. Thompson is scheduled for Wednesday, Oct. 6, 2010.

 

---

By James M. Doyle, a lawyer with Carney & Bassil and former head of the Public Defender Division of the Massachusetts Committee for Public Counsel Services, a statewide public defender agency. Doyle is the author of a recent ACS Issue Brief, "From Error Toward Quality: A Federal Role in Support of Criminal Process."

---

Why not a comprehensive, blue ribbon, top-to-bottom review of the American criminal justice system?

The fact is, no one can think of an objection, and legislation submitted by Sen. Jim Webb and Rep. William Delahunt that would create a National Criminal Justice Commission to conduct that review has support from all points on the criminal justice spectrum and co-sponsors from both sides of the aisle. The odds favor eventual passage, and that's an excellent development. Any review that takes a grown-up look at the American criminal justice system as a system rather than as an archipelago of isolated (and often adversarial) agencies and functions is a step in the right direction. (For more on this, watch video of an ACS panel on an integrative approach to justice.) Blue ribbon commissions draw talented members who deploy broad credibility in support of their recommendations.

But if the only thing this top-to-bottom review leaves behind is another report -- even if it's a great report with terrific recommendations -- it will not realize its full potential. The Commission's report can be the beginning of a process, not the end of one. It can reveal something for the best people in criminal justice to do between today and the inevitable next National Commission.

So far, criminal justice is missing the infrastructure for an enduring, bottom-to-top feedback loop, one that persistently communicates the experiences and insights of the victims, cops, lawyers, judges, and probation and corrections officials at the sharp end of the system both to fellow practitioners in scattered jurisdictions and to remote policy-makers: the legislators, and funders whose decisions shape (and often deform) the practitioners' working lives.

In a recently released issue brief, "From Error Toward Quality: A Federal Role in Support of Criminal Process," I propose that the criminal justice system develop a mechanism, as medicine and aviation have, to create this loop by identifying "sentinel events"-- wrongful convictions, wrongful releases, and near misses in both categories -- that help us avoid future errors and to analyze and share their lessons. Supporting the ongoing practice of dispassionate, fine-grained, all-stakeholders review of these mistakes could provide a revolutionary new approach to creating a reliable system.

The adversarial trial before a citizen jury dramatizes the relationship between an American and the state, and its hold on our imaginations overshadows the fact that the adversarial contest functions as the final inspection stage of a long and complicated process. But in every industry, end-stage inspection has been shown to be a very problematic means of quality control because everyone hates to be inspected. That may be why the jury trial inspection hardly ever happens: mandatory minimums are enacted; plea leverage is ratcheted up; the number of actual jury trials sinks to the vanishing point. The endemic human tendency to "game" any looming inspection also takes a toll. Ongoing controversy over law enforcement failures to preserve or disclose exculpatory evidence illustrates this tendency to influence the inspectors' view of things by simplifying the picture that the inspector is allowed to review. When Missouri's prosecutors come out for eliminating the state-wide public defender system, human discomfort with inspection is part of the reason.

A striking element of the American criminal justice system is its lack of any mechanism for routinely taking account of the causes of error. Searches for bad apples occur from time to time: civil suits are sometimes filed, internal affairs investigations are performed, the media pillory is sometimes occupied by a corrupt or incompetent practitioner, but these vehicles only drive accounts of other errors underground, and inspire frantic efforts to evade or deflect blame for them in place of efforts to learn from them. Besides, these disciplinary and punitive inspections misdiagnose the nature of error, which as aviation, medicine, and a host of other fields have proved are not the sinister work of bad apples acting alone but the result of small mistakes (that are necessary but not sufficient) interacting with each other and with latent defects in the system -- latent defects that will still be there -- waiting for the next mistake that comes along. A wrongful conviction or a wrongful release happens because an imperfect system has failed to take adequate account of the fallibility of its human components. We have to take account of both individual errors and system weaknesses.

Medicine and other fields have successfully mobilized "all-stakeholders" teams to analyze and report on known errors and near misses. The factual reports these efforts have generated have been illuminating, but more importantly, the practice of compiling system-oriented reports has been the starting place for mobilizing a continuous quality improvement movement that, among other achievements, has developed practices that saved 120,000 patients' lives in 12 months. The range of mistakes and "near misses" that frontline practitioners might nominate for review is very broad, and it is not limited to mistaken outcomes; it can include astronomical costs. ("How in Hell did we spend $75,000 on a simple drug possession case? And why?").

The practitioners at the sharp end of the system take the blame for mistakes, and often they deserve a share of it. But they don't deserve all of the blame, and sometimes blame is beside the point. If the National Commission on Criminal Justice -- from its perch far off at the blunt end of the system -- wants to promote an active effort to avoid the next mistake or to mitigate its effect it has to mobilize those practitioners and make sure their efforts to improve system reliability are not heroic exceptions, but can be part of everyday routine -- and that they are heard when the next Commission comes around.

As some 100 vacancies, in the words of President Obama, "continue to plague our judiciary," ACS encourages those concerned about the ability of the federal courts to operate efficiently to visit JudicialNominations.org, a Web-based resource for staying on top of the judicial nominations process. You can now get updates from JudicialNominations.org via Facebook, by by clicking "Like" on our new Facebook page.

JudicialNominations.org brings together for the first time an array of information, including an interactive map that allows the user to select an individual district or circuit court and identify the number of vacancies in that area, how long those vacancies have existed, whether anyone has been nominated to the seats, and how long nominees have waited for confirmation. The website also provides links to congressional statements, videos, upcoming hearings and other events, and the latest nomination news.

During an address in the Rose garden last month, Obama urged leaders of both parties in Congress to "work with us to fill the vacancies that continue to plague our judiciary. Right now, we've got nominees who've been waiting up to eight months to be confirmed as judges. Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans. Both Democrats and Republicans agreed that they were qualified to serve. Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate."

Justice Ruth Bader Ginsburg called for greater Senate cooperation in confirming judicial nominees during the American Bar Association's annual meeting, saying, "With ABA encouragement, may the U.S. Senate someday return to the collegial, bipartisan spirit that Justice Breyer and I had the good fortune to experience."

And ACS Executive Director Caroline Fredrickson told NPR in a report on Senate obstruction of judicial nominations: "We're at a point of unprecedented partisanship and bitter feuding between the two parties over judicial nominees at a level that has never happened before. And the impact is that you have nominees who are languishing for months and some of them for over a year."

"If the Senate continues to move at this "glacial pace," a system that is "already overburdened" will come to a "grinding halt," Fredrickson wrote in a column for The Huffington Post earlier this month.

Visit JudicialNominations.org today and check back frequently to follow developments on judicial nominations and vacancies on the federal bench.

The U.S. government has lost eight out of 15 habeas petition cases in which Guantánamo inmates alleged they or witnesses against them were forcibly interrogated, reports ProPublica, in an analysis jointly published with The National Law Journal.

The report by the investigative journalism nonprofit assesses the effect of mistreatment allegations on detainees' lawsuits by looking at 31 published decisions, which resolve the claims of 52 captives who alleged they were wrongfully detained. Fifteen of those published decisions were found to contain allegations of mistreatment, ranging from verbal threats to physical abuse labeled as torture, but because large portions of some of the decisions were redacted, the report notes that there may be other cases in which inmates alleged forcible interrogation.

The judges in these cases rejected government evidence that had been coercively obtained, using forcible interrogations. "Even in the seven cases the government won, the judges didn't endorse aggressive methods," ProPublica reports, noting that in six of those cases, the judge disbelieved the detainees' allegations of mistreatment.

The report continues:

The 15 decisions offer the most detailed accounting to date of how information obtained from the Guantánamo inmates through controversial tactics is standing up in court. They come in cases initiated by detainees seeking release via a writ of habeas corpus, not cherry-picked by prosecutors. Criminal law experts say the judges' opinions help explain why the government has decided not to pursue criminal convictions against some detainees. Such evidence would pose even greater problems in criminal trials, for which requirements of proof are more demanding.

The Obama administration has already said that at least 48 of the remaining 176 prisoners at Guantánamo will be held indefinitely because they're too dangerous to release but can't be prosecuted successfully in military or civilian court. They've said that coercion-tainted evidence is one obstacle.

The report also notes that the government was successful in only one out of fifteen cases in arguing that the taint of government coercion was eliminated by a subsequent change in location, interrogator or circumstance.

In all, 53 habeas cases have been decided, of which the government has lost 37, "most because it couldn't produce enough reliable evidence that the men were al-Qaida or Taliban militants," according to the report. More than 50 habeas suits are still pending.

The report includes two in-depth charts, one documenting "How Judges are Ruling in Cases Where Mistreatment is an Issue" and one containing updated information on all detainees whose lawsuits have been decided by federal judges.

U.S. attorney positions in Texas remain unfilled, writes Todd J. Gillman of The Dallas Morning News (DMN). The DMN notes that the "Senate has confirmed Obama-picked prosecutors for 57 or 93 federal districts nationwide. Nineteen more nominations are pending. A dozen districts have no nominee, including the four in Texas."

The DMN reports:

Tussles between Texas' senators, both Republican, and the state's Democrats in the U.S. House certainly caused some of the delay, but both sides long ago submitted lists of preferred nominees that largely overlap. While most states have gotten Obama nominees, Texas is still waiting.

...

With Democrats expected to lose Senate seats in November, winning confirmation of nominees won't get any easier. And the longer Obama waits, the harder it gets to woo top talent because of the grueling process, said Paul Coggins, the U.S. attorney in Dallas under [President] Clinton.

Coggins added, "At some point the White House just has to step in and say, ‘Look I've heard from the senators, and I've heard from the congressman, and here's who I'm nominating.' You'll probably hack off one side or the other but that certainly would be welcome among most of us Texans."

Elena Kagan was not the only judicial nominee the Senate confirmed yesterday. In one of its last acts before recessing for a month, the Senate also confirmed four nominees to federal judgeships, The Blog of the Legal Times reports.

The confirmation of James Wynn Jr. to the Fourth Circuit, along with three others to district courts, comes a day after President Barack Obama met one-on-one with Senate Minority Leader Mitch McConnell (R-Ky.) to discuss judicial confirmations.

In a statement before the meeting, White House Spokesman Robert Gibbs said the president is "rightly frustrated" at a pace of confirmations that is "unrivaled and unmatched in its slowness," USA Today reports.

There are now 100 vacancies out of 867 seats on the federal bench. "Those vacancies are causing the federal courts to be overburdened, delaying justice," ACS Executive Director Caroline Fredrickson wrote in a column for The Huffington Post earlier this month. If the Senate continues to move at this "glacial pace," a system that is "already overburdened" will come to a "grinding halt," Fredrickson wrote.

Thursday's confirmations were part of a deal between Democratic and Republican leaders to move some of the noncontroversial nominees, The Blog of Legal Times reports.

Still, a large number of well-qualified nominees continue to wait, such as U.S. Magistrate Judge Edward Chen in California, who has now been waiting a full year for Senate confirmation to become a district court judge, the San Francisco Chronicle editorial board writes.

"Too many talented would-be judges are being forced to put their lives on hold while they wait for senators to act," the Chronicle's editorial board writes.

Wynn, a North Carolina state judge, was first nominated to the Fourth Circuit by President Bill Clinton in 1999, but his nomination was blocked. Wynn was nominated again in November by Obama, together with Charlotte Judge Albert Diaz, and both were confirmed by the Senate Judiciary Committee in January. Diaz and Wynn "have been waiting since then for a full Senate vote, caught up in the partisan dispute over Obama nominees," McClatchy Newspapers reports. Diaz is still awaiting confirmation.

A nominee for the Sixth Circuit, Nashville, Tenn. lawyer Jane Stranch, is scheduled for a vote on the Senate's first day back in session Sept. 13, according to The Blog of The Legal Times.

The district judges confirmed were Michelle Childs and Richard Gergel for the District of South Carolina and Leonard Stark for the District of Delaware, The Blog of the Legal Times reports.

For more information, and to track the progress of judicial nominations, visit JudicialNominations.org.

 

 

In a just-released ACS Issue Brief, Professor Stephen I. Vladeck (pictured right) looks to one high-profile terrorism case as an "an unvarnished example" of how the federal court system can adeptly handle trying terrorism suspects, providing new evidence in the ongoing debate on whether terrorism cases should be tried by civilian courts or military tribunals.

The case of Ahmed Omar Abu Ali, a U.S. citizen convicted of conspiring with al Qaeda to kill President George W. Bush, raised new and hard questions, Vladeck writes in "Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali," but they were questions the civilian criminal justice system is well-equipped to answer.

"[W]here unique national security concerns are implicated, Abu Ali suggests that courts will attempt to reach accommodations that take into account both the government's interest and the fundamental protections to which defendants are entitled, keeping in mind Justice Frankfurter's age-old admonition that ‘the safeguards of liberty have frequently been forced in controversies involving not very nice people,' " writes Vladeck (pictured right), a law professor at American University Washington College of Law.

Abu Ali's case presented the novel question of whether a defendant's Miranda rights were triggered where U.S. officials submitted questions to foreign officers for their use during interrogation. This question, Vladick points out, is not one that applies only in terrorism cases and the court's conclusion that the United States and Saudi Arabia were not engaged in a "joint venture" is applicable to other criminal procedure fact patterns.

Abu Ali also presented the new challenge of incorporating foreign depositions in a U.S. court proceeding. Judge Gerald Bruce Lee used "creativity and flexibility" to craft a method for performing a live, two-way video deposition that transmitted the proceedings to the Alexandria courtroom, during which defense lawyers were present in both Saudi Arabia and Alexandria, Vladeck writes. Lee's innovation showed how technology can help cabin proposed changes to current procedural rules, by adapting within the present framework, Vladeck adds.

Lastly, Abu Ali presented the controversial question of whether the court erred when it allowed the jury access to classified information, while the defendant had access only to a redacted version. The U.S. Court of Appeals for the Fourth Circuit agreed that this "silent witness" procedure was a violation of Abu Ali's right to confront witnesses against him, but it also concluded that the decision was harmless error.

"[T]he real lesson from this aspect of the Abu Ali litigation may just be that mistakes will be made, but the Supreme Court's increasing embrace of harmless error principles heavily mitigates the consequences of those mistakes," Vladeck writes.

Regardless of whether it was misapplied, the harmless error doctrine, like other aspects of the case, "does not turn on the centrality of terrorism and national security concerns in the litigation," he adds.

"Abu Ali reminds us," Vladeck concludes, "that sometimes, the law is set up properly to resolve the tension between the government's interests and the defendant's rights, even if reasonable minds could argue (in this area of law, as in any other) that judges sometimes get it wrong."

Vladeck's Issue Brief is available here.