Weekly Update: Suing the Courts
MAY 18, 2012
Ninth Circuit Rules Against “Dirty Bomber” in Lawsuit Against Former Bush Official
In a bit of a surprise, the U.S. Court of Appeals for the Ninth Circuit recently ruled against convicted terrorist Vincent Padilla in his lawsuit against former Bush Deputy Assistant Attorney General John Yoo.
Padilla claimed his constitutional rights were violated when President Bush designated him as an “enemy combatant” and ordered his detention by the U.S. military, allegedly at the recommendation of Yoo. (Padilla is currently sitting in a federal prison after being convicted of providing material support to terrorists, among other criminal offenses.)
The Ninth Circuit did not buy Padilla’s claims of constitutional rights violations:
Under recent Supreme Court law…we are compelled to conclude that, regardless of the legality of Padilla’s detention and the wisdom of Yoo’s judgments, at the time he acted the law was not “sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]” the plaintiff’s rights…We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district court.
In light of Padilla’s status as a designated enemy combatant…we cannot agree with the plaintiffs that he was just another detainee – or, that it would necessarily have been “apparent” to someone in Yoo’s position that Padilla was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal…Given the unique circumstances and purposes of Padilla’s detention…an official could have had some reason to believe that Padilla’s harsh detention fell within constitutional bounds.
Judicial Watch filed an amicus curiae brief in the United States Court of Appeals making this very point. At the same time, we also addressed the “weighty” separation of powers concerns.
Here’s a squib from our brief, filed on November 28, 2009:
Judicial Watch’s primary concern is that the District Court failed to consider adequately the weighty separation of powers concerns that arise whenever the Judicial Branch seeks to involve itself in the presidential decision-making process. These separation of powers concerns are all the more significant when the decision-making process involves national security and the exercise of the President’s powers as Commander in Chief. If the decision is allowed to stand, it would represent an unprecedented expansion by the Judicial Branch into the President’s ability to receive war-time advice from his advisors.
Here’s the main point: If every presidential war-time decision had to be run through the courts, this would create utter chaos and would have a chilling effect on the president’s ability to protect U.S. national security.
Do we really want nutty terrorists like the so-called “Dirty Bomber” dictating how the president takes advice and makes decisions?
It’s been almost ten years since Padilla was taken into custody by authorities, so here’s a bit of background on him.
Padilla is an American citizen who moved to Egypt in 1998 and spent the next several years traveling throughout the Middle East. According to U.S. intelligence officials, he was introduced to senior Osama bin Laden Lieutenant Abu Zubaydah in 2001. He then received training from al Qaida operatives, returning to the United States allegedly to conduct reconnaissance and to build and detonate a “radiological dispersal device” (also known as a “dirty bomb”) within the United States, possibly in Washington, D.C. On May 8, 2002, authorities arrested Padilla at Chicago’s O’Hare International Airport. On June 9, 2002, President Bush designated Padilla an “enemy combatant” and transferred him to a military prison.
Specifically, President Bush determined that Padilla “posed a continuing, present and grave danger to the national security of the United States,” and that “detention of Mr. Padilla is necessary to prevent him from aiding Al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens.”
As the liberal jurists in the U.S. Circuit Court of Appeals for the Ninth Circuit pointed out, Padilla is not “just another detainee.” He’s a terrorist.
Yoo, by the way, rather than being defended by the Justice Department, was hung out to dry by Holder’s politicized agency and defended himself using private counsel against this meritless lawsuit. The lawsuit was pursued, shamefully, through Yale’s law school. I wonder how Yale alumni feel about their alma mater representation of Padilla? As Yoo recently wrote in the Wall Street Journal:
Advocacy groups are using Padilla as a platform to attack the nation’s counterterrorism policies, which they believe should be limited to the tools used against common criminals. They advance their agenda by legally harassing officials, agents and soldiers, and so raise the costs of public service to anyone who does not hew to their extreme, unreasonable views.
These advocacy groups are in court and in the media virtually every day advocating for terrorists and trying to destroy those, like Mr. Yoo, who faithfully tried to serve their country. Judicial Watch is one of the few who oppose the views of these radical groups in court or in Gitmo (see our report from last week).
Judicial Watch Sues Los Angeles Judges for Violating Constitutional Rights of Reporter
What happens when you express concerns about judicial corruption in Los Angeles? You get your rights trampled upon. Just ask Leslie Dutton and the American Association of Women. Ms. Dutton operates the Full Disclosure Network, which has published video reports about corrupt “double-dipping” LA judges and allegedly has had her constitutional rights violated in retaliation.
Judicial Watch successfully pursued a taxpayer lawsuit over individual Los Angeles County judges amassing nearly $47,000 annually in cash allowances from the county to pay for benefits and perks they are already receiving from the state. We won. Until the California legislature stepped in and instituted a “legislative fix.” (You can read the background here.)
We’ve also represented Ms. Dutton in protecting her First Amendment right to report on corruption in the court system without fear of repercussion.
As part of this continuing effort, in March, we filed a lawsuit on Ms. Dutton’s behalf to grant her network access to the Los Angeles Superior Court’s Stanley Mosk Courthouse for the purpose of producing a video news segment on the incarceration of Richard Fine, an activist lawyer who was jailed for 18 months over contempt-of-court charges. (Fine had also challenged the double-dipping by LA County’s judges.)
As we note in our complaint, the Los Angeles Superior Court “has a long-standing practice of making courtrooms available to members of the media for filming, including filming news reports about cases of public interest, when the courtrooms are not being used for public proceedings.” However, Ms. Dutton’s request has been rejected without explanation on multiple occasions, even while an identical request for access was subsequently granted to CNN for the exact same purpose – to report on Mr. Fine’s incarceration!
Judicial Watch’s lawsuit names Superior Court Judges Lee Smalley Edmon and Ann I. Jones as well as D. Brett Bianco, Superior Court Court Counsel, the three who are responsible for denying Ms. Dutton access to the court. Their denials of Ms. Dutton’s requests are “arbitrary and capricious,” Judicial Watch notes in its complaint. And they serve to deny Ms. Dutton her First Amendment right to free speech and freedom of the press and her Fourteenth Amendment right to equal protection under the law by preventing her from completing her documentary on Mr. Fine’s incarceration.
As noted by a press release issued by Ms. Dutton’s Full Disclosure Network:
The Full Disclosure Network is being prevented from completing the final scenes of their documentary movie where it was planned to video record eye-witness accounts of Richard Fine’s arrest in the public courthouse, Department 86, when it was empty.
Fine was taken into custody on March 4, 2009 by the Los Angeles County Sheriff Deputies and the witnesses are to give their account and read from the court transcript of that day. Los Angeles Superior Court officials have banned the producers any access to Los Angeles Stanley Mosk Courthouse, Department 86 court room under any circumstances.
The documentary movie is entitled, “The Cost of Courage” and features narrators Ed Asner and Richard Fine, among others. (You can see a trailer here.) The film is “based on a three-year television interview series covering California Court Corruption and the 18 month-long solitary ‘coercive confinement’ of Richard Fine in the County Central Men’s Jail.”
You don’t need a jury trial to figure out what’s going on here. The judges identified in our lawsuit evidently do not like what Ms. Dutton has to say about the corruption in the Los Angeles County Court system, and they seem to be punishing her for saying it.
But a jury trial is exactly what we want, so Ms. Dutton can have her day in court and have her constitutional rights restored.
JW Wins Award in Battle for Transparency in Phoenix
We don’t fight the battle for government transparency to win awards. But it’s nice when it happens!
In April, Judicial Watch received an award from The Valley of the Sun Chapter, Society of Professional Journalists (SPJ), Phoenix’s “premiere journalism association.” While we’ve been involved in a number of efforts in Phoenix, this specific award was for our legal campaign to force the release of documents pertaining to Phoenix Mayor Phil Gordon’s security detail.
You may recall, we filed a FOIA request on December 11, 2009, seeking “all activity logs for Mayor Gordon’s Security Detail.” After the City of Phoenix stonewalled the request, Judicial Watch filed a lawsuit on May 17, 2010.
We believed these records would, among other things, shed light on possible misuse of taxpayer resources to further a personal relationship between Mayor Gordon, scheduled to leave office on January 3, 2012, and his chief campaign fundraiser Elissa Mullaney. Gordon admitted in December 2009 to a romantic relationship with Mullaney. (Both Gordon and Mullaney were married but separated from their spouses.)
And we were right!
As reported by The Arizona Republic:
Records that Phoenix withheld from the public since 2010 show former Mayor Phil Gordon’s security detail not only protected him when attending to official city matters, but outside of traditional business hours, taking him to the movies, the dry cleaners and his girlfriend’s house.
An inside look at Gordon’s activities both inside and outside of City Hall is available after Phoenix on Thursday released 476 pages of logs kept by Gordon’s security detail from late December 2007 through 2009.
It’s the first time the logs have been made available for public scrutiny since a conservative think tank, The Arizona Republic and other local media outlets initially requested the documents in late 2009.
We are that “conservative think tank.” And we were the first to request the records.
Since 2005, Mullaney’s company has received more than $340,000 in fees to raise funds for Gordon’s campaigns and to work on other City initiatives. She received $200,000 of these funds after she and Gordon initiated their relationship. Former Arizona Supreme Court Justice Thomas A. Zlaket, hired by Gordon to review the matter, cleared the Mayor of any wrongdoing in this specific instance, noting the state’s conflict of interest law does not cover girlfriends, only family members.
But I don’t think there’s any question Mayor Gordon misused taxpayer resources in the deployment of his security detail.
As I told The Arizona Republic, “It’s one thing to have police officers assigned to him at public events. It’s another thing to have him shepherded around to dates and the dry cleaners.”
Even though JW obtained the records, some of the pages were redacted and our investigations team continues to analyze them.
Our thanks to our friends in Arizona, including our local counsel Greg Collins, who accepted the award on our behalf, for their assistance in achieving this victory for transparency.
Until next week…