by James Oliphant

Lock and load. Here we go again.

Dick Heller, the D.C. security guard who successfully challenged the District's near-total ban on handgun ownership in a case that reached the Supreme Court, filed suit Monday seeking to strike-down the city's re-tailored gun law.

This was no surprise. In fact, District officials such as Mayor Adrian Fenty practically dared Heller, along wiht his lawyers, to do it. Fenty and the city council decided to let the Supreme Court's landmark decision in District of Columbia v. Heller restrict them as loosely as possible in redrawing the law.

In June, the court ruled 5-4 that the Second Amendment granted Americans the right to own a handgun for self-defense in the home. Beyond that, the opinion penned by Justice Antonin Scalia said little about the breadth of the constitutional right.

Still, a close reading of the opinion seemed to suggest that at the very least, D.C. could not prevent a resident from having a handgun at the ready.

The District, however, decided to test how far the courts were going to go. Its re-tooled statute permitted only the ownership of a revolver, and even it must be unloaded, disassembled or trigger-locked in the home unless there is a threat of "immediate harm" in the home.

Officials also vowed to bureaucratize the gun registration process as much as possible, making it time-consuming and paperwork-intensive. (And anyone who has lived in the District can tell you that that usually happens with any D.C. office, regardless of intent.)

Heller is joined in his new federal lawsuit by two other District residents, Absalom F. Jordan, Jr. and Amy McVey. Jordan complains that the registrations procedures are a burden on his constiutional rights, while McVey owns a .22 semiautomatic handgun that remains illegal under D.C. law.

Meanwhile, a bevy of lawsuits have been filed in cities like Chicago, trying to apply the court's Second Amendment ruling to states and municipalities. Because the District is a federal entity, right now the decision is only effective here.

Washington CityPaper has posted the complaint, which you can find here.

This entry was also posted at Writ Large, the Trib's new legal affairs blog. Check it out here.

by Andrew Zajac

Monica Goodling and D. Kyle Sampson (pictured at right), key aides to former Attorney General Alberto Gonzales, violated federal law and departmental policy by considering political affiliation and other improper factors in Justice Department hiring decisions, according to another devastating report from DOJ's Inspector General and the department's Office of Professional Responsibility, issued this morning.

Today's report offers a much fuller and grimmer picture of hyper-partisanship with DOJ than a report ">report last month harshly critical of politicized appointments in the Attorney General's honors and summer legal intern programs, both elite training grounds for young lawyers.

It describes Goodling (pictured at right), who had several jobs at DOJ, including as its liaison to the White House, frequently assessing applicants for assistant U.S. attorneys slots -- which are civil service posts to be filled without regard to political affiliation -- for Democratic and/or liberal leanings.

Here's a summary of findings: Goodling.doc

by Andrew Zajac

What is it about Democratic Ways and Means Committee chairmen?

The current ethics fix Charles Rangel finds himself in recalls the downfall of Chicago's Dan Rostenkowski, who in 1996 was sentenced to 17 months in prison on various corruption counts including fraud and embezzlement.

Rangel (pictured here) is a long way from being accused of a crime -- he brought his purported peccadillos to the House ethics committee and that may be the end of the story, since the ethics panel is better known for wrist-slapping than for requesting criminal investigations.

Still, there's a similarity here in the larger-than-life personas of the two men and in their roots in corruption-fueled big city machine politics. And in the piddling scale of their transgressions relative to their massive clout.

by Matthew Hay Brown

Growing up in the West African nation of Mali, Alima Traore assumed that girls everywhere had to undergo the procedure.

"In my country, it is usually an old lady" who performs the crude surgery, the 29-year-old woman said in her attorney's office. "They have a traditional knife for it. They cut your intimate parts. This knife is used for many girls."

It wasn't until Traore came to the United States eight years ago that she learned that female genital mutilation has been condemned the world over as a human rights abuse. Now that she's here - she has been living in Maryland since 2000 - she doesn't want to go back.

Traore's fight against deportation - her student visa expired in 2003 - has put her at the center of a growing dispute between rights groups and the Bush administration over whether victims of the practice also known as female circumcision, or female genital cutting, qualify for asylum here.

Read about the debate in today's Baltimore Sun.

In considering her case last fall, the Board of Immigrations Appeals described the "infliction of FGM" as "reprehensible." But the board, a tribunal within the Department of Justice, ruled that Traore does not have a well-founded fear of future persecution if she were to return to Mali, because the damage, though permanent, has already been done.

That interpretation, which now is binding on immigration judges, has drawn criticism from rights advocates, physicians and others, who say it defies federal case law and reverses the board's own reasoning in earlier, similar cases.

A large crane lies in this intersection on Manhattan's Upper East Side after it collapsed Friday, May 30, 2008 in New York City just before first responders arrived. (AP Photo/Seth Holladay)

by Frank James

It's still too early to know what caused today's deadly construction crane collapse in New York City, the second this year.

But it's safe to say this--the accident is likely to increase calls for the federal Occupational Safety and Health Administration to play a more active role in helping to prevent such accidents.

That's what happened following this year's earlier collapse of a crane in Manhattan which killed seven people.

A May 2, 2008 editorial in the Baltimore Sun noted that the deadly accident in March spurred state and local officials into action to retrain their construction inspectors. That wasn't enough, however, said the newspaper which added this:

... The federal Occupational Safety and Health Administration should really take the lead in this area to ensure that training for crane operators coincides with changes in the industry. About 80 workers each year die from crane-related incidents, according to OSHA.

It just so happens that OSHA has been working on an update of federal crane safety rules which apparently haven't been revised in more than 30 years despite numerous advances in crane technology--the equipment being more hydraulic and computerized now than they were decades ago, according to this piece from this Seton Alerts for Safety newsletter.

by Andrew Zajac

The Washington-based Secrecy News, a careful observer of government behavior in the capital, has posted this item about the appointment of a pair of federal judges, including James Zagel, of the Northern District of Illinois, to the secret court overseeing government applications for domestic eavesdropping under the Foreign Intelligence Surveillance Act.

INTEL SURVEILLANCE COURT GETS TWO NEW JUDGES

Two new judges were named to the Foreign Intelligence Surveillance Court this week, Secrecy News has learned, one a Clinton appointee and one a Reagan appointee.

Judge Mary A. McLaughlin of the Eastern District of Pennsylvania and Judge James B. Zagel of the Northern District of Illinois were appointed to seven year terms on the secret court by the Chief Justice to replace Judge James G. Carr and Judge Nathaniel M. Gorton, whose terms expired on May 18.

The Foreign Intelligence Surveillance Court is responsible for reviewing and approving government applications under the Foreign Intelligence Surveillance Act for domestic electronic surveillance and physical search of suspected foreign intelligence agents or terrorists.

But it does more than that. The Court also reinterprets the terms of the Act in an undisclosed fashion, producing in effect a body of "secret law," a matter discussed at an April 30 hearing of the Senate Judiciary Committee.

"The FISC has in fact issued... legally significant decisions that remain classified and have not been released to the public," observed Judge John D. Bates, a member of the FIS Court, when he denied an ACLU motion for disclosure of portions of those decisions last December.

The appointment of new judges to the FIS Court assumes particular importance today because of a proposal pending in Congress that would refer existing lawsuits alleging illegal warrantless surveillance to the secret FIS Court in what would likely be a severely constrained adjudicative process. The proposal is being considered as an alternative to granting outright immunity to telephone companies that allegedly cooperated with the President's surveillance program.

Judge Mary A. McLaughlin was appointed to the bench in 2000 by President Clinton. She was formerly an Assistant U.S. Attorney in the District of Columbia, and a special counsel to the Senate Judiciary Subcommittee on terrorism during the Ruby Ridge hearings in 1995.

Judge James B. Zagel was appointed in 1987 by President Reagan. Judge Zagel is "an intelligent, tough-minded jurist," said the Chicago Council of Lawyers, a public interest association, in a 1991 evaluation. However, "some lawyers are concerned that he will bring a political agenda to bear in certain classes of cases."

The new appointments were confirmed for Secrecy News today by Sheldon L. Snook of the administrative office at the D.C. District Court.

A new appointment to the Foreign Intelligence Surveillance Court of Review, an appeals court, has not yet been formally announced, he said.
But the Providence Journal (RI) reported on April 14 that Judge Morris Sheppard Arnold of the 8th District had been named to the Review Court.

An updated roster of the membership of the Foreign Intelligence Surveillance Court is here.

"During calendar year 2007, the Government made 2,371 applications to the Foreign Intelligence Surveillance Court for authority to conduct electronic surveillance and physical search for foreign intelligence purposes," the Justice Department told Congress in the latest annual report on FISA activity.

Andrew Zajac

The Swamp occasionally hears from viewers who want to note the passing of someone of unusual distinction.

One such message came from Milwaukee attorney Peter Coffey, who called our attention to the Washington Post obituary of James Unger, a revered and remarkably successful debate coach at Georgetown and American universities.

Unger also was a consultant on presidential debates to several media outlets.

Judging from comments made to a debate listserv, Unger was a larger than life figure who commanded respect and love decades after his students graduated. You can read some of the tributes here: Unger posts.doc

Constitutional scholar Laurence Tribe offered this tribute:

"For most of us during the crucial decade and a half starting in the mid-1970s - the decade in which many of us came of age or settled into our lifetime careers - Jimmy Unger WAS debate, debate as high art, debate as ritual, debate as relentless analysis, debate as bloodless battle. He lived it, breathed it, epitomized it, enjoyed it, perfected it, practiced it, and made it a permanent part of our lives. For all of that, and for the inestimable wit and twinkling wisdom that Jimmy exuded for so many years, we will all owe him a huge and permanent debt. May his memory live forever in and through those of us who cared about him and who were lucky enough to be his friends."

A memorial service is slated for later this afternoon at a Georgetown church.

Andrew Zajac

For decades, the University of Chicago Law School has been a proud beacon of conservative/libertarian thought, a key intellectual breeding ground for the Federalist Society, a proud bulwark against collectivist decision-making and groupthink.

So much so that its motto ought to be: We're not going to save you from yourself!

On second thought, maybe they are.

For the past several weeks the legal blogosphere has been atwitter with discussion about Dean Saul Levmore's ukase shutting off Internet access to law school classrooms.

This is hardly a bolt from the blue. Discussions about getting students off the Web during class has been kicking around law school circles for several years.

Last April, Georgetown Law Prof. David Cole wrote an intelligent Washington Post op ed argument in favor of restricting net access. (Reachable through the link above.)

But you could chalk up his position to being at a Jesuit school. Everyone knows that Jesuits aren't shy about doing something for your own good.

U of C, the midwestern mecca of free markets, was supposed to be different.

by James Oliphant

A Senate subcommittee Tuesday tried to give voice to hundreds of thousands of women in the Democratic Republic of Congo and other places around the world who have been victims of sexual violence during wartime.

"They're the forgotten women in a forgotten war," Lisa Jackson, a filmmaker who recently completed a documentary about rape victims in the Congo, told the committee. "They're the walking dead."

The Judiciary subcommittee on Human Rights and the Law is chaired by Sen. Dick Durbin (D-Ill.). Tuesday marked the first congressional attempt to hear testimony on the use of rape as a weapon in wartime.

"We have a moral obligation to take action to help these brave survivors," Durbin said.

by James Oliphant

Jay Sekulow may be one of the most influential conservatives in the nation. He's a lawyer for the American Center for Law and Justices, the ACLJ (and yes, the initials are on purpose).

Sekulow's largest claim to fame is that he has become the go-to litigator for the Christian Right and social conservatives on issues such as the Ten Commandments and school prayer. He's parlayed his influence into being part of a small group of advisers to President Bush on the issue of judicial nominations. Sekulow is also a prodigious fund-raiser and regularly exhorts his flock to send money so that he can keep up the good fight in Washington.

Here is a message he sent out today.

I am writing to you today about an imperative matter ... urging immediate action.

It is high time that the Senate Judiciary Committee stops playing partisan politics and starts fulfilling its constitutional responsibility.

Stand with the ACLJ on behalf of justice! Add your name right now to our online PETITION TO GIVE JUDICIAL NOMINEES AN UP-OR-DOWN VOTE and demand for a prompt vote for judicial nominees.

by James Oliphant

In what could be a historic decision, a majority of the Supreme Court Tuesday appeared ready to embrace the view that the Second Amendment creates an individual right to own a gun.

While that conclusion alone could elate many gun-rights supporters, that may not have been the most difficult question in the case argued today before the court.

That question is: If such a constitutional right exist, how may legislatures and city councils limit that right? And the profound disagreements Tuesday among the justices on that question suggest that the answer may come amid some serious shades of grey.

by James Oliphant

NEW YORK - Rachel Ehrenfeld writes about terrorism for a living. But now she is the one who feels targeted.

Her modest midtown Manhattan apartment is filled to the ceiling with books, most having to do with global terror networks and Mideast conflict. Sitting at her desk, she gazes out at the Hudson River. She says she has a hard time placing her work. She says she has been blacklisted. If she travels to England, she fears she will be arrested.

"I feel like a leper," she said.

Ehrenfeld faces a $225,000 judgment obtained in a British court in a libel suit brought by a former banker to the Saudi royal family, billionaire Khalid bin Mahfouz. "That's the Damocles sword effect. He's holding it above my head to intimidate me and others," she said.

The source of the trouble is Ehrenfeld's book, "Funding Evil: How Terrorism is Financed and How to Stop It," published by Bonus Books. In it, she named bin Mahfouz as a financier of Osama bin Laden and Al Qaeda. Bin Mahfouz responded by suing Ehrenfeld -- not in the U.S., but in England, which is friendlier to libel claims.

Bin Mahfouz maintains Ehrenfeld's statements about him are false and reckless and says she is perpetuating myths that have followed him around the globe, endangering his business affairs.

Read the full story at chicagotribune.com.

by James Oliphant

It's a shooting war, for certain.

Democrats versus Republicans, cities versus states, cops versus cops, scholars versus scholars, and most bizarrely, the Bush administration against itself.

The root of the conflict lies in a case that will be argued before the Supreme Court on Tuesday, one as dramatic as any in recent memory.

For the first time in almost 70 years, the court will consider whether the 2nd Amendment grants an individual the right to own a gun. It's a day long awaited by gun-rights activists, and long feared by those who favor gun control.

At issue is Washington, D.C.'s near-total ban on gun ownership, a ban declared unconstitutional last year by a federal appeals court. But the impact of the court's decision could have much greater scope, with Chicago having perhaps more at stake than any other city.

The city's gun ban is similar to Washington's, and opponents of that ban have pledged that Chicago will be their next target if they succeed at the high court.

Whether they will is anyone's guess. The Supreme Court hasn't examined the nature of the 2nd Amendment since 1939. For decades, the conventional wisdom has been that the amendment applies only to the arming of state militias, since it reads, "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Read the full story at chicagotribune.com.

Follow this link to read the briefs in the case, including the 67 amici briefs filed.

by James Oliphant

John Bolton, the outspoken former Bush administration official and UN ambassador, is joining Chicago-based Kirkland & Ellis as a senior adviser.

Bolton worked as a senior arms-control policymaker in the State Department and became known for his hawk-like views toward Iraq, Iran and North Korea and a belligerant personal style. His nomination as United Nations ambassador in 2005 became a highly charged affair, largely because Bolton had expressed tremendous antipathy toward the U.N.

He was once quoted as saying that "The Secretariat building in New York has 38 stories. If you lost ten stories today, it wouldn't make a bit of difference." Ultimately, he was never confirmed as U.N. ambassador but made a recess appointment by President Bush and again drew criticism for an abrasive manner while in New York.

But Bolton also earned praise for his hardline stances. In 2006, he was nominated for the Nobel Peace Prize for his efforts to expose Iran's alleged program to obtain nuclear weapons. (American intelligence reports have since rebutted Bolton's conclusions.) He left government service in 2006 and joined the American Enterprise Institute as a senior fellow.

Kirkland & Ellis has long been known as a comfortable environment for prominent conservatives. It still employs former Whitewater independent counsel Kenneth Starr, now the dean of the law school at Pepperdine. And many former and current legal luminaries in the Bush administration worked there at some point in their careers. The current solicitor general of the United States, Paul Clement, was a Kirkland lawyer, as was Brett Kavanaugh, a former White House lawyer who now sits on the federal appeals court in Washington, D.C.

Kirkland says that Bolton "will focus on counseling clients on domestic and international issues in complex corporate, litigation, internal investigations, regulatory and competition matters."

by James Oliphant

The calm couldn't last. Almost three years after the Senate confirmed two Supreme Court justices and rescued the judicial filibuster as part of an innovative bipartisan agreement, tensions are again rising over judicial nominations.

Sen. Arlen Specter (R-Pa.) Monday threw down the gauntlet on behalf of Republicans. In a lengthy floor speech, Specter complained that the Democratic majority in the Senate hadn't done enough to advance President Bush's picks for judgeships to the floor. "The conduct of the Senate today is elevating ideology and ego above substance," Specter said.

Specter pointed to statistics that said that during the last two years of President Clinton's term, the Republican-controlled Senate confirmed 15 circuit nominees and 57 district court nominees, while since the Democrats took over the Senate in 2005, Bush has been successful in confirming only six circuit court nominees and 34 district court nominees. Specter said a judicial "emergencies" exist, with key federal appellate and district slots remaining vacant for years and slowing litigation to a crawl.

by James Oliphant<