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PENTAGON CONSIDERS TAPPING CIVILIANS FOR TRIBUNAL BOARD As military lawyers gear up to begin trials of detainees held at Guantanamo Bay, Pentagon officials plan to designate a retired general to oversee the process, say two lawyers with knowledge of the selection process. According to the lawyers, as early as this week, a retired judge advocate and two-star general is expected to replace Deputy Defense Secretary Paul Wolfowitz as appointing authority for military commissions, in charge of selecting commission members, bringing charges, and reviewing verdicts. Separately, retired Air Force Gen. Thomas Hemingway, president of the Judge Advocates Association, has been recalled to active duty to serve as the top legal adviser to the appointing authority. Meanwhile, the Defense Department is also preparing to name several individuals to serve on commission review panels. The department is likely to draw from civilian institutions, and those named could include a state supreme court judge, a state trial court judge, a retired federal judge, and a law firm partner, say the sources. The appellate process for military commissions has been one of the most sharply criticized aspects of the system, and the Pentagon’s selection of civilian judges seems aimed at boosting the credibility of the process. Under regulations released last year, each completed military commission case will proceed to a three-member review panel. The panel can forward the case to the secretary of defense with a recommendation or return it for further proceedings. Eugene Fidell, president of the National Institute of Military Justice and a partner at D.C.’s Feldesman Tucker Leifer Fidell, says the appointment of civilian judges to serve on review panels will not guarantee sufficient due process. “Putting first-rate people on these panels is only to be expected, and it doesn’t cure the problem,” says Fidell. “In our society we look to institutions, not individuals.” On Dec. 18, Navy defense attorney Charles Swift was assigned to represent Guantanamo detainee Salim Ahmed Hamdan of Yemen, one of six individuals currently subject to trial before a military commission. Swift, a lieutenant commander with nine years of litigation experience, graduated from Seattle University School of Law in 1994. As staff judge advocate for the Roosevelt Roads naval base in Puerto Rico, Swift participated in high profile litigation over the Navy’s target range at Vieques. Hamdan is the second Guantanamo detainee to receive a defense lawyer. Australian detainee David Hicks was assigned military defense counsel Dec. 4. � Vanessa Blum HO-HO-HOGAN Christmas came early for associates and staff at Hogan & Hartson. Last week, the firm announced it would pay its associates discretionary bonuses, maxing out at $15,000 for junior associates and $30,000 for senior associates, with additional payouts of up to $10,000 for associates based on exceptional performance. The bonuses, according to a memo sent out to associates on Dec. 15, were determined on an individual basis, taking into account quality of work, billables, and participation in the firm’s pro bono program. In celebration of Hogan’s 100th anniversary in 2004, the firm also gave out special staff bonuses of 1.5 percent of each staffer’s annual salary to a maximum of $1,500. The checks are in addition to regular holiday staff bonuses. “We thought that it would be sort of a nice touch to recognize their contributions in a tangible way,” says Hogan chairman J. Warren Gorrell Jr. In New York, Davis Polk & Wardwell and Chadbourne & Parke also announced bonuses last week, starting at $17,500 for first-years and ranging up to $25,000 for senior associates. � Marie Beaudette LEADING LSC The Legal Services Corp. announced its new president last week. After a discreet three-month search, the national legal nonprofit picked Helaine Barnett to fill its top post. Barnett is a 37-year veteran of the Legal Aid Society of New York City, where she worked with indigent clients and ran the office since 1994. She succeeds retiring interim LSC President John Erlenborn, a former Illinois congressman, on Jan. 20. The LSC annually receives more than $330 million in federal funds, distributed to 158 legal aid programs around the country, including the District’s Neighborhood Legal Services Program. LSC spokesman Eric Kleiman says Barnett’s direct work with the indigent made her a good match. “We’re all very excited,” he says. � Alicia Upano BIRD IN HAND In a coup for Alston & Bird, the Atlanta-based firm snagged former top Medicare administrator Thomas Scully last week. Scully will divide his time between the firm’s Washington office and New York’s Welsh, Carson, Anderson and Stowe, a private equity investor in health care. After talks with a number of different law firms, Scully says he decided on Alston & Bird at the behest of his old friend and the firm’s D.C. partner-in-charge, Frank “Rusty” Conner III, as well as former Senate Majority Leader Bob Dole (R-Kan.), who is also a member of the firm’s health care practice. Alston & Bird counts Johnson & Johnson Inc. among its health care clients. Scully, who had been criticized for beginning his private sector job search while helping to shape the Medicare bill signed into law by President George W. Bush on Dec. 8, received special ethics clearance from Health and Human Services officials to talk to firms about employment. Previously a lobbyist and lawyer at both Patton Boggs and Akin Gump Strauss Hauer & Feld, Scully says he expects to do some lobbying, but “wants to get more into the business, rather than political side of it.” At Alston & Bird, Scully joins Colin Roskey, formerly the Senate Finance Committee lead staffer on the Medicare bill, and Ralph Boyd, former assistant attorney general for the Civil Rights Division in the Department of Justice. � Lily Henning TAKE YOUR VITAMINS The Supreme Court on Dec. 15 accepted an international price-fixing case that raises important questions about the global reach of U.S. antitrust laws. The case stems from a massive criminal investigation in the mid-1990s by the Department of Justice into an international vitamin cartel. The question now before the high court is whether foreign vitamin purchasers may file suit here under U.S. antitrust laws.” This case presents such an important issue to be sure our courts don’t become world courts,” says Andrew Marovitz, lead counsel for defendant BASF AG and a Mayer, Brown, Rowe & Maw partner in Chicago. The case, F. Hoffmann-LaRoche Ltd., et al. v. Empagran S.A., et al., has raised widespread concern from companies that do business internationally and from some European regulators, who fear that foreign plaintiffs filing private antitrust suits in the United States will interfere with European competition laws. The German government, represented by David Frederick of Kellogg, Huber, Hansen, Todd & Evans, filed a brief supporting the petition to the high court. The D.C. Circuit ruled in January that foreign purchasers could file suit in U.S. courts, exacerbating a circuit split on the issue. The purchasers are represented by Paul Gallagher and Michael Hausfeld of D.C.’s Cohen, Milstein, Hausfeld & Toll, who decline comment. � Lily Henning MERGER CONTROL Government antitrust regulators chalked up a victory last week, winning a major concession in a multibillion-dollar merger between two electronic payment service providers. The First Data Corp. agreed to divest its majority share in the NYCE Corp., the nation’s third-largest personal identification number network, in a Dec. 15 settlement of a Justice Department suit seeking to block First Data’s $6.9 billion takeover of Concord EFS Inc. The settlement, which came the same day the suit was scheduled for trial, is a win for the DOJ, says Arnold & Porter antitrust partner Richard Rosen. “The government has a strong preference for complete divestitures,” he says. The divestiture paves the way for First Data’s takeover of Concord, although that deal is still subject to Concord shareholder approval. Concord, which is represented by Kirkland & Ellis D.C. partner Mark Kovner, operates STAR, the nation’s largest PIN network used by banks, retail stores, and other businesses. Concord is NYCE’s main competitor. First Data’s lawyer, Sidley Austin Brown & Wood D.C. partner Lawrence Fullerton, declines comment. Kovner did not return a call. � Lily Henning SUBPOENA ENVY The record industry can’t subpoena Internet service providers to get names of people who download songs from so-called peer-to-peer file-sharing services like KaZaA, an appeals court has held. The U.S. Court of Appeals for the D.C. Circuit handed Verizon Internet Services Inc. and its lawyer, Wiley Rein & Fielding partner Andrew McBride, a major victory on Dec. 19 and reversed two district court rulings. It found that subpoenas can be issued under the Digital Millennium Copyright Act only when material centrally stored on an Internet provider’s computers is at issue, not when Verizon is “a mere conduit” for the transmission of material by others. The opinion by Chief Judge Douglas Ginsburg did not address free-speech issues raised by Verizon and was based entirely on the words of the statute. Ginsburg wrote that the court understands that the Recording Industry Association of America, represented by Donald Verrilli Jr. of the D.C. office of Jenner & Block, wants to end copyright infringement. But it’s not the courts’ job, he said, “to rewrite the DMCA in order to make it fit a new and unforeseen Internet architecture.” RIAA President Cary Sherman in a prepared statement called the ruling a “disappointing procedural decision.” � Jonathan Groner IN-FLIGHT TURBULENCE The Gibson, Dunn & Crutcher team behind Atlantic Coast Airlines’ efforts to fend off a hostile takeover attempt by the Mesa Air Group had reason to celebrate last week when the Justice Department stepped in, opening an antitrust investigation into the bid on Dec. 18. The investigation will probe the role of United Air Lines Inc. in encouraging Mesa’s bid for Atlantic Coast, which operates United Express flights out of Dulles airport. In an Oct. 27 suit filed in D.C. federal court, Atlantic Coast accused United of being a silent partner in the takeover attempt. Also on Dec. 18, Judge Rosemary Collyer ordered Mesa to halt its takeover attempt until a trial is set. William Baer of Arnold & Porter and James Robinson of Cadwalader, Wickersham & Taft in D.C. are counsel for Mesa and Rory Millson of Cravath, Swaine & Moore in New York represents United, according to court papers. None of the Mesa or United lawyers could be reached for comment. Gibson, Dunn D.C. lawyers representing Atlantic include Michael Denger and Jarrett Arp. � Lily Henning

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