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PENTAGON WORKS TO AVOID JUDICIAL SCRUTINY Two years ago, when Shearman & Sterling D.C. partner Thomas Wilner first took up the case of 12 Kuwaiti nationals in U.S. custody at Guantanamo Bay, Cuba, his principal complaint was that his clients had been wrongfully imprisoned without any due process — no charges, no hearings, no opportunity to protest their confinement. He wasn’t alone. Human rights advocates and some military lawyers pressed the Pentagon to put in place a process right away to separate true enemy combatants from those detainees captured by mistake. Last month, the Supreme Court forced the Pentagon’s hand. Now, facing the threat of federal court review, the administration is scrambling to institute a process that critics say still won’t go far enough. “The sheer arrogance of trying to avoid the law has gotten them in the mess they’re in now,” Wilner says. The Pentagon says it will notify the roughly 600 detainees held at Guantanamo by July 17 that they may appeal their detentions in U.S. federal court. Before any federal court review gets under way, however, the military intends to conduct its own hearings to formally determine each detainee’s status. “Over the past week we’ve tried to put together . . . a process that will respond to the Court’s concerns [and] take into account the fact that the detainees at Guantanamo are able to file petitions for habeas corpus in U.S. courts,” a senior Justice Department official said last week. Tribunals composed of three military officers will review each detainee’s case and determine if a preponderance of the evidence supports a classification as an enemy combatant. Detainees will be assigned representatives to assist them, but will not be provided with legal counsel. They will be permitted to present evidence and call witnesses if “reasonably available.” There will be a rebuttable presumption in favor of the government. Critics say, however, that the Defense Department’s plans still fall short of the mark.” The government is out there claiming that they’re going to satisfy the Supreme Court with the tribunals they’re setting up,” says Jeffrey Fogel, a lawyer for the Center for Constitutional Rights, which represents 51 detainees. “I think clearly the government’s approach to this is to get away with whatever they can get away with and to give the least rights they can get away with.” But the administration believes the process will be enough to convince a federal judge to defer to the Pentagon’s judgment and not conduct an independent inquiry. Said the senior Justice Department official: “We would be in a position to argue that whatever rights to process [detainees] have have been satisfied and a fair opportunity for them to be heard . . . has been provided.” — Vanessa Blum LAYING IT OUT The indictment of former Enron Corp. Chief Executive Officer Kenneth Lay last week came after an intense, two-year investigation into the energy giant’s spectacular financial collapse in 2001. But the indictment itself also reflects quite recent developments. In response to the Supreme Court’s June 24 ruling in Blakely v. Washington, the 65-page indictment includes a section setting out aggravating factors that might influence Lay’s punishment. For instance, prosecutors allege that Lay abused public and private trust to commit fraud and that his actions resulted in the loss of more than $100 million. In Blakely, the Court held that factors used to increase criminal penalties must be admitted by the defendant or proved to a jury beyond a reasonable doubt. While the full ramifications of the decision remain hazy, the Justice Department has instructed prosecutors to start including aggravating factors in all criminal indictments. — Vanessa Blum ODD DISCLOSURE The Federal Trade Commission took the unusual step of going public last week with an ongoing antitrust investigation of the closure of a Shell Oil refinery near Bakersfield, Calif. But if it looked like a victory for Sen. Ron Wyden (D-Ore.), who is holding up the nomination of Deborah Majoras to chair the FTC in a push to crack down on oil company mergers, it wasn’t meant to, says an agency official. And Wyden isn’t taking it as one — yet. “The acid test is whether the FTC will act, but this is certainly more than they’ve said publicly to date,” says Andrew Blotky, a spokesman for Wyden. The senator is up for re-election in a state where the price of gas averages about $2 a gallon. Shell says the investigation started in April and that the refinery isn’t profitable. But Sen. Barbara Boxer (D-Calif.) has said the company’s plans to shutter the plant Oct. 1 are part of a scheme to keep oil supply tight and gasoline prices high. Majoras, a Jones Day partner, was nominated in May to fill Timothy Muris‘ unexpired term. — Lily Henning JACKSON RETIRES Senior Judge Thomas Penfield Jackson announced last week that he will permanently retire from D.C.’s federal bench Aug. 31 and rejoin D.C.’s Jackson & Campbell, the firm co-founded by his father. Jackson, 67, is best known for presiding over the Justice Department’s antitrust case against the Microsoft Corp., as well as a series of drug gang trials, including the infamous Newton Street Crew case. Jackson, who has been a federal judge for 22 years, had quadruple bypass surgery in March. “I had a sense that I really had been here long enough,” says Jackson, adding that he has fully recovered from the operation. “Thoughts of mortality induced me to reflect on the matter and decide that while I still have my health and my intellect intact, I would try and do something else.” Prior to being nominated to the bench by President Ronald Reagan, Jackson spent 18 years at Jackson & Campbell. He says he has about 130 cases on his calendar and plans to close a large number before retiring. — Tom Schoenberg GONE GIBSON Outgoing U.S. Solicitor General Theodore Olson was hailed as “a hero of modern America” and treated to a standing ovation at a Federalist Society luncheon July 9, Olson’s final day in the position. After providing an insider’s perspective on this year’s Supreme Court term, Olson said his most memorable Court appearance came before his tenure: his winning arguments as then-candidate George W. Bush’s lawyer in Bush v. Gore in 2000. Starting July 12, Olson returns to the payroll of Gibson, Dunn & Crutcher, the only place he has ever worked other than the Justice Department. Gibson partners take home an average of $1.3 million a year, according to The American Lawyer magazine’s survey of the nation’s top 100 law firms. Olson will co-chair the 25-lawyer appellate practice he created, along with Theodore Boutrous Jr. in Los Angeles and Miguel Estrada in D.C. “We’ve thrived on the principles he developed,” Boutrous says, “and by coming back, he’ll launch even further into the appellate practice and crisis management for our clients.” At first, Olson won’t launch into anything but his usual July vacation in Wisconsin, a welcome rest after his eventful three years as solicitor general. — Tony Mauro and Christine Garton ON THE HUNT Hunton & Williams is beefing up its international trade and litigation practices with the addition of an international dispute resolution group from the D.C. office of Piper Rudnick. Eight attorneys and several nonattorney professionals made the move, and the firm is looking to bulk up the practice further in the future. “Hunton & Williams is a great old firm that I have known about for many years,” says B. Donovan Picard, who will head the new group along with Martin Lutz, “and they have a great focus on the kinds of things we do.” Hunton’s D.C. managing partner, Andrea Bear Field, says, “Their coming here allows us to build the critical mass we need to build up our international dispute resolution practice.” The group brings with it experience in energy policy development and evolving legal regimes in Africa, the Middle East, and the former Soviet Union. A Piper spokeswoman says the firm’s international practice remains strong, noting that the firm recently opened a Paris office. — Bethany Broida PRYOR ENGAGEMENT Opponents of William Pryor Jr., a controversial George W. Bush appointee to the U.S. Court of Appeals for the 11th Circuit, are trying to pique the interest of the Supreme Court. Many Democrats claim the president acted unconstitutionally in February when he named the conservative Alabaman to the appeals court. But the 11th Circuit itself has turned aside their contentions that Pryor’s recess appointment was invalid because it took place during a 10-day adjournment in the middle of a Senate term. Last month, partner William Schultz and others at D.C.’s Zuckerman Spaeder filed a cert petition in a criminal case in which Pryor participated. They want the Supreme Court to decide whether a judge can be placed on the bench without Senate approval during such an “intra-session” recess. On July 7, Sen. Edward Kennedy (D-Mass.) filed an amicus brief urging the Court to take the case. Justice Department lawyers have said that precedent is on Bush’s side: seven judges in U.S. history have been named to federal courts during brief recesses. — Jonathan Groner CIRCUIT BREAK The United States racked up a big win against China last week when the two countries settled a dispute at the World Trade Organization. In March, the United States filed a WTO case — the first ever filed against China — accusing it of using discriminatory tax practices against the U.S. semiconductor industry. China charged a 17 percent value-added tax on integrated circuits, but offered a rebate on most of the tax to its domestic manufacturers, giving them a boost over foreign competitors. In the settlement, China pledged to stop the refunds. “It’s a success that helps us level the playing field,” said U.S. Trade Representative Robert Zoellick at a news conference July8. Andrew Shoyer, a Sidley Austin Brown & Wood partner and legal counsel to the U.S.-China Business Council, says settling was advantageous to China, a relatively new member of the trade organization. “They were able to solve this problem without risking the political embarrassment of losing a WTO case,” he says. — Christine Hines ALL THE CARDS Lawyers from Cooley Godward and the Texas Lawyers’ Committee have filed a class action to compel the Department of Homeland Security to hand over green cards to immigrants awarded lawful permanent resident status by immigration judges. The suit, filed in federal court in San Francisco last week against the DHS and the Justice Department, claims DHS offices around the country have been rejecting requests by lawful residents for documentation of their status. Michelle Rhyu, a Cooley associate in Palo Alto, Calif., charges that DHS officials have been conducting additional background checks on the immigrants once immigration judges have granted permanent resident status. Rhyu says they are not challenging the checks but want their clients provided with at least temporary documentation so they can get jobs, travel throughout the country, and avoid inadvertent arrest. “They should have the paperwork that allows them to carry on with their lives,” she says. Neither DHS nor Justice Department officials returned calls for comment. — Marie Beaudette

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