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CONTRARY TO SUGGESTION, DETAINEE SUITS HAVE NOT GONE BADLY FOR ADMINISTRATION To the editor: You rightly focus on the importance of the numerous pending cases that challenge administration policy of holding enemy combatants without trial (“ An Uncertain Road,” Dec. 4, 2006). But by choosing to rely virtually exclusively on anti-administration sources (everyone quoted by name in the article is an administration critic), you have provided an unbalanced, inaccurate account of the litigation, which on the whole has not gone badly for the administration. You state that “in the Hamdi v. Rumsfeld decision, the Supreme Court found that U.S. citizens cannot be detained as enemy combatants.” In fact, the Court ruled precisely the opposite: Five of the nine justices stated that the president possessed the power to detain Hamdi (an American citizen) as an enemy combatant without trial. So, contrary to your assertion, the government — in seeking to detain Ali al-Marri as an enemy combatant — has no reason to attempt to distinguish the Hamdi decision by pointing to al-Marri’s alien status. Moreover, although Hamdi left open the question of whether American citizens can be detained without trial as enemy combatants if captured within the U.S. rather than on a foreign battlefield, the 4th Circuit (the court before which al-Marri’s case is pending) unanimously answered that question in the administration’s favor in Padilla v. Hanft. Given that the 4th Circuit has determined that U.S. citizens such as Jose Padilla taken into custody within this country are subject to detention without trial as enemy combatants, it is a stretch to suggest that the court might reach the opposite conclusion with respect to aliens such as al-Marri. Inexplicably, you mention an “angry rebuke” the 4th Circuit gave the administration in Padilla while failing to note that the administration won the case. You also bought into the al-Marri party line that there is some special significance to the decision of former U.S. Attorney General Janet Reno to sign an amicus brief in support of al-Marri. You inaccurately state that Reno, whose brief condemns the government’s handling of al-Marri, “has rarely criticized her successors.” To the contrary, Reno has on a number of occasions joined the cadre of Clinton administration officials that routinely engage in judicial second-guessing of Bush administration national security decisions. For example, she filed a 4th Circuit amicus brief in June 2005 that challenged the president’s authority to detain Jose Padilla. After the 4th Circuit ruled against Padilla, Reno filed an amicus brief in December 2005 in support of Padilla’s unsuccessful petition for Supreme Court review. While reasonable people can quibble over the details, there is widespread support across the nation for the administration’s efforts to detain those seeking to destroy this country, and most recognize that cases of this sort cannot be handled effectively within the regular criminal justice system. Legal Times should make a greater effort to publish stories that demonstrate an awareness of that viewpoint. Richard Samp Chief Counsel Washington Legal Foundation Washington, D.C. See our correction of the story referenced in the above letter.
CHIEF JUSTICE WAS WRONG TO DISMISS TEST OF OBVIOUSNESS To the editor: As a member of the “profitable” patent bar, I was startled by Chief Justice John Roberts Jr.’s dismissive remarks during oral argument in KSR v. Teleflex as reported in your publication [" Justices Take a Whack at Patent System," Dec. 4, 2006]. The existing Supreme Court precedent for determining obviousness under patent law, Graham v. John Deere (1966), and the subsequent Federal Circuit decisions are clear that obviousness is viewed from the perspective of one of ordinary skill in the art (in recombinant genetics, that typically means a person with a Ph.D.). It is not measured from the perspective of the “least insightful” person you can find, as Justice Roberts disparagingly suggested. A decision setting the bar too high for patentability will wreak havoc with startup capital markets. The first question asked of my clients by angel investors and venture capitalists is, “What sort of patents do you have?” I’m disappointed that Justice Roberts was not better prepared in advance of oral argument. Peter J. Butch III Synnestvedt Lechner & Woodbridge Princeton, N.J.
GUARDIANS AD LITEM MAKE A DIFFERENCE To the editor: The article “ Finding a Friend in Desperate Times” (Dec. 4, 2006) brought much-needed attention to the important work that guardians ad litem do on behalf of abused and neglected children. There was one important error that, as a mother and an advocate, I feel compelled to correct. The article gave many details about my sons and the difficulties we have had as they heal from the trauma of abuse and neglect. What it missed was the wonderful success of my older son, who has graduated from high school, has a job, and lives at home with me. He is an example of how the combination of a loving family and supportive services — such as mental health treatment, special education, and vocational training — can make all the difference for a child, his family, and the community. Although there is much work to be done in the District to develop the necessary supports for children, the hard work of my colleagues at the Children’s Law Center succeeds in giving hundreds of children this winning combination every year. Judith Sandalow Executive Director Children’s Law Center Washington, D.C.

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