ACSBlog: The Blog of the American Constitution Society

In Brief

• DNI McConnell confirms telecommunications companies aided warrantless surveillance program
• Conn. Judge Downey nomination withdrawn after controversial statements come to light
• Fourth Circuit to rehear en banc Al-Marri case; three judge panel had found the President lacks the power to order the capture inside the U.S., and the prolonged detention afterward in a military prison, of a civilian suspected of terrorist ties.
• Ohio judge imprisons public defender who refused to try case with only 2.5 hours to prepare
• District Court decisions available online for free

McConnell and Warrantless Surveillance
Chris Roberts of the El Paso Times has a transcript of a Q&A with DNI Mike McConnell. The New York Times describes the Q&A as "rais[ing] eyebrows for their frank discussion of previously classified eavesdropping work conducted under the Foreign Intelligence Surveillance Act, known as FISA."

NYT summarizes the disclosures:

-- McConnell confirmed for the first time that the private sector assisted with President Bush's warrantless surveillance program. AT&T, Verizon and other telecommunications companies are being sued for their cooperation. ''Now if you play out the suits at the value they're claimed, it would bankrupt these companies,'' McConnell said, arguing that they deserve immunity for their help.

-- He provided new details on court rulings handed down by the 11-member Foreign Intelligence Surveillance Court, which approves classified eavesdropping operations and whose proceedings are almost always entirely secret. McConnell said a ruling that went into effect May 31 required the government to get court warrants to monitor communications between two foreigners if the conversation travels on a wire in the U.S. network. Millions of calls each day do, because of the robust nature of the U.S. systems.

-- McConnell said it takes 200 hours to assemble a FISA warrant on a single telephone number. ''We're going backwards,'' he said. ''We couldn't keep up.''

-- Offering never-disclosed figures, McConnell also revealed that fewer than 100 people inside the United States are monitored under FISA warrants. However, he said, thousands of people overseas are monitored.

Judicial Nomination Withdrawn
Connecticut Governor Jodi Rell withdrew the controversial nomination of Judge John Downey to the state's appellate court, reported the Hartford Courant.

From the bench, Downey had praised [former Senator Strom] Thurmond on the day after he died in June 2003. Downey spoke about Thurmond because the South Carolina senator had helped Downey in the mid-1970s when he was a law student at the University of South Carolina.

But legislators largely ignored the Thurmond remarks Tuesday and quizzed him on statements he made in 2006 suggesting that the estate of an illegal immigrant killed in a traffic accident might have no right to pursue a workers' compensation suit. . . .

[L]egislators suspended the hearing after obtaining transcripts quoting him as telling a lawyer during two divorce hearings in 2002 that he would not hear any case brought by an illegal immigrant.

Judge Downey has 18 months left in his term as a superior court judge and may be re-nominated by the Governor.

Al-Marri to be reheard by en banc panel
SCOTUSBlog reports the Al-Marri case is to be reheard by the Fourth Circuit sitting en banc. The case focuses on whether the President has the power to

order the capture inside the U.S., and the prolonged detention afterward in a military prison, of a civilian suspected of terrorist ties.

A divided three-judge panel had concluded the President lacked that power.

Public Defender Jailed
Judge Plough of Portage County, Ohio, held a public defender in contempt of court and sent him to jail  -- for asking for more than 2.5 hours to prepare his case, reported the Plain Dealer. He was held in jail for five hours (twice the amount of time granted to prepare for trial). This was the second time a public defender was thrown in jail by the judge.

The Appellate Law and Practice Blog comments:

This public defender has a written policy of not taking to cases to trial without at least a 24-hour lead time, which apparently everyone knows about. . . . Plough thinks that time to prepare for trial impedes justice or something.

Free Federal District Court Opinions
Justia, a web site containing legal information, has "just added full text decisions, orders and opinions for federal district court cases if they've been filed at PACER" at no cost to users, reports the Law Library blog.