The New York Times: Congreso autoriza espionaje telefónico

Op-Ed Contributor
The Wiretap This Time

Anthony Russo

EARLIER this month, the Senate Intelligence Committee and the White House agreed to allow the executive branch to conduct dragnet interceptions of the electronic communications of people in the United States. They also agreed to “immunize” American telephone companies from lawsuits charging that after 9/11 some companies collaborated with the government to violate the Constitution and existing federal law. I am a plaintiff in one of those lawsuits, and I hope Congress thinks carefully before denying me, and millions of other Americans, our day in court.

During my lifetime, there has been a sea change in the way that politically active Americans view their relationship with government. In 1920, during my youth, I recall the Palmer raids in which more than 10,000 people were rounded up, most because they were members of particular labor unions or belonged to groups that advocated change in American domestic or foreign policy. Unrestrained surveillance was used to further the investigations leading to these detentions, and the Bureau of Investigation — the forerunner to the F.B.I. — eventually created a database on the activities of individuals. This activity continued through the Red Scare of the period.

In the 1950s, during the sad period known as the McCarthy era, one’s political beliefs again served as a rationale for government monitoring. Individual corporations and entire industries were coerced by government leaders into informing on individuals and barring their ability to earn a living.

I was among those blacklisted for my political beliefs. My crime? I had signed petitions. Lots of them. I had signed on in opposition to Jim Crow laws and poll taxes and in favor of rent control and pacifism. Because the petitions were thought to be Communist-inspired, I lost my ability to work in television and radio after refusing to say that I had been “duped” into signing my name to these causes.

By the 1960s, the inequities in civil rights and the debate over the Vietnam war spurred social justice movements. The government’s response? More surveillance. In the name of national security, the F.B.I. conducted warrantless wiretaps of political activists, journalists, former White House staff members and even a member of Congress.

Then things changed. In 1975, the hearings led by Senator Frank Church of Idaho revealed the scope of government surveillance of private citizens and lawful organizations. As Americans saw the damage, they reached a consensus that this unrestrained surveillance had a corrosive impact on us all.

In 1978, with broad public support, Congress passed the Foreign Intelligence Surveillance Act, which placed national security investigations, including wiretapping, under a system of warrants approved by a special court. The law was not perfect, but as a result of its enactment and a series of subsequent federal laws, a generation of Americans has come to adulthood protected by a legal structure and a social compact making clear that government will not engage in unbridled, dragnet seizure of electronic communications.

The Bush administration, however, tore apart that carefully devised legal structure and social compact. To make matters worse, after its intrusive programs were exposed, the White House and the Senate Intelligence Committee proposed a bill that legitimized blanket wiretapping without individual warrants. The legislation directly conflicts with the Fourth Amendment of the Constitution, requiring the government to obtain a warrant before reading the e-mail messages or listening to the telephone calls of its citizens, and to state with particularity where it intends to search and what it expects to find.

Compounding these wrongs, Congress is moving in a haphazard fashion to provide a “get out of jail free card” to the telephone companies that violated the rights of their subscribers. Some in Congress argue that this law-breaking is forgivable because it was done to help the government in a time of crisis. But it’s impossible for Congress to know the motivations of these companies or to know how the government will use the private information it received from them.
And it is not as though the telecommunications companies did not know that their actions were illegal. Judge Vaughn Walker of federal district court in San Francisco, appointed by President George H. W. Bush, noted that in an opinion in one of the immunity provision lawsuits the “very action in question has previously been held unlawful.”

I have observed and written about American life for some time. In truth, nothing much surprises me anymore. But I always feel uplifted by this: Given the facts and an opportunity to act, the body politic generally does the right thing. By revealing the truth in a public forum, the American people will have the facts to play their historic, heroic role in putting our nation back on the path toward freedom. That is why we deserve our day in court.

Studs Terkel is the author of the forthcoming “Touch and Go: A Memoir.”

Washington Post: Exxon Valdez en la mira del Supremo

Supreme Court to Hear Exxon Valdez Case

By William BraniginWashington Post Staff Writer Monday, October 29, 2007; 1:00 PM

The Supreme Court today agreed to hear an appeal by Exxon Mobil Corp. that seeks to overturn $2.5 billion in punitive damages a federal court ordered the company to pay for the 1989 Exxon Valdez oil spill off Alaska.

Stepping into the long-running dispute between the world's largest publicly traded oil company and more than 30,000 class-action plaintiffs, the court separately rejected the plaintiffs' appeal to reinstate the trial jury's original award of $5 billion in punitive damages. The 1994 award ultimately was cut in half during an appeals process that reached the U.S. Court of Appeals for the 9th Circuit, which issued its ruling in December.

Fishing boats connected to an oil skimmer by containment booms, patrol the waters off Erlington Island on Prince William Sound, Alaska, in this April 12, 1989 file photo, as workers continues to clean up crude left over from the spill of the tanker Exxon Valdez. The Supreme Court on Monday, Oct. 29, 2007, agreed to decide whether Exxon Mobil Corp. should pay $2.5 billion in punitive damages in connection with the huge Exxon Valdez oil spill that fouled more than 1,200 miles of Alaskan coastline in 1989. (AP Photo/John Gaps III, File) (John Gaps Iii - AP)

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Exxon Mobil argues that the $2.5 billion punitive award violates federal maritime law, and the Supreme Court agreed to take the case to settle that question. The justices declined to consider an argument that the award was so large that it violates the Constitution.
Justice Samuel A. Alito Jr. recused himself from the case without explanation. According to his 2006 financial disclosure report, he owned between $100,000 and $250,000 in Exxon Mobil stock as of Dec. 31.

Exxon Mobil asserts that it has been sufficiently punished for the oil spill, which occurred when the Exxon Valdez, a 900-foot oil tanker carrying 53 million gallons of crude oil, ran into a reef in Alaska's Prince William Sound in March 1989. The captain, Joseph Hazelwood, the only person on board with a special license to navigate the portion of the waterway containing the dangerous reef, turned over the wheel to the tanker's third mate and left the bridge. When the third mate was unable to execute the turn properly and hit the reef, the tanker's hull split open and 11 million gallons of crude gushed into the sound.

Massive pollution ensued, and the company eventually paid more than $3.4 billion in cleanup costs, environmental restoration payments, criminal fines and out-of-court settlements to private parties claiming economic damages.

But nearly 33,000 commercial fishermen, private landowners, cannery workers, Native Alaskans, local governments and businesses filed a class-action lawsuit. They argued that Exxon knew Hazelwood had sought treatment for alcoholism and was drinking aboard its ships, but nevertheless put him in charge of a huge vessel carrying "toxic cargo across treacherous and resource-rich waters."

Exxon argued that it should not be held responsible for mistakes by Hazelwood, who it said violated company rules.

A jury in Anchorage sided with the plaintiffs in 1994, awarding them $5 billion in punitive damages from Exxon and $5,000 from Hazelwood, on top of $287 million in compensatory damages. During subsequent appeals, the punitive award was cut to $4 billion, raised to $4.5 billion, and ultimately reduced to $2.5 billion, which the Court of Appeals for the 9th Circuit said was the maximum it could impose.

In seeking Supreme Court review, Exxon Mobil argued that the $3.4 billion it paid in cleanup and other costs was "more than enough to deter and punish anyone for anything." It said the $2.5 billion punitive award, the largest ever upheld by a federal appellate court, was not allowed under federal maritime law.

Lawyers for the plaintiffs contended that the large punitive award was justified by the widespread damage caused by the oil spill, which polluted more than 1,200 miles of Alaskan coastline, forced the closure of fisheries and resulted in the deaths of hundreds of thousands of birds and thousands of marine mammals.

Besides, the plaintiff's lawyers have argued, the oil giant can easily afford the punitive damages, given the company's record profits in recent years. In 2006, Exxon Mobil recorded a profit of $39.5 billion, surpassing its previous record from 2005 by more than $3 billion. The 2006 figure was the largest annual profit ever posted by a U.S. company.

The Supreme Court is expected to rule in the case, Exxon Shipping Co. v. Baker, by the end of June.

SCOTUSblog: Exxon Valdez ante el Supremo

Court to rule on Exxon Valdez verdict

Monday, October 29th, 2007 10:03 am Lyle Denniston

The Supreme Court agreed on Monday to rule on the legality of the $2.5 billion punitive damages award against Exxon Mobil Corp. and its shipping subsidiary for the massive oil spill in Alaska’s Prince William Sound in 1989 — an incident that has sparked a 13-year courtroom battle over money damages. The Court limited its review to issues involving maritime law, declining to hear a claim that the verdict was excessive under the Constitution’s Due Process Clause. The Court also refused to hear a cross-appeal, seeking to reinstate an earlier $5 billion damages award.

Click on the following links to read the petition for certiorari, brief in opposition, and petitioner’s reply, as well as amicus briefs (all supporting the petitioner) from the American Waterways Operators, International Association of Independent Tanker Owners, American Petroleum Institute, Chamber of Commerce, American Institute of Marine Underwriters, Keystone Shipping, American Commercial Lines, Washington Legal Foundation, International Association of Drilling Contractors, Transportation Institute, International Chamber of Shipping, Maritime Law Association, and a group of professors.

In a second grant, the Court said it would decide whether the Federal False Claims Act applies only to claims of misspent funds when those claims are presented to a federal government agency, or whether it also covers claims submitted to a federal contractor if the claim ultimately will be paid with federal money. The case is Allison Engine v. U.S. ex rel. Sanders (07-214). Click on the following links to read the petition for certiorari and brief in opposition, as well as an amicus brief from the Chamber of Commerce. This is an appeal by a group of four defense subcontractors who supplied generators to power a class of Navy guided missile destroyers — the Arleigh Burke Class. The lower courts are split on the question at stake.
That and the Exxon case were the only ones granted.

In agreeing to hear the Exxon appeal, the Court indicated it would decide whether the company should be freed of any punitive damages award on the theory that it was based solely upon judge-made maritime law in contradiction of decades of legal history — an issue that the appeal says has divided the lower courts. Also included in the grant will be the difference between the Clean Air Act, in which Congress specified penalties for maritime conduct but did not include punitive damages, and the ruling in this case awarding punitive damages based on federal maritime law. Further, the case raises the issue of whether, if maritime law does govern, this specific award is too high because it is said to be “larger than the total of all punitive damages awards affirmed by all federal appellate courts in our history.” That was the third of three questions Exxon had raised in its petition, but the appeal also included in that question a test of whether a verdict of that size was unconstitutional; it is that latter point that the Court did not agree to hear. The appeal is Exxon Shipping Co., et al., v. Baker, et al. (07-219).

The case does raise the prospect that the Court could split 4-4, thus upholding the verdict, because Justice Samuel A. Alito, Jr., is recused from the case, according to the Court’s grant order. Alito’s past financial disclosure statements have indicated he owns a sizeable amount of Exxon Mobil stock, according to Bloomberg News.

The second case growing out of the 1989 accident, a plea by individuals who had sued Exxon and its shipping unit, had sought reinstatement of a full $5 billion damages award, originally assessed by a District judge and upheld by the Ninth Circuit Court, but later cut in half by the Circuit Court. That cross-appeal was Baker, et al., v. Exxon Mobile Corp., et al. (07-276). Justice Alito also did not take part in the unexplained order denying review.

Exxon Mobil, in a news release discussing the Court’s action, said that it had already spent more than $3.5 billion in “compensatory payments, cleanup payments, settlements and fines.” Thus, it said, the case “has never been about compensating people for actual damages.” The ship’s captain at the time of the incident, Joseph Hazelwood, was later convicted of negligently spilling the oil, but was found not guilty of operating the ship while drunk. Exxon Mobil claims that he violated company policy in leaving the bridge of the Exxon Valdez before she went aground on Bligh Reef, spilling 11 million gallons (about 258,000 barrels) of oil.

The case before the Justices does not involve any claims for the environmental damage; that was resolved in earlier actions by the federal and Alaska state governments. Exxon Mobil also has paid off other private interests with $300 million in settlement payments. The Ninth Circuit’s decision to cut in half the $5 billion verdict was based, in part, upon that Court’s conclusion that it bore only a 5 to 1 ratio of the $500 million in estimated economic harms. The spilling of the oil was found not to have been intentional. The award of punitive damages was made in a case involving a class of 32,677 commercial fishermen, private landowners and Native Americans.

Because the case was proceeding in federal court, the normal basis for punitive damages — state tort law — did not apply. Thus, the claim for damages was based upon the assertion of a maritime tort under federal law that is fashioned largely by court decisions, rather than by federal statute.

Among other actions taken Monday, the Court, in an unusual order, with seven of the nine Justices not taking part, summarily upheld a D.C. Circuit Court ruling that those Justices had immunity to a civil damages claim of $75,000 by a Washington, D.C., attorney who has challenged the Court for an earlier refusal to hear his case. Since those seven members of the Court were directly sued, they were recused; under federal law, when the Court does not have a quorum (six Justices minimum), the effect is to affirm the lower court ruling. The attorney, Montgomery Blair Sibley, had sued the Justices after they had denied review of a case involving a domestic relations and child custody dispute. In Monday’s order, no Justice made any comment on the merits of the Circuit Court ruling being affirmed. The case was Sibley v. Breyer, et al. (07-6522).

Among the cases on which review was denied Monday were these:
** The constitutionality of a state business profits tax that treats dividends paid to U.S. companies by foreign subsidiaries differently, based upon whether those foreign units do business within the state. The case was General Electric v. Commissioner, New Hampshire Department of Revenue Administration (06-1210). The U.S. Solicitor General, asked by the Court for the government’s views on the case, urged a denial.

** A test of whether a worker suing for discrimination in the workplace must show that every non-discriminatory reason the management gave for its action was merely a pretext for bias. The appeal sought a ruling that it should be sufficient if a worker is able to discount one such reason as a pretext. Crawford v. Fairburn, GA (07-233).

** A claim that it violates the Fifth Amendment privilege against self-incrimination if prosecutors use a suspect’s silence before being given Miranda warnings, as evidence of guilt. Salinas v. U.S. (07-36).

** An appeal seeking to reinstate a lawsuit by private individuals in the U.S. and Canada seeking to recover one of Vincent van Gogh’s late paintings, ultimately acquired by Hollywood actress Elizabeth Taylor. The descendants of a German woman who acquired the painting in 1907 claimed that the work was looted by the Nazis. The Ninth Circuit rejected the lawsuit, which had been based on Holocaust property-recovery law, on the theory that the law did not create the remedy of private lawsuits. The case was Orkin, et al., v. Taylor (07-216).

The Wall Street Journal: Musulmanes sufren abusos por su fé

Court to Hear Harassment Case

Later Monday, justices will hear arguments in the case of a Muslim who alleges harassment in prisons and jails because of this faith.

The issue in the inmate's lawsuit is whether he can sue prison officials for allegedly confiscating two copies of his Quran and his prayer rug.

Abdus-Shahid M.S. Ali, a convicted murderer, says the books and rug are among the personal items that have been missing since 2003, when he was moved from a federal penitentiary in Atlanta to a facility at Inez, Ky.

Muslim inmates have been subjected to "very hard times and bad treatment" at the hands of federal, state and local prison employees because of the Sept. 11, 2001, terrorist attacks, Mr. Ali says in court papers.

Mr. Ali is serving a sentence of 20 years to life in prison for committing first-degree murder in the District of Columbia.

Mr. Ali said that because he has "practiced his faith to the fullest" he has been subjected to prison officials repeatedly confiscating and destroying his legal and religious property. He said he has been harassed for his religious beliefs "year after year" in both the District of Columbia Department of Corrections and the U.S. Bureau of Prisons. Mr. Ali says the items he turned over to prison officers in Atlanta for shipment never arrived at Inez.

In the Supreme Court, the question is whether federal prison officials qualify as law-enforcement officers and are therefore exempt from suit under the Federal Tort Claims Act of 1946. The statute bars liability claims against law enforcement officers involved in detaining property. Two lower federal courts ruled against Mr. Ali.

Besides the two copies of the Quran and the prayer rug, Mr. Ali is missing stamps and other personal items valued at $177 that he says weren't sent along to Big Sandy penitentiary in Kentucky. Ali v. Federal Bureau of Prison

The Wall Street Journal: Caso Exxon Valdez ante el Supremo

High Court to ReviewExxon Valdez Case

Associated PressOctober 29, 2007 10:13 a.m.
WASHINGTON -- The Supreme Court on Monday stepped into the long-running battle over the $2.5 billion in punitive damages owed by Exxon Mobil Corp. for the Exxon Valdez oil spill in 1989.

The justices said they would consider whether the company should have to pay any punitive damages at all. If the court decides some money is due, Exxon is arguing that $2.5 billion is excessive under laws governing shipping and prior high court decisions limiting punitive damages.

Eleven millions gallons of oil spilled into Alaska's Prince William Sound when the supertanker ran aground on a reef. A federal appeals court already had cut in half the $5 billion in damages awarded by a jury in 1994. The damages were, by far, the largest ever approved by federal appeals judges, the company said in its brief to the court.

The case probably will be heard in the spring. The court's last ruling on punitive damages, in February, set aside a nearly $80 million judgment against Altria Group Inc.'s Philip Morris USA. The money was awarded to the widow of a smoker in Oregon.