With reading and accessing WikiLeaks documents, some law to consider

By Professor David Glazier

There has been significant discussion over the past week about potential consequences of downloading and sharing WikiLeaks documents classified by the U.S. government, ranging from schools' cautions to their students about potential job consequences to government agencies restricting access or discussion. One thing missing from most of this discussion is the relevant law. It does not seem to be widely understood that the public exposure of these documents does NOT declassify them. WikiLeaks can disclose classified information, but it cannot declassify it. As a matter of law these documents retain the original classification assigned to them until such time as an executive branch official with legal authority to alter the classification formally does so, or until the period of time established for them to remain classified has expired. (Many classified documents will be marked with a specified duration for their classification). While it may seem like government agencies endeavoring to limit access to the WikiLeaks site or public discussion of the documents by their employees are engaging in politically motivated censorship, it is in fact consistent with their obligations to enforce the law.

The reason that the fact that these documents continue to be classified really matters is federal espionage law, particularly 18 U.S.C. sec. 793. Most subsections of that statute contain a mens rea requirement that the perpetrator intends or has reason to believe that the information they are accessing or distributing "is to be used to the injury of the United States." I would contend that a citizen accessing information online for the purpose of informing themselves about what the U.S. government has been doing does not satisfy this requirement and could not reasonably be prosecuted under those sections. It is not hard to see, however, that those responsible for leaking the information to WikiLeaks, and potentially those responsible for posting it--knowing it would almost certainly be accessed by foreign governments and groups with interests inimical to those of the U.S. might reasonably be prosecuted under these sections. But the way U.S. espionage law currently reads, any American who simply retains or forwards any of these documents could also find them self violating federal law.

The specific legal provision of most concern is subsection (e) of 18 U.S.C. sec. 793, which reads (with some omissions simply for clarity):

Perry oral argument wrap-up: All three judges interested in the narrow case of California

By Associate Professor Doug NeJaime

Associate Professor Doug NeJaime wrote about the potential implications of Perry v. Schwarzenegger in a post last week. He live-Tweeted today's oral arguments.

While the first hour of oral argument in Perry focused on the question of standing, the second hour moved on to the meat of the case: the substantive merits regarding Prop. 8 and same-sex couples' right to marry. And here all three judges seemed genuinely interested in a narrow framing of the case--as one about whether California has a legitimate interest in taking away the label "marriage" from lesbian and gay Californians while leaving intact a comprehensive domestic partnership regime that provides the rights and benefits of marriage. In other words, can the Ninth Circuit rule that Prop. 8 is unconstitutional without directly impacting marriage restrictions in other states? Indeed, even Judge Smith, the most conservative judge on the panel, pointedly asked Charles Cooper, attorney for the Prop 8 proponents, whether one can find that California lacks a rational basis for the law without also finding that other states lack a rational basis for their marriage bans.

This narrow framing does not appear to be the plaintiffs' strategy of choice. They have consistently argued that lesbians and gay men enjoy a fundamental right to marry under the federal Due Process Clause and that classifications based on sexual orientation should (like race) be subject to strict scrutiny under the federal Equal Protection Clause. Yet various amici have been pushing a more limited framing of the case. The judges appear to have taken these arguments seriously, pressing the lawyers on the complexities of the California-specific reading. Although Ted Olson, arguing for the plaintiffs, maintained his position in favor of a more sweeping ruling, he nonetheless indulged the judges' interest in the more limited reading and set out a compelling argument that Prop. 8 fails a less searching level of scrutiny. And Terry Stewart, representing the City of San Francisco, argued forcefully that the Ninth Circuit could find Prop. 8 invalid under rational basis review because it constitutes nothing more than a classification for its own sake.

The panel's intense focus on the California-specific reading of the case made Romer v. Evans, the U.S. Supreme Court decision invalidating Colorado's Amendment 2, especially central to the argument. And, perhaps unsurprisingly, it was Justice Kennedy who wrote for the majority in that case. The Ninth Circuit panel, or at least Judges Reinhardt and Hawkins, may be preparing to craft a decision favorable to same-sex couples that relies explicitly on Justice Kennedy's earlier reasoning. This would deliver the issue to the U.S. Supreme Court in a way that allows Justice Kennedy to continue where he left off in Romer.

If this less sweeping, more California-centric understanding of the case prevails at the Ninth Circuit, the U.S. Supreme Court would be directly presented with a way to rule in favor of lesbian and gay equality while leaving intact the discriminatory laws of the majority of states. The bigger question of a nationwide right to marry for same-sex couples would continue to wait for its day in court.

Do states have human rights?

By Professor Cesare Romano

This is Professor Cesare Romano's second dispatch from the Conference of the Parties of the Climate Change Convention and Kyoto Protocol in Cancun. Romano reported from the conference last week.

Something that happened in Cancun, at the Conference of the Parties of the Climate Change Convention and Kyoto Protocol (COP/MOP), made me wonder whether and to what extent states enjoy the same human rights individuals do.

To cut a rather long story short, virtually all major modern multilateral environmental treaties are endowed with a body and a procedure to ensure states' compliance with their obligations under the agreement. These are the so-called "non-compliance procedures."

The UNFCCC and Kyoto Protocol have a non-compliance body, made of independent experts, and a procedure to handle cases of non-compliance. Recently, Croatia was found in violation of certain of its obligations by the Compliance Committee's Enforcement Branch. In Cancun, Croatia raised a very interesting question. Namely, it argued that it had a right to appeal the Enforcement Branch's report, asking the matter to be referred to the plenary COP/MOP.

Marriage equality's road to the Court

By Associate Professor Doug NeJaime

This is the third installment in the 11-part series, "11 on '11," in which Loyola Law School professors are weighing in on what they expect to be the biggest legal issues in their fields in 2011. (On Monday, Dec. 6, Professor NeJaime will live Tweet the Ninth Circuit Court of Appeals oral arguments in Perry v. Schwarzenegger beginning at 10 a.m. PT. He will provide follow-up analysis on Summary Judgments afterward.)

Everyone now seems to agree: The U.S. Supreme Court will eventually take up the issue of marriage for same-sex couples. But an open question remains: in what context?

Two potentially landmark federal cases are working their way through the courts. The first, Gill v. Office of Personnel Management, is a carefully constructed piece of movement advocacy. LGBT rights lawyers have long avoided the issue of marriage in the federal courts, preferring instead to work with sympathetic state courts (and, increasingly, legislatures) and keep the issue away from a generally conservative U.S. Supreme Court. But after a series of state-level victories, lawyers at Boston-based Gay & Lesbian Advocates & Defenders (GLAD) filed their Gill complaint, which challenges the unequal treatment of Massachusetts married couples (same-sex vs. different-sex) under the federal Defense of Marriage Act (DOMA). DOMA prohibits the federal government from recognizing same-sex "spouses," thereby creating two separate systems of federal treatment of couples who are married for Massachusetts state law purposes.

Meanwhile, in the wake of Proposition 8, which amended the California Constitution to prohibit marriage for same-sex couples, the newly formed American Foundation for Equality Rights (AFER) filed Perry v. Schwarzenegger, a federal constitutional challenge to the ban. While LGBT rights lawyers refused to challenge Proposition 8 in federal court and discouraged AFER from doing so--preferring instead to work at the state level--famed litigators Ted Olson and David Boies took the case.

Ninth Circuit overturns murder conviction based on perjured informant testimony

By Professor Alexandra Natapoff

Yesterday, in Maxwell v. Roe, the Ninth Circuit decided that Bobby Joe Maxwell's due process rights were violated in 1984 when the government used Sidney "the Snitch Professor" Storch as the main witness at his multiple homicide trial. L.A. Times story here: Appeals Court overturns murder convictions of alleged L.A. serial killer.

This is an important case for a number of reasons. The first is historical: Storch was one of the most infamous jailhouse snitches in the Los Angeles County Jail during the 1980s, a period in which jailhouse snitch fabrication was rampant, numerous wrongful convictions occurred, and which eventually triggered a massive Grand Jury investigation and strigent reforms in Los Angeles.

The factual basis for the decision is also important. Appellate courts rarely conclude as a factual matter that a witness such as a jailhouse informant committed perjury, which is one of the reasons it is so difficult to overturn a conviction even after a witness recants. See previous post: In the news-- Recantation. In this case, the Ninth Circuit decided that "it was objectively unreasonable for the Superior Court to find that Storch testified truthfully at the 1984 trial," based on Storch's history as an informant and his other lies at trial.

Read the complete posting.

To suppress or not to suppress? Fourth Amendment takes center stage

By Professor Laurie Levenson

All of the cases before the U.S. Supreme Court are important, but for the 2010-2011 term, some criminal procedure cases are more important than others. The Fourth Amendment is the meat and potatoes for most criminal practitioners. This term presents two important cases regarding the exclusionary rule for Fourth Amendment violations.

The case of Davis v. United States, No. 09-11328, while addressing changes in the rules for searches incident to an arrest in an automobile, really focuses on where the Court may be headed with the exclusionary rule. Ever since Herring v. United States, 129 S.Ct. 695 (2009), many have speculated about whether the Leon good-faith exception to the exclusionary rule would expand to swallow the rule itself. Slowly but surely, the courts have created more good faith exceptions to the rule. The latest expansion of the good faith exception may come in Davis, where the United States argues that searches conducted before the Court's new ruling in Arizona v. Gant, _ U.S. _, 129 S.Ct. 1710 (2009), should not be suppressed because law enforcement was relying on prior Supreme Court precedent. (Supreme Court opinions are available online.)

Yet, while this is undoubtedly an important issue, there is more to watch in this case. In footnote 33 of the amicus brief recently filed by Wayne County, Mich., law enforcement is once again pushing to reduce all exclusionary rule decisions to a question of whether law enforcement's conduct was "deliberate, reckless, or grossly negligent." Law enforcement has not been shy in suggesting that the Court push this agenda. As they put it, "there is no time like the present." Davis could end up being a blockbuster case, depending upon how narrowly or broadly the Court applies the exclusionary rule. The Court may continue to chip away at the exclusionary rule, or bust it wide open once and for all, and let individual judges in each case balance whether the law enforcement officers in question could and needed to be deterred.

But, that is not all. The Supreme Court has yet another case waiting in the wings, Tolentino v. New York, No. 09-11556, that will examine the "fruit of the poisonous tree" doctrine under the exclusionary rule. Jose Tolentino was unlawfully stopped for playing music too loudly. Police learned his name, ran a DMV check, and discovered that his license had been suspended. He was then arrested for driving without a license. The New York court refused to suppress the evidence because it held that the exclusionary rule does not apply to a person's identity. The majority rejected the dissent's argument that refusing to apply the exclusionary rule will "give law enforcement an incentive to illegally stop, detain, and search anyone for the sole purpose of discovering the person's identity and determining if it matches any government records."

There is a good chance this term that the Court will reshape the Fourth Amendment by expanding the good-faith exception and contracting the fruit-of-the-poisonous tree doctrine. At least for drivers confronted by law enforcement, the protections of the Fourth Amendment may soon be getting thinner and thinner.

Climate change conference: Will Cancun deliver?

By Professor Cesare Romano

Once a year the world gathers to discuss what we should do to stop catastrophic climate change, or, more realistically, how we can give ourselves enough time to adjust to its inevitable effects. This past weekend an estimated 15,000 people, representing 194 states, NGOs and media converged on Cancun, Mexico, for the annual ritual of the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC) and the Parties to the Kyoto Protocol.

The last conference of this size produced as much emissions as a 150,000-person Northern European town. However organizers claim as much as possible is being done to keep emissions down--including using solar and wind to generate electricity, reducing water use in hotels and providing hybrid cars for transport. We are all encouraged to calculate our carbon emissions at computers provided at the conference and offset the impact by supporting local projects. The Mexican Government will plant around 10,000 trees and bushes around Cancun. The dress code, usually very formal, has been relaxed. We have all been encouraged by the president of the conference to buy and wear a guayabera, the Mexican male holiday shirt, in lieu of wearing a tie and jacket.

The last meeting of the COP (Copenhagen, December 2010) created very high expectations but failed to deliver. The meeting was emphatically billed as "the last chance to save the planet," and world leaders including President Barack Obama turned up. However, nations, and in particular the two key players, the U.S. and China, failed to agree on a legally binding target to cut emissions. Instead, a weak 'Copenhagen Accord' was signed that allows countries to choose their own targets but has no power to force them to keep the promises.

Will Cancun be different? In comparison to Copenhagen, this meeting has been massively down played. World leaders are not even turning up this time, leaving it to their environment and foreign ministers. It is generally agreed that a global deal to cut emissions is unlikely, now and ever. However, supporters of the process, particularly environmental NGOs, are hopeful that the talks could make progress towards a deal by putting in place the 'functioning architecture'. Don't hold your breath because they have been trying to do that since Berlin in 1995, when truly yours was a young legal intern at the Convention's secretariat.

At a minimum, this time I will have a Guayabera to take home. Stay tuned for more reports from the water-filled trenches of climate change!

This is the first in a series of reports Professor Cesare Romano will file from the Cancun conference.