A Senate Republican leader suggested Sunday that Attorney General Eric Holder should consider resigning over the decision to criminally charge alleged Christmas Day airplane bomber Umar Farouk Abdulmutallab rather than put him in military custody for interrogation.

Holder is “doing a better job of interrogating CIA employees than he is of interrogating terrorists, and he’s not making a distinction between enemy combatants and terrorists flying into Detroit trying to blow up planes and American citizens who are committing a crime,” Sen. Lamar Alexander (R-Tenn.) said in an appearance on Fox News Sunday.

Sen. Lamar Alexander (R-Tenn.)

“He needs to go to Congress and say I made that decision, and here’s why. And based on that perhaps he should step down,” Alexander said, according to The Hill.

Alexander is chairman of the Senate Republican Conference, the No. 3 GOP leadership position in the Senate. He is among the least partisan of Senate Republicans, according to an analysis by Congressional Quarterly, which found the Tennessee Republican was among those GOP senators who voted most often with President Barack Obama.

Last week, Senate Minority Leader Mitch McConnell (R-Ky.), and four top Republican committee members wrote in a letter to Holder that the decision to have FBI agents instead of intelligence officials interrogate Abdulmutallab was “hasty. The Nigerian national and alleged al-Qaeda-linked operative is accused of trying to blow up a Detroit-bound airliner with explosives hidden in his underwear.

Holder has been under fire from Republicans for a number of national security decisions, including his decision in August to appoint a special prosecutor, John Durham, to investigate whether CIA employees and contractors broke anti-torture laws during the Bush administration.

The decision to have Durham look into the matter came on heels of the DOJ Office of Professional Responsibility recommendation that urged Holder to reopen nearly a dozen alleged CIA prisoner-abuse cases.

Holder also backed release of Bush-era Office of Legal Counsel memos in April that justified brutal interrogation techniques that critics consider torture. The White House at the time fretted over the political implications of releasing the memos but ultimately decided the matter was the Attorney General’s call.

And on Friday, the Obama administration reversed Holder’s November decision to hold a trial in Lower Manhattan of self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed and four other alleged plotters of the Sept. 11, 2001 terrorist attacks. The decision to move the trial came after a bipartisan outpouring of criticism about the security costs and disruptions of holding a trial in New York.

In case you missed it, five of the seven U.S. Attorneys who were fired during the Bush administration spoke at Arizona State University’s Sandra Day O’Connor College of Law earlier this week. (h/t TPMMuckraker)

They reflected on their experience, the fallout of which led to the resignation of Attorney General Alberto Gonzales, and talked about preserving the integrity of U.S. Attorneys.

The panelists included:

• Paul Charlton, former U.S. Attorney for the District of Arizona, and now a shareholder with the Phoenix law firm of Gallagher & Kennedy
• Bud Cummins, former U.S. Attorney for the Eastern District of Arkansas, now a consultant
• David Iglesias, former U.S. Attorney for the District of New Mexico, now a prosecutor for the Office of Military Commission in Washington, D.C.
• Carol Lam, former U.S. Attorney for the Southern District of California, now senior vice president and deputy general counsel for Qualcomm Inc. in San Diego
• John McKay, former U.S. Attorney for the Western District of Washington, now a professor from practice at the Seattle University School of Law

We’re not sure the last time so many were in one place — perhaps in 2007, when they testified about their firings on Capitol Hill. See the video below.

An upcoming report by the Office of Professional Responsibility clears the key authors of a legal memorandum justifying waterboarding of allegations that they violated professional standards, Newsweek reports.

An earlier draft of the report concluded that former Office of Legal Counsel lawyers Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor, failed to meet their professional obligations when crafting a 2002 memo blessing the use of harsh interrogation techniques.

Associate Deputy Attorney General David Margolis, a career lawyer, “downgraded that assessment to say they showed ‘poor judgment,’” during a final review of the report, according to Newsweek. Under department rules, poor judgement does not rise to the level of professional misconduct — which means no referrals to state bar associations for potential disciplinary action.

It’s unclear why Margolis softened the initial findings. A Justice Department official told Newsweek he acted without input from Holder.

The report, which has been expected for months, is undergoing declassification. The final version will provide fresh details about how waterboarding was adopted and the role top White House officials played in the process, Newsweek reports. For instance:

Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense� to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

We’ll have more throughout the day.

The Obama administration will move the trial of accused 9/11 mastermind Khalid Sheikh Mohammed and four other terrorism suspects out of New York City, news outlets are reporting.

The decision to move the trial came two days New York Mayor Michael Bloomberg (R) on Wednesday reversed his support for holding the trial in lower Manhattan, citing security costs and disruptions to businesses and residents.

The alleged 9/11 mastermind in photographs released by the FBI in 2001. (Getty Images)

But resistance to the trial location had begun “gathering steam” in December, The New York Times reported.

Steven Spinola, president of the Real Estate Board of New York, told President Obama’s political advisor David Axelrod after a dinner in New York on Dec. 14 that Manhattan was an inappropriate venue for the trial, the Times said.

In November, when Attorney General Eric Holder announced his decision to try Mohammed and other accused conspirators in the Sept. 11, 2001 terrorist attacks in New York, he cited the symbolism of bringing the men to “justice” near the site of the World Trade Center towers, which were demolished in the Sept. 11, 2001 terrorist attacks.

“After eight years of delay, those allegedly responsible for the attacks of September the 11^th will finally face justice,” Holder said in a statement in November. “They will be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.”

But Bloomberg’s remarks earlier this week, and pressure from New York City business leaders, unleashed a chorus of Democratic opposition, including from New York’s senior senator, Democrat Charles Schumer. On Friday, Sen. Dianne Feinstein (D-Calif.), chair of the Senate intelligence committee, released a letter to President Barack Obama that was cc’d to Holder urging the administration to abandon the Manhattan trial, The Washington Independent reported.

Administration officials said they remain committed to pursuing Mohammed and the other four defendants in federal court.

The search is now on for alternative locations. Public Advocate Bill de Blasio, New York City’s No. 2 elected official, suggested the U.S. Military Academy at West Point or Stewart Air National Guard Base in New Windsor, N.Y., the Wall Street Journal reported.

“Clearly we are the heart of the matter. This is where the most important crime occurred and this is the location the world associates with that day,”  de Blasio said, according to the Journal. “The mistake was to put it a little too literally at the immediate scene of the crime.”

The Democratic officials’ opposition turned the tide in a manner that conservatives led by former Vice President Dick Cheney — who objected to trying the accused terrorists in federal court rather than before military commissions —  could not.

Now, liberal advocacy groups that support civilian trials for terror suspects are bracing for a fight they thought they’d already won. Although the recent arguments for trying Mohammed and his alleged confederates elsewhere — security concerns, cost and inconvenience — are not the same objections originally registered by Republicans, they seem to play into the GOP’s hands.

The Constitution Project, a legal issues think tank, put out a news release on Friday that clearly anticipates a new round of attacks on civilian trials. Here’s an excerpt:

The Constitution Project applauds the Obama administration for standing firm in its commitment to conduct the previously-announced September 11th trials in federal court. In recent days, there has been extensive media buzz about the planned trials of Khalid Sheikh Mohammed and four others in federal court in the Southern District of New York, with New York City Mayor Michael Bloomberg and other city and state officials stating their support for a shift in venue for the trials. In asking the Department of Justice to consider moving the trial out of New York City, the administration has correctly focused on where the trials should be held and has not retreated from its decision to rely on our traditional federal courts.

“What needs to remain clear with all the talk of moving the 9/11 trials out of New York City is that the Obama administration correctly remains committed to prosecuting these September 11th defendants in our traditional federal courts,” said Virginia Sloan, president of the Constitution Project. “This is not a discussion of federal courts vs. military commissions. The administration has made its decision in favor of federal courts – a decision that has widespread bipartisan support. The public must know that the current debate is about whichfederal court is the most appropriate location for these trials.”

Joe Palazzolo and Mary Jacoby contributed to this report.

On the heels of an ad critical of the Justice Department and Attorney General Eric Holder put out by a group led by Liz Cheney, former Vice President Dick Cheney’s daughter, a human rights group is hitting back with a parody video that accuses Cheney’s group of using scare tactics.

Human Rights First goes after Keep America Safe, the group led by Cheney in a new video, “Keep America Afraid,” embedded below.

Meanwhile, the Justice Department is using new media tools to argue in favor of using the criminal justice system to prosecute terrorists.

“As a counter-terrorism tool, the criminal justice system has proven incredibly effective in both incapacitating terrorists and gathering valuable intelligence from and about terrorists,” writes Tracy Russo on the DOJ blog. “In every instance, the administration will use the tool that is most effective for fighting terrorism, and will make those decisions based on pragmatism, not ideology.”

A top Justice Department official and a lawyer representing hundreds of thousands of Native Americans in a long-running class action lawsuit say they are hopeful that Congress will be able to pass the required legislation to move the settlement forward before next month’s deadline.

The parties announced on Dec. 8 that they had reached a settlement in Cobell v. Salazar, in which the Interior Department was accused of  mishandling funds in Indian trust funds which belong to individual Native Americans.

One of the largest class actions ever filed against the U.S. government, it was originally filed in 1996, by Elouise Cobell on behalf of more than 300,000 Native Americans holding individual Indian money accounts. In the waning days of 2009, both parties agreed to extend the year-end deadline for final resolution of the settlement to Feb. 28, 2010.

“We’re certainly hopeful that we will get passage of that,” Associate Attorney General Thomas Perrelli told Main Justice on Thursday. “I don’t have any specifics. But we remain hopeful that it’s going to get passed.”

Keith Harper (kilpatrickstockton.com).

Keith Harper, a Kilpatrick Stockton lawyer representing Cobell, told Main Justice that he is “still cautiously optimistic despite the gridlock on Capitol Hill.” Harper said his firm continues to work on figuring out ways to notify the plaintiffs so that they will be “ready to go” when the legislation is passed.

“The holdup doesn’t have anything to do with our particular legislation,” said Harper. “A lot is happening on the Hill, but I don’t have a sense of any serious opposition. Both sides have been supportive of this resolution.”

Asked about the possibility of extending the Feb. 28 deadline, Harper said they would “cross that bridge when we get to it.”

‘There are a lot of moving parts, but both sides agree that this is the right thing to do,” said Harper. “Whether we can continue to extend the deadline is another question, but right now all energies are focused and we’re feeling very good.”

Editor’s note: The following guest commentary is from Thom Lambert, a professor at the University of Missouri School of Law in Columbia, Mo. It first appeared on the Truth on the Market blog, and is reprinted below with permission.

To read the full commentary, click here.

By Thom Lambert

Jan. 28, 2010

Tomorrow I will be presenting my paper, A Decision-Theoretic Rule of Reason for Minimum Resale Price Maintenance, at the Next Generation of Antitrust Scholarship Conference at NYU Law School. (Kudos to Danny Sokol for co-organizing what promises to be a terrific event!) My paper criticizes four proposed approaches to evaluating RPM post-Leegin, and it sets forth an alternative approach that embodies the sort of error cost analysis Geoff and Josh have embraced in connection with monopolization doctrine. The paper largely builds on my recent William & Mary Law Review article on RPM, expanding the analysis to address recent developments in the caselaw and antitrust scholarship (e.g., I address the pending Babies-R-Us case).

In preparing for the conference, I checked Westlaw to see who (if anyone!) had cited my William & Mary article, and lo and behold, I came across a piece on post-Leegin RPM analysis by Christine Varney herself. Well guess what? It’s really quite good. We here at TOTM have occasionally been critical of Ms. Varney’s interventionist stances on antitrust (most recently here), but we must give credit where credit is due. And Ms. Varney’s article, A Post-Leegin Approach to Resale Price Maintenance Using a Structured Rule of Reason, is creditworthy.

As I do in both my William & Mary article and the paper I’m presenting tomorrow, Ms. Varney argues that plaintiffs challenging instances of RPM should bear the burden of proving that the preconditions for at least one of the theories of RPM-induced anticompetitive harm are satisfied. That may sound like a no-brainer, but it’s signficantly more stringent than any of the other liability rules courts, commentators, and regulators have thus far proposed.

The American Antitrust Institute and the attorneys general of 27 states, for example, would presume the illegality of any instance of RPM that raises consumer prices. That’s ridiculous, of course, for even RPM’s procompetitive potential stems from the fact that it generates output-enhancing services by raising prices and thereby enhancing retailer margins (and retailers’ incentives to promote the brand at issue).

The Babies-R-Us court, following the proposal of economists F.M. Scherer and William Comanor, deems any retailer-initiated RPM to be illegal. That’s troubling because, as I explained in this post, retailers have an incentive (and are particularly well-poised) to seek RPM for procompetitive purposes like avoiding free-riding. Retailer initiation is entirely consistent with procompetitive motivation (and effect), but it’s enough to render RPM per se illegal under the Babies-R-Us approach.

The Areeda treatise would deem illegal any RPM imposed on a homogeneous product that is not sold with services susceptible to free-riding. That’s too restrictive because, as I explain here (and as Josh has explained in a number of articles and posts), RPM has procompetitive uses besides the avoidance of free-riding. Most notably, it can act as an efficient mechanism for inducing dealers to promote a particular brand of even a homogeneous product. Thus, it may be output-enhancing even when applied to products that aren’t sold along with “free-rideable� point of sale services.

Finally, the FTC has taken the position (in deciding Nine West’s motion petition to modify an injunction) that RPM should be presumptively illegal unless the defendant makes a number of difficult showings. That’s inappropriate because theory and evidence suggest that most instances of RPM are procompetitive, and the RPM challenger therefore ought to bear the initial burden of proof.

Compared to these four proposed approaches, Ms. Varney’s proposed approach is a breath of fresh air. It correctly recognizes that anticompetitive uses of RPM are difficult to accomplish, and it properly places the initial burden on an RPM challenger to show that the preconditions for anticompetitive harm exist. (The defendant would then have a rebuttal opportunity, which is proper.) The showings necessary to state a prima facie case of illegality are quite difficult, but that’s entirely appropriate, given that most instances of RPM are procompetitive.

Ms. Varney’s article appears in the Fall 2009 issue of the ABA’s Antitrust Magazine and is available on Westlaw.

The Justice Department on Friday appealed a court decision dismissing charges against five former Blackwater guards involved in a 2007 shooting in Baghdad that left 17 Iraqis dead.

Vice President Joe Biden announced the government’s intention to file an appeal last weekend, after a meeting with Iraqi President Jalal Talabani.

Prosecutors say the guards opened fire in a crowded Baghdad intersection without provocation, killing or wounding more than 30 Iraqis, including women and children. Attorneys for the guards say their clients, who were protecting U.S. diplomats, took fire from insurgents and responded in kind.

U.S. District Court Judge Ricardo Urbina in Washington dismissed manslaughter charges against the guards in a harshly worded Dec. 31 ruling, in which he faulted Justice Department prosecutors for using tainted evidence to build their case and for abusing the grand jury process.

Many Iraqis were outraged by the decision, viewing it as evidence that the U.S. was not accountable for bloodshed in their country. Iraqi leaders have been collecting signatures for a class action against the security contractor, which changed its name to Xe Services last year.

Urbina’s December ruling invited comparisons to the the botched prosecution of former Sen. Ted Stevens (R-Alaska), whose conviction was erased last year because of government missteps.

In that case, Judge Emmet Sullivan, who sits on same court as Urbina, criticized the government for failing to disclose materials that could have aided in Stevens’ defense. Sullivan dismissed the case at Attorney General Eric Holder’s request, and then appointed a counsel to investigate prosecutors for possible criminal contempt.

Urbina, however, made no formal finding of misconduct, and in a ruling earlier this month, he said the Justice Department could seek a new indictment against the men. Urbina said prosecutors acted with “disregard” but concluded that dismissing the case — without prejudice — was punishment enough.

The government has not yet filed a brief explaining the grounds for appeal. In pretrial hearings, prosecutors argued that interviews the guards gave to the State Department after the shooting were part of the normal course of their job and could be used against them. Urbina ruled that interviews were compelled, which immunized the guards.

Editor’s note: The following guest commentary originally appeared on Tfoxlaw’s Blog,written by Thomas R. Fox, and has been reprinted below with permission. Fox is a Houston-based lawyer who assists companies with FCPA compliance, risk management and international transactions. He was most recently the General Counsel at Drilling Controls and was previously a Division Counsel with Halliburton Energy Services.

To read the original post, click here.

Effective Compliance Training – Part 2

By Thomas R. Fox

TYPES OF TRAINING

What type of training is most effective in the ethics and compliance arena? The consensus seems to be that there are three general approaches to ethics and compliance training which have been used successfully. The first is the most traditional and it is in-person classroom training. This gives employees an opportunity to see, meet and speak directly with a Compliance Officer, not an insignificant dynamic in the corporate environment. Such personal training also sends a strong message of commitment to compliance and ethics when training is held away from a corporation’s home office. It gives employees the opportunity to interact with the Compliance Officer by asking questions which are relevant to markets and locations outside the United States. Lastly it can also lead to confidential discussions after such in-person training.

An important part of in-person training is the opportunity to interact with the audience through Q&A. There are a couple different approaches to Q&A. The first is to solicit questions from the audience. However many employees are reluctant, for a variety of different reasons, to raise their hands and ask questions in front of others. This can be overcome by soliciting written questions on cards or note pads. A second technique is to lead the audience through hypothetical examples in which the audience is broken down into small (up to 5 person) discuss groups to discuss a situation and propose a response.

The second approach is on-line training. Rick Chapman, Assistant General Counsel for Halliburton in its Compliance & Ethics Practice Group, has said that online training is a one of several training approaches used by Halliburton in ethics and compliance training. On-line training can be a helpful adjunct to live training because it can permeate a globally distributed organization and lends itself to automatic recordkeeping, tickling, and expiration management. He discussed this approach and its use by Halliburton to enable it to “effectively reach every employee at Halliburton worldwideâ€� in Ethisphere Magazine, June 7, 2007. “Ethics and compliance courses are tailored to different categories of Halliburton employees and provided in multiple languages to ensure that all Halliburton employees will participate in ethics and compliance related learning activities at least once every two years by taking our general ethics and compliance training and/or issue-specific courses such as FCPA.”

A third option has been suggested in Wrageblog, written Alexandra Wrage the president of Trace International, It is a combination of live in-person training followed by a live Q&A session filmed. Such a program can then be shown at other company offices around the world. The presentation should be lead in-person by a Compliance Officer who can follow up the filmed presentation by conducting a Q&A teleconference with the Compliance staff in the company’s home office. Wrageblog believes that this approach can be a “very robust and inexpensive way to reach a large number of employees with a clear, tailored and forceful compliance message.�

All three ethics and compliance training approaches should be coordinated and both the attendance and result recorded for the combined approach, online training and traditional training for all types of employees in all countries. Results can be tabulated through short questionnaires immediately following the training and bench-marked through more comprehensive interviewing of selected training participants to determine overall effectiveness.

Whatever approach is used, one of the critical factors is the length of time of the training session. While lawyers and ethics and compliance professionals can (sometimes) sit through 8 hours of such training, it is almost impossible to keep the attention of business and operations employees for such a length of time. The presentation must be kept to a manageable length and number of PowerPoint slides before eyes start to glaze over. My experience in all types of legal and compliance training has led me to believe that 3 hours is about the maximum length of in-person training which can hold the attention of business and operations employees for ethics and compliance training. For on-line training I would suggest a maximum length of one hour.

THE OPENING

As noted in Part I, a company’s ethics and compliance training may well comprise several different audiences and different cultures around the globe. Top notch training should be able to reach all of the learners at such training sessions. One way to do so is to grab the audience’s attention early by demonstrating the commitment of top management to ethics and compliance and make clear to each audience member how compliance laws such as the FCPA pertain directly to them. In his blog, the FCPA Professor has put forward a suggestion in his posting, “FCPA — The First Few Minutes� by proposing that an FCPA training session begin with an opening such as:

“Today, I will be talking about a U.S. law that applies to all of you – regardless of whether you are in the sales and marketing department, the executive office suite, the finance and audit department, or the logistics department. This law can cover a wide range of payments the company makes, or could make, either directly or indirectly, in doing business or seeking business in foreign markets. Your understanding of this law and how it may relate to your specific job function will best ensure that the company remains compliant with this law and is able to achieve its business objectives.�

Another technique to get the attention of the audience simply might be remind the them that hardly anyone looks good in a prison-orange jumpsuit and that you are here to present training to keep them out of such clothing.

THE END OF THE DAY

At the end of the day, an effective training program will incorporate all learning tools available to reach the widest target audience possible. An individual’s understanding of the rules is always important but it should be grounded in a company’s ethical corporate culture. Coupled together, these Approaches listed in Part I, together with types of training discussed in Part II, should embolden employees to make the right decision even if they cannot remember a specific rule governing a situation. More importantly, such effective training provides knowledge about what an employee can and cannot do when confronted those ‘grey areas’ that exist in the real world of international business.

This is the second of a two-part series on ethics and compliance training.

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This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication.

© Thomas R. Fox, 2010

A Hawaii state Senate committee was unable to reach an agreement Thursday on whether a former Hawaii U.S. Attorney should be seated on a state court, The Honolulu Advertiser reported today.

Ed Kubo Jr. (Hawaii.gov)

The state Senate’s Judiciary and Government Operations Committee split, 3-3, on the nomination of former U.S. Attorney Edward Kubo for a seat on Hawaii’s First Circuit Court, according to the newspaper. Kubo, who was tapped for the judgeship earlier this month, served as U.S. Attorney from 2001 until the end of September 2009, when Florence Nakakuni, President Obama’s choice for U.S. Attorney, was sworn in.

Judiciary Committee Chairman Brian Taniguchi, a Democrat, told the newspaper he voted against Kubo because the ex-U.S. Attorney didn’t sufficiently respond to questions about controversial cases he handled.

Assistant U.S. Attorney Mark Inciong wrote a letter to the committee criticizing Kubo for a March 2009 friend of the court brief which, the Assistant U.S. Attorney said, improperly eased a restraining order against an Immigration and Customs Enforcement agent. Ex-ICE agent Jonathan Winnop allegedly seriously hurt and threatened to kill his former girlfriend, ICE Special Agent Evelyn Delos Reyes Ramo.

Kubo told the state senators that he didn’t help file the brief and learned about it after the fact, according to The Advertiser.

The former U.S. Attorney also didn’t tell the judicial selection panel, which reviewed nominees for the judgeship, about apology letters he was ordered to write jurors after a judge dismissed a case because Kubo didn’t make a 1997 court hearing, the newspaper said. But he did disclose the incident to the Hawaii State Bar Association, according to The Advertiser.

Kubo said he didn’t show up for the court hearing because he went to lunch after a major explosion and power outage, according to newspaper.

“I didn’t think this was of that nature of professional negligence,” Kubo told the senators, according to The Advertiser.

Kubo’s nomination could come to the full state Senate for a vote, as early as today, even without affirmative action by the committee. But, although Kubo received strong support from the Hawaii legal community, the state Senate typically follows the recommendations of panel leaders on confirmation votes, the newspaper said.

The committee chairman told the newspaper that his decision to vote against Kubo was tough. “I think, for me, I kind of wanted to see how the nominee would respond to these kinds of concerns, because I think that’s part of what it takes to be a judge,” Taniguchi told The Advertiser.