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A panel of conservative legal experts criticized plans to enhance penalties behind the Computer Fraud and Abuse Act at a Federalist Society symposium on the administration’s proposed reforms to cybersecurity law Tuesday.
While panelists seemed to approve of the administration’s efforts to shore up the economic and national security imperiled by cybercrime, they expressed serious concerns about potential infringements on civil liberties caused by the broad language of prosecutorial statutes.
“It’s actually a considerable extension of liability on a statute that nobody understands,” said Orin S. Kerr, a professor of computer crime law at George Washington University. “I think it’s a tremendously disturbing development in the law.”
The CFAA was proposed as a way for prosecutors to hold hackers responsible for information theft in the 1980s by making unauthorized access to computer networks a misdemeanor.
But the statute’s ban on “unauthorized” access to or use of a computer network worries Kerr, he said, because it’s not clear what counts as unauthorized use in the 21st century – particularly when it comes to employees using computer systems owned by their employers.
“Let’s say … you go to ESPN.com and check a sports score,” Kerr said. “Are you using the employer’s network in an unauthorized way?”
In some cases, so long as there’s an understanding that an employee should not use a network for certain activities, they could be held liable under the statute’s vague wording, Kerr said.
“Courts are currently struggling as to whether that is the same as hacking into a network,” he added. “We have a law that clearly covers hackers … but then might cover disloyal employees, might cover someone who breaks a contract on the Internet, and from there things get pretty uncertain.”
And the administration’s proposal to raise CFAA violation penalties from a misdemeanor to a felony will raise the likelihood of prosecutions, Kerr said.
“Prosecutors are not going to charge misdemeanors,” he said. “But if you can make it a felony, on the other hand, prosecutors are going to be interested.”
Michael Vatis, a lawyer at Steptoe & Johnson LLP and founding director of the FBI’s National Infrastructure Protection Center, said the statute’s broad wording and private right of action might help private companies hold individuals accountable for security breaches and other cybercrime.
“They need some help,” Vatis said. “And in some ways this is at least going to provide a venue for those companies to get that help.”
Companies don’t have much recourse under current law, Vatis said, which gives the government the sole authority to strike back at cybercriminals.
“Companies have a difficult time putting their hands on the real perpetrators,” added John Smith, counsel for the defense technology group Raytheon Co.
Marc Rotenberg, president of the Electronic Privacy Information Center, agreed with Kerr’s concerns, but said he was grateful for the administration’s openness about the proposed changes.
“This has been largely a public process,” Rotenberg said. “I mean, we can look at the government’s proposal. We don’t have to submit a FOIA for it.”
And even amid their objections, the experts praised the administration for recognizing the increasing importance of cybersecurity.
“It is really the first effort to come out of any of the last three administrations that tries to begin to take on this problem of protecting our critical infrastructures,” Vatis said.
As former hedge fund titan Raj Rajaratnam waits to hear his fate for insider trading — he could get two decades in prison when he is sentenced on July 29 — there is plenty of debate over whether his downfall will have a deterrent effect.
“There are a lot of nervous people out in the Hamptons,”one criminal lawyer told journalist George Packer, who wrote an exhaustive reprise of the case for The New Yorker.
Stanley Sporkin, a retired judge and a tough enforcement chief for the Securities and Exchange Commission in the 1970’s, put it a bit more crudely: “People on Wall Street are going to be coming to work with brown pants on. It’s going to change the way they work for a long time.”
Really?
Perhaps the behavior of hedge fund maestros will be affected, at least for a while. But what about the broader culture of Wall Street? “It is a remarkable failure of our system that we’ve not addressed the fundamental problems that brought us into the financial crisis,” Neil Barofsky, the former inspector general of the Troubled Asset Relief Program, told Packer. “And it is cynical or naive to imagine it won’t happen again.”
Meanwhile, there has been ample second-guessing over how the Department of Justice and other regulatory agencies have handled Wall Street cases, as Packer’s article makes clear.
“It is just very hard for me to understand why there haven’t been more indictments,” former Sen. Ted Kaufman (D-Del.) told Packer. “I am incredibly disappointed.”
In 2009, when he was on the Senate Judiciary Committee, Kaufman held a hearing on financial-fraud prosecutions just after a Brooklyn jury acquitted two Bear Stearns hedge fund managers of fraud and conspiracy — in the only criminal case linked to the big role players in the financial crisis, Packer notes.
As for the venues of the various financial fraud cases, Packer’s article notes that, under President George W. Bush’s Justice Department, major new financial fraud investigations were distributed to U.S. Attorneys’ offices around the country — Los Angeles, Seattle, Washington, D.C., New Jersey and Brooklyn, more formally known as the Eastern District of New York.
That sharing of cases was a mistake, Barofsky said. The far more logical venue would have been the Southern District of New York — Manhattan. That is, after all, where federal prosecutors are supposed to have the most expertise on Wall Street-related matters. (Barofsky himself worked in the Southern District, so he may not be entirely objective.)
The U.S. Attorney for the Southern District, Preet Bharara, was deeply invested in the Rajaratnam trial. Bharara has made financial crime a priority, and the case of Rajaratnam, a co-founder of the Galleon Group LLC hedge fund, was billed as the biggest insider-trading case in years.
Rajaratnam was nailed in large part because a lot of his erstwhile friends and trading partners were themselves caught in wrongdoing and induced to help prosecutors, in return for leniency when it was their own turn to stand before the sentencing judge. (See Main Justice’s report.)
A key witness, Anil Kumar, was put on regular retainer by Rajaratnam, who wanted inside information. Kumar, then a director of the McKinsey & Co. business consulting firm, was in a good position to provide it.
“And, once he was paying you, you started giving it to him?” chief trial prosecutor Jonathan Streeter asked the witness.
“Yes, that is correct, sir,” Kumar replied. “To my eternal regret.” (Kumar pleaded guilty to insider trading.)
Another trial figure who should feel some remorse, at least in the government’s view, was Rajat Gupta, another prominent figure at McKinsey. He was accused of insider trading in a civil action by the Securities and Exchange Commission.
The failure to lodge criminal charges against Gupta “is a much discussed mystery, but the answer might be simple,” Packer writes. “The prosecutors, consumed with other cases and with preparation for the Rajaratnam trial, might not have realized what they had on Gupta until shortly before the proceedings began.” Gupta has consistently denied any wrongdoing.
As for Barofsky’s remarks, one doesn’t have to be cynical to imagine future Wall Street scandals, Bharara’s determination notwithstanding. A long memory will suffice. Ivan Boesky, Michael Milken, Dennis Levine — names from Wall Street scandals of decades ago. They got caught.
Saying that House Republicans are short-changing the Securities and Exchange Commission, Senate Democrats called on House appropriators to boost its funding to help combat financial crime and avert another financial crisis.
Democratic Sens. Richard Durbin of Illinois, Charles Schumer of New York, Robert Menendez of New Jersey and Jack Reed of Rhode Island wrote in a letter to House Appropriations Committee Chairman Harold Rogers (R-Ky.) that legislation should “fully fund the Securities and Exchange Commission (SEC) at a level that will allow it to carry out its core mission and fully implement its expanded responsibilities under the Dodd-Frank Wall Street Reform and Consumer Protection Act,” which gave the commission more oversight of the financial sector last year.
The House Appropriations Committee last week approved by a 27-21 vote the spending measure that would set aside $1.2 billion for the SEC in fiscal 2012. The amount is the same sum allocated to the commission in fiscal 2011 and $222 million less than President Barack Obama’s request.
“With our markets and economy still struggling to recover from the worst financial crisis in 80 years, this is hardly the time to handcuff the primary cop on the beat in our financial markets,” the Democratic senators wrote in their letter. “Safe, orderly markets are a key ingredient in our economic recovery.”
Rogers last week defended the spending bill, saying it “makes smart, sensible reductions in nearly all areas.”
“Where necessary, we have cut funding for ineffective and unproven programs, and have made strides to prevent taxpayer dollars from slipping through the cracks, lost to redundant or wasteful programs,” Rogers said in a statement.
Statement of Senate Judiciary Chairman Patrick Leahy (D-Vt.) on three Justice Department nominees
June 28, 2011
After extensive and unnecessary delays, the Senate will finally vote today on three important nominations to fill high-level posts at the Department of Justice. Two of these positions have national security responsibilities. I cannot recall a time when the Justice Department and the country were deprived of such critical appointees. It is especially hard to understand how we have not been able to vote on nominees for positions with significant national security responsibilities like the Deputy Attorney General and the Assistant Attorney General for the National Security Division. The nominations of Jim Cole to be Deputy Attorney General, Lisa Monaco to be Assistant Attorney General for National Security, and Virginia Seitz to be Assistant Attorney General for the Office of Legal Counsel have been blocked for months by Republican obstruction over matters not related to the qualifications of the nominees and in abject disregard of the needs of the Justice Department and the country. I am glad that today we will finally have votes and I trust confirm these superbly qualified nominees.
The unprecedented filibuster of the nomination of the Deputy Attorney General has been especially egregious. The Deputy Attorney General is the number two position at the Justice Department, a position with key national security responsibilities. Despite significant bipartisan support and unquestionable qualifications, Jim Cole’s nomination has been blocked for nearly a year. He was reported favorably by the Senate Judiciary Committee in July last year, but Republicans prevented a vote. He was renominated and reported favorably a second time in the middle of March, but Republicans stalled and then filibustered consideration of the nomination last month. That was the first time in the Nation’s history that a President’s nominee to serve as Deputy Attorney General was filibustered—and it was wrong.
His was not a nomination that should have been controversial. It is a nomination supported by former Republican Senator Jack Danforth, who worked with Jim Cole for more than 15 years. When he introduced Mr. Cole at his confirmation hearing, Senator Danforth described Mr. Cole as someone without an ideological or political agenda. He also wrote to the Committee: “Jim is a ‘lawyer’s lawyer.’ He is exceedingly knowledgeable, especially on matters relating to legal and business ethics, public integrity and compliance with government regulations. He is highly regarded [] as a skillful litigator. As his resume demonstrates, he has long and deep experience in the Department of Justice.”
I agree. Jim Cole served as a career prosecutor at the Justice Department for a dozen years and has a well-deserved reputation for fairness, integrity and toughness. He has demonstrated that he understands the issues of crime and national security that are at the center of the Deputy Attorney General’s job. Nothing suggests that he is anything other than a steadfast defender of America’s safety.
We have received numerous letters of support for Mr. Cole’s nomination, including from many former Republican public officials. I put several of those letters in the Record last month. The Senate should have heeded those recommendations as well as the advice of former Deputy Attorneys General of the United States who served in both Republican and Democratic administrations. They wrote to us last December to urge the Senate to consider Mr. Cole’s nomination without delay—last December—pointing out that the Deputy Attorney General is “the chief operating officer of the Department of Justice, supervising its day-to-day operations” and that “the Deputy is also a key member of the president’s national security team, a function that has grown in importance and complexity in the years since the terror attacks of September 11.” They were right. The Senate was wrong to filibuster this nomination. The Senate has the opportunity today finally to confirm this good man and public servant. I trust this institution will take that opportunity.
Incredibly, the nomination of the Deputy Attorney General was subjected to a partisan filibuster for over three more months while the country faces concerns about terrorism in the aftermath of the President’s successful operation against al Qaeda and Osama bin Laden. It is hard for me to understand how, at a time when experts are concerned that al Qaeda will seek reprisals, some in the Senate have delayed action to ensure that President Obama has his full national security team in place.
In the aftermath of 9/11, Senate Democrats expedited law enforcement and national security nominations, confirming an additional 58 officials to posts at the Justice Department before the end of 2001. The Senate should have done the same with the nomination of Jim Cole. Senate Republicans should have treated Mr. Cole’s nomination with the same urgency and seriousness with which Senate Democrats treated all four of the Deputy Attorneys General who served under President Bush. All four were confirmed by the Senate by voice vote an average of 21 days after they were reported by the Judiciary Committee. No Deputy Attorney General nomination had ever been subjected to a filibuster before. That is what Senator Republicans did this year. It was wrong.
In addition, Senate Republicans have blocked votes on the nomination of Lisa Monaco to head the National Security Division at the Justice Department, another key national security position. Her nomination has been blocked even though it was considered at hearings and reported unanimously, not only by the Judiciary Committee, but also by the Senate Select Committee on Intelligence. Her confirmation to lead the National Security Division of the Justice Department has been blocked for seven weeks even though Senator Grassley, Senator Chambliss and all the Republican members of the Senate Judiciary Committee and the Senate Select Committee on Intelligence voted for her. This has been incredible.
Lisa Monaco’s nomination had long been supported by former Justice Department officials, including former Attorney General Mukasey, who served during the President George W. Bush administration. He wrote: “Based on my meetings and conversations with Ms. Monaco, I believe that she has both sound judgment and a keen understanding of national security law. Which is to say, she understands both the stakes and the rules.” The Monaco nomination to head the National Security Division at the Justice Department should have been confirmed before the Memorial Day recess. I have little doubt that she will be confirmed overwhelmingly. But the almost two-month delay is not excused by voting for her confirmation now. The National Security Division has been without her leadership. The national security team has been without another key member.
Virginia Seitz is another superbly qualified nominee with bipartisan support who should have been confirmed before the Memorial Day recess, but whose nomination has been blocked from consideration by Senate Republicans. A Rhodes Scholar and former Supreme Court clerk, Ms. Seitz has received support for her nomination from some of the most pre-eminent lawyers in the country, including many who have served in Republican administrations. This nomination was also reported unanimously by the Judiciary Committee. All Republican members and all Democratic members voted for her. Then Senate Republicans turned around and blocked her confirmation.
I have seen the crocodile tears of some over the last few days as they lament the lack of an Office of Legal Counsel opinion on how the War Powers Act applied to the NATO-led operation in Libya. It is Senate Republicans who are responsible for having delayed and blocked the Office of Legal Counsel from having its Assistant Attorney General in place. Today, after seven weeks of obstruction, the Senate will finally consider the nomination of Virginia Seitz.
The treatment of these nominees is now carrying over to other nominations and important legislative initiatives, as well. Just last week we witnessed for the first time since the infamous partisan vote on the nomination of Ronnie White of Missouri, the spectacle of Republican Senators who had voted in favor of a nomination in Committee switching to vote against the nomination when considered by the Senate. We have seen Republican Senators, who in consultation with the White House and Judiciary Committee approved a judicial nominee, flipping to oppose the nominee.
The Senate Judiciary Committee has considered two national security related bills during the last two weeks. Both times Republican Senators professed to support the legislation as they voted against it. The most critical and time sensitive is the bill before the Senate to authorize a limited extension of the term of service of FBI Director Robert Mueller as the President has requested. The President made his request more than six weeks ago in light of “the ongoing threats facing the United States, as well as the leadership transitions at other agencies.” He asked us “to join together in extending [Director Mueller’s] leadership for the sake of our nation’s safety and security.”
Rather than join together as Senate Democrats did with the President following 9/11, seven of the eight Republican members of the Senate Judiciary Committee opposed the bill. We need to consider and pass that bill without delay. Both the House and the Senate need to do so before August 3. With the tenth anniversary of the September 11, 2001, attacks approaching, and in the face of continuing threats in the wake of the President’s recent, successful operation against Osama bin Laden, we need the continuity and stability of having FBI Director Mueller in place. Without enactment of this legislation he will not be. He will be forced from that critical post on August 3.
I urge all Senators, Republicans, Democrats and Independents to join together for the good of the country to take quick action to pass the extension, S. 1103. We cannot afford a repeat of the unnecessary delays that have held up these nominations finally considered today.
I thank today’s nominees for their dedication and look forward to working with them as they faithfully execute their important responsibilities at the Justice Department. I thank their families for their patience and the support they give these outstanding public servants.
Patrick J. Fitzgerald, the U.S. Attorney for the Northern District of Illinois, is hardly known for spontaneous expressions of joy, at least in public. But he was surely elated by Monday’s conviction of former Gov. Rod Blagojevich, and probably more than a little relieved.
“A political corruption crime spree” is how Fitzgerald described the doings of Blagojevich after his arrest on Dec. 9, 2008. Fitzgerald went on to say how Lincoln must be turning over in his grave. To Fitzgerald, the case against Blagojevich must have seemed open and shut.
No it isn’t, the jurors at Blagojevich’s first trial said in effect. Last August, they found Blagojevich guilty of only one of 24 counts, that of lying to FBI investigators, and were unable to agree on the others. Despite the many damaging tape-recorded telephone conversations, in which Blagojevich came across as grasping and calculating at the very least, the jurors said afterward that the prosecutors had laid out a muddled case.
Until then, Fitzgerald had been best known for his successful pursuit of I. Lewis “Scooter” Libby Jr., chief of staff to former Vice President Dick Cheney, in the controversy over the leaking of a CIA officer’s name. Fitzgerald surely did not want to become even better known as the prosecutor who let a conniving governor get away, twice.
So it was back to the conference room for the Chicago prosecutors. How many strategy sessions Fitzgerald sat in on may not be known, but it’s a safe bet that his subordinates got his message: Learn from your mistakes; swallow your pride; simplify your case.
So prosecutors did, to good effect. The jurors in his second trial found Blagojevich guilty of 17 of 20 counts, acquitting him of one and unable to agree on just two. The conviction could bring a sentence of up to 20 years, although there has been speculation it will be closer to 10 to 15.
Fitzgerald, according to the Associated Press, tried to deflate any notion that what Blagojevich did amounted to politics as usual. What the former governor did, the prosecutor said, “is not a gray area…It’s a crime.”
One juror said that Blagojevich’s own testimony, in which he had to admit that he was “a convicted liar,” did not hurt him. Indeed, the jurors seemed to like Blagojevich, up to a point. “Because he was personable it made it hard to separate that from what we had to do as jurors,” said a woman on the panel, according to the WBEZ City Room blog.
The conviction may make Fitzgerald a better candidate to become FBI Director when Robert Mueller retires, in the opinion of some people who follow such political speculation. In any event, he is the bigger winner for the moment.
And who was the big loser? The obvious answer, perhaps too obvious, is Blagojevich, his wife and their daughters. “Patti and I obviously are very disappointed in the outcome,” he said. “I, frankly, am stunned. There’s not much left to say other than we want to get home to our little girls and talk to them and explain things to them and try to sort things out.”
The other big loser may have been the image of government in Illinois, which has taken a fair number of hits in recent years, with three former governors having gone to prison in just over three decades. As one juror put it, “I told my husband if he’s going to go into politics, he’s going to have to find a new wife.”
The Senate on Tuesday approved the nomination of Virginia Seitz as the head of the Office of Legal Counsel, making her the first Senate-endorsed Assistant Attorney General to hold the post since 2004.
The Senate also confirmed Lisa Monaco as the Assistant Attorney General for the National Security division.
Seitz, whom Obama nominated January, will be the first Assistant Attorney General endorsed by the Senate to lead the OLC since Jack Goldsmith stepped down after disagreeing with George W. Bush administration officials about the administration’s aggressive post-Sept. 11 national security policies. Principal Deputy Assistant Attorney General Caroline Krass currently heads the office.
She is Obama’s second nominee for the post. His first nominee, Dawn Johnsen, withdrew in April 2010 after more than a year of Republican criticism about her aversion to the Bush administration’s national security policies and her pro abortion-rights views.
The OLC gives legal advice to the president and other administration officials on various issues, including national security matters. The office was at the center of the bitter dispute over the use of harsh interrogation methods against terrorism suspects, methods critics called torture.
Seitz, like Johnsen, is a member of the American Constitution Society, a left-leaning legal group. She also clerked for Justice William Brennan, who was a member of the Supreme Court’s liberal wing. Seitz is married to acting Deputy Solicitor General Roy McLeese.
She has been a partner at the law firm of Sidley Austin LLP since 1998.
Senate Judiciary Chairman Patrick Leahy (D-Vt.) criticized Republicans for having stalled on the Seitz confirmation. “I have seen the crocodile tears of some over the last few days as they lament the lack of an Office of Legal Counsel opinion on how the War Powers Act applied to the NATO-led operation in Libya,” he said in a statement. It is Senate Republicans who are responsible for having delayed and blocked the Office of Legal Counsel from having its Assistant Attorney General in place. ”
Monaco, whom Obama tapped in March, has been the Principal Associate Deputy Attorney General under Cole since January. She previously held several posts within the DOJ since 1998, including a stint as a top adviser to FBI Director Robert Mueller.
Monaco will succeed David Kris, who resigned as the National Security Division Assistant Attorney General in March to join the private sector. Todd Hinnen currently is heading the division on an acting basis.
She will be the fourth permanent National Security Division Assistant Attorney General if confirmed by the Senate. The National Security Division was created in 2006.
The Senate on Tuesday confirmed James Cole as Deputy Attorney General, after Republicans agreed to end their block on the vote and and allowed the nomination to come to the floor.
In approving Cole, the Senate fills a job last held by a Senate-confirmed appointee in February 2010. The Senate also confirmed Virginia Seitz for Office of Legal Counsel Assistant Attorney General, a post filled by temporary appointees since 2004. The Senate also endorsed the nomination of Lisa Monaco for National Security Division Assistant Attorney General, a job last occupied by a Senate-confirmed appointee in March.
The Senate confirmed Cole by a 55-42 vote, mostly along party lines. Sens. Roy Blunt of Missouri, Scott Brown of Massachusetts, Susan Collins of Maine, Jon Kyl of Arizona and Richard Lugar of Indiana were the only Republicans to vote in favor of his confirmation. Seitz and Monaco were confirmed by voice vote.
“I am pleased the Senate moved to confirm Jim, Lisa and Virginia, following their appointments by President Obama,” Attorney General Eric Holder said in a statement. “I’m confident they will provide invaluable leadership to the department, and will play a critical role in protecting the American people, ensuring the fairness and integrity of our financial markets and restoring the traditional missions of the department.”
The votes came after Senate leaders last week reached a deal that let the nominees come to the Senate floor and be voted upon.
Senate leaders reached the agreement after hammering out numerous issues with the DOJ, including concerns Sen. Charles Grassley, the top Republican on the Senate Judiciary Committee, had about his ability to effectively probe Operation Fast and Furious, a controversial Bureau of Alcohol, Tobacco, Firearms and Explosives gun smuggling program.
Grassley had expressed irritation that the DOJ didn’t send him the records and documents it sent to House Oversight Committee Chairman Darrell Issa (R-Calif.) about the program, which allowed guns to fall into the hands of Mexican drug cartels in an effort to track them. The DOJ had told Grassley that it would not provide the senator with access to documents that were made available to the House Oversight Committee because federal agencies generally only respond to committee chairmen and Grassely isn’t one.
But Attorney General Eric Holder now has said the Department will give the senator the same access to information, witnesses and documents that is provided to Issa and the DOJ Inspector General, which also is probing the program. In return, Republican senators dropped their holds on the nominees.
Democrats pushed hard for a final vote on Cole, whom Obama first nominated for the No. 2 post at the DOJ in May 2010.
In December, Democrats tried to bring Cole up for a vote before the Senate adjourned sine die. But Republican opposition forced the chamber to return his nomination to the White House.
The president in January put Cole in office through a recess appointment. Obama also renominated him in January, and the Senate Judiciary Committee approved him along a party-line vote in March.
In May, the Senate tried to end debate on Cole’s nomination. But the cloture motion didn’t reach the 60-senator threshold needed to proceed to an up-or-down vote on the nominee at the time.
Republicans expressed worries about a 2002 article he wrote backing civilian trials for terrorism suspects and his stint as an independent monitor for insurance giant AIG, which the Federal Reserve bailed out during the 2008 financial industry crisis.
Cole also was the House ethics committee special counsel who probed then-Speaker Newt Gingrich (R-Ga.) in the 1990s for the mishandling of tax-exempt organizations for political purposes. The House gave Gingrich a rare formal reprimand and ordered him to pay a $300,000 penalty.
The last nominated, Senate-confirmed Deputy Attorney General was David Ogden, who stepped down in February 2010. Gary Grindler served as acting Deputy Attorney General after Ogden’s resignation. Grindler is now the Chief of Staff to Attorney General Eric Holder.
Cole, a former DOJ Criminal Division official, was a partner at the law firm of Bryan Cave LLP in D.C. prior to his recess appointment.
Senate Judiciary Chairman Patrick Leahy (D-Vt.) blasted Republicans for having blocked Cole’s nomination. “The unprecedented filibuster of the nomination of the Deputy Attorney General has been especially egregious,” he said, in a statement. “Despite significant bipartisan support and unquestionable qualifications, Jim Cole’s nomination has been blocked for nearly a year. He was reported favorably by the Senate Judiciary Committee in July last year, but Republicans prevented a vote. He was renominated and reported favorably a second time in the middle of March, but Republicans stalled and then filibustered consideration of the nomination last month. That was the first time in the Nation’s history that a President’s nominee to serve as Deputy Attorney General was filibustered—and it was wrong.
Nicholas Henry, 28, was sentenced to 20 years in prison Monday for attempting to kill an FBI agent and discharging a firearm during a violent crime, the Kansas U.S. Attorney’s Office announced.
The shooting occurred on Nov. 1, 2009, after FBI agents found Henry in a stolen pickup truck in a parking lot near Olathe, Kan.
When an FBI Task Force Officer tried to arrest him, Henry produced a .40 caliber handgun and fired two shots at one of the agents. He missed despite being only about 10 feet away.
Other agents then returned fire and hit Henry 14 times. He survived the shooting.
Henry admitted firing the weapon in his plea.
The Supreme Court agreed on Monday to consider a case with far-reaching implications about privacy rights and technology, involving a suspected cocaine dealer whose movements were tracked with a global positioning device.
Winding up its term, the justices issued an order announcing that they had “granted cert” in the case of United States v. Antoine Jones. They instructed parties in the case to be prepared to argue whether the government violated Jones’s Fourth Amendment rights by installing a GPS device on his vehicle without a valid warrant and without his consent.
As Main Justice reported in April, the Justice Department asked the high court to consider the case. There have been conflicts among the federal circuits on the extent to which GPS technology can be used without a warrant, and the DOJ wanted clarification.
“GPS tracking is an important law enforcement tool, and the issue will therefore continue to arise,” the DOJ said in its petition. “This Court should intervene to clarify the governing legal principles that apply to an array of investigative techniques, and to establish when GPS tracking may lawfully be undertaken.”
Last August, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit overturned his conviction and life sentence on grounds that the police unlawfully tracked his car’s movements by using GPS without a warrant. Three months later, the appeals court voted, 5-4, not to have the full court revisit the panel’s decision, prompting the DOJ to ask the Supreme Court to study the issue.
The American Civil Liberties Union has praised the appeals court decision, asserting that the protection of individual liberties requires that the technology of the 21st century “be evaluated on its own terms.”
