Possible New DC Circuit Appointee?
Rumors among the federal judiciary are wide and varied (if I hear one more rumor surrounding Justices Stevens, Kennedy, or Ginsburg, I'm going to throw up), but that doesn't mean that such rumors aren't interesting. And Hugh Hewitt's got a helluva a rumor. Debra Livingstone, professor of Law at Columbia Law school is said to be pegged to take one of the vacant seats on the DC court.
For those unfamiliar with the DC Circuit Court, it is second only to the US Supreme Court in terms of importance. Many cases that reach the DC Court also reach the high court. And many jurists on the DC Court arelooked at to ascend to the high court. So, it's importance is assured amongst the legal minds.
Now Hugh admits that he knows nothing about her. Neither do I. The links below are what he was bale to dig up regarding her, including a fairly extensive bio:
Here is her bio from Columbia Law.
This is a Webcast from Ole Miss that was a Fourth Amendment symposium.
This is a response to 11 September from Columbia Law School, and Ms. Livingstone had the following to say: (Emphasis mine)
Legislation now being considered by Congress will change existing law with regard to electronic surveillance in the United States. The proposed changes represent an attempt to provide a better domestic response to the threat posed by terrorism. The changes cover a variety of subjects. Many of them, however, are directed at one goal: to make it easier for the intelligence community (responsible for the country's national security position) and criminal justice community (responsible for the bringing of criminal cases) to work more seamlessly with each other. The proposed legislation contemplates that in this area these communities can and should work as partners, sharing information and using shared information to prevent future occurrences of terrorism.
This closer cooperation would be a big change primarily because two distinct statutes on surveillance have governed these two communities. Criminal justice matters are governed by a statute called Title III, which imposes warrant and multiple probable cause requirements on criminal investigators. A different statute - the Foreign Intelligence Surveillance Act (FISA) - governs the actions of groups involved in protecting national security. One significant way FISA differs from Title III is that it allows for some warrantless electronic surveillance involving official foreign powers when there is no significant likelihood that such surveillance will intercept communications of U.S. persons. In addition, FISA warrants are issued on somewhat less stringent standards than traditional criminal warrants. A Title III warrant can authorize interception for no more than 30 days (absent an extension), while a FISA warrant can last up to 90 days - and under proposed legislation, can issue for a period of up to one year.
The legislation before Congress sets up a means for national security personnel to obtain FISA warrants and to engage in foreign intelligence surveillance even when criminal prosecution is a significant goal of the interception. The information from such surveillance can be used in criminal prosecutions, so long as foreign intelligence gathering was one of the purposes - as opposed to the single or overriding purpose - for the interception. The proposed legislation also makes it easier for the intelligence and law enforcement communities to share information obtained through electronic surveillance.
Now called to work together, the criminal justice and intelligence communities will face new challenges. For example, federal grand juries, prosecutors, and law enforcement agents, who have not had to focus on preventing harm in the immediate future as a principal aspect of their jobs, will now have to think in those terms. How do we ensure that the information uncovered in a criminal investigation is rapidly disseminated, as necessary, to prevent threatened occurrences? In this context, I think we are going to see a move toward more rapid investigation, more search and seizure, and also investigation that may not be principally about bringing offenders to justice, as opposed to avoiding immediate harms.
The Boston Globe is in the mix with this piece just shortly after the New York Times blew the cover of the NSA terrorist surveillance program:
''Long before 9/11, the NSA gathered from the ether mountains of [overseas] phone calls and e-mail messages on a daily basis," said Columbia Law School professor Deborah Livingston. ''If you have such an extensive foreign operation, you'll gather a large amount of phone traffic and e-mails involving Americans. That's something we've lived with for a long time."
Now Hugh signed off his post (all the links above come from him) with the fact he had to do show prep. So, here is where I picked up from. A couple of thoughts before I start laying out more links. My first impression of Ms. Livingstone is that this is a thoughtful, reasoned legal mind who understand national security and law enforcement legal issues. And as we can see in her thoughts regarding a post-11 September America, she knew that the steps being taken by Congress--especially in relation to the Patriot Act and FISA--were big ones. Mammoth steps that hasd one simple goal: Make sure 11 September doesn't happen again. To me, this speaks volumes in terms of her jurisprudential thinking. She gets it. She knows the law well enough--as is evident by her quote to the Globe--that she isn't like the Erwin Chemerinsky's of the nation that go nuts and scream "Fourth Amendment protections!" every time these issues come up.
On 31 October, 2002, Ms. Livingstone was a speaker at a NACOLE (National Association for Civilian Oversight of Law Enforcement) . There isn't any sort of record of what she said, but the topic of her speech was "Dollars and Sense: How To Get Value of Citizen Review."
FactCheck.org cited her in a debunking they did regarding "sneak and peek" searches:
Debra Livingston, a professor of law at Columbia University Law School, is a former Editor of Harvard Law Review and a former U.S. Attorney for the Southern District of New York. She told FactCheck.org that delayed notice is an old practice:
Livingston: In essence what the delayed notification provision did was to standardize a practice that numerous courts had already authorized, which was to delay notification of a search in cases where the government could give a good reason. The searches are still authorized by a judge based on a probable cause. This is not a radical departure from prior law.
Again, sound, logical, and reasoned thinking. There's no unhinged nature in this woman. She sounds just fine. Here's another Webcast from her school dealing with law enforcement issues; it was originally compiled in December of 2000, and was last modified in January of 2004.
Here is a forty-three page pdf file regarding her ideas about law enforcement accountability and the Justice Department.
And here is another symposium she participated in at the University of Chicago where she say on a panel discussing overproceduralism.
Ms. Livingstone seems to have a book coming out here in October. It's entitled Foundations of Criminal Procedure 2003.
And on 21 April, 2005, she moderated a debate between John Yoo and Prof. Jeremy Waldron at the American Constitution Society. This was live-blogged by the guys at Ex Post. (For the Record, I have read Mr. Yoo's phenomenal book, "The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11"
There is also this, a multi-page address give at St. John's on "Police patrol, judical integrity, and the limits of judicial control."
(I'd like to note that the last two links provided came from Oz, a commenter on Confirm Them's post regarding this rumor.)
Personally, I have no problem with this woman, and its based completely on what I've read of her today. As Hugh knows nothing about her, the same goes for me. And now the same goes for our readers. You all know as much as we know. And based on what I have found regarding Ms. Livingstone, she would make an excellent addition to the DC court.
Oh, and only three sites have even brought this up. Hugh's, Confirm Them, and right here at The Asylum.
Publius II
UPDATE: 3:14 p.m. AZ Time
Fourteen minutes into Hugh's show, and he has confirmation that Professor Debra Livingstone will be named. This is no longer a rumor.
Rumors among the federal judiciary are wide and varied (if I hear one more rumor surrounding Justices Stevens, Kennedy, or Ginsburg, I'm going to throw up), but that doesn't mean that such rumors aren't interesting. And Hugh Hewitt's got a helluva a rumor. Debra Livingstone, professor of Law at Columbia Law school is said to be pegged to take one of the vacant seats on the DC court.
For those unfamiliar with the DC Circuit Court, it is second only to the US Supreme Court in terms of importance. Many cases that reach the DC Court also reach the high court. And many jurists on the DC Court arelooked at to ascend to the high court. So, it's importance is assured amongst the legal minds.
Now Hugh admits that he knows nothing about her. Neither do I. The links below are what he was bale to dig up regarding her, including a fairly extensive bio:
Here is her bio from Columbia Law.
This is a Webcast from Ole Miss that was a Fourth Amendment symposium.
This is a response to 11 September from Columbia Law School, and Ms. Livingstone had the following to say: (Emphasis mine)
Legislation now being considered by Congress will change existing law with regard to electronic surveillance in the United States. The proposed changes represent an attempt to provide a better domestic response to the threat posed by terrorism. The changes cover a variety of subjects. Many of them, however, are directed at one goal: to make it easier for the intelligence community (responsible for the country's national security position) and criminal justice community (responsible for the bringing of criminal cases) to work more seamlessly with each other. The proposed legislation contemplates that in this area these communities can and should work as partners, sharing information and using shared information to prevent future occurrences of terrorism.
This closer cooperation would be a big change primarily because two distinct statutes on surveillance have governed these two communities. Criminal justice matters are governed by a statute called Title III, which imposes warrant and multiple probable cause requirements on criminal investigators. A different statute - the Foreign Intelligence Surveillance Act (FISA) - governs the actions of groups involved in protecting national security. One significant way FISA differs from Title III is that it allows for some warrantless electronic surveillance involving official foreign powers when there is no significant likelihood that such surveillance will intercept communications of U.S. persons. In addition, FISA warrants are issued on somewhat less stringent standards than traditional criminal warrants. A Title III warrant can authorize interception for no more than 30 days (absent an extension), while a FISA warrant can last up to 90 days - and under proposed legislation, can issue for a period of up to one year.
The legislation before Congress sets up a means for national security personnel to obtain FISA warrants and to engage in foreign intelligence surveillance even when criminal prosecution is a significant goal of the interception. The information from such surveillance can be used in criminal prosecutions, so long as foreign intelligence gathering was one of the purposes - as opposed to the single or overriding purpose - for the interception. The proposed legislation also makes it easier for the intelligence and law enforcement communities to share information obtained through electronic surveillance.
Now called to work together, the criminal justice and intelligence communities will face new challenges. For example, federal grand juries, prosecutors, and law enforcement agents, who have not had to focus on preventing harm in the immediate future as a principal aspect of their jobs, will now have to think in those terms. How do we ensure that the information uncovered in a criminal investigation is rapidly disseminated, as necessary, to prevent threatened occurrences? In this context, I think we are going to see a move toward more rapid investigation, more search and seizure, and also investigation that may not be principally about bringing offenders to justice, as opposed to avoiding immediate harms.
The Boston Globe is in the mix with this piece just shortly after the New York Times blew the cover of the NSA terrorist surveillance program:
''Long before 9/11, the NSA gathered from the ether mountains of [overseas] phone calls and e-mail messages on a daily basis," said Columbia Law School professor Deborah Livingston. ''If you have such an extensive foreign operation, you'll gather a large amount of phone traffic and e-mails involving Americans. That's something we've lived with for a long time."
Now Hugh signed off his post (all the links above come from him) with the fact he had to do show prep. So, here is where I picked up from. A couple of thoughts before I start laying out more links. My first impression of Ms. Livingstone is that this is a thoughtful, reasoned legal mind who understand national security and law enforcement legal issues. And as we can see in her thoughts regarding a post-11 September America, she knew that the steps being taken by Congress--especially in relation to the Patriot Act and FISA--were big ones. Mammoth steps that hasd one simple goal: Make sure 11 September doesn't happen again. To me, this speaks volumes in terms of her jurisprudential thinking. She gets it. She knows the law well enough--as is evident by her quote to the Globe--that she isn't like the Erwin Chemerinsky's of the nation that go nuts and scream "Fourth Amendment protections!" every time these issues come up.
On 31 October, 2002, Ms. Livingstone was a speaker at a NACOLE (National Association for Civilian Oversight of Law Enforcement) . There isn't any sort of record of what she said, but the topic of her speech was "Dollars and Sense: How To Get Value of Citizen Review."
FactCheck.org cited her in a debunking they did regarding "sneak and peek" searches:
Debra Livingston, a professor of law at Columbia University Law School, is a former Editor of Harvard Law Review and a former U.S. Attorney for the Southern District of New York. She told FactCheck.org that delayed notice is an old practice:
Livingston: In essence what the delayed notification provision did was to standardize a practice that numerous courts had already authorized, which was to delay notification of a search in cases where the government could give a good reason. The searches are still authorized by a judge based on a probable cause. This is not a radical departure from prior law.
Again, sound, logical, and reasoned thinking. There's no unhinged nature in this woman. She sounds just fine. Here's another Webcast from her school dealing with law enforcement issues; it was originally compiled in December of 2000, and was last modified in January of 2004.
Here is a forty-three page pdf file regarding her ideas about law enforcement accountability and the Justice Department.
And here is another symposium she participated in at the University of Chicago where she say on a panel discussing overproceduralism.
Ms. Livingstone seems to have a book coming out here in October. It's entitled Foundations of Criminal Procedure 2003.
And on 21 April, 2005, she moderated a debate between John Yoo and Prof. Jeremy Waldron at the American Constitution Society. This was live-blogged by the guys at Ex Post. (For the Record, I have read Mr. Yoo's phenomenal book, "The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11"
There is also this, a multi-page address give at St. John's on "Police patrol, judical integrity, and the limits of judicial control."
(I'd like to note that the last two links provided came from Oz, a commenter on Confirm Them's post regarding this rumor.)
Personally, I have no problem with this woman, and its based completely on what I've read of her today. As Hugh knows nothing about her, the same goes for me. And now the same goes for our readers. You all know as much as we know. And based on what I have found regarding Ms. Livingstone, she would make an excellent addition to the DC court.
Oh, and only three sites have even brought this up. Hugh's, Confirm Them, and right here at The Asylum.
Publius II
UPDATE: 3:14 p.m. AZ Time
Fourteen minutes into Hugh's show, and he has confirmation that Professor Debra Livingstone will be named. This is no longer a rumor.
posted by Syd And Vaughn | 2:11 PM
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