Military Arrest in Doubt as U.S. Fights Rookie JudgeKaren Greenberg in Bloomberg Businessweek, February 06, 2013
Katherine Forrest, a federal judge appointed by President Barack Obama who less than a year later blocked a controversial military-detention law, will have that ruling tested as an appeals court considers the government’s claim that her decision would irreparably damage national security.
Forrest, 48, a military-history buff, went from living on food stamps as a teenager to advising Time Warner Inc. (TWX) and United Airlines Inc. (UAL) as a corporate litigator. She then took a seven-figure pay cut on the path to her dream job as a judge, and was appointed to U.S. District Court in Manhattan in 2011.
Within months, Forrest blocked Obama and Defense Secretary Leon Panetta from enforcing part of the National Defense Authorization Act for 2012, rejecting arguments that she should defer to congressional and executive authority in national- security matters. The plaintiffs in the case said the law permits the military to arrest U.S. citizens for exercising their freedom of speech and of the press.
Forrest’s move earned praise from both ends of the political spectrum, from Tea Party to Occupy Wall Street activists. The Obama administration, meanwhile, warned that the first-year jurist was threatening the ability of the U.S. military to fight terrorism on the battlefield.
The ruling was the subject of oral arguments today before a three-judge panel in the U.S. Court of Appeals in New York.
“Here, the stakes get no higher: indefinite military detention -- potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever,” Forrest wrote in a 112-page opinion. “Presented, as this court is, with unavoidable constitutional questions, it declines to step aside.”
The government said the law merely reaffirms the president’s existing military-detention authority. Justice Department lawyers, who said Forrest’s decision “threatens irreparable harm to national security and the public interest,” won an order suspending it during the appeal.
The plaintiffs, including former New York Times (NYT) reporter Christopher Hedges, said the law permits the indefinite detention of American citizens and permanent residents taken into custody in the U.S. on suspicion of providing substantial support to al-Qaeda, the Taliban and unspecified “associated forces.”
Suspect activities could include political advocacy and news reporting protected by the free speech guarantees in the U.S. Constitution’s First Amendment, the opponents said.
No Reasonable Fear
Robert Loeb, the lawyer representing the government, argued today that the plaintiffs in the case lack the legal standing to challenge the law, because they have no reasonable fear it will be applied to them. Loeb said the government can’t hold U.S. citizens under the law.
Bruce Afran, one of two lawyers who urged the judges to affirm Forrest’s ruling, argued that the detention law expanded on existing law to give the government new, ill-defined detention authority. Afran said the law could be used against his clients.
Forrest’s Sept. 12 decision immediately put the judge in the spotlight.
“Forrest should go down in history as having pulled this republic away from the abyss of hell,” wrote Naomi Wolf, author of “Give Me Liberty: A Handbook for American Revolutionaries.” One follower of former Congressman Ron Paul, a Texas Republican, proposed a national “Judge Katherine B. Forrest Day.”
Groups including Gun Owners of America, the Conservative Legal Defense and Education Fund, the Bill of Rights Defense Committee and the Center for Media and Democracy have urged the appeals court to affirm Forrest’s decision. U.S. Senators John McCain, Kelly Ayotte and Lindsey Graham, all Republicans, filed a brief supporting the government’s position.
National security cases present “some of the most difficult issues” a federal judge has to face, particularly a new one, said former U.S. District Judge Richard Holwell, who oversaw the insider-trading trial of Galleon Group LLC co- founder Raj Rajaratnam and sentenced him to 11 years in prison.
“You have to imagine that was a very, very difficult decision for her,” said Holwell, who stepped down last February to start his law firm, Holwell Shuster & Goldberg LLP.
The administration’s policies in fighting terrorism, from the detention of enemy combatants to drone strikes, will be examined tomorrow, when the Senate intelligence committee holds a confirmation hearing on the president’s nomination of John Brennan, his chief counter-terrorism adviser, to head the Central Intelligence Agency.
Forrest, in an interview in her chambers in the federal courthouse in downtown Manhattan, declined to discuss the detention case or any of the others she’s presiding over. She did discuss the path that brought her to the bench.
Katherine Bolan Forrest was born in New York in 1964 and grew up in Connecticut, one of six children. Her father, Richard Forrest, wrote mystery novels including “Death Under the Lilacs” and “The Laughing Man.” Her mother, a nurse, cared for patients with Alzheimer’s disease. The family received food stamps for four years beginning when Forrest was 12. They were homeless for six months.
“I came from nothing,” Forrest said. “I came from a father who made no money. He was a playwright and then a writer, and even though he published a lot of books, I was a complete scholarship student all the way through.”
Forrest attended Choate Rosemary Hall, a private school on 458 acres in Wallingford, Connecticut, on a scholarship, graduating in 1982.
She earned degrees from Wesleyan University in 1986 and New York University School of Law in 1990. She pursued a joint program at NYU that would have led to a law degree and a doctorate in history, with an eye toward an academic career. Her focus shifted when she took a summer job at Cravath, Swaine & Moore LLP after her second year of law school.
“I realized that commercial litigation was far more interesting than I thought it would be,” Forrest said.
Cravath, founded in 1819, is one of the most profitable law firms in the U.S., with a client list that includes JPMorgan Chase & Co. (JPM), Credit Suisse Group AG and Johnson & Johnson (JNJ).
At Cravath, Forrest worked for Evan Chesler, now the firm’s chairman. Chesler said Forrest -- confident, hard-working and organized -- stood out from her peers.
“In a place where everyone works hard, she was at the high end,” Chesler said in a phone interview. “She just devoured the work and was totally committed.”
While working long days and weekends as a new associate, Forrest, at 26, took custody of her 13-year-old sister, Bellamy, when their parents weren’t able to care for her.
“She was the one who kind of said, ‘I’m going to take care of her,’” Bellamy Forrest said in a phone interview. Forrest enrolled Bellamy in a boarding school in Connecticut, paying her tuition in cash. On weekends and holidays they lived together in Forrest’s Manhattan apartment.
Bellamy recalled one of her first weekends living with her sister when the two talked about the future.
“She said, ‘I want to be living on the Upper West Side with two children, and I want to be a judge,’” predicting the life she now has, Bellamy recalled.
When Forrest told colleagues her plans to be a judge, not everyone at Cravath believed she would be willing to walk away from the firm.
Give Up Money
“People just thought, I think, you can’t give up that kind of money, millions of dollars a year,” the judge said.
Cravath partners made an average of $3.1 million in 2011, according to the American Lawyer, a trade magazine. Federal district judges are paid $174,000, according to the Administrative Office of the U.S. Courts. That’s about the level of a first-year Cravath associate. Forrest said she put money aside with an eye toward when she would leave private practice.
As a Cravath partner, Forrest worked for clients including Time Warner (TWC) and Deloitte & Touche LLP. She counseled United Airlines (UAL) in its 2010 merger with Continental Airlines Inc. and helped defeat a lawsuit filed to block the deal.
Forrest left Cravath in 2010 to take the post of deputy assistant attorney general in the Justice Department’s Antitrust Division. In that job, she oversaw civil and criminal antitrust enforcement actions.
Obama nominated Forrest, a registered Democrat, to the bench in May 2011 on the recommendation of U.S. Senator Charles Schumer of New York, filling a position vacated when Jed Rakoff, 69, became a senior judge. She was confirmed by the Senate in October 2011.
Forrest credits her husband, New Zealand native Sean Baldwin, with making it possible for her to succeed in private practice and pursue her judicial ambitions.
Baldwin, a former Cravath lawyer, withdrew from practicing law to write and to raise their two children, Jane, 13, and Dylan, 11. With his wife on the bench, Baldwin, 45, has re- entered the law as an associate at Quinn Emanuel Urquhart & Sullivan LLP (496224L).
Forrest will also continue to collect $382,860 a year for 10 years from the firm in deferred compensation, according to a questionnaire she completed for the U.S. Senate’s Judiciary Committee.
She took almost all of Holwell’s criminal cases and about 80 of his civil cases, including a lawsuit over royalties and creative control of the Broadway musical “Spider-Man: Turn Off the Dark.” From another judge, she picked up the U.S. Securities and Exchange Commission’s lawsuit against Goldman Sachs Group Inc. (GS)’s Fabrice Tourre for allegedly misleading investors in a collateralized debt obligation.
In October, she accepted a not-guilty plea from Abu Hamza al-Masri, an Islamic cleric who was extradited from the U.K. and charged with aiding the al-Qaeda terrorist network.
Still, it’s the military detention case that has drawn the most attention, with the government claiming Forrest’s ruling on the National Defense Authorization Act threatens to inject confusion into military operations.
Section 1021 of the act affirms the authority of the military to detain combatants under the Authorization for the Use of Military Force passed in 2001 after the Sept. 11 terrorist attacks.
Those subject to detention under section 1021 include people who were “part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”
Hedges and the other plaintiffs argue that the terms “substantially supported” and “associated forces” are sufficiently vague that they could be arrested and held without trial for activities including reporting on terrorist groups and antiwar activism. After hearing testimony from Hedges and four other opponents of the law, Forrest agreed.
Because the 2001 authorization hasn’t been used to hold anyone on the basis of independent journalism or advocacy, the U.S. argues, the plaintiffs can’t show they have a reasonable fear they could be held under the National Defense Authorization Act for 2012.
“The U.S. military does not detain people for producing independent journalism, for protesting, or for holding panel discussions,” the government said in its appeal brief.
The U.S. claimed Forrest went too far in issuing a worldwide order blocking the president from detaining combatants in military operations in Afghanistan and elsewhere.
“It’s a bold ruling and a potentially sweeping ruling,” said Jonathan Hafetz, a national security and constitutional law expert who teaches law at Seton Hall University in New Jersey. “It’s going to confront significant issues on appeal.”
Hafetz, who has represented accused terrorists held at the U.S. naval base at Guantanamo Bay and elsewhere, is the author of “Habeas Corpus After 9/11: Confronting America’s New Global Detention System.” Hafetz said Forrest’s opinion failed to adequately address earlier rulings on the 2001 law.
“We’ve seen a little bit of pushback” against government attempts to expand its national security powers at the expense of individual rights, said Karen Greenberg, a professor at Fordham University’s law school and director of the Center on National Security. “We’ve seen a number of judges say uh-uh, this can’t be right.”
Greenberg credited Forrest with trying to force some clarity on an ambiguous law that, she said, is causing people to fear they could be held without access to the courts. She said defenders of the National Defense Authorization Act may try to use Forrest’s judicial inexperience in their favor.
“It gives her opponents a little more power, to say she’s new, she’s untried, she’s inexperienced,” said Greenberg. “But with new judges may come a new way of looking at things.”
Forrest, who enjoys reading about monetary policy and physics as well as military history, said she is “Kitty” to family and friends and to the other judges. As a lawyer she went by “Katherine,” thinking her nickname wasn’t sufficiently “shark-like.”
“She’s a Kitty in the sense that a very strong, ferocious lion is a kitty,” Paul Cappuccio, Time Warner’s general counsel, said over the phone with a laugh.
The case is Hedges v. Obama, 12-03644, Second U.S. Circuit Court of Appeals (Manhattan). The lower-court case is Hedges v. Obama, 12-cv-00331, U.S. District Court, Southern District of New York (Manhattan).