Conflict of Interest Is Raised in N.S.A. Ruling
By ERIC LICHTBLAU
WASHINGTON, Aug. 22 — The federal judge who ruled last week that President Bush’s eavesdropping program was unconstitutional is a trustee and an officer of a group that has given at least $125,000 to the American Civil Liberties Union in Michigan, a watchdog group said Tuesday.
The group, Judicial Watch, a conservative organization here that found the connection, said the link posed a possible conflict for the judge, Anna Taylor Diggs, and called for further investigation.
“The system relies on judges to exercise good judgment, and we need more information and more explanation about what the court’s involvement was in support of the A.C.L.U.,” said Tom Fitton, president of Judicial Watch, which gained attention in the 1990’s for ethics accusations against President Bill Clinton.
Three legal ethicists interviewed said although Judge Taylor’s role as a trustee for a supporter of the civil liberties group would not necessarily disqualify her from hearing the case, she should have probably disclosed the connection in court to avoid any appearance of a conflict.
“It certainly would have been prudent” to notify the parties in the case, including the Justice Department, about the issue, said Steven Lubet, a law professor at Northwestern University and an author of “Judicial Conduct and Ethics.”
“I don’t think there’s a clear answer as to whether she should have disqualified herself,” Professor Lubet said. “But at a minimum, she should have disclosed it.”
In a case brought by the national organization of the A.C.L.U. and its Michigan chapter, among others, Judge Taylor ruled that the surveillance by the National Security Agency without warrants that was approved after the Sept. 11, 2001, attacks violated the Constitution and a 1978 surveillance law.
The Justice Department moved immediately to appeal Judge Taylor’s ruling.
Some legal experts saw the decision as an important affirmation of constitutional principles. But even some supporters of it took issue with the reasoning, and Republicans said political motives drove the judge, whom President Jimmy Carter had nominated to the federal bench.
Questions about a possible conflict of interest appear likely to raise new concerns. The Web site for the group that supported the A.C.L.U., the Community Foundation for Southeastern Michigan in Detroit, lists Judge Taylor as its secretary and a trustee. It indicates that trustees make all financing decisions for the organization, whose assets exceed $350 million and which gives grants for a variety of community projects.
Judge Taylor declined to comment on the matter on Tuesday, and the foundation did not respond to a message for comment on what role if any she had in awarding the civil liberties grants.
The executive director of the Michigan A.C.L.U., Kary Moss, said her group had received four grants totaling $125,000 from the foundation since 1999. They were a $20,000 grant in 1999 for an educational program on the Bill of Rights, $60,000 in 2000, along with the N.A.A.C.P. and other groups for education on racial profiling, $20,000 in 2002 for work on racial profiling and $25,000 in 2002 for a lawyer to work on gay rights.
The chapter could not confirm a grant of $20,000 for work on gay rights that the foundation listed in an annual report.
Ms. Moss said the question of whether Judge Taylor’s role as trustee posed a conflict “seems to me to be a real non-issue.” She noted that judges routinely work for civil and nonprofit groups, including many that may finance or have ties to parties that come before them in court.
“Judges have not recused themselves when there’s been a much, much stronger connection to an organization,” Ms. Moss said.
Federal law requires judges to disqualify themselves from hearing a case if their impartiality “might reasonably be questioned” based on factors like a financial or personal relationship with a party in the case.
Stephen Gillers, who teaches legal ethics at New York University, said he did not think there were grounds for Judge Taylor to remove herself from the case.
“The question is whether her impartiality might reasonably be questioned,’’ Professor Gillers said, “and the fact that she sits on the board of a group that gives money to the plaintiff for an otherwise unrelated endeavor would not in my mind raise reasonable questions about her partiality on the issue of warrantless wiretapping.”
But he said it would have been wise for Judge Taylor to disclose the issue to the participants in the case. “If there’s any doubt,” Professor Gillers said, “disclose, because it avoids suspicion later.”
Deborah L. Rhode, a law professor who directs the Center on Ethics at the Stanford Law School, said, “I certainly think it should have been disclosed.” |
