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Secret Courts, Secret Law

December 12, 2013

Secret Courts Secret Law

On December 12, 2013, an expert panel gathered at NYU Washington, DC to discuss the proceedings of specialty courts and the unique challenges they pose to:

  • Litigating and judging when the proceedings are closed;
  • Law formation when the precedent is secret and its impact on public accountability.

This program, hosted by NYU Washington, DC and the Council for Court Excellence featured a distinguished panel of attorneys who examined these and other issues.


Barry Coburn

Barry Coburn

Siobhan Gorman

Siobhan Gorman

Lieutenant Commander William C. Kuebler, JAGC, USN

Lieutenant Commander William C. Kuebler, JAGC, USN

Hon. James Robertson (Ret.)

Hon. James Robertson (Ret.)

David Shulz

David Shulz

Kenneth Wainstein

Kenneth Wainstein

Moderator

Stephen Vladeck

Professor Stephen Vladeck

Stephen I. Vladeck is a Professor of Law and the Associate Dean for Scholarship at American University Washington College of Law. His teaching and research focus on federal jurisdiction, constitutional law, national security law, and international criminal law. A nationally recognized expert on the role of the federal courts in the war on terrorism, he was part of the legal team that successfully challenged the Bush Administration's use of military tribunals at Guantánamo Bay, Cuba, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and has co-authored party and amicus briefs in a host of other major lawsuits, many of which have challenged the U.S. government’s surveillance and detention of terrorism suspects. Vladeck, who is a co-editor of Aspen Publishers’ leading national security and counterterrorism law casebooks, has authored reports on related topics for a wide range of organizations, including the First Amendment Center, the Constitution Project, and the ABA’s Standing Committee on Law and National Security.


Professor Vladeck has won awards for his teaching, his scholarship, and his service to the law school. He is a member of the American Law Institute, a senior editor of the peer-reviewed Journal of National Security Law and Policy, a senior contributor to the Lawfare blog, the Chair-Elect of the Section on Federal Courts of the Association of American Law Schools, the Supreme Court Fellow at the Constitution Project, and a fellow at the Center on National Security at Fordham University School of Law.
A 2004 graduate of Yale Law School, Vladeck clerked for the Honorable Marsha S. Berzon on the U.S. Court of Appeals for the Ninth Circuit, and the Honorable Rosemary Barkett on the U.S. Court of Appeals for the Eleventh Circuit. While a law student, he was Executive Editor of the Yale Law Journal and the Student Director of the Balancing Civil Liberties & National Security Post-9/11 Litigation Project, and he was awarded the Potter Stewart Prize for Best Team Performance in Moot Court and the Harlan Fiske Stone Prize for Outstanding Moot Court Oralist. He earned a B.A. summa cum laude with Highest Distinction in History and Mathematics from Amherst College in 2001, where he wrote his senior thesis on "Leipzig's Shadow: The War Crimes Trials of the First World War and Their Implications from Nuremberg to the Present."

Panelists


Barry Coburn

Barry Coburn, a graduate of Yale University and Harvard Law School, has been litigating complex criminal and civil cases for over twenty-five years. His experience encompasses several years at the United States Department of Justice Antitrust Division, where he served as a Special Assistant in the Office of Operations; four years in the United States Attorney’s Office for the District of Columbia, where he prosecuted numerous significant cases, both local and federal; and eighteen years of private practice. He has tried nearly 200 cases, represented clients in many of the most significant federal white-collar criminal investigations in recent history, and has litigated and tried highly complex civil cases. Barry’s private practice has included many civil and criminal matters, though he has litigated numerous smaller, less-publicized and confidential matters as well.

Barry is an active member of the District of Columbia, Maryland and Virginia Bars, and has tried cases in various other jurisdictions as well. He is a Fellow of the American College of Trial Lawyers (“ACTL”), membership in which is by invitation only and is limited to the top one percent of trial lawyers in each jurisdiction in the United States, and is a member of its District of Columbia State Committee and Access to Justice Committee. He has been recognized in “SuperLawyers,” The Washingtonian and other periodicals. He has taught Continuing Legal Education courses in the areas of trial practice, the Federal Sentencing Guidelines, criminal mental health defenses, attorney professional satisfaction, age discrimination, cooperating witness issues, securities fraud and other subjects, sponsored by the American Bar Association, the District of Columbia Bar, the ACTL and other entities. He also has taught courses with the National Institute of Trial Advocacy (“NITA”) and is a certified NITA instructor. Barry has guest-taught trial practice and other courses at Georgetown, the George Washington University and the University of Virginia Law Schools, and at the Department of Justice’s National Advocacy Center. He has authored articles on the Federal Sentencing Guidelines and other subjects for the New York Times Op-Ed page and other periodicals. He has taught business ethics at the Greater Washington Board of Trade. In 2005 Barry was appointed by the United States District Court for the District of Columbia to chair the Merit Selection Panel considering the reappointment of a Magistrate Judge. In 2006 he was a presenter at a District of Columbia Circuit Historical Society program on the Espy Independent Counsel investigation. He chairs the Lawyers’ Committee for “theARC,” a public service entity in Southeast Washington, D.C. that provides space and other services to Covenant House, the Boys and Girls Club and a variety of other providers of assistance to inner city youth, and is active in the lawyers’ committee and the genocide prevention activities of the United States Holocaust Memorial Museum.


Siobhan Gorman

Siobhan Gorman is a reporter for The Wall Street Journal covering terrorism, counter terrorism, and intelligence, which includes the activities of the sixteen intelligence agencies and the national security threats they aim to combat.
Prior to joining the Journal in 2007, Ms. Gorman was a Washington correspondent for The Baltimore Sun covering intelligence and security. From 1998 to 2005 she was a staff correspondent for National Journal covering homeland security, justice, and intelligence; and in 1997 was also a research associate for “Bob Levey’s Washington”, The Washington Post.

Ms. Gorman won the 2006 Delta Chi Award for Washington Correspondence for her coverage of the National Security Agency, and in 2000 received a special citation in national magazine writing from the Education Writers Association. She received her bachelor of arts in government from Dartmouth College and currently resides in Arlington, Va.


Lieutenant Commander William C. Kuebler, JAGC, USN

LCDR Kuebler was born in Phoenix, Arizona, and raised in Phoenix and San Diego, California. He received his B.A., with Departmental Honors in Political Science from the University of California, San Diego, in 1993, and his J.D., cum laude, from the University of San Diego School of Law in 1996. As a law student, LCDR Kuebler was a member of the San Diego Law Review and National Moot Court Team. Upon graduation from USD, LCDR Kuebler worked as an associate for a San Diego law firm, dealing complex civil litigation matters in the federal and California state courts. In 1999, LCDR Kuebler was commissioned as an officer in the Navy JAG Corps through the direct appointment program. He first reported to Naval Legal Service Office Europe and Southwest Asia, where he served as defense, legal assistance, and claims attorney from 1999 until 2003 (in Sigonella, Italy, and London, England). In 2003, LCDR Kuebler reported to Naval Submarine Base New London, Connecticut, where he served as Staff Judge Advocate, Special Assistant U.S. Attorney, and part-time court-martial prosecutor.
From 2005 to 2009, LCDR Kuebler served as defense counsel with Office of Military Commissions in Washington, D.C., and Guantanamo Bay, Cuba, where he was detailed to the military commission cases of Ghassan Al Sharbi and Omar Khadr. LCDR Kuebler was counsel of record (for Mr. Khadr) in the landmark Supreme Court case of Boumediene v. Bush, and was on brief and argued the first case heard by the Court of Military Commission Review. LCDR Kuebler participated in hundreds of print, radio and television interviews, as well as numerous panels and public presentations dealing with military commissions and the Global War on Terror, and was profiled in GQ magazine, the New York Times, the Times of London, and Canada’s Globe and Mail. He received the Reg Robson Award for the protection of civil liberties and human rights from the British Columbia Civil Liberties Association in 2009 in recognition of his work as counsel for Omar Khadr.

In 2010, LCDR Kuebler received his LL.M. in International and Comparative Law, with highest honors, from the George Washington University Law School. He subsequently served as an International Law Attorney, specializing in Law of War matters, with the International and Operational Law Division of the Navy Office of the Judge Advocate General at the Pentagon. In July 2013, LCDR Kuebler reported to his current assignment as Assistant Professor and Course Director (Law for the Junior Officer) at the U.S. Naval Academy.

LCDR Kuebler is married to the former Dawn M. Arney of San Marcos, California. They have one child, William, Jr., and reside in Alexandria, Virginia.


Hon. James Robertson (Ret.)

Hon. James Robertson (Ret.) served with distinction as a United States District Judge for the District of Columbia for more than 15 years before his retirement on June 1, 2010, presiding over a docket that included a broad range of complex federal civil cases. He has earned a well-deserved reputation for fairness, integrity, courage, intelligence, decisiveness, compassion, and fair play. A progressive thinker and innovator, Judge Robertson served on the Judicial Conference Committee on Information Technology for eight years and was its chair from 2003 through 2005, presiding over the introduction of electronic filing in the federal judiciary and initiating an on-line system for receiving and reviewing clerkship applications. While an active federal judge, he served on the Foreign Intelligence Surveillance Court.

Prior to Judge Robertson’s appointment to the federal bench, he was in private law practice for 25 years with Wilmer, Cutler & Pickering. He also served with the Lawyers’ Committee for Civil Rights Under Law, as a civil rights litigator in Mississippi, as its national director in Washington, and later as co-chairman. He was a member of the Board of Governors of the D.C. Bar and was elected president in 1990. He is a Fellow of the American College of Trial Lawyers and a member of the American Law Institute.


David Schulz

Dave has been defending the rights of journalists and news organizations for more than 30 years. He has litigated libel, privacy, access, and newsgathering claims in 20 states, and regularly represents news organizations in appeals before both state and federal courts.

Dave's regular clients include international newswire services, national and local newspapers, television networks, and station owners, magazine and book publishers, cable news networks, and Internet content providers.

He has been described by Best Lawyers as “the top access litigator in the country,” and by Chambers USA as an “incredibly skilled” litigation strategist and a “walking encyclopedia” of media law. The Legal 500 reports that Dave is “widely praised as a recognized expert on freedom of information and access to the courts.”

Dave began his legal career in New York at Rogers & Wells, which later merged with London-based Clifford Chance, and served as head of the media litigation group at that firm before joining LSKS in 2003.


Kenneth Wainstein

Kenneth L. Wainstein is Co-Chair of the firm's Business Fraud group. He focuses his practice on corporate internal investigations and civil and criminal enforcement proceedings. With a record of sustained accomplishment in significant positions in the U.S. government in the areas of criminal enforcement and national security, he brings clients a deep understanding of the substantive and procedural issues involved in white collar defense. His 20 years of public service have garnered him an intimate knowledge of Justice Department policy, extensive crisis management skills, credibility among prosecutors and regulators, and strong relationships with Congress, the District of Columbia bench and bar, and U.S. Attorneys around the country.

In 2008, after 19 years at the Justice Department, Ken was named Homeland Security Advisor by President George W. Bush. In this capacity, he coordinated the nation's counterterrorism, homeland security, infrastructure protection, and disaster response and recovery efforts. He advised the President, convened and chaired meetings of the Cabinet Officers on the Homeland Security Council, and oversaw the inter-agency coordination process for homeland security and counterterrorism programs.

Prior to his White House service, Ken was twice nominated and confirmed for leadership positions in the Justice Department. In 2006, the U.S. Senate confirmed Ken as the first Assistant Attorney General for National Security. In that position, Ken established and led the new National Security Division, which consolidated DOJ's law enforcement and intelligence activities on counterterrorism and counterintelligence matters, and also oversaw the Department's role in regulatory mechanisms such as the Committee on Foreign Investment in the U.S. (CFIUS). Ken led several national security initiatives, including the launch of the national, inter-agency Export Control Enforcement Initiative targeting illegal exports of sensitive technology and weapons components.

In 2004, he was appointed, and later confirmed as, the United States Attorney in Washington, DC, where he oversaw the investigation and prosecution of high-profile white-collar and public corruption cases, including the case against Riggs Bank for Bank Secrecy Act violations and the prosecution of the MZM Chief Executive Officer for paying bribes to former Congressman Randall "Duke" Cunningham. Prior to that, Ken served as General Counsel of the Federal Bureau of Investigation and then as Chief of Staff to Director Robert S. Mueller. At the FBI, Ken was involved in myriad sensitive national security and criminal enforcement matters, as well as a variety of civil litigation, managerial, and Congressional oversight issues. In 2001, Ken was appointed Director of the Executive Office for U.S. Attorneys, where he provided oversight and support to the 94 U.S. Attorneys' Offices.

From 1989 to 2001, Ken served as an Assistant U.S. Attorney in both the Southern District of New York and the District of Columbia, where he handled numerous criminal trials and appellate arguments.

Ken's work has been recognized with the Edmund J. Randolph Award for Outstanding Service to the Department of Justice, the Department of Justice Director's Award for Superior Performance, and the Lawyer of the Year Award from the Bar Association of the District of Columbia, and he was recently named as a top national security lawyer by Washingtonian magazine. Ken has served as an adjunct professor at Georgetown University Law Center since 2009, teaching National Security Investigations and Litigation. He is a member of the Director’s Advisory Board of the National Counterterrorism Center; a member of the Public Interest Declassification Board; a member of the CIA General Counsel's External Advisory Board; a member of the Webster Commission on the FBI, Counterterrrorism Intelligence, and the Fort Hood Shootings; the Co-chair of the Committee on National Security Law, Policy & Practice of the District of Columbia Bar Association; a member of the Council on Foreign Relations; a member of the steering committee of the George Washington University Homeland Security Policy Institute; and a member of the Board of Directors of the National Association of Former United States Attorneys.

Ken earned his B.A. from the University of Virginia, with high distinction and Phi Beta Kappa. He earned his J.D. from the University of California at Berkeley, where he was a moot court board member and the Note and Comment Editor of the California Law Review. Following law school, Ken served as law clerk to the Honorable Thomas Penfield Jackson of the U.S. District Court in the District of Columbia.

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