Chief U.S. District Judge Beryl A. Howell, in her courtroom in Washington in May. (Katherine Frey/The Washington Post)
In ordering the first-ever release by a full federal district court of a year’s worth of secret government surveillance requests, U.S. District Chief Judge Beryl A. Howell of Washington added to a decades-long career spent charting the frontier of technology and the law in the nation’s capital.
Howell on Wednesday stepped into the fierce debate over the limits of secrecy and law enforcement searches in a digital age by releasing a list of more than 200 cases in which U.S. prosecutors in the District sought court orders for data about individuals’ phone, email or online communications. Nationwide, more than 20,000 such orders were approved in 2013 alone; almost none are ever unsealed.
The release came in response to a journalist’s request for records and was heard by Howell in her relatively new capacity as chief judge, a seniority-based post.
Howell became chief judge of the District Court for the District of Columbia in March, five years after her appointment to the bench by President Obama — the shortest tenure since the 1940s of anyone who went into the role.
But she brings to the job exceptional grounding in technology policy from more than 33 years spent in the private sector and across three branches of government.
[In first, U.S. judge to list one year’s government electronic surveillance requests in D.C.]
“There are few judges with the breadth of experience and the intellectual heft of Chief Judge Howell,” said Sen. Patrick J. Leahy (D-Vt.), the ranking Democrat on the Senate Judiciary Committee and a mentor to Howell, who served the committee for a decade as a senior staffer and general counsel. “She has steely conviction, and no one is a quicker study.”
“She came from an Army family, and she’s Jewish, which is a very rare combination,” added Washington power lawyer Beth Wilkinson, a former decorated federal and Army prosecutor herself who has known Howell since they served as assistant U.S. attorneys in Brooklyn in the early 1990s, along with Loretta E. Lynch, now the U.S. attorney general.
Howell’s background “doesn’t make her conservative,” Wilkinson said, but on Capitol Hill and as a federal prosecutor, “people did not think she is predisposed to an outcome, no matter what the issues were.”
Howell, 59, has long been a study in contrasts, friends and professional colleagues said.
After the Sept. 11, 2001, terrorist attacks, she helped Senate Democrats navigate shifting legal ground, assisting in drafting the USA Patriot Act and overhauls of federal wiretapping and surveillance laws that law enforcement sought and technology companies warily watched. She also had a hand in crafting broadband-era updates to federal copyright, trademark and public records laws.
Through it all, Howell showed a knack for hearing out all sides. She won a place in the National Freedom of Information Act Hall of Fame and on the board of the online civil liberties group Center for Democracy and Technology. Beside her desk in her office in the courthouse, she keeps a signed gift from Leahy: a photograph he shot of a woman in Nepal separating wheat from chaff.
Chief U.S. District Judge Beryl A. Howell talks with court staff. (Katherine Frey/The Washington Post) “It’s a useful skill to have,” Howell has quipped to visitors.
On leaving the legislative branch in 2003, Howell became executive managing director and general counsel of Stroz Friedberg, a firm started by a former FBI agent specializing in cybersecurity and digital forensics. She registered as a lobbyist from 2004 to 2008 for the Recording Industry Association of America, a client of the firm.
Cindy Cohn, executive director of the Electronic Frontier Foundation, a nonprofit civil liberties group that is active in online privacy and intellectual property debates, called Howell “an interesting judge who really doesn’t map cleanly on our side or not,” depending on the issue.
While Howell undoubtedly holds some different views as a judge than those she advanced as a Senate staffer, Orin S. Kerr, a George Washington University law professor and former Justice Department attorney specializing in computer crimes, said her role as “a major player in surveillance debates” gives her insight in the area few judges can match.
Born at Fort Benning, Ga., Howell was the daughter of an Army officer and attended public school in six states and Germany before graduating from Bryn Mawr College with a philosophy degree and from Columbia Law School with honors.
She clerked in 1983 for Dickinson R. Debevoise of New Jersey, a jurist who established Newark Legal Aid for the poor and wrote the state’s ethics rules for prosecutors. Howell has called him one of her models because his respectfulness and willingness to listen “brought the best out of all the lawyers.”
At the prosecutor’s office in the Eastern District of New York from 1987 to 1993, Howell handled narcotics cases that “read like crime novels,” Leahy said, working with a group of women now in senior Justice Department posts who call themselves the “EDNY chicks,” including Lynch, assistant attorney general Leslie R. Caldwell and appellate lawyer Kirby A. Heller.
“She taught me how to try a case,” Lynch said after being introduced by Howell at a June speech at the launch of a “reentry” court at the Washington courthouse — part of a criminal justice reform effort to help ex-offenders stay out of prison. “More than that, she taught me that justice requires that we seek out fairness for everyone who comes through the system at every stage.”
Prominent New York defense attorney Gerald L. Shargel recalled how Howell in her prosecutor days wrapped up a high-profile trial of one of his clients, a Chinatown gangster convicted of heroin trafficking — then skipped closing arguments to deliver the second of her three children.
“She is smart and very capable,” Shargel said.
Howell runs her courtroom with a blunt, no-nonsense style and confident manner.
She can flash a sharp edge, as she did last year during a trial in a lawsuit involving MSNBC host Ed Schultz, as reported by The Daily Caller. “Your client may be a star in some circles. He is not a star in this courtroom,” Howell told an attorney for Schultz, according to a court transcript, adding that his “arrogance is noticed by the jury. It’s certainly noticed by my staff and it is unacceptable when it comes to my staff.”
But the self-described former PTA mom, who lives in Northwest Washington, in a recent case also hurried down from the bench to drape her black judicial robe around an attorney who had collapsed during an appearance before her and was waiting for medical attention. “All warmed up for you,” she said.
Among her more wide-reaching rulings, Howell barred the Army from singling out Sikh soldiers to test if their hair or turbans interfered with protective gear; hiked attorney’s fees paid by the government in complex public interest cases in Washington; and, on First Amendment grounds, struck down a long-standing ban on protests on the U.S. Supreme Court plaza — a bold 68-page opinion that was overturned on appeal.
[Protesters have no free-speech rights on Supreme Court’s front porch]
The chief judge’s duties are mainly administrative, but they include overseeing grand jury matters, a politically sensitive task in a jurisdiction that includes the White House and Congress.
They also include responsibility for managing a catchall docket of “miscellaneous” cases, which is where Vice News investigative journalist Jason Leopold’s petition for the electronic surveillance records was filed in 2013.
Leopold is a prolific filer of public information requests, and his attorney, Jeffrey Louis Light, said that it “would have been very easy” for Howell to set aside the petition asking to unseal records in all closed surveillance cases to throw a rare light on law enforcement activities.
Instead, Howell has “chosen to take it seriously and really grapple” with it, Light said, working along with U.S. Attorney Channing D. Phillips’s office in what could set a model for other courts for disclosures.
“She defies easy characterization,” Light said. Among federal judges on issues of transparency, he said, “I find her to be the most perplexing, and it’s probably because she has such a deep understanding that her views are much more nuanced than others’.”
Correction: A Sept. 26 Metro article about U.S. District Chief Judge Beryl A. Howell misstated the year she tried a case involving MSNBC host Ed Schultz. The trial was in 2015, not 2014. A quote attributed to Howell also was incomplete. A review of the court transcript in the case shows a courtroom exchange between Howell and an attorney should have said: “Your client may be a star in some circles. He is not a star in this courtroom,” Howell told an attorney for Schultz, adding that his “arrogance is noticed by the jury. It’s certainly noticed by my staff and it is unacceptable when it comes to my staff.” This article has been updated with the corrections.