Clemens v. McNamee: What Fueled the Rocket?

Michael Carroll, Albany Government Law Review Member


          On February 13, 2008, the House Committee on Oversight and Government Reform held a hearing that drew the attention of all the national media outlets in the United States.[1]  The hearing was televised live, and many Americans closely watched the testimony of the star witness involved.  One month earlier, this witness had a chance to explain the circumstances that brought him to Congress in an exclusive interview on “‘60 Minutes.’”[2]  However, the situation this witness faced in February was different than his television interview.  While in front of the Committee, he was required to take an oath to testify truthfully, and he had to endure questioning from some members of Congress who highly doubted his credibility and cast doubt on the validity of his illustrious career.  The hearing “split along partisan lines,” seeing Democrats attack the witness and Republicans defend him.[3]  This political tension did not occur as a result of testimony from a government official or a CEO of an American corporation.  Instead, it was the testimony of Roger Clemens that caused this political rift.



          Roger Clemens, a former pitcher for the Boston Red Sox, Toronto Blue Jays, New York Yankees, and Houston Astros, had a career that spanned from 1984 to 2007.[4]  Mr. Clemens compiled 354 wins “seven Cy Young Awards . . . [and was] named to All-Star teams eleven times.”[5]  When Mr. Clemens retired in 2007, Major League Baseball (MLB) faced allegations of widespread steroid abuse by some of the sport’s top players.  With criticism coming from the media, the U.S. government, and baseball fans, the Commissioner of the MLB, Bud Selig, requested that former United States Senator George Mitchell undertake an independent investigation looking into the use of performance enhancing drugs (PEDs) in MLB.[6]  After performing this investigation, Senator Mitchell submitted a report to MLB in December 2007 which alleged that Roger Clemens (among others) used PEDs.[7] 

          The principle source of information regarding Roger Clemens’ use of PEDs was gleaned from his former trainer, Brian McNamee.[8]  At the time of the Mitchell investigation, Mr. McNamee had already been the subject of an inquiry by the U.S. Attorney’s Office for the Northern District of California as “a possible sub-distributor” of PEDs.[9]  As a part of this investigation, Mr. McNamee entered into a written agreement with the U.S. Attorney’s Office that “no truthful statements [could] be used against [him] in any federal prosecution by that Office.”[10]  At the request of the U.S. Attorney’s Office, Mr. McNamee held several interviews with staff working on the Mitchell Report.  At these meetings, Mr. McNamee was told that he faced possible “criminal charges if he made any false statements,” and that all of his statements made for the Mitchell Report were “subject to his written agreement with the U.S. Attorney’s Office.”[11] 

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The Irony of International Law; How International Law Limits State Sovereignty

Jason Riegert, Government Law Review member

            “International law is based on the concept of the state.”[1]  In turn, the state is based upon the foundation of sovereignty, which is defined as “supreme power especially over a body politic; freedom from external control.”[2]  The idea of state sovereignty dates back as far as the notion of the state itself.[3]  However, the development of international law has slowly weakened the idea of state sovereignty, causing a tension between international law and state sovereignty.  This juxtaposition has developed because while the preservation of peace and state sovereignty was the original concern that led countries to form international law, international law itself has now become a threat to state sovereignty.[4]

            In Thomas Franck’s article entitled, The Emerging Right to Democratic Governance, he discusses certain normative expectations within the international community.[5]  Franck outlines four indicators, “pedigree, determinacy, coherence and adherence,” that a new state must have in order to gain international legitimacy and recognition.[6]  In Franck’s analysis, he gives examples of different states and their struggle to gain legitimacy.[7]  One example he gives occurred in the early 1990’s, when the United Nations (UN) came in and controversially monitored elections in Haiti.[8]  The article emphasizes the idea that not only do states legitimize international law, but that the international body legitimizes states.[9]  This poses the question of how sovereign are these new “legitimate” states.  These states are being forced to jump through hoops and meet these “indicators” in order to gain international legitimacy, but what happened to the idea of “absolute power over a body politic,” and “freedom from external control.”[10]   

            Another example of the struggle between state sovereignty and international law can be seen with Iran nuclear testing.  In analyzing the Iran nuclear testing issue, it becomes clear that there are obvious limitations to what a state can and cannot do, thus limiting the state’s sovereignty.  International organizations like the International Atomic Energy Agency (IAEA), work with the United Nations (UN) to help “promote the peaceful use of atomic energy.”[11]  In their promotion of peaceful atomic energy, the UN and IAEA restrict countries’ uses of atomic energy, seriously limiting what is allowable.  In response to Iran’s admission of nuclear testing back on September 29, 2009, the IAEA Director General issued a statement in which he declared that there is a “need to move from national to multinational control of the nuclear fuel cycle.”[12]  There were agreements by the IAEA and Iran to have the agency come in and inspect the nuclear testing facilities.[13]  This raises the issue of what ever happened to the UN charter? The charter outlines the rights of states, recognizing state sovereignty and independence and declaring that the UN may not intervene in matters “essentially within the domestic jurisdiction of any state.”[14]  Don’t the IAEA’s polices directly violate the UN charter itself? 

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What Your “Queue” is Saying About You

Matthew Robinson-Loffler, Government Law Review member

      Our secrets, great or small, can now without our knowledge hurtle around the globe at the speed of light, preserved indefinitely for future recall in the electronic limbo of computer memories.  These technological and economic changes in turn have made legal barriers more essential to the preservation of our privacy.[1]


          Did Netflix “out” an Ohio mother?[2]  According to a recent complaint filed in Federal Court for the Northern District of California, the rental company provided data containing the subscriber’s viewing habits and preferences, alleging the company did not sufficiently anonymize the information.  While many people expect to take abuse from friends and family regarding their taste in entertainment—“You’ve watched On Deadly Ground how many times?”—very few expect that information to be shared with the community at large.

          Doe v. Netflix, alleges the DVD rental company, regulated as ‘video tape service provider’ under the Video Protection Privacy Act[3] (VPPA) disclosed the private information of its subscribers, in violation of the VPPA, allowing contestants, and anyone else who may have had access to the data, to de-anonymize the information and identify specific members.  Doe, an Ohio resident is suing individually, alongside three other plaintiffs; each seeking to represent a U.S. Resident class; a U.S. Resident and California Resident class; and a U.S. Injunctive Class.[4]

I. The Law

          In 1988, Congress passed the VPPA in response to the leaking of Supreme Court Nominee Robert Bork’s video rental history to a Washington newspaper.[5]  The VPPA prohibits “video tape service provider[s]” from “disclos[ing] to any person, personally identifiable information concerning any consumer . . . .”[6]  Personally identifiable information “includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.”[7]  Any individual whose personally identifiable information has been disclosed in a way not permitted by the act may recover “actual damages but not less than liquidated damages in an amount of $2500; punitive damages; reasonable attorney’s fees and other litigation costs reasonably incurred; and such other preliminary and equitable relief as the court determines to be appropriate.”[8]

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