In February I wrote a post, No Change Here about the oral argument in the Ninth Circuit case, Mohamed V. Jeppesen Data Plan, in which the Obama administration announced its intention to carry out the Bush administration’s plan to attempt to prevent Binyam Mohamed and several other individuals who had been subject to extraordinary rendition from suing the Boeing subsidiary, Jeppesen Data Plan for its part in aiding the government’s transport of Mohamed and others as part of the extraordinary rendition. The Bush and Obama administrations intervened in the action and convinced the trial judge to dismiss the case in that it involved government secrets under the states secrets privilege.

The Ninth Circuit reversed the trial court’s decision finding that since the subject of the suit is not a state secret entered into between the parties the privilege does not apply. There is a related evidentiary privilege but the government will have to bring that in the trial court. Furthermore the evidentiary privilege generally only affects the admissibility of a particular evidentiary matter. It is possible that a case can be so inundated with secret information that one side or the other will be prevented from making its case, but it is too early to rule on that matter since the defendant has yet to respond to the complaint.

The Supreme Court on a writ of habeas corpus reversed a sentence of death in a Tennessee case based upon the failure of the prosecutor to comply with the requirements of Brady v. Maryland Brady required prosecutors to provide discovery of all ameliorating evidence in their possession or the possession of investigating police departments.

In Cone v. Bell, Warden the question was not whether the prosecutor had complied with Brady. All agreed it had not. But the question was whether the matter had gotten a fair hearing in the state courts and whether the failure to provide Brady discovery affected Cone’s right to a fair trial and sentencing under the Fourteenth Amendment. The Supreme Court found that the Tennessee court had not given Cone a fair hearing on the Brady issue. In fact the Tennessee courts had never considered the issue on its merits. At various times the Tennessee courts had ruled that Cone was not entitled to a hearing on the merits since he had already had a hearing and conversely that he had waived a hearing on the issue.

On August 10, 1980 Cone robbed a jewelry store in Memphis. He then led the police on a high speed chase. Eventually he abandoned the car and shot a police officer. Next he shot a bystander that attempted to aid in his arrest. He then tried to hijack another vehicle but he failed since he was out of ammunition. The next morning he tried to use his gun to get into the house of an elderly woman but she slammed the door and called the police. That afternoon he beat to death an elderly couple and ransacked their house. He was arrested several days later in Pompano Beach, Florida after robbing a drug store.

At trial he did not deny any of the incidents. Instead his counsel argued that he committed the crime while insane as a result of extreme amphetamine use. The state easily refuted the evidence and the jury found him guilty on all counts.

On direct appeal Cone raised a number of issues including the state’s failure to disclose a tape and some police reports. The Tennessee Supreme Court denied each of his claims. He filed a habeas with the primary grounds being incompetence of counsel. Again the court denied it. He filed a second habeas in pro per. While his petition was pending the Tennessee courts ruled that criminal defendants had the right to review their prosecutorial files. The trial court denied his petition but the appellate court appointed counsel and allowed him to file an amended petition. For the first time he was allowed to see his file and discover that their were a number of documents in it that had not been disclosed and that would have helped prove his drug use and his insanity. But the amended second petition was also denied by the Tennessee courts. They found that even if the discovery had been provided it would not have prevented his conviction. But they did not consider the effect that the discovery might have had on the jury’s finding of death.

The Supreme Court agreed that the discovery would not have affected the conviction but it found that if the discovery had been provided it might have affected the finding of death and it sent the case back to the Tennessee courts for a determination of whether the missing discovery would have affected the finding of death.

In the seminal case of Terry v. Ohio the Supreme Court held that their are three levels of contact between the police and civilians and for each level of contact their is a corresponding permissible level, under the Fourth Amendment, of invasive behavior. The lowest level involves a consensual encounter. In this case no force is used and any search must be agreed to by both sides. At the other extreme the police have probable cause to arrest someone. Since the police have probable cause to arrest someone they can use force to search the individual pursuant to the arrest. In the middle is what has been called a Terry search. In the Terry search the police have a reasonable suspicion that a crime has been committed or is about to be committed and that the individual is involved in the crime. In such cases they may detain the individual for a limited period of time in order to verify their suspicion. If they also have a reasonable suspicion that the person might be armed, they may frisk the individual for their own safety.

Terry searches have been quite useful to law enforcement in obtaining evidence of a crime and in arresting individuals. While individuals have a right not to answer questions during Terry searches people are either unaware of their rights or try to talk their way out of being arresting in many cases. Usually, in such case they give the officer probable cause to arrest them and the case is over.

The problem from a legal point of view is the dividing line between the three levels. Often the line is thin and police anxious to make an arrest either detain an individual without a reasonable suspicion or arrest the individual without probable cause. Of course no one wants the police to randomly detain, pat search or perform a full search without the appropriate level of of suspicion. This ends up with an illegal invasion of one’s civil rights.

Since evidence obtained as the result of an illegal detention or search is inadmissible in court the issue is frequently raised during a case and often results in appellate decisions. In a recent case that came out of Massachusetts the First Circuit Court of Appeals upheld a Terry stop and a pat search for weapons in which a gun was found on Samnang Am.

The police alleged six reasons for the stop. They were that the search was in a neighborhood known for a high crime rate, Am was a known member of a gang, Am’s criminal record, the fact that he was on probation, Am had been found with a gun before and a tip received by one of the officers that Am had been involved in a recent shooting. The court found that while the location of the search, ie in a high crime neighborhood, claimed by an opposing gang could not in and by itself provide a reasonable suspicion it could be considered in connection with the other factors. Also, the tip could not be used because there was no way to verify it. But even excluding the tip the court found that the officer had a reasonable suspicion to detain Am.

At the time of the detention Am put his hands into his pockets. This provided the police with a reasonable suspicion that he might be armed and therefore the pat search was legal. Since this led to his arrest the game was over.

A Federal judge set a new standard, according to an article in Jurist for habeas relief for prisoners accused of terrorism replacing the Bush administration’s enemy combatant standard. The new standard, supported by the Obama government is meant to comply with international laws of war and the government’s Authorization for Use of Military Force, which was passed by Congress in the immediate aftermath of the 9/11 attacks. The new standard allows for the detention of those “who were part of, or substantially supported, the Taliban or al-Qaeda forces”

At this point the order just affects writs that are being heard by Judge Reggie Walton of the District Court for the District of Columbia but it is expected that other judges will adopt the same or a similar standard.

Abdiwali Abdiqadir Muse was charged by the government with being the surviving pirate who kidnapped the captain and crew of the Maersk Alabama. off the coast of Somalia. He was charged with numerous counts including piracy. 18 USC 1851 which defines piracy is quite simple:

Whoever, on the high seas, commits the crime of piracy as defined
by the law of nations, and is afterwards brought into or found in
the United States, shall be imprisoned for life.

The statute was written in 1791 and it was last rewritten in 1948. Convicting Muse of piracy will be no easy trick. The statute’s simplicity will make it more difficult. Due process requires that a law give notice to those who would break the law as to what conduct will violate the law. The court will have to determine, “What is the law of nations?” In the process of answering this question it will have to answer the question, “Is the law of nations, clear enough to meet due process standards as to giving sufficient notice of the conduct it bans?” Are we talking about the law of nations as it existed in 1791, 1948 or the present? Does this in and of itself make it overly vague?

But as insurance the US Attorney has charged Muse with other offenses, which may be easier to understand and get convictions on including discharging a firearm, conspiring to commit hostage taking and brandishing a firearm

In 1969 the Supreme Court rejected a search incident to arrest where the area searched exceeded the area adjacent to the area where the defendant was arrested in Chimel v. California. The Court explained that the purpose of the search incident to arrest exception to the warrant rule was to protect law enforcement agents and to prevent the destruction of evidence. Therefore, the court ruled that a search incident to an arrest was only legitimate if the area searched was limited to that area adjacent to the area where the arrest occurred. Thus the only area that could be searched was the area in which the defendant had access to for either the purpose of getting a weapon or destroying evidence.

In 1981 the Supreme Court applied Chimel to auto searches in Belton v. New York. In Belton the Court attempted to develop a bright line rule for interpreting Chimel cases by ruling that the area under the control of the arrestee was the entire interior of the vehicle. But for the last twenty-eight years courts have disagreed about what searches were permissible under Belton. Most courts have ruled that the police could search the interior of the vehicle at any time. This allowed police to search the vehicle when the arrestee no longer had access to the vehicle. Searches incident to arrest have been upheld after the arrestee was handcuffed and placed in the police car. Courts have even upheld searches incident to arrest when the arrestee had been taken away and place in the jail.

Tuesday the Supreme Court in Arizona v. Gant said enough is enough. 1n 1979 we said that searches incident to arrest can only be justified if they protect the security of the police officer or prevent the destruction of evidence. Gant only allows searches of an automobile pursuant to a legal arrest if at the time of the search the arrestee is within the area where he/she might seize a weapon from the vehicle or where the police have have reason to believe that they will find evidence related to the crime for which the arrestee was arrested in the vehicle.

Hopefully this time the lower courts will pay attention.

Attorneys Clive Stafford Smith and Ahmad Ghappour face six months in prison for writing to President Obama according to an article in SF Gate,

They represent Mohamed Binyam Mohamed who was renditioned and tortured while under the control of the CIA. Eventually he ended up at Guantanamo. He was released after he sued Jeppson Dataplan, a subsidiary of Boeing, that was involved in his extraordinary rendition. (He turned down an earlier release which came with the condition that he not talk about his imprisonment.

Smith and Ghappour have represented many prisoners housed at Guantanamo including Mohamed. They drafted a letter to Obama attempting to discover the extent of Mohamed’s torture while Mohamed was at Guantanamo. The law requires attorneys who represent clients at Guantanamo to obtain the approval of the Privilege Review Team. The Privilege Review Team is a secret body whose job is to approve communications between Guantanamo prisoners and their lawyers. Smith and Ghappour submitted their letter to the Privilege Review Team. They did not expect to have any problems since Obama, of course, has a complete security clearance. But when they got the letter back the complete body of the letter was redacted.

They sent the redacted letter, along with a cover letter to Obama. The next thing they know there is a warrant out for their arrest for violating the rules of the Privilege Review Team. They could receive six months in jail.

It seems to me at a minimum the charges against Smith And Ghappour violate Mohamed’s Sixth Amendment right to competent counsel and the rights of Smith and Ghappour under to First Amendment to freedom of speech and freedom to petition.

The case reminds me of that of Lynne Stewart, the New York lawyer who represented Omar Abdel Rahman, a blind Egyptian sheik who was convicted of conspiracy to blow up the United Nations, an FBI building, two tunnels, and a bridge in New York City. She was convicted and sentenced to twenty-eight months for helping her incarcerated client convey a message to his followers. Like Smith and Ghappour her speech should be protected by the First and Sixth Amendments. It is currently up on appeal.

Both prosecutions are attempts to quiet lawyers who are raising serious issues which the government finds bothersome. The attack upon the right of counsel is an attack upon the Constitution for without the right of counsel to vigorously carry on the battle of their clients the constitutional rights are meaningless.

NSA wiretaps exceeded the law, according to New York times story. After 9/11 Congress gave the NSA enlarged power to wiretap individuals but the targets of the wiretaps had to be “reasonably believed” to be outside the United States. Apparently a significant number of people wiretapped under the law were in the United States.

To prosecute any of the NSA personnel it would have to be proved that they knew that it was not reasonable to believe that the target was in the United States. It may well have been done accidentally in which case they should not be prosecuted.

But don’t worry even if they knew the targets were in the United States they will not be prosecuted. Let’s look at the case of the CIA agents who tortured Abu Zubaydah and Khalid Sheikh Mohammed. The Justice Department released four memo detailing their torture. Among the approved techniques were waterboarding, placing them in a box with insects, sleep deprivation, the use of water hoses, holding back food, and throwing them against imaginary walls. (It should be noted that the government claims to no longer used these techniques.)

But according to a letters from President Obama and Attorney General Holder, not only will they not be prosecuted but if they are sued in this country or abroad the government will provide free lawyers and will cover any damages awarded. This is true despite the fact that according to Lucas Tanglen writing in Jurist points out that international law requires the United States to investigate and prosecute the imposition of torture. Perhaps this is why the United States needs to be a member of the International Criminal Court.

THE NSA agents have nothing to worry about.

I found two items on Yahoo today. In the first episode a 28 year old man was jailed for urinating on a 66 year old woman during a Continental Flight from Los Angeles to Hawaii.

In the second episode a 54 year old Louisiana man was charged with aggravated battery after stabbing his 63 year old brother with a knife during an argument about pork and beans.

What do both episodes have in common? The two brothers and the man on the airplane had been drinking heavily