The Department of Justice announced a new policy affecting the fourteen states which have medical marijuana laws. The Department directed U. S. Attorneys in those states not to prosecute medical marijuana users or provider of medical marijuana who strictly comply with state laws.

The new policy is in line with campaign promises made by Barack Obama when he ran for president and statements made by Attorney General Eric Holder.

The letters to the U. S. Attorneys said that while possession of marijuana remains illegal they should use their discretion and limited resources in deciding not to prosecute those who are in compliance with state laws.

The policy is a step forward towards a reasonable marijuana policy and it may encourage additional states to develop positive medical marijuana laws. But it raises nearly as many questions as it answers. For example, recently in Fresno, CA the local government closed down all of the dispensaries on the grounds that they were not in compliance with local zoning laws which banned medical marijuana dispensaries. Despite the fact that this may be illegal under state law, will the Federal government continue to prosecute dispensary owners and employees in Fresno because they are not in strict compliance with local zoning (marijuana) laws?

The policy gives the United States Attorneys tremendous discretion in determining what is legal under state law. Since marijuana remains illegal U. S. Attorneys will continue to successfully argue that judges and juries cannot decide whether or not defendants are violating state law. Decisions by U. S Attorneys to prosecute or not to prosecute an individual are not subject to a motion to dismiss, to a jury decision or to an appellate court.

As we all know the government has a policy of wiretapping suspected terrorist group without getting court mandated approval. The wiretapping is super secret. Those who are wiretapped are not told even after the wiretapping is finished. We only know about the policy since George Bush admitted the existence of the wiretaps in 2005. The wiretaps, performed without judicial authority are probably illegal. Does the government stop using such wiretaps because I or numerous experts say it illegal–NO. How do you get the government to stop doing something illegal. Well hopefully they would stop if the court orders them to stop. After all not following a court order would be illegal. Does the government care–probably not. So who will sue the government. One of the fundamental rules of our jurisprudence is that only someone who is injured by an action can sue to stop it. Well certainly those that were wiretapped were damaged by the government’s policy. But the catch 22 is that the names of the victims of the government’s wiretapping are secret and therefore not available to sue the government.

But the government made a mistake. It accidentally released a document showing that the Ashland, Oregon branch of Al-Haramain Islamic Foundation was subject to a wiretap. Al-Haramain Islamic Foundation was a branch of a Saudi Arabia charity and according to the government a front for Al Qaeda. It is now defunct. It sued the government for damages resulting from the wiretapping. But to continue the Catch 22 the government got an order stating that the document accidentally release can not be used to prove standing. So now the government (with a straight face?) argues that Al-Haramain Islamic Foundation does not have standing even though everyone knows that the document proves that Al-Haramain Islamic Foundation does have standing.

Wednesday in the courtroom of U. S. District Court Judge Vaughn Walker in San Francisco the government argued that the case should be dismissed on the grounds that if the case goes to trial the parties will have to release government secrets in the discovery process and at trial. The state secrets privilege originated during the McCarthy era. Prior to the George W. Bush regime it was primarily used to ban the use of government secrets in a civil trial. But under Bush and Obama it has been expanded to allow the dismissal of entire cases, A bill introduced last year by Senators Kennedy, Leahy, and Spector would have limited the privilege to excluding state secrets from trial. The documents would have been presented to a judge in camara who could have excluded part or all of a document but who could not have dismissed a case because of the admission of a state secret.

During his campaign for president, Barrack Obama said. “warrantless surveillance of American citizens in defiance of (the 1978 law) is unlawful and unconstitutional.” Yet government attorneys argued that the case challenging the warrantless wiretapping of American citizens should be dismissed. Furthermore, also on Wednesday, the Attorney General released policies governing the warrantless wiretapping of American citizens. While the new policies strictly limit the use of wiretaps they continue to violate the law by allowing their use. The new policies are effective October 1 and therefore apparently do not affect the Al-Haramain Islamic Foundation suit against the government.

The government is apparently using the Al-Haramain Islamic Foundation suit to obtain a ruling that warrantless wiretaps in the name of national security are legal and that will be the precedent to support the new limited government policy allowing the Attorney General to order warrantless wiretaps in the future. Of course there is nothing to prevent the attorney general or his successor from modifying and broadening the policy in the future to allow even greater use of warrantless wiretaps.

As Jon Eisenberg attorney for Al-Haramain Islamic Foundation said, quoting President Obama “where’s the change we can believe in?”

Last week a Federal/State task force raided two Los Angeles area marijuana dispensaries. At first blush it would appear that the Feds were violating the promises made by President Obama during the campaign and later by Attorney General Holder not to interfere with state medical marijuana laws.

While the DEA, FBI, Internal Revenue Service, Los Angeles County Sheriff’s Department, Los Angeles Police Department, Torrance Police Department and Culver City Police Department all took part in the raids, the raids appear to have been directed by State authorities with the feds only helping out. The Los Angeles Police Department applied for the Search Warrant which was granted by a Superior Court judge. This would indicate that the affidavit supporting the search warrant alleges a violation of state law. But no one involved–neither the police department or the DEA are publicly admitting what violation occurred.

The task force raided Organica Collective in Culver City, and the Overland Gardens Collective in West Los Angeles . The clubs are owned by Jeffrey Joseph. His house was also raided and he was arrested. He is now out on bail. They seized 100 pounds of marijuana, 200 live plants, and $100,000 in cash. None of this necessarily indicates anything other than a dispensary which sells marijuana to patients who have the approval of their doctors to legally possess marijuana.

The Organica Collective posted a statement on opposingview,com denying any violation of state law.

The law requires that the police file the search warrant affidavit within ten days of the search and it then becomes public. Therefore it should be filed within the next week and we will know the allegations.

President Obama accepted the resignation yesterday of Federal District Court Judge who is serving a prison sentence for obstruction of justice after he was charged with sexual harassment of two member of his staff. The sexual harassment charges were dismissed in exchange for his plea to the obstruction of justice charge.

He initially said he would resign immediately after the conviction but then changed his mind and dated the resignation for June 1, 2010. Since Federal judges can only be removed from office by resignation or impeachment, this would have allowed him to collect his $174,000 annual salary for another year. President Obama did not accept the resignation dated June 2010 but he accepted the immediate resignation which came at the same time that Kent received notice that he was going to be tried before the Senate.

In response to his delayed resignation, The House of Representatives impeached him on four count–two of harassing his staff and one each of lying to judicial investigators and to the Justice Department. He is currently awaiting trial on the impeachment charges in the Senate.

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.

In 1986 in a decision written by Justice Stevens, Michigan v. Jackson the Supreme Court ruled that after a defendant requests the appointment of counsel at arraignment any contact between him and the government must be initiated by the defendant. The police cannot contact the defendant and attempt to get a confession. Without such a rule the police can go behind counsel’s back in an attempt to get a confession or a defendant can be coerced into confessing.

The Obama administration filed an amicus brief in Montejo v. Louisiana asking the Supreme Court to overrule Jackson. The solicitor general argues that the purpose of the Sixth Amendment is to protect the adversarial process but as she admits and as the Supreme Court has often stated much of what is important in the defense of a defendant occurs outside the courtroom. For example plea bargaining may occur in a telephone conversation.

She further argues that it would be sufficient to use a Miranda type warning to waive the right to counsel. While Miranda has limited efficiency prior to the appointment of counsel, a waiver of the right to counsel is certainly better if the defendant has the advice of counsel. With counsel available why not use him or her. Certainly their may be times when a confession is appropriate. Even if counsel does not feel it is appropriate, counsel’s duty to represent the client includes the duty to help the client confess even if counsel does not feel it is appropriate but the defendant so desires.

The government argues that the Jackson rule has limited but significant costs. It points out that most prosecutors are prevented from conversing with defendants due to state ethical rules preventing lawyers from conversing with represented individuals. The very presence of these ethical rules points to the possibility of coercion and the undermining of counsel inherent in the situation if Johnson is overruled. But still if Jackson is overruled police will be able to initiate and coerce defendants into waiving their Fifth Amendment right to remain silent and their Sixth Amendment right to counsel. The injury to the integrity of our courts is not insignificant. Even a few coerced or forced confessions result in the degradation of the United States justice system.

Finally the solicitor general argues that Jackson has been undermined by subsequent decisions. While the decision has been limited in several cases that is no reason to abolish the basic rule which remains strong.