Attorney General Eric Holder announced that five detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed will be tried in New york City and another five will be tried by military tribunals, including Abd al-Rahim al-Nashiri, who is accused of planning the bombing the U. S, navy destroyer, the USS Cole in Yemen.

The trial of Mohammed promises to be the biggest trial since the OJ trial. It carries risks and benefits for the United States. The difference between military tribunals and trials in the United States District Court is that a District Court trial must follow all of the rights found in the Bill of Rights, while the defendant’s rights are more limited in a trial before a military tribunal. Specifically the Supreme Court has ruled that testimony obtained by torture or coercion cannot be used in a court but it is permissible before the military tribunals.

Some family members of those who died and conservative Republicans argue that terrorists do not deserve the same rights as American citizens. But by giving terrorist the same rights as we give to others accused of crimes we exhibit our belief in our judicial system and our humanity. What if some of the detainees are innocent. We believe that people are innocent until proven guilty and none of the detainees have been proven guilty in a court of law. Certainly innocent people deserve the full benefit of our laws and the Bill of Rights.

But there are certainly risks involved. It may lead to further terrorist attacks on New York City. They may come on the day set for trial, the day the verdict comes down or on the date of sentencing. While the world may admire our Bill of Rights it will not admire the death penalty if the defendants are convicted. Some may say the death penalty is as barbaric as some of the terrorist acts. Furthermore the government will be rightly blamed for bringing Abd al-Rahim al-Nashiri to trial before the tribunal and not in a court of law. The use of testimony obtained through torture will and should be condemned. Furthermore, the use of the death penalty may make the detainees martyrs in many parts of the world and lead to revenge on the United States.

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.

One of the hardest things for a criminal defense attorney to do is to deal with with non-citizen clients. Often they face deportation, exclusion, or denial of citizenship in addition to the normal punishment for a conviction. In the years I’ve been practicing I have represented numerous clients that immigrated to this country as young children with their families but have never become citizens. Many of them don’t even speak their “native” language. Many do not have any close family left in their “native” country. For many of these people the penalty of deportation is much greater than whatever time they are going to spend in jail or prison.

Of course I have other clients who after a brief period dealing with the criminal justice system tell me to get them back to their native country as fast as possible.

Then again I had a Mexican client. He plead guilty to a drug offense and the judge ordered that he be released on his own recognizance from jail at the time of his guilty plea. He was given a date for sentencing. But no one expected him to be there since he had an INS hold. I came to court on the day set for sentencing and he was not there. I asked the bailiff if he was in custody and I was told he had been released to INS. But as I was leaving the building–guess who walks in. He told me that he had been ordered back for sentencing on that date and he did not want a bench warrant. So he came back across the border and got to court only an hour late. He was sentenced. Pursuant to the plea agreement he did not do any more time in custody. Since he wasn’t in custody, the INS could not pick him up and he walked out the front door of the courthouse.

Generally ICE puts a hold on non-citizens when they are in custody. Americans know from watching too many police dramas on TV that anything you say to a peace officer can and will be used against you. Foreigners do not always know this and therefore many non-citizens make the fatal mistake of answering questions posed by ICE agents who meet them in the jail. By telling the agents their citizenship status or their place of birth they end up with an ICE hold. When this happens the jail must notify ICE when the foreign national is to be released. Then the jail or prison must hold the individual for five more days to allow ICE time to come and get him/her.

I had one client who was a French citizen. She was married to a US citizen and she could have become a US citizen is she tried. Despite (and perhaps because of) the fact that she was a drug addict and therefore subject to arrest and deportation, she never became a citizen. Eventually she was arrested with a significant amount of drugs on her. She was taken to jail and even though she was fairly smart she answered all of the questions posed by the ICE agent who put a hold on her. The ICE agents question foreign born prisoners before they are even arraigned and before they have a chance to talk to a lawyer and learn their right not to speak to the agent. My client was charged, convicted, and deported leaving her husband at least temporarily in this country.

What brings all of this up is a case out of the Fifth Circuit Court of Appeals. In Singh v. Holder the court held that a conviction for”wounding” under the laws of Virginia is an aggravated felony and a conviction for such resulted in this case in denial of citizenship.

Satbir Singh immigrated to this country in 1987. After he was here for a couple of months he was convicted of wounding in Virginia. Before he could be sentenced he returned to India. He was arrested when he reentered the country in 1998. After he was sentenced he applied for citizenship. It was denied on the basis of his conviction for an aggravated felony. He sued in the United State District Court. Summary judgment was granted to the defendants and he appealed to the Fifth Circuit.

An aggravated felony is inter alia “a crime of violence . . . for which the term of imprisonment [is] at least one year.” It includes many other offenses including those involving drugs, theft and firearms. (See USC Title 8, section 1101.)Wounding, under Virginia law, is

(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) any other offense that is a felony and that, by its nature, involves
a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.

The court did not have much trouble showing that wounding was an aggravated felony. But since the law took effect in 1990 a second question was raised in the appeal. Since the plea was before 1990 and the sentencing was after 1990 which date would be used. The Court did not have much trouble saying that the conviction date was the date of the sentence.

The Fifth Circuit upheld the summary judgment finding and he was correctly denied citizenship.

While this case does not involve deportation many do. Since denial of citizenship is an additional penalty, why should a non-citizen be punished more for the same criminal conduct that the citizen. This is particularly noticeable when the long term resident but non-citizen is deported. The penalty can be significantly more burdensome than the penalty for the same conduct committed by the citizen.

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.