The Tenth Circuit Court of Appeals denied immunity to a prosecutor who reviewed a search warrant affidavit for the residence of an on-line journalist at the University of Northern Colorado.

Thomas Mink published The Howling Pig. For its editorial column he chose the name of Junius Puke with an altered photograph of Junius Peake, a professor at the school. Mr. Peake was not amused. He contacted the Greeley police. They drafted a search warrant affidavit for the home that Mink shared with his mother and presented it to Susan Knox, a deputy district attorney for review.

Mink eventually filed suit, naming among others, Knox. Knox moved for summary judgment claiming immunity and qualified immunity as a prosecutor.

The Tenth Circuit rejected both arguments. It ruled that prosecutors are only entitled to immunity for the work of an advocate and that the review and approval of a search warrant affidavit is not advocacy.

The Court stated, “Government officials performing discretionary functions generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” However it found that Mink alleged that Knox violated his clearly established constitutional rights and therefore she is not entitled to qualified immunity.

To successfully allege that one’s constitutional rights have been violated it is necessary to show a casual relationship between the defendant’s action and the violation of constitutional rights, an actual violation of the plaintiff’s rights and that the law was clear at the time of the violation. The Tenth Circuit found that Mink met all of the criteria. There was a direct causal relationship between Knox’s approval of the warrant and the illegal search. The search was illegal in that it was without probable cause and it was overly broad. It was without probable cause because parody is constitutionally accepted and it cannot be criminally charged as libel. Furthermore the warrant was not sufficiently particularized in that it ordered the seizure of all computers found in the residence without specifying what they were looking for on the hard drive. Thus no reasonable district attorney could believe that the affidavit met Fourth Amendment mandates for problable cause and specificity.

Several times we have discussed the habeas corpus related sections of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Today we look at another section of the act, 18 U. S. C. §2339B, which makes it a federal crime to “knowingly provide material support or resources to a foreign terrorist organization.” The AEDPA was part of Newt Gingrich’s Contract on America which was passed and signed by President Clinton following the bombing of the Oklahoma City Federal Building.

The Supreme Court held in Holder v Humanitarian Law Project that one can be convicted of a crime for violating 18 U. S. C. §2339B even if one does not intend to support the violent acts of a terrorist organization. The plaintiffs in Holder want to support the lawful, non-violent activities of a couple organizations who are considered terrorist organizations by the government.

The Kurdistan Workers’ Party (also known as the Partiya Karkeran Kurdistan, or PKK) and the Liberation Tigers of Tamil Eelam (LTTE) are on the Secretary of State’s list of foreign terrorist organizations. The plaintiffs filed suit asking that the government be restrained from enforcing the AEDPA against them for supporting the humanitarian and political goals of these organizations. They claimed that the material support provisions as applied to them would violate the First Amendment and the Due Process clause of the Fifth Amendment. The Due Process Clause is violated whenever the law is so vague that one cannot tell what conduct violates the law.

The Court pointed out that the terms of §2339B have been clarified several times to make them less vague. For example “training ” is defined as “instruction or teaching designed to impart a specific skill, as opposed to general knowledge” and “expert advice or assistance” is defined as “advice or assistance derived from scientific, technical or other specialized knowledge.” With the definition in the legislation it is hard to say that the plaintiffs did not know what behavior is illegal.

The second, and more difficult issue raised by the plaintiffs is the question of whether the statute violates their freedom of speech under the First Amendment. As to the First Amendment’s guarantee of freedom of speech the court found that while many of the activities the plaintiffs want to perform such as training members of the PKK on how to use humanitarian and international law to peacefully resolve disputes, and teaching PKK members how to petition various representative bodies such as the United Nations for relief involve speech they also violate the law which forbids “training” and “expert advice or assistance.” The majority opinion by Chief Justice Roberts finds that the extreme danger that terrorist groups present justifies the limited impact upon free speech of the statute. It points out that the statute does not ban independent activities, only those that are coordinated with the alleged terrorist groups. These group have killed many people including Americans. Furthermore, our treaty obligations require that we inhibit the activities of these groups. The skills the plaintiffs want to teach PKK and LTTE can be used not only for good but also to promote terrorist activities. The terrorist organization can use any funds they receive as a result of the plaintiff’s activities are fungible and they may be used to promote terrorism.

The dissent by Justice Breyer stresses the high burden that the government must demonstrate standard before impinging on the right of free speech. It points out it is political speech that it is at issue and that the government’s burden is highest when it wants to prohibit political speech. As the dissent points out, “Not even the “serious and deadly problem” of international terrorism can require automatic forfeiture of First Amendment rights.” Strict scrutiny is needed when the government denies freedom of speech on content grounds. The dissent further states that the government has failed to prove it’s “fungible” claim and the mere fact that speech may lend legitimacy to the organizations is insufficient reason to deny the plaintiff’s claim to freedom of speech.

The dissent suggests that since the statute bans “material” aid that it only bans that aid that promotes terrorism and it suggests remanding the case to determine whether or not the plaintiffs proposed actions aid the organizations to commit terrorist acts. It would hold that the statute is limited to banning support for terrorist actions and not peaceful actions committed by groups on the Secretary of State’s list.

As President Kennedy said: “There is little value in insuring the survival of our nation if our traditions do not survive with it. And there is very grave danger that an announced need for increased security will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment.”

The Supreme Court ruled yesterday that 18 U. S. C. §48 which criminalizes the commercial creation, sale, or possession of certain depictions of animal cruelty, but which does not penalize the actual cruelty a violation of the First Amendment.

The statute defines “depiction of animal cruelty” as

any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured,wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place,regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State;

As such many of the illegal acts are not acts of cruelty. It would include pictures of a veterinarian putting a cat to sleep and pictures in hunting magazines. The statute excludes

any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

But it would still excludes hunting magazines where the purpose of the picture is to entertain. Particularly in Washington DC where hunting is illegal. Pictures of legal cock fights in Puerto Rico would be illegal if sent to any of the fifty states.

The stated purpose of the legislation was to outlaw pictures of crush videos in which people are seen killing animals by stepping on them, often with high heels to give others sexual pleasure. But United States v. Stevens involved dog fighting.

Since the vast majority of pictures that violate the law, including hunting magazines, would not be considered by most people to be cruel the Supreme Court found that the legislation was overbroad and therefore unconstitutional.

Thursday we began a series on the Second Circuit of Court of Appeals decision in United States v. Sattar (Stewart; Yousry). Today we shall continue the series by discussing some of the issues faced by the appellate court.

The prosecution stemmed from Lynne Stewart’s representation of Sheikh Omar
Ahmad Ali Abdel Rahman who was convicted of various terrorist crimes resulting from the investigation of the 1993 bombing of the World Trade Center. He was sentenced to life in prison. While in prison he was subject to Special Administrative Measures (SAM) since he was considered particularly dangerous. The SAMs limited his ability to communicate with the outside world, particularly the press as well as his political and religious followers in Egypt.

Lynne Stewart, Mohammed Yousry, and Ahmed Abdel Sattar were charged in a seven count indictment and convicted on all counts. Specifically, all three defendants were convicted of conspiring to defraud the United States by violating SAMs imposed upon Abdel Rahman, and various related offenses. Sattar was convicted of conspiring with Taha, Abdel Rahman, and others to murder persons in a foreign country, and with soliciting persons to commit crimes of violence — murder and conspiracy to commit murder. Stewart and Yousry were convicted of providing and concealing material support to the conspiracy, and with conspiracy to provide and conceal such support. Stewart was also convicted of making false statements.

The evidence at the trial showed that after Rahman was convicted Stewart and other lawyer on his legal team visited him in prison. Prior to visiting him they would sign a current copy of the SAMs. The SAMS prohibited him from communicating with his supporters in Egypt and with the press. However on several occasions they delivered messages to and from him regarding activities in Egypt. He was the spiritual leader of al-Gama’a al-Islamiyya. During this period al-Gama’a al-Islamiyya was considering ending a cease-fire with its political opponents in Egypt. Ending the cease-fire could result in terrorist acts and death in Egypt and elsewhere.

To find the defendants guilty of conspiring to defraud the government, the jury had to find that they entered into an agreement to obstruct a lawful function of the government (the administration and enforcement of the SAMs) by deceitful or dishonest means and at least one overt act in furtherance of the conspiracy. The appellate court used the fact that Stewart, on several occasions signed copies of the SAMs. She did this in order to get permission to visit Rahman at the Federal penitentiary. According to the court she signed the SAMs with no intention to comply with them and therefore she was acting in a deceitful manner.

In Count Five Stewart and Yousry were charged with providing and concealing material support for the conspiracy involving Sattar charged in Count Two to murder political enemies in Egypt. The Court found that the government provided sufficient evidence that Stewart and Yousry provided support to the conspiracy in the form of personnel. According to the government the conspiracy could not have been successful without the blessings of Rahman. By publicizing his support for ending the cease fire they provided material support for the conspiracy.

Stewart argued that as an attorney she had a duty to zealously represent her client and that this representation including assisting him in communication with the outside world. Her intent was to zealously represent her client, not to aid the Islamist group. But the appellate court found that in the process she violated the law. But presumably the matter will be decided by the Supreme Court.

The defendants also argued that their First, Fourth, Fifth and Sixth Amendments rights were violated. The trial and appellate courts refused to allow the defendants to challenge the constitutionality of the SAMs. The SAMs limit Rahman’s freedom of religion and his freedom of speech. They certainly also limit his ability to communicate with his attorney under the Sixth Amendment. When Stewart visited Rahman in jail a guard was placed outside the door in a way that he could read their lips. On at least one occasion the government secretly videotaped the attorney-client conference.

On Monday we shall conclude this series with an article discussing some of the issues raised by the trial for criminal defense attorneys and their clients.

This is going too far. James Nichols was arrested for going to church.

Nichols is a convicted sex offender. North Carolina has a law that convicted sex offenders cannot come within 300 feet of any place intended primarily for the use, care or supervision of minors. Nichols was arrested on a Sunday afternoon after attending services at the Moncure Baptist Church. The Moncure Baptist Church has a daycare program for children.

Nichols’ arrest has three problems. The first is a factual issue. Can a church be a place intended primarily for the use, care or supervision of minors? I doubt it. The primary purpose of a church is to propagate religion and serve as a place of prayer. Second, it is vague. What is a place intended primarily for the use, care or supervision of minors? Would that include a residence where a family with children live? Would that include a courthouse which has a daycare center for children while their parents are in court? Would it include a public beach? Due process demands that laws be written in a way that people can know when they violate the law. Here there is no way to know what places the sex offender must avoid. Third and most important is that the law criminalizes First Amendment activity. The First Amendment states, in pertinent part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .

The Fourteenth Amendment extended the First Amendment to the states and thus legislatures are prohibited from making any law which prohibits the the free exercise of religion. Nichols is challenging the arrest and the interpretation of the law. I hope he wins.

This is not to say that the church cannot forbid Nichols from joining the church or attending services. The minister or the congregation can ban him, although one of the goals of most churches is to bring sinners to religion. But the government cannot under the First Amendment prevent people from practicing their religion. Why don’t we leave the question to the minister and the congregation. They can determine whether they feel threatened by Nichols’ presence.

The Group of 20, which consists of the finance ministers and central bank directors of 19 of the economically most powerful nations and the European Union, is meeting in Pittsburgh next week. President Obama is hosting the meeting.

Demonstrators from around the world will be present with varying goals including greater support for Third World Nations and opposition to the war. The Pittsburgh City Council passed a temporary ordinance prohibiting the possession of tools and other items, with the intent to to block access to streets, sidewalks, and public buildings or to defeat crowd control orders.

Apparently the ordinance was not needed before the meeting and it terminates on the first of the month after the meeting. It can be assumed that the only purpose of the ordinance to criminalize the exercise of First Amendment rights during the meeting.

Councilman William Peduto was the sole vote against the ordinance. He pointed out that laws prohibiting protesters from blocking access to streets and sidewalks and requiring them to obey dispersal orders already exist and that the ordinance allows officers “to make a judgment call not on an act but on an assumption of an act,” exposing the city to federal lawsuits.

The City has only granted two permits for demonstrations and both of them are located some distance from the summit. The ACLU has filed suit asking the court to order the city to grant more permits and to allow demonstration closer to the site of the summit.

Probably as long as there has been a Fourth Amendment there has been a debate over whether to exclude evidence illegally seized in violation of the Fourth Amendment. The Supreme Court ruled in 1914 in Weeks v. United States that illegally seized evidence should be excluded at trial. But to this day conservatives claim that the evidence should be admissible. After all it may have been seized illegally but its still credible evidence. The problem with this theory is, if you don’t exclude the evidence what is to stop government agents from consistently violating the Fourth Amendment to get evidence against individuals and organizations.

The right responds to this by suggesting that people can sue those who violate their rights in what is called a Bivens suit. But there are two problems with Bivens suits. First, if you are convicted of a crime and sent to prison as a result of illegally seized evidence no amount of money can pay you back for the time lost. Second, even if you are not charged and convicted a Bivens suit as shown in the recent Fourth Circuit Court of Appeals case, Unus v. Kane et al is very difficult to win.

Unus v Kane et al involves a Muslim family living in the Eastern District of Virginia shortly after 9/11. Iqbal Unus, a U.S, citizen worked for the Islamic Institute of Islamic Thought and he had ties to several other Islamic organizations. David Kane, a special agent for ICE, working with Rita Katz, an expert on Islamic affairs wrote a 99 page affidavit as part of Operation Green Quest, which was a Federal effort to investigate domestic support of international terrorism, and presented it to a U. S. magistrate to search a number of places, one of which was the Unus residence to find evidence regarding support for terrorist organizations. The affidavit was based on the moving around of funds which may have gone to terrorist organizations. According to Kane’s affidavit a number of charities headquartered at 555 Grove Street in Herndon, Virginia moved large sums of money around but the government was unable to prove that any of it went to terrorist organizations. The most they could prove is that some of it ended up on the Isle of Man but they could not trace it beyond there. On this evidence the magistrate found probable cause to search twenty places including the Unus residence.

When the agents arrived at his home with the search warrant, Dr. Unus was not home but his wife and daughter were present. When the agents banged on the door his wife was afraid, seeing ununiformed individuals outside her house, at least one of whom had a gun. Thinking it was a home invasion robbery she went to get their daughter who called 911. The agents, seeing the mother run to the back of the house, broke the door down. They entered the house with guns drawn and they handcuffed both the mother and the daughter. They remained handcuffed for nearly four hours during most of the search of the residence. The Unuses are Muslim and they were allowed to say their afternoon prayers. But they were not allowed to do it outside the presence of men nor were they allowed to wear a head cover for the prayers and the agents insisted on taking their picture without the head cover.

Using the Federal Tort Claims Act (FTCA) they sued the agents and the government for assault and false imprisonment as well as on Bivens counts for violation of their First and Fourth amendment rights. Despite the plaintiffs filing several amended complaints the trial court dismissed or granted the agents and the government summary judgment dismissing the complaint.

Despite the fact that on appeal of a grant of summary judgment the appellate court reviews the evidence as it is most favorable to the plaintiffs, the Fourth Circuit Court of Appeals upheld the trial court actions. Under the FTCA the Federal Courts look to the state law to define the various torts. The Court found that the agent’s knocking down the door, the exhibition of the weapon, and the use of the handcuffs in response to the door not being opened by the Unuses. Aysha Unus running to the back of the house and Hanaa Unus being on the telephone was reasonable. Therefore the charges of assault and false imprisonment were without support. After all it was a “terrorism-related warrant.”

The court upheld the dismissal of the Bivens claims since under the FTCA one cannot claim a violation of the FTCA and another law simultaneously. In any case the Court found Agent Kane’s behavior appropriate in the drafting of the affidavit.

Perhaps one could justify the court’s failure to find any support for the claims on the grounds of the mass hysteria that followed 9/11 but here it is eight years later and an appellate court with plenty of time to contemplate the briefs and the argument still finds that the trial court properly granted summary judgment.

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.

The release of nine Department of Justice memos written in the months following the 9/11 attacks, during the Bush presidency, shows the total contempt the government had for the Bill of Rights.

In an October 23, 2001 memo Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty stated that not only could he military be used to arrest terrorists in the United States but that they did not have to comply with Fourth Amendment requirements regarding the use of search warrants. In a September 25, 2002 memo Yoo justified amending the law to allow warrantless searches in the United States to obtain intelligence.

Also in the October 23, 2001 memo Yoo stated that, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” Deputy Assistant Attorney General John Yoo wrote, in another memo: “The current campaign against terrorism may require even broader exercises of federal power domestically.”

A cardinal rule of statutory interpretation is that when the language of the statute (or the Constitutional amendment) is clear the plain language supersedes other interpretations. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It has no exception for terrorists or for al-Qaeda or for the whims of George Bush and John Yoo. As Benjamin Franklin said,

They who would give up an essential liberty for temporary security, deserve neither liberty or security.

As Edward R. Morrow said,

We cannot defend freedom abroad by deserting it at home

As Abraham Lincoln said,

Those who deny freedom to others deserve it not for themselves.

The memos point out the need for Senator Patrick Leahy’s Truth Commission. Such a commission would investigate torture, illegal wiretaps, and other violations of human rights.

For it is clear that if we violate our own rights we cannot cry when others violate rights.