Kathy Parker was flying from Philadelphia to North Carolina on business. She was flying out of Philadelphia International Airport. As she was going through the metal detectors a TSA agent selected her carry on baggage for an in depth inspection.

Her personal items were spilled out on the inspection table for everyone to see. (The agent asked if the diet pills work?) Checks, in her purse, made out to her and her husband were inspected. The agent claimed that they were in sequential order and they called over the Philadelphia police since the agent claimed that sequentially numbered checks were evidence of embezzlement. For some reason the agent thought that she had emptied her bank account prior to filing for divorce so the agent called her husband to find out if they were going through a divorce.

My bet is that the agent was trying to get a job as a police officer and she was trying “to crack a big case” to show that she was deserving. Of course she found nothing.

But the issue is not what was found but the change that has occurred in out society. 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.

Of course generally the Fourth Amendment only applies to searches but in this case TSA is working as an agent of the government and is subject to the Fourth Amendment.

Here Parker’s personal belongings were seized and inspected without probable cause, without an affidavit, and without the permission of a judge.

The Fourth Amendment was added to the Constitution in reaction to the British writs of assistance. The writs of assistance were general search warrants issued to assist customs agents find smuggled goods. They were issued without probable cause that evidence of illegal behavior could be found in a specific location. James Otis a Boston lawyer, one of the earlier patriots, developed a reputation by fighting the writs, as did John Hancock a Boston merchant who was the president of the Continental Congress and signed the Declaration of Independence.

The question in the post 9/11 period is how much of the rights fought for in the Revolution are we willing to surrender in order to obtain security. Can we feel safe without searching the diet pills and the personal papers of a 43 year old business woman taking a domestic flight? I’m sure that Otis and Hancock as well as James Madison and who wrote the Bill of Rights based on George Mason’s Virginia Declaration of Rights would have found the risk de minimus and worth taking in order to preserve our fundamental rights.

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.”

There has been considerable talk lately about Congress attempting to widen the public safety exception to the Miranda Rule. Attorney General Eric Holder supported such a move in a interview on Meet the Press last week.

The public safety exception was first enunciated by the Supreme Court in New York v. Quarles. In Quarles a woman approached a police officer and told him that she had been raped at gunpoint. Furthermore, she told him that the rapist was in a particular grocery store. The officer went to the store and together with other officers found the suspect, searched him and handcuffed him. They found an empty holster on him. They asked him where the gun was. He said “over there.” then the officers Mirandized him. The lower courts excluded the statement ‘over there” from the trial saying that it was obtained in violation of Miranda.. But the Supreme Court found that the overwhelming need to protect the public safety and to find the gun before someone else got hurt was an except to the Miranda rule.

Now the administration is considering asking Congress to change the public safety exception to allow questioning of suspected terrorist prior to giving the Miranda warnings. Let’s be clear. No law requires the Miranda warnings to be given. The law only prohibits non-Mirandized statements given while a suspect is in custody in response to police interrogation from being used in court. Police have every right to interrogate a suspected terrorist to obtain information about other terrorists or terrorist acts without giving Miranda warnings as long as the statements and and evidence obtained as a result of getting the statement is not used to convict the alleged terrorist.

Furthermore under the public safety exception, there is little doubt that law enforcement officers, if they find a person with a bomb in Time Square can question the man about the existence of other bombs in Time Square or elsewhere without worrying whether or not the statement will be admissible. The statement would come in under the public safety exception.

Also any attempt by Congress to expand the public safety exception would be subject to Supreme Court review. As Chief Justice Rehnquist wrote for the court in Dickerson v. United States: “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.”

It is not clear how Holder wants to amend the Miranda rule. But constitutional rights are guaranteed to all citizens regardless of what crime they may be charged with. It is unlikely, therefore, that the Supreme Court would agree to an exception the Miranda rule for those charged with terrorist offenses.

President Obama has authorized the capture or killing of Anwar al-Awlaki. Al-Awlaki is an American citizen, born in new Mexico of Yemeni parents. Allegedly he is a recruiter for al-Qaeda.

He may be the first American citizen placed on the targeted killing list. Although I’m not sure what difference it makes whether he is an American citizen or not. We are supposed to be a nation of law. The proper thing to do is to indict him, perhaps on treason charges, and ask the Yemeni government to arrest him and extradite him. This is the legal thing to do.

At this point he is in hiding in Yemen and neither the Yemeni government or the American government know exactly where he is. Though there are all sorts of rumors about his conduct and participation in al-Qaeda, I suspect the government wants to kill him because it does not have enough solid evidence to indict him.

The government will probably justify the killing of al-Awlaki by asserting that international law permits the killing of individuals who pose an imminent threat to a country and also it will point out that we are at war with al-Qaeda. But even if he poses an imminent threat and even if his killing would be permissible under international law it does not mean that we should kill him. We like to think of ourselves as a humane example to the rest of the world–as a nation that believes in the rule of law. Even if it is permissible under international law, it may not be permissible under out Constitution. Both the Sixth and Fourteenth Amendments require due process of law. The Fifth Amendment states in pertinent part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . .

His killing may be justified under the Fifth Amendment as being in time of war. It would appear to me, however, that the Fifth Amendment allows for the killing of members of the military by court marshal without an indictment during war but not of US citizens who are not members of the military. But the sad fact is that the Courts will never get a chance to decide whether the killing is legal or not because he will not be indicted and charged.

An article in the New York Times raises the question as to whether the trial of Khalid Shaikh Mohammed On charges of masterminding the 9/11 attack on the Word Trade Center and on United Flight 93 will be tried in New York or whether the venue will be changed to another city.

The Sixth Amendment guarantees a defendent in a criminal case , among other rights, the right to an” impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” But the right to venue can be waived. In such cases the defendant must make a motion and the court must find that a change of venue is necessary to guarantee a fair trial.

Thus, the first question is whether Khalid Shaikh Mohammed will request a change of venue. Of course this assumes that there will be a trial. Khalid Shaikh Mohammed has stated that he wants to plead guilty. In which there will be no need for a trial or to consider the venue question.

But assuming that he does not plead guilty Khalid Shaikh Mohammed and his attorney will have to decide whether to request a change of venue. The question is not as easy as it might seem. At first glance one would want to get out of New York City as fast as possible. Many New Yorkers had friends and relatives killed on 9/11 and may be quite biased. Picking a jury that will give Mohammed a fair trial may be a near impossible task. But New York is a diverse community known for not imposing the death sentence. Thus if the goal is to save his life his defense team may decide not to move for a change of venue.

But even if the defense decides to consider a change in venue they may find that it is inappropriate. They will be required to hire experts to see if Mohammed is more likely to get a fair trial in each city. The expert will poll individuals in New York City and several other cities to determine the liklihood of getting a fair trial in New York and other chosen cities. In previous terrorist trials polls have have found that it is not the advantage of the alleged terrorist. In the case of Sheik Omar Abdel Rahman the defense planned to request a change of venue but after the polling was done they changed their mind since there did not seem to be a clear advantage to a change of venue. The 9/11 attack is known nationwide and it may be impossible a better jury outside of New York City. While the attack on the World Trade Center occurred in New York it resulted in nationwide consequences and a nationwide stigma against anyone who may have been connected to the attack.

This is the final post in a series on the Second Circuit affirmation of the the conviction of Lynne Stewart, Mohammed Yousry, and Ahmed Abdel Sattar for defrauding the government by violating the SAMs for Sheikh Omar Ahmad Ali Abdel Rahman. We began the series on Thursday with a discussion of the appellate court discussion of the sentencing of Lynne Stewart. On Saturday we looked at other issues that were on appeal. Today we will look at some of policy issues involved.

A lawyer has a duty to zealously represent his/her client. The rule is found in the ABA Rules of Professional Conduct. Clients who are in jail or prison are extremely isolated. Often they are unable to call or writes their friends, family, and colleagues. Part of the lawyer’s job therefore is to facilitate communications with people outside. This may involve everything from finding witness to calling a spouse or significant other with the message that the client loves him or her. The government and the courts believe that this is a special case due to the SAMs placed on Stewart’s client, Sheikh Omar Ahmad Ali Abdel Rahman. The SAMs, (Special Administrative Measures) limited Rahman’s ability to communicate with the outside world while he was in prison. In other words if the government thinks your client is a reprehensible terrorist you are not supposed to give him/her the zealous representation that the Code of Professional Conduct and state law demands.

As Lynne Stewart pointed out on Democracy Now the government violated her client’s Sixth Amendment right by videotaping her confidential attorney client conversation with him and by searching her office for documents related to Rahman. The latter, being of course, also a violation of Stewart’s Fourth Amendment rights. But the Justice Department, under John Ashcroft, would take whatever steps it felt necessary to convict Stewart and to intimidate other attorneys who are providing the zealous defense that the Constitution demands.

Furthermore by convicting Stewart’s interpreter and paralegal the government is sending a clear message to those who work for attorneys representing “dangerous” client that they too may end up in prison. It is one thing to go after the lawyer who has a professional duty to zealously represent their client but to go after the attorney’s staff is another issue. Most criminal defense attorneys feel a professional duty to zealously represent their clients and will do so regardless of the danger of government prosecution but interpreters and paralegals have no such professional duty and can choose not to work with attorneys on difficult cases. Yet without interpreters and paralegals attorneys are unable to give clients the effective representation they deserve.

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 the first in a series of posts on United States v. Sattar (Stewart; Yousry). Lynne Stewart is a well known New York City criminal defense attorney. She represented Sheikh Omar Ahmad Ali Abdel Rahman who was charged with planning the 1993 bombing of the World Trade Center.

Rahman was convicted and sentenced to life in prison. While in prison he was considered a high security risk and was subject to “Special Administrative Measures” (SAMs) to prevent him from communicated with outside terrorist organizations. Stewart, along with Mohammed Yousry, and Abdel Sattar were convicted of violating the SAMs by holding a press conference in which Steward sent a message to the Sheik’s supporters in Egypt.

Tuesday the Second Circuit Court of Appeals ruled on the defendant’s appeal. The Court upheld the convictions and returned the case to the trial court for reconsideration of the sentence which was considered to be unusually mild. The primary opinion is 125 pages. Including concurring opinions the decision is 191 pages. Over the next several days we shall consider the Court’s opinion. Today we will look at the section dealing with Stewart’s sentence.

Congress passed mandatory sentencing guidelines for Federal criminal cases. But the Supreme Court ruled that the sentencing guidelines can only be advisory. Under the current scheme judges must first determine what the sentence would be under the guidelines and then provide a reason for sentencing to a non-guidelines sentence. Therefore the trial judge, John G. Koeltl, determined Stewart’s guidelines. He stopped when he got to the maximum for the offense, thirty years. But he decided to give her an out of guidelines sentence. He sentenced her to 28 months which of course is significantly below the guidelines. He gave a number of reasons. First the terrorist charges required that she be given a criminal history category of VI. But since she had no record he found that the Category VI was unreasonable. Second the trial court found that Stewart was unlikely to repeat her crime since she will lose her membership in the state bar, Third the court found that Steward personal characteristics are exceptional. She has spent her career representing the poor and the downtrodden often as a court appointed attorney. Fourth, the court took into consideration her health. She is a cancer victim and as a result her prison time is likely to be more difficult that for the average person.

The appellate court remanded the case to the trial judge and asked him to consider two factors which he did not consider since they would have put the sentence above the maximum sentence. The government alleges that when Stewart took the stand in her own defense she committed perjury. It also alleges that she abused her membership in the State Bar to violate the law. While these factors may not have been able to increase the guidelines the appellate court thought they should have been considered in determining whether to go outside the guidelines. Presumably after the trial court considers these factors the Second Circuit will reconsider the appeal and the government’s cross appeal.

The Second Circuit ordered the trial court to remand Stewart and revoke her bail on appeal. This seems rather strange in that the appeal will likely return to the Second Circuit and may yet be considered by the Supreme Court. The trial court is generally in a better position to determine whether or not to revoke Stewart’s bail on appeal and the appellate court should not have gotten involved in the issue.

In our next post we shall consider some of the other issues raised by the appeal.