The report, of course, only covers those prosecuted in Federal Court. The vast majority of people prosecuted for crimes in this country are charged in state courts, although the trend seems to be to increase the number and types of cases prosecuted in the Federal Courts. At one point for example most of the murder cases prosecuted in the Federal Courts either occurred on Federal property, in United States possessions or in the District of Columbia. Now there are a fair number of homicide prosecutions in major drug and terrorism cases. There were 135 homicide cases up from 123 the previous year. The number of terrorism cases increased from 34 to 48. Also increasing were the number of racketeering cases. But the number of robbery, assault, kidnapping, and carjacking cased decreased.

Property crimes, fraud cases, and regulatory offenses increased. The number of criminal immigration offenses increased by 8.7 per cent from 25,804 the previous year to 28,046. The vast majority of the immigration prosecutions occur along the Mexican border.

Decreases occurred in embezzlement cases, forgery and counterfeiting, auto thefts, drug offenses, firearms cases, and sex offenses.

Even though the year 2009-2010 saw a change in administration from the fiscal year 2008-2009, with the possibility of a change in priorities, there seems to have been no change in the types of cases prosecuted.

He was the first person convicted of violating the 1996 law banning donations to terrorist groups.

Hammoud, who was tried shortly after the September 11, 2001 attacks on the World Trade Center and the Pentagon was given the maximum sentence of 155 years But, yesterday, the U. S. District Court Judge Graham Mullen reduced the sentence, finding that the original sentence was not in line with later sentences for similar or greater terrorist acts. The original sentence was a result of the post 9/11 hysteria. While terrorist acts continue to be much on the minds of many people the 155 year sentence now seems excessive and even the new 30 year sentence will lead to an appeal.

What I don’t get is why is a donation to an American political party considered free speech by the Supreme Court even when given by a corporation of a labor union and a donation to a Lebanese political party is considered a donation to a terrorist organization with a sentence of up to 155 years.

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Ghailani was accused of buying gas tanks and a truck used in the embassy attacks. He did not actually participate in the attack. He flew to Pakistan the day before the attack. ¹After the bombing he worked as a driver and a bodyguard for Osama Bin Laden.

The life sentence was not unexpected. The judge has said that he thought the government was the victim of a lenient jury. While some have questioned the not guilty verdicts on the 284 murder and conspiracy charges, the truth of the matter is that the jury has spoken. The government did not prove its case on the remaining 284 counts beyond a reasonable doubt. Part of this is due to the suppression of evidence seized as a result of torture and the failure to Mirandize Ghailani prior to interrogating him. But this is the law which protects due process and prevents coerced self incrimination. Unlike those who are upset with the not guilty verdicts because they assumed guilt regardless of the facts, the important thing is that Ghailani got a fair trial.

The problem with the sentence, however, is that it does not take into consideration the fact that he was found not guilty on 284 out of 285 counts. Ghailani would have gotten the same sentence if he had been found guilty on all of the counts. While the judge may think that he is guilty on all counts the jury only convicted on only one and a lesser sentence is appropriate based on the sole conviction of a relatively minor count.

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In December 2009, according to an FBI declaration supporting the arrest warrant for Mohamud, he sent an email to a friend in Pakistan involved in terrorist activities stating that he wanted to join his friend. The FBI intercepted the email and initiated a sting aimed at arresting Mohamud.

Mohamud’s friend gave him the email address for Abdulhadi, an associate that would help him. But Mohamud misunderstood the email address and was unable to contact Abdulhadi. An undercover FBI employee contacted Mohamud claiming to have received information that Mohamud wanted to become involved in terrorist activities. They agreed to meet in Portland, near Mohamud’s home town or Corvallis.

Prior to the meeting Mohamud wanted to travel to Asia but he was unable to travel since he was on the no-fly list. There was no evidence that he planned to explode a bomb in the United States until after he met with the undercover employee.

The undercover employee gave Mohamud five choices of things he could do to help the cause: 1)he could pray, 2)he could study and become a professional, ¹ 3) he could raise money for overseas actions, 4) he could become operational, and 5) he could become a martyr. Mohamud chose to become operational.To become operational meant to participate in terrorist activities. After several conversations Mohamud suggested bombing Pioneer Courthouse Square during the annual Christmas tree lighting.

But Mohamud did not know how to make a bomb or carry out the act. He was introduced to a second FBI undercover employee who would “make” the bomb and direct Mohamud on how to pull off the feat. The undercover employees provided the money, drove the vehicles and provided instructions. In the end they provided an inert device which did nothing when Mohamud tried to explode it. Immediately after he tried he was arrested.

Mohamud will be arraigned today in Portland. The question at trial will be whether the FBI undercover employees entrapped him. To disprove entrapment the government will have to show that Mohamud was predisposed to commit the crime prior to meeting the FBI undercover employees.

It is a close call and neither the declaration in support of the arrest warrant, the press releases, nor the information in the media gives all of the evidence so we will probably have to wait to trial. What we do know is that Mohamud did not consider bombing Pioneer Courthouse Square until after he met the undercover agents but that he chose the the target. We know that prior to meeting the undercover employees he was willing to join the cause in support of Fundamentalism in Central Asia but that he was on the no-fly list and had no way to get to Pakistan. We also know that he voluntarily agreed to the bombing and that he was anxious to participate. But we also know that the government provided the money, vehicles, drivers, know-how, and direction. When he saw the bomb, he said “beautiful,” having no idea that it was inoperable.

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It is rarely a good thing to represent oneself. A defendant who is not a lawyer is held to the same standards as a lawyer in regard to the rules of evidence, admissibility of evidence, and examination of witnesses as a lawyer would be held. Furthermore, it becomes difficult for a jury to distinguish as to whether the defendant is testifying as a defendant or is examining a witness as a lawyer. In fact in every case where I have heard a defendant request permission to represent him/herself the judge has informed the defendant of the old saying that the person who represents him/herself has a fool for a client. While it usually brings a slight laugh from the audience it is a serious matter. The Supreme Court has ruled that a defendant, subject to minimal educational and verbal abilities has a right to represent him/herself. The judge is required to voir dire the defendant to insure that the defendant is familiar, at least to a limited degree, with court procedure and that he/she has at least a minimal amount of education. In the case of Abdulmutallab he has a college education and while he is from Nigeria he is fluent in English and therefore he met the test.

One person who I feel sorry for is Anthony Chambers who has been appointed standby counsel for Abdulmutallab. Standby counsel should be distinguished from advisory counsel. The role of standby counsel is to sit in the audience and be prepared to immediately take over, if at some time during the trial the judge determines that the defendant is unable to defend him/herself. Advisory counsel sits at counsel table with the defendant and answers the defendant’s questions about evidentiary matters or other legal matters that come up during trial.

I have served as standby counsel. I was required to sit through a trial and then towards the end, when the judge though the defendant had made a big enough fool of himself, ordered me to take over the trial in middle of cross examination of a witness. Not fun. The defendant was charged in a number of counts and I managed to get a not guilty for all but one count. After trial one of the jurors came up to me and told me that the defendant would have been found guilty on all counts if I had not taken over the trial. But it is not a role any lawyer wants to be in.

Abdulmutallab requested the court to prohibit Chambers from reviewing the government’s discovery documents provided to the defense. The court rightly denied the motion. If Chambers must be available to take over the defense with five minutes notice, he must be totally familiar with the evidence for and against Abdulmutallab. This can only be done if he has access to law enforcement reports, expert reports and other items that might be in the discovery.

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The CIA discovered Abebe through a statement given by Ghailani while being kept in a “black site” maintained by the CIA to interrogate detainees. Ghailani’s lawyers say that he was tortured into giving up Abebe’s name. While Judge Kaplan has not made a finding on whether or not torture was involved he said it was clear that Ghailani was coerced into giving up the name. United States courts have long held that evidence received by torture or coercion is inadmissible as evidence. Not only is evidence received as coerced testimony inadmissible but the fruits of such evidence is inadmissible. In other words prosecutors cannot use evidence directly related to coercion or torture. Evidence indirectly received may be admissible. For example if they received evidence of Adebe involvement from two sources, one coerced and the other not it might be admissible. But the only source in this case is the coerced testimony of Ghailani. Thus since Ghailani gave up the name of Abebe as a result of coercion, Abebe’s testimony is a fruit of the illegal interrogation and is inadmissible.

Not only is coerced testimony unreliable but the government should not be rewarded for the use of coercion or torture.

Abebe allegedly gave the dynamite to Ghailani, used in the bombing and his testimony is considered crucial to the government’s case.There is some fear that if the government is unable to convict Ghailani they will no longer use civilian trials to try those like Ghailani who are charged with terrorist crimes and housed at Guantanamo.

But Judge Kaplan said:

“But the Constitution is the rock upon which our nation rests. . . .We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.”

However, he also said that even if Ghailani is found innocent he may be detained for the rest of his life as an enemy combatant. But the New York Times cites Ben Wizner, a senior lawyer with the American Civil Liberties Union, as saying that the conventional wisdom about the Ghailani case was that the justice system works if he is convicted and fails if he is acquitted.

“But that’s not how we measure the effectiveness of a criminal justice system,” Mr. Wizner said. “The question is whether the government can present its case and whether the defendant can get a fair trial.”

In fact the government may get a better win if Ghailani is found not guilty and released. This would show the world, and particularly the Muslim world, that this is a country of laws and that we only punish the guilty.

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In Jeppesen, Binyam Mohamed and four other plaintiffs sued Jeppesen, a CIA contractor for their seizure in foreign countries and transportation to other countries where they were tortured and interrogated as part of the government’s extraordinary rendition program. In this manner the government avoided the protections provided defendants and detainees accused of terrorist related crimes.

After the plaintiffs filed their complaint the government received permission to intervene in the matter and moved to dismiss the case on the grounds that the charges involved matters of national security and state secrets.

The decision points out that there are two ways to dismiss a case where state secrets may be disclosed at trial. One involves where the subject matter of a suit is a state secret. This is called a Toten Bar after the 1876 case in which spies for the government sued to enforce a secret agreement to pay them for their work against the Confederacy in the Civil War. While all of the plaintiff’s claims in Mohamed involve government secrets Toten has never been invoked in cases not involving the government as a party. While some of the Circuit judges wanted to base the decision on Toten the majority instead based the decision on United States v. Reynolds, 345 U.S. 1, 11 (1953)

Reynolds created a rule of evidentiary exclusion. It permits the exclusion of evidence involving national secrets. But in rare cases where there is insufficient admissible evidence without using state secrets for the plaintiff to make a prima facie case or to allow the defendants to put forth defenses it allows for the dismissal of a case. Basing its decision on Reynolds the Ninth Circuit ruled that without the use of sate secrets there is insufficient evidence for Jeppesen to defend itself.

The problem with this, as the dissent points out, is that since Jeppesen has not answered the complaint yet we do not know what evidence they will need to defend themselves. According to the five dissenting judges the government’s motion was untimely and it should only be considered when and if Jeppesen requests discovery of documents or the deposition of individuals which would reveal state secrets. But the majority say the motion can be brought at any time and it is clear that the case cannot be defended without exposing state secrets which would affect the nation’s security.

As all of the judges admit dismissing a case and denying the plaintiffs justice and compensation for what appears to be serious injuries is an extreme measure and should not be taken lightly. The majority expresses a number of alternatives most of which require Congress to award compensation to the plaintiffs for their injuries. The dissent points that this is an abrogation of judicial responsibilities. It is hard to see how Congressional action would be more protective of national secrets than judicial action.

I would suggest that in exchange for the courts hearing the matter that the plaintiffs be asked to waive a jury trial and a public hearing. The trial could be conducted by declarations filed under seal. In other cases attorneys have been required to get security clearances and the Courts have limited which legal personnel can review secret documents. For example this has been done with national security documents used in the Guantanamo habeas proceedings. At least 28 judges on the Ninth Circuit have already seen the secret documents and no harm has been accomplished. The trial court can fashion procedures maintaining the secrecy of state secrets. In this way the plaintiffs can be compensated for their injuries and the state secrets can be maintained.

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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.

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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.”

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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.

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