Attorney General Eric Holder announced that the government will continue to prosecute marijuana case regardless of how California votes next month on Proposition 19. Proposition 19 will abolish California laws making possession of marijuana for personal use illegal for adults.

But Holder will have little power over the use of marijuana under Proposition 19. It will legalize personal use and possession of an ounce of marijuana. But the Federal government rarely prosecutes such small cases except in national parks and properties under the control of the Federal government. The proposition allows people to grow marijuana on private property as long as the area used to grow the marijuana does not exceed 25 square feet. But the Federal policy is not to prosecute cases involving under 100 plants which needs more than 25 square feet. The Feds could attempt to prosecute growers and sellers of marijuana. But this will only be legal in towns and counties where the local government passes enabling legislation. The growers and sellers will have to be licensed. In some cases the local government may sell the marijuana. Is Holder going to send the FBI in to arrest the mayor if a city is selling marijuana? What is the DEA going to do if the marijuana is protected by police officers? ¹

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.

Attorney General Eric Holder in a brief filed before the Ninth Circuit Court of Appeal admitted that the government failed to provide significant discovery to two Republican members of the Alaska legislature who were convicted on corruption charges . The cases of former Alaska House Speaker Peter Kott, from Eagle River, Alaska, and former state Rep. Victor Kohring, from Waslla, Alaska, are currently on appeal before the Ninth Circuit. Holder asked the court to release the defendants on their own recognizance and to return the cases to the trial court where it is expected that their attorneys will move to have the cases dismissed on Brady grounds. In Brady v. Maryland the Supreme Court ruled that the failure of the government to provide a defendant with discovery favorable to the defendant violates due process. Kott and Kohring were charged with bribery, extortion and conspiracy for allegedly accepting bribes from VECO, an oil services company in exchange for legislative votes which favored the company. After being convicted Kott was sentenced to six years in prison and Kohring was sentenced to 3 1/2 years.

The admission is particularly embarrassing since it has only been two months since the government was forced to ask U.S. District Judge Emmet G. Sullivan to dismiss corruption charges against Alaska Senator Ted Stevens for similar reasons. The documents that the government failed to provide to the attorneys for Kott and Kohring were discovered in the Stevens trial. It was only after Stevens’ attorney sent the documents to Kott’s attorney that Kott was able to move for discovery in the Ninth Circuit. Holder’s request came while Kott’s motion was pending before the Ninth Circuit.

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.

The government, according to The Daily Five indicted Al Saleh Kahlah al-Marri for allegedly giving material support to Al Qaeda. Al-Marri, a native of Qatar was arrested in the United States and imprisoned on a naval brig for 5 1/2 years. The Bush administration considered him an enemy combatant and refused to try him. His detention and imprisonment without being charged is currently set to be heard by the Supreme Court next month. Perhaps it is to avoid a Supreme Court decision that the Obama administration indicted him in Illinois.

Al-Marri first came to the United States to attend Bradley University in Peoria, Illinois. He graduated in 1991 and returned to Qatar. He came back to the United State on September 10, 2001 with his family to get a graduate degree from Bradley. He was arrested by the government and held as a material witness in the 9/11 attack. He was indicted on credit card charges and for lying to the FBI. In 1993 President Bush declared him a enemy combatant and transferred him to military custody. Since then he has been held in a military brig off the coast of Charleston, South Carolina.

“This indictment is an important step toward restoring the rule of law and is exactly what should happen when the government suspects an individual of terrorist acts,” ACLU lawyer Jonathan Hafetz who represents him. Attorney General Eric Holder is quoted in thge New Yorker as saying: “This indictment is an important step toward restoring the rule of law and is exactly what should happen when the government suspects an individual of terrorist acts,”

In al-Marri’s habeas matter the government is trying to avoid a decision which may apply to other enemy combatant who may be arrested in the future while legally in this country by moving to dismiss the case in the Supreme Court as moot. Al-Merri is the only enemy combatant currently housed in the United States or who was in this county legally at the time of his arrest.