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.

According to the FBI’s web page, the FBI uses the latest age progression technology to facilitate arrests. But this time they goofed big time. Age progression photography is updating the picture of a suspect to attempt to determine what a person looks like in the present, based upon pictures of how the person looked in the past.

Wikipedia defines it as “[a]ge progression is the process of modifying a photograph of a person to represent the effect of aging on their appearance.” The State Department wanted an updated picture of Bin Laden. The most recent picture they had was ten years old. While we might expect the FBI to use the latest age progression technology to update the picture, they did not. Generally it is either done digitally or a specially trained artist does it using pictures of the person. Instead they found a picture on the internet and used it. For some unexplained reason they chose the picture of Spanish Parliament member, Gaspar Llamazares.

Besides the lack of the picture’s scientific legitimacy how would you like to be Llamazares. You are walking down the streets of Madrid, knowing that the US government has a 25 million dollar reward for the arrest of Bin Laden, and someone yells out “There’s Bin Laden. Or better yet you are trying to get through airport security and you try to convine the security guard that you are not the real Bin Laden.

Llamazares says he is afraid to travel to the United States and he is considering legal action against the government.

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 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.

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.

United States District Court Judge Ellen Huvelle granted Mohammed Jawad’s writ of habeas corpus. She ordered the government to release him from Guantanamo and return him to Afghanistan. But she gave the government until August 21 to return him to Afghanistan.

Jawad is the youngest detainee at Guantanamo. It is believed that he was only 12 years old when he was arrested by Afghan police and turned over to the US military.

Under Federal law the president must give Congress 14 days notice before releasing someone from Guantanamo. The judge gave the government until August 6 to give Congress notice.

The government will probably use the next three weeks to develop a case against Jawad and attempt to charge him in Federal Court. But to convict him in Federal Court they have to show that he is guilty beyond a reasonable doubt, a much stricter standard than was necessary in the habeas proceedings and if they were unable to meet the habeas standard it is doubtful that they can meet the beyond reasonable doubt standard. The problem with the government’s evidence against Jawad, who they believe threw a grenade into a vehicle carrying two US soldiers and an Afghan interpreter, is that it was obtained by torturing Jawad and it is therefore inadmissible in Federal courts.

Jawad’s former military prosecutor, Lt. Col. Darrel Vandeveld, has stated that there is ‘no credible evidence or legal basis’ to justify Jawad’s detention and prosecution, and that his release presents no risk.”

As the judge said, “Enough has been imposed on this young man,”