Ahmed Khalfan Ghailani the first Guantanamo detainee to be tried civilly was sentenced to life in prison yesterday after a trial on charges stemming from the bombing of the 1998 U.S. embassies in Tanzania and Kenya that killed 224 people by U. S. District Judge
Lewis Kaplan. A New York jury convicted him of one count of conspiracy to damage or destroy U.S. property and found him not guilty on 284 counts of murder and conspiracy.

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.

Mohamed Osman Mohamud was arrested in a sting operation for Attempted Use of a Weapon of Mass Destruction. Mohamud, a 19 year old United States citizen, born in Somalia, is accused of attempting to detonate a bomb during the Christmas tree lighting in Portland, Oregon’s Pioneer Courthouse Square last Friday.

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.

Ahmed Khalfan Ghailani, the first Guantanamo detainee tried in a civilian court, was convicted of conspiracy to damage or destroy U.S. property but was acquitted of the remaining 281 ¹counts in the indictment related to the bombing of the United States embassies in Tanzania and Kenya in 1998. He was accused of procuring the truck and the gasoline tanks used in the attacks. He has said that he did not know what they were going to be use to attack the embassies. He is facing a minimum of twenty years in prison and a maximum of life without parole at his January sentencing.

The trial showed that the Guantanamo detainees charged with terrorist offenses can receive fair trials in civilian courts in New York. The jury was capable of looking at the evidence and picking which offense Ghailani was guilty of and finding him not guilty of the other offenses. The trial, unlike a military tribunal, met minimum due process requirements. The judge excluded a major witness whose testimony had been coerced by torture. In a military trial the coerced testimony would have been admissible and while not reliable would have been used. It would have raised doubts about the validity of the trial and may have resulted in further terrorist attacks against this country in response to what would have been a questionable conviction. But at the same time the judge made a number of decisions favorable to the prosecution which will probably be tested during an appeal. For example he refused to dismiss the charges even though Ghailani was tortured while in government custody. He ruled that even though the bombings occurred in 1998 and Mr. Ghailani was arrested in 2004 in Pakistan the trial met speedy trial standards.

We must remember that the test of the court system is not whether the defendant is convicted or of how many counts he/she is found guilty of but rather whether a fair trial under the Constitution is received. While the ideal is never reached the court showed that a reasonable trial could be conducted. The trial was the first and more tests will come. Certainly the appellate courts will have their say but the court certainly showed that the civilian court can do at least as good of a job as the military tribunals.

Federal Judge Lewis A. Kaplan barred the testimony of Hussein Abebe in the trial of Ahmed Khalfan Ghailani for the 1998, Al Qaeda sponsored bombing of the U. S. embassies in Dar es Salaam, Tanzania and Nairobi, Kenya.

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.

The Federal government is considering legislation to enhance its ability to wiretap internet messages. Specifically it wants to be able to tap into Blackberry, Skype, and social networking software. Over the past several years these sources of communication have replaced the use of the telephone in many instances. As a result the Federal government’s ability to use wiretapping in criminal investigations has deteriorated. The legislation would require these companies to obtain the technology to be able to comply with wiretap orders. They would be required to be able to intercept and unscramble encrypted messages.

From a constitutional point of view there is probably no objection as long as the government complies with the Fourth Amendment guidelines developed by the courts for the use of wiretapping telephone lines. But there may be pressure to decrease protection of an individual’s privacy rights, particularly in cases of investigations of terrorism. This would lead to legal battles over Fourth Amendment rights.

Some companies will object to the degree of regulation and the cost imposed by the Federal government. This may be particularly true for foreign companies such as Blackberry’s Research in Motion which is based in Canada.

It is expected that the legislation which is not yet in final form would require communications services that encrypt messages to have a way to unscramble them.
Foreign-based providers that do business inside the United States would have to have a domestic office capable of performing intercepts and developers of software that enables peer-to-peer communication would be required to redesign their service to allow interception. This would create a considerable burden for these companies and particularly for new companies trying to get a start in the field. As a result opposition can be expected and there may be changes before the legislation is approved by Congress.

But passage would give law enforcement additional tools to catch law breakers.

The Ninth Circuit en banc upheld the decision to dismiss Mohamed v. Jeppesen Dataplan.

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.

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.