June 2004

Hamdi, Padilla, and Rasul vs. Rumsfeld and Bush, et al: Who Won?

Filed under: Imported

Forget what the media's talking heads have told you about these three Supreme Court decisions that tested the power of George W. Bush. The President won far more than he lost, so administration "officials" who pronounce themselves victors are more on target than the press who tell you that the decisions represent a defeat for the Administration, or rein in its power. Taken together, the decisions are more important for what they did not do.  Their significance for the future, particularly if Bush is reelected, cannot be underestimated.

Rumsfeld v. Padilla

To begin with, the Court dodged the most important case—the case of Jose Padilla. Padilla, recently vilified by a highly-placed Department of Justice attorney, is the American citizen arrested on a material witness warrant in Chicago two years ago. The government's story then was that he was planning to detonate a dirty bomb.  Attorney General John Ashcroft held a press conference and announced the incarceration of Padilla and told us what a dangerous man he was.  Of course, if they had evidence that he was planning to detonate a dirty bomb, they would have charged him with a host of crimes, and tried him. But they never charged him with anything. What does that tell you?  A couple of weeks ago, Ashcroft sent out one of his top deputies to change the story on Padilla. That story may have influenced the Court's decision, though we will never know this. Though the official denied that the press conference—at which he announced that Padilla had "confessed" to plotting to blow up high-rise apartment buildings—may have been held when it was to punctuate the government's belief that Padilla was a very, very dangerous man. So if he is so dangerous, why is he not being charged. Of, you have to love this reason: because the government denied him his rights and repeatedly interrogated him without an attorney (and, maybe even tortured him, for all we know) his confession is no good! Can't be used in court. So since we denied him his rights, we cannot try him, but we can hold him without charging him forever. Because we say he is dangerous.

And what did the Supreme Court have to say about that?  In a 5-4 decision, it said...nothing. It ruled that Padilla's court' appointed attorney, Donna Newman, filed the petition for writ of habeas corpus (challenging the detention of her client without charge, without access to her) in the wrong federal court. She sued Rumsfeld, on whose order Padilla was named an "enemy combatant" in the Southern District of New York, where he was brought and incarcerated and where she was appointed. But after she got into the case, and without notice to her, the government moved him to a brig in South Carolina. So the government argued that the warden of the brig is the party to be sued, not Rumsfeld. As if that warden does not answer to Rumsfeld, at least if she is holding an enemy combatant—so-called. So with Rehnquist writing for the majority, the court threw out his petition. Altogether. Padilla has to start all over again, suing the warden wherever he or she is. Ah, but keep in mind, that once his attorneys file a another petition, the government just has to move him again. And again. And again.  To avoid answering for his detention.

So the most important of the three cases was not decided. In not deciding, the Court fully sanctioned the continued detention of Padilla, without a charge, without a lawyer (Newman is now out of the case, since the suit was dismissed), for years to come.

George Bush 1, Civil Liberties, 0.

Hamdi v. Rumsfeld

On first glance, which is all the nightly news gave you, the Hamdi case looks like a win for lovers of freedom. Even Hamdi's public defender, Frank Dunham, said that they "won big." I disagree. And amazingly to this writer, so did Scalia, who was joined in his dissent by Justice Stevens.  The majority opinion was written by Justice O'Connor, and we all know what that means—a  tortured crafting of facts cobbled to law that tries to give everybody something. A little here, a little there. He is what we got: The Congress gave the President the authority to detain anyone involved with fighting with al Qaeda or the Taliban when it voted for war in Afghanistan. Hamdi was supposedly captured in Afghanistan. As long as the U.S. is fighting in Afghanistan (I guess that will be forever, don't you think?), Hamdi can be held WITHOUT BEING CHARGED WITH A CRIME. But, he gets a lawyer (a lawyer subject so special instructions by Ashcroft and Rumsfeld, an lawyer whose conversation with his client will be monitored and limited as Rumsfeld and Ashcroft see fit) and he can file a petition for writ of habeas corpus, challenging his detention. Ah, but the government gets the benefit of the doubt in such a hearing. It puts forth is conclusory affidavit, like the one cranky Judge Doumar in Richmond did not like one bit, and Hamdi gets to try—just try, if he can—to prove them wrong. Yes, the burden will be on Hamdi to prove the government's allegations against him to be wrong. Now that will be kind of difficult, won't it, since Hamdi has been incarcerated for going on three years, has no contact with anyone in the outside world, and will have a hell of a time coming up with the witnesses to refute the conclusion of the government that he was indeed fighting with the Taliban or al Qaeda against the U.S. Let's see, even if he knew people to subpoena to support an alibi—if he has one—federal marshals don't serve subpoenas in Afghanistan.

Scalia and Stevens joined in the call to either charge him with a crime—Scalia suggested treason—or have Congress suspend the writ of habeas corpus (Scalia contends that only Congress, not the President, can properly do this).  But don't create some mechanism that allows the President to weasel out the result that the majority wanted—that is, to give Hamdi a lawyer, let him file his papers, but give him the burden of proving his "innocence." An insurmountable burden of proof.

George Bush 2, Civil Liberties, 0.

Guantanamo Detainees

On this one, a 6-3 majority ruled that those poor bastards in Guantanamo, those men that have been there for going on three years and, we now presume, subject to all kinds of physical torture and mental and sexual abuse, can file a petition for writ of habeas corpus challenging their detention, but, so what? The court was silent on what trial courts will do with the petitions. Presumably, let them file their papers then promptly toss them out.  This was an expected outcome. No way the Court was going to accept the Administration's "tortured" (pun intended) view of jurisdiction to think that the government that rules over Guantanamo Naval Station does not have jurisdiction over the prisoners that he holds there. That would just be too stupid, even for a court eager to please. It found that the detainor is the key to jurisdiction, not the detainee. So where the detaining party is, is where there is jurisdiction. That would be Rumsfeld. Of course, what court that would be in, what venue, is open to question. Since venue was such a big deal in the Padilla case, I wonder why the court did not toss out Guantanamo cases brought in the District of Columbia? (I have a clue—the Guantanamo cases were far easier to answer, and less an affront to presidential power than is Padilla's case). Rumsfeld's seat of power is in the Pentagon, Arlington, Virginia, so venue ought to be in the Eastern District of Virginia, not the District of Columbia.

I believe the Guantanamo prisoners will meet the same fate of most illegal immigrants who challenge their deportation with a writ of habeas corpus. They get a summary proceeding that sounds more than what it is because of the value attached to the term "habeas corpus." After a cursory reading of the petition, and a brief hearing to satisfy the bare requirements of the law, the gavel slams, and the immigrant is escorted to an airport and sent to whatever country can be found to receive them--after they serve their time for any crimes they can be charged with.

Though nothing was said of this in the opinion, I imagine that the prisoners will be under the same disability as Hamdi—proving their "innocence," just as persons facing deportation. But, you might ask, their innocence of what? They have been charged with no crime, neither has Hamdi. They, too, will have to prove that they were not fighting against the U.S. or preparing to do so. Again, where will they get their alibi witnesses and, if they have any, how can they be subpoenaed into court? You think the government is going to give visas to their witnesses? Or pay their expenses?

Fat chance.

George Bush 3, Civil Liberties, 0.

The Contrarian View

Reading the cases and placing them in the context of the "war on terror" supports a view that is admittedly contrary to what mainstream media are saying. But if you have been listening to them since September 11, you don't know much about what has happened to the legal system in this country, all in the name of preserving liberty. In these three cases, the Supreme Court did not want to totally abrogate its responsibility (except for one Justice, Thomas, who, as a reluctant justice on a court he often expresses contempt for, not surprisingly wants to be left out of any judicial interference with the almighty President) or the Constitution so it threw a vote or two in the direction of the Constitution.

But it left plenty of room for this despotic President, and all who follow him (you think Kerry cares about civil liberties? You think he would not want the same power Bush is wielding?) to incarcerate Americans at whim, concoct a story about "fighting" against American, and dare you, just dare you, to try your luck at proving your innocence.

Oh, about that? Finally, we have the Supreme Court, in the Hamdi case, putting the lie to that myth. There is no presumption of innocence—not if you are Hamdi. There is no mercy—not if the government moves you around so you never know whom to sue. There is a cruel hint at mercy for the Guantanamo Bay prisoners—file your papers, but tell your family to abandon hope. You aren't going anywhere anytime soon.

Game, set, match to George Bush.

Posted by Elaine Cassel at June 29, 2004 5:43 AM

Lynne Stewart Trial Opens

Filed under: Imported

The trial of attorney Lynne Stewart opened in New York yesterday. She is charged with aiding and abetting terrorism by reading to the press in 2000 a message from her cient, Shiek Abdel Rahman (convicted of partcipating in the 1993 World Trade Center bombing) that allegedly supported continued violence against American targets in the Middle East. 

Stewart is also charged with violating conditions of a Department of Justice order relating to visits with her client, whom she continued to represent after his conviction. Stewart is represented by arguably the best constitutional law litigator in the United States, Michael Tigar. The mainstay of his defense of her is that she was doing her job as Rahman's attorney--letting his views be known and trying to gain his release--and that her own comments about her client are protected by the First Amendment.

Here is today's report from Law.com.

Mark Hamblett
New York Law Journal
06-23-2004


Attorney Lynne Stewart and her co-defendants provided a direct line from the imprisoned terrorist Sheikh Omar Abdel Rahman to his followers abroad and knew they were setting the stage for attacks on Americans, a federal prosecutor told a jury Tuesday.

Christopher Morvillo, launching the government's marathon trial against Stewart, Ahmed Abdul Sattar and Mohamed Yousry, said the three knew that "Abdel Rahman's message of terror must get out no matter what."

In passing messages to and from the sheikh at a federal prison in Minnesota, he said, Stewart and their interpreter, Yousry, provided and concealed material support for the government-designated terror organization Islamic Group.

They also defrauded the United States, Morvillo said, by interfering with special restrictions that had been imposed on the sheikh's communications by the U.S. Department of Justice and the Bureau of Prisons.

The trial before Southern District Judge John G. Koeltl is expected to last four to six months.

Spectators in the courtroom packed with Stewart supporters and federal prosecutors heard that a June 14, 2000, press release that Stewart read to the media was actually an important message to the sheikh's followers. It allegedly announced the sheikh's withdrawal of support for a cease-fire, or cessation of terror activities, against the Egyptian government by Islamic Group.

Members of Islamic Group had shocked the world on Nov. 17, 1997, with the murder of dozens of tourists at an archeological site in Luxor, Egypt. The group claimed the attacks were part of a campaign to free the sheikh. Although Stewart contends the attacks were conducted by renegade members of the group, prosecutors maintain the press release was a clear signal for the resumption of Luxor-like attacks.

Stewart's attorney, Michael Tigar, insisted in his opening statement that she released the statement as "a lawyer sworn to advance her client's interest in accordance with the law and only the law" and "it was the right thing to do."

Stewart was trying to persuade the governments of Egypt and the United States to agree to a transfer of the sheikh to Egypt, where he could serve the remainder of his life sentence from his 1995 conviction for seditious conspiracy in waging a war of urban terror in the United States, Tigar explained.

That transfer, Tigar said, would have been impossible if the sheikh was seen as promoting a return to violent action in Egypt. And, in any event, he contended, the press release did not withdraw support for the cease-fire.

However Morvillo, an Assistant U.S. Attorney in the Southern District, said releasing the press release was one of several instances in which Stewart directly violated the prison restrictions imposed on the sheikh, and it broke her own promise to the government to abide by those restrictions.

One of the sheikh's other attorneys, Morvillo said, had already angered Sattar by refusing to pass messages to and from the sheikh, who had no patience for the attorney's insistence that passing messages would violate the Special Administrative Measures (SAMs) imposed by the Justice Department and prison officials.

Sattar, he said, decided to create a conduit to the sheik that would be "a sure thing" -- Stewart.

Speaking forcefully to the jury, Morvillo said "this case is about a jailbreak ... not your typical jailbreak, but one equally dangerous." He tried to convey to the jury that Stewart and Yousry had, in essence, physically provided the "otherwise unavailable" sheikh to Islamic Group.

"Ms. Stewart used her status as a lawyer as a cloak to smuggle messages out of prison," he said.

ISLAMIC GROUP

Her state of mind, he said, was best summed up when Yousry informed both her and the sheikh in a prison visit that the Philippines-based terror group Abu Sayef had kidnapped hostages and were demanding the release of the sheikh -- to which Stewart responded, "Good for them."

The bulk of the evidence in the trial is expected to consist of audio and video tapes of prison visits, intercepted phone conversations between Sattar and a top leader in Islamic Group named Taha, monitored e-mail and fax traffic.

Tigar disputed Morvillo's interpretation of the Abu Sayef exchange. In reality, he said, Stewart said "Good for them" on being informed by Yousry that groups were working for the sheikh's release.

On the tape, Tigar contends, Yousry is heard telling Stewart that Abu Sayef had committed kidnappings, and Stewart is heard responding, "That's so sad. That's so sad."

Tigar told the jury that Stewart, 64, has been "a courageous and honorable lawyer" -- an "active, articulate and constitutionally necessary part of the system" who has been willing to stand up to the government and challenge allegations against her clients.

She undertook the defense of the sheikh at his 1995 trial at the request of former Attorney General Ramsey Clark, who will testify for Stewart, knowing "that she would be under the microscope," Tigar said.

And she continued to represent the sheikh through the post-conviction appeals process, the effort to win his transfer to Egypt and then, finally, to improve his prison conditions.

The government, Tigar alleged, was trying to hold Stewart responsible for the actions of Islamic Group renegades -- because "many people in the Islamic Group wanted to use his [the sheikh's] name for their own purpose."

The Luxor attack, he noted, had been condemned by the Islamic Group's newspaper in Egypt and the dominant wing of the group favored the cease-fire on attacks.

Included among the renegades was Taha, one of the unindicted co-conspirators in the Stewart case. Taha allegedly worked with Sattar to have the cease-fire lifted and issued a fatwah, or religious edict, in 2000 urging followers to "Kill the Jews."

Taha, Tigar said, had fled Egypt and gone to the Sudan and then Afghanistan to work with Osama bin Laden and his organization, al-Qaida.

Tigar warned the jury that "this case has nothing to do with 9/11," but that the government intends to cloud the issue by introducing evidence that bin Laden and Taha campaigned openly together for the sheikh's release from prison.

David Ruhnke, representing Yousry, told the jury that his client is "an innocent man who is being wrongfully prosecuted in this case."

He called the fatwah "ghostwritten" and said Yousry was shocked to learn of its existence because he had been the sole interpreter for the sheikh's prison visits.

Yousry, he said, asked the sheikh about the fatwah, and the sheikh responded, in English, "Mr. Yousry, this is none of your business."

Ruhnke also said that Yousry had cooperated with the FBI after the Sept. 11, 2001, attacks, informing them that he did not believe the attorneys visiting the sheikh were doing anything wrong.

"It was kind of a test, I guess, because at the same time, these conversations were being taped," he said.

The trial is expected to resume this morning with Kenneth Paul delivering the opening statement on behalf of Sattar.

In addition to Morvillo, Assistant U.S. Attorneys Robin Baker, Andrew Dember and Anthony Barkow are prosecuting the case.

Working with Tigar is Jill Shellow-Levine. Paul is joined by Barry Fallick; Ruhnke, by David Stern.

Posted by Elaine Cassel at June 23, 2004 6:15 AM

A Sorry FBI

Filed under: Imported

Following the guilt-by-association model of law enforcement that has become the norm since September 11, I was not surprised to hear that a lawyer in Portland, Oregon, Brandon Mayfield, was falsely alleged to be involved with the terrorist train bombing in Madrid, Spain. Nor was I surprised that papers like The Washington Post and The New York Times reported on Mayfield's detention on a "material witness" warrant (used when the government wants to imprison you, but cannot charge you with a crime because it has no credible evidence) beneath flashy headlines suggesting that, of course, he was a terrorist.

A terrorist because he was a Muslim, married to a Muslim, living in Portland, Oregon where "terrorists" had been prosecuted. A terrorist --and this fact removed all doubt--because he had represented one of those "terrorists" in a custody battle to keep his child.

So, when fingerprints found on a bag at the scene of the crime vaguely had a few points of resemblance to those of Mayfield (found in an FBI database of 44 million prints because he served, honorably, in the Army), the FBI was quick to put the pieces of Mayfield's Muslim connections with the prints and decide that they had their man. Yes sir, here was one of the actual perpetrators of the attack! He even carried a bag of explosives.

Never mind that there was no record of his having been abroad (and you  know that the feds know whenever you and I have boarded a plane to travel overseas--if you don't know that, you have not been paying attention). He must have gone to Madrid under an assumed name, they reasoned. And we know that the FBI cannot unravel anything that complex as identifying people who use aliases (a local detective I work with in my law practice can do that kind of analysis, but not the FBI--they don't have computers, remember?).

The FBI finally backed down and released Mayfield, apologizing to him for the mix-up. The prints belonged to an Algerian man the Spanish identified. He is now under arrest. We are so sorry for the mistake, says the FBI.

Just how sorry the FBI is, however, is set out in a New York Times story appearing on June 5. 

The FBI is sorry that the Spanish were so insistent on getting the right suspect, not just a convenient suspect that fits the FBI profile of terrorist. The FBI is sorry that the Spanish police "outed" them and their sorry tactics. The FBI is sorry that their mistake may call into question their heretofore unassailable assertions that their fingerprint analysis is 100 percent accurate. The FBI is sorry that they ruined an innocent man's life.

The FBI is sorry that you know how sorry they are. 

Think about Brandon Mayfield as you read about FBI Director Robert Mueller's pleas to Congress to allow him to set up a secret domestic surveillance branch of the FBI. To spy on you, ransack your house and office, and maybe, if they are lucky, find your fingerprints at the scene of a "terrorist" strike.

And remember that if the Spanish had not blown the FBI's cover, Mayfield would probably be facing multiple life sentences--or the death penalty--for a crime he did not commit.

Posted by Elaine Cassel at June 5, 2004 9:29 AM

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