CrimProf Blog

New FISA Provides Greater Protections for Americans

From NPR.com:   A standoff in the Senate over expanding the government's eavesdropping powers has finally come to a conclusion. Sens. John McCain and Barack Obama left the campaign trail to join in a series of votes to amend the wiretapping bill backed by the White House. The Senate then passed the legislation 68-29.

The Senate's version of the Foreign Intelligence Surveillance Act provides greater protections for Americans targeted for surveillance. It also gives legal immunity to phone companies that cooperated in President Bush's warrantless wiretapping program.

The bill must be reconciled with the House bill, which contains no immunity. Listen. . . [Mark Godsey]

New FISA Provides Greater Protections for Americans

From NPR.com:   A standoff in the Senate over expanding the government's eavesdropping powers has finally come to a conclusion. Sens. John McCain and Barack Obama left the campaign trail to join in a series of votes to amend the wiretapping bill backed by the White House. The Senate then passed the legislation 68-29.

The Senate's version of the Foreign Intelligence Surveillance Act provides greater protections for Americans targeted for surveillance. It also gives legal immunity to phone companies that cooperated in President Bush's warrantless wiretapping program.

The bill must be reconciled with the House bill, which contains no immunity. Listen. . . [Mark Godsey]

NY Gov. Spitzer Flips in Plan and Now Supports the Scarlet Letter for Illegal Immigrants

From NYTImes.com:Gov. Eliot Spitzer’s retreat from his plan to permit illegal immigrants to obtain the same kind of driver’s licenses as other New Yorkers drew angry reactions yesterday from civil liberties advocates and immigrant groups, some of whom described the shift as a stunning betrayal.

The governor has been under fierce assault from conservative groups and others since proposing last month to allow illegal immigrants to get New York driver’s licenses. But joined by the federal secretary of homeland security, Micheal Chertoff, in Washington yesterday, the governor announced a starkly different version of his plan.

It calls for separate tiers of licenses. New Yorkers who could provide stringent proof of legal residency could get the new federally recognized license known as Real ID. The licenses available to illegal residents would not serve as federal identification.

“What a huge political flip,” said Chung-Wha Hong, executive director of the New York Immigration Coalition. 

“He’s now embracing and letting his good name be used to promote something that has been widely known in the immigrant community as one of the most anti-immigrant pieces of legislation to come out of Congress,” Ms. Hong said. Rest of Article. . . [Mark Godsey]

Military Prosecutor Shares Moral Dilemma With Law Students

Marine Lt. Col. Stuart Couch, who refused to prosecute a high-profile terrorism case because he believed the defendant's interrogation included torture, visited with Elon University School of Law students.

Couch served as a prosecutor on military commissions formed in the wake of the Sept. 11 terrorist attacks. Assigned to prosecute a top al Qaeda operative, Mohamedou Ould Slahi, Couch soon had misgivings about the case.

"It became obvious to me that he was being tortured," said Couch, who began to look into the methods being used to interrogate Slahi. That revelation, combined with his religious faith and belief in "the human dignity of every person," prompted Couch to make a decision that threatened to jeopardize this career. "I just decided that I couldn't go into court, face a jury with a straight face and prosecute the case."

The case didn't end Couch's career, and he has been featured in numerous media reports, including a Wall Street Journal story on his courageous decision. He serves as a judge on the Navy-Marine Corps Court of Criminal Appeals, and will receive the Minister of Justice award from the American Bar Association Nov. 2, the first military prosecutor to receive the honor. [Mark Godsey]

               

New Wiretapping Bill May Require the Justice Dept to Reveal Surveillance

From USATODAY.com: The Justice Department would have to reveal to Congress the details of all electronic surveillance conducted without court orders since Sept. 11, 2001, including the so-called Terrorist Surveillance Program, if a new Democratic wiretapping bill is approved.

The draft bill, scheduled to be introduced to Congress Tuesday, would also require the Justice Department to maintain a database of all Americans subjected to government eavesdropping without a court order, including whether their names have been revealed to other government agencies.

The Bush administration has refused to share that information with Congress so far.

The Terrorist Surveillance Program was a secret eavesdropping program undertaken after the Sept. 11 terrorist attacks without the approval of an intelligence court created 30 years ago to monitor such programs.

The Democratic legislation is certain to draw sharp objections and possibly a veto threat because it lacks at least one feature the White House demands: it does not grant retroactive legal immunity to telecommunications companies that cooperated with government surveillance between 2001 and 2007 without the court orders. Around 40 lawsuits name telecommunications companies for alleged violations of wiretapping laws, according to administration officials. Rest of Article. . . [Mark Godsey]

Man's Story May be a Snapshot of War on Terror

From guardian.com: A man is walking alone along a mountain path in the darkness. He is carrying a suitcase. He seems frightened, tired and confused. He has long hair and a long beard, but they are untidy, as if he did not grow them voluntarily. He turns a bend and meets three men carrying Kalashnikovs.

The man shows them his passport. It indicates that he is a German citizen, born in Lebanon, called Khaled el-Masri. Using poor English, he tells them that he does not know where he is. They tell him that he is on the Albanian border, close to Serbia and Macedonia, and that he is there illegally since he doesn't have an Albanian stamp in his passport.

The story that el-Masri tells them by way of explanation, on this evening in late May 2004, is extraordinary: a story of how an unemployed German car salesman from the town of Ulm went on a New Year's holiday to Macedonia, was seized by Macedonian police at the border, held incommunicado for weeks without charge, then beaten, stripped, shackled and blindfolded and flown to a jail in Afghanistan, run by Afghans but controlled by Americans. Five months after first being seized, he says, still with no explanation or charge, he was flown back to Europe and dumped in an unknown country which turned out to be Albania.

What really happened? With no way to prove his story, el-Masri's account remains in the balance, a terrifying snapshot of America's "war on terror". It is certain that he returned home to Ulm from Albania in May 2004, and that he was taken off a bus from Germany at the Macedonian border on New Year's Eve 2003. The only person who has offered a clear explanation for what happened in the five months in between is el-Masri himself. Yet that may change.

The German authorities are now taking his allegations very seriously. They are subjecting a sample from el-Masri's hair to radioisotope analysis, which can reveal, down to a particular country, the source of a person's food and drink over a period of time. Discussions are also under way about bringing to Germany two men whom el-Masri has identified as being with him in the Afghan prison, and who were also subsequently released. The fact that the German authorities do regard Ulm as an area of potentially dangerous radical Islamic activity - a number of premises were raided and alleged Islamic activists were arrested on Wednesday - only emphasises the concern that Germany has over the el-Masri case.

So far the US authorities have neither confirmed nor denied el-Masri's story, although German investigators first requested information about the case in autumn. The FBI office in the US embassy in Berlin did not return calls yesterday. Rest of Article. . . [Mark Godsey]

President Bush Once Again Discusses Interrogation Tactic

From latimes.com: President Bush on Friday defended the CIA's harsh interrogation of terrorism suspects, saying its methods do not constitute torture and are necessary to protect America from attack.

But Bush's declaration that the United States "does not torture people" did little to dampen the fallout from fresh evidence that his administration has used secret legal memos to sanction tactics that stretch, if not circumvent, the law.

The president's comments came amid disclosures this week of classified opinions issued by the Justice Department in 2005 that endorsed the legality of an array of interrogation tactics, ranging from sleep deprivation to simulated drowning.

Bush's decision to comment again on what once was among the most highly classified U.S. intelligence programs underscores the political peril surrounding the issue for the White House, which has had to retreat from earlier, aggressive assertions of executive power.

White House Secrecy on Wiretaps Described

From washingtonpost.com: No more than four Justice Department officials had access to details of the Bush administration's warrantless surveillance program when the department deemed portions of it illegal, following a pattern of poor consultation that helped create a "legal mess," a former Justice official told Congress yesterday.

Jack L. Goldsmith, former head of the Justice Department's Office of Legal Counsel, told the Senate Judiciary Committee that the White House so tightly restricted access to the National Security Agency's program that even the attorney general and the NSA's general counsel were partly in the dark.

Rest of Article. . . . [Mark Godsey]

Senate May Vote to Restore Habeas Right to Non-Citizen Enemy Combatant

From npr.org: Congress revoked the right to habeas corpus for non-citizen enemy combatants last year. If reinstated, it would affect the detainees at Guantanamo Bay, some of whom have been held without charge for up to five years. Dahlia Lithwick, legal analyst with the online magazine Slate talks to Madeleine Brand about the Senate's possible vote to restore the detainees' right. Listen. . .

[Mark Godsey]

LAPD Gets $3 Million to "Fight Terrorism"

From latimes.com: As part of an anti-terrorism effort, the Los Angeles Police Department is now equipping a helicopter and officers on the ground with devices capable of detecting potential radiological weapons or materials used in so-called dirty bombs.

Police Chief William J. Bratton said a new suitcase-sized device for one of the LAPD's helicopters can detect "radiation signatures" from up to 800 feet above ground. In addition, the LAPD bought six hand-held units that officers on the ground can use.

"Terrorism is all about getting them before they get us," the chief said.

The devices are among several items the city acquired with $3 million in Homeland Security funds that will enable the LAPD to better respond to a terrorist attack or natural disaster, Bratton said.

Rest of Article. . . [Mark Godsey]

Federal Judge Strikes Calls Portion of Patriot Act Unconstitutional

From washingtonpost.com: A federal judge struck down controversial portions of the USA Patriot Act in a ruling that declared them unconstitutional yesterday, ordering the FBI to stop its wide use of a warrantless tactic for obtaining e-mail and telephone data from private companies for counterterrorism investigations.

The ruling by U.S. District Judge Victor Marrero in New York said the FBI's use of secret "national security letters" to demand such data violates the First Amendment and constitutional provisions on the separation of powers, because the FBI can impose indefinite gag orders on the companies and the courts have little opportunity to review the letters. Rest of Article. . . [Mark Godsey]

Largest Criminal Case From Iraqi War

From NPR.org: The leader of a Marine squad charged with killing 24 Iraqi civilians in the town of Haditha faces a military hearing at Camp Pendleton, Calif.

Sgt. Frank Wuterich is charged with 18 counts of unpremeditated murder in what's been called the largest criminal case to emerge from the war in Iraq. Listen. . . [Mark Godsey]

Abu Ghraib Officer's Sentence: Formal Reprimand

From NYTImes.com:  Military jury announced that an Army officer who was convicted of a lesser charge and acquitted of all others Tuesday in the Abu Ghraib prison scandal would receive a formal reprimand as his sentence.

The officer, Lt. Col. Steven L. Jordan, was acquitted of charges that he failed to properly train and supervise enlisted soldiers involved in detainee interrogations in 2003 at Abu Ghraib prison in Iraq, where prisoners were subjected to brutal treatment. He was found guilty of only one lesser offense, that of disobeying an order to refrain from discussing the case. The maximum punishment for that offense was five years in prison.

Colonel Jordan, 51, was the only officer to stand trial on charges related to the detainee-abuse scandal at Abu Ghraib, which led to prolonged investigations and charges against several soldiers. He was tried at Fort Meade, Md., by a jury of nine Army colonels and a brigadier general.

Colonel Jordan’s acquittal on most charges means that no officers have been found criminally responsible for the abuses at the prison. Col. Thomas M. Pappas, the military intelligence officer who ran Abu Ghraib, was punished administratively by senior Army commanders for improperly allowing military dogs to be used during interrogations to frighten detainees. Janis L. Karpinski, the brigadier general who was the military police commander at Abu Ghraib, was reprimanded and demoted.

Rest of Article. . . [Mark Godsey]

US Court of Miitary Commission Appeals Hears First Case

From NPR.com: The new U.S. Court of Military Commission Appeals has heard arguments in its first case. Guantanamo detainee Omar Khadr was captured in Afghanistan in 2002 for allegedly killing a U.S. soldier. A semantic dispute over the term "unlawful" is at the heart of the debate.

Listen. . . [Mark Godsey]

Military Judge Dismisses Serious Charges Against Abu Ghraib Officer

From newsday.com: A military judge on Monday dismissed two of the most serious charges against the only officer charged with abusing detainees at Iraq's Abu Ghraib prison after an investigator acknowledged he failed to read the defendant his rights.

Army Lt. Col. Steven L. Jordan is the last of 12 Abu Ghraib defendants to be court-martialed. He still faces four counts, including cruelty and maltreatment of detainees.

His trial was set to begin Monday afternoon. Rest of Article. . . [Mark Godsey]

Army Major Suspected of Taking Bribes

From NPR.com: An Army major is in jail, awaiting a hearing Wednesday in San Antonio on charges that he accepted up to $10 million in bribes from Defense Department contractors seeking to do business in Iraq and Kuwait. Maj. John Cockerham and his wife, Melissa, face up to 40 years in prison.

Listen. . . [Mark Godsey]

Federal Judge Rules that Enemy Combatatns Have A Right to Seek Freedom

From latimes.com: A federal judge in Washington on Wednesday upheld the right of a Yemeni man held as an enemy combatant at a U.S. military prison in Afghanistan to seek his freedom.

The ruling is the first issued in a case filed on behalf of a foreign detainee held by the U.S. outside the country or the Guantanamo Bay Naval Station. It comes less than a month after the Supreme Court said it would again consider the rights of detainees at Guantanamo in the fall.

U.S. District Judge John D. Bates cited the high court's June action as a key reason for his decision.

Wednesday's ruling stems from a case filed in September on behalf of Fadi Al Maqaleh, who is being held at the military prison in Bagram, Afghanistan. The International Justice Network, a legal advocacy group, filed a habeas corpus petition seeking Maqaleh's release, alleging that he had been illegally taken into custody by the U.S. and held without charges for more than five years.

Bates, appointed to the court by President Bush, said it was possible that when the Supreme Court considered the rights of detainees in the fall, it "could issue a broader decision in favor of the detainees, one whose reasoning applies not just to Guantanamo, but to Bagram and other locations as well."

He also acknowledged that the high court could go the other way. Whatever the justices decide, the ruling is likely to affect the outcome of Maqaleh's case and thus it should not be dismissed before the Supreme Court weighs in, Bates said.

Attorney Tina M. Foster said she filed the case after meeting Maqaleh's father, Ahmad Al Maqaleh, while she was in Yemen doing research for detainees at Guantanamo. "A lot of families came to me saying there were worse problems at Bagram than at Guantanamo," Foster said, referring to the military base about 40 miles north of Kabul where about 650 detainees are being held.

She said Maqaleh's family told her that they had not seen their son in nearly five years and that they only learned that he was being held at Bagram when they got a letter from him, via the International Committee of the Red Cross, "in or about 2003."

Foster said she believed that Maqaleh, who is now about 25, had never been part of forces hostile to the United States.

She asked Judge Bates to issue a writ of habeas corpus compelling the government to either release Maqaleh or establish in court a legal basis for detaining him.

"Both military personnel and former detainees have described the prison conditions at Bagram to be far worse than those at Guantanamo," Foster said. Among other sources, she quoted a Defense Department official who had toured the facility and a report by Human Rights Watch, which said "the detention system in Afghanistan, unlike the system in Iraq, is not operated even nominally in compliance with the Geneva conventions."Rest of Article. . . [Mark Godsey]

Many Detainees were Prohibited from Making One Phone Call

From NYTimes.com: The number of immigrants detained by the United States has grown from 90,000 to 283,000 over the past five years, and many were improperly barred from making even a single phone call to a lawyer, congressional investigators reported this week.

Detainees' calls were completed 35 to 74 percent of the time each month between November 2005 and November 2006, according to the Government Accountability Office, Congress's audit arm.

The United States uses a criminal-detention model to hold immigrants, although most are charged with administrative violations of immigration laws. The detainees are not guaranteed the protections routinely provided to U.S. citizens or criminal defendants, including access to public defenders. As a result, federal authorities have agreed to 38 nonbinding detention guidelines with the American Bar Association as a form of due process, including providing telephone access to legal counsel.

"Without sufficient internal control policies and procedures in place, ICE is unable to offer assurance that detainees can access legal services, file external grievances and obtain assistance from their consulates," the July 6 GAO report said, referring to the Immigration and Customs Enforcement agency.

Rest of Article. . . [Mark Godsey]

Federal Court Questioning the Need for Secrecy Concerning Presidential Briefings

From nysun.com: A federal appeals court is expressing skepticism about the CIA's claim that its technique for briefing presidents is so sensitive that it must be protected from public scrutiny, even 40 years after the fact.

Two judges considering a lawsuit seeking access to so-called Presidential Daily Briefs provided to President Johnson during the Vietnam War era cast doubt yesterday on the spy agency's assertion that the way it updates the nation's chief executive is itself an intelligence method entitled to blanket secrecy under the law.

"It just doesn't compute to me," Judge Pamela Ann Rymer of the 9th Circuit Court of Appeals said as a three-judge panel heard oral arguments on the case.

"It's not as if PDBs have never been made public or they haven't been talked about," Judge Raymond Fisher said. He noted that some have been officially released and that a book, "Bush at War" by Bob Woodward, quotes from a CIA brief prepared on the day after the terrorist attacks of September 11, 2001.

A Justice Department attorney, Mark Stern, told the court that disclosing the amount of detail provided to presidents and "what sort of things they care about" could undermine national security. "This is the crystallization of intelligence," he said. Rest of Article. . . [Mark Godsey]

Meet the Real Life Q

From USATODAY.com: The nameplate on his office door just says "Q."

His dreary, windowless workspace is no different from thousands of others here in the nation's capital.

But Rolf Dietrich is not your typical government bureaucrat.

He's the Homeland Security Department's gadget man, an MIT-trained engineer and onetime nuclear attack submarine commander who spends his days trying to come up with futuristic equipment that could be used to thwart terrorists for generations to come.

Unlike the clever James Bond movie character Q, who seemed to serve only 007, Dietrich serves tens of thousands of airport screeners, Border Patrol agents, Customs and Coast Guard officers and others tasked with preventing and responding to future attacks.

Most probably don't know Dietrich exists. Like the fictional Q, he works on some of the government's most cutting-edge safety and security projects — projects that could help the 180,000 men and women who work at Homeland Security. Rest of Article. . . [Mark Godsey]

Brutal Interrogation Tactics Critcized By Experts

From NYTimes.com: As the Bush administration completes secret new rules governing interrogations, a group of experts advising the intelligence agencies are arguing that the harsh techniques used since the 2001 terrorist attacks are outmoded, amateurish and unreliable.

The psychologists and other specialists, commissioned by the Intelligence Science Board, make the case that more than five years after the Sept. 11 attacks, the Bush administration has yet to create an elite corps of interrogators trained to glean secrets from terrorism

Some of the study participants argue that interrogation should be restructured using lessons from many fields, including the tricks of veteran homicide detectives, the persuasive techniques of sophisticated marketing and models from American history. Rest of Article. . . [Mark Godsey]

Guantanamo Confessions Scrutinized under the World's Microscope

Just how significant were the recent Guantanamo confessions?  Jonathan Hafetz, an attorney with NYU Law's Brennan Center for Justice, who represents Guantanamo prisoners calls the confessions the result of "justice on the fly" while Berkeley LawProf John Yoo views the confessions as the result of a balance between protecting national security/gathering wartime intelligence and administering a fair trial with due process protections. Full story. . . [Michele Berry] 

Kangaroo Skinner at Guantanamo

From NPR:  All Things Considered, March 26, 2007 · Leigh Sales, Australian Broadcasting Corporation's national security correspondent and author of the book The Worst of the Worst: The Case of David Hicks. Sales talks about how a kangaroo-skinner found himself at Guantanamo Bay, on trial for providing material support for terrorism.  Listen here.

The CIA and Psychological Torture at SIU

CARBONDALE, Ill. — An historian who specializes in CIA covert operations, the global drug trade, colonial empires in Southeast Asia and the modern-day Philippines will visit Southern Illinois University Carbondale to talk about how the CIA developed and has used psychological torture.

Alfred W. McCoy, J.R.W. Smail Professor of History at the University of Wisconsin-Madison, will begin his free, public lecture at 7 p.m. Tuesday, April 3, in the auditorium of SIUC's Hiram Lesar Law Building. A reception will follow.

McCoy's talk draws on material from his most recent book, "A Question of Torture: CIA Interrogation, From the Cold War to the War on Terror," published last year by Metropolitan Books.

He will be available from 4:30 to 6 p.m. the day of the lecture at Rosetta Stone Bookstore in the Campus Shopping Center, 214 W. Freeman St., to sign copies of that book.

The CIA tried to block publication of McCoy's first book, "The Politics of Heroin in Southeast Asia," which explored links between opium and "The Company." Translated into nine foreign languages and now in its third edition, it has become a standard in studies of worldwide drug trafficking.

A later work, "Closer Than Brothers," published in 1999, focused on CIA torture training within the Philippine military, a book which led directly to his exploration of what 50 years of spreading and practicing psychological torture have done to America. McCoy maintains that so-called "no-touch" torture harms not just the victims but the perpetrators, too.

In an article for the political newsletter "Counterpunch," McCoy notes that Congressional hearings on the CIA's use of torture took place four times between 1970 and 1988, with no noticeable results. He hopes the photographs from Abu Ghraib and the widespread revulsion they engendered will at last force a change.

"Through these photographs from Abu Ghraib, we can see the reality of these interrogation techniques," he writes. We have a chance to join fully with the international community in repudiating a practice that, more than any other, represents a denial of democracy."

Sponsors of McCoy's lecture include the SIUC departments of anthropology, cinema and photography, history, psychology, sociology and women's studies, the University's Global Media Research Center and School of Law, the Peace Coalition of Southern Illinois, the Shawnee Green Party, the Unitarian Fellowship program committee and the Carbondale Friends Meeting.

Chiquita Pleads Guilty to Paying Terrorists

From NPR.com: Chiquita Brands International pleads guilty to making protection payments to a terrorism group in Colombia.

As The Los Angeles Times reporter Josh Meyer tells Robert Siegel, the money went to the United Self-Defense Forces of Colombia, which the U.S. government classified as a terrorist group in 2001.

Lawyers at Chiquita had warned the company about making the payments, which flowed through its Banadex subsidiary. The group had threatened Chiquita's workers in the region.

Chiquita sold Bananex in June 2004, but it continues to purchase Colombian bananas through the company today. Listen. . . [Mark Godsey]

Padilla May Be Incompetent to Stand Trial

From NPR.com: A federal judge in Miami is holding a hearing to determine if Jose Padilla is competent to stand trial. Padilla is a U.S. citizen arrested nearly 5 years ago and accused of being an Al Qaeda operative.

His attorneys say that Padilla, who was held in almost total isolation in a Navy brig, suffers from post-traumatic stress disorder.

They say that as a result, Padilla is incompetent to participate in his own defense. The government says he is competent. Listen. . . [Mark Godsey]

Federal Defender Publishes YouTube Video to Aide Guantanamo Detainee

William Teesdale, an attorney with the Federal Public Defender's Office in Portland, Oregon has been seeking the release of a Guantanamo Bay detainee and has turned to YouTube to get the message out about his client. Here's the description of Teesdale's Guantanamo Unclassified video, from Legal Pad:

Teesdale has released a short documentary video in which, on a beach in Guantanamo bay, he explains that hospital worker and teacher Adel Hamad has been held for years in detention and denied release even after a member of the military tribunal reviewing his case called his incarceration “unconscionable.” The video includes interviews with Hamad’s coworkers from Afghanistan, where he’d worked for a hospital supported by a charity that the CIA seems to think might have counter-American ideals. Watch the video here. . . [Michele Berry]

Consolidating Screening Programs Lead to Privacy Problems

From NPR.com: The Department of Homeland Security is trying to coordinate all the identification and screening programs it runs. Business interests want them consolidated so they don't have to go through so multiple bureaucracies just to cross the border.

But privacy rights groups worry that the more consolidated these programs and databases are, the more threatening they are to individual rights. Listen. . . [Mark Godsey]

Justice Dept Will Inspect Warrantless Surveillance Program

From WashingtonPost.com: The Justice Department's inspector general yesterday announced an investigation into the department's connections to the government's controversial warrantless surveillance program, but officials said the probe will not examine whether the National Security Agency is violating the Constitution or federal statutes.

In a letter to House lawmakers, Inspector General Glenn A. Fine said his office decided to open the probe after conducting "initial inquiries" into the program. Under the initiative, the NSA monitors phone calls and e-mails between people in the United States and others overseas without court oversight if one of the targets is suspected of ties to terrorism.

The "program review" will examine how the Justice Department has used information obtained from the NSA program, as well as whether Justice lawyers complied with the "legal requirements" that govern it, according to Fine's letter. Officials said the review will not examine whether the program itself is legal. Rest of Article. . . [Mark Godsey]

Convicted Smuggler Finally Proves Connection to CIA

From NPR.com: Edwin Wilson always insisted the CIA framed him. In the 1980s he was convicted of smuggling explosives and weapons to Libya. Wilson always maintained that he was doing it at the behest of the CIA. Officials denied it. After two decades in federal prison Wilson finally managed to obtain a document that proved he had been working for the government. Listen. . . [Mark Godsey]

"What Would Warren Do?"

From NPR.org: Commentator Jim Newton says that for the Supreme Court this session, the most urgent issue it will face this session is freedom during wartime. Jim Newton is the author of the book Justice for All: Earl Warren and the Nation He Made. Listen to commentary here on the topic. . .  Find a collection of other articles on homeland security, detentions, search & seizure, and confessions & interrogation here and here. [Michele Berry]

How the 9/11 Attacks Changed America's Legal Landscape

Here's a look from Bloomberg.com at how the 9/11 attacks changed America's legal landscape over the past five years--particularly, in the areas of criminal and constitutional law.  The article discusses specific shifts in executive power, international law, and privacy issues that normally would have taken decades to occur.  The article concludes that the changes in criminal law and the balance of power among the governement's branches have ultimately reduced or eliminated many of the external fact-checking measures typically in place to balance power and check the government.  For example, documents that once were available to the public have been reclassified as secret, and that which used to be available online has been removed from public view altogether.  As a result, accountability and public confidence in the system may wane and take decades to restore.

An excerpt: "As a measure of how far things have gone in the law, consider a single amendment to an anti-torture bill passed last year....Congress curtailed one of the most elemental rights, that of habeas corpus, when it said the men held at Guantanamo Bay could no longer go to the U.S. Supreme Court to challenge any aspect of their imprisonment.

That's 'just about the most stupendously significant act that the Congress of the United States can take,' Justice David Souter remarked at an oral argument this spring.  And then there was the revelation that the president had authorized domestic-wiretapping without court orders, even though a law specifically requires them...

'What I was seeing in the months after 9/11 was definitely a presidential exercise of power in what was perceived to be a moment of importance,' says Edwin Smith, constitutional law professor at the University of Southern California. 'I also saw a Congress going along with absolutely everything.'...And yet, in his conduct of the war on terrorism, President Bush has acted without the constitutionally required authority of Congress, the Supreme Court has ruled."  More from Bloomberg.com. . . [Michele Berry]

Courts, Congress, DOJ Scrutinize Witness Detention Law

After reports that it has been abused in terrorism investigations, a 22-year-old federal law that allows people to be held without charges if they have information about others' crimes is coming under fresh scrutiny in the courts, in Congress, and within the Justice Department. The law allows so-called material witnesses to be held long enough to secure their testimony if there is reason to think they will flee. But lawyers for material-witness-detainees say the law has been used to hold people who the government fears will commit terrorist acts in the future, but whom it lacks probable cause to charge with a crime.

Concerns about how the law has been used have prompted calls from across the political spectrum for a reassessment. That debate has also ignited a broader one: whether the United States should join the several Western nations that have straightforward preventive detention laws. More from NYTimes. . . [Mark Godsey]

June Terrorism Symposium

June 12-13, 2006, Denver

The National Institute of Justice invites State and local law enforcement officials to learn what the research shows about what works to prevent and respond to terrorism.

Panelists will describe their challenges and experience in interactive, dynamic sessions.

Visit http://www.ojp.usdoj.gov/nij/events/register_ts.html to register.

Topics

 

• How to identify warning signs.
• What local prosecutors are doing to combat terrorism.
• Ways to improve cooperation between law enforcement and Arab communities.
• Securing shopping malls and seaports.
• Money laundering: Do you know it when you see it?

Who should attend? Law enforcement officers, policymakers, researchers, criminal justice practitioners, community members, public health officials, social scientists, and anyone interested in learning more about strategies to combat terrorism.

Virginia Law Panel Debates Extraordinary Rendition and Torture

"The controversial use of extraordinary renditions to interrogate or detain suspected terrorists has evolved since its first use by the United States in 1995, but the practice fails to address concerns about torture and may be ineffective in quashing terrorism, said panelists at a Feb. 16 discussion at the University of Virginia Law School. Moderated by JAG Legal Center and School Executive Director David E. Graham (pictured), the panel featured Michael F. Scheuer, author of the best-selling Imperial Hubris and former chief of the CIA Bin Laden Unit, and Margaret L. Satterthwaite, faculty director of the Center for Human Rights and Global Justice at the New York University School of Law.

“Suspected terrorists are often transferred from one state to another for the purpose of arrest, detention, and/or interrogation,” Graham said. “This act of transfer itself is an act of rendition, and I say that so that you don’t…take away the idea that the word ‘rendition’ is, in and of itself, a dirty word. It’s not.” If undertaken under the full construct of the law, as it most often is, Graham said, this process is better known as extradition. Irregular or extraordinary rendition occurs when prisoners are extradited through a process that does not afford them an opportunity to judicially challenge their transfers...Some reports, none substantiated, suggest that over 100 extraordinary renditions have occurred since 9/11, according to Graham. “The Bush administration has said that [it does] not engage in extraordinary rendition for the purpose of…intelligence interrogation using torture as a method,” he said. “They don’t deny that extraordinary renditions have occurred.”

Nonetheless, many critics continue to believe that these renditions are conducted in order to gain crucial information through the torturing of suspected terrorists. While the Convention Against Torture (CAT), which the United States has ratified, forbids transfers to states where there is a “substantial likelihood” that an individual will be tortured, it does not forbid transfers to locations where certain kinds of treatment that might be considered cruel, inhuman, or degrading treatment under U.S. law might occur. Nor does the CAT forbid renditions, Graham said." More. . . [Mark Godsey]

Case's Mock NSA Wiretap Hearing to Broadcast February 22

Case School of Law's recent Mock Congressional Hearing on the NSA Wiretap Controversy will be broadcast on WCPN, Cleveland's National Public Radio Station (90.3 FM), from 7:00-8:30 pm on Wednesday, February 22, 2006. The hearing featured two of the country's foremost experts on national security law, Ruth Wedgwood and David Cole, with a panel of Case law professors playing the part of the Senate Judiciary Committee.

"NSA Kabuki Theatre": Commentary on the NSA Wiretap Hearings

Commentary from Findlaw: "In 1993, during President Clinton's first term, the Democrat-controlled House held a hearing on the Waco Branch Davidian tragedy, which had resulted in the death of several dozen men, women and children. The hearing, was a farce: a virtual lovefest, during which members of the Clinton Administration responded to softball questions from their colleagues in the House with superficial answers, and Republican queries were ignored or glossed over with disdain, if not outright contempt.

More than a dozen years later, with the White House and Congress once again in the grip of a single Party, and another matter of great seriousness facing the Congress - NSA spying on American citizens -- where are we?  Thus far, if it's not "déjà vu, all over again," it's pretty darn close. [But some important facts did come through]." Full column from Findlaw. . . [Mark Godsey]

Better Border Enforcement Keeps Migrants Here

Mexicans who ordinarily would return home when there is no work stay here over the winter to avoid being caught on the other side. 

DHS Visit Based on Book Request Hoax

A student who claimed to have been visited by DHS agents after he ordered the famed islamic terrorist handbook "Quotations from Chairman Mao" admitted that he made the whole thing up. Story here. [Jack Chin]

4th Circuit Refuses to Transfer Padilla to Civilian Custody

"In a sharp rebuke, a federal appeals court denied Wednesday a Bush administration request to transfer terrorism suspect Jose Padilla from military to civilian law enforcement custody...The 4th U.S. Circuit Court of Appeals (in Richmond, VA) also refused the administration's request to vacate a September ruling that gave President Bush wide authority to detain "enemy combatants" indefinitely without charges on U.S. soil. The decision, written by Judge J. Michael Luttig, questioned why the administration used one set of facts before the court for 3 1/2 years to justify holding Padilla without charges but used another set to convince a grand jury in Florida to indict him last month. Luttig said the administration has risked its "credibility before the courts" by appearing to try to keep the Supreme Court from reviewing the extent of the president's power to hold enemy combatants without charges." More from Law.com. . . [Mark Godsey]

Florida Professor Acquitted in PATRIOT Act "Test Case"

"A federal jury acquitted former Florida professor Sami al-Arian yesterday of conspiring to aid a Palestinian group in killing Israelis through suicide bombings, dealing the U.S. government a setback in its efforts to use secretly gathered intelligence in criminal cases against terrorism suspects. The trial was a crucial test of government power under the USA Patriot Act, which lowered barriers that had prevented intelligence agencies from sharing secretly monitored communications with prosecutors. The case was the first criminal terrorism prosecution to rely mainly on vast amounts of materials gathered under the Foreign Intelligence Surveillance Act (FISA), whose standards for searches and surveillance are less restrictive than those set by criminal courts." Full story. . . [Mark Godsey]

Congress Agrees to Extend the PATRIOT Act

"Congressional leaders reached a deal Thursday to extend key provisions of the Patriot Act...Under the deal, 16 provisions set to expire at the end of the year will be extended for four more years...The deal marks Congress' first revision of the law...The provisions include the two most controversial elements -- secret FBI access to library and business records and roving wiretaps.  Roving wiretaps involve the use eavesdropping devices that prevent a target from evading law enforcement officials by switching phones or computers. A "lone wolf" provision that sets standards for monitoring terror suspects who might be operating independently also survived...But the deal reached Thursday would force law enforcement to seek a court's approval before getting access to library and business records. 'Under existing law, a law enforcement agent could obtain these records, unilaterally, on a declaration of relevance," Specter said. "The conference report now requires a judge to review a statement of facts. And the court has to be satisfied that these records are relevant to a terrorism investigation.'" Read more. . . [Mark Godsey]

Northwestern CrimProf Sheds Light on Prosecutions of CIA Operatives In Absentia

Italy's chief anti-terrorism expert for the northern Italian region has stated his intention to prosecute 22 past and present CIA operatives "in absentia" on kidnapping charges.  This decision comes in the wake of European nations' reactions to recently publicized information about how the CIA has used European facilities since 9/11.  Recent news reports have exposed that aircrafts registered to CIA front companies have been using European airports with increasing frequently since 9/11.  At least eight European nations have raised questions about this secret CIA practice, known as "extraordinary rendition."  The Milan case being pursued by Italian prosecutor Armando Spataro that now threatens to further expose the once-secret practice stems from the February 2003 abduction of an Egyptian-born imam, Osama Moustafa Hassan Nasr, better known as Abu Omar.  Omar was abducted as he walked from his Milan apartment to a nearby mosque.

Although they are highly uncommon, if not unknown in the United States, trials in absentia are more common in Europe, particularly in terrorism cases.  The European Court of Human Rights has advised that convicting a defendant in absentia does not violate the defendant's human rights as long as: 1) the defendant has been notified that a trial is taking place; and 2) the defendant is provided with legal counsel.  In some cases, even defendants thought to be dead have been convicted in absentia.

The Milan kidnapping trial will proceed if the Milan Judge Chiara Nobili grants permission; Nobili has already approved warrants for their arrests.  If the CIA operatives are convicted, they will be subject to arrest and extradition in any of the 184 Interpol (international police organization) countries.  Prosecutor Sparato believes that Italian criminal procedure affords him authority to take testimony from potential witnesses located at the U.S. Embassy in Rome (where the CIA's Italian branch is located), the U.S. Consulate in Milan (from where Omar's abduction was coordinated), and from people currently residing in the U.S. 

But international law experts, including Northwestern CrimProf Ronald Allen (pictured), don't think the governing laws and procedures give clear guidance on how this situation should be handled.

From The Chicago Tribune: "This is uncharted territory," says Ronald Allen, a professor of criminal law at Northwestern University. Although procedures exist for the international exchange of evidence in civil cases, Allen says "these kinds of things just don't come up" in most international criminal cases.

Other experts said that while it might be impossible for Spataro to obtain evidence or testimony in the United States without the assistance of the Bush administration, which is not likely to be forthcoming, U.S. Embassy employees in Rome who do not have diplomatic immunity probably would be subject to the normal processes of Italian law. Prospective witnesses presumably would include CIA officers stationed in both locations." Read more. . . [Mark Godsey]

Jose Padilla Goes from Enemy Combatant to Criminal Defendant

From Law.com: "With the stroke of a pen, alleged terrorist Jose Padilla has been transformed from an enemy combatant with few legal rights to a criminal defendant covered by the Bill of Rights. On Tuesday, Padilla became a defendant in a federal criminal case in Miami. Legal critics contend the change is an indication the Bush administration knew it abused its discretion and retreated to preserve its ability to designate future enemy combatants, as Padilla's case was poised for review by the U.S. Supreme Court." More from the Daily Business Review. . . [Mark Godsey]