Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair
The Right Wing and the Council on American-Islamic Relations; No Due Process for the Unindicted
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
What exactly is a un-indicted co-conspirator?
Attorney Peter R. Rient defined the term as any person the Government alleges “agreed with others to violate the law but who is not charged with an offense and who, consequently, will not be tried or sentenced for his criminal conduct.” 1/
While the “un-indicted co-conspirator” designation may not have immediate legal consequences, it definitely has long term social consequences. As Ira P. Robbins, Bernard T. Welsh Scholar and Professor of Law and Justice, has written: “Although a criminal defendant is presumed innocent until proven guilty and has a Sixth Amendment right to a speedy trial, these procedural protections do little to shield an individual who is identified as an unindicted co-conspirator. Because trials focus on the guilt or innocence of the indicted individuals, the practice of naming an individual as an unindicted co-conspirator in effect accuses the person of a crime without providing him or her with a forum for seeking vindication. Thus, the practice routinely results in injury to their reputations, lost employment opportunities, and a practical inability to run for public office.” 2/
Three decades earlier the Fifth Circuit Court of Appeals in United States v. Briggs came to much the same conclusion: “”[t]the grand jury that returns an indictment naming a person as an unindicted conspirator does not perform its shield function [protecting the innocent] but does exactly the reverse. If the charges are baseless, the named person should not be subjected to a public branding, and if supported by probable cause, he should not be denied a forum.” 3/
That’s precisely what happened to some of the nearly 300 individuals or entities named as un-indicted co-conspirators in the “Holy Land Foundation terrorism case” tried in Dallas last year. One of the groups named as an un-indicted co-conspirator was the Council on American-Islamic Relations (CAIR). This group found itself in the Government’s cross hairs after one of the Holy Land leaders, Ghassam Elashi, who founded the Texas chapter of CAIR and chaired on the Holy Land Foundation, was indicted on terrorism related charges. (more…)
Government Finally Reaches the Holy Land in Complex Case of Providing Financial Support to Terrorist
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
America has a disposition toward war. The nation was created through war, and except for brief periods of respite, America has been at war with itself and other countries throughout its history. When not at war with other nations, America has found a need to declare “war” on one social ill after another, particularly over the last five decades. Beginning with President Lyndon Johnson’s “war on poverty” through President George W. Bush’s “war on terror” following 9/11, government officials have consistently used a war slogan to justify one social crusade after another.
In 2007 we wrote in this column (under the title “The Holy Land Foundation Verdict”) about the efforts of the Bush administration, as part of its “war on terror,” to convict the Holy Land Foundation of Texas for terrorism-related activities. We will revisit some of the historical background of that column as a lead into this one.
Under its original name Occupied Land Fund, the Holy Land Foundation was established in California in 1989 by Ghassan Elashi and other Palestinian Activists. The purpose of the Foundation was to provide assistance to Palestinians displaced by a Palestinian uprising against Israel’s occupation of the West Bank and Gaza. The uprising became known as the “intifada.” The most aggressive resistance in the intifada came from the Iranian-backed organization called Hamas which had been established in 1987. The political leader of Hamas, Mousa Abu Marzook, was married to Elashi’s cousin.
Three years later, in 1992, Holy Land moved its headquarters to Richardson, Texas. The Foundation came under the scrutiny of the governments of the United States and Israel the following year. An Illinois businessman named Muhammad Salah detained in Israel informed authorities that Holy Land, which had become America’s largest Muslim charity, was actually a front for Hamas. While he later claimed that he had provided information to the Israelis under torture, he told the authorities that Marzook, who was living in the U.S. at the time, had actually funded the creation of Holy Land with hundreds of thousands of dollars of start-up money. (more…)
By: Houston Criminal Defense Attorney John Floyd and Mr. Billy Sinclair
How would you feel if you had never been a member of any nation’s military, had never fought alongside any nation’s armed forces, and had never borne arms against the United States anywhere in the world but were suddenly designated an “enemy combatant” by the President of the United States, placed in solitary confinement in a military prison for five years, subjected to torture, held incommunicado from family and attorney, and never had any formal charges brought against you?
Apparently, some in the Government of the United States of America believe that the President has the constitutional authority to do precisely that to any person lawfully living in this country or even, potentially, to any American citizen.
Al Saleh Kahlah al-Marri, a citizen of Omar, entered the United States on September 10, 2001. He was accompanied by his wife and children. He came to this country to pursue a master’s degree at Bradley University in Peoria, Illinois. He had already earned a bachelor’s degree from the university in 1991.
Then the unspeakable, the unimaginable happened. Foreign-born terrorists – mostly from Saudi Arabia, a longtime American oil ally – hijacked four commercial airliners and crashed two of them into the World Trade Center’s twin towers, one into the Pentagon, and one into a field in Pennsylvania killing and injuring thousands of Americans. (more…)
Houston Criminal Attorney John Floyd Discusses FBI’s Push to Legitimize Racial Profiling
On July 3, 2008 the Associated Press reported that the United States Justice Department was considering adoption of new rules that would allow the FBI to investigate persons without any probable cause of wrongdoing. FBI officials said that being able to target for selective investigation Muslims, Arabs and other racial and ethnic groups that fit a “terrorist profile” would enable the agency to fulfill a post 9/11 Congressional mandate to “root out” terrorists before they strike.
The Bush administration has consistently issued statements that it does not support the targeting of racial or ethnic groups for selective investigation. The proposed new Justice Department rules, however, would allow the FBI to consider both race and ethnicity among the factors that, according to AP, “could trigger a national security investigation.”
The FBI informed AP that under its existing rules the agency must have either specific evidence or probable cause to believe a crime has been committed before it can initiate an investigation against United States citizens or legal residents. The new rules under consideration would greatly expand the agency’s police powers allowing FBI agents to begin preliminary terrorism investigations based on mined public records or general intelligence data to put together individual behavioral profiles deemed suspicious. Some of the factors the FBI would consider in developing these profiles would include but not be limited to:
- Individuals traveling to regions known for terrorist activity;
- Access to weapons or military training; and
- The individual’s race or ethnicity.
“We don’t know what we don’t know, and the object is to cut down on that,” one anonymous FBI official told the AP in defense of the proposed rule changes. (more…)
Houston Criminal Attorney John Floyd Discusses Scalias Blistering Dissent Accusing Justices of Aiding Terrorist
The Supreme Court on June 12, 2008 issued a decision that marked the first time in the nation’s history that the constitutional right to the writ of habeas corpus was conferred on enemy aliens detained abroad by American military forces engaged in an ongoing war. See: Boumediene v. Bush, 553 U.S. ____ (2008) [Slip Opinion No. 06-1195 & 06-1196].
This column dealt rather extensively with the legal ramifications and constitutional underpinnings on this decision (June 24, 2008). The Boumediene decision has drawn a great deal of legal scrutiny and political criticism since its release. One of the decision’s harshest critics, however, was Justice Scalia whose 25-page dissent begs attention.
Pointing out that the Boumediene decision had no basis in constitutional law, Justice Scalia accused the court’s majority of issuing an opinion that will make the nation’s “war on terror” harder and “will almost certainly cause more Americans to be killed.” It is probably the first time that a dissenting U.S. Supreme Court justice has ever accused other justices of doing work that will aid and abet terrorism. Justice Scalia certainly has a right to his point of view, and he prefaced that point of view with the following compelling information:
“America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi and 17 on the USS Cole in Yemen….On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D.C., and 40 in Pennsylvania. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq…” (more…)
Houston Criminal Defense Attorney John Floyd Discusses the U.S. Supreme Court’s Decision in Boumediene v. Bush, The Balance of Powers
In a sharply divided 5-4 ruling, the United States Supreme Court recently extended the privilege of the writ of habeas corpus to “detainees” held Guantanamo Bay, Cuba – commonly referred to as “Gitmo.” The decision marked the first time in the court’s history that it has ruled that non-citizens held in custody by the United States in a territory over which another country has de jure sovereignty enjoys the protection of the Constitution.
The far-reaching implications of this decision not only drew blistering criticism from the four dissenting justices – most notably Justice Antonin Scalia – but triggered a firestorm of debate among politicians and media pundits (many of whom now consider themselves an indispensable component of any social discussion) about its potential impact in the “war on terrorism.” Anticipating this sort of intense political and social reaction, the majority in two of its concluding paragraphs tried to allay these concerns by saying:
“Our opinion today does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of these powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the executive to imprison a person. Some of these petitioners have been in custody six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.
“”Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.” See: Boumediene v. Bush, 553 U.S. _____ (2008), Slip Opinion Nos. 06-1195 and 06-1196.
(more…)
Houston Criminal Defense Attorney John Floyd Discusses Bush Administrations “Torture” Policy and Downstream Consequences
In 1994 America ratified a treaty entitled “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” This treaty defined “torture” as “ … any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession,” when it is “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
In May 2008 the U.S. Justice Department’s Office of Inspector General released a report that revealed American military and intelligence officials have engaged in severe interrogation tactics against terror suspects since September 11, 2001. The OIG report said that FBI agents observed and at times participated in these interrogations. As a rule the law enforcement agency was uncomfortable with the harsh methods used by CIA and military interrogators to extract information from terror suspects. The FBI observed the following of what it described as “detainee treatment” at Quantanamo Bay:
- Beating or physically abusing a detainee
- Prolonged shackling and stress positions
- Sleep deprivation or sleep disruption
- Extreme temperatures
- Use of working dogs
- Isolation
- Mistreatment of the Koran
- Touching or acting toward a detainee in a sexual manner
- Use of bright flashing lights or loud music
- Use of duct tape on detainees
- Forced shaving
- Withholding medical care
- Forced cell extractions
- Placing women’s clothing on a detainee
- Transfer to another country for more aggressive interrogation
- Threatened transfer to another country
- Threatening a detainee’s family
- Depriving a detainee of food and water
- Depriving a detainee of clothing
- FBI impersonation
The FBI observed the following “detainee treatment” in Afghanistan:
- FBI knowledge of detainee beating deaths
- Beating, choking, strangling, or other abusive handling of detainees
- Sexually abusive or humiliating contact
- Abusive body cavity searches
- Stressful or painful positions or calisthenics
- Deprivation of clothing
- Hooding or blindfolding
- Sleep deprivation or interruption
- Undocumented “Ghost” detainees
- Actual or threatened transfer to a third county
- Isolation of detainees
- Impersonation of FBI agents
(more…)
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