CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

May 5, 2011

OSAMA BIN LADEN IS DEAD

Filed under: Anti-Terrorism Lawyer — Tags: , , , , — johntfloyd @ 11:59 am

The Cost of the War on Terror: Orwellian Inspired Torture, Extrajudicial Rendition, Racial/Religious Profiling, Warrantless Wiretaps, Investigations without Reasonable Cause…

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Osama bin Laden is dead. Many peoples in the world, especially in the United States, are celebrating the death of the world’s most notorious terrorist. The nature and circumstances of his demise were fitting in light of the life of hate, vengeance, and violence he led. The old adage, “live by the sword, die by the sword,” is appropriate in this case.

While we feel that bin Laden got this “just deserts,” we cannot in good conscience celebrate his death as a “crowning achievement” for our justice system. On September 11, 2001, bin Laden did more than bring down New York’s famed Twin Towers and cause the death of nearly 3,000 innocent people. The four terrorist attacks he masterminded and orchestrated that day set our nation on a course of action, called the “war on terror,” which has done, perhaps, irreparable damage to our criminal justice system and our historical concepts of justice.

In pursuit of the “war on terror,” officially declared by former President George W. Bush, and our efforts to track down and kill bin Laden, our intelligence and military assets kidnapped innocent people off the streets in foreign countries; took them to secret “black site” prisons operated by the CIA where they were tortured beyond human comprehension; established a special “detainee” prison on foreign soil called Guantanamo Bay where “suspected terrorists” are held for years without any meaningful rights or privileges and without any finding of guilt; and resurrected the ancient and infamous method of torture called “water boarding” to extract information from these “suspected terrorists.”

No less than the President and the Attorney General of these United States instructed law enforcement agencies, especially the FBI, CIA and other intelligence gathering agencies like the National Security Agency, to target innocent and unsuspecting American citizens and subject them to racial/religious profiling, telephone wiretaps, surveillance of their emails, political activities, and data mining through their financial records. This Orwellian-type scrutiny was even more heightened against the American-Muslim community who instantly and continuously became “suspected terrorists” for no other reason than their religion and country of origin.

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December 10, 2010

WIKILEAKS-JULIAN ASSANGE-AND POSSIBLE CRIMINAL PROSECUTION

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , , — johntfloyd @ 2:41 am

Keeping the government in Check, the Uncomfortable Reality of Freedom of the Press

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

WikiLeaks’ founder Julian Assange surrendered to British authorities on December 7, 2010 in connection with sexual assault allegations leveled against the Australian native by Swedish authorities. News media reports said Assange was engaged in consensual sexual encounters with two women (WikiLeak volunteers) in Sweden this past August when the encounters turned non-consensual because Assange would not use a condom. The controversial Assange has gained international acclaim and criticism for his website’s disclosure of thousands of classified U.S. diplomatic cables and documents. The sexual assault charges became prominent after the disclosures occurred.

U.S. Defense Secretary Robert Gates expressed satisfaction to the news media about Assange’ arrest by British authorities. The defense secretary called the latest turn of events in this international furor “good news.”

It is not clear what steps will be taken by Swedish authorities to have Assange returned to Sweden to face the sexual assault charges. A British judge ordered the WikiLeaks founder held without bail pending a December 14 hearing. The judge refused Assange’s request for bail, saying the international fugitive posed a significant “flight risk.” That’s a rather strange finding inasmuch as Assange “surrendered” to British authorities.

In the meantime, a criminal investigation into the WikiLeaks disclosures is underway in this country. CNN’s legal analyst Jeffery Toobin recently observed on the cable news network that Assange would not be allowed to “rub the United States’ nose in committing illegal acts and get away with it.” Toobin speculated that the U.S. Justice Department already has a sealed indictment against the WikiLeaks’ founder.

An Assange indictment would certainly please conservative political leaders in this country. In aFacebook posting, former Alaskan Gov. Sarah Palin, the controversial presidential hopeful, took time out from her caribou killing and fish clubbing to say Assange should be hunted down like an al Qaeda terrorist and indicted under the Espionage Act of 1917.

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December 2, 2010

BOTH TERROR AND AMERICAN LEGAL SYSTEM ON TRIAL

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , — johntfloyd @ 5:52 pm

Suspected Terrorists should be Transferred to Civilian Custody and Processed in the Criminal Justice System

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Ahmed Khalfan Ghailani was involved in the two bombings of U.S. embassies in Africa in 1998 which killed 224 people, including 12 Americans. To what extent we do not know. The final verdict is mixed on that issue. What we do know is that the New York Times reported Ghailani was captured in Pakistan in 2004 where he was held in one of the CIA’s “secret prisons” for most of the next five years. He was subjected to repeated interrogations and torture during that period before he was transferred to Guantanamo Bay detention facility, according to his attorneys. The Obama administration elected to use the Ghailani case as a test run for its policy that terrorists should be tried in civilian courts rather than before military tribunals (here, here and here). Ghailani was then indicted by a New York federal grand jury on 285 terrorism-related counts, including conspiracy to use weapons of mass destruction and murder in connection with the embassy bombings, and thereafter transferred from military custody to civilian custody.

The Times also reported that last May that U.S. District Court Judge Lewis A. Kaplan issued two significant pretrial rulings in the Ghailani case which seem to pave the way for future prosecution of suspected terrorists, like Khalid Sheik Mohammad, in civilian courts. The judge denied motions by Ghailani’s attorneys to dismiss the charges against him because he had been subjected to torture while held in the CIA’s “black site” facility and because his right to a speedy trial had been violated by the secret CIA pretrial incarceration. Put simply, torture and long term incarceration in secret prisons without an attorney or due process protections will not stand as a bar to terrorism prosecutions in Judge Kaplan’s court—a significant departure from longstanding constitutional precedents in our system of  justice.

But on the day before the Government was to present its case Judge Kaplan handed down a ruling which, some legal experts believe, damaged the prosecution’s case, according to theTimes. The judge ruled the Government could not use Hussein Abebe as a witness because the CIA learned about him through Ghailani’s tortuous interrogations. Abebe was prepared to testify he had sold Ghailani the explosives used to destroy the embassies. Judge Kaplan, however, tempered his ruling with the observation that even if Ghailani were found not guilty, he could be held indefinitely as an “enemy combatant” until “hostilities between the United States and al Qaeda and Taliban end.”

Last month, following a four-week trial, an anonymous six-man, six-woman jury acquitted Ghailani of 284 counts while finding him guilty of one count of conspiracy to destroy government buildings and property. He faces a minimum of 20 years and a maximum of life imprisonment on that one count at his sentencing scheduled for January 25, 2011. Lead prosecutor in the case, Preet Bharara, said he will seek a life sentence for Ghailani. Ghailani’s four attorneys presented a defense that their client had been “duped” into assisting in the conspiracy to destroy the embassies and will obviously push for a much lesser sentence because of the jury’s verdict.

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September 30, 2010

DR AAFIA SIDDIQUI-THE PUNISHMENT DOES NOT FIT THE CRIME

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , — johntfloyd @ 1:27 am

86 Year Federal Sentence Handed to the Gray Lady of Bagram Greater Than Necessary, Cruel and Unusual

By: Houston Criminal Lawyer John Floyd and Billy Sinclair

Depending on who you believe, Dr. Aafia Siddiqui is either an American-educated Pakistani neuroscientist kidnapped in Pakistan in 2003 and tortured by Americans in the infamous Bagram prison in Afghanistan over the next four years or she is a captured al Qaeda terrorist who tried to kill six American military personnel in Ghazni, Afghanistan in 2008. Whichever she is, she did not deserve the 86 year sentence U.S. District Court Judge Richard M. Berman imposed on her on September 23, 2010 because she posed a threat of “recidivism.”

There are a number of fairly certain facts about the bizarre and mysterious Siddiqui case in the public record. The Pakistani-born doctor was given up to the CIA by 9/11 mastermind Khalid Sheik Mohammed following his March 1, 2003 arrest in Pakistan and subsequent torture by the intelligence agency. The “spook” agency, which had virtually transformed itself into a lawless organization of kidnappings, torture, and secret prisons during the administration of George W. Bush, leaked Siddiqui’s name to the media, including CNN who in April 2003 took the Government-fed bait and linked the doctor to alleged al-Qaeda terrorism activities. Shortly after Siddiqui’s name was made public in connection with terrorism she disappeared with her three children in Karachi, just days after returning there from America. International media outlets quickly reported she had been taken into custody by the FBI, who denied the claim, while her family members were told she had been kidnapped.

A little more than a year after her Karachi disappearance, former U.S. Attorney General John Ashcroft and FBI Director Patrick Mueller conducted a news conference during which Mueller called Siddiqui “an al-Qaeda operative and facilitator” who was wanted in connection “with possible terrorist threats against the United States.” However, just days after this May 2004 news conference, the FBI issued an international “information alert” which stated that while the agency had no information connecting Siddiqui “to specific terrorist activities,” the FBI still wanted “to locate and question [her].”

Many people, like Andy Worthington, became convinced that Dr. Siddiqui had been kidnapped—either by Pakistani or American authorities—and was being held in a CIA secret prison somewhere (here, here, and here). By 2007 the Human Rights Watch group released a report calling Siddiqui one of the many “ghost prisoners” being held in secret prisons controlled by the CIA. And by November of that year former Pakistani President Pervez Musharraf suspended Pakistan’s Supreme Court Justice lftikhar Muhammad Chaudhry who was leading an investigation into the detention and disappearance of some 500 Pakistanis, including Siddiqui.

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March 26, 2010

OBAMA and MCCAIN: FORMER PRESIDENTIAL RIVALS EMBRACE TORTURE AND ASSASSINATION

Filed under: Anti-Terrorism Lawyer — Tags: , , , , — johntfloyd @ 5:29 pm

Continuing Bush’s War on Terror, Obama Continues Policy of Unfettered Presidential Power to Assassinate Americans Abroad and McCain Sponsorsthe Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Sen. John McCain was once an honorable man, a respected “war hero,” and a “maverick” politician who stood on principle before political expediency. In 2000 the Arizona senator waged a “maverick” campaign for the Republican presidential nomination from inside his Straight Talk Express bus and stunned the nation with a convincing victory over heavily favorite Texas Gov. George W. Bush in the New Hampshire primary. He became an instant media “darling” who suddenly had the respect and admiration of most moderate Republicans and independents. The Vietnam “war hero” had taken on the Republican Party establishment and won.

Then came South Carolina—a primary election battle that would change McCain and he would never quite be the same again. Republican Party insiders, and their South Carolina operatives, gutted McCain’s seemingly impenetrable “war hero” stature and seriously damaged his “maverick” political persona. They did it with a smear campaign The New York Times described as a “painful symbol of the brutality of American politics.” The smear campaign included unfounded charges that McCain “abandoned” veterans on POW/MIA and Agent Orange issues; that he fathered a black child out of wedlock; that he was a homosexual and his wife a drug addict; and that he was either mentally unstable because of his POW experiences or a traitorous “Manchurian Candidate.”

While the mainstream media did not give much serious coverage to the smear charges, the inherent problem about playing in mud is that you get muddy. Bush trounced McCain in the South Carolina primary and went on to assume his family-gifted presidency. McCain was a thoroughly whipped political puppy who had effectively disenfranchised himself from the Republican Party base, that is until the 9/11 terror attacks brought down New York City’s Twin Towers. In the wake of this worst-ever terror attack on American soil which resulted in a Bush declared “war on terror” and the invasion of two countries, Afghanistan and Iraq, Sen. John McCain had a new, invigorated political mission: he would be a “hawk” on the wars being fought on two fronts by American troops and he would lead the nation into the unchartered constitutional waters in its first-ever “war on terror.”

To his political credit, Sen. McCain voiced criticism of the use of “torture” on terror suspects captured by American authorities during the Bush era. As a former prisoner of war in North Vietnam and the victim of horrendous torture by North Vietnamese military officials, McCain become the most compelling moral voice against the practice of torture, such as water boarding, when it was advocated and condoned at the highest levels in the Bush administration, including Vice President Dick Cheney and Defense Secretary Donald Rumsfeld.

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January 9, 2010

MILITARY COMMISSIONS ACT OF 2009

Filed under: Federal Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 3:06 am

Fear Mongers Continue Calls for Military Tribunals to Avoid Burdens of Complying with Constitution and Rule of Law

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The day after we posted our blog “Argument Against Gitmo Closure Defeated By Act of Terrorism” (Dec. 28, 2009), in which we pointed out that Republican opponents of the Obama administration’s decision to close Guantanamo Bay, had not suggested that Christmas Day attempted airline bomber Umar Farouck Abdulmutallab be tried before a military tribunal rather than in a civilian court, Rep. Peter King (R-N.Y.) led an awakened chorus of Republican voices saying Abdulmutallab should not be tried as a “criminal defendant” in a federal civilian court but rather as a “terrorist” before a military tribunal.

“I think that the administration has made a mistake by treating this terrorist as a common criminal … by putting him into the criminal justice system,” King stated in a December 29 interview with NBC. “I wish they would have put him into a military tribunal so we could get as much intelligence and information out of him as we could … My concern is that we did miss the opportunity because once we put him into the criminal justice system, he gets a lawyer and Miranda rights.”

King’s statements suggest that military interrogators would have been able to employ the “harsh interrogation methods” long advocated by former Vice President Dick Cheney (such as water boarding, sleep deprivation, physical abuse, etc.) to secure the “intelligence and information” the congressman assumes Abdulmutallab possesses. Apparently Rep. King, along with the others who share this point of view, forgot that in 2005 Congress (a body to which the New York representative belongs) passed the Detainee Treatment Act which prohibits cruel, inhuman and degrading treatment of “terror suspects” during military or CIA interrogations. Torture is no longer a permissible method to extract “intelligence and information” from terror suspects, despite Dick Cheney’s lamentations to the contrary.

Rep. King, who is a ranking member of the House Homeland Security Committee, must have also forgotten (or has never been aware) that in October 2009 President Obama signed the 2010 National Defense Authorization Act (which is called the “Military Commissions Act of 2009”) which significantly altered the legal landscape in the interrogation of “terror suspects.” The previous Military Commissions Act, enacted by King and his congressional colleagues in 2006, allowed coerced statements obtained through torture to be admitted into evidence against terror suspects tried before military tribunals. The new Act, which was law at the time of Abdulmutallab’s arrest, no longer permits the use of such statements obtained through the “harsh interrogation” techniques supported by Dick Cheney and others. In a recent Findlaw column, Human Rights Watch attorney Joanne Mariner discussed the provisions of the revised 2009 Act:

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November 18, 2009

THE AGONIZING GITMO DILEMMA

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , — johntfloyd @ 5:04 am

Enemy Combatant Cases in Federal Courts Chart Uncertain Path

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

On January 22, 2009, just days after assuming the presidency, Barak Obama announced that he would close the Guantanamo Bay, Cuba, detention facility where hundreds “suspected terrorists” have been held for years without trial under an official Bush-administration created designation “enemy combatant.” Civil libertarians and prominent constitutional scholars have long advocated the closure of the facility while political conservatives have fought hard in the trenches to keep the internationally-criticized torture facility open.

A liberal policy think tank called Center for American Progress, a staunch ally of the Obama administration, charged in a recently released report that the administration has made a series of blunders following the President’s January 22nd Gitmo closure announcement. The report, authored by Ken Gude, a scholar for the Center, says these blunders will delay Gitmo’s ultimate closure for months. The most significant blunders, the report charged, was the administration’s failure to have enough people in place to handle the difficult closure process and misleading Congress about its intentions.

The Obama administration assigned two task forces to deal with the Gitmo dilemma: one to examine the overall “detention policy” of suspected terrorists and the second to review the files of more than 200 detainees to determine whether they should be prosecuted in federal civilian courts or by military commissions. The most high-profile of these “enemy combatants” were Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks who has been in custody since March 2003, and four of his co-conspirators—all of whom will now be tried in the United States District Court in the Southern District of New York based on a recent decision by U.S. Attorney General Eric Holder.

Just last month President Obama signed the Military Commissions Act of 2009 (officially titled the 2010 National Defense Authorization Act) which changes—but some would argue does not actually improve—the rules governing the military commissions created in 2006 to hear terrorism cases. In 2006 then-Sen. Obama, and 33 other U.S. senators, voted against the “military commission’s law,” calling it a “flawed document” that ran counter to American values. (more…)

September 1, 2009

CIA PROBE NECESSARY TO PROTECT RULE OF LAW

Filed under: Anti-Terrorism Lawyer — Tags: , , , , — johntfloyd @ 5:57 pm

Investigating Crimes of Torture: Expecting and Demanding Accountability

By: Houston Criminal Attorney John Floyd and paralegal Billy Sinclair

U.S. Attorney General Eric Holder recently selected a Connecticut federal prosecutor named John H. Durham to investigate whether the CIA’s destruction of the videotapes of harsh interrogation techniques inflicted upon terror suspects between 2002 and 2003 merit a full blown investigation of the agency employees (or independent contractors hired by the agency) who conducted those interrogations and those government officials who approved them.

Political conservatives–instigated by wing-nut pundits like Glenn Beck and Rush Limbaugh—have blasted Holder’s decision as being a terrible blow to the intelligence agency’s morale. They charge that the rank-and-file spy hawks will now be inhibited from protecting the country’s national security interests because of fear they will violate some law while “doing their duty” that might land them in the slammer.

The decision to investigate the CIA—regardless of whether it was those who ordered the torture interrogations, those who carried them out (regardless of whether the interrogators were career agency employees or independent contractors working as hired guns), or those who orchestrated the political cover up the massive torture conspiracy—should not depend upon “agency morale.” The so-called “morale issue” is a red-herring. The nation should not be concerned about the “morale” of a rogue agency that lacks the moral capability or legal duty to obey clearly established federal laws, international laws, and Geneva Conventions.

Former Vice-President Dick Cheney joined the political fray more recently by saying the selection of a special prosecutor was a political outrage. As one media pundit pointed out, the vice president himself has never held the Constitution in high esteem or exhibited very much respect for the rule of law. We agree. Shortly after 9/11, Cheney told then NBC’s Meet the Press host Tim Russert that those in power would have to visit the “dark side” to win President Bush’s declared “war on terror.” The former vice-president has since been a staunch defender of “harsh interrogation techniques” (water boarding, sleep deprivation, use of guns and drills to threaten blindfolded prisoners, attack dogs, beatings, and a host of other physical abuses) that he refuses to characterize as “torture.” (more…)

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