CRIMINAL JURISDICTION

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

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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June 1, 2010

THE CONTINUED ASSAULT ON MIRANDA

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , — johntfloyd @ 4:52 pm

Abandoning Miranda in Terrorism Cases Contrary to Constitution and Beginning of Slippery Slope towards Neo-Con Police State

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The United States Supreme Court in 1966 handed down Miranda v. Arizonawhich mandated to every law enforcement agency in this country that they advise all criminal suspects their right to silence; that anything they say can and may be used against them in a court of law; and that they have a right to an attorney. Findlaw columnist and former White House counsel John Dean has written two (here and here) recent columns in response to comments made by U.S. Attorney General Eric Holder on May 9, 2010 on several Sunday morning news/talk shows that the “Miranda warnings” given to terror suspects should perhaps be modified. Dean warned the Obama administration that, if the Holder comments represented possible “new policy,” it is navigating down a constitutional “slippery slope” by “messing with Miranda rights to fight terrorism.”

Dean pointed out that simple Google research will reveal study after study which has shown that Miranda has never impeded legitimate law enforcement efforts to solve crimes and that there is “no evidence” it has been a serious problem in producing results through the many terrorism investigations the government has conducted over the last two decades. Since the Christmas Day airline bombing attempt by Farouck Abdulmuttalab, the Miranda warnings have become the rallying linchpin for conservatives in this country who want any person, American citizen or not, who is arrested for any terrorist act or suspected terrorist act against this country, to be treated as an “unprivileged enemy belligerent” under the Military Commissions Act of 2009 so that “harsh interrogation techniques” can be employed to extract whatever information the suspect may know about other possible terror attacks against the country. As Dean pointed out: “… the only people complaining about Mirandizing terrorists are Republicans.”

The modifications proposed by Attorney General Holder deal with the “public safety exception” to Miranda. This exception was carved out by the Supreme Court in 1984 in the case of New York v. Quarles. In that case Benjamin Quarles was convicted of possessing a gun. The conviction stemmed from a series of events in which a woman stopped two New York policemen and told them she had been raped. She said her attacker had fled into a nearby supermarket carrying a gun.  One of the officers entered the store and saw Quarles, He ordered him to stop, placed his hands over his head, frisked him, and found only an empty shoulder holster. When the officer asked he suspect where the gun was, he nodded toward some empty cartons and said “over there.” The officer retrieved the gun and formally placed the suspect under arrest. The lower courts threw out Quarles statement about the gun and the gun itself because the officer had not given him the Miranda warnings. The U.S. Supreme Court reversed the lower courts, finding that there are situations where “public safety” trump the “prophylactic rules” of Miranda.

The “public safety exception”—sometimes called the “rescue” or “emergency” rule—has been used many times since. Coleen Rowley recently posted the following example on Huffington Post:

“One spring morning in the mid 1990s, a man whose last name was Liberatore rang a doorbell pretending to be a delivery man. Threatening a weapon, he gained entrance to the home somewhere in the Quad Cities, Illinois, tying up a teen-aged babysitter along with the young boy the babysitter was watching. Then he left, kidnapping the family’s 11 month old baby. Eventually the young boy was able to free himself and call for help. The hysterical parents rushed home and quickly notified the police and FBI.

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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…)

May 9, 2009

A DEFENSE AGAINST TORTURE

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , — johntfloyd @ 1:44 am

The rule of law prevails over the demands of politics

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

In the wake of the Obama administration’s release of the “terror memos” and the political firestorm the release generated, the president has instructed U.S. Attorney General Eric Holder to review all the facts and circumstances surrounding the “torture” interrogations conducted by CIA and U.S. military personnel and make a determination of whether criminal charges should be filed either against those who approved the torture interrogations or those who conducted them, or both. Any decision Attorney General Holder makes will trigger an intense political backlash.

While the Democratic leadership favors either the formation of some kind of “truth commission” to investigate the torture issue much like the 9/11 commission or the criminal prosecution of all those involved, indications from the media are that President Obama is not personally or politically prepared to embrace either concept. One thing is fairly certain. The president should follow the rule of law. As a Harvard Law School graduate and former law professor, Obama has a deep appreciation for making sure that the rule of law prevails over the demands of politics. The president should neither direct nor attempt to control the course of the attorney general’s investigation and he will most certainly abide by the attorney general’s final decision.

Recent leaks indicate that criminal prosecution is not being considered but that the Justice Department may recommend that those involved in crafting the documents be disciplined by their state bar associations or banned from the practice of law.

However, should the attorney general elect to prosecute those involved in the “torture” process under the Bush administration, recent decisions by the United States Court of Appeals for the District of Columbia and historical U.S. Supreme Court precedents may offer a defense to those indicted on torture charges. The federal torture statute, Section 2340A of Title 18 of the United States Code, requires the Government to prove following elements: 1) the torture occurred outside the United States; 2) the person who carried out the torture is a United States national; and 3) the person who carried out the torture is in the United States, regardless of the nationality of either the torturer or the victim of the torture. These same elements apply to those who conspire to carry out torture. Anyone convicted under this statute faces a fine or a term of imprisonment up to 20 years, or both. 1/ (more…)

April 23, 2009

THE CIA TERROR MEMOS

Filed under: Anti-Terrorism Lawyer — Tags: , , , , — johntfloyd @ 9:24 am

Legal Opinions Redefine Torture, Criminal Acts

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

The Bush administration’s 2001 declaration of “war on terror” critically—if not irreparably—injured the constitutional soul of America. This nation can no longer look other civilized countries in directly in the eye and unequivocally say it is the moral leader of the “free world.” The recently released CIA “terror memos” demonstrate that during the eight-year presidential tenure of George W. Bush the United States became a nation that subscribed almost exclusively to the base Machiavellian political dogma of “the end justifies the means.”  Those who have defended, and continue to defend, the “torture” practices carried out under the Bush administration say they were a necessary weapon in the “war on terror” declared by President Bush after the three September 11, 2001 terror attacks against the United States by the international terrorist organization, al-Qaeda.

In the wake of that war declaration, the nation’s Central Intelligence Agency established “black site” (secret) prisons in friendly countries across Europe. The CIA, and its contracted mercenaries, began to search for and round up “terror suspects” around the globe. Many of the suspects were kidnapped off public streets in their home countries and whisked away to one of the CIA’s “black site” prisons. Most of those “terror suspects” were ultimately designated by the military term as “enemy combatants” and turned over to the military to be housed in the Guantanamo Bay prison in Cuba. These “enemy combatants,” most of whom were Arab foreign nationals, enjoyed no “constitutional” protections such as right to a public and speedy trial by jury, right to confront and cross examine their accusers, privilege against self-incrimination, or the right to habeas corpus.

One of the first “high-valued” terror suspects captured by the CIA was Abu Zubaydah, the highest ranking member of al-Qaeda captured at the time. A hardcore operative of the terrorist organization and personal confidant of Osama bin Laden, Zubaydah was captured on March 28, 2002 in Faisalabad, Pakistan after being shot three times in an attempt to evade capture. It became immediately clear to the CIA that he was not about to cooperate with American authorities about al-Qaeda’s past or future terrorist attacks against the United States and its allies.

From the moment of his capture, the CIA had aggressively interrogated Zubaydah to force his cooperation without much success. The intelligence agency decided to escalate from harsh interrogation methods to “torture” to get him to talk. The agency, however, knew torture is explicitly prohibited by Section 2340A of title 18 of the United States Code; and being fearful of future congressional and media backlash, the agency sought, and received, legal cover from the U.S. Justice Department to violate this law. (more…)

April 21, 2009

TORTURE FALLOUT CONTINUES

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , — johntfloyd @ 2:07 am

Foreign Investigation of Torture Techniques Sanctioned by Bush Administration

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

CIA Director Leon Panetta announced on April 9, 2009 that it would shut down those “black site” secret prisons in foreign countries utilized by the George Bush administration to house, and torture, suspected terrorists—many of whom were kidnapped off public streets in their home countries by either CIA agents or CIA operatives, and who had never been formally charged with any terror-related activity.

Panetta said the agency officers who employed what the New York Times called “brutal interrogation methods”—a euphemism for torture—“should not be investigated, much less punished” because their actions had been declared lawful by the U.S. Justice Department.

The laws of the United States, and international law, prohibit torture, as do many treaties between most civilized nations. CIA interrogators employed a variety of brutal interrogation methods in these “black site” prisons to get terrorist suspects to provide information about terrorism activities. One of the methods was “water-boarding”—a near drowning technique used on at least three prisoners in 2002 and 2003, and a torture technique declared a “war crime” by the U.S. after World War II because it had been used by the Japanese. Panetta and other top Obama administration officials have stated publicly that they believe water-boarding is torture.

Neither President of the United States, with all his immense executive powers, nor the United States Justice Department have either the statutory or constitutional authority to declare a crime—and torture is recognized by the laws of this nation and the laws of the international community as a crime—to be “legal” as suggested by CIA Director Panetta. (more…)

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