Guantanamo Bay Detainees—Suicides

Just a day after the US Supreme Court ruled that the military tribunals proposed for Guantanamo Bay are illegal, new allegations about the three apparent suicides three weeks ago at the facility have come to light.

Those detainees’ lawyers have said that “authorities at the Guantanamo Bay prison confiscated letters to detainees and other legal papers as part of an investigation into [the] apparent suicides.”^[1] The US military has declined to discuss whether documents were seized, but attorneys “said at least one detainee claimed it was because prison officials suspected the lawyers might have had advance knowledge of suicide attempts, or even encouraged them as a form or protest—an allegation the lawyers deny.”^[2]

Queries about the alleged seizures were referred to the Naval Criminal Investigative Service which stated that it “has the authority to collect whatever evidence it deems relevant.”^[3] The attorneys, however, have cried foul and claimed that the allegedly confiscated papers are protected by the attorney-client privilege.^[4]

The attorney-client privilege is, of course, one of the most cherished institutions of the law. Without it, clients cannot talk freely with their attorneys, and as a result, their representation would be harmed.

In the military, the attorney-client privilege is protected by Rule 502 of the Military Rules of Evidence.^[5]

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[1] Ben Fox, Guantanamo Lawyers Say Letters Seized, AP (via Yahoo!), Jun. 30, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] See United States v. Baker, 58 M.J. 380, 385 (2003).

McNabb in the News (6/28/06) 4

Senior Principal Douglas McNabb has been quoted in the Financial Times regarding the extradition of the NatWest Three.

Douglas McNabb of McNabb Associates, a Washington-based law firm specialising in extradition law, said: "I do not see the US Senate any time soon giving approval to the new treaty because there's no reason for the US to do that."

On this side of the Atlantic, the case of the "NatWest three" has sparked protests by businesspeople, and a campaign in parliament. A low-key march by business leaders is planned in London tomorrow and the Conservatives and Liberal Democrats are preparing to ambush the government after the summer recess.^[1]

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[1] Miranda Green, Business Circles Angry at Refusal of US to Ratify Deal, Financial Times, Jun. 28, 2006.

McNabb in the News (6/28/06) 3

Senior Principal Douglas McNabb has been quoted by the Independent in an article about the NatWest Three’s pending extradition to the United States.

The UK bankers face seven counts of wire fraud in the US, connected to allegations that they devised a scheme with former Enron executives to defraud the energy giant of $20m, pocketing $7.3m themselves. The US indictment claims the bankers advised NatWest to sell its interest in an Enron business "Swap Sub" for $1m, much less than it was worth, to a vehicle controlled by the executives. It alleges Enron then paid Swap Sub $30m, believing NatWest would receive $20m.

Each count of wire fraud carries a maximum term of five years. Douglas McNabb, a US extradition expert who has testified on behalf of the men, said they would probably get 23 years in prison if they were found guilty.

They are unlikely to get bail and face one to two years in a high-security jail while awaiting trial.^[1]

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[1] Julia Kollewe, NatWest Three Face Extradition to US After Losing Final Appeal, The Independent, Jun. 28, 2006.

McNabb in the News (6/28/06) 2

Senior Principal Douglas McNabb has been quoted by the Associated Press in an article about the NatWest Three’s pending extradition to the United States.

U.S. authorities will now determine the exact departure date of the three. Spragg said the legal team was already preparing to send witnesses and documents to Texas.

Douglas McNabb, a … lawyer who testified as an expert witness on the U.S. legal system at the Bermingham hearing, said that the three would receive a bail hearing on arrival but added that they were likely to remain behind bars until a full trial — which could be several months away.

"From the U.S. perspective they are fugitives ... they will be in the U.S. kicking and screaming, so they would be flight risks," McNabb said.

McNabb added that he expected a host more such cases, given how quickly the Bermingham Three's appeals were dismissed by the British Courts.^[1]

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[1] Jane Wardell, British Bankers Cleared for U.S., AP (via Houston Chronicle), Jun. 28, 2006.

McNabb in the News (6/28/06) 1

Senior Principal Douglas McNabb has been quoted by the Times of London in an article about the NatWest Three’s pending extradition to the United States.

THE NatWest Three will be taken into the custody of US marshals and the FBI in Britain by July 17, just 28 days after the House of Lords refused to hear their petition.

According to Douglas McNabb, an American lawyer specialising in extradition, they will then be handcuffed and chained to each other at the waist and ankles.

…

American law stipulates that the men must be taken before a federal judge for a bail hearing on the next business day after their arrival.

They are unlikely to be given bail, as the judge will treat them as fugitives because they contested the extradition, according to Mr McNabb, who testified about the US legal process during the extradition hearings for the three bankers.

“The only reason that they will be in the US is because they were brought kicking and screaming over the Atlantic,” Mr McNabb said.

If the men arrive in New York, they will be sent a week later to a holding station in Oklahoma City. They may then wait a month before the marshals find an aircraft to transport them to Houston.

…

Mr McNabb said that the trial will be unusual as more than two dozen witnesses must fly into Houston from abroad, while many of the documents in the case are in Britain.

Delays could mean that the three men will be held at the prison for more than a year before their trial begins.^[1]

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[1] Liz Chong, Bankers Could Face a Year in Houston Jail Before Any Trial, The Times (UK), Jun. 28, 2006.

USA PATRIOT Act Convictions—Kurds

The rationale for enacting the USA PATRIOT Act was to make it easier to prosecute terrorists. The reality, however, is that very few alleged terrorists have been prosecuted under the Act. Instead, the provisions of the Act have been used against librarians, money launderers and as a rationale to conduct warrantless electronic surveillance. The Act has also been used against “[t]hree Kurdish men who transferred hundreds of thousands of dollars to the Middle East.”^[1]

The three men, all of whom have been granted asylum in the United States, have no alleged ties to terrorism.^[2] Rasheed Qambari, Amir Rashid, and Ahmed Abdullah were rescued a decade ago by the US military after Saddam Hussein accused them of treachery and threatened their lives because they served American relief agencies in Iraq.^[3] Mssrs. Abdullah and Rashid pleaded guilty “in hopes for leniency,” and prosecutors “agreed no to ask for prison time for them.”^[4] Mr. Qambari went to trial and was convicted, leading prosecutors to seek prison time for him.^[5] A fourth man, Fadhil Noroly, is facing trial next month.^[6]

Like many people in recent months,^[7] the three men were accused of “running money-transfer businesses without licenses.”^[8] The law is controversial because it makes such money transfers illegal “even if operators aren’t aware of the law.”^[9] Some courts have called the law unconstitutional because it creates arbitrary classifications between money transmitters in states that require licenses for money transmitters and those in states that do not require licenses.^[10] Other courts have called the law constitutional, but have required proof that defendant know that the business is required to be licensed.^[11] This is because “the contemporary view [of law] disfavors strict liability offenses.”^[12] However, other courts have taken the exact opposite approach and have required only proof that the business was not licensed.^[13] According to this view, “the legislative history of the Patriot Act amendment to [18 U.S.C. §] 1960 makes clear that a section 1960 violation is a general intent crime that does not require proof of the defendant’s knowledge of the federal registration requirement.”^[14] With this clear disagreement across circuit lines, the question will presumably come before the US Supreme Court for a definitive answer eventually.

The judge in the three men’s case, however, determined that they had not “evil intent” and thus sentenced them only to a term of probation and assessed a fine.^[15]

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[1] 3 Kurdish Men Spared Prison in Funds Transfer, AP (via Kurdmedia.com), Jun. 27, 2006.
[2] Id.
[3] Calvin R. Trice, Va. Kurds Violated Patriot Act, Richmond Times-Dispatch, Jun. 25, 2006.
[4] Id.
[5] Id.
[6] Id.
[7] See, e.g., our posts on the subject here, here, and here.
[8] Trice, supra note 3.
[9] Id.
[10] See United States v. Barre, 313 F. Supp. 2d 1086, 1091 (D. Col. 2004).
[11] See United States v. Talebnejad, 342 F. Supp. 2d 346 (D. Md. 2004).
[12] Id. at 354.
[13] See United States v. Uddin, 365 F. Supp. 2d 825 (E.D. Mich. 2005).
[14] Id. at 829.
[15] AP, supra note 1.