Closed Hearing—Syed Haris Ahmed and Ehsanul Islam Sadequee

A few months ago, we discussed Syed Haris Ahmed and Ehsanul Islam Sadequee, who are both accused of various terrorism-related offenses. If you recall, at the time, we mentioned that Mr. Ahmed, a former Georgia Tech student, was being held at an undisclosed location.

Today, there is news that US Magistrate Judge Gerrilyn Brill has ordered a “closed-door hearing in which prosecutors and defense lawyers may discuss the disclosure of classified information.”^[1] A lawyer for several media organizations, Tom Clyde, “said he is considering filing a motion objecting to the Sept. 14 hearing.”^[2] His basis for wanting to do so is that “the hearing should be open if the discussion involves how to disclose classified information and does not entail revealing that information during the hearing.”^[3]

A detention hearing for Mr. Sadequee will be held on September 22, and at that hearing, “his lawyers are expected to challenge the government’s effort to continue holding him”; similar plans may be in place for Mr. Ahmed.^[4]

Mr. Clyde’s proposed intervention into the case is a very interesting step. Joinders and interpleaders are fairly common practices in civil litigation,^[5] but are fare less common in criminal prosecutions. A joinder is the process by which a party asserting claim to relief may join, either as independent or as alternate claims, as many claims as the party has against an opposing party.^[6] An interpleader is the process by which a person having claims against the plaintiff may be joined as defendants and are required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.^[7]

Unlike civil cases, which may have a whole web of plaintiffs and defendants, with their various claims and cross-claims, criminal cases typically have the United States on one side, and the defendant(s) on the other side; other interested parties are generally excluded.

However, where access to the courts are concerned, intervention is rather common. Typically, the media will file a Motion to Intervene for the limited purpose of being heard by the court regarding access to the court.^[8] The general rule regarding media access to criminal trial proceedings is that “[t]he press and public enjoy a qualified First Amendment right of access to criminal trial proceedings. … Open criminal proceedings have been an ‘indispensable attribute of an Anglo-American trial’ for centuries.”^[9] It is not, however, absolute; the right of access “must yield to the supervisory power of the court to control its own records when ‘the public’s right of access is outweighed by competing interests.”^[10] National security is one of those competing interests.

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[1] US Judge Schedules Closed Hearing to Discuss Classified Information in Terrorism Case, AP (via International Herald Tribune), Sept. 1, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] See Fed. Rules Civil Proc. 20, 22.
[6] Id. Rule 20(a).
[7] Id. Rule 22(1).
[8] See, e.g., Reporters Committed for Freedom of the Press, Movants-Intervenors’ Motion To Intervene For The Limited Purpose Of Being Heard In Connection With Access To Certain Portions Of The Record And Memorandum In Support, April 3003, filed in United States v. Moussaoui, No. 01-455-A, (E.D. Va. 2003).
[9] United States v. Ochoa-Vasquez, 428 F.3d 1015, 1028-29 (11th Cir. 2006).
[10] United States v. Moussaoui, No. 03-4162, (4th Cir. 2003).

Islamic Charities—Guantanamo Bay Detainees

For four years, Adel Hassan Hamad has been detained at Guantanamo Bay, “based in part on allegations that he worked for two charity groups in Afghanistan that the US military says support terrorism.”^[1] Neither of the charities, however, appear on the State Department’s list of designated terrorist organizations.^[2] The most recent public list of designated foreign terrorist organizations [hereinafter FTOs] was promulgated on October 11, 2005.^[3]

Another individual at Guantanamo, “whose name does not appear in the record,” is being held in part “because he worked for the International Islamic Relief Organization,” which has branches in the Philippines and Indonesia and is accused by the US Treasury Department as being linked to terrorism.^[4] The IIRO, however, often participates in a UN council on economic and social issues, and it, too, is not on the FTO list.^[5] Scores of detainees, in fact, are linked to “legally recognized Muslim charities that are considered mainstream in the Middle East, are not on the State Department’s terrorist list, and employ relief workers around the globe.”^[6]

While the Department of Defense says that the publicly available information on the individuals—which is available on the DOD’s website—contains only unclassified information, and therefore may not include more serious evidence, it is troubling that the DOD “is citing mere association with these organizations … as reasons for detaining people.”^[7] As we showed the other day, in a federal criminal trial, mere association with a guilty person does not connote guilt, and in fact, such evidence should not even be introduced against a defendant.

We have discussed a number of problems with Guantanamo, the primary problem being the fact that a large number of the detainees are unable to be released, even though there are no charges pending against them, and none are likely to be brought. Last week it was reported that “six men suspected of plotting to attack the US embassy” in Sarajevo, and who were brought to Guantanamo, are still at the base, “even though the original allegations about the embassy attack have been discredited and dropped.”^[8] In 2004, Bosnian prosecutors formally exonerated the men, and the Bosnian prime minister asked the Bush administration to release them, “calling the case a miscarriage of justice.”^[9] While the men apparently went from Algeria to Bosnia during the 1992-1995 Bosnian war to fight, they became humanitarian aid workers after the war.^[10] Senior Bosnian officials have said that they have been told by US diplomats that the men will never be allowed to return to Bosnia, where they have dual citizenship, and Algeria has so far balked at the United States requests to take the prisoners back “on the condition that they be confined or kept under surveillance there.”^[11]

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[1] Farah Stockman, At Guantanamo, Accusations Over Ties to Charities, Boston Globe (via International Herald Tribune), Aug. 31, 2006.
[2] Id.
[3] See Office of Counterterrorism, Fact Sheet: Foreign Terrorist Organizations, Dept. of State, Oct. 11, 2005, last visited Aug. 31, 2006.
[4] Stockman, supra note 1.
[5] Id.
[6] Id.
[7] Id.
[8] Craig Whitlock, At Guantanamo, Caught in a Legal Trap Washington Post, Aug. 21, 2006.
[9] Id.
[10] Id.
[11] Id.

McNabb in the News (8-30-06)

The International Herald Tribune editorial written by Douglas C. McNabb and C.J. Dresden has caught the eye of Monrovia’s The Analyst newspaper, which has written an article about the editorial.

Two … members of the global criminal defense firm, McNabb Associates, Douglas C. McNabb and C.J. Dresden, have condemned Taylor’s lawyers for the reported violation of his rights.

According to them, besides not visiting Taylor’s ICC prison cell to asses the conditions under which Mr. Taylor is being held, they seem completely unprepared to fight by responding to the barrage of media images against him.

The immobility of the lawyers and their un-preparedness to challenge and chide some of the issues that have been raised against Taylor, they contended, may do injustice to him.

…

They accused the Special Court of giving its former chief prosecutor, Mr. David Crane, the opportunity to interpret the transfer and the attention it has garnered, including the Special Court's photos and home movies.

The photos and movies, they claimed, allowed the people of West Africa to see Charles Taylor - who was so feared - humbled before the law as indication that justice was being done.

“If this is what ‘justice’ means, why bother with a trial and a defense at all?” they wondered.

…

Taylor’s lawyers, headed by the British barrister, Karim Ahymad Khan, would not be reached for comment, but the Acting Prosecutor of the Special Court, Christopher Staker, told a team of international journalists recently in Freetown that the defense council was adequately responding to charges against Taylor.^[1]

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[1] U.S. Firm Condemns Taylor’s Lawyers, The Analyst, Aug. 30, 2006.

Conflating Terrorism and Gangs--John Cornyn

There has been a concerted effort among politicians to link gang-related activity to terrorism-related activity. We pointed out many months ago that the phrase “narco-terrorism” was becoming an increasingly common watchword. When the USA PATRIOT Act was proposed and passed in Congress, one of the rationales and main arguments was—and continues to be—that law enforcement should not be denied the ability to track and monitor terrorists as it is able to track and monitor organized crime.^[1] (The question about whether the tools used to track and monitor organized crime are appropriate was never asked.)

In some ways, it makes sense to see things through this lens. After all, terrorist organizations seem to take the same form as that seen in The Godfather or The Sopranos; Osama bin Laden takes the role of Vito Corleone or Tony Soprano, and he is surrounded by his dutiful assistants, who dispatch hit-men to do the dirty work. The hinterlands of the Afghanistan-Pakistan border may not necessarily be New York in the 1940s or New Jersey in the 2000s, but the general idea is similar, even though, as we pointed out earlier, this approach to terrorism is being rethought.

Nonetheless, terrorism and gangs are becoming conflated, and Texas Senator John Cornyn was in Texas recently where he stressed this line of thought. At a meeting at Rice University with local, state, and federal law enforcement officials, Sen. Cornyn said that these agencies “need to tap federal resources to readily identify potential terrorist threats.”^[2] He also argued that task forces for drugs and gangs “need to be realigned to meet new challenges posed by homegrown or imported terrorism,” because, as he puts it,

”Gangs operate off of money. Money comes from drugs, guns, smuggling human beings. … Obviously this becomes not only a local law enforcement issue but it becomes a national security issue.”^[3]

Gang activity, he argues, should be scrutinized for a possible terrorist connection, and local law enforcement officials should be given the appropriate resources to conduct intelligence gathering, share information, and have better technology, thus creating an infrastructure that would “enable[] all agencies … to have (access to a) database so that whenever we do a routine stop we can run a check on an individual.”^[4]

Saying that terrorist organizations have the hallmarks of gang hierarchy is one thing, but it doesn’t mean, ipso facto, that gangs exhibit terrorist behavior. The United States, in its definition of terrorism, still largely requires a political end, and there is still the widely-held belief that terrorism is generally the use of violence against a civilian population to bring about a political result.^[5] Defining “terrorism” down, by linking gang activity to terrorism, runs the very real risk of dismantling efforts to establish a universal definition of terrorism, which in turn hurts the movement toward universal jurisdiction for terrorism crimes. Indeed, it is reminiscent of Canada’s attempts to equate terrorism with gangs, something that we discussed in June.

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[1] See, e.g., US DOJ, The USA PATRIOT Act: Preserving Life and Liberty, last visited Aug. 29, 2006.
[2] Armando Villafranca, Cornyn Ties Gangs to Potential Terrorism, Houston Chronicle, Aug. 28, 2006.
[3] Id.
[4] Id.
[5] This, of course, begs the question of how to differentiate terrorists from freedom-fighters. Like so many Courts of Appeals, we will simply say that that question is not before us today, and we therefore decline to address it.