United States v. Sattar; State Secrets Privilege event at American U tomorrow; forthcoming scholarship

1. United States v. Sattar (2d Cir. Nov. 17, 2009)

A substantial victory for the Justice Department this morning: in aset of opinions totaling 191 pages (!), a Second Circuit panel (Sack, Calabresi, and Walker) has affirmed the convictions of Lynne Stewart, Mohammed Yousry, and Ahmed Abdel Sattar, and has remanded for resentencing on grounds that could result in a heftier sentence.   From the introductory section:

In particular, we affirm the judgments as to each defendant’s conviction of conspiring to defraud the United States, in violation of 18 U.S.C. § 371, by violating SAMs imposed upon Abdel Rahman. Contrary to the defendants’ arguments, the evidence is sufficient to sustain these convictions. Moreover, we reject both Stewart’s argument that, as a lawyer, she was not bound by the SAMs, and her belated argument collaterally attacking their constitutionality. We affirm as to Sattar’s conviction of conspiring to murder persons in a foreign country in violation of 18 U.S.C. § 956, and his conviction of soliciting persons to commit crimes of violence — viz., murder and conspiracy to commit murder – in violation of 18 U.S.C. § 373. We conclude that the evidence is sufficient to sustain these convictions, especially in light of testimony establishing that Sattar attempted to undermine a unilateral cease-fire by an Egyptian terrorist organization and to draft a fatwa calling for, inter alia, the killing of “Jews and Crusaders.”

We affirm as to Stewart’s and Yousry’s convictions of providing and concealing material support to the conspiracy to murder persons in a foreign country in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 2, and of conspiring to provide and conceal such support in violation of 18 U.S.C. § 371. We conclude that the charges were valid — that 18 U.S.C. § 2339A is neither unconstitutionally vague as applied nor a “logical absurdity,” as Stewart asserts — and that the evidence was sufficient to sustain the convictions. We also reject Stewart’s claims that her purported attempt to serve as a “zealous advocate” for her client provides her with immunity from the convictions.

Finally, we affirm Stewart’s convictions for knowingly and willfully making false statements in violation of 18 U.S.C. § 1001 when she affirmed that she intended to, and would, abide by the SAMs. In light of her repeated and flagrant violation of  the SAMs, a reasonable factfinder could conclude that Stewart’s representations that she intended to and would abide by the SAMs were knowingly false when made.

We reject the remaining challenges to the convictions.

We affirm the district court’s rejection of Sattar’s vindictive prosecution claim because there is insufficient evidence to support a finding that the government’s pre-trial decision to add new charges against Sattar amounted to an effort to punish him for exercising his constitutional rights. And, because Stewart’s conduct was materially different from, and more serious than, the conduct of other lawyers representing Abdel Rahman who may also have violated the SAMs, we affirm the district court’s rejection of Stewart’s claim that she was   selectively prosecuted on account of her gender or political beliefs. We also conclude that the district court did not abuse its discretion in declining to sever the trial of Stewart and Yousry from that of Sattar in light of the general preference for joint trials, the specific charges at issue here, and the district court’s curative instructions. Nor did the district court abuse its discretion by empaneling an anonymous jury in light of the particular allegations of criminal wrongdoing at issue, involving the corruption of the judicial process, and the widespread publicity about the case. We find no fault with the district court’s resolution of allegations of juror impropriety. We also agree with the district court’s treatment of confidential information, including its denial of Stewart’s motion to suppress evidence obtained pursuant to the Foreign Intelligence Surveillance Act (“FISA”), its ex parte, in camera examination of FISA wiretap applications, and its rejection of Stewart’s more general challenges to the constitutionality of FISA. Finally, we find no fault with the district court’s treatment, in accordance with the Classified Information Procedures Act (“CIPA”), of Stewart’s motion to compel disclosure of information related to potential surveillance conducted by the National Security Agency.

We therefore affirm the convictions in their entirety. We also affirm the sentences of Sattar and Yousry. We conclude that the district court committed neither procedural error in calculating the applicable Guidelines ranges, nor substantive error in varying from those ranges pursuant to its consideration of the factors set forth in 18 U.S.C. § 3553(a). We nonetheless remand their cases to the district court to allow it to reconsider their sentences should it choose to do so in light of the resentencing of Stewart. We cannot affirm Stewart’s sentence on the basis of the record before us. Because the district court declined to find whether Stewart committed perjury at trial, we cannot conclude that the mitigating factors found to support her sentence can reasonably bear the weight assigned to them. This is so particularly in light of the seriousness of her criminal conduct, her responsibilities as a member of the bar, and her role as counsel for Abdel Rahman. We therefore remand the cause to the district court for further consideration of her sentence, in light of, among other things, the charges of perjury against her and of any other matter it deems necessary or advisable, and direct the court to revoke Stewart’s and Yousry’s bail pending appeal and to order them to surrender to the United States Marshal to begin serving their sentences forthwith.

2. Conference concerning the State Secrets Privilege: All day tomorrow (Wed. the 18th) at American University’s Washington College of Law

Details here: http://www.wcl.american.edu/lawandgov/cgs/documents/20091118_cgs_sssp_agenda.pdf?rd=1

9:00 a.m. Welcome and Introduction –‐‑–‐‑Daniel J. Metcalfe, Executive Director, Collaboration

on Government Secrecy, Washington College of Law

9:10 a.m. Keynote Speech –‐‑–‐‑Congressman Jerrold Nadler, Chairman, House Judiciary

Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties

9:55 a.m. Break

10:00 a.m. Panel One: Background of the Privilege a foundation discussion of the state

secrets privilege’s origin, its development, and its current status in the courts.

Robert M. Chesney, Charles I. Francis Professor of Law, University of Texas; Laura

K. Donohue, Associate Professor, Georgetown Law, and affiliated faculty member,

Georgetown Law’s Center on National Security and the Law; Douglas N. Letter,

Terrorism Litigation Counsel, Appellate Staff, Civil Division, Department of

Justice; and Amanda Frost, Professor, Washington College of Law (moderator)niversity

11:30 a.m. Panel Two: Obama Administration Policy and Practice a critical

examination of the Obama Administration’s emerging positions on

the privilege and how they differ from positions advanced in litigation

during the Bush Administration.

Sharon Bradford Franklin, Senior Counsel, The Constitution Project; Donald B.

Verrilli, Jr., Associate Deputy Attorney General, Department of Justice; Benjamin

E. Wizner, Counsel, National Security Project, American Civil Liberties Union;

and Daniel Marcus, Faculty Fellow in Law and Government, Washington College

of Law, and former Associate Attorney General (moderator)

1:00 p.m. Luncheon –‐‑–‐‑ Louis Fisher, Specialist in Constitutional Law, Library of Congress,

and author of The Politics of Executive Privilege(Carolina Academic Press 2004)

2:15 p.m. Panel Three: Legislative Perspective an up–to–date view from Capitol Hill of

the prospects for state secrets privilege reform by Congress.

Danielle Brian, Executive Director, Project on Government Oversight; Sean

Moulton, Director of Information Policy, OMB Watch; Heather C. Sawyer,

Majority Counsel, House Subcommittee on the Constitution, Civil Rights,

and Civil Liberties; and William R. Yeomans, Fellow in Law and Government,

Washington College of Law, and former Chief Counsel for Senator Edward M.

Kennedy, Senate Judiciary Committee (moderator)

3:30 p.m. Panel Four: Idealized View of the Privilege a wide–ranging assessment of

what, all things considered, the nature and scope of the privilege ought to be.

Elizabeth Goitein, Director, Liberty and National Security Project, Brennan Center

for Justice, New York University School of Law;Kenneth Gude, Associate

Director, Center for American Progress; Carl J. Nichols, former Principal Deputy

Associate Attorney General, Civil Division, Department of Justice; Law; Kent

Roach, Prichard–‐‑Wilson Chair of Law and Public Policy, Faculty of Law,

University of Toronto; and Stephen I. Vladeck, Professor, Washington College

of Law (moderator)

5:00 p.m. Reception

3. Forthcoming Scholarship

Judicial Interpretations of Egan

Louis Fisher, Library of Congress

Executive officials and scholars often cite the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988), to claim broad and even unchecked constitutional powers by the President over foreign policy, national security, and access to classified documents. However, the case was originally one of statutory construction: what was the intent of Congress when the executive branch grants and revokes security clearances? The Court’s decision strayed from that core issue and discussed presidential powers under Article II, creating misconceptions in the lower courts. Often missing in those rulings is Egan’s policy that whatever scope exists for presidential authority, that range depends on what Congress has enacted into law (“unless Congress specifically has provided otherwise”).

Getting Back on Track to Close Guantanamo

Ken Gude, Center for American Progress

The process for closing Guantanamo has not gone as smoothly as the Obama administration had hoped. It was always going to be difficult, but some unforeseen obstacles were thrown in its path, and the new administration made some mistakes that have cost time and sucked energy away from the core mission of closing the prison. Even with these setbacks, the actual closure of Guantanamo is now within reach, but the Obama administration will have to do the following:

Push back the closure deadline to July 2010. It is extremely unlikely that the administration can meet the one-year timeline without unwanted compromises. Merely allowing the deadline to slip, however, would be a serious mistake. !e Obama administration should establish new deadline and, at the same time, announce a comprehensive plan to get the Guantanamo detainee population down to zero

Prosecute 9/11 conspirators in federal court and limit military commissions to battlefield crimes. The prosecution of Khalid Sheik Mohammed and his co-conspirators is the most important of all cases at Guantanamo. U.S. federal criminal courts can handle this prosecution, and it will demonstrate meaningful change, setting the tone for broader U.S. detention policy. It is in the United States’ strategic interest to refrain from seeking the death penalty no matter which forum it chooses, thus denying martyrdom to the 9/11 conspirators. Military commissions remain tainted by Bush-era mistakes, and must be limited-if used at all-to battlefield crimes in order to gain a measure of legitimacy.

Limit military detention only to enemy fighters captured in combat zones and use criminal law to prosecute detainees captured far from any battlefield. The Supreme Court has already upheld narrow military detention authority for al Qaeda and Taliban fighters captured in Afghanistan. The Obama administration should return to this kind of traditional military detention. The criminal laws of the United States and our allies and partners are well-suited to prosecute suspected terrorists captured far from the battlefield.

Incarcerate detainees convicted in U.S. criminal courts in maximum-security U.S. prisons and transfer those who will remain in military custody to Bagram prison in Afghanistan. U.S. maximum and supermaximum security prisons currently hold hundreds of convicted terrorists and are perfectly capable of safely imprisoning Guantanamo detainees. Sending Afghan battlefield detainees back to Afghanistan makes logical sense and would eliminate the need to return to Congress for additional funding to close Guantanamo. The challenges in closing Guantanamo have been significant and the criticism that President Barack Obama has received from many quarters has been as irresponsible as it is unrelenting. !is political pressure should not cause the Obama administration to back away from necessary change. Modest reforms, while welcome, are not sufficient if it leaves the Bush administration’s detention regime largely intact. Despite all of the sound and fury, however, only one question matters: Can President Obama fulfill his pledge to deliver a paradigm shift in U.S. detention policy?

Deep Secrecy

David Pozen

Stanford Law Review, Forthcoming

This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been paid to the structure of government secrets, as distinct from their substance or function. Yet these secrets differ systematically depending on how many people know of their existence, what sorts of people know, how much they know, and how soon they know. When a small group of similarly situated officials conceals from outsiders the fact that it is concealing something, the result is a deep secret. When members of the general public understand they are being denied particular items of information, the result is a shallow secret. Every act of state secrecy can be located on a continuum ranging between these two poles.

Attending to the depth of state secrets, the Article shows, can make a variety of conceptual and practical contributions to the debate on their usage. The deep/shallow distinction provides a vocabulary and an analytic framework with which to describe, assess, and compare secrets, without having to judge what they conceal. It sheds light on how secrecy is employed and experienced, which types are likely to do the most damage, and where to focus reform efforts. And it gives more rigorous content to criticisms of Bush administration practices. Elaborating these claims, the Article also mines new constitutional territory – providing an original account of the role of state secrecy generally, as well as deep secrecy specifically, in our constitutional order.

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