nationalsecuritylaw United States v. Kahsmiri (N.D. Ill. Jan. 25, 2011) (motion for severance of charges denied)

* United States v. Ksahmiri (N.D. Ill. Jan. 25, 2011) (denial of motion for relief from prejudicial joinder of counts)

In a case involving a defendant charged with providing material support to various plots including the Mumbai attack and a plan to attack a target in Denmark relating to a cartoon controversy, Judge Leinenweber has rejected a defense motion challenging the joinder of the charges relating to the disparate plots. The defendant argued that the “cumulative effect of joining the counts will prejudice the jurors, and that he will be required to present conflicting defenses to the counts.” In support of the motion, the defense submitted an ex parte document presumably explaining how the joinder of the counts would impact the defense strategy. The court’s opinion took account of that secret filing, but nonetheless rejects the motion. The rest of the opinion’s text appears below:

II. LEGAL STANDARD

Offenses can be joined if they "are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Fed. R.Crim. P. 8(a). Courts have a strong interest in joining counts for reasons of efficiency and judicial economy. See United States v. Stokes, 211 F.3d 1039, 1042 (7th Cir.2000). However, under Rule 14(a), "[i]f the joinder of offenses or defendants … appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires." Fed. R.Crim. P. 14(a). The court has discretion to grant or deny a motion for severance, but a defendant must show actual prejudice from the joinder of offenses to receive such severance. See United States v. L’Allier, 838 F.2d 234, 241 (7th Cir.1988).

III. ANALYSIS

A. Contradictory Defenses at Trial

Rana argues that joinder will require him to present conflicting defenses to the Mumbai and Denmark counts. He contends that the counts involve separate terrorist plots with separate organizations, which will require separate defense strategies. The Government, on the other hand, argues that Lashkar was involved in both the Mumbai and Denmark plots, making joinder appropriate. Rana acknowledges that Co-Defendant David Headley ("Headley"), who has pleaded guilty to his role in the attacks, admitted in his post-arrest statement that Lashkar Member A–Headley’s "handler" who allegedly gave Headley his first surveillance assignment in Mumbai–also gave him his first assignment to plan the Denmark attack. Headley allegedly traveled to Denmark on this assignment in January 2009. Rana alleges that Lashkar Member A withdrew the organization’s involvement in the attack in March 2009, and that Headley subsequently met with Harakat ul Juhad al Islami ("HJI") leader, and Co-Defendant, Ilyas Kashmiri ("Kashmiri") to urge HJI’s support of the Denmark attack. Rana argues that Lashkar had only a brief and nonmaterial involvement with the Denmark plot, which differentiates it from the Mumbai attack. In addition, he argues that the different circumstances surrounding Headley’s involvement in Mumbai and Denmark will require him to present conflicting defenses to the counts.

*2 However, a more thorough examination of the allegations of Rana’s and Lashkar’s involvement in the Denmark plot shows that a sufficient nexus between the counts exists to warrant joinder under Rule 8(a). The Government alleges that Headley met with Lashkar Member A around October 2008, at which time the first discussion of Headley’s surveillance of the Jyllands-Posten newspaper offices in Copenhagen and Aarhus occurred. Next, in late December 2008 and early January 2009, Headley allegedly met with Rana to discuss the Denmark plot. At these meetings, Headley allegedly asked Rana for assistance in providing him the same cover as Rana had allegedly provided him for his Mumbai surveillance–allowing him to pose as an employee of Rana’s First World Immigration Services ("First World") and open a First World office in Copenhagen. These discussions also involved Headley’s plan to gain entry into the newspaper’s office by representing that First World wanted to advertise in the paper. In addition, the Government alleges that Rana and Headley printed First World business cards for Headley prior to his trip.

Again, Headley’s Denmark trip allegedly occurred in January 2009. While in the country, he allegedly gained access to the Jyllands-Posten offices under the pretext of placing an advertisement for First World. On January 29, 2009, Rana, posing as Headley, allegedly sent an e-mail to the newspaper showing interest in placing this ad. After conducting his Denmark surveillance, Headley allegedly traveled to Pakistan to meet with Lashkar Member A and Co-Defendant Abdur Rehman Hashim Syed ("Syed"), to whom he provided videos of his surveillance. In February 2009, Syed allegedly arranged a meeting between Headley and Kashmiri in Pakistan. In March 2009, after Lashkar Member A told Headley that Lashkar would halt its involvement in the Denmark attack, Headley turned to Kashmiri to receive HJI’s assistance with the plot.

Given these allegations, the Government’s prosecution of the Denmark count would almost certainly involve allegations and evidence concerning Lashkar, making joinder appropriate between Counts Eleven and Twelve. With allegations concerning Lashkar prevalent in all counts, Rana cannot show actual prejudice from joinder of Count Nine as well. The counts have a sufficiently similar character to warrant joint prosecution. If they were severed, Rana would be subject to cross-examination concerning Lashkar if he testified in either case. Defendant argues that the Government’s failure to charge Lashkar Member A or any other Lashkar member in the Denmark plot shows that a tenuous connection exists between Lashkar and the Denmark plot. Rule 8(a), however, does not oblige the Government to bring charges against these other people in order to join the counts against Defendant. See Fed. R.Crim. P. 8(a).

The Court does not rule on whether, if the counts were severed, the evidence concerning Count Nine would be admissible in the prosecution of Count Eleven under Rule 404(b) as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b). If this modus operandi evidence were admissible in both prosecutions, Rana could not show the prejudice necessary to sever the counts. See United States v. Rollins, 301 F.3d 511, 519 (7th Cir.2002). At this point, however, the Government has not tendered a sufficient argument for Rule 404(b) admissibility. Nevertheless, the denial of Rana’s Motion is appropriate considering the common elements and similar character of the Mumbai and Denmark counts.

B. Potential of Cumulative Evidence to Bias Jurors

*3 Rana argues that because the charges against him involve two separate terrorist plots, the jury will become incapable of rendering an objective opinion. He argues that the cumulative effect of the evidence presented in a joint prosecution may "lead the jury to infer that [he] is disposed towards terrorism," and it will therefore render a verdict on this inference rather than the facts of the case. The Court acknowledges the incendiary nature of the charges, especially considering the heightened fears and awareness of terrorism after the attacks of September 11, 2001. A jury, however, after hearing the evidence in the case and being instructed in the law by the Court, is presumed to be able to properly apply the law to the facts before them. See Sparf v. United States, 156 U.S. 51, 173 (1895). In addition, the Court can cure the possibility of prejudice through proper jury instructions. See Zafiro v. United States, 506 U.S. 534, 540-41 (1993); Rollins, 301 F.3d at 519. After all, "juries are presumed to follow instructions." Zafiro, 506 U.S. at 540 (internal quotation omitted).

Because the Court can cure potential prejudice by instructing the jury that the Government must prove each count beyond a reasonable doubt, Rana cannot show the required actual prejudice from the effects of cumulative evidence to warrant severance.

C. Judicial Economy

A final, yet important factor to consider with this Motion is the economic impact of conducting two separate trials. In determining whether to sever counts, a trial court balances the costs to conduct separate trials against the possible prejudice in a single trial. See United States v. Donaldson, 978 F.2d 381, 391 (7th Cir.1992); Stokes, 211 F.3d at 1042 ("[J]oinder of offenses reduces the waste of precious judicial and prosecutorial time in the already overburdened federal judicial system and reduces the burdens on witnesses from testifying at multiple trials.").

Both parties have stated in open court that they do not expect the trial to be short. The proceedings will require a large number of work hours from all parties involved, including the attorneys, the Judge, the Court’s staff, and the U.S. Marshals Service. Witnesses may potentially need to travel to Chicago to testify. In addition, given the serious and sensitive nature of the terrorism charges against Rana, the Court will incur considerable expenses in empaneling a jury and bolstering courtroom security. If the Court severs the counts, duplicating these efforts will require significant investments in both human and monetary resources. Given that Rana cannot show that he will suffer actual prejudice from joinder, the costs of conducting two trials outweigh the potential prejudice Rana may suffer from joinder of the three counts.

IV. CONCLUSION

For the reasons stated herein, Rana’s Motion to Sever Count Eleven of the superseding indictment from Counts Nine and Twelve is denied.

*4 IT IS SO ORDERED.

nationalsecuritylaw UK Home Secretary’s Review of Counterterrorism Powers

* UK Home Secretary’s Review of Counterterrorism Powers

Last week, Home Secretary Theresa May announced completion of a much-anticipated review of UK counterterrorism laws and policies, and a corresponding set of recommendations that to some extent call for scaling things back. All the key documents are here. Or, there is a summary

here, the key points of which I reprint below:

The recommendations follow a comprehensive review of counter-terrorism powers and legislation which sought to assess whether they were necessary, effective and proportionate. Specifically, it looked at:

· how long terror suspects can be detained before being charged

· the use of section 44 stop and search

· the use of Regulation of Investigatory Powers Act (RIPA)

· the banning of groups that espouse or incite hatred or violence

· the deportation of foreign terrorists; and the control order regime

…

Key recommendations include:

· an end to 28 day detention without charge – returning to 14 days as the standard maximum period that a terrorist suspect can be detained before they are charged or released

· an end to the indiscriminate use of terrorism stop and search powers provided under Section 44 of the Terrorism Act 2000

· the end to the use of the most intrusive RIPA powers used by local authorities to investigate low level offences and a new requirement that all applications

· by local authorities to use any RIPA techniques are approved by a magistrate

· a commitment to rationalise the legal basis by which communications data can be acquired and, as far as possible, to limit that to RIPA

· a stronger effort to deport foreign nationals involved in terrorist activities in this country, while fully respecting our human rights obligations;
the repeal of control orders and their replacement with a more focused and targeted regime which carries restrictions similar to powers used in the civil justice system

· additional resources to the police and security agencies to underpin the effectiveness of the new regime and our commitment to prosecuting wherever possible

On pre-charge detention, the government concluded that the period terror suspects can be held before they are charged should revert to 14 days and that provision should be made in draft primary legislation for this period to be temporarily increased to 28 days only in exceptional circumstances where the government judges it is essential.

The government proposes to replace section 44 stop and search powers with a more tightly defined power allowing a senior police officer to make an authorisation for stop and search powers where they have reason to suspect a terrorist attack will take place and searches are necessary to prevent it.

The ‘necessity’ test replaces the less stringent threshold of ‘expedient’. This targeted measure will also prevent the misuse of these powers against photographers.

On RIPA, the government will deliver the Coalition commitment to prevent local authorities from using these powers unless it is to prevent serious crime and has been authorised by a magistrate.

The government is committed to tackling those who incite or promote hatred and violence, exposing and confronting the bigoted ideology of extremists, and prosecuting those who step outside the law. After careful consideration the review recommends that it would be disproportionate to widen powers to deal with these groups as there would be unintended consequences for the principles of freedom of expression. It therefore proposes to draw upon the wide range of powers already available for tackling racial and religious hatred and public disorder as well as our work to tackle extremism and promote integration and participation.

The review also found that it is both legitimate and necessary to seek to extend arrangements with more countries to deport foreign nationals involved with terrorism.

The government is clear that prosecution, conviction and imprisonment or deportation will always be our preferred method for dealing with terrorists. But in the rare cases where that is not immediately possible, it would be irresponsible to allow these individuals to go freely about their terrorist activities. The review therefore proposes to repeal control orders and introduce a new, more focused regime.

Under the new regime:

· restrictions that impact on an individual’s ability to follow a normal pattern of daily life will be kept to a minimum

· the legislation will make clearer what restrictions can and cannot be imposed

· the new measures will have a two year maximum time limit and will only be imposed by the Home Secretary with prior permission from the High Court, except in urgent cases

The Home Secretary will need reasonable grounds to believe that an individual is or has been involved in terrorism-related activity – a higher test than under the current regime – and be satisfied that it is necessary to apply measures from the regime to protect the public from a risk of terrorism

A more flexible overnight residence requirement will replace the current curfew arrangements and forcible relocation will be scrapped and replaced with the power to order more tightly-defined exclusions from particular areas and to prevent foreign travel

The government will now bring forward legislation to introduce the new regime in the coming weeks to give Parliament the opportunity to thoroughly scrutinise this legislation.

However we cannot allow the existing regime simply to lapse; to do so would remove all restrictions on the activities of the present subjects of control orders.

So while Parliament considers that legislation, we will renew the current regime until the end of the year to allow the replacement to take effect.

The review also recognised that in exceptional circumstances, additional measures may be required. Legislation will be published, but not introduced until necessary, allowing more stringent measures including curfews and further restrictions on communications, association and movement. This would require an even higher statutory test for involvement in terrorism related activity to be met – the balance of probabilities – and the legislation would be introduced to Parliament only when necessary to protect the public from a risk of terrorism.

Lord Macdonald of River Glaven has provided independent oversight of the entire CT Review process, with access to all relevant papers and playing a role in testing thinking and ensuring all the evidence is given proper attention. His report is published today alongside the CT Review report and he makes clear that he found the overall process of the review to be sound.

nationalsecuritylaw audio from debate on targeted killings (Michael Lewis and Ben Wizner, Jan. 27, 2011)

* Audio from debate on targeted killings (Michael Lewis and Ben Wizner, Jan. 27, 2011)

This runs about 46 minutes: http://www.fed-soc.org/publications/pubid.2083/pub_detail.asp

nationalsecuritylaw In re Terrrorist Bombings of the U.S. Embassies in East Africa (2d Cir. Jan. 26, 2011)

* In re Terrorist Bombings of the U.S. Embassies in East Africa (2d Cir. Jan. 26, 2011)

Hot on the heels of Ghailani’s sentencing, we have a Second Circuit summary opinion (Judges Feinberg, Newman, and Cabranes) affirming the conviction of co-conspirator Mohamed Rashed Daoud al-O’whali in connection with the same plot. O’whali had been convicted back in May of 2001, and his conviction was affirmed originally in 2008. Later, however, O’Whali moved for the case to be remanded to the district court for reconsideration of the voluntariness of certain statements he had made to the government, in light of new information. The case was sent back to the district court, which held a hearing but then concluded that reopening the original suppression hearing was not warranted. O’Whali appealed that determination, resulting in this week’s summary opinion affirming the district court’s decision (without further explanation other than to say the panel found the appellant’s arguments meritless).

nationalsecuritylaw apologies for that last garbled post – the server is not working at the moment

nationalsecuritylaw upcoming event: “9/11 and the Legal Landscape: A Decade Later”

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nationalsecuritylaw upcoming event: “International Law & the Threat of Force” (February 4, Georgetown University)

* Upcoming event: “International Law and the Threat of Force” (Georgetown, Feb. 4th)

Georgetown University’s Institute for Law, Science, and Global Security is proud to host a panel discussion on "International Law and the Threat of Force." Advances in the development of WMD programs in the international system have led to a number of recommendations for action among the global community. While some have argued for stricter sanctions for violators of multilateral agreements, others posit that more severe measures should be considered. When weighing the options, what are the rules governing the use of force in the international system? Has there been a political change with respect to anticipatory self-defense and the threat of force?

Leading experts in the field of international law, global security, and nonproliferation have been assembled to discuss the legal and policy issues concerning the threat of force in the international system. Panelists include:

Dr. Catherine Lotrionte – Moderator
Associate Director, Institute for Law, Science, and Global Security
Georgetown University

Dr. Anthony Arend
Director, Master of Science in Foreign Service Program
Georgetown University

Mr. Orde Kittrie
Professor of Law, Sandra Day O’Connor College of Law
Arizona State University
Mr. Leonard Spector
Director, James Martin Center for Nonproliferation Studies Washington DC Office
Monterey Institute for International Studies

The event will take place on Friday February 4th from 10am to 12pm in the Lohrfink Auditorium located in the Hariri Building on Georgetown University’s main campus. For more information, contact lsgs or visit http://lsgs.georgetown.edu/programs/nlp/ThreatsOfForce/. We look forward to seeing you there!

ThreatsOfForce.pdf

nationalsecuritylaw job opp: Staff Jobs for Constitution Project Task Force on Detainee Treatment

* Job opp: Constitution Project’s new “Task Force on Detainee Treatment” seeks staff

See the attached document for the details – there are several positions at issue. As to the Task Force itself, this is what the Constitution Project says on its website:

Task Force on Detainee Treatment Launched

WASHINGTON – The Constitution Project (TCP) announced the formation of a bipartisan Task Force

on Detainee Treatment. The goal of the Task Force is to bring to the American people a comprehensive

understanding of what is known and what may still be unknown about the past and current treatment

of detainees by the U.S. government, as part of the counterterrorism policies of the Obama, Bush and

Clinton administrations.

The Task Force will help policymakers and the public confront alleged past abuses—including torture

and cruel treatment—by following the facts. As an ideologically diverse, objective, third party the Task

Force is uniquely positioned to make sense of the vast quantity of information in the public domain. It

will review this information, determine where the holes are and then pass the baton to the

administration, Congress and ultimately—to the American people—who will determine what steps

should be taken next.

According to TCP President Virginia Sloan, “The Task Force is an idea that took shape over a period of

nearly two years, with support and input from a broad coalition of organizations and individuals with an

interest in protecting America’s civil liberties and strengthening the rule of law.”

Asa Hutchinson, a Task Force Chair and the former Undersecretary of the Department of Homeland

Security during the George W. Bush administration remarked, “This is a national security issue. We are

still facing a real threat from terrorists and others who don’t trust or like us. It is in all of our interests to

discover the truth, so that we can deal with the accusations, make whatever reforms may be needed,

and strengthen America’s credibility on the world stage.”

The Task Force chairpersons and members are:

 Eleanor J. Hill ‐ Task Force Chairperson; Partner, King & Spalding; Staff Director, Joint

Congressional Inquiry on the September 11th attacks; Inspector General, Department of

Defense, 1995‐1999

 Asa Hutchinson ‐ Task Force Chairperson; Senior Partner, Asa Hutchinson Law Group;

Undersecretary, Department of Homeland Security during the George W. Bush administration,

2003‐2005; Administrator, Drug Enforcement Administration, 2001‐2003; Member of Congress,

(R‐AR), 1997‐2001; U.S. Attorney, Western District of Arkansas, 1982‐1985

 Ambassador James R. Jones ‐ Task Force Chairperson; Partner, Manatt, Phelps & Phillips, LLP;

Member of Congress (D‐OK), 1973‐1987; Ambassador to Mexico, 1993‐1997

 Talbot “Sandy” D’Alemberte – Past President of the American Bar Association and Co‐Founder

of the ABA’s Central European and Eurasian Law Institute; President Emeritus of The Florida

State University

2

 Richard A. Epstein ‐ Laurence A. Tisch Professor of Law, New York University Law School; Peter

and Kristen Bedford Senior Fellow, The Hoover Institution; Senior Lecturer, University of Chicago

Law School

 Dr. David P. Gushee ‐ Distinguished University Professor of Christian Ethics and Director, Center

for Theology and Public Life, Mercer University

 Azizah al‐Hibri ‐ Professor, The T.C. Williams School of Law, University of Richmond; President,

Karamah (Muslim Women Lawyers for Human Rights)

 Brigadier General David Irvine, USA (Ret.) ‐ in the private practice of law’ in Salt Lake City, Utah;

Retired Army Reserve strategic intelligence officer; taught prisoner interrogation and military

law for 18 years with the Sixth Army Intelligence School; served 4 terms as a Republican

legislator in the Utah House of Representatives

 Judge William S. Sessions ‐ Partner, Holland & Knight; Director of the FBI, 1987‐1993; Chief

Judge, 1980‐1987, and Judge, 1974‐1987, U.S. District Court for the Western District of Texas;

U.S. Attorney, Western District of Texas, 1971‐1974

 Gerald E. Thomson, MD – Lambert and Sonneborn Professor of Medicine Emeritus at Columbia

University; Chair, Board of the Institute on Medicine as a Profession; Board Member, Physicians for

Human Rights, 2005‐10; President, American College of Physicians, 1995‐96

 Judge Patricia M. Wald ‐ Member, President’s Commission on the Intelligence Capabilities of the

United States Regarding Weapons of Mass Destruction, 2004‐2005; Judge, 1979‐1999, and Chief

Judge, 1986‐1991, U.S. Court of Appeals for D.C. Circuit; Judge, International Criminal Tribunal

for the Former Yugoslavia, 1999‐2001

The following endorsers have also agreed to lend support to the TF members, staff, and the project:

 Wayne Budd ‐ Senior Counsel at Goodwin Procter LLP; Associate Attorney General of the United

States, 1992; United States Attorney for the District of Massachusetts, 1989‐1992

 Lee H. Hamilton – Director & Founder, The Center on Congress at Indiana University; Member,

Homeland Security Advisory Council; President and Director of the Woodrow Wilson

International Center for Scholars, 1999‐2010; Vice‐Chair, 9/11 Commission, 2002‐2004; Member

of Congress, (D‐IN), 1965‐1999

 Alberto Mora ‐ General Counsel of the Navy, 2001‐2006

 William H. Taft IV ‐ Legal Adviser to the U.S. Department of State, 2001‐2005

TCP will oversee this initiative under the leadership of President Virginia Sloan and with the support of

its staff. TCP is in the process of hiring a team dedicated solely to the work of the Task Force and

expects the research and investigation phases of the project to begin in January, 2011. It is estimated

that the Task Force will release its final report in 12‐18 months.

Task force jobs – official logo[1].pdf

nationalsecuritylaw forthcoming scholarship

* Forthcoming Scholarship

[note: Ben’s book Detention and Denial, the second one below, would be especially good for those of you who teach seminars or even survey courses touching on detention law and policy.]

“Preventive Detention in American Theory and Practice”

Harvard National Security Journal (vol. 2, issue 1)

Adam Klein (Columbia)

Benjamin Wittes (Brookings)

In Preventive Detention in American Theory and Practice, Adam Klein and Benjamin Wittes show that contrary to civic mythology, the extra-criminal detention of terrorism suspects is not “an extraordinary aberration from a strong American constitutional norm.” The authors argue that a survey of American wartime, emergency, criminal justice, immigration, and health authorities illustrate that American law has not traditionally eschewed preventative detention “where legislatures and courts deem it necessary to prevent grave public harms.” Therefore, “if counterterrorism detention is necessary and tailored to encompass only the truly dangerous it fits relatively comfortably in conceptual terms alongside the many powers state and federal legislatures have given governments to detain citizens and non-citizens alike.”

Detention and Denial (Brooking Institution Press 2010)

Benjamin Wittes (Brookings)

“Our current stalemate over detention serves nobody—not the military or any other component of the U.S. government that has to operate overseas. . . . It is a system that no rational combination of values or strategic considerations would have produced; it could have emerged only as a consequence of a clash of interests that produced a clear victory for nobody.”
—from the Introduction

Benjamin Wittes issues a persuasive call for greater coherence, clarity, and public candor from the American government regarding its detention policy and practices, and greater citizen awareness of the same. In Detention and Denial, he illustrates how U.S. detention policy is a tangle of obfuscation rather than a serious set of moral and legal decisions. Far from sharpening focus and defining clear parameters for action, it sends mixed signals, muddies the legal and military waters, and produces perverse incentives. Its random operation makes a mockery of the human rights concerns that prompted the limited amount of legal scrutiny that detention has received to date. The government may actually be painting itself into a corner, leaving itself unable to explain or justify actions it may need to take in the future. The situation is unsustainable and must be addressed.

Preventive detention is a touchy subject, an easy target for eager-to-please candidates and indignant media, so public officials remain largely mum on the issue. Many Americans would be surprised to learn that no broad principle in American jurisprudence actually prohibits preventive detention; rather, the law “eschews it except when legislatures and courts deem it necessary to prevent grave public harm.” But the habeas corpus legal cases that have come out of the Guantánamo Bay detention facility—which remains open, despite popular expectations to the contrary—have addressed only a small slice of the overall issue and have not—and will not—produce a coherent body of policy.

U.S. government and security forces need clear and consistent application of their detention policies, and Americans must be better informed about them. To that end, Wittes critiques America’s current muddled detention policies and sets forth a detention policy based on candor. It would set clear rules and distinguish several types of detention, based on characteristics of the detainees themselves rather than where they were captured. Congress would follow steps to “devise a coherent policy to regulate the U.S. system of detention, a system that the country cannot avoid developing.”

nationalsecuritylaw ACLU v. Dep’t of Defense (D.C. Cir. Jan. 18, 2011)

* ACLU v. DOD (D.C. Circ. Jan. 18, 2011) (affirming grant of summary judgment dismissing FOIA challenge relating to detention and interrogation docs)

The opinion (issued early last week, actually) is posted here. Larkin Reynolds has a great summary here.