Meet the New Boss...

Despite being a border-state governor, Janet Napolitano (the Democrat tapped to head the Dept. of Homeland Security) has given a lot of lip service to border security, but not much more, other than vetoing numerous border-enforcement measures coming out of her state legislature. Of course, there has also been a generous amount of lip service on this subject from Republicans at the state and federal levels, too. Yet The New York Times editorial board sees it another way:

If Gov. Janet Napolitano of Arizona is confirmed as homeland security secretary, she will leave behind a state in full Republican control, with immigration zealots embedded in both house of the Legislature, and not enough moderates to go around. This is the down side of President-elect Barack Obama's decision to bring Ms. Napolitano to Washington...Ms. Napolitano's successor as governor would be the secretary of state, Jan Brewer, a Republican who is expected to be far more willing to sign whatever tough immigration measures get to her desk.

Of course, it could also be argued that the Times editorial board is embedded with open-border zealots who opposed even the most reasonable legislation to protect America's borders. A federal agency chief is to a large degree more like a mouthpiece or figurehead for polices crafted by the White House, with the actual work carried out by the behind-the-scenes staff, including the career civil service employees. But be that as it may, given the recent horrific events in Mumbai, let's hope the incoming administration is serious about border security. Homeland security and border security, two sides of the same coin, aren't they? The general election campaign offered the American people virtually no discussion of immigration, legal or illegal--one of many missed opportunities. During the primary season, Obama came out in favor of drivers' licenses for illegal aliens, however, so draw your own conclusions.

Separately, incumbent DHS Secretary Michael Chertoff announced on December 17 that the government has completed 500 miles of the long-delayed fencing along the Southwest border, and that the administration expects to have at least 600 miles completed by Obama's January 20th inauguration.

In the meantime, Attorney General designee Eric Holder may run into some difficulties in the confirmation process over his involvement with eleventh-hour Clinton administration pardons while then serving as deputy attorney general. Questions have been raised over his role in the controversial pardons of fugitive financier Marc Rich and well as 16 FALN terrorists. It's also interesting how the candidate of "change" has tapped so many Clinton retreads for his Cabinet.

Reality TV?

Hill Street Blues on steroids. That's how we would describe The Shield, which recently ended its seven season, 88 episode run. Shot documentary style with mostly hand-held cameras, The Shield definitely pushed the envelope for basic cable in its gritty and sometimes gruesome content. It provided more compelling television content than the Sopranos in its latter stages, even though The Shield aired on the FX network and never achieved the audience of the HBO series.

If you're unfamiliar with The Shield, it followed the activities in and around an inner-city police station house known as "the Barn," situated in the fictional Farmington district of Los Angeles. The creator of The Shield apparently got his inspiration from the Rampart Division police scandal in LA.

The show was exciting and intense. But keep in mind that the viewer has to suspend disbelief, because the whirlwind of events in the Barn during one eight-hour shift might take months or years to resolve, even if they ever occurred in the real world.

The excellent ensemble cast was led by a bulked-up Michael Chiklis who portrayed the rogue detective and master manipulator Vic Mackey, the head of the corrupt but effective anti-gang "Strike Team." Mackey was the ultimate take-no-prisoners, anti-hero who managed to scheme and navigate the gauntlet of the streets, the law enforcement bureaucracy, and his complicated family life, and who among other things killed a fellow officer who was going to blow the whistle on the Strike Team's crooked dealings. This act, occurring in the very first episode, and the ensuing cover up, in part drove the show and the relationships of the original Strike Team members and their adversaries on both sides of the law for its entire run. As the Wikipedia summary puts it, the Mackey character "steals from drug dealers, beats and tortures suspects, and has committed murder more than once." To say that the show posed legal, ethical and moral issues is putting it mildly.

Unlike the gripping intensity of most episodes, the series finale seemed a little flat (as these finales often are), leaving a few loose ends in the various plot threads. Moreover, despite Internet speculation, the expected bloodbath never materialized, leaving most of the characters intact--raising the possibility that The Shield could be brought back as either a theatrical or TV movie. In fact, there has even been some talk of a spin-off featuring Det. Dutch Wagenbach, the barn's somewhat awkward but earnest criminal profiler and "Everyman," as convincingly portrayed by Jay Karnes.

Over the run of the show, the Strike Team found itself the subject of numerous ongoing internal investigations (no surprise there). Although the team managed to wriggle off the hook time and again, the handwriting was on the wall that Mackey was going to be thrown off the force. In the final season, Mackey wormed his way into a job with Immigration and Customs Enforcement (ICE) by orchestrating the bust of a major Mexican drug cartel. As part of this arrangement, ICE also gave him full immunity for all of his past acts, albeit without knowing the full ramifications of said deal. After signing the apparently binding deal, he put all his transgressions (a long litany) on tape in the ICE offices, including the murder of the fellow officer.

While acknowledging that it's just an over-the-top (but very watchable) TV show, this turn of events raised a number of questions. First, we wondered whether in general, such a blanket immunity deal was plausible or even feasible in the real world? And would a murder confession vitiate any immunity agreement? Do the feds have the authority to "shield" Mackey or his cohorts from state crimes? Could Mackey's recorded statements be used as evidence against the other surviving member of the original Strike Team, Vic's loyal foot-soldier and usually stoic "partner in crime," Det. Ronnie Gardocki (David Rees Snell), who was busted by the LAPD in the final minutes of the series finale.

We asked several expert criminal law bloggers what they thought about how this immunity arrangement might or might not affect the prosecution of either of the two Strike Team detectives.

Kent Scheidegger of the Crime and Consequences blog told us that "An immunity agreement with a federal agency cannot confer 'transactional immunity'--a complete exemption from prosecution--for a state crime. There may be limitations on use of the person's statement, both directly and derivatively, but if the state authorities can produce evidence from demonstrably independent source, they can go ahead."

Attorney Michael Kraut who writes the Los Angeles Criminal Defense Attorney blog responded that "The short answer is ICE is a federal agency and they my not grant state immunity, only immunity for federal crimes. Murder is a state crime unless the victim is a federal agent."

LA attorney Dmitry Gorin suggested that the authorities "would almost never do this" but noted that one officer in the Ramparts scandal "got a deal to implicate his former partners with understanding that he would not be prosecuted for the crimes he confessed to." This officer was prosecuted on other charges, however, but received a lesser sentence.

And Joel Jacobsen of the Judging Crimes blog noted that "in general terms what you describe isn't rare. As for the partner getting blindsided that the other criminal made a deal with authorities first--that happens ALL the time. You don't want to be the last one standing when the music stops. Prosecutors try to make deals with the less-culpable criminals in order to nail the more-culpable, but it's sometimes hard to figure out in advance who's who. Vic's statements could be used against his ex-partner/fall guy only if Vic himself testifies in court. That's the holding of 2004's Crawford v. Washington. No, a murder wouldn't vitiate the immunity agreement, if it's really written as broadly as you suggest. Judges would enforce the deal as written. (That's why immunity agreements aren't, or shouldn't be, written so broadly.) The feds couldn't shield Vic from state prosecution. They don't have that power. Without researching the matter, I think it's doubtful that he could prevent state prosecutors from using the immunized statements as evidence against him, but it's not out of the question."

In any event, The Shield DVDs are highly recommended, especially for the show's rich characters and dialogue, with the advisory that the content is for adults only.

Foreign Warrantless Surveillance Was Reasonable

A three-judge panel of the U.S. Court of Appeals for the Second Circuit has turned away the appeal on 4th Amendment and other grounds by three Al Qaeda operatives sentenced to life for conspiracy in the August 7, 1998 bombings of American embassies in Kenya and Tanzania.

The authorities may lawfully conduct searches and electronic surveillance against United States citizens in foreign countries without a warrant, a federal appeals court panel said on Monday [November 24], bolstering the government’s power to investigate terrorism by ruling that a key constitutional protection afforded to Americans does not apply overseas.

In criminal law parlance, improperly obtained evidence is considered the so-called "fruit of the poisonous tree," and as such, must be thrown out as an illegal search and seizure. In a lengthy opinion for the court that denied an attempt by the defendants so suppress evidence used against the defendants at their trial in U.S. District Court, Judge Jose A. Cabranes wrote that...

First, there is nothing in our history or our precedents suggesting that U.S. officials must first obtain a warrant before conducting an overseas search...Second, nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own...Third, if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation...Fourth and finally, it is by no means clear that U.S. judicial officers could be authorized to issue warrants for overseas searches...For these reasons, we hold that the Fourth Amendment’s Warrant Clause has no extraterritorial application and that foreign searches of U.S. citizens conducted by U.S. agents are subject only to the Fourth Amendment’s requirement of reasonableness.

The Court found the challenged surveillance reasonable under the 4th Amendment for the following reasons:

First, complex, wide-ranging, and decentralized organizations, such as al Qaeda, warrant sustained and intense monitoring in order to understand their features and identify their members...Second, foreign intelligence gathering of the sort considered here must delve into the superficially mundane because it is not always readily apparent what information is relevant...Third, members of covert terrorist organizations, as with other sophisticated criminal enterprises, often communicate in code, or at least through ambiguous language...Fourth, because the monitored conversations were conducted in foreign languages, the task of determining relevance and identifying coded language was further complicated....Because the surveillance of suspected al Qaeda operatives must be sustained and thorough in order to be effective, we cannot conclude that the scope of the government’s electronic surveillance was overbroad.

The court conceded that while the intrusion into the privacy of one of the defendant's was great, the need for U.S. counter-terrorism authorities to intrude was "even greater." The defendant in question, a naturalized U.S. citizen and close associate of Osama Bin Laden, sought to suppress evidence gathered from the search of his Nairobi home and surveillance of his Kenyan landline and cell phones. The full, three part opinion in In re Terrorist Bombings of U.S. Embassies in East Africa, Docket # 01-1535-cr(L), can be found here.

Thanksgiving Eve Musings

This blog's charter allows us to on occasion veer off into other legal issues apart from homeland security. So what better time than on Thanksgiving Eve. Did you know that Canada celebrates its own Thanksgiving in mid October? In any event, speaking of Canada (and the possible connection with festive eating), that country's Supreme Court ruled on November 19 that obese people have the right to two seats for the price of one on domestic flights. Actually, the High Court let stand a lower court ruling to that effect, but the net result is the same.

This is the type of legal dispute that stirs up profound mixed emotions, like the 2001 Casey Martin case. In general, we don't favor government intervention into how businesses manage their internal operations. Yet, this news report cites individuals with severe arthritis or hormonal disorders that will be legitimately helped by this decision. And airplane seats are not roomy to begin with for any passenger. On the other hand, for the ordinary overweight person, if there is such a thing, wouldn't it be better to seek remedies through diet, nutrition, and exercise rather than through the courts? How many other travelers will be prevented from getting a ticket on a flight under this new policy? And to what extent will this mandate undermine the airline industry's already shaky financial viability? The news article also identifies at least one practical problem in terms of implementation: "A possible sticking point is how to decide when obesity is a disability. The agency has recommended the airlines adopt a policy used by Dallas-based Southwest Airlines, which gives a free seat to people who are too big to lower their armrest." Unfortunately, courts are often ill-equipped or unwilling to address real-world implementation or the associated unintended consequences.

Here in the states, the number of overweight persons seems to be, well, expanding. At least that's what the media says, but visiting any mall or other public gathering place seems to provide empirical evidence. This reminds us of a seemingly unrelated issue: the syndicated courtroom shows on television. In virtually all of those shows, the television judge hearing the cases--complaints that originated in Small Claims courts around the country--showboats, grandstands, and yells at the litigants. Note that these proceedings are technically binding arbitration hearings; the parties have agreed to drop their actual Small Claims case in the original jurisdiction in order to get the case heard on TV by an arbitrator (typically a former judge) but with the trappings of a court trial

The one exception seems to be Marilyn Milian, a former state circuit judge from Miami, who currently presides over The People's Court. (The New York Times called the show "quick and dirty justice served up for mass consumption." Judge Milian often says on the show that she administers "rough justice".) Okay, so she also showboats, grandstands, and yells at the litigants, and she sometimes even prevents the parties from introducing all of their evidence. Yet, the show is unusually informative for the viewer in that Judge Milian takes the time to explain how the principles of law apply to each case (as does the TMZ guy who does the wrap-around commentary in Times Square). She even discusses how the law of the parties' jurisdiction--which may differ in certain respects from general legal principles--applies to their case. So amidst the fender benders, shady contractors, and jilted lovers fighting over the eternal question of loan vs. gift, you can really learn a lot about law from that program.

But, we have noticed that somewhere in the range of roughly 60-70% of the litigants seem to be, well, noticeably overweight. So is there an odd correlation between Small Claims and large bodies, or is the show merely a cross-section of the real America?

Federal Jury: Charity Guilty on All Counts

On November 24, a Dallas federal jury found the Holy Land Foundation and five of its organizers guilty on 108 separate charges connected with illegally funnneling at least $12 million to Hamas, the Palestinian terrorist organization. The government's first attempt at prosecuting the charity ended in a mistrial in 2007. This jury rejected defense claims that the now-defunct foundation, which U.S. officials shut down in 2001, was a legitimate charity. According to the Dallas Morning News...

The verdicts are a major triumph for the outgoing administration of President George W. Bush, whose efforts at fighting terrorism financing have been troubled. Two other similar high-profile prosecutions targeting supporters of Palestinian militants have ended in acquittals, deadlocked juries or convictions on lesser charges...

Terrorism experts say Monday's verdicts demonstrate that complicated terrorism financing cases can be successfully prosecuted in American criminal courts. The verdicts also lend credibility to the Treasury Department's oft-criticized program of designating terrorist entities and freezing assets.

The verdict "sends a crystal-clear message that the United States will neither allow itself to serve as a cash cow for terrorist groups nor allow the charitable sector to be abused by groups financing terrorism under the cover of charity," said Matt Levitt, a Hamas expert and former high-ranking government intelligence official who testified in both trials.

The convictions were a culminaton of a 15-year investigation. The Holy Land Foundation was once the largest Islamic charity in the U.S. The U.S. State Department has formally designated Hamas as one of 44 foreign terrorist organizations.

Not All Detainees Victims of Circumstance

As a follow on to the previous post, the New York Times--perhaps the most fierce critic of Bush Administration homeland security policies--suggested on the day before the election that maybe, just maybe, some of the Gitmo detainees deserve to be there after all:

They were called the Dirty 30 — bodyguards for Osama bin Laden captured early in the Afghanistan war — and many of them are still being held at Guantánamo Bay, Cuba. Others still at the much-criticized detention camp there include prisoners who the government says were trained in assassination and the use of poisons and disguises...an extensive review of the government’s military tribunal files suggests that dozens of the roughly 255 prisoners remaining in detention are said by military and intelligence agencies to have been captured with important terrorism suspects, to have connections to top leaders of Al Qaeda or to have other serious terrorism credentials...The next president will have to contend with sobering intelligence claims against many of the remaining detainees...But as a new administration begins to sort through the government’s dossiers on the men, the analysis shows, officials are likely to face tough choices in deciding how many of Guantánamo’s hard cases should be sent home, how many should be charged and what to do with the rest.

Obama Advisors Craft Plan for Gitmo Detainees

The Associated Press is reporting that the Obama administration plans to close the Guantanamo Bay detention center and bring suspected terrorists to the U.S. for trial.

Under the plan being crafted inside Obama's camp, some detainees would be released and others would be charged in U.S. courts, where they would receive constitutional rights and open trials. But, underscoring the difficult decisions Obama must make to fulfill his pledge of shutting down Guantanamo, the plan could require the creation of a new legal system to handle the classified information inherent in some of the most sensitive cases. Many of the about 250 Guantanamo detainees are cleared for release, but the Bush administration has not able been to find a country willing to take them.

Not all Democrats are on board with creating a new legal system for the detainees. And Republicans such as Senate Judiciary Committee member John Cornyn of Texas believe that treating terrorism as a mere crime would be a "colossal mistake."

According to the senator, "It would be a stunning disappointment if the one of the new administration's first priorities is to give foreign terror suspects captured on the battlefield the same legal rights and protections as American citizens accused of crimes." Sen. Cornyn added that the Senate overwhelmingly passed a nonbinding resolution last year opposing bringing detainees here. Obama failed to vote on the resolution, however.

Leaving aside the politics, campaign promises, and the symbolism, as a practical matter is it really a good idea from a security standpoint to bring these detainees to the U.S. mainland? Given the existing security problems within America's overcrowded jails, do we want these individuals mixing with the general prison population? Would those terror suspects found not guilty then be released into the local community? It's all well and good to advocate "change," but protecting the American people must remain the highest priority.

The procedures for conducting the trials themselves raises a host of practical problems, as the AP article indicates: "Evidence gathered through military interrogation or from intelligence sources might be thrown out. Defendants would have the right to confront witnesses, meaning undercover CIA officers or terrorist turncoats might have to take the stand, jeopardizing their cover and revealing classified intelligence tactics."

According to an July 2007 account in the Australian press, at least at least 30 former Guantanamo Bay detainees have been killed or recaptured after apparently resuming their terrorist activities following their release.