GUANTANMO: Appellate court rules that Tribunal Erred re Enemy Combatant Status

The D.C. Court of Appeals in Parhat v Gates ruled today in favor of a Guantanamo Detainee.

GARLAND, Circuit Judge: A Combatant Status Review Tribunal has decided that petitioner Huzaifa Parhat, a detainee at the United States Naval Base at Guantanamo Bay, Cuba, is an “enemy combatant.” This is the first case in which this court has considered the merits of a petition to review such a decision under the Detainee Treatment Act of 2005. The Act grants this court jurisdiction to “determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.” We conclude that the Tribunal’s decision in Parhat’s case was not valid.

First, the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice: What I tell you three times is true.”). In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions. To the contrary, as noted in Part III, many of those assertions are made in identical language, suggesting that later documents may merely be citing earlier ones, and hence that all may ultimately derive from a single source. And as we have also noted, Parhat has made a credible argument that -- at least for some of the assertions -- the common source is the Chinese government, which may be less than objective with respect to the Uighurs. Other assertions in the documents may ultimately rely on interview reports (not provided to the Tribunal) of Uighur detainees, who may have had no first-hand knowledge and whose speculations may have been transformed into certainties in the course of being repeated by report writers.

For a discussion of the facts and the Court's opinion, see the New York Times July 1, 2008.

ASK THE EXPERT: Margaret van Naerssen on Forensic Linguistics

Ask The Expert: Margaret van Naerssen on the Admissibility of Discourse Analysis

In USA v Amawi, a federal court judge granted the government's motion to exclude testimony from a renown forensic linguist, Roger Shuy. 2008 U.S. Dist. LEXIS 38287.
An excerpt of the opinion can be found here.

Editor: We asked expert, Dr. Margaret van Naerssen, to comment on the Court's pre-trial decision to exclude Dr. Shuy's testimony.

Dr. van Naerssen has a Ph.D. in applied linguistics/language acquisition from the University of Southern California (1981), and is now on the faculty at Immaculata University (Pennsylvania), coordinating graduate-level teacher training programs in cultural and linguistic diversity. She is also occasionally an English language specialist overseas with the U.S. Department of State. Since 1997 she's done expert consultant/witness work in forensic linguistics at the federal and state level, in criminal and civil cases involving murder, rape, drugs, money laundering, robbery, perjury, fraud, contract and plain language guidelines, slander, medical malpractice, and interpreting issues. A majority of her cases have involved non-native speakers of English. She's has published and given presentations on forensic linguistics, including at the Smithsonian Institute in Washington D.C. and at the FBI Academy.

Q: On reading the court's opinion, what was your general reaction to the Court having excluded Dr. Shuy's expert testimony from trial?

A: I'm particularly concerned about the negative effect that some of the wording of the court's opinion might have on future contributions by qualified forensic linguists doing careful and systematic linguistic analysis in other cases.

Q: The opinion suggests that Dr. Shuy did not testify prior to the court's ruling on the admissibility of the proffered testimony. Do you think this made some difference in the court's ultimate decision on admissability?

A: I think it might have though I don't know all the circumstances of the trial. The judge did not give Dr. Shuy an opportunity to respond to the Court's belief that the substance of Shuy's testimony is common knowledge. I've boldfaced the critical phrases.

"The first two of these analyses -- topics and responses -- as presented in Prof. Shuy's report, constitute little, if any, more than a recitation of what is readily discernible in the recorded conversations.

* * *

"Prof. Shuy's response analysis likewise consists, in essence, of a recapitulation of readily ascertainable aspects of how El-Hindi and Griffin interacted, or failed to interact, during their various encounters and conversations. Thus, the first two segments of the proposed testimony provide nothing beyond that which the jury can hear for themselves, or from which counsel can urge them to draw the inferences they seek to have the jurors draw."

And in the court's reference to a precedent in USA v Evans:

"The court also found that the expert's testimony would not assist the jury because the subject matter of the testimony, conversation, was one which could be expected to be within the general knowledge of jurors."

* * *

"Such testimony was aimed not at explaining technical terms used in the conversation . Instead, this expert sought to interpret language in ordinary usage, which the district court found would have confused, not assisted, the jury."

I do think the court's arguments reflect a common concern linguists have when testifying in court. Non-linguists naturally think they know all there is to know about their language since they speak it, probably have spoken it all their lives, have been educated through it, and use it in their daily lives. However, they are NOT trained to look systematically for patterns and inconsistencies in language.

Q: Well, can't we all have opinions about our language?

A: Yes, but these opinions generally are more intuitive than based on rational theory and systematic linguistic evidence. Non-linguists use language everyday, so they are usually not accustomed to thinking about the rules they use when communicating. Just like when we walk, we don't think much about it unless we are having some sort of difficulty. We do it naturally. Native speakers have a hard time recalling specific formal grammar or spelling rules learned in elementary school. We usually don't need to refer to a rule since we use the language naturally, without thinking about it. Also the court appears to assume that a linguistic expert could only testify on technical terms used in a conversation, if there had been any. Yes, linguists do sometimes testify about the meaning of a word(s), for example, in cases on contracts or trademarks. But linguistic experts also testify about other areas as well.

Linguistics is the scientific study of the language and its systems. It's been accepted by the National Science Foundation as a legitimate area of scientific research. When analyzing conversations linguists can do analyses at both macro- and micro-levels. Discourse analysts focus on units of speech larger than the sentence and their relationship to the contexts in which they occur. Linguists doing discourse analyses of written or spoken communications are trained to look for certain features that help to reveal the overall structure, how the text holds together, including analysis of topics. (In examining covert law enforcement recordings, topic analysis is very important.)

Conversation analysts focus more on the micro-level. In doing conversation analysis they examine turn-taking, including the various features of interactions that mark who is controlling the interaction, communication breakdowns, misunderstandings, etc. Discourse and conversation analyses do not involve making intuitive judgments. They are grounded in principled research. In both linguists know which features are relevant and important to note and quantify. Linguists with experience in forensic settings bring the additional expertise of knowing how to relate an analysis to legal questions and consider which linguistic tools, strategies, and features are most relevant. Shuy is such an expert. [2]

Q: So once the analysis is completed, the expert then needs to report the findings to assist the fact finders in understanding the evidence in question?

A: Right. But here is the dilemma. Once an analysis is done, an effective expert then tries to make the findings accessible to non-linguists (attorneys, judges, jury members) – as you said, to assist them in better understanding the evidence before them. However, by making the findings accessible, then there may be the reaction, "Oh, I hadn't thought about that, but yes…of course, I see, that's common sense."

At the same time the findings must also be reported in a way that is accepted in the professional field of the expert. Perhaps it was this attempt to make evidence accessible to non-linguists --yet keep it grounded in theory-- that caused the judge

--To refer to the evidence in a disparaging way, "semi-academic dressage," as in "'conversational strategies' as contained in Prof. Shuy's proposed report, despite its semi-academic dressage."
--To use the argument: "within the general knowledge of jurors" by using that phrase--as well as "provide nothing beyond that which the jury can hear for themselves, or from which counsel can urge them to draw the inferences they seek to have the jurors draw.." and " what is readily discernible in the recorded conversations."

Thus, it is understandable that a non-linguist, such as a judge, may feel that what the expert has provided is within common knowledge so it is something the jury can intuit anyway. But it takes the linguist to know what to look for, to know how to do the analysis in a principled way so the analysis is well-grounded and patterns quantified so the findings are sound linguistic evidence, and not just intuition. The linguist also helps the fact-finders by keeping track of the patterns of interaction which the fact-finder is not likely to track systematically. But Dr. Shuy was not allowed to explain the basis of his analysis nor his findings to the fact finders.

Q: I see the dilemma, but isn't it a hard idea to get across to a non-linguist?

A: True, but let me paraphrase a comparison Shuy has made about the role of an expert. For example, based on my own basic education, media exposure, other life experiences, I can look at an x-ray of your chest. I can find your lungs, your basic skeletal bones, your intestines, your stomach, and your heart. I can do this without medical training. But if you were having a health problem, would you want me to try to diagnose the problem. No! You'd want a trained physician to do the diagnosis, right? To recognize the details and to know what they indicate.

In the same way, we all can intuit things about language. But suppose your life or freedom depended on others listening to a recording of you talking with another person. If you felt you were innocent, and if you felt you hadn't said anything incriminating, wouldn't you want an expert in linguistics to do the analysis?

Or would you prefer to leave it up to the jury to simply give their intuitive and mixed interpretations, influenced by the persuasive techniques of the attorneys, of what your meaning was, of was going on in the conversation? Of course, no one, not even the linguist, could know with absolute certainty what was happening in a person's mind. But in such a case an expert in linguistics can provide principled and useful insights to assist the fact finders. (Note: I am not addressing the specific claims in the case USA v Amawi)

Q: One last observation—the judge did say that "Other courts have found testimony of the sort proffered here, including testimony by Prof. Shuy, not to be admissible for similar reasons." Does that mean that no testimony involving analysis of conversations has been admitted in courts?

A: Wrong. It has been admitted in numerous cases. But these were not mentioned in the opinion. Such cases cannot be found in a search of cases unless a linguistic issue is the basis of an appeal. If Shuy had testified, he could have provided information on the numerous cases where his testimony has been admitted. For example, in a well-known case (US v John DeLorean), also involving covert recordings, Shuy's report was admitted and his findings became critical. The confidential informant, wired for recordings, used ambiguous references such "we," "this," "that," "interim deal," "interim financing," "interim thing." The government claimed these referred to the early stages of building a drug business. Shuy was brought into analyze the tapes. He was able to show that throughout the conversations DeLorean's understanding of "interim deal" etc., referred to a more benign investment.

Finally when DeLorean realized the government informant was referring specifically to a drug deal, Shuy also was able to show how DeLorean, through language, tried to distance himself. DeLorean even concocted the IRA as a protector– saying that they wouldn't want to him to be involved in anything that was illegal. It was Shuy's analysis and testimony on this SPECIFIC conversation that convinced the judge and jury, by then angry and outraged, that this was clearly a case of entrapment. DeLorean was set free. [3]

Thanks for giving me a chance to discuss my thoughts on this court opinion. I hope these comments give you-- and other officers of the court--a few insights on what an expert witness in linguistics can offer "beyond common knowledge" about language evidence

*******

[1] I am not directly familiar with the details of the case except as presented in the several excerpts of the judicial opinions that Linda Ramirez has posted.

[2] Dr. Shuy is recognized internationally as a leader in the forensic linguistics community. He is well respected for his ethics and overall professionalism and his scholarship in the applied linguistics field, having been given the Award for Distinguished Scholarship and Service, by the American Association, March 1999. In the area of Discourse Analysis, and especially in examining undercover communications as in this case, he is the best expert there is.

[3] The case is discussed in Shuy's 1993 book, Language Crimes; in an unpublished paper by Shuy, "Using a Linguist in Tape Cases," pp. 11-12; and in personal communication, 9/8/05.

EXPERTS: No error in excluding Immigration Expert to testify as to Necessity

United States v Andrade (8th Cir. 2008), Defendants' offers of proof failed to establish the elements of a necessity defense, and the district court did not err by excluding the proffered testimony.

"The appellants proposed to call an immigration expert to testify regarding immigration issues that the appellants claimed would provide the basis for a necessity defense. Pursuant to the government's motions in limine and after considering the appellants' offers of proof at their respective pretrial conferences, the district courts excluded the testimony.

Although we have reviewed the exclusion of testimony intended to establish an affirmative defense for abuse of discretion, see United States v. Luker, 395 F.3d 830, 832 (8th Cir. 2005), the district courts in the instant cases implicitly based their decisions on the legal insufficiency of the appellants' necessity defenses. Accordingly, our review is de novo. United States v. Jankowski, 194 F.3d 878, 882 & n.2 (8th Cir. 1999).The appellants do not argue that this court has ever recognized a necessity defense to the charges of which they were convicted. We need not decide whether such a defense would ever be proper with respect to such charges because the appellants failed to establish the requirements for such a defense in their cases.

A necessity/justification defense generally requires proof of the following four elements:
(1) that defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury, (2) that defendant had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct, (3) that defendant had no reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm, and (4) that a direct causal relationship may be reasonably anticipated between the criminal action taken and the avoidance of the threatened harm.Luker, 395 F.3d at 832-33 (alterations in original omitted); see also United States v. Gamboa, 439 F.3d 796, 816 (8th Cir. 2006) (quoting Jankowski, 194 F.3d at 883); United States v. Hudson, 414 F.3d 931, 933 (8th Cir. 2005); United States v. Lomax, 87 F.3d 959, 961 (8th Cir. 1996). The appellants argue that their expert's testimony would have explained to the jury that the appellants found it necessary to break the law because they needed to support themselves in the United States in order to benefit from immigration laws that required illegal entrants to remain in the country while their visa applications were pending.

Because the appellants' offers of proof did not even attempt to establish the element of "an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury," to say nothing of the other required elements of a necessity defense, we conclude that the district courts did not err by excluding the proffered testimony. See United States v. Polanco-Gomez, 841 F.2d 235, 238 (8th Cir. 1988).The judgments are affirmed."

JURY SELECTION: Fifth Circuit Orders New Trial Discriminatory Peremptory

Case of Interest: USA v Williamson, June 24th 2008. Court reject's Government's explanation.

HOW DO YOU OBTAIN FUNDS FOR A QUALIFIED INTERPRETER IN THESE TIMES?

The Editor asked Isa Framer* : How can a criminal defense attorney overcome a Court's reluctance to spend public funds for a qualified interpreter?


A: There are two issues that come to mind while pondering the question of complaints about the cost of obtaining qualified interpreters, Title VI National Origin Discrimination and Due Process of Law. Let me point out first however, that I’m not an attorney and it is not my intent to interpret the law. Attorneys would need to conduct their own research on case law, statutes or court rules applicable to their particular state referencing interpreters, and then develop arguments having applied their own knowledge and analysis of the law and how to best apply it to their case.

However, as someone that has consulted nationally on access policies dealing with interpretation and translation services and on cases that have been successfully reversed, dismissed or resulted in reduced charges due to the use of untrained and unqualified interpretation and translation services, I can however, share my personal observations and analysis.

1. Make sure that the request is documented and in the record.

The first suggestion I would make before I continue with the answer to the original question is that attorneys need to make sure that they request a certified (when certified interpreters are available) or professionally qualified interpreter (when certification is not available in the particular language) for their client and that the request be made on the record. Any objections or concerns should also be raised on the record. As you know, if objections are not recorded, the issue cannot be brought up later during the appeal. The only way that the issue could be brought up is during an ineffective assistance of counsel (IAC) claim.

The Constitution of the United States does not explicitly provide for interpretation and translation services. However, one can safely assume that without the services of a qualified interpreter, a non-English or limited-English proficient (LEP) individual would not be competent to stand trial. The LEP individual would not be present to hear the nature of his or her charges, to consult with an attorney, to cross examine witnesses and competently participate in his or her defense as afforded to all persons by the 4th, 5th, 6th and 14th amendments to the Constitution. However, this is only part of the equation, a critical part, but only one part.

2. Make sure the Court and prosecuting attorney understands her or his responsibility.

The Courts must ensure that the proper administration of justice is carried out. They are responsible for ensuring an accurate record of all of the proceedings and trials to the disposition of a case. They must understand and be understood in order to carry out their own duties.


Without a certified and/or professionally qualified interpreter, the court cannot function properly. The Court cannot competently communicate with the LEP individual. They would not be able to convey the exact nature of the charges or take a plea and ensure an accurate record. Therefore, for the purpose of due process, equal protection and equal access, the court has a responsibility to provide a certified and otherwise professionally qualified interpreter for court proceedings.

As we well know, the right to an attorney is an absolute right whether the attorney is privately retained, court appointed, or a public defender and a defendant must show indigence in order to obtain a court appointed attorney or a public defender. The beneficiary of this right is the defendant but the issue of who benefits from the services of an interpreter for in court proceedings is different. It is not one and the same. As already mentioned, the court has responsibilities such as ensuring that due process is carried out and that the court record is accurate for review. This responsibility is not a defendant’s responsibility but the courts responsibility. Absent the court’s ability to appoint and pay for a certified or qualified interpreter how can the court conduct business and its duty to ensure that justice is carried out? This responsibility cannot be shifted upon a defendant because the court lacks money. The state has brought charges upon a person; it is the states responsibility to be understood and to competently understand.

For the most part, the issue of who pays for an interpreter for in court proceedings for non-indigent defendants in state courts has not been argued from the standpoint of the issue being of particular interest to the court (court is the main beneficiary) but arguments have been more focused on a defendants right to consult with counsel, confront witnesses, understand the proceedings etc and only regarding cases in which the defendant is indigent. Interestingly enough, in 28 USC Section 1827, the federal courts do not differentiate between indigent or non-indigent defendants or litigants when it comes to in court proceedings including trials and the courts will pay for interpreters for all in court proceedings whether civil or criminal initiated by the United States.

The appointment of interpreters for in-court proceedings is necessary to conduct day-to-day business of the courts and other justice services. Arguments have been made, for example, giving the analogy of the courts responsibility to have a stenographer and that such cost is not billed to a defendant. A court interpreter falls under that same category. In other words, a stenographer is present to make an accurate record of the proceeding for the court’s record and review. An interpreter is summoned to assist the courts in the administration of justice and to provide both the court and the defendant with an accurate interpretation of what all of the parties are saying, except orally as opposed to the stenographer’s job to preserve the information in written form.

By shifting the cost to a defendant or litigant to access the court, the court places the financial burden upon the non-English speaker or LEP individual instead of on it’s own responsibility to ensure due process, provide equal access and equal protection under the law (to be competently understood and understand) due to the courts own lack of funds. This is an added burden that neither an English speaker or a deaf or hard of hearing person would have.

The lack of funding or budgeting for certified and qualified interpreter services is not an excuse to defeat the 4th, 5th 6th and 14th amendments to the Constitution.

3. Make the Court aware of Your Responsibility: Defense attorneys have an obligation to defend their client zealously and to protect their client’s constitutional rights. Therefore it is incumbent upon the attorney to familiarize themselves with the issues at hand, argue and to preserve matters for later appeals.

If untrained and unqualified interpreters are utilized or no interpreter is appointed for court proceedings, attorney-client interviews or in other legal or quasi legal settings, such as for police interrogations and interviews because an individual may speak a little English, it will not matter how effective an attorney is or how diligent a court or other judicial officer may be. The use of unqualified interpreters or no interpreter at all, can and has rendered an attorney and other officers of the court ineffective, statements have been suppressed or cases reversed. It is also very important to keep in mind that to appoint an incompetent (ad hoc) interpreter for the sake of saving money is tantamount to having no interpreter at all.

The monetary cost of an appeal and retrial can be great, not to mention the cost of an individual’s liberty and life, the loss of their children, a victim’s life put in jeopardy, loss of property, innocent persons wrongfully accused or a guilty person going free, based on poor and inaccurate interpretation.

The interpreter is the vehicle (the nexus) to assist all of the parties in the administration of justice through competent, accurate and unbiased interpretation.

Title VI: In addition to Constitutional safeguards, there is Title VI of the Civil Rights Act of 1964 which states that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

In 2000 the President signed Executive Order 13166. The President's Executive Order did not "create an entitlement to services provided in languages other than English." EO 13166 was issued to further clarify the obligation under Title VI and that language has a direct link or otherwise associated with National Origin. It acknowledges, recognizes and supports English language acquisition programs but is to ensure that non-English or limited English proficient individuals are not discriminated against while they are acquiring the English language. EO 13166 further directed federally funded recipients to issue guidance based on the DOJ August 2000 guidance. Under the President's constitutional authority to manage the Executive Branch, the President directed that federal agencies follow the same department of justice guidance in developing their own language assistance programs. Therefore, there is an obligation under Title VI for the courts, law enforcement, justice partners and any other federally funded recipient to provide competent language (interpretation and translation) services at the recipient’s expense. Since 1964 Title VI then has provided this access right that is not in reality a language rights issue.

In summary, the issues attorneys need to take into account when arguing the appointment of certified and qualified interpreters when the courts complain about the cost of interpreters, is that the court has a responsibility, the attorney has a responsibility and that the issues are directly connected with due process, equal access and equal protection. All of the parties directly benefit from the appointment of a certified and/or qualified interpreter and not just the LEP defendant or litigant and that the lack thereof, could render all parties ineffective. A court’s lack of funds should not be an excuse to exclude someone from meaningful participation, access and equal protection.

* About Ms. Framer: The Editor asked Expert Isabel Framer. She is an Oregon and Tennessee Certified Court interpreter living and working in Ohio. She currently serves as Chair of NAJIT, the National Association of Judiciary Interpreters and Translators, is on the Supreme Court of Ohio’s Advisory Committee on Interpreter Services, on Governor Ted Strickland’s Ohio Judicial Appointments Recommendation Panel and on the API Institute on Domestic Violence Interpreter Technical Assistance and Resource Center Advisory Committee.She has testified as an expert in court proceedings regarding interpreter standards and has served as a consultant to judges, defense attorneys, prosecutors and law enforcement throughout the U.S. regarding interpreting standards.Isabel has taught workshops to aspiring and practicing interpreters on ethics and professional responsibilities of judiciary interpreters and she presents CLE courses to judges and attorneys and training to law enforcement regarding legal issues, ethics, role and professional responsibilities of the interpreter in legal settings.She is the author of various articles including, "Through the Eyes of an Interpreter, published by The Kentucky Department of Public Advocacy’s legal journal The Advocate, Interpreting The Interpreter: What Every LAV Attorney and Advocate Needs To Know About Legal Interpretation"", published by Office on Violence Against Women Newsletter: The LAPTOP, Interpreters and Their Impact on the Criminal Justice System: The Alejandro Ramirez Case, and Interpreters as Officers of the Court: Scope and Limitations of Practice,"" published in the NAJIT journal, Proteus. You can contact Ms. Framer at: isainterp@aol.com .

INTERPRETER: Court delays Trial but Seeks Competency for Deaf Mute Defendant from El Salvador

According to a news account, a deaf-mute man from El Salvador is pending capital murder charges. The Court has delayed trial so that the defendant can "hone his sign-language skills to the point that he can understand the legal proceedings against him and assist his lawyers with his defense."


"When police arrested Martinez, they learned that he had no formal schooling and relied exclusively on primitive hand gestures to communicate.Martinez, who faces the death penalty if convicted, has undergone three years of intensive sign-language instruction so that he can be deemed fit to stand trial.


" The court-ordered competency report finalized in May found that Martinez is able to communicate at a level commensurate with a child of 4 years and 8 months. He still relies on pantomime, or hand gestures unrelated to formal sign language, for roughly 75 percent of his communication, Martinez's lawyer, Timothy Clancy, told the judge.



He asked Powell Thursday to deem Martinez irretrievably unfit to stand trial, in which case he would be turned over to the state Department of Mental Health and Mental Retardation, said Williamsburg-James City County Commonwealth's Attorney Nate Green.Clancy told Powell he feels confident Martinez can understand his interpreter, but not vice versa. Sign language is ill-equipped to indicate shifts in time, Clancy argued, and Martinez's other nonverbal communication "requires speculation on the part of the listener, and there's a high margin of error.""

IMMIGRANT DEFENSE: 2nd Circuit Remands ILJ Inappropriate Comments re Homosexuals

In Ali v Mukasey, June 19, 2008, the Second Circuit Court of Appeals found comments by an ILJ inappropriate, and that the proceedings were not fair, and ordered that a new ILJ hear Petitioner's CAT petition. Mr. Ali, a Guyanese national, seeks to avoid removal.

CRIMINAL IMMIGRATION: Landlord charged with Harboring Trial to Begin

A Lexington Kentucky lanlord is charged with multiple counts of Harboring, and his trial will begin in US District Court. According to the Kentucky Herald-Leader, the Court has granted several motions by the defense.

"Prosecutors will have to prove that the Haddens knew the tenants were here illegally, yet rented to them anyway. They must also prove that Hadden attempted to conceal, harbor, or shield the tenants from detection.

The evidence in the court record thus far shows that the tenants showed only Mexican IDs to apply for the apartments. But the applications were processed by a manager, who, according to the indictment, was also undocumented.

All but one of U.S. District Judge Karl Forester's major rulings in the case have favored the defendants. He will allow the defense to present testimony from four tenants that the Haddens had nothing to do with their entry into the country, and did not help them find jobs. Hadden had limited contact with the tenants, they testified in depositions.
Jurors will learn that the tenants said they could come and go from the apartments as they please, and they were not aware of the Haddens doing anything to hide them from authorities.
Forester ruled last week that Hadden can use his ignorance of the law as a defense.

The only significant ruling thus far siding with prosecutors was an order prohibiting the defense to call an expert witness, who was to testify that it is difficult to determine someone's legal status. "

At a recent court hearing, Forester seemed skeptical of the government's case. "So if Kroger is selling groceries to illegal immigrants, technically they could be as culpable as Mr. Hadden?" Forester asked.

Assistant U.S. Attorney Frances Catron-Malone said there is case law defining "shielding" to mean to substantially help an undocumented worker reside in the United States. Catron-Malone called the grocery example "ridiculous." It's "a way-out-there example that I propose would never come to fruition," she said. "

CRIMINAL IMMIGRATION: Martha Stewart denied visa to UK

The British media reports that Martha Stewart has been denied a visa to enter the UK for speaking engagement, because of her criminal conviction.
Criminal defense attorneys are now aware of the potential consquence of deportation from the United States. Martha's case is a helpful reminder that criminal convictions can also have collateral consequences for Americans who desire to travel abroad. "The UK Border Agency said it would not comment on individual cases. A spokesman added: "We continue to oppose the entry to the UK of individuals where we believe their presence in the United Kingdom is not conducive to the public good or where they have been found guilty of serious criminal offences abroad."

IMMIGRATION LAW & POLICY:EU passes measures re illegal migration

UPDATE : New York Times, June 19, 2008. "European Union lawmakers voted Wednesday to allow undocumented migrants to be held in detention centers for up to 18 months and banned from European Union territory for five years. Protesters outside the European Union office in Madrid on Tuesday denounced immigrant detentions and deportations. Criticized by groups like Amnesty International as “severely flawed” and an erosion of human rights standards, the so-called return directive was passed in the European Parliament here by a 369-to-197 vote, with 106 legislators abstaining. Manfred Weber, the German center-right legislator from Bavaria who shepherded the measure through Parliament, said that it provided minimum common standards for the treatment of migrants throughout the European Union while still showing citizens it was tough on illegality.

CRIMINAL IMMIGRATION: Dramatic Increase in Criminal Prosecutions

The criminal prosecution for immigration-related offenses has dramatically increased, according to statistics compiled by the Transaction Records Clearning House. (March 2008 newsletter). Click for the complete report.

Department of Homeland Security reported nearly a year ago, the following: "U.S. Customs and Border Protection Border Patrol’s Yuma, Ariz. sector recently expanded Operation Streamline, which has resulted in the prosecution of more than 1,200 illegal immigrants since the operation began in December 2006. Modeled after the highly successful operation that began in the Border Patrol’s Del Rio, Texas, sector in December 2005, the operation targets illegal immigrants apprehended in specific enforcement zones for immediate prosecution for illegal entry. Violators face punishment of up to 180 days in jail. Additionally, deportation procedures are initiated to formally remove the individual once they complete their jail sentence. "........ "One success for the program has been the number of individuals who have been prosecuted so far this year. Yuma Sector prosecutions have nearly doubled since December with more than 2,800 cases prosecuted, of which a little more than 1,200 are Streamline cases. Nearly 300 of those prosecutions were felony cases against individuals who have criminal histories, have a previous order of removal or are involved in smuggling humans or contraband. "

TERRORISM: How Gto. is Teaching Detainees to Hate the US

See Miami Herald, "How Guantánamo became a terror training ground: Side-by-side with violent extremists at Guantánamo, low-level detainees are being built into new fighting machines. And they hate the United States."

"GARDEZ, Afghanistan -- Mohammed Naim Farouq was a thug in the lawless Zormat district of eastern Afghanistan. He ran a kidnapping and extortion racket, and he controlled his turf with a band of gunmen who rode around in trucks with AK-47 rifles. U.S. troops detained him in 2002, although he had no clear ties to the Taliban or al Qaeda. By the time Farouq was released from Guantánamo the next year, however — after more than 12 months of what he described as abuse and humiliation at the hands of American soldiers — he'd made connections to high-level militants. In fact, he'd become a Taliban leader. When the U.S. Defense Intelligence Agency released a stack of 20 "most wanted" playing cards in 2006 identifying militants in Afghanistan and Pakistan — with Osama bin Laden at the top — Farouq was 16 cards into the deck. A McClatchy investigation found that instead of confining terrorists, Guantánamo often produced more of them by rounding up common criminals, conscripts, low-level foot soldiers and men with no allegiance to radical Islam — thus inspiring a deep hatred of the United States in them — and then housing them in cells next to radical Islamists. "

WITNESS IN MEXICO: Defendant Failed to Show Visas Necessary

A California Appellate court affirmed the conviction of a defendant who sought immigration visas for exculpatory witnesses, on the basis that the defendant had not provided an evidentiary basis for his request. People v Carrillo. 2008 Cal. App. LEXIS 851

Denial of the Visa Request Motion Was Proper. In U.S. v. Theresius Filippi (1st Cir. 1990) 918 F.2d 244 (Filippi), the court held that federal prosecutors violated a criminal defendant's constitutional rights to due process and to the compulsory attendance of witnesses by denying the defendant's request that they ask federal immigration officials to grant an entrance visa to an Ecuadorian national who had exculpatory evidence in defendant's trial for transporting cocaine. (Id. at pp. 247–248.) Because the defendant went to trial before the issue was resolved in the trial court, however, the federal appellate court held that the constitutional rights violations had been waived. (Id. at p. 248.) Pointing to somewhat analogous California authority, Carrillo contends the same rule should apply here."

We will also assume, but do not decide, that in the abstract, a refusal by the prosecution or the court to make sure that entry visas were at least requested from federal immigration officials for such witnesses violates a defendant's constitutional rights to due process and a fair trial. Even so, the record from below and the arguments made on appeal compel us to affirm the trial court's ruling here. In Filippi, supra, the evidence showed that the defendant's wife flew to Ecuador, asked the witness to testify for her husband, and obtained his agreement to do so. The witness went to the American embassy and asked for, but was denied, an entrance visa. Defendant's lawyer wrote the U.S. attorney and asked for her cooperation, but she did not respond. Upon request by the defense, the court wrote a letter to the embassy in Ecuador and asked for assistance, but got no results. Defense counsel then wrote to and phoned immigration officials, but was told federal prosecutors had to request the visa.

Although we affirm on this ground, we do not believe the trial court should have so easily dismissed Carrillo's contentions. It seems a strange notion indeed to let the prosecution alone decide whether it will request a special immigration visa for exculpatory witnesses who are foreign nationals. Such unfettered discretion is ripe for abuse and can hardly be reconciled with commonly accepted notions of fair play and equal justice. The trial court's belief that a duty to request a visa under the proper circumstances does not exist because state courts and prosecutors have no authority over federal immigration officials, and because there is no guarantee a request will be honored, strikes us as begging the essential issue: whether the prosecution should at least request the visa when warranted, instead of operating without guidelines or oversight, raising the specter of blanket denials of visa requests for defense witnesses, while requests for prosecution witnesses are routinely made. We also reject the trial court's reliance on decisions such as In re Littlefield (1993) 5 Cal.4th 122 [19 Cal. Rptr. 2d 248, 851 P.2d 42] and People v. Rance (1980) 106 Cal.App.3d 245 [164 Cal. Rptr. 822], which concerned the prosecution's lack of a duty to assist the defense during discovery. Because this was not a discovery issue, such decisions are inapplicable.
However, we leave for another day the issue whether a proper factual showing might oblige the prosecution to make a good faith request for a special entry visa in order to allow a foreign defense witness to enter the United States.As the trial court in this case pointed out, Carrillo's motion was not supported by any evidence. Though some factual assertions were made by way of argument, no evidence was placed before the trial court that explained the witnesses' immigration status, showed that any steps had been taken to secure regular visas, or otherwise showed that their attendance would not be possible without the requested court orders.

The unauthenticated letter from the defense investigator was silent as to Prado's immigration status, but mentioned that he had crossed back and forth from Mexico, leading the trial court to infer that there might in fact have been no impediments to his ability to come here. Furthermore, Carrillo's motion did not cite, discuss, or analyze the federal immigration provisions that apply in this case. While he cites two federal immigration regulations in his appellate brief, he has still failed to discuss or analyze their applicability to this case. As a result, their applicability and hence their efficacy are waived as issues. (People v. Beltran (2000) 82 Cal.App.4th 693, 697, fn. 5 [98 Cal. Rptr. 2d 730].)
Because there was insufficient evidence to support the motion below, and because he has failed to make proper argument on appeal about the applicable federal immigration provisions, we affirm the trial court's order.

INTERPRETERS: How to Locate a Qualified Interpreter?

Editor: This article originally appeared in April 2008.

ASK THE EXPERT: How can a Criminal Defense Attorney Locate a Qualified Interpreter?

The Editor asked Expert Isabel Framer. She is an Oregon and Tennessee Certified Court interpreter living and working in Ohio. She currently serves as Chair of NAJIT, the National Association of Judiciary Interpreters and Translators, is on the Supreme Court of Ohio’s Advisory Committee on Interpreter Services, on Governor Ted Strickland’s Ohio Judicial Appointments Recommendation Panel and on the API Institute on Domestic Violence Interpreter Technical Assistance and Resource Center Advisory Committee.

She has testified as an expert in court proceedings regarding interpreter standards and has served as a consultant to judges, defense attorneys, prosecutors and law enforcement throughout the U.S. regarding interpreting standards.

Isabel has taught workshops to aspiring and practicing interpreters on ethics and professional responsibilities of judiciary interpreters and she presents CLE courses to judges and attorneys and training to law enforcement regarding legal issues, ethics, role and professional responsibilities of the interpreter in legal settings.

She is the author of various articles including, "Through the Eyes of an Interpreter, published by The Kentucky Department of Public Advocacy’s legal journal The Advocate, Interpreting The Interpreter: What Every LAV Attorney and Advocate Needs To Know About Legal Interpretation"", published by Office on Violence Against Women Newsletter: The LAPTOP, Interpreters and Their Impact on the Criminal Justice System: The Alejandro Ramirez Case, and Interpreters as Officers of the Court: Scope and Limitations of Practice,"" published in the NAJIT journal, Proteus.

Q. What should be a criminal defense attorney’s first step in locating a qualified interpreter?

A. Attorneys should first find out if their state Supreme Court has an interpreter certification, qualification and training program in place. If they do, the attorney should request from their state Supreme Court a list of those interpreters. It is strongly recommended that in any legal setting where life, liberty, safety and health are at stake that attorneys utilize certified interpreters when available and in the case where certification does not exist in the specific language needed or where there is no certification program in place, that attorneys utilize the services of an otherwise qualified interpreter.

Not to minimize any case, whether criminal or civil, but anytime someone’s life, liberty, safety or health is involved, it is critical that attorneys carefully evaluate what is at stake in each instance and take into consideration that the greater the risk for their LEP client, the higher the interpreter’s qualification requirements should be. In homicides and death penalty cases for example, attorneys, courts and all judicial officials involved from the onset to the disposition of a case would greatly benefit from bringing in a certified or qualified and trained interpreter from another state if one is not available in their own state.

Q. What resources are available to help identify a qualified interpreter?

A. Identifying certified interpreters is much easier in most cases because certified interpreters have had to pass a valid and reliable test. However, the process of finding and identifying qualified interpreters absent certification is more challenging. Sometimes even when a state has a certification program in place, the method for qualifying interpreters varies from state to state and some states may not have a reliable and valid qualification process in place. Attorneys should inquire as to the methods that the state is using to deem an interpreter qualified. If your state does not have a good qualification process in place, attorneys could tap into our website directory at www.najit.org or contact NAJIT headquarters directly so that through our network we can help locate a qualified interpreter.
NAJIT was founded in New York City in 1978 as CITA, Court Interpreters and Translators Association. The name changed to NAJIT in 1988. NAJIT is a non-profit organization dedicated to promoting the profession, providing education, advocating for professional standards and continuing education of judiciary interpreters and translators as well as educating and assisting both the judiciary and executive branch of government that utilize legal interpreting and translation services. The field of legal interpreting and translation is a very specialized field. NAJIT is the largest judiciary interpreters and translators association in the country and abroad. Membership, including foreign listings, is approximately 1, 270 and its members represent approximately 100 languages. Many state courts as well as attorneys and/or federal government agencies have made use of our resources especially when they find it difficult to find a qualified interpreter in a less frequently used language and through our network we have been able to help locate an interpreter most of the time.It is important to note that regardless of how an interpreter is obtained, whether through the state Supreme Court, NAJIT or through other resources, attorneys should always verify the interpreter’s references, training, education and years of experience in the field and/or subject matter.

Q. What qualifications should an attorney require?

A. As previously mentioned, an attorney should utilize certified interpreters first and foremost. When attorneys contract with a certified interpreter, they should also verify the interpreter’s certification. Some state Supreme Courts will issue a picture identification card containing the interpreter’s certification number or they may issue a certification document containing the interpreter’s certification number. This is not to be confused however, with a certificate of attendance or certification of completion of a training program. They are not one and the same.Some states might not provide the interpreter with any documentation. However, just like the state would have record of attorneys that have passed the bar exam, state courts also keep a record of their certified interpreters. The attorney can call the state court interpreter program to verify the interpreter’s certification.
Certification can only be awarded by the Administrative Office of the United State District Court for federal court certification and by a State Supreme Court for state court certification. NAJIT also has a certification exam for the Spanish language only. NAJIT’s certification is also a valid and reliable testing instrument and nine state courts have accepted it as a credentialing along with the federal court certification.
Certified and professionally qualified interpreters are usually members of an interpreters and translators association. They attend training seminars and some are required to obtain continuing education credits. They abide by the interpreter’s Code of Ethics and Professional Responsibilities.
To view terms of the profession and additional information on the definition of certified and qualified interpreters please see NAJIT Terms of the Profession at: http://najit.org/Publications/NAJITTermsoftheProfession_ED%20FINAL.pdf
NAJIT will soon be posting an updated FAQ so please visit our website often to view new publications, advocacy efforts, training events and many other resources.

GUANTANAMO : HRW Reports Conditions Inhumane

" More than two-thirds of detainees at Guantanamo Bay, including many cleared for release or transfer, are being housed in inhumane conditions that are reportedly having a damaging effect on their mental health, Human Rights Watch said in a new report released today.
Security measures don’t justify locking people in windowless cells 22 hours a day, for months and years on end, with almost no opportunity for human interaction, physical exercise or mental stimulation. "
Resources:
Locked Up Alone: Detention Conditions and Mental Health at GuantanamoReport, June 10, 2008
More on GuantanamoThematic Page
The insanity inside GuantánamoCommentary, June 10, 2008
Free Email NewsletterThe 54-page report, “Locked Up Alone: Detention Conditions and Mental Health at Guantanamo,” documents the conditions in the various “camps” at the detention center, in which approximately 185 of the 270 detainees are housed in facilities akin to “supermax” prisons even though they have not yet been convicted of a crime. These detainees have extremely limited contact with other human beings, spend 22 hours a day alone in small cells with little or no natural light or fresh air, are not provided any educational opportunities, and are given little more than a single book and the Koran to occupy their time. Even their two hours of “recreation” time – which is sometimes provided in the middle of the night – generally takes place in single-cell cages so that detainees cannot physically interact with one another. “Guantanamo detainees who have not even been charged with a crime are being warehoused in conditions that are in many ways harsher than those reserved for the most dangerous, convicted criminals in the United States,” said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch. “Security measures don’t justify locking people in windowless cells 22 hours a day, for months and years on end, with almost no opportunity for human interaction, physical exercise or mental stimulation.” Unlike prisoners – including convicted terrorists – in most “supermax” prisons in the United States, none of the Guantanamo detainees have been allowed visits by family members and very few have been able to make phone calls home. Several are reportedly suffering depression and anxiety disorder, and some have reported having visions and hearing voices. Requests by attorneys for outside psychiatric evaluations and improvements in conditions of confinement have generally gone unanswered. For many detainees, the isolating confinement is not a time-limited response to a disciplinary infraction, but something that they have faced, day in and day out, for years. Guantanamo officials claim that detainees are housed in these supermax-like facilities because of bad past behavior, and that they can earn their way out with good behavior. However, there is no regular review process, no time period for the reviews, and no set rules or guidelines dictating when someone should be housed in such extreme conditions. Several detainees have reported that they have no idea why they remain in such harsh living conditions and have little hope of being moved.

" Based on interviews with government officials and attorneys, this report details the experiences of more than a dozen detainees who have spent years in such conditions, including several detainees who have long ago been cleared for release from Guantanamo, but cannot be repatriated due to the likelihood they will be tortured upon return. It also describes the experiences of two detainees – Mohammad El Gharani - – who were teenagers when they were taken into custody and have now spent a quarter of their lives at Guantanamo. Jawad has reportedly tried to commit suicide at least once, and El Gharani at least seven times.

“Guantanamo should be closed, and many of these detainees will ultimately be released,” said Daskal. “In the meantime, it is unwise and short-sighted to house them in conditions that likely have damaging psychological effects and will only breed hatred and resentment of the United States over the long term.” In March 2008, the Pentagon announced that it would allow detainees to make phone calls home, with an ultimate goal of two phone calls per year. To date, however, only approximately 40 detainees have been allowed phone calls under this new program. Military officials at Guantanamo have also told Human Rights Watch that they plan to make several additional changes in the future, including allowing increased recreation time, providing regular opportunities for detainees to congregate, and instituting additional language classes. No schedule for these improvements, however, has yet been announced. These reforms are long overdue, and should be implemented as soon as possible, Human Rights Watch said. Human Rights Watch also urged the United States to limit the use of supermax-like units as punishment for set 30-day periods and not as facilities for long-term detention, allow videoconferencing in addition to phone calls with family members, and provide detainees with educational opportunities and materials to promote mental engagement and reduce depression, such as additional books and writing and drawing materials. ""

FOREIGN INTERROGATION: New 4th Circuit Opinion

The Fourth Circuit affirmed the conviction and sentence in USA v Abu Ali, in spite of the defendant's various claims of errors. An excerpt appears below.

" Abu Ali next claims that all of his statements and confessions while in Saudi custody should have been suppressed as involuntary. The district court rejected this argument, finding that the government had "demonstrated by a ‘preponderance of the evidence’ that any incriminating statements" made by Abu Ali while in Saudi custody in June and July, 2003, were "voluntary" and so admissible at trial. When Miranda warnings are unnecessary, as in the case of an interrogation by foreign officials, we assess the voluntariness of a defendant’s statements by asking whether the confession is "the product of an essentially free and unconstrained choice by its maker."

If it is, "it may be used against him." Id. at 602. But, if the defendant’s "will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process." Id.; see also Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973). The government acknowledges that "[t]he crucial inquiry is whether [Abu Ali’s] will has been ‘overborne,’" and maintains that it was not; Abu Ali, of course, contends that it was. In evaluating whether a defendant’s will has been overborne, courts must assess the totality of the circumstances, taking into account characteristics of the accused, and details of the interrogation. See Schneckloth, 412 U.S. at 226. The factors we consider include: "the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep."

We review a trial court’s legal conclusion as to the voluntariness of an accused’s statements de novo, United States v. Dodier, 630 F.2d 232, 236 (4th Cir. 1980), but its "findings of fact on the circumstances surrounding the confession" for clear error, United States v. Braxton, 112 F.3d 777, 781 (4th Cir. 1997)

We particularly defer to a district court’s credibility determinations, for "it is the role of the district court to observe witnesses and weigh their credibility during a pre-trial motion to suppress." United States v. Murray, 65 F.3d 1161, 1169 (4th Cir. 1995). In this case, after hearing nearly fourteen days of testimony, the court issued a 113-page opinion describing and analyzing the testimony of over 20 witnesses, including Abu Ali, his Saudi captors, FBI agents, and American consular officials who met with Abu Ali during his detention in Saudi Arabia, as well as psychiatrists, other doctors, and nurses. The court evaluated the demeanor and testimony of these witnesses, and then made extensive findings of fact as to the credibility
of the witnesses, including Abu Ali, and the conditions of Abu Ali’s confinement

The Fourth Circuit rejected Abu Ali's claims. But see "The Public Record"for background and analysis.

During his incarceration, the Saudis refused his repeated requests to see an attorney. At no time has Abu Ali ever been linked to an actual terrorist event or action. In 2003, the government secretly broke into his parents' home, utilizing provisions of the U.S.A. Patriot Act that allows warrantless search and seizure to go fishing for evidence of Abu Ali's "dangerousness."Human rights groups such as Amnesty International and the ACLU have publicized the Abu Ali case, particularly as it highlighted the admissibility of coerced confessions in the trial of individual prosecuted in the government's so-called "war on terror". The controversy over admitting evidence obtained via torture, whether by domestic police or intelligence agencies, or by foreign governments, has roiled the government campaign to try high-profile prisoners held by the U.S. at in military tribunals at Guantanamo Bay, Cuba. Use of torture evidence lead to the resignation of government prosecutors in protest, and testimony last month from the former chief prosecutor of the tribunals that "higher-ranking officers exerted illegal influence over the process, pushing prosecutors to use coerced evidence."

TERRORISM TRIALS: Judge acquits several defendants after trial

The Boston Globe reports on June 4 that " a federal judge yesterday freed a former leader of a defunct Boston-based Islamic charity and set the stage to soon release another official from the group, after ruling that a jury should not have convicted them in January of most of the tax-related crimes for which they were tried."


"Setting aside several verdicts, US District Court Judge F. Dennis Saylor IV acquitted Samir Al-Monla, 51, of Brookline, of conspiring to defraud the United States and of scheming to conceal the origins of the tax-exempt charity, Massachusetts Care International Inc., which allegedly published newsletters promoting jihad and supporting Islamic militants overseas. He was freed a couple of hours later."

"Saylor acquitted Emadeddin Muntasser, 44, of Braintree, who owns Logan Furniture, of identical charges, but sustained his conviction for making a false statement to the FBI about having visited Afghanistan. However, federal sentencing guidelines call for a maximum of six months in prison for that crime, said Muntasser's lawyers, and the founder of Care International has spent almost that long at a federal detention facility in Rhode Island since the Jan. 11 verdict. That makes it likely he will be freed within days, his lawyers said.
Elated supporters of Monla and Muntasser hugged one another and the defendants' lawyers after the hearing. Several said the case would never have been brought if the men belonged to a non-Muslim charity."

"Thank God for our Constitution and for the checks and balances it puts in our judicial system," said Muntasser's brother, Benny, who immigrated with him to the United States from Libya. "We feel that there is a minority that bears some biases and prejudices against us. However, we feel grateful again for the federal judicial system . . . that is removed from politics and prejudices."


"In a ruling detailed from the bench for about 80 minutes, Saylor said federal prosecutors failed to prove that the two defendants schemed to deceive the IRS about Care International's activities, even if they withheld information from other federal authorities. He also said that much of the government's evidence against the two was flimsy or cobbled together with flawed reasoning."

"US Attorney Michael J. Sullivan, who had hailed the Jan. 11 convictions as a blow against those who abuse tax laws to support extremist groups, said he expects to seek permission from the US solicitor general's office to appeal the ruling."

"Saylor also dismissed a conspiracy conviction against the one-time treasurer of the group, Muhamed Mubayyid, 43, of Shrewsbury, but declined to overturn his convictions for five other offenses involving filing false tax returns."


"Mubayyid's lawyer, Michael C. Andrews, said his client was wrongly convicted of failing to disclose in the group's 2000 tax return that it had published newsletters from 1993 to 1997 supporting jihad, before Mubayyid became treasurer. Those activities could have prompted the government to withdraw the charity's tax-exempt status."
"I'm very disappointed," said Andrews. "We maintain that he never knowingly made any false return." He said Mubayyid could face one to six years in prison when sentenced next week.
Saylor's ruling was a significant setback to the Justice Department and Sullivan. The US attorney issued a statement yesterday saying his prosecutors "respectfully disagree" with Saylor and expect to appeal to the Court of Appeals for the First Circuit.

"Several friends and relatives of the three defendants said they believed the prosecutions stemmed from exaggerated fears of terrorism following the Sept. 11, 2001, terrorist attacks.
Muntasser is a Libyan national who has lived in the United States most of his life. Mubayyid is an Australian citizen of Lebanese descent. Monla is a US citizen of Lebanese descent.
Kathleen M. Sullivan - a former Harvard Law professor who teamed up with Susan R. Estrich, a one-time colleague at the school, to challenge the government's case on Muntasser's behalf - said the judge made a "courageous and correct decision."
"Never before has there been a tax criminal prosecution for a charity failing to tell you that it's sending out newsletters that somebody might not like," she said.
The three men were not charged with financing terrorist groups, but rather with failing to tell the IRS that Care International used some of its tax-exempt donations to publish the newsletter and other writings that allegedly favored a holy war.
Defense lawyers presented evidence at trial that Care International also sent money to Muslim widows and orphans and victims of disasters worldwide. They urged jurors not to be swayed by unpopular views."
After deliberating nearly 60 hours over nine days, jurors found that the three men concealed that Care International was an outgrowth of the Boston branch of the Al Kifah Refugee Center, which disbanded after members of the Al Kifah Refugee Center in Brooklyn, N.Y., were linked to the 1993 World Trade Center bombing in New York.
Saylor forbade references to the 9/11 attacks or to Osama bin Laden during the trial."

Boston Globe, June 4, 2008.

TERRORISM TRIALS: Searchable Data Base, including Charge

This data base is sponsored by Human Rights First, and is located at:

http://www.humanrightsfirst.org/us_law/prosecute/default.aspx

Human Rights First has also published a report, "New Report: In Pursuit of Justice.

In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Court, written for Human Rights First by Akin Gump Strauss Hauer & Feld LLP partners Richard B. Zabel and James J. Benjamin Jr., constitutes the most comprehensive and thorough examination to date of the federal prosecution of terrorism cases. "

"In Pursuit of Justice examines more than 100 international terrorism cases prosecuted in the existing criminal justice system over the past 15 years, ranging from epic mega-trials for completed acts of terrorism to individual, pre-emptive prosecutions focused on prevention. It draws on the personal perspectives of judges, prosecutors and defense lawyers with firsthand terrorism litigation experience, as well as the views of security experts and academics. It shows how existing laws provide an effective basis for detaining, monitoring, and prosecuting terrorist suspects. "

"The focus of this examination is on the legal and practical issues that confront courts, law enforcement, and Congress regarding terrorism-related crimes. In Pursuit of Justice concludes that the federal system has capably handled important and challenging terrorism cases without jeapardizing sensitive national security information or compromising fairness. "