Guantanamo: Detainee's "Confession" Ruled Inadmissable due to Torture

According to the Guardian UK, "In a first, a military judge ruled yesterday that a Guantánamo detainee's confession was extracted through torture, and excluded it from the trial of a young Afghan detainee at the war court. Afghan police threatened the family of teenager Mohammed Jawad while he was undergoing interrogation at a Kabul police station, said army colonel Stephen Henley, the judge, in a three-page ruling."


"Henley found in the ruling that there was reason to believe Jawad was under the influence of drugs at the time of his capture and forced confession. He also accepted the accused's account of how he was threatened, while armed senior Afghan officials allied with US forces watched his interrogation. "You will be killed if you do not confess to the grenade attack," the detainee quoted an interrogator as saying. We will arrest your family and kill them if you do not confess."

Jawad confessed, was turned over to US forces and was transferred to Guantánamo two months later. The judge said he was accepting Jawad's account of what happened to him because the government had been unable to provide timely disclosure of evidence for the coming war crimes trial, scheduled for January 5. A Jawad case prosecutor recently quit the war court to protest over his inability to provide potentially exculpatory evidence. Yesterday's ruling was the first at the war court to exclude a confession on grounds of torture using the international standard, noted attorney Jamil Dakwar, a military commissions observer with the American Civil Liberties Union.

In doing so, Dakwar said, the military judge was rejecting a legal opinion by Bush administration lawyers that early on sought to soften the definition of torture by sanctioning threats to family members. "'Torture' includes statements obtained by use of death threats to the speaker or his family," wrote Henley, the military judge. "The actual infliction of physical or mental injury is not required."

Said major David JR Frakt, Jawad's defense attorney, who is seeking dismissal of the case and his client's return to his family: "He the judge is adopting a traditional legal definition of torture, rather than making one up."

Haiti: Former Paramilitary sentenced in Mortgage Foreclosure

New York Times, October 28, 2008. " A former Haitian paramilitary leader accused by human rights groups of committing murder and torture in Haiti was sentenced on Tuesday to as many as 37 years in prison for his role in a mortgage fraud scheme in Brooklyn that bilked lenders out of more than $1 million.

"Human rights groups have accused Mr. Constant, known as Toto, of running a paramilitary group in the early 1990s that raped, tortured or killed thousands of people in Haiti in an effort to silence loyalists of President Jean-Bertrand Aristide, who was toppled in a coup in 1991. When Mr. Aristide returned to power in 1994, Mr. Constant fled Haiti and surfaced in the United States, where he lived in Queens and worked as a real estate agent until 2006, when he was jailed in the fraud case. He was convicted in July on six counts of fraud, grand larceny and falsifying business records."

"While the judge mentioned Mr. Constant’s past in Haiti, noting his “truly heinous record of violence, murder, torture and intimidation,” he did not explicitly say he had weighed this history in his evaluation of a sentence."

Immigration Consequences: Ninth Cir- Statutory Rape Not Agg Felony

The Ninth Circuit in Estrada-Espinoza v Mukasey, October 20, 2008, granted a Petition for Review to a Mexican national in removal proceedings, based on a conviction for statutory rape.

"In this appeal, we consider whether a conviction under any of four California statutory rape provisions—California Penal Code §§ 261.5(c), 286(b)(1), 288a(b)(1), or 289(h)— constitutes the aggravated felony “sexual abuse of a minor” within the meaning of 8 U.S.C. § 1101(a)(43). We conclude that each statute defines conduct that is categorically broader than the generic definition of “sexual abuse of a minor” and grant the petition for review. "

White Collar Criminal Immigration: DHS to step up Enforcement Against Employers

According to the Washington Post, October 24, 3008. the US Plans to Target 140,000 Employers.

" The Bush administration in its final weeks will revive a stalled crackdown on U.S. companies that hire illegal immigrants, issuing a new regulation and asking a federal judge to lift a ban on the measure, Homeland Security Secretary Michael Chertoff announced yesterday. If the court agrees, the government could begin mailing notices to 140,000 employers regarding suspect Social Security numbers used by an estimated 8.7 million workers, pressuring businesses to either resolve discrepancies or fire workers within 90 days. Critics said the move would probably set off a new round of litigation that could outlast the president's waning term and leave the thorny issue of immigration enforcement to President Bush's successor to manage amid an economic downturn. "

Bush unveiled the Social Security "no-match" letter initiative in August 2007 after the Senate failed to pass an immigration overhaul measure. However, the program was stayed by U.S. District Judge Charles R. Breyer of San Francisco, who wrote last year that the plan could have "staggering" and "severe" effects on workers and businesses. The plan had been challenged in a lawsuit filed by the AFL-CIO and other unions, the American Civil Liberties Union and a cross-section of industry led by the U.S. Chamber of Commerce. "

Immigration Crimes: US Supreme Court Will Review Identity Theft Case

October 20, 2008, Ignacio Flores-Figueroa v United States. The issue is whether the Government must provide that the accused knew false identification belonged to someone else.

The Eighth Circuit ruled in favor of the Government:


" Ignacio Flores-Figueroa appeals his conviction for aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1), arguing that the Government must prove that he knew that the means of identification he possessed belonged to another person. Based on our precedent, we reject his argument and affirm his conviction.
In connection with his employment at L & M Steel Services, Inc., Flores, an illegal alien, used a fraudulent alien registration number and a fraudulent Social Security number. Both numbers belonged to other individuals. Flores pled guilty to two counts of misuse of immigration documents in violation of 18 U.S.C. § 1546(a), and one count of entry without inspection under 8 U.S.C. § 1325(a). He pled not guilty to two counts of aggravated identity theft. At his bench trial, Flores argued that he could not be convicted because the Government did not prove that he knew that the identification he possessed belonged to other people, which he claims is required to convict him under 18 U.S.C. § 1028A(a)(1). After rejecting this argument and finding
him guilty of two counts of aggravated identity theft, the district court2 sentenced Flores to 51 months’ imprisonment for the misuse of immigration documents and entry without inspection offenses and a consecutive 24 months’ imprisonment for the aggravated identity theft offenses, resulting in a total sentence of 75 months’ imprisonment.

On appeal, Flores renews his argument that 18 U.S.C. § 1028A(a)(1) requires the Government to prove that a defendant knew that the means of identification belonged to another person. Section 1028A(a)(1) states that “[w]hoever, during and in relation to any felony violation enumerated in [§ 1028A(c)] knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” The Government argues that "knowingly” modifies only “transfers, possesses, or uses,” whereas Flores argues that "knowingly” modifies not only “transfers, possesses, or uses,” but also the phrase “of another
person,” which would require the Government to prove that a defendant knew the means of identification belonged to another person.

In United States v. Mendoza-Gonzalez, --- F.3d ---, 2008 WL 819161, at (8th Cir. Mar. 28, 2008), we resolved this issue and determined that under the plain language of the statute, "knowingly” modified only the verbs “transfers, possesses, or uses,” and not the phrase “of another person.” Therefore, the Government need not prove that Flores knew that the means of identification belonged to another person. Flores does not challenge the sufficiency of the Government's evidence that the means identification he possessed belonged to another person. Accordingly, we affirm Flores’s conviction.

Immigration Policy: Pastor Is Outraged at Treatment of Immigrants in Postville

(CNN) -- The Rev. Lloyd Paul Ouderkirk sits beneath a cross of Jesus, the sun shining through the stained-glass windows that line his church. "Nobody can tell me to shut up," says Ouderkirk, the pastor of St. Bridget's Catholic Church in the tiny town of Postville, Iowa, the epicenter of the nation's immigration debate in rural communities.

Ouderkirk is outraged at the way federal agents swooped into town and rounded up nearly 400 illegal immigrants on May 12 in a raid on the nation's largest kosher meatpacking plant, Agriprocessors. He's angry at the bosses of the plant who are accused of mistreating workers, including children, and using a workforce that the government contends was 75 percent illegal immigrants.

And he's upset that Iowa Gov. Chet Culver and other top state officials haven't set foot in Postville since the raid left the town of 2,400 "bleeding to death." The raid was the largest work-force raid in the nation's history at the time, what one court interpreter said "criminalized the undocumented workers on a grand scale" for the first time.

Immigration Policy: Raid at Meatpacking Plant Cost to Tax Payers Now at $6.1 million

The Gazetteonline.com reports the current tab at $6.1 million.

" The immigration raid at Agriprocessors Inc. in Postville that resulted in more than 300 criminal convictions carried a hefty price tag for taxpayers of more than $6.1 million.That total is in records of financial expenses The Gazette obtained from Immigration and Customs Enforcement, the Executive Office for United States Attorneys, the U.S. Marshals Service and U.S. District Court of Northern Iowa. The records, obtained with Freedom of Information requests, included expenses of the raid and the aftermath. ICE had the biggest tab with $5,211,092 and rising as of Aug. 21. U.S. Marshals came in second with $497,416, slightly ahead of the U.S. District Court's $406,394."

White Collar Criminal Immigration: Two employees Acquitted of Harboring Aliens

Two women who worked for a poultry plant in Missouri, were acquitted of charges that they harbored undocumented workers. The charges came after the Department of Homeland Security ICE raided the George's plant in Missouri.


The Cassville Democrat report's that on Oct. 16, 2007, the federal government issued arrest warrants for them both, accusing the women of harboring illegal aliens while performing their duties as members of the human resources department at George's poultry processing plant in Butterfield. The indictments came five months after officers with U.S. Immigration and Customs Enforcement, known as ICE, descended upon the George's plant in Butterfield and arrested over 130 individuals. In the end, only about 35 of these individuals were actually detained by the federal government and only 12 were charged with federal crimes that ranged from Social Security fraud to re-entering the United States after being deported.

The initial raid made headlines, and then in October of 2007, the U.S. Attorney's Office held another big press conference to announce the subsequent arrest of eight George's employees.
Salinas and Gomez were charged with harboring illegal aliens for commercial advantage or private financial gains, aiding and abetting others to encourage illegal aliens to enter or reside in the United States and aiding and abetting aggravated identity thefts. In simple terms, the women were accused of helping illegal aliens use false identification to represent themselves as U.S. citizens and get hired on at George's.

Those indicted were described as "supervisors" by the U.S. Attorney's Office. Salinas served as the day supervisor for the plant's human resources department, and Gomez was a receptionist.
"I was so confused," said Gomez. "I am a receptionist. Why am I being charged? At that point, you don't even know the charges.

Gomez said her job as receptionist involved providing an application, telling applicants about openings and pay rates, asking for identification and then making a copy of that identification.
Salinas, who has worked at George's for 13 and a half years, said part of her job in hiring workers was to check the applicant's documentation. She said everyone who George's employs is run through a computer station that is linked to the Social Security Administration and Immigration.
"These applicants were all e-verified," said Salinas. "The government is who employment-authorized all these people.

"I truly didn't understand what I had done wrong," said Salinas. "I was stunned. We were doing everything the law would allow us to do to keep us from getting sued for discrimination."
As Salinas explained, federal law mandates that employers accept an applicant's identification at face value.

"If they provide us with valid documents, we can't ask them if they are a citizen or where they were born, because that's considered discrimination," said Salinas. Testimony provided at last week's trial revealed that all of the documentation gathered on those employees who were found to be illegals was government-issued documentation. "We didn't have one set of fraudulent documents," said Salinas.

Salinas was represented by Cassville attorneys John Lewright and Robert Foulke, and Gomez was represented by Monett attorney Don Trotter. The attorneys were retained by George's, who stood behind both women throughout their arrest and subsequent trial. "We could not have asked for better representation," said Salinas. "Everyone worked together." Gomez said she was impressed by the fact that the attorneys seemed to take the case personally. "They put their heart into it and did more than they were supposed to do," said Gomez. "They were wonderful."
When asked about the role George's played in their arrests, Salinas and Gomez are quick to state that George's is not to blame for their legal woes.

Guantanamo: Federal Judge Orders 17 Released over Government's Objection

New York Times, October 7, 2008.
By WILLIAM GLABERSON, Published: October 7, 2008, WASHINGTON — A federal judge on Tuesday ordered the Bush administration to release 17 detainees at Guantánamo Bay by the end of the week, the first such ruling in nearly seven years of legal disputes over the administration’s detention policies. The judge, Ricardo M. Urbina of Federal District Court, ordered that the 17 men be brought to his courtroom on Friday from the prison at Guantánamo Bay, Cuba, where they have been held since 2002. He indicated that he would release the men, members of the restive Uighur Muslim minority in western China, into the care of supporters in the United States, initially in the Washington area.

“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention,” Judge Urbina said. Saying the men had never fought the United States and were not a security threat, he tersely rejected Bush administration claims that he lacked the power to order the men set free in the United States and government requests that he stay his order to permit an immediate appeal.

Gang Expert Testimony: 2nd Circuit Vacates Conviction

The Second Circuit reversed the convictions of the defendants, finding violations of the Federal Rules of Evidence and the Sixth Amendment. USA v Vasquez and Castro, October 6, 2008. The key issue was whether the testimony of a law enforcement agent as an expert on MS-13 gangs was admitted in error.

The Emergence of the Officer Expert : Under Federal Rule of Evidence 702, in those situations where “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,” testimony by “a witness qualified as an expert by knowledge, skill, experience, training, or education” is permissible so long as “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed. R. Evid. 702. The broad phrasing of the description “scientific, technical, or other specialized knowledge” brings within the scope of the Rule both “experts in the strict sense of the word,” such as scientists, and “the large group sometimes called ‘skilled’ witnesses, such as bankers or landowners testifying to land values.” Id. advisory committee’s note.

"Our decision to permit expert testimony reflects our understanding that, just as an anthropologist might be equipped by education and fieldwork to testify to the cultural mores of a particular social group, see Dang Vang v. Toyed, 944 F.2d 476, 481-82 (9th Cir. 1991) (upholding the district court’s admission of expert testimony on Hmong culture), law enforcement officers may be equipped by experience and training to speak to the operation, symbols, jargon, and internal structure of criminal organizations. Officers interact with members of the organization, study its operations, and exchange information with other officers. As a result, they are able to break through the group’s antipathy toward outsiders and gain valuable knowledge about its parochial practices and insular lexicon.

"As the officer’s purported expertise narrows from “organized crime” to “this particular gang,” from the meaning of “capo” to the criminality of the defendant, the officer’s testimony becomes more central to the case, more corroborative of the fact witnesses, and thus more like a summary of the facts than an aide to understanding them. The officer expert transforms into the hub of the case, displacing the jury by connecting and combining all other testimony and physical evidence into a coherent, discernible, internally consistent picture of the defendant’s guilt.

In such instances, it is a little too convenient that the Government has found an individual who is expert on precisely those facts that the Government must prove to secure a guilty verdict—even more so when that expert happens to be one of the Government’s own investigators. Any effective law enforcement agency will necessarily develop expertise on the criminal organizations it investigates, but the primary value of that expertise is in facilitating the agency’s gathering of evidence, identification of targets for prosecution, and proving guilt at the subsequent trial.

Material Support Terrorism: 2nd Circuit Vacates Convictions

The Second Circuit in USA v Al-Moyad has vacated the convictions and remand for a new trial.
The Court found multiple errors regarding the admission of evidence. For example,


"We disagree that the form could be admitted as a co-conspirator statement. We review a district court’s finding that hearsay is admissible under the co-conspirator exception for clear error.

To admit hearsay testimony under Rule 801(d)(2)(E), the district court “must find (a) that there was a conspiracy, (b) that its members included the declarant and the party against whom the statement is offered, and (c) that the statement was made during the course of and in furtherance of the conspiracy.”

(“The existence and membership of a conspiracy are preliminary questions of fact that must be resolved by the district court before a challenged statement may be admitted under Rule 801(d)(2)(E).”). The court must find these preliminary facts by a preponderance of the evidence. Bourjaily v. United States, 483 U.S. 171, 176 (1987). “[W]hile the hearsay statement itself may be considered in establishing the existence of the conspiracy, ‘there must be some independent corroborating evidence of the defendant’s participation in the conspiracy.’” United States v. Gigante, 166 F.3d 75, 82 (2d Cir. 1999) (quoting United States v. Tellier, 83 F.3d 578, 580 (2d Cir. 1996)); see also United States v. Desena, 260 F.3d 150, 158 (2d Cir. 2001).

In this case, the district court did not satisfy the requirements of Rule 801(d)(2)(E). The court made no findings, by a preponderance of the evidence or otherwise, about the existence of conspiracy including Al-Moayad and the individual who filled out the mujahidin form (“Abu
Jihad”), nor do we think the court could have done so based on the record before us. Contrary to the government’s contention, the record fails to demonstrate Al-Moayad’s “longstanding participation in a conspiracy to provide material support to Al-Qaeda,” other than some indication that Al-Moayad had a relationship with Bin Laden sometime in the past. The form itself, given that it provides no information about Abu Jihad’s relationship with Al-Moayad other than the fact that he wrote Al-Moayad’s name as his recommender, is not competent proof of their joint involvement in a conspiracy. Indeed, we do not know if Al-Moayad even knew Abu Jihad, or was aware that Abu Jihad listed him on the form. The district court had virtually no basis for admitting the mujahidin form for its substance as a co-conspirator statement. "

*****
We believe that, in the aggregate, the district court’s errors deprived the defendants of a fair trial. The district court’s cumulated errors in admitting Al-Anssi’s notes and the testimony of Gideon Black and Yahya Goba “cast such a serious doubt on the fairness of the trial” as to warrant reversal of the defendants’ convictions. That doubt is especially grave when we also take into account the district court’s erroneous admission of the mujahidin form, the wedding video, and the Croatian last will and testament, as well as its questionable handling of the derivative entrapment issue. "

Trial of Chuckie Taylor Underway, Report from Human Rights USA

"Chuckie Taylor Trial Blog Goes Online as First US Trial for Torture Abroad Begins"

On September 29, the US government began presenting testimony and evidence in the first federal trial for the crime of torture, USA v. Belfast. This landmark case is the first time the US government has tried someone under the Anti-Torture Statute, which makes torture a felony -- no matter where in the world it is committed. Congress adopted this law to codify the requirements in the Convention Against Torture that obligate nations to exercise jurisdiction over accused torturers wherever they may be, because torture is a crime against everyone in the world whenever and wherever it happens.

Recognizing the importance of this case but also that not everyone can get to Miami for a lengthy trial, the World Organization for Human Rights USA has created a trial blog with law students at the University of Miami and Florida International University: http://USAvBelfast.org. Twenty-eight law students are monitoring the trial and posting their observations on the blog. The blog will also provide links to trial documents, news about the trial, and expert analysis. This information is intended for legal professionals and human rights advocates in the United States, as well as our colleagues in Liberia who are advocating for human rights accountability mechanisms in their country.

We hope that the trial blog will be useful to your important work and also to promoting a broader understanding of why this kind of trial is so important to human rights in the United States.
News items about the Chuckie Taylor trial:
Ex-Liberia president, son face UN, US charges, http://www.examiner.com/a-1616384~Ex_Liberia_president__son_face_UN__US_charges.html
Trial for former Liberian President Charles Taylor's Son to Begin, http://www.guardian.co.uk/world/2008/sep/22/liberia.usa
VOA News - Former Liberian President Taylor's Son's Trial to Begin, http://www.voanews.com/english/Africa/2008-09-22-voa5.cfm
American Warlord: Rolling Stone Article, http://www.rollingstone.com/news/story/22828415/american_warlord