Sunday, November 30th, 2008

Embassy Suite

In re Terrorist Bombings of U.S. Embassies in East Africa, No. 01-1535-cr (2d Cir. November 24, 2008) (Feinberg, Newman, Cabranes, CJJ)

This trio of long opinions, captioned In re Terrorist Bombings of U.S. Embassies in East Africa, resolves the appeals of the defendants convicted of the embassy bombings in Kenya and Tanzania in 1998. One opinion deals with trial and sentencing issues, the second deals specifically with Fifth Amendment claims, and the third deals specifically with Fourth Amendment claims. The convictions of all defendants were affirmed, although one defendant asked for, and received, a Fagans remand.

The Trial Opinion

This opinion covers a host of issues, some of which are surprisingly mundane and are treated rather cursorily by the court. A few, however, are more interesting and are discussed here.

1. The Capital Indictment

Defendant Al-‘Owalhi was charged with capital offenses. Although not sentenced to death, he challenged the sufficiency of the capital counts in the indictment. Specifically, he claimed that those counts did not sufficiently allege statutory aggravating factors, as required by Ring v. Arizona, 536 U.S. 584 (2002). The circuit found that the indictment was sufficient, because each capital count alleged the requisite intent and at least one statutory aggravator.

2. The Classified Information Procedures Act

Defendant El-Hage raised a number of claims relating to the procedures the district court invoked under CIPA. He first claimed that the district court erred in limiting access to classified information to persons with a security clearance. While El-Hage’s attorney received such a clearance, he himself did not. As a result, there was evidence that only his counsel could see. The court held that CIPA authorizes such limitations “as long as the application of this requirement does not deprive the defendant of evidence that would be useful to counter the government’s case or bolster a defense.” Here, the district court committed no error in imposing a security clearance requirement given the nature of the case.

El-Hage also argued that the security clearance requirement violated both his Fifth and Sixth Amendment rights. The circuit disagreed. It first noted that the materials at issue were not discoverable under Rule 16 and that, even if they had been, El-Hage’s interest in personally inspecting them was outweighed by the government’s interest in avoiding disclosure of matters that, in the interest of national security, should not be divulged. Indeed, the “production of materials to a party’s attorney alone falls within the common meaning of ‘discovery.’” Moreover, here, the government agreed to stipulate to the information that El-Hage sought to introduce, stipulations that in some instances were better for El-Hage than the actual evidence. Accordingly, there was no violation of his right to present a defense.

Nor did the restriction violate El-Hage’s right to counsel; it fell within the narrow category of situations where a court can restrict a defendant’s ability to consult with his attorney. Here, El-Hage’s attorneys were permitted to share the relevant facts with him, even though they could disclose the actual materials.

Finally, El-Hage’s exclusion from the district court’s CIPA hearings did not violate his Fifth Amendment right to be present. The justification for doing so was compelling – the need to avoid jeopardizing lives through the unauthorized disclosure of sensitive information. Moreover, El-Hage’s ties to Osama Bin Laden created a strong reason to doubt that he could keep the classified information confidential. His attorneys were present and permitted to participate in the hearings, and the matters at issue “bore no relationship at all to the question of [his] guilt or innocence.”

3. Severance

El-Hage also argued that his case should have been severed from the death-eligible defendants for trial. The circuit rejected out of hand his claim that he was prejudiced by being tried by a “death qualified” jury. It also rejected his claim that his defense and theirs were antagonistic because the death-eligible defendants “attempted to rationalize the targeting” of the embassies and “elicited evidence about the violent nature of al Qaeda” in an effort to “emphasize their lesser culpability.” El-Hage claimed that this prejudiced him because it represented an attempt to justify acts that he considered unjustifiable and because it undermined his claim that he was unaware of the violent agenda of his Al Qaeda associates. But the circuit found “no conflict” between El-Hage’s position and his co-defendants’ strategy.

4. Post-Conviction Disclosure of a Prosecution Witness’ Statements

Several months after trial, the government discovered that twelve of the government’s pretrial teleconferences with a cooperating witness had been videotaped by that witness’ liaison to the witness security program. After the government received the videos, they transcribed them and turned them over to the defense. El-Hage then moved for a new trial under Rule 33.

The circuit found no abuse of discretion in the denial of that motion. First, those responsible for the discovery violation were not the prosecutors, but representatives of the United States Marshals service, who did not intentionally commit a discovery violation; indeed, they had “no idea they were” obligated to produce the tapes. In addition, there was no reasonable probability that the result would have been different if the evidence had been disclosed before trial.

5. Sentencing Issues

El-Hage challenged several aspects of the district court’s calculations under the sentencing guidelines. Of particular note was his claim that the hate crime enhancement should not apply.

El-Hage received the hate crime enhancement because he selected his victims based on their national origin. His primary argument was that his victims were selected out of his political beliefs, and not out of hatred. But the “line … between political activism and hate as the basis for the selection of his victims is a false distinction.” The enhancement does not turn the defendant’s motivations; it turns on intent. As long as the defendant intentionally selected any victim on the basis of one of the listed factors, there is no “good reason” for doing so, and the enhancement applies.

He also argued that he selected victims based on their United States citizenship, and not their national origin. This was “[e]ven less persuasive,” since the jury found that he conspired to murder “nationals of the United States,” and there are categories of persons who are nationals, but not citizens. In any event, there was no evidence that al Qaeda distinguished between United States citizens and others with ties to the United States, thus no evidence that the conspiracy in fact selected its victims based on citizenship and not national origin.

The court rejected all of El-Hage’s other sentencing claims, but, as noted above, granted him a Fagans remand since the district court treated the guidelines as mandatory, and the error was preserved.

The Fifth Amendment Opinion

Two defendants were interrogated by U.S. representatives abroad, and raised Fifth Amendment challenges to the introduction of the resulting statements at trial.

The circuit agreed that the Fifth Amendment’s self-incrimination clause prohibited the use at an American criminal trial of involuntary statements taken by agents of the United States in foreign countries. Here, however, there was no credible claim that the statements were actually coerced or involuntary; the issue was whether, and to what degree, Miranda applied. The circuit “assumed” but did not actually hold, that the Miranda “framework” should apply to U.S.-conducted interrogations overseas: “we proceed on the assumption that the Miranda ‘warning/waiver’ framework generally governs the admissibility in our domestic courts of custodial statements obtained by U.S. officials from individuals during their detention under the authority of foreign governments.” But, given the variations in foreign law with respect to the right to counsel, there is a great deal of flexibility in how the warnings can be worded.

Here, the defendants were correctly advised that they had the right to remain silent, were not required to speak at all, and that if they did speak their statements could be used against him. There was some difficulty, however, as to how the right to counsel was explained. Both defendants were initially given an advice of rights form (the “AOR”) that explained that, in the United States, they would have the right to speak to attorney, to have the attorney present during questioning, and to have counsel appointed before any questioning, but that because they were not in the United States, there was no way to “ensure” that counsel could be appointed before questioning. A short time later, each was read standard Miranda rights by an AUSA.

The district court found significant problems with the AOR’s treatment of the right to counsel – in that court’s view the AOR seemed to indicate that the arrestee had no opportunity to obtain counsel before or during questioning. The circuit did not think that the AOR was that bad – it did not indicate that counsel was unavailable, only that because the suspects were not in the United States, under local law the U.S. agents “could not ensure” that counsel would be appointed. That said, the court noted that the “advice as to the right to counsel could have been made clearer.” U.S. agents working abroad are not required to study local criminal procedure and urge local authorities to provide counsel, if requested, so as to “replicate” Miranda. The agents are supposed to be a source information to the suspects, not their advocates. Thus as long as they advise them of their rights under the U.S. Constitution and the procedures through which they might vindicate those rights locally, Miranda is satisfied.

The court also suggested alternative language for the AOR to avoid any future misunderstanding by a suspect. The AOR should state what rights are available, not what rights would be available had the interrogation occurred in the United States. The circuit’s suggested AOR would inform suspects that whether they can retain counsel, have counsel appointed, or consult with counsel before questioning depends on local law.

The Fourth Amendment Opinion

Defendant El-Hage, a United States citizen, argued that the warrantless search of his residence in Nairobi, Kenya, and the warrantless monitoring of his Kenyan telephone lines, all by U.S. agents, violated the Fourth Amendment. The circuit held that the Fourth Amendment’s warrant requirement does not apply to foreign searches of U.S. citizens by U.S. agents; such searches “need only satisfy the Fourth Amendment’s requirement of reasonableness.”

The court offered several reasons for recognizing an exception to the warrant requirement for “foreign soil” searches. First, “nothing in our history or precedents” suggests that U.S. agents must obtain a warrant in a domestic court before conducting an overseas search. Second, “nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own.” Third, “if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation.” Finally, there is no apparent authority for U.S. judicial officers to issue warrants for overseas searches.

Here, the warrantless searches were reasonable, and in fact El-Hage did not “explicitly contest the District Court’s reasonableness determination.” The intrusions into El-Hage’s privacy were outweighed by the government’s “manifest need to monitor his activities as an operative of al Qaeda because of the extreme threat al Qaeda presented, and continues to present, to national security.”

The search of El-Hage’s home occurred during the daytime, in the presence of his wife, and was limited in scope. It “was not covert,” was under the authority of a “Kenyan warrant authorizing [a search],” and the agents gave his wife an inventory of the items seized. Moreover, the search occurred only after several months of investigation revealed that El-Hage was an al Qaeda operative; thus, it was not based on a “whim” or an “unsubstantiated tip.”

The monitoring of El-Hage’s telephone lines was also reasonable, even though it lasted a year, covered many calls made for social, family or business purposes, and the surveillance was not properly “minimized.” The court recognized the “significant invasion of privacy” that El-Hage suffered. Nevertheless, the court agreed that this invasion was outweighed by the government’s interest in investigating “threats to national security presented by foreign terrorist organizations.” Organizations like al Qaeda – “complex, wide-ranging, and decentralized” – require sustained and intense monitoring. Moreover, foreign intelligence must “delve into the superficially mundane because it is not always readily apparent what information is relevant.” In addition, terrorists often “communicate in code, or at least through ambiguous language” and decoding their messages is “further complicated” by the fact that the communications occur in foreign languages.

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