Saipov and the federal death penalty

The Government has filed a formal criminal complaint in the case of Sayfullo Saipov, who allegedly killed eight people and injured about a dozen more on Halloween by driving his truck through a bike lane in New York City.  Although this is not an indictment, and the indictment could include additional statutory violations, the complaint focuses on one of the material support for terrorism statutes (18 U.S.C. 2339B) and the motor vehicles statute (18 U.S.C. 33).  Interestingly, the complaint also alleges a violation of section 34.  That is critical, because although the material support statutes do not provide for the death penalty, section 34 explicitly does, and here the violation of section 33 resulted in the death of a person.

Based on this, and what will almost surely appear in a future indictment, there seems to be a very high probability that the Government will seek the death penalty against Saipov.  In fact, now, I would say that it is almost certain.

Yesterday, the President tweeted that Saipov “SHOULD GET THE DEATH PENALTY.”  The President then tweeted again today about Saipov’s case, “Should move fast. DEATH PENALTY!”  (Politico has analysis here).  That is a sentiment shared by many, and under ordinary circumstances, it would be an unremarkable assertion in a terrorism case involving so many killings.  The problem, however, is that the President is not supposed to be the guy at the end of the bar.  The President oversees the federal prosecutorial infrastructure and the very people who must make the decision of whether to seek the death penalty against Saipov.  Why is that a problem?  Here is why, and it’s different than the concerns others have raised.

The federal death penalty is (or, at least should be) a point of pride for the Justice Department.  It is not used often, but when it is used, it tends to be reserved for truly heinous and highly aggravated killings.  And the Saipov case, based on what is currently known, looks to fit that bill.  Moreover, the federal death penalty provides substantial process to ensure that the decision whether to seek the death penalty is fair and objective, based on a variety of relevant factors.  Federal capital defendants receive learned counsel, and per the DOJ’s death penalty protocol, they have the opportunity to make a presentation (through counsel) to DOJ officials who review the United States Attorney’s submission of the case.  The process is not rushed, nor is it arbitrary.  Some cases, though death-eligible, may not be sufficiently aggravated to warrant a decision to seek; and even in a highly aggravated case, the Attorney General may decide not to seek because of substantial mitigating evidence, including mental state evidence.  The Department goes to great lengths to ensure that the threshold seek/no seek decision is deliberate, informed, and fair.

By stating his insistence upon a death penalty for Saipov, however, the President may be sending a signal to General Sessions that Sessions must authorize a capital prosecution, regardless of the mitigating evidence (if any).  Now, it is likely that Sessions would be inclined to seek in this case anyway, and from all public accounts of the alleged offense, it would seem to fit the mold of a federal death penalty case — highly aggravated, implicating national government interests, with minimal persuasive mitigation.  But the whole point of the protocol review process is to vet the case and determine whether the death penalty is appropriate, in light of the facts and circumstances of the individual case.

In other words, my fear is that the President has given Sessions little room on the “no seek” side of the decision-making process.  This is particularly true for Sessions, who has been publicly humiliated by the President in recent months and who functions in a world where public disagreement with — indeed, failure to worship — the President is treated as a great sin.  One might reasonably ask whether Sessions feels that he is in any position to take a different side from the President on anything.

My even greater fear is that Saipov’s lawyers will challenge the fairness and legitimacy of the review process by claiming that the fix was in and that once the President tweeted, Saipov never stood a real chance of avoiding the death penalty because the Attorney General’s hands were politically tied.  While capital defendants ordinarily do not challenge the process by which the seek decision was made, I am concerned that the President may be inviting new litigation about that process.  That is unfortunate, and unfair to the career prosecutors, as well as political appointees at Justice, acting in good faith to apply the protocol and make sound decisions in very ugly, and often complex, cases.  It is especially unfortunate in a case where the President’s sentiment was wholly unnecessary — the Attorney General may already have been inclined to favor the death penalty without prompting by the President.

I don’t want to overstate the concern.  Perhaps the President’s tweets will not matter in the Saipov case, and perhaps the legitimacy of the decision-making process will not be challenged.  After all, as I have said, it is not as if this would be a weak case for the death penalty in the absence of the President’s tweets.  Still, the President’s tweets — however satisfying to his political base — could be perceived as influencing the Justice Department’s ability give the case an objective review, and have the effect of compromising the integrity of a process that is designed to be serious, sober, thorough, and independent.  In death penalty decision-making, those are virtues more important than speed.

Given the pressures facing the death penalty in America, it is critical that the federal system be perceived as fair and just, rather than merely efficient or fast.  For those of us trying to preserve the death penalty, and its image in American law and politics, the President is making things much harder.

 

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Bank Markazi, the separation of powers, and the ghosts of Hamilton and Scalia

The Treasury Department announced today that it was replacing President Jackson on the $20 bill with Harriet Tubman (good riddance, Old Hickory!), but leaving Alexander Hamilton on the $10 bill.  That is welcome news to those of us who greatly admire Hamilton (get on board with Hamilton, conservatives!) and who thought that his exclusion would have been an injustice (and who think that Jackson has long been overrated).  There is no great monument to Hamilton in Washington, D.C., though Hamilton was a chief architect of the institutions of government we see there.  Ron Chernow properly said that if Washington was the Father of the Country, and Madison the Father of the Constitution, then Hamilton is the Father of American Government (personally, I think, as much as anything, Broadway probably helped save Hamilton today, but that’s another discussion).

In particular, Hamilton offered a comprehensive defense of an independent judiciary, as persuasive as any of the founding generation.  He said in Federalist 78 that the judiciary would be the “least dangerous” of the branches because it has the power of neither the sword nor the purse.  He described courts as “bulwarks of a limited Constitution against legislative encroachments” and sought to provide for their “independent spirit.”  Indeed, all of the essays from Publius on the judicial department were the contributions of Hamilton.

Today, the scope of judicial power, vis-a-vis that of the Congress, was the subject of the Supreme Court’s decision in the barely-noticed case of Bank Markazi v. Peterson.  American nationals sought monetary judgments against the Iranian government.  These were folks who had been victims of Iranian terrorist acts, or who were the estate representatives or surviving family members of victims of Iranian terrorism.  To make it easier for these plaintiffs to get the damages they sought, Congress enacted the Iran Threat Reduction and Syria Human Rights Act of 2012.  The law designates assets of Bank Markazi (the Central Bank of Iran) and makes those assets available to satisfy the judgments against Iran.  Does such a law violate the separation of powers?

The Court today said it does not.  Congress, the Court said, is permitted to amend the law even during pending litigation and even when the amendment will affect the outcome of the litigated case.  To reach its decision, the Court took a narrow view of a Civil War-era case, United States v. Klein, which has long confused and frustrated lawyers (and law students).  Although there is language in Klein saying that Congress cannot dictate the rule of decision in a pending case, the Court, citing the Hart & Wechsler federal courts treatise, said that language cannot be taken at “face value” because other cases have allowed Congress to enact retroactively applicable, outcome-altering legislation that courts must apply.  And it was those other cases that received the Court’s continued validation today, notably, Robertson v. Seattle Audubon Society, which upheld a change in the law that applied to pending cases and determined the outcome of those cases.

But it was the Chief Justice’s dissent, joined by Justice Sotomayor, that invoked Hamilton.  In a tour de force on the separation of powers between the legislature and judiciary, the Chief said that the statute was tantamount to Congress playing the role of judge and deciding the case before it.  Without serious question, Congress changed the law just for these proceedings and only so that the plaintiffs could win.  But the “judicial power is vested in the judicial branch alone,” the Chief wrote.  He cited Hamilton’s descriptions of a “truly distinct” judiciary and the “complete independence of the courts of justice,” as well as the Constitution’s provision for specific means of securing judicial independence – salary protection and life tenure.  But those safeguards “would have been meaningless,” the Chief said, “if Congress could simply exercise the judicial power directly.”

The Chief Justice’s dissent is especially worthy of a full read.  One senses while reading it that the Chief is invoking not just the spirit of Hamilton, but the spirit of his departed colleague Antonin Scalia, who was a fierce defender of the separation of powers.  The Chief cites Scalia’s work in both Plaut v. Spendthrift Farm (holding that Congress cannot pass a law that reopens final judgments of federal courts) and Morrison v. Olson (quoting from Scalia’s “this wolf comes as a wolf” passage there).  Indeed, the dissent is heavy with a Scalian tone about the separation of powers.  At one point, the Chief writes, “I readily concede, without embarrassment, that it can sometimes be difficult to draw the line between legislative and judicial power. . . . but the entire constitutional enterprise depends on there being such a line.”  Sounds a lot like Scalia’s “there are now no lines” from Morrison, doesn’t it?

The Bank Markazi decision will be hailed as a victory for the victims of terrorism.  That it is.  But it also represents an important airing of different viewpoints about how we discern the lines that the Constitution creates between the branches of government.  Both Hamilton and Scalia would have appreciated that debate.

American terrorism prosecutions in the news

In the midst of pettiness and petulance of American politics, the attacks in Belgium this morning remind us once again of the challenges the world faces, challenges that require serious and sober leadership, rather than entertainment.  As I have said in the past, though the military and intelligence components may be the most prominent of all components in the war against terrorism, the law enforcement and prosecutorial communities also have a vital role.  That is particularly true with respect to early detection and prevention.  With that in mind, I continue my research on the existing statutes criminalizing material support for terrorism, and their relationship to American treason.  There are a couple of variations on this subject matter that are drawing my interest at the moment: one relates to who can be an “enemy” for purposes of the Treason Clause; a second relates to the recruitment of, and actions taken by, juveniles with respect to terrorism.

In conducting my research lately I was struck by something: in a span of three days (from March 16 to March 18), the Justice Department announced major action in no fewer than five terrorism cases.  On Friday the 18th, Joseph Hassan Farrokh of Virginia pleaded guilty to a material support conspiracy that involved travel to Syria to fight for ISIL.  On Thursday, Aws Mohammed Younis Al-Jayab of California was indicted for attempting to provide material support overseas, based on allegations that he communicated on social media that he traveled to Syria to fight alongside terror organizations.   Also on Thursday, Abdul Malik Abdul Kareem of Arizona was convicted of various federal crimes, including conspiring to provide material support to ISIL, based on his helping to plan with two other men the May 2015 attack on a “Muhammed Art Exhibit” in Garland, Texas.  Also on Thursday, Mufid Elfgeeh of New York received a 270 month sentence for recruiting two men to join and fight for ISIL (the two men turned out to be FBI cooperators).  And on Wednesday, Amir Said Rahman Al-Ghazi (aka Robert McCollum) of Ohio pleaded guilty to attempting to provide material support by trying to persuade others to join ISIL and by expressing his desire to launch a domestic attack.

From what I can tell based on the DOJ’s press releases, this was the busiest single period of such announcements since December 2015, in which, during a period of 9 days, the DOJ announced major action in 10 cases (six of them were within 4 days of one another between December 14 and 17).

Now, a caveat is in order.  These are only the press releases from Main Justice.  I have not yet scoured the press releases from every United States Attorney’s Office.  And there can be a lot of different reasons for the timing of these various actions that have nothing to do with one another.  And, of course, these press releases surely do not reflect all of the work in every terrorism prosecution – the public will not see much of the work currently happening in these investigations and prosecutions.  But the Main Justice news section is at least a reliable source for major developments in terrorism cases – indictments, convictions, guilty pleas, and sentencing.  And last week, based on the objective factors I have examined, was a busy week for news of such developments.

It should be reassuring to Americans, after Belgium especially, to see specific examples of the federal law enforcement effort with respect to detecting potential domestic attacks and preventing and punishing foreign fighter travel.  Clearly, though, this work is far from over.

 

Ted Cruz on treason

Senator Ted Cruz is an excellent lawyer with a mature understanding of the Constitution.  But he is wrong on treason.

At Thursday night’s presidential debate in Detroit, Senator Cruz reiterated a point he has made earlier: that Edward Snowden likely committed, and should be prosecuted for, treason.  That is because, he said, the Constitution defines treason as giving aid and comfort to the enemy.  And that, Cruz claims, is what Snowden did.

Close, but incomplete.  Article III actually says that treason consists of “adhering to [American] enemies, giving them aid and comfort.”  Cruz’s exclusion of the word “adhering” is significant.  That is the language that helps to supply the relevant mens rea of treason, which is an intent to betray the United States.  The Supreme Court recognized this many years ago in Cramer v.  United States.

As I have said and written (here), I have not seen evidence sufficient to prove beyond a reasonable doubt that Snowden adhered to the enemy (or, that he intended to betray the Nation).  There certainly is evidence that he has aided an American enemy, but contrary to Cruz’s statement, that aid must be accompanied by adherence to an enemy and the intent to betray.  In other words, even if he did something that aided ISIS or al Qaeda (as seems likely), I have not seen evidence that he was adhering to them.

Some have speculated (Donald Trump said this last night) that Snowden was a spy.  But for whom? Russia?  China?  First, espionage and treason are not the same.  Second, even if we assume that Snowden was a spy and that he meant to adhere to the country for whom he is spying, in order to be guilty of treason that country would have to be an “enemy.”  To my knowledge, neither China nor Russia would be considered “enemies” for purposes of the Treason Clause.  We have our issues with them, but would we say they are our “enemies”?  I would agree that we need some better research and analysis on who is an “enemy” (I’m working on it), but I have seen no evidence that Snowden adhered to, or was working on behalf of, any nation or group that would fit any sensible constitutional definition of “enemy.”

To be clear, I favor prosecuting Snowden for whatever crimes he has committed.  And I favor breathing new life into American treason law, most particularly with respect to those who have joined, fought for, or supported certain terror groups.  See my previous post here.  But I am not yet persuaded that Snowden’s case is the right vehicle for doing so.  If Senator Cruz and others are committed to reviving treason prosecutions, I would start by looking at the citizens who have become fighters for – or otherwise are adherents and aiders of – ISIS or al Qaeda, for whom the Government’s existing strategy is to use the material support statutes.

 

Prohibiting firearms for those on the Terror Watch List

I mentioned in a previous post that the Senate had recently taken up multiple new gun crime measures post-Paris/post-San Bernardino, and rejected them all earlier this month.  That’s no surprise; no gun crime measures will pass the current Congress, for reasons that have been well documented by others.

I have said in the past that straw purchaser legislation and expanded background checks legislation are both sensible.  Neither of those, in my view, violates the Second Amendment.  And although I have been critical of federal gun legislation that, again in my view, implicates the Commerce Clause, each of these proposed measures likely passes muster because they each involve the commercial sale or transfer of firearms (as opposed to mere possession, which is more constitutionally problematic).

The third measure – prohibiting the sale or transfer of firearms to those on the Terror Watch List – was a more curious proposal.  Although it could potentially implicate the Second Amendment, I am confident that there are ways to craft the law to address those concerns, which I view as overstated.  As I understand the proceedings from that day in the Senate, the main proposal was from Senator Dianne Feinstein of California: the Attorney General could prevent the transfer if the person is a known or suspected terrorist and the AG has reasonable belief that the firearm will be used in connection with a terrorist act.  A substitute was offered by Senator John Cornyn of Texas, which would have created a 72-hour window within which law enforcement could delay the transaction and seek a court order of denial, based on probable cause and with notice to the prospective transferee and opportunity for him or her to be heard, with counsel.  Both failed, though there were procedural complications involved, as well as substantive objections.

The primary objection I have heard to proposals like Senator Feinstein’s is that the law violates due process (the procedural, not substantive, component): the prospective purchaser who is denied a firearm at the point of sale has no notice or opportunity to be heard.  Objectors say there are often mistakes on these watch lists, such as the No-Fly List (which is a subcategory of the terror watch list).  Such a mistake, they argue, could preclude someone from obtaining a firearm who is otherwise permitted to have one and does not pose a security risk.  That is, of course, true, though it would be true only for those persons whose possession of a firearm would fall within the core protections of the Second Amendment.  In procedural due process parlance, a person could be deprived of a liberty interest (one created by the Second Amendment), without a pre-deprivation hearing.  But such a law would likely capture only a small percentage of people in that category (the vast majority of those placed on the watch list would properly be on it, and they would not have the same Second Amendment interest as someone who did not pose a terror risk).  Moreover, the same objection would be true with respect to any watch list.  The argument that the Government is imperfect is not unique to the context of transferring firearms.  I am not sure, based on this argument, why this is not an argument against all watch lists, including the No-Fly List.

Also, the Fifth Amendment does not prohibit the Government from depriving someone of life, liberty, or property, simpliciter.  It prohibits the Government from depriving someone of life, liberty, or property without due process of law.  Once the Government supplies the process that is due to the individual, it can deprive as much life, liberty, or property as it wants (in the procedural context).  As long as the legislation offers a procedure for challenging the denial of the firearm – and the Feinstein legislation did that – then this would arguably address any due process problem created with respect to the few people who may be wrongly included on the list.  The best response to this would be to say that an additional pre-deprivation, rather than a post-deprivation, process is required, particularly where enumerated constitutional rights are implicated.  That is arguable, and the Supreme Court has approved of post-deprivation hearings in other contexts.  Because of the significance of the Government’s interests in prohibiting suspected terrorists from getting guns, a post-deprivation hearing may well be enough to satisfy the Due Process Clause.  In the alternative, though, Senator Cornyn’s amendment would have given a pre-deprivation emergency hearing – but Democrats objected to his amendment.

I have said before that I would prefer that each of these pieces of legislation come as a separate and independent bill, and subjected to an extensive debate, and a vote, on its own merits.  I see the constitutional argument that the opponents were making as to the Feinstein amendment, but I think it is overstated.  I also think that those who did not support the legislation on this basis need to explain why we should have any terror watch list, including the No-Fly List, at all.

 

Federal charges in connection with San Bernardino attack

The Government has filed a criminal complaint against Enrique Marquez, detailing charges that allege Marquez’s role in plotting to commit multiple terror attacks on American soil, as well as his connections to Syed Farook, one of the San Bernardino killers.  The complaint (there is not yet an indictment) identifies three distinct federal criminal laws that Marquez allegedly violated: conspiracy to provide material support for terrorism, making a false statement in the purchase of a firearm (a straw purchase), and defrauding immigration authorities.  The Government does not allege that Marquez participated in, or knew in advance about, the San Bernardino attack.

The Justice Department’s press release is here.  The complaint is here.

According to DOJ, forensic tests show that two of the rifles that Marquez allegedly purchased for Farook were used in the San Bernardino attack.

First, I have said for some time that Congress needs to give serious consideration to a strong federal straw purchaser statute that explicitly makes it a crime to purchase a firearm for another person.  The existing statutory scheme, 18 U.S.C. 922(a)(6) and 924(a)(1)(A), is called a “straw purchaser” scheme, but really it is a false statement scheme.  The Government has to prove that the purchaser knowingly lied when completing the required paperwork, by holding himself out as the actual purchaser when, in fact, the purchase was for someone else.   The Supreme Court held last year in Abramski v. United States that the statute applies regardless of whether the actual buyer – the person for whom the straw purchase is made – is legally eligible to possess a gun (though that is a debatable holding, in light of the way the statute is written, which is among the reasons why I think a new statute is needed, despite Abramski).

The proposal for a new and explicit straw purchaser law has bipartisan support in Congress, even among strong supporters of Second Amendment rights (e.g., even Ted Cruz sponsored his own straw purchaser legislation).  And there is a connection between straw purchasing and background checks.  The Marquez charges are a reminder of the need to address this problem in federal gun law, despite the fact that the existing statutory scheme was adequate in this particular case.

Second, could DOJ charge Marquez with treason?  Marquez and Farook never acted on their original plan, so Marquez did not wage war against the United States.  Alternatively, if the allegations are true, he certainly gave aid and comfort to Farook, but was Farook an “enemy” in 2011 and 2012?  It appears as though Farook expressed an interest in joining AQAP, but it is not clear that he did.  This may be one of those cases in which treason would be a stretch, and where the material support statute might be the better fit.  Under the material support statute, the act that the person is supporting need not be committed by an “enemy;” it need only be one of the listed terrorism offenses.

 

 

Important new paper on “speech integral to criminal conduct”

I have been meaning to post this for a couple of weeks now.  Eugene Volokh of UCLA recently posted at VC about his new paper concerning the “speech integral to criminal conduct” exception to the First Amendment, forthcoming in the Cornell Law Review.  As is reflected in his post, only an early draft is available, so it will likely be refined in the coming months.  But I view this as an important work in the area of Free Speech law.

It is particularly relevant to my work on treason and material support for terrorism, which in part asks what types of conduct could subject one to those criminal prohibitions – what is aid and comfort, and is it co-extensive with the statutory definition of material support?  Those kinds of prosecutions have raised, and will likely continue to raise, questions about whether the conduct at issue reaches the intersection of the First Amendment and anti-terrorism policy.  But as someone who desires robust anti-terrorism enforcement mechanisms, I view the “speech integral to criminal conduct” exception as especially valuable where those mechanisms target conspiratorial and complicit conduct.  I look forward to reading the final product, as I am confident I will rely on it heavily in future projects of my own.  And it’s not just for academics: anyone interested in the intersection of criminal justice policy and free speech should find it valuable.