New Law Says Criminal Defendants Can't Raise Constitutional Rights

[sphmug]

According to Duke Law Professor Erwin Chemerinsky, a new federal law prevents some accused "terrorists" from asserting their constitutional rights.

A recent 9th U.S. Circuit Court of Appeals decision, United States v. Afshari, 392 F.3d 1091 (2004), is very disturbing because it allows the government to punish people for activities protected by the First Amendment and denies those individuals the chance to even argue that their conduct is constitutionally protected.

The case arises from the criminal indictment of Roya Rahmani and six others for providing material support to a group that the secretary of state has designated a "foreign terrorist organization." The seven where indicted under 18 U.S.C. Section 2339(b) for giving and raise money to "MEK," or Mujahedin-e Khalq, the main opposition to the fundamentalist regime in Iran.

The defendants claim that MEK is not a terrorist organization and seek to prove this as their defense to the charges against them. If MEK is not a terrorist organization, then contributions to it are protected by the First Amendment. Federal law, however, precludes the defendants from making a challenge to the designation of MEK.

Under federal law, only the group designated as a "terrorist organization" may challenge that designation, and such a challenge may only be brought in the D.C. Circuit. As the defendants are mere individuals, not the designated organization itself, they are not allowed to defend themselves by arguing MEK is not a terrorist organization in the first place.

According to Chemerinsky, the effect of this new law is that "individuals can be prosecuted for activities that are protected by the First Amendment, but never have the opportunity to litigate their First Amendment claims. That just cannot be right." Furthermore, there is substantial reason to believe MEK is not connected to terrorism:

In the Afshari case, it is understandable why the defendants would want the chance to prove that MEK is not a terrorist organization. MEK is the only major Muslim organization in the Middle East that supports the Middle East peace process. It has aided the United States in terrorism investigations. In 1998 and again in 2002, hundreds of members of the U.S. House of Representatives issued statements called MEK "a legitimate opposition to the repressive Iranian regime"

Under the new law, "here is no limit to what groups might be deemed as terrorist organizations . . . and contributors to these groups would face as long as 15 years in prison."

[imenja]

1. the supreme court will overturn the law

on what will be inevitable legal challenges. Even this conservative court has shown the Bush administration that it's authoritarian arrests of "terrorists" is unacceptable under American law.

[TahitiNut]

2. If the 9th Circuit didn't overturn, what're the chances the USSC will?

The Ninth Circuit is the least fascist of the Circuits (I won't say 'liberal' because it isn't), so it seems to me the Fascist Five will uphold.

[imenja]

3. because they already have held the Bush administration to constitutional

limits, over the trials at Guantanamo bay, holding prisoners without lawyers, and other of the Bush administration's post 9-11 legal crimes.

[sphmug]

4. 3 Judge Panel

This was only a 3 judge panel, and don't forget that the 9th Circuit includes such judicial shoggoths as Jay "Torture Memo" Bybee. It's not that hard to put together a group of three judges on the 9th Circuit who are way to the right of even this Supreme Court.

[TahitiNut]

9. Andrew J. Kleinfeld, Kim McLane Wardlaw, and William A. Fletcher

Opinion by Judge Kleinfeld

Oh, I see. It's finding of the District Court ruling on an indictment, not a verdict, that was being challenged on Constitutional grounds. The District Court apparently dismissed the indictment, agreeing with the defendants that the statute was unconsitiutional. The Ninth Circuit, as a matter of procedure, assumed the truth of the allegations in the indictment.

For purposes of reviewing a motion to dismiss an indictment, we assume the truth of what the indictment alleges. Thus, we take it as true that the defendants knew that they were furnishing assistance to a designated “terrorist” organization, having been informed of the designation in a conference call with an MEK leader.

So, the Ninth Circuit reversed the dismissal.

Game. Set. ... But not Match.

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/104D4F5DCC3F408A88256F70005869D3/$file/0250355.pdf?openelement

[TahitiNut]

11. Andrew J. Kleinfeld is a Bush41 1991 appointee.

Kim McLane Wardlaw is a Clinton 1998 appointee.
William A. Fletcher is a Clinton 1998 appointee.

http://www.appellate-counsellor.com/profiles.htm

[Warpy]

5. Right, and those old boys don't like their turf threatened, either

which is why a lot of the laws limiting the rights of the accused are going to be overtunred rather quickly, as the wheels of justice grind away.

The arrogance of the dimwits in the House never ceases to astonish me. They've even tried to pass laws that state in the body of the law that they can't be appealed.

Those damned fools are going to be for a big surprise from the "tame" court.

[LynnTheDem]

6. MEK Terrorist Group to Get US Congress Funding

http://www.talkaboutgovernment.com/group/alt.politics.usa.misc/messages/282428.html

US: "Terrorists" who attack Iran are OK

The US Government has granted status as "protected persons under the Fourth Geneva Convention" to 3,800 persons who belong to a group, the Mujahideen-e Khalq or MEK, designated "terrorist" by Washington

http://www.antiwar.com/blog/comments.php?id=1187_0_1_0_C

The State Department favored engagement and international action, while officials in the Defense Department and Vice President Cheney's office proposed backing the MEK and considering military action against Iran's nuclear facilities.

http://www.realcities.com/mld/krwashington/news/columnists/warren_p_strobel/10361796.htm

Pentagon and Vice President Dick Cheney's office, who led the charge for war in Iraq. Members of this group see the rebels, the Mujahedin el Khalq (MEK), or People's Mujahedin, as potentially helpful to their ambitions to achieve "regime change" in Iran, charter member of Bush's "axis of evil" and a nation that is believed to have accelerated its nuclear weapons program in recent months.

http://www.fpif.org/commentary/2003/0308iran_body.html

President Dick Cheney's office proposed backing the MEK

http://seattletimes.nwsource.com/html/nationworld/2002112520_iran08.html

Gee. Sounds like bush & his neocon sickos should be in jail.

[Kerrytravelers]

7. See 'ya in jail, fellow DU protesters.

[Rapcw]

8. Thats scary because people say the 9th U.S. Circuit Court of Appeals

is the most moderate. It's not looking good

[GetTheRightVote]

10. But the attempts to undermined our laws is still very disturbing

:kick: