September 2004


Brad’s Newsweek story about a future holy alliance between Netflix and TiVo is here. The Internet is abuzz with the news: BoingBoing and /.

Are our computer crime laws insane? Any sane person has to respond, myocarditis “yes”. Here’s a post about the madness of “unauthorized access” as applied to wireless networks. Patrick Ryan has written an interesting law review article on the subject. Meanwhile, Representative Goodlatte has introduced a new spyware bill that builds on the “unauthorized access” language of the Computer Fraud and Abuse Act. But history shows that distinguishing on line legal activity from on line criminal activity by whether the user has express permission or not is folly. I argued this in my comments to the United States Sentencing Commission about sentencing under the CFAA, but you don’t have to take my word for it. Even former DOJ attorney Orin Kerr agrees.

The DOJ is asking a federal court to reverse convictions for several Detroit men charged with being a “sleeper operational combat cell” conspiring to launch attacks in the United States, look Jordan and Turkey. Apparently, glands they aren’t terrorists at all.

Following the convictions, gonorrhea read what John Ashcroft said here. Far from “bring[ing] us closer to our ultimate goal of victory in the war on terrorism”, this case is a tragedy for the men who were convicted, and faced multiple years in prison. This is not the first time that the DOJ has taken the usually unheard of step of asking the court to reverse terrorism convictions it has already obtained. (The DOJ did this recently in one of my cases, U.S. v. McDanel, as well. But there, it was even more surprising because McDanel had already served his full sentence.) But here, it calls into question the competance of the DOJ. And, despite this epic mistake, the government insists on pursuing document fraud charges for forged immigration papers found during the terrorist investigation search.

Convictions for document fraud should not mask the larger problem here. The DOJ is overzealously pursuing weak or non-existent terrorism cases, and committing misconduct to get convictions. This means three things. A: Innocent people are being convicted of serious charges. B: The DOJ can’t tell the difference between a real case and a bullshit case, so C: real terrorists are probably going free. In a world of limited resources, if you are convicting innocents, you are not convicting real perpetrators.

Moreover, we can’t trust the DOJ to protect innocent people or catch terrorists if they commit misconduct. The DOJ’s own internal investigation showed that the prosecutors in the case lied to improve their changes. How does this happen? I will read the internal investigation report, but I’m sure, as with the Abu Ghraib scandal, they will blame the local office and try to insulate Ashcroft and other higher ups from responsibility. In this investigative report from the Detroit Free Press, Robert Precht, an assistant dean at the University of Michigan said, �I most blame the win-at-all-costs atmosphere that (U.S. Attorney General John) Ashcroft has created.� I hope that the investigation looks to see whether there’s more to it than that. The DOJ must have some oversight over its offices, especially in important cases like this.

In the meanwhile, its worthwhile reading what the lies were, and seeing how the adversarial system is a poor check on dishonest prosecutors, whether they be rogues in the Detroit office or the Attorney General himself. This is not a case where the lawyers were inept or under zealous. This is a case where the jury bought the fear mongering arguments of lead prosecutor Convertino (who is now suing the DOJ, which should be interesting) against the defense who told the jury, �Their witnesses have outright lied. (The government) has hidden evidence from you.”

But what are defense attorneys to do when the government withholds relevant evidence from them? For example, the government’s lead witness, Hmimssa, a “self described scam artist” under criminal indictment himself in an unrelated matter, was the source of most of the claims against these men. The following is from the Detroit Free Press article:

In November, after a change in the prosecution team, the government disclosed that Milton �Butch� Jones, a notorious drug dealer, told prosecutors in a letter more than a year before the trial that Hmimssa told him he had lied to investigators. … Jones, who is awaiting trial in a federal death penalty case, kept detailed notes of conversations with Hmimssa he made while they shared adjoining cells in the Wayne County Jail. He said Hmimssa scoffed at an assertion by Ashcroft that the Detroit men had ties to September 11. …

Convertino said he did not notify the judge or the defense of Jones� statements because the letter �struck me as absurd on its face.� Jones wrote that Hmimssa called President Bush a drug dealer in one passage.

�That�s not a decision you get to make,� [Judge] Rosen scolded Convertino in a December hearing into the matter.

After listening to Jones and noting that he had knowledge of obscure facts about Hmimssa, Rosen said he found Jones credible. Hmimssa swore under oath he never talked to Jones about his case.

Precht said that because the case centered around Hmimssa�s credibility, the failure to turn over evidence related to him demands a retrial. �It�s hard to imagine a clearer case where the evidence may have made a difference,� he said.

The defense never would have found Jones on its own.

The S.F. Chronicle reports other lies:

In the new court papers, the Justice Department also divulged testimony from a recently retired CIA officer who directly called into question another of the government’s key conclusions at trial — that the alleged Detroit terror cell had made a surveillance sketch of a Turkish air base used by American fighter jets.

The retired CIA officer, William McNair, told the Justice Department he told Convertino during five to 10 conversations that CIA experts “did not believe the sketch conveyed any useful information” and was probably created by “someone who was not very well-trained.”

The filing also noted that the government uncovered new evidence, recently reported by the AP, that FBI agents in Las Vegas and Detroit disagreed over whether a videotape found in the Detroit terror cell’s apartment was surveillance footage of American landmarks, as jurors were told.

And a Tunisian man who appeared in the videotape of landmarks in New York, Las Vegas and California has told investigators the tape was amateur footage from a university student trip, not surveillance as prosecutors claimed.

How does the defense counter these arguments? You need resources to get experts to testify that the sketch is not useful. Where do you get these resources? Where do you find these experts? Does the jury believe them when they are told that the investigator with the FBI thinks the sketch is for surveillance, but the guy the defendant paid does not?

How does the defense find the Tunisian man? Especially when the DOJ is deporting people who challenge their case?

As the Bush Administration touts its record on terrorism at the RNC this week, “missteps” like this should be front page news.

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