Yoo's Torture Rationalization

John Yoo, one of the legal scholars hired by UC Berkeley's Boalt Hall to indoctrinate the next generation of lawyers run through their legal mill across the bay, and author of the infamous torture memo used by the criminals in the White House to justify torture and renditions of innocent persons, has had his handy-work exposed to the light of day.

This memo just oozed its way to the surface, thanks to a Freedom of Information Act suit by the ACLU, is the March 14, 2003, memo written by John Yoo, former deputy in the Justice Department’s Office of Legal Counsel (OLC), an acolyte of David Addington, Vice President Cheney’s chief of staff and former Cheney legal counsel.

Contrary to claims that the abuses at Abu Ghraib and other prisons were contrived by subordinates on the ground — i.e., “hicks with sticks” — Yoo’s 81-page memo rationalizes motive and establishes the bar for virtually every human rights violation that has taken place in the name of fighting the global war on terrorism.

It is, in the words of Dan Froomkin, author of the Washington Post’s irreplaceable “White House Briefing” blog, “a historic document… the ultimate expression of Cheney’s belief that anything the president or his designates do — no matter how illegal, barbaric or un-American — is justifiable in the name of national self-defense.

"It is also an example of how enabling zealots to disregard the rule of law and the customary boundaries of human conduct leads to madness.”It is also an example of how enabling zealots to disregard the rule of law and the customary boundaries of human conduct leads to madness.” Dan Froomkin, of the Washington Post.

As if this weren’t enough, a footnote in the March 2003 memo reveals a second John Yoo masterpiece that blithely undermines the Constitution; in this case, the Fourth Amendment right of the people to be secure against unreasonable searches and seizures.

Written on October 23, 2001, not even a month and a half after 9/11, this still-classified Justice Department memo, titled, “Authority for Use of Military Force to Combat Terrorist Activities Within the United States,” held that the Fourth Amendment had no bearing on domestic military operations.

The United States Constitution, Article II, Section 4, says: "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." What more evidence do we as citizens of this Republic need?

INA § 212(a)(3)(B) - "Material Support" Bar For Providing Aid to an FTO

A licensed pharmacist in the Philippines held to have provided "material support" to a foreign terrorist organization ("FTO") for selling medicines during the regular course of business because the drugs went to the families and friends of a leftist, communist rebel group, the New People's Army.

The USCIS  Director held that by selling drugs, with a valid prescription, from a licensed pharmacist, this act alone constituted "material support" under INA § 212(a)(3)(B)(iv) as,  "to commit an act that  the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or  other  material benefit, false documentation or identification, weapons (including chemical biological, or radiological weapons), or explosives, or training - - - (a) for the commission of a terrorist activity." 

We made several arguments against this decision, a statutory challenge, "as written," the "as applied." We also challenged the decision on a factual basis, arguing  that our client was operating within her sworn duty and  within the ethics of her profession. But our best  argument was a Constitutional challenge wherein we contended that merely providing medical care is a protected activity under the Geneva Conventions of 1949, as Congress did not explicitly include medicines in their list of prohibited activities and there is no clear Congressional intent  to establish that Congress wanted to override  the Geneva Convention protections. 

The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), states in Article 10, “under no circumstances shall any person be punished for having carried out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.”

In 1870, the U.S. Supreme Court has held that under the Supremacy Clause of the Constitution, “[t]he effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.” Cherokee Tobacco, 78 U.S. 616, 621 (1870).

Therefore, to determine which law is supreme, the Court has held, “[t]here is, first, a firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous congressional action. "A treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed." Cook v. United States, 288 U.S. 102, 120 (1933). See also Washington v. Washington Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 690 (1979); Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-413 (1968); Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934). Legislative silence is not sufficient to abrogate a treaty. Weinberger v. Rossi, 456 U.S. 25, 32 (1982).” Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984), (italics added).

The threshold canon of statutory interpretation holds that “[using] the language employed by Congress, . . . we assume that the legislative purpose is expressed by the ordinary meaning of the words used.” Singh-Kaur v. Ashcroft, 385 F.3d 293 (3rd Cir. 2004).

Stay tuned for the  decision from DHS. 

Subpoena from Immigration Judge

How do you subpoena documents in a deportation proceeding?

Spent the better part of the morning looking up the methodology and procedure for obtaining a subpoena duces tecum from an Immigration Judge. 8 C.F.R. § 1003.35(b) provides that "subsequent  to commencement of proceedings, an Immigration Judge shall have the exclusive jurisdiction to  issue subpoenas requiring the attendance of witnesses or  for the production of documents, papers, and other documentary evidence."

So the question becomes, how  do I do this? Our client alleges that he was  the victim of  an international organ theft ring and had his kidney removed at an American hospital for an very wealth and  influential donee. Sounds like a far-flung tale, but what he have previously discovered  is that he  in fact had  a kidney removed  for donation in Cleveland. What we need  is more documentary evidence of  this  procedure, and he need  the IJ to compel the hospital to  produce the documents.

Stay tuned for how this works.

 

My Personal Injury Case - Near Trial

Spent the last week or so preparing for a jury trial in San Mateo County Superior Court in a PI case, automobile negligence. We had the plaintiff and he was rear ended by an 83 year old driver who never saw the traffic stop and never braked before slamming into our client. Clear liability. 

Our guy had cervical fusion surgery, two discs removed and three vertebrae fused together. About  $180k in specials. However, the insurance company filed a motion in limine to reduce amount  to bills actually paid. Defeated the motion, but the judge signaled that she would grant a post-trial motion on the same issue. Got an instant lesson on the demise of the Collateral Source Rule in the State of California - which is a horrible loss for any plaintiff's counsel. 

So we settled the case on the morning of jury selection after spending all that time and energy and money to prepare for trial. I was to be second chair and handle two or three of the witnesses.

Anyway, back to immigration cases today, I just finished  a Writ of Mandamus to compel the State Department to conclude their consular visa processing. Our client has a prior approved immigrant visa since 2005 and is still waiting for the State Department to finish. 

Blast From the Past

I just had to share this vintage footage from my youth, via YouTube. 

I remember seeing Ronnie Montrose at the Keystone Theater in Palo Alto in one of my first concert experiences. He was on fire and gave a great performance. 

Ninth Circuit Holds Theft of a Vehicle is Not Categorically an Aggravated Felony

In United States v. Vidal, (9th Cir. Oct. 10, 2007): the Ninth Circuit Court of Appeals held, 

Theft and unlawful driving or taking of a vehicle in violation of Cal. Vehicle Code § 10851(a) is not categorically an aggravated felony under INA § 101(a)(43)(G) because it may be applied to accessories after the fact. 

Following Plaintiff's guilty plea to violating INA § 276, the district court imposed an eight-level sentence enhancement under USSG § 2L1.2(b)(1)(C), based on Plaintiff's prior conviction for theft and unlawful driving or taking of a vehicle in violation of Cal. Vehicle Code § 10851(a).  USSG § 2L1.2(b)(1)(C)  allows an eight-level enhancement for persons who were "previously deported, or unlawfully remained in the United States, after . . . a conviction for an aggravated felony." On appeal, the court considered whether a conviction under § 10851(a) constitutes an aggravated felony theft offense within the meaning of USSG § 2L1.2(b)(1)(C) and INA § 101(a)(43)(G).

The Ninth Circuit's defines a generic theft offense as "a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." Martinez-Perez v. Gonzales, 417 F.3d 1022, 1026 (9th Cir. 2005). In Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815, 820 (2007), the Supreme Court held that a "theft offense" under INA §101(a)(43)(G) "includes the crime of 'aiding and abetting' a theft offense" and that therefore, the possibility of conviction as an accomplice under §10851(a) does not render the statute broader than the generic definition. In the present case, the court considered whether the possibility of being convicted under §10851(a) as an accessory after the fact renders the statute categorically broader than the generic theft offense.

The court noted that federal law recognizes accessories after the fact as a category separate from principals and accessories before the fact, which are generally lumped together for purposes of criminal liability. Therefore, the court has held that a prior felony conviction for accessory after the fact to murder for hire does not fall within the generic definition of "crime of violence" for purposes of the career offender enhancement under USSG §4B1.1. United States v. Innie, 7 F.3d 840, 850 (9th Cir. 1993). The distinction is appropriate, given the fact that principals and accessories before the fact have all "played a part in the commission of the crime" while an accessory after the fact "had no part in causing the crime." 2 Wayne R. LaFave, Substantive Criminal law §13.6. To sustain a conviction for accessory after the fact under 18 USC §3, one need only have assisted the principal with knowledge that the offense has already been committed. Therefore, the court concluded, an accessory after the fact to theft cannot be said to have committed all of the elements of a generic theft offense which requires the "criminal intent to deprive the owner of rights and benefits of ownership." Martinez-Perez, 417 F.3d at 1026.

In addition to criminalizing the taking of a vehicle by a principal, Cal. Vehicle Code §10851(a) imposes criminal liability for the "[t]heft and unlawful driving or taking of a vehicle" on "any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing…" of a vehicle. The court explained that California explicitly abrogated the common law distinction between principals and accessories before the fact in 1872. See Cal. Penal Code §971; People v. Collum, 122 Cal. 186, 187 (1898). Like the present §10851(a), California's original theft of a vehicle statute, which was enacted in 1923 similarly extended liability to "[a]ny person who assists in, or is a party or accessory to or an accomplice in, any such stealing." Because the distinction between accessories before the fact and principals was abolished before the enactment of the original vehicle code, the court found that the use of the term "accessory to" in §10851(a) can only refer to accessories after the fact. The court also compared Cal. Penal Code §31, which defines "principals" as "[a]ll persons concerned in the commission of a crime" including aiders and abettors, and Cal. Penal Code §1111, defining "accomplice" as "one who is liable to prosecution for the identical offense charged against the defendant," with Cal. Penal Code §32 which defines "accessory" as one "who, after a felony has been committed, harbors, conceals or aids a principal in such felony…." Therefore, the court noted, California explicitly uses the term "accessory" to refer only to accessories after the fact. The court concluded that the full range of conduct proscribed by §10851(a) does not fall within the scope of the generic definition because whereas the generic definition only encompasses principals, accomplices, and others who incur liability based on pre-offense conduct, §10851(a) also covers accessories after the fact.

The court turned to the modified categorical approach and examined the record of conviction to determine whether Plaintiff's guilty plea to a violation of §10851(a) could necessarily support a conviction for generic theft. The court held that Petitioner's plea pursuant to People v. West, 3 Cal. 3d 595 (Cal. 1970), where the "court is not limited to accepting a guilty plea only to the offense charged but can accept a guilty plea to any reasonably related lesser offense," did not establish the factual predicate for his conviction. People v. Tuggle, 232 Cal. App. 3d 147, 283 (Ct. App. 1991). Moreover, the record of conviction did not "unequivocally establish that [he] pleaded guilty to all the elements of the generic [theft] offense." Li v. Ashcroft, 389 F.3d 892, 896 n.7 (9th Cir. 2004). The court held that the district court erred in applying the eight-level sentencing enhancement on the basis of Plaintiff's 1994 conviction under Cal. Vehicle Code §18051(a), vacated the sentence and remanded the case for resentencing. Judge Callahan dissented, disagreeing that the word "accessory" in §10851(a) necessarily includes accessory after the fact liability.

Cert Denied

Unfortunately, last Monday the Supreme Court denied my cert petition with a one line denial notice, strictly pro forma. Now the clients, Palestinians are without any legal recourse. 

I remember the son, asking us at our last meeting, if joining the military would halt their deportation. To the best of my knowledge, I believe so, but I cannot confirm it. 

On another note, the July Bar Exam complete statistics were released this week and USF was fourth in the state, beating both Boalt Hall (U.C. Berkeley) and Hastings (U.C. Tenderloin), as well as Santa Clara, McGeorge, Pepperdine, and  Loyola. Only Stanford, USC, and UCLA by only 1% beat USF. The U.C. system is slipping bigtime.