The war on terror[ism] is a massive new problem for society. And, of course, when there’s a massive new problem for society, that ends up being a massive new problem for lawyers.
Despite the debate about whether or not to close the detention facility in Guantanamo Bay – both between Obama when he was a candidate and as President, and in society at large – and the discussion about whether to have civilian or military trials for alleged terrorism suspects, a very real part of the war on terror[ism] has been playing out in our federal courts.
The D.C. Circuit’s opinion from last week in United States v. Mohammed is a nice example.
Don’t Trust Just Anyone To Help With Your Missile-Buying
Mr. Mohammed lived in the village of Geratak in Afghanistan. If a man named Jaweed is to be believed, one day, Jaweed walked into Geratak and asked to speak with Mr. Mohammed.
Upon meeting Jaweed, Mr. Mohammed then invited Jaweed into his planning to attack a NATO airbase in Afghanistan. Specifically, Jaweed says that Mr. Mohammed asked him to get some missiles to use to attack the airbase.
As any federal criminal defense lawyer – or frequent viewer of The Wire – would suspect, Jaweed then went to law enforcement. Just like on The Wire, he went to the DEA, who were working in Afghanistan.
The DEA agents did what DEA agents do – they wired up Jaweed. Jaweed then recorded calls with Mr. Mohammed where he made some boasts about attacking the airfield.
Initially, the DEA decided they would give the missiles to Jaweed, and then arrest Mr. Mohammed as soon as Jaweed handed over the missiles. At some point, someone in the federal law enforcement community determined that handing missiles to a person in Afghanistan who has bragged about wanting to harm a NATO airbase – using missiles – is not a good idea.
A New Plan Is Hatched
If you only have a hammer, you only see nails. The DEA decided to arrest Mr. Mohammed for narcotics trafficking, instead of planning to attack the airbase.
Jaweed was instructed to talk to Mr. Mohammed about a friend of his looking for opium. Mr. Mohammed said he knew a guy who could get opium, and they talked about what Mr. Mohammed’s commission for getting the two friends together would be. At one point, Mr. Mohammed said he’d use his commission to buy a car to transport the missiles to attack the airbase.
If there’s anything the DEA knows how to do, it’s a controlled buy. The opium deal went through and the agents got some good video of Mr. Mohammed handling opium.
The DEA did another deal – this time for heroin. During this deal, Jaweed told Mr. Mohammed that his friend was planning to send the heroin and opium to the U.S. Mr. Mohammed expressed pleasure at this idea – saying that their common goal was to “eliminate the infidels either by opium or by shooting”.
Mr. Mohammed Is Arrested
The DEA arrested him in Afghanistan and drove him to a DEA base. He was given Miranda warnings and made a statement.
The D.C. Circuit noted that “[a]t no time [during the interview] did Mohammed ask for an attorney”
He was transferred to the United States and put on trial in the United States District Court for the District of Columbia.
Mr. Mohammed moved to suppress his statement, but the district court said that he was Mirandized and had the consequences of giving a statement explained to him, so no dice.
The trial lasted four days. Jaweed testified for two of those days. Mr. Mohammed’s lawyer called no witnesses and offered no evidence. He was convicted of narcoterrorism and given two life sentences.
Ineffective Assistance of Counsel
The D.C. Circuit is a good court to practice in for a number of reasons – one of which is that you can raise an ineffective assistance of counsel claim in your direct appeal.
In many other circuits around the country, if your lawyer messed up, and that affected what happened to you, you can’t complain about that in the appeal – you have to wait until after the appeal and file a petition under 28 U.S.C. § 2255.
But not so in the District of Columbia. Here, if you can show that your lawyer was constitutionally ineffective from the record before the court on appeal, the D.C. Circuit will consider your claim.
It almost makes up for not being able to vote for a Senator.
Here, Mr. Mohammed said that he had a number of witnesses in Afghanistan that he wanted his lawyer to interview.
These witnesses, he said, could have shown that Jaweed was a liar who hated Mr. Mohammed and was out to get him. Since Jaweed was the star witness, if Mr. Mohammed could have found and brought over witnesses to say Jaweed was biased or a liar, it could have gone a long way in his trial.
As the D.C. Circuit said, Mr. Mohammed’s lawyer “owed him a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” If he didn’t try to contact witnesses – even ones in a remote village in Afghanistan – he may not have given Mr. Mohammed the legal representation the Constitution guarantees him.
Sadly, the rest of the details of the ineffective assistance are under seal.
And so, the case was remanded to the district court on the ineffective assistance claim.