Recently in Criminal Defense Category

laureloutlook.com

The recent increased interest in the use and distribution of medical marijuana in the state has generated concern from many community leaders and members of the law enforcement community.

At the request of Ward One Alderman Doug Poehls, the Laurel City Council is considering adoption of an ordinance establishing a moratorium on approval of medical marijuana businesses in Laurel.

The council got a first look at the proposed ordinance drafted by the city's attorney Sam Painter at last night's city council workshop meeting. The purpose of the moratorium is to allow city officials time to consider how to regulate where the businesses could be located. The council could act on the moratorium at its next regular meeting, March 2.

With the allowed use of legally acquired medical marijuana, there are two major concerns that have surfaced with law enforcement personnel. They are the possible impairment of drivers who have legally consumed medical marijuana and the difficulty for officers in determining if a driver is impaired by consumption of marijuana.

For many years it was the general assumption that DUI meant driving under the influence of alcohol. Law enforcement personnel say they suspect that more DUI tickets will start to be written for driving under the influence of drugs (marijuana) as more medical marijuana user cards are issued.

The recent statewide increase in the number of medical marijuana cards being issued has jumped since U.S. Attorney General Eric Holder issued a statement last October directing federal prosecutors to back away from pursuing cases against medical marijuana patients.

Attorney General Holder said that in 14 states with some provisions for medical marijuana use, federal prosecutors should focus only on cases involving higher-level drug traffickers, money launderers or people who use the state laws as a cover, according to news reports at the time.

Some local law enforcement officers believe this is a first step down a "slippery slope" that will probably lead to the legalization of the use of marijuana. "This sends the message that we have lost the war," one officer said.

Yellowstone County Sheriff Jay Bell said there is a lot of confusion among law enforcement agencies across the state about how to deal with medical marijuana users and care providers.

Bell noted that only a handful of officers in the state are qualified to determine if a person is under the influence of marijuana. He said there are a couple of Montana Highway Patrol troopers assigned to the Billings District that have had that training, but he noted that it is more subjective and depends on observation than the use of a breathalyzer to determine if a driver is under the influence of alcohol.

The sheriff noted that many in law enforcement view marijuana as a "gateway drug" to the use of other illegal narcotics. "We will have to wait and see what impact the wide-spread use of medical marijuana has on the abuse of other illegal drugs," he said.

While an officer may suspect a driver has been using marijuana, he must take a blood sample to determine if the chemical THC is in the suspect's blood - and that can become an expensive proposition.

Laurel Police Chief Rick Musson said his department recently suspected someone of driving while under the influence of marijuana. That person had to be transported to a Billings hospital so a blood sample could be taken. Musson said it cost his department $187 to have the blood drawn, not including the cost of transporting the person to Billings. That sample has to be sent to the State Crime Lab in Missoula for testing to determine if there is THC in the blood - a much more time consuming process than determining if a driver is under the influence of alcohol.

Both Bell ad Musson agreed that they suspect to see more drug-related DUI violations as the use of medical marijuana becomes more wide spread.

Bell said the State Department of Health and Human Services maintains a listing of medical marijuana users that have been issued cards and medical marijuana care providers that may possess marijuana. The problem though, according to Bell, is that although the listing exists, there is no mechanism at this point to allow good access to it by law enforcement.

Now, law enforcement departments have to place a phone call to Helena during regular business hours to determine if someone possessing marijuana has been issued a medical marijuana users card or a caregiver's permit.

Bell said there will be a bit of a learning curve for officers as they come into contact with those who can legally possess marijuana and they try to sort them out from those who illegally possess the drug.

Bell said he hopes during the next session of the legislature (2011), lawmakers will clear up some of the areas of confusion that now exist.

Chief Musson noted a significant difference between prescriptions issued by medical doctors for conventional pain medications and the prescribed use of medical marijuana. "It appears the use of medical marijuana is pretty much 'open-ended' with no recommended daily dosages and no point in time when the use should be discontinued. The potency of different grades of marijuana may also vary and there is no established method to determine what constitutes a 'safe dose' of the drug," Musson said.

During the first four years since enactment of the Medical Marijuana Initiative, only 801 state-issued medical marijuana user cards were requested from 2004-2008. That total grew to 8,604 through the end of January 2010.

The highest numbers have come in the last three months, with 944 cards issued in November, 1,864 in December and 1,301 in January.

The Montana counties with the highest numbers of registered patients are Gallatin (1,411), Missoula (1,211), Flathead (1,116) and Cascade (812). Yellowstone County has 590 medical marijuana users.

To date, no one has applied for a Laurel business license to open a medical marijuana business here. State officials were not able to provide the number of medical marijuana patient registration cards that have been issued to Laurel residents or the number of registered caregivers that can legally possess marijuana. There are 137 medical marijuana caregivers registered in Yellowstone County.

The Montana Medical Marijuana Initiative was approved by 62 percent of state voters in 2004. It allows people with certain ailments to alleviate their symptoms with marijuana if its use is recommended by a doctor. The law also allows registered caregivers to grow marijuana and sell it to registered patients.

Provisions of the Montana Medical Marijuana Act are found in Montana Code Annotated 50-46, Parts 1 and 2.

To become a registered medical marijuana patient, qualifying patients must register with the Montana Department of Public Health and Human Services, Licensure Bureau, 2401 Colonial Drive, P.O. Box 202953, Helena, MT 59620-2953. The department's phone number is 406-444-2676.

There is a $25 registration fee and a $10 annual renewal fee. Filled-out applications must be accompanied by a signed physicians statement by a medical doctor or a doctor of osteopathy.

To participate as a medical marijuana user, a patient must have cancer, glaucoma, positive status for HIV, AIDS, or be under treatment for these conditions. A chronic or debilitating disease or medical condition could be a condition that produces cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe and persistent muscle spasms.

Approved and registered qualifying patients under the act may grow their own medical marijuana and possess up to a limit of six plants and one ounce of dried marijuana in their possession.

The act bars consumption of medical marijuana in a school bus, or other form of public transportation, on any school grounds, in any correctional facility or at any public park, public beach, public recreation center or youth center.

In October, Billings placed a six-month ban on any new medical marijuana shops to allow time to develop zoning rules. Whitefish followed with a similar ban in December, even though it doesn't have any pot shops. Great Falls and Lewistown have followed suit. The Kalispell City Council also plans to consider an emergency ordinance placing a 90-day moratorium on medical marijuana businesses.

Under Montana law, people suffering from terminal conditions or chronic pain may qualify for a medical marijuana card. Anyone with the card issued by the Department of Public Health and Human Services may have six marijuana plants and an ounce of pot at any given time.

A licensed caregiver may also legally possess six plants and an ounce of pot for each of their patients. Patients may be attached to only one licensed caregiver from which they obtain marijuana.

Marijuana and other cannabis products are usually smoked, sometimes in a pipe or water pipe, but most often in loosely rolled cigarettes known as "joints." Smoking, however, is not the sole route of administration. Marijuana can be brewed into tea or mixed in baked products (cookies or brownies).

The effects of smoking are generally felt within a few minutes and peak in 10 to 30 minutes. Moderate doses tend to induce a sense of well-being and a dreamy state of relaxation. Stronger doses may prompt more intense and reactions including paranoia and hallucinations.

Most of marijuana's short-term effects wear off within two or three hours. The drug itself, however, tends to linger on. THC, the mind-altering chemical in marijuana, will show up in urine tests three days after use, and traces may be picked up by sensitive blood tests two to four weeks later.

nytimes.com

LOS ANGELES -- A criminal lawyer for the New Age guru who led a sweat lodge ceremony in Arizona that left three people dead said Wednesday that the deaths were a "tragedy" and an "accident," but should not be considered criminal.

In letters last month and last week to prosecutors, the criminal lawyer for the guru, James A. Ray, who led the Oct. 8 ceremony at the Angel Valley Spiritual Retreat Center in Sedona, Ariz., sought to erase perceptions that Mr. Ray had stopped people from leaving and had sat by while people died.

"Mr. Ray and his team relied on Angel Valley to provide a safe environment, warned people of the risks, did not force people to participate, did not prevent them from leaving, and did everything they could to prepare for any problems and to assist when problems arose," the criminal lawyer and two colleagues wrote in the Jan. 4 letter.

The letter added, "The idea perpetrated by the media that Mr. Ray was somehow intentionally callous about the victims of this tragedy is profoundly wrong and hurtful."

The "spiritual warrior" retreat led by Mr. Ray included a two-hour sweat lodge ceremony during which hot rocks were placed inside a tent to produce a sweltering environment intended to cleanse or renew the soul. Of the 55 people inside, 3 died, and 20 others were treated for heat-related injuries.

In an interview, Mr. Li did not make Mr. Ray available, saying the letters were his comment.

"It's a tragedy, it's an accident but it is not a crime," Mr. Li said.

Although Mr. Ray and his team have remained largely silent, the letters from his criminal lawyers -- a 22-page one dated Dec. 1 and a six-page document sent Jan. 4 -- expressed concern that "recent media stories" had cast Mr. Ray in unfavorable terms at a time when prosecutors were reviewing the case. Mr. Li released the letters to the news media on Wednesday.

Mr. Li said it appeared the Yavapai County attorney was considering a charge of criminally negligent homicide, essentially manslaughter. The attorney through an assistant, declined to comment.

Some ceremony participants have said in police reports and in interviews with reporters that Mr. Ray and his staff members did little to help people in obvious distress during the ceremony.

But Mr. Li said that the witness statements were incomplete or taken out of context and that Mr. Ray had provided the help he could. Mr. Li said that some of the statements had come from witnesses who were planning to seek a monetary settlement from Mr. Ray's company, James Ray International.

The letters concede that Mr. Ray sought to encourage people through challenging exercises, including a "vision quest" hike in the mountains before the sweat lodge. The participants all signed releases that stated death was a possibility, Mr. Li said.

But Mr. Li cast many of the activities as benign, saying they were like the games and role-playing found in many corporate retreats. The documents assert that Mr. Ray adapted much of his approach from his years as an "internal trainer" with AT&T.

"This was a five-day retreat, not a cult," Mr. Li said.

The letters said people interviewed by Mr. Ray's legal team had characterized Mr. Ray as acting something like a coach during the event. One participant recalled him telling people: "Come on you can do it. You are better than this." Another compared Mr. Ray's urgings to that of a personal trainer demanding "one more rep," repetition, during a workout. Drinks were available outside the tent, Mr. Li said.

nytimes.com

Last fall, the American Law Institute, which created the intellectual framework for the modern criminal justice system almost 50 years ago, pronounced its project a failure and walked away from it.

There were other important death penalty developments last year: the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely. But not one of them was as significant as the institute's move, which represents a tectonic shift in legal theory.

"The A.L.I. is important on a lot of topics," said Franklin E. Zimring, a law professor at the University of California, Berkeley. "They were absolutely singular on this topic" -- capital punishment -- "because they were the only intellectually respectable support for the death penalty system in the United States."

The institute is made up of about 4,000 judges, criminal lawyers and law professors. It synthesizes and shapes the law in restatements and model codes that provide structure and coherence in a federal legal system that might otherwise consist of 50 different approaches to everything.

In 1962, as part of the Model Penal Code, the institute created the modern framework for the death penalty, one the Supreme Court largely adopted when it reinstituted capital punishment in Gregg v. Georgia in 1976. Several justices cited the standards the institute had developed as a model to be emulated by the states.

The institute's recent decision to abandon the field was a compromise. Some members had asked the institute to take a stand against the death penalty as such. That effort failed.

Instead, the institute voted in October to disavow the structure it had created "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering criminal punishment."

That last sentence contains some pretty dense lawyer talk, but it can be untangled. What the institute was saying is that the criminal justice system in the United States is irretrievably broken.

A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many criminal defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.

Roger S. Clark, who teaches at the Rutgers School of Law in Camden, N.J., and was one of the leaders of the movement to have the institute condemn the death penalty outright, said he was satisfied with the compromise. "Capital punishment is going to be around for a while," Professor Clark said. "What this does is pull the plug on the whole intellectual underpinnings for it."

The framework the institute developed in 1962 was an effort to make the death penalty less arbitrary. It proposed limiting capital crimes to murder and narrowing the categories of people eligible for the punishment. Most important, it gave juries a framework to decide whom to put to death, asking them to balance aggravating factors against mitigating ones.

The move to combat arbitrariness without giving up sensitivity to individual circumstances is known as "guided discretion," which sounds good until you notice that it is a phrase at war with itself.

The Supreme Court's capital justice jurisprudence since 1976 has only complicated things. Justice Harry A. Blackmun conceded in 1987 that "there perhaps is an inherent tension between the discretion accorded capital sentencing juries and the guidance for use of that discretion that is constitutionally required."

That was an understatement, Justice Antonin Scalia said in 1990. "To acknowledge that 'there perhaps is an inherent tension,' " he wrote, "is rather like saying that there was perhaps an inherent tension between the Allies and the Axis powers in World War II."

Justice Scalia solved the problem by vowing never to throw out a death sentence on the ground that the sentencer's discretion had been unconstitutionally restricted.

In 1994, Justice Blackmun came around to the view that "guided discretion" amounted to "irreconcilable constitutional commands." But he drew a different conclusion than Justice Scalia had from the same premise, saying that "the death penalty cannot be administered in accord with our Constitution." He said he would no longer "tinker with the machinery of death." The institute came to essentially the same conclusion.

Some supporters of the death penalty said they welcomed the institute's move. Capital sentencing "is so micromanaged by Supreme Court precedents that a model statute really serves very little function," Kent Scheidegger of the Criminal Justice Legal Foundation wrote in a blog posting. "We are perfectly O.K. with dumping it."

Mr. Scheidegger expressed satisfaction that an effort to have the institute come out against the death penalty as such was defeated.

But opponents of the death penalty said the institute's move represented a turning point.

"It's very bad news for the continued legitimacy of the death penalty," Professor Zimring said. "But it's the kind of bad news that has many more implications for the long term than for next week or the next term of the Supreme Court."

Samuel Gross, a law professor at the University of Michigan, said he recalled reading Model Penal Code as a first-year law student in 1970. "The death penalty was an abstract issue of little interest to me or my fellow students," Professor Gross said. But he remembered being impressed by the institute's work, saying, "I thought in passing that smarter people than I had done a sensible job of figuring out this tricky problem."

Things will look different come September, Professor Gross said.

"Law students who take first-year criminal law from 2010 on," he said, "will learn that this same group of smart lawyers and judges -- the ones whose work they read every day -- has said that the death penalty in the United States is a moral and practical failure."

cnjonline.com

Beginning Feb. 16, the Clovis Police Department and other criminal law enforcement agencies will be hosting a 12-week Citizen's Police Academy.

It is open to the public and designed to acquaint citizens with police duties and offer an inside look into the profession.

Classes will include criminal law, investigations, traffic law and crash investigations, drug interdiction and domestic violence.

Students will also get hands on experience in crime scene investigation, firearms, driving and more.

daltondailycitizen.com

WASHINGTON - U.S. Senators Saxby Chambliss and Johnny Isakson, R-Ga., and 20 of their colleagues today called on President Obama to rethink his decision to prosecute Nigerian airline bomber Umar Farouk Abdulmutallab in the criminal justice system.

In a letter to Obama, Chambliss, a member of the Senate Select Committee on Intelligence, and Isakson, a member of the Senate Foreign Relations Committee, noted that the president's hasty decision has resulted in a lost opportunity to collect intelligence, and indicates an increasing willingness by the administration to revert to a flawed pre-9/11 mentality of treating terrorism as a law enforcement matter instead of an intelligence or war matter.

Chambliss and Isakson were joined on the letter by Senators Bond, Hatch, Burr, Coburn, Graham, Cornyn, Roberts, Enzi, Gregg, Grassley, Kyl, Risch, Sessions, Ensign, Bennett, Hutchison, Vitter, DeMint, LeMieux and Inhofe.



The text of the letter is below:



January 8, 2010



The President

The White House

Washington, D.C. 20500



Dear Mr. President:



We write to express our concern about the decision to prosecute in an Article III criminal court Umar Farouk Abdulmutallab, the 23-year-old Nigerian who attempted to detonate an explosive device aboard Northwest Flight 253 on December 25, 2009. We fear this decision has resulted in a missed opportunity to collect timely intelligence, and is indicative of a troubling pre-9/11 mentality that treats terrorism as a law enforcement rather than intelligence matter.

As we now know, Abdulmutallab managed to evade scrutiny by our Intelligence Community and smuggle explosives onto a plane bound for the Homeland. As you stated, "when a suspected terrorist is able to board a plane with explosives on Christmas Day the system has failed in a potentially disastrous way. And it's my responsibility to find out why, and to correct that failure so that we can prevent such attacks in the future." If we are to ensure that similar failures never occur again, it is imperative that we understand what the U.S. government knew about Abdulmutallab prior to his attempted attack and where there was a failure to take appropriate action or connect the information. We cannot fully answer these questions, however, unless we examine the methods and means Abdulmutallab used to avoid detection by U.S. officials. Unfortunately, our ability to get these answers has been and will continue to be severely hampered by the decision to put Abdulmullatab almost immediately into a civilian judicial forum with all the rights, protections, and privileges afforded American citizens.

After Abdulmutallab failed to detonate an explosive device on Northwest Flight 253, he was taken into custody by law enforcement. Other than the Federal Bureau of Investigation (FBI), no member of the Intelligence Community--in particular the Central Intelligence Agency--had the opportunity to question Abdulmutallab and gather intelligence. As a foreseeable consequence of the decision to prosecute him as a criminal, Abdulmutallab stopped disclosing information to the FBI upon being informed of all his rights under U.S. criminal law. At a time when our vigilance should be heightened, our Intelligence Community is now entirely dependent on the willingness of Abdulmutallab and his lawyer to cooperate with investigators. In fact, it is likely that in order to get any information from him, the government will now have to resort to bargaining with this terrorist, perhaps offering a potential reduction in jail time. In interviews this past Sunday, your National Security Council Advisor, John Brennan, stated "that he doesn't have to [speak to the government], but he knows that there are certain things that are on the table, and if he wants to, in fact, engage with us in a productive manner, there are ways that he can do that," and "[a] lot of people, as they understand what they're facing and their lawyers recognize that there is advantage to talking to us in terms of plea agreements, we're going to pursue that." While engaging with a defendant in a productive manner may be an acceptable course in an ordinary criminal matter, it is entirely unacceptable when our focus should be on gathering potentially life-saving intelligence. Put simply, deciding to prosecute Abdulmutallab in a criminal court has limited our tools "on the table" to offering a terrorist who tried to murder almost 300 passengers on a plane less time behind bars.

While the Department of Justice spends scarce time bargaining with a terrorist, there are still many unanswered questions that demand answers: Do we know where Abdulmutallab obtained money for this operation? Do we know the identities of all the individuals who assisted him? Do we understand fully the details about who, where, and how he was trained for this operation? Do we know if he was aware of other terrorist plots or operatives? What was the extent of his involvement in al-Qaeda in the Arabian Peninsula? Despite these and other questions, the Intelligence Community has now lost any chance to gain real, actionable intelligence from Abdulmutallab because criminal charges were brought against him and he was afforded the rights of our criminal justice system, including the right to remain silent.

Prosecuting Abdulmutallab, as well as your decision to prosecute other terrorists such as the five 9/11 conspirators currently detained at the Guantanamo Bay detention facility, in an Article III criminal court indicates a disturbing tendency by your Administration to make terrorism a law enforcement priority rather than an intelligence priority. As the 9/11 Commission found, "Terrorist plots were disrupted and individual terrorists were captured. But, the United States did not, before 9/11, adopt as a clear strategic objective the elimination of al Qaeda." National Commission on Terrorist Attacks upon the United States, p. 108. The 9/11 Commission also found that "an unfortunate consequence of this superb investigative and prosecutorial effort was that it created an impression that the law enforcement system was well-equipped to cope with terrorism." National Commission on Terrorist Attacks upon the United States, p. 72. As we know from an examination of events before 9/11, law enforcement means alone cannot eliminate the threat from overseas.

Gathering intelligence from all sources, including those whom we capture, that will lead us to other unknown terrorists is vital to eliminating al-Qaeda. Under your Constitutional authority as Commander in Chief, along with the Congressional Authorization for the Use of Military Force (P.L. 107-40), you have the authority --and, we believe, the responsibility--to detain Abdulmutallab because of his actions on behalf of al-Qaeda and associated groups. Had you ordered Abdulmutallab to be detained under this authority rather than criminally prosecuted, the Intelligence Community would have had a clear opportunity to collect intelligence from him, potentially leading to the discovery of other unknown terrorists before they, too, attempt to attack our nation or allies.

Detaining Abdulmutallab under your Constitutional authority also would give your Administration the time necessary to determine the full extent of his hostile and unlawful activities for punishment, and to pursue trial by military commission--an option you have determined appropriate for other terrorists, such as Abd al-Rahim al-Nashiri who was responsible for the U.S.S. Cole bombing. Instead, by prosecuting Abdulmutallab and the 9/11 conspirators in criminal court, and Nashiri and others by military commission, it creates the impression that terrorists are rewarded with the full panoply of rights and privileges of an American if they attack defenseless civilians at home, but not if they attack our government or military interests abroad. This will only further incentivize terrorists to attack our Homeland.

It is important to note that the Intelligence Community had a key piece of information specific to Abdulmutallab only because it had been volunteered by his family. Without this vital information, it is unlikely the Intelligence Community could have identified him even if they had they pieced together other intelligence indicating a threat to the U.S. As such, it is critical that our Intelligence Community have every opportunity to gain information so we can stay one step ahead of any related terrorist threats. Obtaining intelligence first rather than affording constitutional rights to a foreign terrorist is an obvious solution. So, too, we must ensure that our Intelligence Community has all the tools and capabilities at its disposal, such as those provided by the USA PATRIOT Act, so that we may detect terrorists before they ever have another chance to blow up a plane full of passengers.

We urge you to reconsider using the civilian criminal justice system to prosecute Abdulmutallab and other terrorists in U.S. custody. As al-Qaeda continues its quest to destroy the U.S. Homeland and our interests abroad, it is imperative that we use every intelligence-gathering means possible to deny them this opportunity and protect our citizens from harm.

thelede.blogs.nytimes.com

Last Friday morning in Ireland, about 30 minutes after a new law took effect with the new year that makes blasphemy a crime punishable by a fine of up to $35,000, a group of Irish atheists invited the government to prosecute them by publishing 25 blasphemous statements on an Irish Web site.

As The Lede explained last July -- when the bill was signed by Ireland's president, Mary McAleese -- even though Ireland's Constitution calls blasphemy a criminal act, the police force had no legal means to prosecute blasphemers.

According to the updated Irish Statute Book, the criminal blasphemer is defined as someone who "publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and ... intends, by the publication or utterance of the matter concerned, to cause such outrage."

On the Web site Blasphemy.ie, Michael Nugent, a writer and co-founder of Atheist Ireland, wrote that his group was trying hard to break the new criminal law because it is "both silly and dangerous." Mr. Nugent explained:

It is silly because medieval religious laws have no place in a modern secular republic, where the criminal law should protect people and not ideas. And it is dangerous because it incentives religious outrage, and because Islamic states led by Pakistan are already using the wording of this Irish law to promote new blasphemy laws at U.N. level.

Given that the law explicitly states that the intention of the blasphemer has to be to cause outrage, it is not clear if the Irish atheists have really succeeded in breaking it. The 25 statements published on Blasphemy.ie are largely inoffensive quotes from people like Jesus, Mark Twain and a fictional character in Monty Python's "Life of Brian" that are unlikely to ever fill the streets of Dublin with enraged protesters.

What makes the Irish group's attempt to break the law seem particularly tame is that it came on the same day last week that an axe-wielding man in Denmark tried to attack a cartoonist who offended millions of Muslims by publishing a drawing thought to show the Prophet Muhammad with a bomb in his turban. Say what you will about the Danish newspaper Jyllands-Posten, which intentionally published 12 cartoons mocking Islam in 2005, but that publication certainly showed how to cause the kind of outrage described in Ireland's new law.

If the Irish atheists had wanted to make sure that they were breaking Ireland's new law, they could simply have republished those cartoons, as the blogger Andrew Sullivan did last week in response to the attack on the cartoonist.

Indeed, some observers in Ireland, noting that the country's Christian leaders made no public request for the legal prohibition on blasphemy to be made enforceable, have guessed that the government may have been acting mainly to restrain any Irish publisher from following the lead of the conservative Danish paper in offending Muslim sensibilities. David Quinn, a former editor of a Catholic newspaper in Ireland, told NPR that the new Irish law may have been introduced not to placate Ireland's Christian majority, but because "there was a fear that we might get a Danish cartoon-style controversy in Ireland -- that some newspaper might publish something that Muslims found highly offensive -- and it might have repercussions for Irish trade in the Muslim world."

washingtonindependent.com

The Obama administration's decision to try the Nigerian man suspected of attempting to blow up a Northwest Airlines flight on Christmas as an ordinary civilian criminal rather than as an "unprivileged enemy belligerent" in a military commission, as the 9/11 hijackers initially were, highlights the inconsistent approach taken by both the current and previous administrations, civil libertarians and defense lawyers say.

The Justice Department appears to have immediately treated the case of Umar Farouk Abdulmutallab, a 23-year-old Nigerian who claims he trained in Yemen with al-Qaeda, in the way it has long treated suspected terrorism: as a criminal act to be prosecuted in a civilian federal court.

Arrested on Friday, Abdulmutallab was charged the next day, while being treated for burns in a hospital room in Ann Arbor, Michigan. He was charged with attempting to blow up Northwest Flight 253, which left from Amsterdam and was headed for Detroit.

Asked why the Department of Justice treated Abdulmutallab as a civilian rather than a suspected belligerent, DOJ spokesman Dean Boyd said: "At this time, we have no comment on the ongoing investigation or any prosecutorial deliberations -- beyond the public charging documents that have been filed in the case." The criminal complaint is here.

Defense lawyers who represent Guantanamo detainees who have not been treated as civilians applauded the Obama administration's move, but noted the lack of a coherent rationale for continuing to treat other alleged terrorist plots as acts of war.

"There is something striking about fact that they treated the 9/11 attacks as an act of war but treat somebody who's trying to blow up a plane as an ordinary criminal," said David Remes, legal director of Appeal for Justice who represents almost a dozen Yemeni men still detained at Guantanamo Bay. "What is the basis of the distinction?"

Jonathan Hafetz, an attorney with the National Security Project of the American Civil Liberties Union similarly called it "a positive step that the Obama is handling this case through the criminal justice system which has demonstrated time and again that it is fully capable of prosecuting terrorism without sacrificing constitutional rights or values."

He added in an e-mail that it is "unfortunate that the Obama administration is not applying this strategy across the board and instead continuing to detain individuals at Guantanamo without trial and outside the criminal justice system."

This case was probably easier to send to federal court than some others because it does not involve a defendant who's been detained for years without charge or tortured or otherwise abused by U.S. authorities, as have some detainees held at Guantanamo Bay. Those factors could all complicate a subsequent prosecution in federal court. By turning Abdulmutallab over to the FBI immediately, the administration could ensure that lawful procedures were followed and the evidence collected would more likely be admissible in a subsequent civilian trial.

That's not the distinction the Obama administration has relied upon to justify the use of military commissions, however, and many critics have claimed that the administration has still failed to offer a coherent explanation for its choice of courts for different cases.

The Bush administration similarly chose different fora for different trials, often with little or not explanation. Richard Reid, for example, the so-called "shoe bomber" who tried to blow up an American Airlines plane shortly before Christmas in 2001, was, like Abdulmutallab, treated as an ordinary criminal and tried and convicted in federal court. In fact, the Bush administration tried more than 120 international terrorism cases in federal court after the 9/11 attacks. Still, both administrations have both treated some terror suspects with alleged links to al-Qaeda as war criminals to be tried in military commissions instead.

When Attorney General Eric Holder announced in November he was transferring the 9/11 suspects to federal court for trial, he also announced that four other high-level detainees would be tried by military commission. They include Abd al-Rahim al-Nashiri, the suspected USS Cole bomber, and others who allegedly attacked military targets. Holder at the time attempted to distinguish the cases on that ground, although many critics, including former Justice Department officials, said that distinction didn't hold up.

Abdulmutallab's claimed connection to al Qaeda suggests that his alleged attempt to blow up a plane could be treated as an act of war, and he could be tried as a war criminal as well. Similarly, the alleged USS Cole bomber and others charged as war criminals could easily be tried as alleged murderers in federal court.

In fact, as even Justice Department official David Kris has acknowledged, the crimes of conspiracy and providing material support for terrorism have traditionally been treated as federal civilian crimes, not as war crimes. That could complicate current attempts to try al Qaeda suspects for those crimes in the newly-reconstituted military commissions.

The hope of a speedy and successful prosecution may be the reason the Justice Department chose to prosecute this latest case in the civilian system, where it's had a long record of success, both before and since September 11, 2001. Almost 200 terror suspects have been convicted in civilian federal courts since the 9/11 attacks; only three have been convicted in military commissions.

The alternative, say many legal experts, would have been to risk procedural delays, appeals and the reversal of any conviction in the new and untested military commissions.