Thursday , 19 October 2017

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Lawyers: Masajid, Islamic Orgs Should Prepare for Raids, Seizure of Documents

Activist Washington DC based attorneys prepared the following advice for Muslim community leaders. The FBI and other federal agencies raided 19 Muslim entities in Herndon VA in March 2002 as part of ‘Operation Green Quest,’ so there is a precedent for these types of actions. — TML

What are we missing? Here it is: the coming storm of law enforcement raids and investigations. And, to a lesser extent, indictments and “unindictments.” My belief, informed by years of criminal defense work, as well as work with federal and local prosecutors and investigative agencies, is that President Trump and Attorney General Sessions will order a full-scale, national dragnet aimed at nearly every prominent Muslim organization and many of their donors. Ever see those FBI press conferences after multi-city raids designed to dredge up medicare fraudsters or child pornographers? Like that, only this time the target is breaking up the alleged “terrorist” infrastructure in America.

Why do I think this storm is coming? Three reasons: first, because President Trump and AG Sessions want to show their base that they are “tough guys” who are “serious” about eradicating terrorism; second, because it is sadly all to easy to gin up the above scenario; and third, there is little after-the-fact accountability and commitment necessary from law enforcement or the administration.

Let’s discuss each of those reasons in a little more detail. The new sheriffs in town want to create the illusion of being tough on terrorism. As they will discover if they haven’t already, truly addressing terrorism is difficult and tricky and highly nuanced. Inciting the American Muslim community, who can be and already are very engaged in trying to eradicate the awful mindset of true terrorists, hardly seems like a step in the right direction. Yet what will they do? Create an optic – just like we are seeing now with all those supposed “new” jobs that President Trump trumpeted on Twitter – where everyday people think something is being done.

How does the new administration do this? Get search warrants targeting American Muslim organizations and their donors; bring armed-to-the-teeth law enforcement to conduct raids and execute the warrants, under the guise of an alleged risk of violence; tip off the press so there is ample coverage as-it-happens, including having our Tweeter-in-Chief post; execute the search warrants in the usual fashion (early morning, lots of yelling, drawers thrown open, a total mess afterward); terrorize the organizational staff, their donor base and their respective families; then put a bow on it all, by having a nice little press conference to sternly inform the American public that today, finally, our federal government has taken a firm stance against homegrown terrorism. It sounds like a nightmarish scene from a movie.

Can the federal government really do this with impunity? Well, it’s not hard to get search warrants. Any politically minded Department of Justice official will simply dredge up the infamous Holy Land Foundation case and piece together whatever he or she needs from there.

What about after the raids? There is no requirement that raids lead to indictments. There is no penalty for raids that fail to yield actionable evidence. In fact, over a third of all law enforcement raids turn up no evidence whatsoever. Quite simply, there is nothing to hold the Trump Administration accountable. So why wouldn’t they do it?

The next question becomes what can we do to prepare? Fortunately, there are many things to do to be ready. And most of them are good practices whether or not a raid ever happens. Here is a good starting point for what to do before, during, and after a potential raid by law enforcement:

Before

Have security cameras outside and inside the offices – preferable to have live-streaming functionality. Be sure that the footage is not only stored on-site (where it can be confiscated). There are plenty of web-based options for security cameras that are very reasonably priced. Note that security cameras are also advisable due to the unfortunate rise in hate crimes post-election.
Have a list of emergency contacts – people who know they are on your list and why. Construct this list as a “phone tree,” such that the first call triggers others outside the office.
Emergency contacts MUST include lawyers (plural) – and not just any lawyers, but experienced criminal defense lawyers who have navigated federal investigations and raids before.
Your emergency contact list should also include some trusted press contacts – you will want to combat law enforcement’s narrative. Expecting and preparing for a raid are great ways to start setting the counter-narrative. Draft shell press releases.
Prepare social media, email, and phone blasts to contact donors and other supporters immediately.
Be as prepared as you can be for the physical mess. This is often described as the hardest part: your home or office will look like a disaster area. That’s part of the intimidation factor. So clean up beforehand and be ready when you are allowed back in.
Have cloud-based and/or off-site location to store backup copies of critical or sensitive data, including potentially with your lawyers.
Budget for a legal defense fund, perhaps as a separate legal entity.
Develop quick notification techniques to let all employees know if a raid is underway.
Prepare political, corporate, donor, and other non-profit allies you may have.
Conduct mock raids with your staff in the office. I know this sounds a little crazy, but it is critical. This is the best way to train the personnel who are most likely to be the initial contact points for investigators during a raid. Make sure they are prepared to ask to see a search warrant, invoke right to legal counsel then stay silent, activate the phone tree, and not sign anything. This will also cut down on the risk that any of your staff has a meltdown should a raid occur.

During

Be cooperative, but know and invoke your rights.
Do not consent, even when presented with what seems to be a valid legal search warrant. Simply allow law enforcement to go about its business, but preserve the ability to challenge the validity of the search warrant at a later time by your lawyers (consenting could waive that ability).
At the same time, do not resist the search. Simply ask to see the search warrant (to ensure they have one), state your lack of consent, invoke your rights for legal counsel then stay silent and step aside.
Activate the phone tree and press plan, including social media.
Retrieve video of the raid, take as many photos as you can, and if possible and safe, live-stream.

After

Again, be prepared for the total mess that awaits you as you return to your office.
Be prepared to get senior employees (some of whom may be initially arrested during the raid) separate legal representation. Operate under what is known as a “joint defense agreement.”
Work with your lawyers to put together the defense plan for any resulting charges.
Notify other relevant parties, including insurers.
Continue working through the press plan.
Rally supporters from as broad a spectrum as possible.

Failing to prepare is preparing to fail. It is malpractice to not be ready. I hope and pray we never need it.