Select Page

Counterterrorism Law
St. Johns University School of Law
Bianco, Joseph F.



Fall 2013



I. How to apprehend and prosecute terrorists in U.S. Courts

II. Military Commissions


o Classifying U.S. Citizens as enemy combatants

III. Intelligence Gathering Tools

o Miranda Rights

o Material Witness Statute

o Material support Statute

o Patriot Act (generally)

o Wire Tapping

o Intelligence Surveillance Program

IV. In Class Simulation (practice handling terrorist hypothetical’s as the President’s Cabinet dealing with unfolding Terrorist threats)


Tools that the Gov. Uses to Uncover a Terrorist Plot

· How do we gain information?

o Physical evidence;

o Interrogating the suspect;

§ Terrorist himself is the most important source of info

§ Does he need to be Mirandized?

· Probably not b/c of the “public safety exception”

o Wiretaps;

o Grand Jury subpoenas;

o Delayed Notice Search Warrant

§ Sneak and Peaks: Going into apt. COVERTLY taking pictures of everything and placing it back, as if undisturbed

Assistant US Attorneys and FBI work together in the Federal System. Assistant US Attorneys are involved from beginning of the process


The threat of terrorism is different from any other threat this country has ever faced because:

· The “structure” (loosely) of terrorist organizations is difficult to assess

o No territorial boundaries, fractionalized, no national focus, complex, no “uniforms”

· It has an extremist goal: destruction of USA and Israel

o Deterrence (i.e. death penalty, long sentences, family threats) doesn’t work for terrorist organizations b/c they are motivated by religion and NOT any rational thought process

o i.e. after-life is great for them

· Tactics are different/unique

o Terrorists will use whatever weapons they can get their hands on to blow us up

o No regard for civilians; in fact, they want to blow up as many civilians as possible in as many ways/targets as possible (carrying out Jihad is honorable)

· Threat NOW is at the maximum level

o Lack of successful domestic attack since 9/11 should not be regarded as terrorists’ lack of interest/resolve in attacking us again

§ i.e. if Times Square bomber wasn’t a complete idiot, he would’ve succeeded in bombing times square



What is “Terrorism?”

4 Elements:

(1) Violence

(2) Against Civilian targets

(3) Sub national or Secret Perpetrator

(4) w/ Public Motivation

3 Institutional Responses to Terrorism:

(1) Prevention – combination of protective devices and persuasion

(2) Prosecution – Traditional civilian criminal trials and processes

(3) Military Action – Use of deadly force to prevent, subdue, and control.

When thinking about Terrorism and Responses – best approach is to consider the possible Risk and Benefits of each response and utilize the best possible balance of all three.

Classifying a Group as a “Foreign Terrorist Organization”

Secretary of State classifies groups as “foreign terrorist organizations”

3 Criteria:

(1) Suspected group is a foreign organization

(2) that engages in terrorist activity

(3) that threatens the national security of the US or US Nationals.

Organization is designated for a period of 2 years and the Sec. or State may reinstate the Designation at the end of that 2 year period

Because of Constitutional due process issues, a group designated as a FTO must receive notice and be allowed to appeal their designation

How do you get on the U.S. State department List?

State Dep. Creates an administrative record (some classified info and some public), and then publishes a notice in the Federal Register designating the group(s), a certain period then has to pass, and there is a way for the group to challenge the designation

Once a group is designated as a FTO, a ∆ in a criminal action is not allowed to raise any question as to that designation – 8 U.S.C. § 1189(a)(8)

Currently 42 FTOs

International Emergency Economic Powers Act (IEEPA): 50 U.S.C. § 1705 – Allows the President to declare an order designating a nation-state as being a threat to national security and criminalizes transactions with that group which is commonly referred to as a as being a threat to national security and criminalizes transactions with that group which is commonly referred to as a Specially Designated Terrorist (SDT). So under this a person is not allowed to provide material support or conduct certain transaction with this designated group.

Difference between IEEPA & §2339 is that IEEPA deals with countries, entities, or person’s designated by the Treasury Dep’t, and the §2339 statutes deal with groups designated by the State Dep’t under somewhat tighter criteria defining a terrorist organization.

Consequences of being declared a “Terrorist Organization:”

U.S. Financial Assets become Blocked

Known/affiliated members are prohibited from entering the U.S.

Crime to provide Material Support (18 USC 2339(B))


General Federal Criminal Law Statutes

Federal statutes outlawing certain activities such as murder and destruction of property

i.e. Conspiracy to bomb buildings used to affect/further interstate commerce, bombing of property used by Federal agents, Transporting explosives interstate for the purpose of bombing buildings, assault on a federal officer, using and carrying a firearm in connection with a crime of violence, robbery, or drug offense, using or carrying a WMD (30 year minimum sentence add on).

U.S. Statutes dealing with Extraterritoriality and International Conventions

statutes that have their own statement of extraterritorial jurisdiction

i.e. Destruction of an aircraft (includes threats)


18 U.S.C.

§ 2331 – “Terrorism Definitions”

§ 2332 – “Terrorist Homicide”

States that no prosecution shall take place in the U.S. without Attorney General Certification that the attack was intended to coerce, intimidate or retaliate against the government or civilian population.

Why? à because with certification, the statute won’t be used for ordinary crimes and to show that crime is no sought lightly when asking for extradition.

§ 2332(b) – “Terrorism Transcending National Boundaries”

§ 2339(B) – ***Providing Material Support to Terrorist Organizations***

§ 2384 – “Seditious Conspiracy” (See U.S. v. Rahman)


“A combination of two or more person to achieve an unlawful object or to achieve a lawful object by unlawful means.”

Conspiracy allows the prosecution of an offense before it occurs, w/o any harm done, and also allows for the prosecution of inactive members of a plot.

Pinkerton Doctrine:

A person can be convicted w/o knowing the details of what others were planning to do

When there is an agreement to commit a category of an offense, a person may be held liable even though they committed no overt act, when another person in the agreement commits the over act, even if there was not further agreement to commit the act

Check how suspects are paying utilities

Check Bank Statements (Withdrawals, deposits, etc.)

Check Suspects trash – what are they throwing out

Checking Suspects Trash turned up an ATM withdrawal slip and ripped Delta Airlines Ticket for Dec. 16 from Seattle.

Holding Suspects:

Enemy Combatant status

Material Witness Statute (allows US to arrest someone as a witness and detain them for duration of trial)



WTC I attack (1993) was really the First Federal Terrorism Case

United States v. Salameh

Facts: 4 ∆’s were tried together for the first WTC bombing. ∆’s drove a Ryder van into parking garage beneath WTC filled with explosives. Charged with (1) Conspiracy to bomb buildings used in, or affecting Interstate commerce; (2) Bombing property and vehicles of the United States; (3) carrying weapons interstate; (4) assaulting upon a federal officer (3 Fed. Agents injured); and (5) using or carrying a destructive device.

Rule: To convict on conspiracy charge, it is not necessary to show that ∆ knew that building was being bombed, but rather, only that ∆ agreed to “the essential nature of the plan” and on the “kind of criminal conduct contemplated.”

Take Away:

All prosecution had to do was demonstrate that each ∆ participated in assembling the bomb.

**Interstate Commerce** – Most Common Federal Jurisdiction Hook

General Sentencing Rule: Firearm use = + 5 years; destructive device: 30 year mandatory minimum consecutive sentence

United States v. Rahman (The “Sheik” Abdem Rahman Case)

Facts: Rahman was a blind religious Cleric and was charged in connection to the WTC I bombing. Government brought a broad indictment for directing a criminal enterprise. The “Sheik” was the alleged spiritual leader of the group who had planned to blow up the Lincoln and Holland tunnels and also the group who had planned to kill Egyptian leader Mubarak on his trip to the U.S. Government charged case on Seditious Conspiracy (18 U.S.C. § 2384):

§ 2384 à “If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the US, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the US, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

Critical Element (1) Use of Force against US

Indictment alleged that Rahman issued “Fatwa’s” (religious orders) that authorized killings and bombings

US had a group of Rahman’s writings demonstrating that he felt the US was the primary oppressor of Muslims worldwide, active in assisting Israel to gain power in the Middle East, and largely under the control of the “Jewish Lobby”