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Terrorism and the Law
St. Johns University School of Law
Bianco, Joseph F.

Counterterrorism Fall 2012
I.                    Introduction
a.       Overview: Nature of the Threat and National Response
                                                               i.      December 1999 Hypo
1.       General concern that al Qaeda would want to do something to coincide with the new millenium
2.       December 14th: al Qaeda came to the US with explosives near Seattle on a ferry—last car had a man alone who appeared nervous
a.       asked him to open the trunk of his car (allowed to do without a warrant for border control purposes)
b.       saw white powder—initially thinking of drugs, but it was explosives; gardening supplies, olive jars, zinc bottle, 3 timing devices
c.        man started running away
3.       Covert investigation: Questions
a.       Who is he working for?
b.       Where was he going? What is the target?
c.        Had other people already got in?
d.       What do you tell people?
4.       Investigate Scene
a.       trace the car
b.       Question the subject:
                                                                                                                                       i.      Mirandize him? (if you don’t intend to use it in court, no need to do so (i.e. for intelligence purposes)
                                                                                                                                      ii.      public safety exception: can still use it in court even without Miranda rights if it’s for public safety and if the threat is imminent
                                                                                                                                    iii.      ask where the bad and other explosives come from
c.        FBI must notify Canadian ambassador to get clearance
d.       Check the rest of the car
                                                                                                                                       i.      Need a warrant? No: automobile exception if they are arrested in and around their car, incident to arrest
e.        Check Him
                                                                                                                                       i.      pocket litter (business card with name Ghani on it and 3 phone numbers with New York area codes)
                                                                                                                                      ii.      cell phone; pager
                                                                                                                                    iii.      ID (found Canadian passport, ID with 3 different names and addresses)
5.       Warrant for wiretap/went to FISA court
a.       standard: probable cause to believe a crime was to be committed
b.       i.e. applied for electronic surveillance on charges of credit card fraud and identity theft because there wasn’t enough to charge him with terrorism
6.       Physical surveillance
a.       garbage search
                                                                                                                                       i.      ticket
                                                                                                                                      ii.      bank statement for withdrawals
7.       December 30: Investigation went Overt
a.       Searched apartment (i.e. Sneak and Peek) and arrested the guy
b.       guy decided to talk so they gave him a plea deal to collect information, instead of charging him directly for terrorist crime they got him on credit card fraud
c.        wanted to do jihad in US
b.       Nature of Terrorism Threat
                                                               i.      unlike prosecuting mob or Soviet Union
                                                              ii.      Distinctions
1.       unlike nation as a threat: terrorists have bo government, no geographic boundaries, wear no uniform, fractured and scatter group
2.       Goal: destruction of US, Israel, Western World
3.       mindset: not rational actors, not subject to same criminal deterrents—no impact (i.e. What penalties could be?)
a.       motivated by political and religion—willing to kill themselves because they believe dying for this cause will give them rewards in after life
4.       Tactics: cannot defeat with military, so focus on civilians—not limit on magnitude and type of attack they would engage in, like they would hit transportation, malls, if they can get their hands on the right weapons (i.e. chemical, nuclear weapon)
5.       battlefield: will hit US anywhere, but really want to attack US at home because it will have the most impact (symbolically and economically)
6.       al Qaeda is extremely patient and determined—hold on to idea, save it and use it later (i.e. World Trade Center 1993/2001)
II.                  Law Enforcement Response to Terrorism
a.       Federal Criminal Law Framework for Terrorism
                                                               i.      statutes deal with terrorist offenses and prosecution of terrorists)
                                                              ii.      Federal Hooks (US v. Salameh: World Trade Center Bombing I February 1993)
1.       destruction of federal property
2.       assault on federal agents
3.       transporting across state lines
4.       affecting interstate commerce
5.       using or carrying destructive devices (§924C)
6.       transcending national boundaries: conspiracy to attack public transportation systems, aircrafts and aircraft materials
7.       Application to WTC
a.       commercial building
b.       US owned vehicles
c.        attack resulted in several civil servants getting injured (they weren’t aware but it didn’t matter)
d.       including weapon bombs to boost charges
b.       Section 2384: Seditious Conspiracy
                                                               i.      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 United States, 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 United States, 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.
                                                              ii.      Sheikh Rahman: involved in plot to blow up NYC tunnels; in charge of overall supervision
1.       fatwah: get interpretation of Qur’an to allow terrorists to engage in these plots; calls for jihad against the United States
                                                            iii.      Constitutional Challenges to §2384
1.       First Amendment:
a.       freedom of speech: statute does nto criminalize speech unless it has some sort of force involved
                                                                                                                                       i.      abstract principles but must be divorced from instigating violence to be committed (first amendment does not protect this violence)
                                                                                                                                      ii.      Did Rahman cross the line into criminal solicitiation rather than simple expression of hatred?
                                                                                                                                    iii.      Speeches: not admissible as evidence to convict, must be used in conjunction with other acts as evidence of motive or background
b.       freedom of religion
2.       Overbreadth
a.       criminalizes conduct you don’t want to hold someone accountable for
b.       when statute criminalizes conduct it cannot lawfully criminalize
3.       Vagueness
a.       no proper notice
b.       Test: does it give fair warning to reasonable reader of what is unlawful?
                                                            iv.      US v. Gadahn: US citizen went to Afghanistan, joined al Qaeda and rose to role as their spokesperson; if he was captured his defense would be take he was only making speeches
c.        §2339B: Material Support
                                                               i.      (a)(1) unlawful conduct: whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6), that the organization has engaged or engages in terrorist activit (as defined in Section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in Section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989)
                                                              ii.      Definitions §2339A
1.       (b)(1): the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications, equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials
                                                            iii.      General Overview
1.       statute makes it a crime to give money, training, weapons to a particular terrorist group, regardless of the purpose—does not have to be tied to a criminal plot, don’t have to show person wanted violence either
                                                            iv.      Policy Rationale
1.       Supporting Reasons
a.       money is fungible—this donation will free up other money
b.       prevention mode: don’t want to wait until after they already blew something up, want to try to nip it in the butt—get these groups and potential plots as early as possible
c.        if you prosecute those providing money, will weaken the group and deter others from donating
d.       even on a humanitarian side, line between violent activity is blurred (i.e. groups giving money to widows of suicide bombers)
                                                             v.      Reasons Against
1.       too broad?
a.       some terrorist groups have humanitarian wings, as well as military (BUT can’t track money to show where it’s going because they don’t keep records
2.       Vague Terms: “material support,” “foreign terrorist organization,” “knowingly”
3.       Overbreadth:
a.       medical treatment to terrorist
b.       cab driver brings terrorist to UN unknowingly
c.        hotel room to terrorist
d.       lawyer providing support to them
4.       Congress gave definition of “material support and resources” (see above)
a.       vague still?
b.       personnel: is it just military? if you provide yourself, that is personnel too!
d.       Foreign Terrorist Organizations
                                                               i.      Secretary of State given authority to designate what groups fall into this category

                                                                                                                                iii.      “Training”
1.       instruction or teaching designed to impart a specific skill, as opposed to general knowledge
                                                                                                                                    iv.      Exception:
1.       if Secretary of State approves it (Humanitarian Aid: natural disaster support)
f.        Lynne Stewart Case:
                                                               i.      Represented Sheikh Rahman
1.       continuted to visit him in jail after his writ of certiorari was denied by SCOTUS
2.       he had many restrictions on access to him and who he could talk to/visit with (limited to family/Stewart—government made these people sign affirmation saying they would not pass messages to any third parties)
                                                              ii.      his group promised revenge:
1.       52 tourists killed in Egypt at archaelogical site
                                                            iii.      Stewart contacted reporter and said Rahman did not want cease fire anymore
                                                            iv.      Indicted in 2002 for material support
                                                             v.      Two Theories:
1.       communications equipment: phone conversation
2.       personnel in the form of themselves
                                                            vi.      challenged on constitutional grounds—saying statute was vague as applied to her on communications equipment; also her “personnel” was that she was his attorney
                                                          vii.      Convicted at Trial: sentencing range was 30 to life—got senteced to 28 months
                                                         viii.      Stewart Appealed: government argued that the sentence was too light
                                                            ix.      Second Circuit:
1.       affirmed conviction
2.       resentenced her to 10 years noting her lack of remorse
                                                             x.      Note:
1.       home grown terrorists are even more dangerous because they can be harder to detect; saying that al Qaeda is the only threat is far too narrow
g.        Holder v. Humanitarian Law Project
                                                               i.      critics argue even amended statute is still too vague—goes to SCOTUS for first time on these vague and overbreadth challenges
                                                              ii.      says no freedom of association violation because it criminalizes support, not association
                                                            iii.      “Service” and “Training” and “Expert Advice or Assistance” were all fine as applied to what THIS particular group was trying to do
                                                            iv.      Groups wanted to:
1.       train members to use international law to settle disputes peacefully—does this violate?
2.       teach members to petition the UN for relief—is this expert advice or assistance?
3.       engage in political advocacy on behalf of Turks living in Sri Lanka—political advocacy?
                                                             v.      SCOTUS criticizes 9th Circuit hypotheticals which were dealing with overbreadth not varguness which was at issue in the case
1.       rejects all of the groups objections
2.       political advocacy was tricky because it could be caught up in personnel or service
                                                            vi.      First Amendment Challenge
1.       no because statute does not prohibit any independent advocacy or being member—only violates when you give support
2.       went through rationale: compelling interest to criminalize all functions of group
3.       Why?
a.       any support legitimizes them in international community allowing them to continue to recruit
b.       material support to these groups could interfere with our nations relations to our allies
c.        money is fungible
4.       Congress’ assessment is worthy of deference—don’t want to substitute their evaluation for that of the legislature
5.       caveat at the end—regulating independent sppech in favor of group would lose credibility
h.       Section 2339D: made it a crime to train in their terrorist training camps (being trained to kill)
                                                               i.      had to go after this statute was passed