Chapter 15 Counter-terrorism

Introduction  United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 defines new federal criminal offenses relating to terrorism introduces reforms to criminal procedure to make it easier to investigate and detect acts of terrorism  many definitions of terrorism  the Constitution is not a “suicide pact” and that the first priority of government must be to protect the American people

Electronic Surveillance  Foreign Intelligence Surveillance Act provided procedures for electronic surveillance of threats to national security extended in 1994 to cover physical searches of dwellings and other structures  the Foreign Intelligence Surveillance Court

Conditions to Obtain a FISA Warrant  probable cause that the target is the agent of a foreign power or a member of an international terrorist organization  based on the “probability of a possibility” that the target of the order “may engage” in activities threatening the national security or “may engage” in terrorism (less than probable cause)  the primary purpose must be to investigate a threat to national security or threat of terrorism  the place or communication device targeted for surveillance must be being used or is about to be used by a foreign power or terrorist organization to carry out activities that threaten the national security

FISA  an American citizen or resident of the United States may not be singled out for surveillance under FISA based on the First Amendment  FISA warrants generally are easier to obtain than warrants for ordinary criminal investigations  “the wall”  section 218 of the PATRIOT Act

FISA (cont.)  FISA warrants authorize government investigations for 120 days and may be renewed for up to a year  FISA authorizes the U.S. attorney general to conduct the emergency surveillance of U.S. citizens and residents for seven days (or longer for a non-citizen) before obtaining a warrant  pen registers are employed to record telephone numbers dialed from a phone  trap-and-trace devices record the numbers of incoming calls  and voice mail  roving wiretaps  emergency electronic surveillance

Sneak and Peek Warrants  anticipatory searches  authorizes law enforcement to delay notifying an individual that they have conducted a search  Section 213  30 day delay, 90 day extension  tangible/intangible evidence

Information and Records  United States v. Miller  national security letters  seizure of business records

Detention of Noncitizens  Section 412: a noncitizen may be detained for seven days without being charged with a criminal or immigration violation  the attorney general of the United States must certify that there are “reasonable grounds to believe” that an immigrant is a terrorist or has engaged in terrorist activities

Material Witness Warrants  the government is able to arrest a witness whose testimony is material to a grand jury investigation or to a criminal prosecution and who may be unavailable at a later date to testify or who may flee in order to avoid testifying  such individuals are to be released following their testimony  Department of Justice: every individual detained under a material witness warrant has been found to have relevant information  proposed reforms limits on the length of detention very high burden of proof of flight risk detained persons should be informed as to why

Monitoring of Lawyer-Client Communications  available where “reasonable suspicion exits to believe that a pre-trial detainee or an inmate may use communications with attorneys... to further or facilitate acts of terrorism”  attorney-client privilege to keep communications confidential does not apply where communications are intended to “facilitate criminal acts or a conspiracy to commit criminal acts” and are not related to “seeking or providing legal advice”  may be undertaken without a warrant  required notification of attorneys

Interrogations  enhanced interrogation techniques used on high- value detainees  Article III of the Geneva Conventions  enemy combatants  Detainee Treatment Act of 2005  changes from Bush to Obama policy

Military Commissions and Combat Status Review Tribunals  military commissions  Authorization for Use of Military Force  provide most of the basic rights that are considered important to a fair trial  possess the flexibility to limit these rights in the interest of protecting national security  Department of Defense, Military Commission Order No. 1  Rasul v. Bush

Military Commissions (cont.)  Hamdi v. Rumsfeld  combatant status review tribunals  administrative review boards  Hamdan v. Rumsfeld  flaws of the military commissions exclusion from trial failure to follow rules of evidence jury verdicts limited appeals

Military Commissions (cont.)  Military Commissions Act of 2006  Boumediene v. Bush  announced closure of Guantanamo  Guantanamo prosecutions  debate whether terrorism should be treated as an act of war and prosecuted before a military commission or as a common crime and prosecuted before civilian criminal courts