ISSUES IN FBI LAW ENFORCEMENT RELATED TO COUNTER-TERRORISM INVESTIGATIONS Ranjana Natarajan National Security Clinic University of Texas School of Law April 1 and 2, 2009

COUNTER-TERRORISM CASES – THE BASICS  Basics of Law Enforcement Investigations And Criminal Cases  Methods of Criminal Counter-terrorism Investigation And Prosecution  Rights Relating to Law Enforcement Investigations

CRIMINAL LAW ENFORCEMENT INVESTIGATIONS AND CASES  Criminal law involves prosecution by state or federal government for acts that have been classified as crimes.  Criminal investigation: tools include questioning, physical surveillance, telephone and electronic surveillance, grand jury testimony, subpoenas, use of confidential informants, and search warrants.  All criminal investigations do not lead to arrests, indictments, and criminal prosecution.

CRIMINAL CASES – THE BASICS  Stages of criminal cases: arrest, booking and bail, arraignment, preliminary hearing, pre-trial motions, plea bargains, trial, and sentencing.  Criminal trial: burden of proof is on the government to prove “beyond a reasonable doubt” / presumption of innocence  Key rights in criminal cases:  Right to counsel  Right to speedy jury trial  Right against self-incrimination  Double-jeopardy protections  Fourth Amendment right to be free of unreasonable searches / exclusion of evidence

RELEVANT CRIMES UNDER FEDERAL LAW  Federal terrorism offenses, at 18 U.S.C. § D.  18 U.S.C. § 2339A. Providing material support to terrorists  18 U.S.C. § 2339B. Providing material support or resources to designated foreign terrorist organizations  Federal criminal offenses completely unrelated to terrorism.  18 U.S.C. § Bringing in and harboring certain aliens (Alien smuggling)  18 U.S.C. § 1324a. Unlawful employment of aliens  18 U.S.C. § Fraud and false statement offenses  18 U.S.C. § Passport and visa offenses The government may also prosecute under state criminal provisions.

METHODS OF CRIMINAL COUNTER-TERRORISM INVESTIGATION AND PROSECUTION  Traditional tools of investigation  Voluntary law enforcement interviews

LEGAL PROTECTIONS RELATING TO LAW ENFORCEMENT INVESTIGATIONS  THERE IS NO DUTY OR LEGAL OBLIGATION TO SPEAK TO LAW ENFORCEMENT OFFICERS.  Right to stay silent whether or not in custody (Fifth Amendment privilege against self-incrimination; Miranda v. Arizona)  Exceptions: must provide identification (full name and sometimes current address) to law enforcement officer, if asked.  Exceptions: all immigrants must carry proof of immigration status on their persons at all times.  THERE IS NO CRIMINAL OR CIVIL PENALTY OR PRESUMPTION OF GUILT FOR FAILING TO SPEAK TO LAW ENFORCEMENT OFFICERS.

LEGAL PROTECTIONS, cont’d. PEOPLE WHO AGREE TO BE QUESTIONED BY LAW ENFORCEMENT OFFICERS HAVE RIGHTS:  The right to be represented and have an attorney present.  The right to choose the time, date, and place of the interview.  A public place is preferable to the client’s home, business, or any law enforcement agency office.  The right to refuse to answer any, all, or select questions put to her or him.  Examples: questions regarding political beliefs and speech; religious beliefs and speech (and charitable giving); political or community associations (First Amendment, U.S. Constitution)

COUNSEL YOUR CLIENT ON ALL THE RISKS  Law enforcement interviews may lead to more investigation of you, your family, and your associates.  Lying to a federal officer is a crime. Your statements may be misinterpreted, or you may make innocent mistakes.  The FBI has no obligation to close your file after the interview, and they can keep it open as long as they want.  Some people who give an interview are asked again for more interviews, or asked to be informants.  Any statements you make can be used against you later.  You will have no record of the interview, but the FBI will make a written report that you cannot review.