Chapter 15

1. Chapter 15 Counter-terrorism

2. 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

3. 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

4. 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

5. 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

6. 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 • e-mail and voice mail • roving wiretaps • emergency electronic surveillance

7. 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

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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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