Anti-terrorism And Criminal Enforcement: For use as a supplement to courses in seminars

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ISBN: 9780314159304 | 0314159304
Cover: Paperback
Copyright: 9/6/2005

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This abridged edition addresses the developing body of anti-terrorism law, with emphasis on the criminal enforcement process and how that process is affected by the government's concept of a "war" on terrorism. This edition covers essentially the same material, including anti-terrorism crimes, special approaches to detention and adjudication, and various kinds of investigative and enforcement activities, in the United States and abroad. It is designed primarily for use as a supplement in courses on criminal law and procedure as well as for seminars and undergraduate courses, but also can serve as a handy summary of current anti-terrorism law.

Preface to the Abridged Edition

Acknowledgments

vii

Table of Contents Abridged Edition

Table of Contents Unabridged Edition

Table of Cases

xix

Table of Statutes

xxi

Introduction

(2)

Background: Anti-Terrorism Legislative Packages

(7)

Introduction

(1)

The major legislative packages

(6)

The Antiterrorism and Effective Death Penalty Act

(1)

The USA Patriot Act

(5)

Questions

(1)

Definitions of Terrorism and Terrorism Crimes

(5)

Terrorism: Definitions and definitional approaches

(5)

In general

(2)

Statutory definitions of terrorism

(1)

Definitions of terrorism: What difference does it make?

(2)

Statutory Offenses in Terrorism Prosecutions; The Crimes of Providing Material Support for Use in Terrorist Offenses and Material Support to a Foreign Terrorist Organization: 18 U.S.C. § 2339A and § 2339B

(41)

Introduction: Statutory offenses used in prosecuting terrorism cases

(1)

18 U.S.C. § 2339A and § 2339B

(40)

The statutory provisions

(2)

The concept of material support as used in § 2339A and § 2339B and the mens rea for § 2339A

(1)

United States v. Sattar

(12)

Notes and Questions

(1)

The mens rea for § 2339B

(1)

Humanitarian Law Project v. U.S. Department of Justice

(1)

Humanitarian Law Project v. United States DOJ

(1)

Notes and Questions

(2)

United States v. Al-Arian

(3)

Notes and Questions

(2)

Administrative designation as a ``Foreign Terrorist Organization'' for purposes of § 2339B; hearing procedure and judicial review under 8 U.S.C. § 1189

(1)

National Council of Resistance Of Iran v. Department of State

(7)

Notes and Questions

(2)

Notes and Questions

(2)

Criminal prosecution under § 2339B

(1)

United States v. Afshari

(6)

What Kind of War is It?

(16)

Introduction

(1)

Comparing past metaphorical wars

(2)

Sources and doctrines relating to a traditional kind of war

(13)

Extended Detention I: Material Witnesses and Aliens

(28)

Introduction

(1)

Material witness detention

(14)

Notes and Questions

(1)

United States v. Awadallah

(10)

Notes and Questions

(2)

Detention of aliens

(13)

Introduction

(1)

Post 9/11/01 detentions and removals based on immigration law violations

(1)

The use of authority to detain aliens in violation of the immigration laws as an aid to terrorism investigation and as a form of preventive detention

(1)

Is indefinite, open-ended detention possible in connection with efforts to remove an individual from the United States?

(1)

Zadvydas v. Davis

(6)

Notes and Questions

(1)

Detention and removal provisions directed specifically toward terrorists under the USA PATRIOT Act and other immigration law provisions

(1)

Notes and Questions

(3)

Extended Detention II: Enemy Combatants

100

(62)

Introduction: The recent case law

100

(30)

Rasul v. Bush

100

(5)

Hamdi v. Rumsfeld

105

(12)

Notes and Questions

117

(3)

Padillla v. Hanft

120

(10)

What status to accord to detainees at Guantanamo? ``Enemy Combatants''?

130

(6)

Notes and Questions

130

(6)

Administrative process reviews for the Guantanamo detainees

136

(24)

Introduction

136

(1)

Administrative reviews: enemy combatant status; continuing dangerousness or intelligence value

137

(1)

Notes and Questions

137

(3)

Judicial consideration of the status of the detainees

140

(1)

Khalid v. Bush

140

(5)

Notes and Questions

145

(1)

In Re Guantanamo Detainee Cases

145

(14)

Notes and Questions

159

(1)

Conditions and terms of detention

160

(2)

Methods of interrogation: the torture controversy

160

(1)

Notes and Questions

160

(2)

Military Tribunals

162

(37)

Introduction

162

(5)

Notice

162

(5)

The question of legal authority

167

(14)

Ex Parte Quirin

167

(12)

Notes and Questions

179

(2)

Procedures used in the military tribunals---Due Process concerns

181

(18)

Notes and Questions

182

(2)

Notes and Questions

184

(2)

Hamdan v. Rumsfeld

186

(12)

Notes and Questions

198

(1)

Classified Information in Adjudicatory Proceedings: The Classified Information Procedures Act (CIPA) and Other Approaches

199

(31)

Various approaches to dealing with classified information in adjudicatory proceedings

199

(1)

Introduction

199

(1)

The Classified Information Procedures Act---Introduction

200

(7)

Determining relevancy and related issues

207

(8)

United States v. Yunis

207

(8)

Adjudging the adequacy of substitutions for classified information

215

(12)

United States v. Rezaq

215

(4)

United States v. Fernandez

219

(8)

Ex parte and in camera versus in camera

227

(3)

Notes and Questions

227

(3)

The Foreign Intelligence Surveillance Act

230

(30)

Introduction

230

(11)

A brief history

230

(1)

The FISA statute

231

(8)

Notes and Questions

239

(2)

Comparing FISA surveillance rules and ``normal'' surveillance rules under 18 U.S.C. § 2510 et seq.

241

(3)

The probable cause requirement

241

(1)

Duration of the intercept; time period within which target must be notified about the interception

242

(1)

Other aspects of FISA and ``normal'' surveillances

242

(1)

Physical searches

243

(1)

Statistical comparison of FISA and ``normal'' electronic surveillances

243

(1)

Gathering foreign intelligence information versus gathering information with a view to criminal prosecution

244

(16)

Background

244

(2)

An opinion of the Foreign Intelligence Surveillance Court of Review

246

(1)

In Re: Sealed Case No.'s 02--001, 02--002

247

(11)

Notes and Questions

258

(2)

U.S. Agents Acting Abroad

260

(17)

Introduction

260

(1)

Investigation and information-gathering

261

(7)

Notes and Questions

261

(1)

United States v. Bin Laden

262

(6)

Targeted killing abroad by U.S. agents

268

(9)

Executive Order 11905 (United States Foreign Intelligence Activities)

268

(1)

Executive Order 12333 (United States Intelligence Activities)

269

(1)

Notes and Questions

269

(8)

Index

277

(402)

Dedication

iii

Preface to the Second Edition

Preface to the First Edition

vii

Acknowledgments

Table of Cases

xxi

Table of Statutes

xxv

PART I. INTRODUCTION AND OVERVIEW: ANTI-TERRORISM LEGISLATION

Introduction

(4)

Background: Anti-Terrorism Legislative Packages

(35)

Introduction

(1)

A time-line of major anti-terrorism and related statutes

(1)

The major legislative packages

(33)

The Omnibus Diplomatic Security and Antiterrorism Act

(1)

The Antiterrorism and Effective Death Penalty Act

(2)

The USA PATRIOT Act

(19)

The Homeland Security Act

(4)

The Intelligence Reform and Terrorism Prevention Act of 2004

(8)

Definitions of Terrorism and Terrorism Crimes

(79)

Introduction

(1)

Terrorism: Definitions and definitional approaches

(17)

In general

(2)

Statutory definitions of terrorism

(7)

Policy definitions of terrorism and enforcement policy

(1)

The State Department

(5)

The Department of Justice

(1)

The Federal Bureau of Investigation

(1)

Definitions of terrorism: What difference does it make?

(2)

Selected criminal statutes

(61)

18 U.S.C. § 2332

(18)

18 U.S.C. § 2332a. Use of certain weapons of mass destruction

(11)

18 U.S.C. § 2332b. Acts of terrorism transcending national boundaries

(17)

18 U.S.C. § 2332d. Financial transactions

105

(1)

18 U.S.C. § 2332f. Bombing of places of public use, etc.

106

(4)

18 U.S.C. § 2332g. Missile systems designed to destroy aircraft

110

(1)

18 U.S.C. § 2332h. Radiological dispersal devices

111

(1)

18 U.S.C. § 175c. Variola virus

112

(1)

18 U.S.C. § 2333. Civil remedies

113

(1)

18 U.S.C. § 2339. Harboring or concealing terrorists

114

(1)

18 U.S.C. § 2339C. Prohibitions against the financing of terrorism

115

(5)

120

(74)

Introduction: Statutory offenses used in prosecuting terrorism cases

120

(1)

18 U.S.C. § 2339A and § 2339B

121

(73)

The statutory provisions

122

(2)

The concept of material support as used in § 2339A and § 2339B and the mens rea for § 2339A

124

(17)

The mens rea for § 2339B

141

(18)

Administrative designation as a ``Foreign Terrorist Organization'' for purposes of § 2339B; hearing procedure and judicial review under 8 U.S.C. § 1189

159

(25)

Criminal prosecution under § 2339B

184

(10)

PART II. DETENTION, ADJUDICATION PROCESS, AND THE LEGAL CATEGORY OF ``WAR''

What Kind of War is It?

194

(26)

Introduction

194

(1)

Comparing past metaphorical wars

195

(2)

Sources and doctrines relating to a traditional kind of war

197

(23)

Extended Detention I: Material Witnesses and Aliens

220

(75)

Introduction

220

(13)

Material witness detention

233

(17)

Detention of aliens

250

(45)

Introduction

250

(1)

Immigration detention and removal policies---in general

251

(3)

Post 9/11/01 detentions and removals based on immigration law violations

254

(1)

The use of authority to detain aliens in violation of the immigration laws as an aid to terrorism investigation and as a form of preventive detention

254

(1)

Must deportation hearings be open to the public and the press?

255

(17)

Is indefinite, open-ended detention possible in connection with efforts to remove an individual from the United States?

272

(13)

Detention and removal provisions directed specifically toward terrorists under the USA PATRIOT Act and other immigration law provisions

285

(10)

Extended Detention II: Enemy Combatants

295

(86)

Introduction: The recent case law

295

(33)

What status to accord to detainees at Guantanamo? ``Enemy Combatants''?

328

(7)

Administrative process reviews for the Guantanamo detainees

335

(27)

Introduction

335

(1)

Administrative reviews: enemy combatant status; continuing dangerousness or intelligence value

336

(3)

Judicial consideration of the status of the detainees

339

(23)

Conditions and terms of detention

362

(19)

Methods of interrogation: the torture controversy

362

(7)

Special Administrative Measure (SAMs) for terrorism detainees

369

(12)

Military Tribunals

381

(60)

Introduction

381

(5)

The question of legal authority

386

(15)

Procedures used in the military tribunals---Due Process concerns

401

(35)

Potential for discriminatory application; prosecutorial discretion and choice of the forum

436

(2)

Justifications for use of military tribunals

438

(1)

Military authority not covered by the President's Military Order---detention and prosecution of citizen enemy combatants

439

(2)

Classified Information in Adjudicatory Proceedings: The Classified Information Procedures Act (CIPA) and Other Approaches

441

(87)

Various approaches to dealing with classified information in adjudicatory proceedings

441

(33)

Introduction

441

(2)

Examples of two different approaches to dealing with classified information in adjudicatory settings

443

(31)

The Classified Information Procedures Act---Introduction

474

(7)

Determining relevancy and related issues

481

(13)

Adjudging the adequacy of substitutions for classified information

494

(13)

Ex parte and in camera versus in camera

507

(1)

Security clearance for counsel

508

(13)

Constitutional challenges to CIPA

521

(7)

PART III. ACTIONS BY GOVERNMENTAL AGENTS IN THE UNITED STATES AND ABROAD

The Foreign Intelligence Surveillance Act

528

(50)

Introduction

528

(13)

A brief history

528

(1)

The FISA statute

529

(12)

Criminal prosecution using FISA-derived material

541

(10)

Comparing FISA surveillance rules and ``normal'' surveillance rules under 18 U.S.C. § 2510 et seq.

551

(4)

The probable cause requirement

551

(2)

Duration of the intercept; time period within which target must be notified about the interception

553

(1)

Other aspects of FISA and ``normal'' surveillances

553

(1)

Physical searches

553

(1)

Statistical comparison of FISA and ``normal'' electronic surveillances

554

(1)

Gathering foreign intelligence information versus gathering information with a view to criminal prosecution

555

(23)

Background

555

(4)

An opinion of the Foreign Intelligence Surveillance Court of Review

559

(19)

Political Surveillance and Anti-Terrorism

578

(31)

Introduction

578

(1)

Litigation against the Army, the FBI and city police departments

579

(21)

History of the Attorney General's Guidelines; the Ashcroft Guidelines

600

(9)

Excerpts detailing the history

600

(5)

Excerpt from Executive Order 12333

605

(1)

The Ashcroft Guidelines

606

(3)

Using the Military in Domestic Law Enforcement

609

(23)

Introduction

609

(4)

Interpretation of the Posse Comitatus Act

613

(13)

Should any modifications be made in the posse comitatus rule?

626

(6)

U.S. Agents Acting Abroad

632

(43)

Introduction

632

(1)

Investigation and information-gathering

633

(22)

Bringing suspected terrorists back to the U.S. from abroad

655

(16)

Targeted killing abroad by U.S. agents

671

(4)

Epilogue

675

(4)

Index

679

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Anti-terrorism And Criminal Enforcement: For use as a supplement to courses in seminars

Summary

Table of Contents

Supplemental Materials

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Anti-terrorism And Criminal Enforcement: For use as a supplement to courses in seminars

Summary

Table of Contents

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