I. Principles

Lesson 1

Principles of Counter-Terrorism Prosecutions

• Choice of forum
• Prosecute like old La Cosa Nostra spitting on sidewalk
• Prevention v. past crimes
• Disruption through use of immigration, money laundering, and conspiracy law.

 For class on 8/31/09, please read the handout that will be emailed to all registered course members, posted here, and available in Professor Snyder's office and Chapter 22 of the Kris book (only seven pages).  (It will make more sense if you read them in that order.

Audio file of lecture here.

II.  The Substantive Law

Lesson 2

The Major Legislative Packages

• Omnibus Diplomatic Security & Antiterrorism Act
• Antiterrorism & Effective Death Penalty Act
• USA PATRIOT Act R4013
• Leahy Report on USA PATRIOT Act
• Homeland Security Act, P.L. 107-296
• Intelligence Reform & Terrorism Prevention Act of 2004, P.L. 108-458, 50 U.S.C. 403(b).
• Protect America Act
• USA Improvement and Reauthorization Act, RL33332
• FISA Amendments Act of 2008

For class on 9/2/09, please skim the above statutes (all hyperlinked above) to get a feel for their scope and complexity.  Together they comprise thousands of pages and you could not possibly read them all in detail, but that is one of the points.  Then, read in detail, Section 104 of the USA PATRIOT Act and Title II of the Leahy Report.

Audio file of lecture, here.

Lesson 3

Selected Criminal Statutes

• 18 U.S.C. 2332 Terrorism
• 18 U.S.C. 2332a Weapons of Mass Destruction
• 18 U.S.C. 2332b Acts of Terrorism Transcending National Boundaries
• 18 U.S.C. 2332d Financial Transactions
• 18 U.S.C. 2332f Bombing
• 18 U.S.C. 2332g Missiles to Destroy Aircraft
• 18 U.S.C. 2332h Radiological Dispersal Devices

For class #3 on September 9, please read closely and in detail the actual text of the above statutes, available as a single handout here (but you are free to acquire the text from another source, if you prefer.)

Handouts:

• PowerPoint slides used in lesson two and three
• "Long Arm of the Law"
• Audio file of class.

Lessons 4 & 5

Selected Criminal Statutes (cont.)

• 18 U.S.C. 175c Variola Virus
• 18 U.S.C. 2339 Harboring Terrorists
• 18 U.S.C. 2339C Financing Terrorism
• 18 U.S.C. 2339A Providing Material Support to Terrorists
• 18 U.S.C. 2339B Providing Material Support to Designated Foreign Terrorist Foreign Organizations
  • United States v. Sattar
  • Humanitarian Law Project v. U.S. Dept of Justice
  • United States v. Hammoud
  • United States v. Al-Arian
• 8 U.S.C. 1189 Designation of Foreign Terrorist Organizations

For Lesson # 4 on 9/14/09, please read handout.  Audio file of lecture, here.

For Lesson #5 on 9/22/09, please read handout.  Audio file of lecture, here.

Lessons 6 & 7

Selected Criminal Statutes (cont.)

• Conspiracy law
• Aiding & Abetting, 18 U.S.C. 2
• RICO
• Immigration law
• Money Laundering 

For Lesson #6 on 9/23/09, please read handout (on conspiracy, aiding & abetting, and RICO).  Audio file of lecture, here.

For Lesson #7 [postponed], please read handout (money laundering and immigration).

III.  Investigations

Lesson 8

Overview of Intelligence Community

Overview of Federal Law Enforcement Agencies

For Lesson 8 on 10/05/09, please read Kris, Chapter 1 & 3. Audio file of lecture, here.

Supplemental Material (not assigned):

• National Security Act of 1947 (created NSC, CIA, and DOD)
• Executive Order 12333--United States intelligence activities
• Intelligence Reform and Terrorism Prevention Act of 2004
• NSC 68

Lesson 9

National Security Information

• Sensitive Information and Sensitive Compartmented Information
• Security Clearances, Procedures & Penalties
• Intelligence v. Evidence

 For Lesson 9 on 10/07/09, a handout will be provided in class and need not be read ahead of time.  Audio file of lecture, here.

• Sample protective order.

Lessons 10 -13

Electronic Surveillance

• Foreign Intelligence Surveillance Act (FISA)
• Title III Wiretaps

 For Lesson 10 on 10/12/09, please read in Kris:

•  Chapter 4. An Overview Of FISA
•  Chapter 5. The Foreign Intelligence Surveillance Court And The Court Of Review
•  Chapter 12. FISA Activity Without Advance Judicial Approval
• Audio file of Lesson 10, here.
• Notes.
• Current full text of FISA.

For Lesson 11 on 10/14/09, please read in Kris:

•  Chapter 8. FISA'S Other Key Definitions
•  Chapter 6. FISA Applications And Orders For Electronic Surveillance And Physical Searches
• Audio file of lecture, here.

For Lesson 12 on 10/19/09, please read in Kris:

•  Chapter 7. FISA'S Definitions Of Electronic Surveillance And Physical Search
•  Chapter 9. FISA Minimization
• Audio file of lecture, here.

For Lesson 13 on 10/21/09, please read in Kris:

•  Chapter 17. Pen Register And Trap And Trace Surveillance

Lessons 14 - 15

PHYSICAL SURVEILLANCE AND INVESTIGATION

Production of Records & Tangible Things

Search Warrants

For Lesson 14 on 10/26/09, please read in Kris:

• Chapter 18. FISA Orders For The Production Of Business Records And Tangible Things
• Chapter 19. National Security Letters
• Chapter 20. Mail Covers
• Audio file, here. [Actual topics don't quite match syllabus.  Starts with 2008 Amendments to FISA, then moves on to pen registers, then picks up with syllabus again.]

For Lesson 15 on 10/28/09, please read in Kris:

• Chapter 13. Congressional Oversight Of FISA And Reporting
• Chapter 14. Civil And Criminal Penalties For Misuse Of FISA.
• Audio file, here.

Lesson 16

U.S. Agents Acting Abroad

• United States v. Verdugo-Urquidez
• United States v. Bin Laden
• United States v. Alvarez-Machain
• Sosa v. Alvarez-Machin

For Lesson 16 on 11/02/09, please read in Kris:

• Chapter 16. Surveillance And Searches Abroad, Section 2.5 Of Executive Order 12333.
• Audio file, here.
• Handout used in class: Foreign Intelligence Surveillance Court of Review Case 08-01.

Class was cancelled on 11/04/09

Lesson 19

Tearing Down The Wall

For Lesson 19 on 11/09/09, please read in Kris:

• Chapter 10. The Rise And Fall Of The FISA Wall
• Chapter 11. The Constitutionality Of FISA Without The Wall, FISA Probable Cause, And FISA Orders As Fourth Amendment Warrants
• Chapter 15. The President's Statutory And Constitutional Authority To Conduct Foreign Intelligence Surveillance And Searches -- The NSA Surveillance Program
• Audio file of lecture, here.

Supplemental materials:

• In re Sealed Case, 310 F.3d 717 (Foreign Int.Surv.Ct.Rev. 2002)
• USA PATRIOT Act provisions on information sharing
• Banks, And the Wall Came Tumbling Down: Secret Surveillance After the Terror, 57 U. Miami L. Rev. 1147. 

Lesson 20

Interviews & Interrogation

Use of Grand Jury

Attorney Generals Guidelines

For Lesson 20 on 11/11/09, please read:

• 18 U.S.C. 3144 
•  Kris, Chapter 21. The Grand Jury And Material Witness Warrants
•  Kris, Chapter 2
•  2008 Attorney Generals Guidelines for Domestic FBI Operations, available as a handout.
• Audio file of lecture, here.

Optional excursion: The 19th Annual Review of the Field of National Security Law Conference sponsored by the American Bar Association Standing Committee on Law and National Security will be held in Washington, DC on Thursday and Friday, November 12 and 13, 2009.

IV.  Adjudication

Lessons 21-24

Classified Information Procedures Act

For Lesson 21 on 11/16/09, please read:

• Title 18 U.S.C. Appendix 3
• Kris, Chapter 22. An Overview Of National Security Litigation And Prosecutions
•  Kris, Chapter 23. An Overview Of CIPA
• Audio file of lecture, here.

For Lesson 22 on 11/18/09, please read:

• Chapter 24. Discovery Of Classified Information (CIPA Sections 3 And 4)
• Chapter 25. Use Of Classified Information At Trial (CIPA Sections 5-8)
• Audio file of lecture, here.

For Lesson 23 on 11/23/09, please read:

• Chapter 26. Use Of Information Acquired From FISA
• Chapter 27. FISA's Notice Provisions
• Chapter 28. FISA's Procedures For Suppression And Discovery Motions
• Chapter 29. Disclosure Of FISA Applications And Orders
• Chapter 30. Suppression Of FISA Information
• Audio file of lecture, here.

For Lesson 24 on 11/25/09, please review:

• Chapter 31. Appeal Of FISA Disclosure And Suppression Orders
• United States v. Moussaoui interlocutory appeal
• United States v. Moussaoui briefs for direct appeal
  • Defendant's brief (215 pages)
  • Government's response (222 pages)
• Audio file of Lesson 24, here.

Lesson 23

Physical Security

Witness Protection

United States Sentencing Commission Guidelines

Litigation Strategies

For class 23 on 11/23?/09, please read:

• Handout on witness security.
• United States Sentencing Commission Guidelines Manual 2005, Chapter One - Authority and General Application Principles, and Section 2, Part M, and Sentencing Table.  The Manual is available online.

V.  Case Studies

Lessons  25, 26

Case Study: United States v. Moussaoui

For Lesson 25 on 11/30/09, please read:

• Moussaoui pleadings:
  • Indictment
  • protective order
  • memorandum of understanding
  • statement of facts
  • plea transcript
  • special verdict form part 1
  • special verdict form part 2
  • pro se motion for access to KSM
  • pro se motion on prosecutive theory.
  • motion to withdraw guilty plea.
• U.S. Attorney's Manual sections on death penalty.
• Audio file of Lesson 25, here.

Video Conference with Judge Brinkema, 12/2/09

For Lesson 26 on 12/02/09, please read:

• review all prior handouts on this case study.

Lesson 27

Comparing Article III Courts with other options

For Lesson 27 on 12/07/09, please read:

• Cole Attack Trial Will Test Tribunal System, NY Times, 12/1/09.
• Military Commission Act of 2009
  • Please note that we are not concerned with the legal authority for military tribunals -- that is a topic for National Security Law class.  Rather, we are concerned with how they actually operate and how that operation differs from Article III courts.
• Audio file of lecture.

Lesson 28

The Debate: Title III or What?

For Lesson 28 on 12/09/09, please read the White Papers available on this website:   In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts and In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, 2009 Update and Recent Developments. The first is here. The second is here.  For the first, you need only read the Executive Summary and Conclusion.  For the second, you need only read the Introduction and Overview and the Conclusion.  You are encouraged to read as much as your schedule permits. 

• Remarks by former U.S. Attorney Mary Jo White.

December
22

Examination

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