Prosecuting Terrorists in Article III Courts

Course Description
This course examines the use of civilian Article III courts to prosecute terrorists by following the logical course of a prosecution - legal basis, investigative techniques, litigation and sentencing issues. Major topics include: Principles of counter-terrorist prosecutions, major legislative packages, definitions of terrorism, numerous selected criminal statutes, overview of the intelligence community, overview of federal law enforcement agencies, use and protection national security information, Fourth Amendment framework, the Attorney General's Guidelines, U.S. agents acting abroad, electronic surveillance, interviews and interrogation, use of the grand jury, material witness, the Classified Information Procedures Act, physical security, witness protection, relevant United States Sentencing Commission Guidelines, litigation strategies and case studies.

New course syllabus for 2008.

Comments can be left on our in-house blog at www.nationalsecuritylaw.info.

Leading Cases

Boumediene et al. v. Bush, No. 06–1195, (June 12, 2008).

United States v. Alvarez-Machain, 504 U.S. 655 (1992).

 

In an address by Honorable Charles E. Hughes, of New York, on ‘War Powers Under The Constitution,’ September 5, 1917, 42 A.B.A.Rep. 232, 238-239, 247-248, he said:

‘The power to wage war is the power to wage war successfully. The framers of the constitution were under no illusions as to war. They had emerged from a long struggle which had taught them the weakness of a mere confederation, and they had no hope that they could hold what they had won save as they established a Union which could fight with the strength of one people under one government entrusted with the common defense. In equipping the National Government with the needed authority in war, they tolerated no limitations inconsistent with that object, as they realized that the very existence of the Nation might be at stake and that every resource of the people must be at command. * * *

‘In the words of the Supreme Court: ‘It is also settled beyond dispute that the Constitution is not self-destructive. In other words, that the power which it confers on the one hand it does not immediately take away on the other. * * *' This was said in relation to the taxing power. Having been granted in express terms, the Court held it had not been taken away by the due process clause of the Fifth Amendment. As the Supreme Court put it in another case: ‘the Constitution does not conflict with itself by conferring upon the one hand a taxing power and taking the same power away on the other by the limitations of the due process clause.“

‘Similarly, it may be said that the power has been expressly given to Congress to prosecute war, and to pass all laws which shall be necessary and proper for carrying that power into execution. That power explicitly conferred and absolutely essential to the safety of the Nation is not destroyed or impaired by any later provision of the constitution or by any one of the amendments. These may all be construed so as to avoid making the constitution self-destructive, so as to preserve the rights of the citizen from unwarrantable attack, while assuring beyond all hazard the common defense and the perpetuity of our liberties. These rest upon the preservation of the nation.

‘It has been said that the constitution marches. That is, there are constantly new applications of unchanged powers, and it is ascertained that in novel and complex situations, the old grants contain, in their general words and true significance, needed and adequate authority. So, also, we have a fighting constitution. We cannot at this time fail to appreciate the wisdom of the fathers, as under this charter, one hundred and thirty years old-the constitution of Washington-the people of the United States fight with the power of unity,-as we fight for the freedom of our children and that hereafter the sword of autocrats may never threaten the world.’

The war powers of Congress and the President are only those which are to be derived from the Constitution but, in the light of the language just quoted, the primary implication of a war power is that it shall be an effective power to wage the war successfully. Thus, while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind.

 Lichter v. U.S., 334 U.S. 742 (1948)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Syracuse University College of Law

 

 

 

 

 

 

 

 

 

 

 

 

 

 
Law 779, Fall term 2008
William C. Snyder
Visiting Assistant Professor of Law
Syracuse University College of Law
 

The new fall 2008 syllabus is available as a PDF document here.

This course will back for the fourth time in the Fall of 2008, meeting on Mondays and Wednesdays from 2:30 until 3:45 p.m.  So far, thirteen students have registered.  We have room for more.

The required text is Anti-Terrorism and Criminal Enforcement, 3rd Ed., Abrams (West 2008) ISBN 978-0-314-19034-5 and its August 2008 Supplement.  Many of our topics are simply not covered in that book or any other single textbook I can find, so there will be an extensive packet of supplemental materials.  All of the supplemental materials will also be available here on this web page.

For additional context, I recommend reading Willful Blindness: A Memoir of the Jihad by Andrew J. McCarthy, the former Assistant United States Attorney who led the prosecution of Sheikh Omar Abdel Rahman and eleven others.  Also, the definitive work on the subjects covered in the investigative phase of our course is National Security Investigations and Prosecutions (West 2007) by David Kris, available here.  I would assign the latter, but at $188 it is just too expensive for me to require as a secondary text.  But, it is very good, if you can afford it.  It is a loose-leaf treatise rather than a course book, and you would refer to it for many years if you choose to go into National Security Law as a career,

The following course plan is subject to change.  It is my practice to vary the course each year based upon the students' needs and interests.

Also, we have invited some guest speakers whose appearances are not yet confirmed.  We are in discussions with a defense counsel, a prosecutor and a judge who have tried major terrorism cases.  One has committed to attending but not yet chosen a date, one has indicated an intention to participate if possible, and one has not yet responded at all.  These would be invaluable learning experiences for students, and we will adjust our syllabus to include these guests when and if they confirm a date.

Note: Most documents linked here are available only to students and guests with a username and password.

 

I. Principles

Class 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 8/25/08, please read the handout that will be emailed to all registered course members, posted on the website, and available in Professor Snyder’s office.

  • MP3 file of lecture.

 

II.  The Law

Class 2

The Major Legislative Packages

  • Omnibus Diplomatic Security & Antiterrorism Act
  • Antiterrorism & Effective Death Penalty Act
  • USA PATRIOT Act
  • Homeland Security Act
  • Intelligence Reform & Terrorism Prevention Act of 2004

For class 2 on 8/27/08, please read Abrams pp. 6-48.

 

Classes   3,4

Definitions of Terrorism

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 9/03/08, please read Abrams pp. 51-76.

  • MP3 file of lecture.

  • I used slides 4,5 and 7, of the attached PowerPoint (from last year) in class.  One student requested it, so I am posting it here for all as a PDF.  The other slides used this day were from the PowerPoint listed above under "Class 2."

For class 4 on 9/8/08, please read Abrams pp. 77-111.

  • audio file of lecture (MP3).

Class 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. Dep’t of Justice
    • United States v. Hammoud
    • United States v. Al-Arian
  • 8 U.S.C. § 1189 Designation of Foreign Terrorist Organizations

For class 5 on 9/10/08, read Abrams pp. 112-152.

For class 6 on 9/15/08, read Abrams pp. 152-189.

Classes 6 & 7

Selected Criminal Statutes (cont.)

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

For class 7 on 9/17/08, please read:

For class 6 on 9/15/08, read Abrams pp. 152-189.

  • Handout on conspiracy law.
  • Handout on aiding & abetting.
  • Note: these documents appear to be long, but much of them are string cites with which you need not be concerned.  Just read the substantive law.
  • Please read RICO statute.
  • Please look over sample RICO terrorism indictment.
  • Audio file of the lecture is here.

For class 8 on 9/22/08, please read:

For class 7 on 9/17/08, please read:

 

III.  Investigations

Classes 9,10
Class 8

Overview of Intelligence Community

Overview of Federal Law Enforcement Agencies

National Security Information

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

For class 8 on 09/22/08, please read:

  • Handout on Intelligence Community.
  • Also, remember that we did not get to the handout on Immigration last time (see above) so please review it for class on 9/22.
  • A handout on national security information will be provided in class and need not be read ahead of time.

Supplemental Material (not assigned):

For class 10 on 9/29/08,  please read:

  • Handout on national security information.

 

Classes 9,10

Tearing Down The Wall

  • In re Sealed Case
  • USA PATRIOT Act provisions on information sharing

For class 9 on 9/24/08, please read:

  • In re Sealed Case, 310 F.3d 717 (Foreign Int.Surv.Ct.Rev. 2002), available as a handout.

Classes on 9/29 and 10/1 were cancelled.

For class 10 on 10/06/08, please read:

 

Classes 11,12

Fourth Amendment Framework

Attorney General’s Guidelines

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 class 11 on 10/08/08, please read:

For class 12 on 10/13/08, please read:

  • Abrams, pp. 388-413 and 416-431.
  • supplemental, not assigned: complete text of United States v. Bin Laden, 126 F.Supp. 2d 264 (SDNY 2000).

 

Classes 13,14,15, 16, 17

Electronic Surveillance

For class 13 on 10/15/08, please read:

  • The actual Foreign Intelligence Surveillance Act as amended in 2008, distributed in class and available as a PDF, here.
  • Audio file of lecture (MP3), here.

For class 14 on 10/20/08, please read:

  • Abrams, pp. 309-339.
  • Audio file (MP3) of 10/20 lecture is here.

For class 15 on 10/22/08: no new assignment, continue with new FISA text and with Abrams, pp. 309-339.

For class 15 on 10/20/08, please read:

  • Title III handout and Abrams, pp. 330-339.

 For class 16 and on 10/27/08 and class 17 on 10/29/08, read the following sections of James Bamford's The Shadow Factory:

Assigned reading:

  • Chapter Intercept, pp 12-21
  • Last paragraph on p.35 to end of chapter on page 38.
  • Chapter Thinthread, pp. 44-47.
  • Pages 66 & 67.
  • Pages 95 & 96.
  • Chapters Opportunity, Hunters, FISA, Mission, and Highlander, pages 99-134.
  • Book 3, pp. 161-268 (but don’t get bogged down in the technology).
  • Chapter Emergency, pp. 278-286.
  • Chapter Exposure, pp.287-292.
  • Pages 307-308.
  • Remember, look for exposed facts, not opinions.

Recommended reading:

All the rest that wasn’t assigned up through page 96.

Assignment:

  • Find violation(s) of FISA, if any, with a view to how such might impact Article III prosecutions based upon criminal investigation initiated as a result of evidence obtained through warrantless surveillances of the type depicted in the book.
  • Identify any misstatements of the law made by the author. Make a list.
  • The goal is to learn the ins and outs of the FISA statute in a real-world and memorable application. But, of course, you should also think about whether the law should be the way it is.

Supplemental materials:
Class 16 Case Study: AUSA Andrew McCarthy's Experiences

(date subject to change)

For class 16 10/??/08, please read handout.

Classes 18, 19

Interviews & Interrogation

Use of Grand Jury

Material Witnesses

  • 18 U.S.C. § 3144

For class 17 on 10/22/08, please read:

  • Handout on interviews and interrogations and Abrams 459-476 and 482-505.

For class 18 on 11/03/08, please:

  • Read Abrams, pp 482-505 and 512-532.
  • Review information about grand juries from handout.

Same assignment for class 19 on 11/05.

 
November 6-7, 2008 Optional excursion: The 18th 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 6 and 7, 2008. In 2007 approximately one third of the class attended.

 

IV.  Adjudication

Classes 20, 21

Classified Information Procedures Act

  • Title 18 U.S.C. Appendix 3
  • United States v. Yunis
  • United States v. Rezaq
  • United States v. Fernandez
  • United States v. Jolliff
  • United States v. Bin Laden
  • United States v. Lee

For class 20 on 11/10/08, please read:

For class 21 on 11/12/08, please read:

  • Abrams, pp 263-296.

 

Class 21

Physical Security

Witness Protection

United States Sentencing Commission Guidelines

Litigation Strategies

For class 21 on 11/05/08, please read:

  • handout on witness security.
  • United States Sentencing Commission Guidelines Manual 2005, Chapter One - Authority and General Application Principles (pp.1-8), and Section 2, Part M (pp. 255-268), and Sentencing Table (p. 377).  The Manual is available online at http://www.ussc.gov/2005guid/gl2005.pdf.

 

V.  Case Studies

Classes 22

Case Study: United States v. Aref

For class 22 on 11/17/08:

  • Guest speaker Terence Kindlon, Esq.

  • please read, handout to be provided

 

Class 23, 24

Start Case Study: United States v. Moussaoui

For class 23 on 11/19/08, please read:

For class 24 on 11/21/08, please read:

 
Class 25 Teleconference with federal district judge.

Class on November 24, 2008 will meet in Room 411 for videoconference with a highly regarded United States District Judge who presided over a very high profile terrorism case.

Class 26

Comparing Article III Courts with other options

For class 26 on 11/26/08, please read:

  • Abrams, pp. 738-743 and 788-814, and please skim 818-825 concerning military tribunals.  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.

 

 Class 27

Final thoughts and examination review.

For class 27 on 12/01/08 will be a review for the examination.

 

December 9

Examination

 

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