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· with an NSL is punishable :
the national security of the United States, impede a counterterrorism or counterintelligence investiga-
Seizure of Business Records
abuse of NSLs, now requires semiannual reports on the impact of these
tion, interfere with diplomatic relations, or jeopardize the life or safety of an individual. Noncompli-
the subject of the
limits the delay in
ay.”The thirty-day
ay, in turn, may be
as contempt of court. The U.S. Congress, in order to guard against
requests.
granting
the
ments). These records may be
his might involve
cory. Section 213
The director of the FBI or another FBI official may apply to the FISA court to issue orders
(personal) prop-
sought
government
access (,
requested from a library, bookstore, firearms sale, taxing authority,
e standards for
kely to be mini-
eal the fact that
he other hand,
espionage
documents
facts” demonstrating that there are reasonable grounds to believe that the tangible items that are
are “relevant to an authorized or preliminary investigation to protect against international
under section 215 must be accompanied by a statement of procedures that will be fol-
request for
adment
cause.
? Probable cause is required when information that is to be seized
prism.
of section 215.
on
the use
Individuals are
information from a “third party."
standard” for these requests, although less than probable cause, has been held to be sufficient to seize
is in the possession of the target of the investigation. Federal investigators are required to provide a
description of the tangible thing that is sought. The attorney general is to submit an annual report
recipient may petition for a modification or for a lifting of the gag order after one year. The standard
to be used in evaluating whether to modify or to amend the gag order is similar to the standard for
lifting a gag order for an NSL as discussed in the previous section.
ion should
are prohibited from revealing that a request for information has been made. The
ered the
as failed to
Pproving
DETENTION OF NONCITIZENS
an offense
previously
Heral law
Section 412 of the PATRIOT Act provides that 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, Immigration removal proceedings or criminal charges must be filed
after seven days, or the individual must be released. Individuals may be held an additional six months
if they are unlikely to be deported in the near future and the attorney general determines that their
release threatens national security or public safety. This certification may be renewed every six months.
A detainee may contest the certification by filing a writ of habeas corpus.
In December 2011, President Barack Obama signed the National Defense Authorization Act
for Fiscal Year 2012. Section 1021 authorizes the president to detain “without trial until the end of
hostilities” an individual who was part of or substantially supported” al Qaeda, the Taliban, or associ-
ated forces that are engaged in hostilities against the United States or its coalition partners, including
any person who has committed a belligerent act or has directly supported such hostilities in aid of
such enemy forces.” President Obama issued a statement clarifying that his “[a]dministration will not
authorize the indefinite military detention without trial of American citizens."
In Ziglar v. Abbasi, the U.S. Supreme Court dismissed a claims against three executive officials, includ-
by the
Hother
hat the
ed...
vided
omer
credit
ands
ition
rism
the
ing former Attorney General John Ashcroft and then-FBI Director Robert Mueller and the former Com-
missioner of the U.S. Immigration and Naturalization Service James Ziglar, for designing the detention
policy following 9/11, which allegedly violated the plaintiffs'constitutional rights. The detention policy led
to the arrest of 700 individuals for violation of immigration regulations, a significant number of whom were
held without bail for several months. The six plaintiffs had been held in Brooklyn's New York Detention
Center under difficult conditions including alleged physical and verbal abuse by guards. The Court held
that there were “special factors counseling hesitation” in authorizing a legal action regarding conditions
"imposed on illegal aliens pursuant to a high-level ... policy created in the wake of a major terrorist attack
on American soil.”Judicial intervention might interfere with the governmental response and threaten the
confidentiality of high-level policy discussions. Any inquiry into national-security policy was “the preroga-
tive of Congress” (Ziglar v. Abbasi, 583 U.S. __,137 S. Ct. 184 [2017]).
The next section discusses additional counterterrorism procedures that are not addressed in the
PATRIOT Act.
an
ent
ag
ze
ay
COUNTERTERRORISM
er
CHAPTER 15
en
conne
ALSE
EDGE:
of war principles
certain persons captured in
duration of the conflict.... Today, the
1. The USA PATRIOT Act
was intended to facilitate
counterterrorism by defining
new criminal offenses and by
reforming relevant aspects of
criminal procedure.
United States
and associated forces, including with the Islamic State of Iraq and Syria.
(d) [A] number of the remaining individuals at the detention facility are
aged in an armed conflict with alQa'ida, the Taliban,
States, as determined by periodic reviews.
being prosecuted in military commissions, while others must be detained to
protect against continuing, significant threats to the security of the United
(e) Given that some of the current detainee population represent the
most difficult and dangerous cases from among those historically detained
gagement in hostilities should they have the opportunity.
t the facility, there is significant reason for concern regarding their reen-
facilities at U.S. Naval Station Guantánamo Bay, is hereby revoked.
Sec. 2. [Executive Order 13492 of 2009] ordering the closure of detention
In addition, the United States may transport additional detainees to
tect the Nation.
[the] U.S. Naval Station Guantánamo Bay when lawful and necessary to pro-
Lawful Detention of Terrorists
Presidential Executive Order 13823 on Protecting America Through
President Donald J. Trump
2. The PATRIOT Act authorizes
the FBI to issue national
security letters (NSL) to
obtain access to information
without a court order that
relevant to an investigation
protect against internation
terrorism or intelligence
activities
3. The standard process for
obtaining a national secu
warrant is no different fr
the standard for obtain
warrant in a federal crin
January 30, 2018.
case.
4. Information obtained
national security wart
cannot be used in cri
investigations.
INTRODUCTION
In October 2001, the U.S. Congress passed and President George W. Bush signed
a new law to assist in combating the threat of terrorism, titled the Uniting and
Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001. This law is popularly known as the USA
PATRIOT Act. Various amendments to the law later were incorporated into the
PATRIOT Act Improvement and Reauthorization Act that was signed by Presi-
dent Bush on March 9, 2006. The PATRIOT Act includes more than one thou-
sand counterterrorism measures; it is divided into ten sections and modifies more
than nine existing laws that address terrorism and related criminal activity. The
U.S. Congress, on several occasions, has extended several controversial provisions
of the statute. The two main purposes of the law are to define new federal criminal
5. Terrorists are consid
"international outla
and terrorists who
apprehended and
do not possess rig
American domes
under internation
6. Enhanced interr
techniques are
terrorist suspe
the interrogati
result in pain
to the pain a
offenses relating to terrorism and to introduce reforms to criminal procedure to
make it easier to investigate and detect acts of terrorism.
There is a wide variety of definitions of terrorism. The U.S. Department of
State follows U.S. statutes and defines terrorism as “premeditated, politically moti-
vated violence perpetrated against noncombatant targets by sub-national groups
organ failure
a limb.
Counterterrorism
15
578
81
ne 611
Put law 595
TEST YOUR KNOWLEDGE
TRUE/FALSE
be
remain open?
Should the prison camp at Guantánamo
By the authority vested in me as President by the Constitution and the laws
and applicable law, the United States may detain certain persons captured in
Section 1. Findings. (a) Consistent with long-standing law of war principles
connection with an armed conflict for the duration of the conflict.... Today, the
United States remains engaged in an armed conflict with alQa'ida, the Taliban,
and associated forces, including with the Islamic State of Iraq and Syria....
(d) [A] number of the remaining individuals at the detention facility are
being prosecuted in military commissions, while others must be detained to
States, as determined by periodic reviews.
protect against continuing, significant threats to the security of the United
(e) Given that some of the current detainee population represent the
most difficult and dangerous cases from among those historically detained
at the facility, there is significant reason for concern regarding their reen-
gagement in hostilities should they have the opportunity.
Sec. 2. [Executive Order 13492 of 2009] ordering the closure of detention
facilities at U.S. Naval Station Guantánamo Bay, is hereby revoked.
1. The USA PATRIOT Act
was intended to facilitate
counterterrorism by defining
new criminal offenses and by
reforming relevant aspects
criminal procedure.
2. The PATRIOT Act authorizes
the FBI to issue national
security letters (NSLs) to
obtain access to information
without a court order that is
relevant to an investigation
protect against internationa
terrorism or intelligence
activities.
Sd
tect the Nation.
In addition, the United States may transport additional detainees to
[the] U.S. Naval Station Guantánamo Bay when lawful and necessary to pro-
3. The standard process for
obtaining a national securi
warrant is no different from
the standard for obtaining
warrant in a federal crimin
case.
Lawful Detention of Terrorists
President Donald J. Trump
January 30, 2018.
Presidential Executive Order 13823 on Protecting America Through
4. Information obtained thro
national security warrants
cannot be used in crimina
investigations.
INTRODUCTION
In October 2001, the U.S. Congress passed and President George W. Bush signed
a new law to assist in combating the threat of terrorism, titled the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001. This law is popularly known as the USA
PATRIOT Act. Various amendments to the law later were incorporated into the
PATRIOT Act Improvement and Reauthorization Act that was signed by Presi-
dent Bush on March 9, 2006. The PATRIOT Act includes more than one thou-
sand counterterrorism measures; it is divided into ten sections and modifies more
than nine existing laws that address terrorism and related criminal activity. The
U.S. Congress, on several occasions, has extended several controversial provisions
of the statute. The two main purposes of the law are to define new federal criminal
5. Terrorists are considered
"international outlaws,"
and terrorists who are
apprehended and intern
do not possess rights un
American domestic law
under international law.
offenses relating to terrorism and to introduce reforms to criminal procedure to
make it easier to investigate and detect acts of terrorism.
There is a wide variety of definitions of terrorism. The U.S. Department of
vated violence perpetrated against noncombatant targets by sub-national groups
6. Enhanced interrogation
techniques are lawful ag
terrorist suspects so lor
the interrogation does
result in pain that is equ
to the pain associated
organ failure or the los
State follows U.S. statutes and defines terrorism as “premeditated, politically moti-
a limb.
Keep in mind th
to national security
Americans and Am
and of non-U.S.re
judges. Requests
federal district coz
to conduct surve
that the request
FISA establish
(Continued)
or clandestine agents, usually intended to influence an audience." International
TEST YOUR KNOWLEDGE:
TRUE/FALSE
terrorism is terrorism involving individuals from more than one country or ter-
achieve a political objective that is carried out by individuals who are not part of
an organized government (22 U.S.C. $ 2656(d)).
that are relevant to criminal procedure. The following topics are discussed:
of the State Department's definition of terrorism are the targeting of civilians to
orders of FISC
ment lawyers a
The first part of this chapter outlines several provisions of the PATRIOT Act
Target. The
power or a me
Electronic surveillance
7. Terrorists who are
apprehended abroad are
required to be prosecuted
before a military commission
and may not be prosecuted
before a federal civilian court.
Guantánamo detainees
are categorized as enemy
combatants and do not enjoy
the right of habeas corpus
review before a federal
appellate court to determine
the lawfulness of their
detentions.
.
dent, or forei
Act and auth
affiliated wit
or in activiti
Sneak-and-peek warrants
Information and records
Detentions of noncitizens
•
.
The PATRIOT Act is only one of a number of procedural tools that are relied
on to combat the international terrorist threat. The second portion of this chapter
examines several additional counterterrorism mechanisms:
Probable
used in ord
ity” that th
engage” ir
Material witness warrants
ck your answers on page 642.
Purpose
Monitoring of attorney-client communications
Interrogations
Military commissions and combat status review tribunals
Place.
be used
security
FIS
by the
for sur
foreig
or ind
F
The United States is a government and country based on the rule of law. In war
or in times of national emergency, legal standards historically have been loosened
in order to combat the threat confronting the nation. A number of judges and legal
scholars have noted that the Constitution is not a “suicide pact" and that the first
priority of government must be to protect the American people. This
may involve
a temporary limitation on civil rights and liberties. On the other hand, there is a
danger that fear and insecurity may lead government officials to overreact and to
sacrifice the very liberties that are at the core of our democracy.
. The challenge is
to strike the appropriate balance between combating the threat to national security
and protecting civil liberties. In striking this balance in times of war and national
emergency, courts consistently have held that the protection of the country must
take precedence over individual rights. As you read this chapter, consider whether
the United States has struck the proper balance in the “war on terror.
searc
gove
bet
An
on
-
ELECTRONIC SURVEILLANCE
pc
st
t!
i i
non
In 1976, the Senate Select Committee to Study Governmental Operations with
Respect to Intelligence Activities headed by Senator Frank Church of Idaho issued
a report that documented widespread warrantless spying on Americans by U.S.
intelligence agencies. This surveillance activity was based on the claim of various
Democratic as well as Republican presidents that the president possessed the inher-
ent power as commander in chief to protect the national security, and therefore
the president was not required to obtain a court order or warrant. This claim was
rejected by the U.S. Supreme Court in United States v. United States District Court
(Keith) (407 U.S. 297 (1972]). The Court in Keith recognized that surveillance
intended to protect the national security may be conducted on less than probable
cause, but it held that the protection of individual privacy required judicial supervi-
sion of this surveillance activity. In 1978, in reaction to this ruling, the U.S. Congress
enacted the Foreign Intelligence Surveillance Act (FISA, rhymes with Eliza) to
provide procedures for electronic surveillance of threats to national security. In 1994,
FISA was extended to cover physical searches of dwellings and other structures.
TM
E edge
ent at
com/
PROCEDURE
Keep
Americans
ce.” International
e country or ter-
key components
ng of civilians to
are not part of
orders of FISC
PATRIOT Act
Escussed:
ment
lawyers
are
or a
ON
power
dent, or
cause that the target is the agent of a foreign
Chat are relied
fthis chapter
in mind that FISA regulates surveillance within the United States of international threats
to national security and of international terrorist activities. FISA also addresses the surveillance of
and of non-U.S. residents outside of the United States (50 U.S.C.SS 1801-1862).
s and American residents abroad. It does not regulate the surveillance of non-U.S. citizens
FISA established the Foreign Intelligence Surveillance Court (FISC), which comprises eleven
federal district court judges selected by the chief justice of the United States and by three other federal
judges. Requests for a warrant to conduct surveillance of a threat to national security or for a warrant
that the request is turned down, the application is reviewed by the entire court. The proceedings and
to conduct surveillance involving international terrorism are filed before a single judge. In the event
required to satisfy four conditions to obtain a FISA warrant.
are secret, and the target" of the warrant is not represented at the hearing. Gover-
Target. The government must demonstrate probable
member of an international terrorist organization. The target may be a U.S.citizen, resi-
- foreign national. The so-called lone wolf terrorism provision was added by the PATRIOT
or in activities in preparation for international terrorism.
Act and authorizes the surveillance of non-U.S. residents who are not agents of a foreign power or
affiliated with an international terrorist organization but who are engaged in international terrorism
Probable Cause. The government is required to meet a lower probable cause standard than that
used in ordinary criminal investigations. FISA orders are based on the probability of a possibil-
engage” in terrorism.
y" that the target of the order may engage" in activities threatening the national security or may
Purpose. The primary purpose must be to investigate a threat to national security or threat of terrorism.
Place. The place or communication device targeted for surveillance must be being used or about to
be used by a foreign power or terrorist organization to carry out activities that threaten the national
FISA is concerned with international threats to the United States. Domestic terrorism is covered
by the wiretapping laws (Chapter 6, Table 6.2). The individuals who may be a target of a FISA warrant
for surveillance are individuals who work for a foreign organization or government (e.g., diplomats),
foreign agents (e.g., persons involved in espionage), individuals affiliated with foreign terrorist groups,
ity
be
security.
or individuals engaged in international terrorism.
law. In war
n loosened
s and legal
at the first
ay involve
there is a
act and to
allenge is
1 security
national
try must
whether
FISA warrants are necessary for both electronic surveillance (e.g., wiretapping) and physical
searches that are directed against foreign threats to national security and international terrorism. The
government is required, if possible, to provide the FISA court with the identity of the individual to
on
be targeted for surveillance as well as with the facts and circumstances that justify the surveillance
,
the exercise of his or her First Amendment rights.
An American citizen or resident of the United States may not be singled out for surveillance based
The standard is whether there is probable cause to believe that the target is an agent of a foreign
power, is affiliated with a terrorist group, or is engaged in terrorism. The government must demon.
strate the probability of a possibility” that the target of the warrant “may engage" in activities that
threaten the national security or “may engage” in terrorism, rather than probable cause that he or she
is actually engaged in conduct threatening the national security or is engaged in terrorism. In other
words, FISA warrants generally are easier to obtain than warrants for ordinary criminal investigations,
which require probable cause that an individual is engaged in unlawful behavior
. The reason for the
more relaxed FISA standard is that the safety and security of the United States would be placed at
risk by demanding that the government, before initiating surveillance, establish that there is probable
2s with
issued
by U.S.
U.S
various
inher-
refore
n was
Court
lance
bable
ervi-
cause that an individual is engaged in espionage or terrorism. On the other hand, there is a risk that
FISA warrants may target individuals who later prove to be loyal and law-abiding Americans.
Originally, the FISA statute required that the sole purpose of the investigation was to protect
national security or to combat terrorism. This standard was adopted, because there was a fear that the
government would seek to use the relaxed standard for FISA warrants to pursue criminal investiga-
tions in those circumstances in which probable cause was lacking that the individual was engaged in
criminal conduct. The government, in order to guard against this possibility
, erected a "wall" between
individuals investigating threats to national security and individuals engaged in criminal investiga-
tions. These two groups generally were prohibited from communicating and sharing information with
one another. The wall came in for a great deal of criticism when it was revealed that information
gress
a) to
994,
es.
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