What can the FBI do after someone is arrested?

1. Interrogate him
1. Mirandize him if you want to use stuff in court 
2. Retrace his steps and see where it leads
3. Check what he has on him
1. Dont need a warrant 
2. Tap phone lines
3. Surveillance 
4. Get phone records
4. Check his car
1. Don't need a warrant  

What are the three institutional responses to terrorism?

1. Prevention
2. Prosecution
3. Military Action

What are the criteria used by the State Department to designate terrorist orgranizations?

1. A foriegn organization
2. engages in terrorist activity
3. the organization's terrorist activity threatens the national security of the U.S. of U.S. Nationals 

What is terrorist acivity? 

1. Violence
2. Civilian targets
3. subnational or clandestine perpetrator
4. political motivation 

What is the effect of being designated as a forgein terrorist organization (FTO)

1. U.S. assets are frozen
2. anyone giving support is subject to criminal action

What Gov't agencies deal with public safety?

1. Intelligence
2. Law Enforcement 
3. Military 

What types of statutes relate to terrorism or terrorist activity?

• General criminal statutes
• U.S. statutes based on treaties
• U.S. Statutes refering to terrorism 

1. 18 U.S.C. § 2331 - Terrorism Defitions 
2. 18 U.S.C. § 2332 - Terrorist Homicide 
1. No prosecution shall take place in the US w/o Attorney General certification that attack wa intended to coerce, intimidate, or retaliate against the gov't or civilian population
3. 18 U.S.C. § 2332(b) - Terrorism Transcending National Boundries 
4. 18 U.S.C. § 2339(a) - Providing Material Support to Terrorists 
5. 18 U.S.C. § 2339(b) - Providing Material Support to Terrorist Organizations 

1. A person can be convicted w/o knowing the details of what others were planning to do
2. When there is agreement to commit a category of an offense, a person may be held liable even though they committed no overt act, when another person in the agreement commits the overt act even though there was no further agreement to commit that act
3. no harm needs to occur 

1. Chain
2. Wheel
3. Wheel-chain
4. Multi-Channel Network

Facts: plan was to bomb the WTC.

Rule: it is not necessary to show that a D knew what building was being bombed, all taht is needed to convict is taht D agreed to the "essential nature of the plan" and on the "kind of criminal conduct contemplated" 

What are the defenses to a statute?

1. The activity is protected
2. the statute is overbroad
3. the statute language is vague 

What is "training"

Criminalizes receiving military-type training from an FTO when there is knowledge that:

1. the organization is a designated terrorist organization
2. the organization engages or has engaged in terrorist activity, or
3. that the organization has engaged or engages in terrorism. 

Can a D challenge a classification if he is charged in a case?

1. Levying war against the U.S.

2. Providing Aid and comfort to the enemy

1. There must be testimony from 2 witnesses to the same overt act

OR

2. a confession in open court 

(cramer v. U.S.) 

a statute that fails to draw the distinction that a D can only be found guilty where a person's advoacy is directed to inciting or producing imminent lawlessness AND is likely to produce suct actions, is unconstitutional. 

"it must be established that the group has unlawful goals AND the individual had specific intent to further those goals." 

What are the two due process issues with material support?

1. The organization did not get to contest its designation

2. the individual contributor wants to challenege the designation during his or her own trial 

Holding: Under due process, a group has to be given an opportunity to rebut the classification, or else the designation is unconstitutional. Requirements: the organization can:

1. file responses to non-classified evidence against them,
2. file evidence in support that they are not a terrorist organization, and 
3. be provided an opportunity to be heard. 

Holy Land Foundation v. Ashcroft

U.S. v. Hammound

Lynn Stewart

1. to issue indictments

2. use their power to further investigations

Rules for Grand Jury

1. Probable Cause standard
2. hearsay is admissible 
3. No defense atty in the room
4. prosecutor cannot disclose what is said in the room, but witness can
5. Witness can seek assistance of counsel whenever, but not in the room
6. 5th amendment applies 

1. Transactional
1. state level
2. immunity for the specific crime
2. Use
1. federal
2. cannot use the testimony directly or indirectly to indict a person, ever. 
3. ONLY applies to grand jury testimony. anything before then is fair game 

1. Prosecutor goes to judge
2. judge signs and immunity order and compulsion order (to force testimony) 

1. Civil
1. Remedial
2. go to jail until agree to testify
2. Criminal
1. punitive
2. face criminal trials for failure to testify and get a jury trial specifically for the charges 

A person can be jailed because they are a grand jury witness. 

"if it appears from an affidavit filed by a party that the testimony of a person is material in criminal proccedings, and if it is shown that ti may become impractibable to sercure the presence of the person by subponea, a juducal officer may order the arrest of the person and treat the person in accordance with the provision of the title. No witness may be detained because of inability to compl with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further deterntion is not necessary to prevent a failure of justice." 

Yes, but only in limited situations. LIke in Waller v. Georgia. There are 4 requirements:

1. parties seeking closure must have an overriding interest to close the courtroom
2. closure must be no broader than necessary to protect the interest
3. the trial court must consider reasonable alternatives to closing the proceeding
4. the court must make finding adequate to support the closure
5. there must be notice to the public 

6th amendment - trial where the crime is committed

fundamental fairness of the jury where the trial is heard

if there is any prejudice created by trying it where it occured

1. Anonmyous juries never have their names released. All are assigned a number. 
2. Semi-sequestered juries are driven to and from court by marshals so they can't be followed. 

What is Classified Information Procedures Act (CIPA)?

Manages classified information in trials. 

1. Section 1 - the gov't gets to determined what is qualified
2. Section 2 - after charges are filed, a pre-trial hearing is held to determine how the classified info will be used
3. Section 3 - the judge can decide which info gets disclosed, if there will be a protective order, and if the D attorney needs to get clearance first. 
4. Section 4 - government can argue that certain info shouldn't be disclosed, that it should be given in substance instead, or that it will just be stipulate to (pg 19)
5. Section 5 - D attorney discloses what he intends to use
6. Section 6 - CIPA hearing - the court, upon gov't motion, can hear and decide what should and shouldn't be disclosed based on what is required. 

Reconclied Quirin and Milligan. Held that a military tribunal is ok where:

1. it is to govern armed forces
2. is in the theater of operations
3. when the person is charge with violating the laws of war

For non-citizens

Options for people at Gitmo:

1. Military Comissions
2. Civilian Courts
3. National Security Court
4. International Tribunals 

Rasual v. Bush

Detaniee Treatment Act

Does:

1. authorizes use of military commission to try unlawful enemy combatants engaged in hostilities against the US for violations of the law of war
2. defines "unlawful enemy combatant' as a person who engaged in hostilities against the US or has purposely and material supported hostiles against the US 
3. provides a specific list of war that may be tried by military commissions in many were not originally able to be tried under the law of war
4. Precludes habeas review of any detainee classified as a "unlawful enemy combatant" and asllows only D.C. circuit review o the determinations by CSRT. 
5. no person in a habeas action can invoke the Geneva convention as a source of rights
6. that the prosecutors could affirmatively use summaries of classified information to by used as a sword
7. the hearsay portion stayed in but any info obtained after FTA could not be used if it was obtained by torture or cruel and inhuman treatment
8. to convict you need 2/3 vote, except in death penalty cases where it needs to be unanimous 

Three factors to decide whether there is review:

1. The citizenship and stats of the detaniee and the adequacy of the process through which the status determination was made
2. the nature of the sites where apprehension and then deterion took place,
3. and the practical obstancles inherent in relving the prisoner's entitlement to the writ. 

Hamdi v. Rumsfeld

Issue: is there jurisdiction for a habeas petition in the US when a US citizen is being held by coalition forces?

Holding: yes, it applies to anyone taken under control of the US UNLESS you attempt to interefere with the soverignty of another state. So here, b/c the transfer was to Iraq for them to prosecute, not a winner. 

Requires:

1. probable cause
1. that the indiviudal is committing an enumerated crime
2. that the particular communication concerning that offense will be obtained through the interception, and 
3. the facility being used is to faciliate the crime
2. demonstrate that normal investigative procedurese are unlikeley to proceed or are too dangerous 
3. must minimize the intrusion to only things that are relevant

1. Probable cause
1. that the target is a foreign power or an agent of a foreign power, and 
2. that the facilities for warrant are going to be used by the target. 
2. the significant purpose of investigation is to obtain info for the protection of national security
3. acceptable minimzation requirements are in place 

same requirements as for non-americans, but also must show one of the following:

1. the target is engaging in clandestine intelligence activities on behalf of a foreign power
2. target knowingly engages in other secret intelligence activities of a foreign pursuant to the direction of intelligence network and activities involve criminal law violations
3. target knowingly engages in sabotage or internationa terrorism or is perparing to
4. target knowingly aides or abets another acting in one of the above ways. 

What is mental torture?

18 U.S.C. § 2340:

1. threat of inflicting severe physical pain or suffering
2. threat of disruption of the person's sense of personality
3. threat of imminent death
4. threat that another person will suffer the above 

What is the Patriot Act?

designed to remove the obstacles to info sharing between government agencies

creates useful tools for info gathering

Allows you to go into a home and tell them later

public reporting of use

must show "reasonable cause" for it

public reporting

can get records if it can be shown relevant to investigation

hard to use and rarely used 

Already covered elsewhere so rarely used

specific for immigration purpose

Allows wiretaps to switch phone to phone. 

Have to make a deomstration that a terrorist is going to move phone to phone.

Where based on annoymous call, must also show w/in 10 days that you have the right, new phone. 

Pubic reporting requirement 

are administrate subpeonas

Can ask for things like:

1. telephone records

2. financial records

3. travel records

Do NOT HAVE TO DISCLOSE REQUEST