11

TERRORISM CASES: THE TERRORISM CASES: THE TENSION BETWEEN CRIMINAL PROSECUTIONTENSION BETWEEN CRIMINAL PROSECUTION

AND INTELLIGENCE GATHERINGAND INTELLIGENCE GATHERING

May 11, 2006May 11, 2006Cartagena, ColombiaCartagena, Colombia

Gregg N. SoferGregg N. SoferCounterterrorism Section Counterterrorism Section US Department of JusticeUS Department of Justice

22

COUNTERTERRORISM COUNTERTERRORISM SECTIONSECTION

Headquarters element of the Department of JusticeHeadquarters element of the Department of Justice–– Over 90 U.S. Attorneys OfficesOver 90 U.S. Attorneys OfficesResponsible for coordinating and prosecuting Responsible for coordinating and prosecuting terrorism cases in the United States court systemterrorism cases in the United States court systemApproximately 40 attorneysApproximately 40 attorneysWork with the intelligence community and the law Work with the intelligence community and the law enforcement communityenforcement communityWork with our foreign counterparts all over the worldWork with our foreign counterparts all over the world

33

U.S. Historic Approach to TerrorismU.S. Historic Approach to Terrorism

Traditionally, terrorism has been prosecuted Traditionally, terrorism has been prosecuted reactivelyreactively——after a terrorist event occursafter a terrorist event occurs

Following 9/11, the Justice DepartmentFollowing 9/11, the Justice Department’’s policy s policy is PREVENTIONis PREVENTION

44

STRATEGIC MISSION OF THE STRATEGIC MISSION OF THE U.S. JUSTICE DEPARTMENTU.S. JUSTICE DEPARTMENT

The National Security Strategy of the USAThe National Security Strategy of the USA

National Strategy for Combating TerrorismNational Strategy for Combating Terrorism•• Defeat, Deny, Diminish, DefendDefeat, Deny, Diminish, Defend

DOJ Strategic PlanDOJ Strategic Plan•• Prevent, disrupt, and defeat terrorist threats to the Prevent, disrupt, and defeat terrorist threats to the

United StatesUnited States•• Use all of our laws to disrupt, dismantle, Use all of our laws to disrupt, dismantle,

incapacitate and prosecute terroristsincapacitate and prosecute terrorists

55

How Can We Prevent an Attack?How Can We Prevent an Attack?

MILITARY DISRUPTIONMILITARY DISRUPTION

Kill or CaptureKill or CaptureLots of issues in United States these daysLots of issues in United States these daysWhen it works and it is appropriate, it is an When it works and it is appropriate, it is an excellent optionexcellent option

66

WORK WITH FOREIGN COUNTERPARTSWORK WITH FOREIGN COUNTERPARTS

Sometimes we can ask a foreign government to assist Sometimes we can ask a foreign government to assist us in disruptionus in disruption

We often work closely with our counterparts to assist We often work closely with our counterparts to assist prosecutions outside of the U.S.prosecutions outside of the U.S.

BUT BUT –– We lose some or all control over the outcome We lose some or all control over the outcome and we may have concerns about how our information and we may have concerns about how our information is handledis handled

How Can We Prevent an Attack?How Can We Prevent an Attack?

77

How Can We Prevent an Attack?How Can We Prevent an Attack?LOOK FOR LINKS LOOK FOR LINKS –– INFORMATION SHARINGINFORMATION SHARING

Greater use of intelligence and other sources of Greater use of intelligence and other sources of information that have not traditionally been used information that have not traditionally been used by prosecutors by prosecutors –– USA PATRIOT Act, Section 218 USA PATRIOT Act, Section 218 and 504and 504

““Connecting the dotsConnecting the dots””

88

How Can We Prevent an Attack?How Can We Prevent an Attack?PROSCUTION AS DISRUPTIONPROSCUTION AS DISRUPTION

Prosecute terrorist financing and material support: Prosecute terrorist financing and material support: Intervene Intervene beforebefore the terrorist actthe terrorist act

Use Use ““nonnon--terrorismterrorism”” legal tools: Social Security, legal tools: Social Security, False Statements, Tax, Immigration (The False Statements, Tax, Immigration (The ““Al Al CaponeCapone”” approach) approach)

99

LAW ENFORCEMENTLAW ENFORCEMENTTHE BIG QUESTION:THE BIG QUESTION:

DO WE CONTINUE TO INVESTIGATE DO WE CONTINUE TO INVESTIGATE AND/OR GATHER INTELLIGENCE?AND/OR GATHER INTELLIGENCE?

ORORDO WE ARREST AND PROSECUTE?DO WE ARREST AND PROSECUTE?

1010

CONCERNS:CONCERNS:

ALERT OTHERSALERT OTHERS

STRENGTH OF CASESTRENGTH OF CASE

SEVERITY OF PENALTYSEVERITY OF PENALTY

LACK OF INFORMATION:LACK OF INFORMATION:•• DONDON’’T REALLY KNOW WHAT ELSE IS GOING T REALLY KNOW WHAT ELSE IS GOING

ON ON –– COCO--CONSPIRATORS AND CONTACTSCONSPIRATORS AND CONTACTS

1111

OTHER PROBLEMS?OTHER PROBLEMS?SOURCES AND METHODSSOURCES AND METHODS

SOURCES AND METHODSSOURCES AND METHODSSOURCES AND METHODSSOURCES AND METHODS

1212

SENSITIVITIESSENSITIVITIES

Most of the terrorism cases we see in the Most of the terrorism cases we see in the United States involve United States involve somesome classified classified information information –– often because of the way often because of the way they are investigatedthey are investigated

Many terrorism cases have an Many terrorism cases have an international dimension and U.S. international dimension and U.S. prosecutors must be sensitive to the prosecutors must be sensitive to the foreign governmentforeign government’’s interestss interests

Has to be integrated into U.S. legal systemHas to be integrated into U.S. legal system

1313

THE UNITED STATES THE UNITED STATES LEGAL SYSTEMLEGAL SYSTEM

1414

Criminal Division and U.S. AttorneyCriminal Division and U.S. Attorney’’s Offices s Offices •• AntiAnti--Terrorism Advisory Councils (Terrorism Advisory Councils (ATACsATACs))

Office of Intelligence Policy Review (OIPR)Office of Intelligence Policy Review (OIPR)

Federal Bureau of Investigation (FBI)Federal Bureau of Investigation (FBI)•• Joint Terrorism Task Forces (NJTTF and JTTFs)Joint Terrorism Task Forces (NJTTF and JTTFs)

Central Intelligence Agency (CIA)Central Intelligence Agency (CIA)

National Security Agency (NSA)National Security Agency (NSA)

Defense Intelligence Agency (DIA)Defense Intelligence Agency (DIA)

State and Local Law Enforcement AgenciesState and Local Law Enforcement Agencies

KEY COUNTERTERRORISM KEY COUNTERTERRORISM PARTICIPANTS and PARTNERSPARTICIPANTS and PARTNERS

1515

KEY LEGISLATIVE KEY LEGISLATIVE AUTHORITIESAUTHORITIES

USA PATRIOT ActUSA PATRIOT Act

Foreign Intelligence Surveillance Act (FISA)Foreign Intelligence Surveillance Act (FISA)

Intelligence Reform and Terrorism Prevention Act Intelligence Reform and Terrorism Prevention Act (IRTPA)(IRTPA)

Material Support StatutesMaterial Support Statutes

Extraterritorial StatutesExtraterritorial Statutes

1616

USA PATRIOT ActUSA PATRIOT ActUSA PATRIOT ActUSA PATRIOT Act

•• Improves information sharingImproves information sharing

•• Stronger criminal laws Stronger criminal laws against terrorismagainst terrorism

White House PhotoBy Eric Draper

•• Enhances immigration and border protectionEnhances immigration and border protection

•• Provides support for terrorism victimsProvides support for terrorism victims

•• Addresses new technologies and threatsAddresses new technologies and threats

•• Increases government personnel and resourcesIncreases government personnel and resources

1717

Breaking Down Breaking Down ““The WallThe Wall””USA PATRIOT ActUSA PATRIOT Act

Section 203:Section 203:Before the USA PATRIOT Act, federal prosecutors Before the USA PATRIOT Act, federal prosecutors were prohibited from disclosing grand jury and were prohibited from disclosing grand jury and wiretap information to intelligence and national wiretap information to intelligence and national defense officials (unless such officials were actually defense officials (unless such officials were actually assisting with the criminal investigation) even if the assisting with the criminal investigation) even if the information indicated that terrorists were planning information indicated that terrorists were planning a future attack. a future attack. Section 203 of the USA PATRIOT Act permits Section 203 of the USA PATRIOT Act permits sharing of Title III and grand jury information sharing of Title III and grand jury information under certain specified circumstances.under certain specified circumstances.

Section 218:Section 218:Amends the FISA legal standard Amends the FISA legal standard –– now now ““significant significant purposepurpose””..

Section 504:Section 504:Permits Permits ““federal officersfederal officers”” to coordinate with federal to coordinate with federal law enforcement on electronic surveillance and law enforcement on electronic surveillance and physical searches.physical searches.

Section 905:Section 905:Mandates that foreign intelligence information Mandates that foreign intelligence information found in the course of a criminal investigation be found in the course of a criminal investigation be shared with the Director of the CIAshared with the Director of the CIA

1818

Breaking Down Breaking Down ““The WallThe Wall””MARCH 6, 2002 INTELLIGENCE SHARING PROCEDURESMARCH 6, 2002 INTELLIGENCE SHARING PROCEDURES

Requires "all relevant DOJ components," Requires "all relevant DOJ components," including prosecutors at Main Justice and in the including prosecutors at Main Justice and in the field, to be "fully informed" so that they are field, to be "fully informed" so that they are "free to offer advice and make "free to offer advice and make recommendations," including advice and recommendations," including advice and recommendations about the use of FISA itself recommendations about the use of FISA itself (e.g., nominate FISA targets). (e.g., nominate FISA targets).

FBI Agents may disseminate to criminal FBI Agents may disseminate to criminal prosecutors all relevant foreign intelligence prosecutors all relevant foreign intelligence information, including information obtained information, including information obtained from FISA.from FISA.

Prosecutors and criminal agents may advise FBI Prosecutors and criminal agents may advise FBI intelligence agents on all aspects of FI and FCI intelligence agents on all aspects of FI and FCI investigations.investigations.

1919

Foreign Intelligence SurveillanceForeign Intelligence Surveillance

FISA Court

For use in intelligence investigationsFor use in intelligence investigations

Allows for courtAllows for court--approved electronic and other approved electronic and other surveillance of persons suspected of acting as surveillance of persons suspected of acting as ““agents of a foreign power.agents of a foreign power.””

Enables the government to effectively pursue Enables the government to effectively pursue foreign intelligence and foreign terrorist foreign intelligence and foreign terrorist investigationsinvestigations

Probable cause standard different than in a criminal Probable cause standard different than in a criminal investigation investigation –– target is foreign power or agent of a foreign powertarget is foreign power or agent of a foreign power

Passed in 1978. Amended in 1994, 1998, and 2001.Passed in 1978. Amended in 1994, 1998, and 2001.

2020

Intelligence Reform &Intelligence Reform &Terrorism Prevention Act of 2004Terrorism Prevention Act of 2004

President George W. Bush puts his signature on S. 2845, The IntePresident George W. Bush puts his signature on S. 2845, The Intelligence lligence Reform and Terrorism Prevention Act of 2004, in Washington, D.C.Reform and Terrorism Prevention Act of 2004, in Washington, D.C., Dec. 17, , Dec. 17, 2004. 2004. –– www.whitehouse.orgwww.whitehouse.org

2121

Title VI: Terrorism PreventionTitle VI: Terrorism PreventionNew Criminal OffensesNew Criminal Offenses

•• Sec. 6602. Receiving militarySec. 6602. Receiving military--type training from a foreign type training from a foreign terrorist organization.terrorist organization.

•• Sec. 6702. Hoaxes and recovery costs.Sec. 6702. Hoaxes and recovery costs.

•• Sec. 6803. Participation in nuclear and weapons of mass Sec. 6803. Participation in nuclear and weapons of mass destruction threats to the United States.destruction threats to the United States.

•• Sec. 6903. Missile systems designed to destroy aircraft.Sec. 6903. Missile systems designed to destroy aircraft.

•• Sec. 6905. Radiological dispersal devices.Sec. 6905. Radiological dispersal devices.

•• Sec. 6906. Sec. 6906. VariolaVariola virus.(smallpoxvirus.(smallpox).).

2222

Material Support:Material Support:The List ApproachThe List Approach

Social wing & military wingSocial wing & military wing

Social wing provides support by Social wing provides support by winning hearts & minds through winning hearts & minds through social programssocial programs

Creates ready pool of volunteers Creates ready pool of volunteers for military wingfor military wing

United States policy United States policy –– no no distinction between support for distinction between support for social wing and support for social wing and support for material wingmaterial wing

2323

18 U.S.C. 18 U.S.C. §§ 2339B: Providing Material 2339B: Providing Material Support To Terrorist OrganizationsSupport To Terrorist Organizations

Whoever, within the United States or Whoever, within the United States or subject to the jurisdiction of the United subject to the jurisdiction of the United States, knowingly provides material States, knowingly provides material support or resources to a support or resources to a ““foreign foreign terrorist organizationterrorist organization””, or attempts or , or attempts or conspires to do so, commits a felonyconspires to do so, commits a felony

2424

What Is What Is ““Material Support Or ResourcesMaterial Support Or Resources””??

Currency or monetary instrumentsCurrency or monetary instruments

Financial securities & financial servicesFinancial securities & financial services

Lodging, training, expert advice/assistance, safe houses, Lodging, training, expert advice/assistance, safe houses,

false documentation or identificationfalse documentation or identification

Communications equipmentCommunications equipment

FacilitiesFacilities

Weapons, lethal substances and explosivesWeapons, lethal substances and explosives

Personnel, transportation and other physical assetsPersonnel, transportation and other physical assets

DOES NOT INCLUDE medicine or religious materialDOES NOT INCLUDE medicine or religious material

2525

18 U.S.C. 18 U.S.C. §§ 2339B: Providing Material 2339B: Providing Material Support To Terrorist OrganizationsSupport To Terrorist Organizations

Authorized the Secretary of State to designate Authorized the Secretary of State to designate an entity as a an entity as a ““foreign terrorist organizationforeign terrorist organization””((““FTOFTO””))

Providing material support or resources to an Providing material support or resources to an FTO, or attempting or conspiring to do so, is a FTO, or attempting or conspiring to do so, is a felonyfelony

Need not trace material support or resources to Need not trace material support or resources to a crimea crime

2626

What Is AWhat Is A““Foreign Terrorist OrganizationForeign Terrorist Organization””??

““Foreign terrorist organizationForeign terrorist organization”” is defined is defined as:as:

a foreign organization;a foreign organization;

that engages, or has the capability to that engages, or has the capability to engage, in terrorist activity;engage, in terrorist activity;

that threatens the national security of that threatens the national security of the United States or the security of U.S. the United States or the security of U.S. nationalsnationals

2727

FTO Facts:FTO Facts:

First designations in 1997First designations in 1997

Designation of group occurs only after exhaustive Designation of group occurs only after exhaustive interagency review process (may include classified interagency review process (may include classified material)material)

Designation is subject to judicial challenge by groupDesignation is subject to judicial challenge by group

42 groups, including aliases (e.g. al 42 groups, including aliases (e.g. al QaQa’’idaida, , KahaneKahaneChaiChai, United Self, United Self--Defense Forces of Columbia, a/k/a Defense Forces of Columbia, a/k/a ““AUCAUC””, etc.), etc.)

Not illegal to make payments to FTO prior to Not illegal to make payments to FTO prior to designationdesignation

2828

Foreign Terrorist OrganizationsForeign Terrorist OrganizationsAbu Abu NidalNidal Organization (ANO)Organization (ANO)Abu Abu SayyafSayyaf GroupGroupAlAl--AqsaAqsa Martyrs BrigadeMartyrs Brigadealal--Jihad (Egyptian Islamic Jihad)Jihad (Egyptian Islamic Jihad)alal--QaQa’’idaidaAnsarAnsar alal--IslamIslamArmed Islamic Group (GIA)Armed Islamic Group (GIA)AsbatAsbat alal--AnsarAnsarAumAum ShinrikyoShinrikyoBasque Fatherland and Liberty (ETA)Basque Fatherland and Liberty (ETA)Communist Party of the Philippines/ New Communist Party of the Philippines/ New

PeoplePeople’’s Armys ArmyContinuity Irish Republican Army (CIRA)Continuity Irish Republican Army (CIRA)GamaGama’’aa alal--IslamiyyaIslamiyya (Islamic Group)(Islamic Group)HAMAS (Islamic Resistance Movement)HAMAS (Islamic Resistance Movement)HarakatHarakat ulul--MujahideenMujahideen (HUM)(HUM)HizballahHizballah (Party of God)(Party of God)Islamic Jihad GroupIslamic Jihad GroupIslamic Movement of Uzbekistan (IMU)Islamic Movement of Uzbekistan (IMU)JaishJaish--ee--MohammedMohammed (JEM) (Army of (JEM) (Army of

Mohammed)Mohammed)JemaahJemaah IslamiyaIslamiya

alal--Jihad (Egyptian Islamic Jihad)Jihad (Egyptian Islamic Jihad)KahaneKahane ChaiChai ((KachKach))

KongraKongra--Gel (KGK, Gel (KGK, FomerlyFomerly Kurdistan Kurdistan WorkersWorkers’’ Party (PKK))Party (PKK))

LashkarLashkar--ee TayyibaTayyiba (LT) (Army of the (LT) (Army of the Righteous)Righteous)

LashkarLashkar I I JhangviJhangviLiberation Tigers of Tamil Liberation Tigers of Tamil EelamEelam (LTTE)(LTTE)Libyan Islamic Fighting Group (LIFG)Libyan Islamic Fighting Group (LIFG)Moroccan Islamic Combatant Group (GICM)Moroccan Islamic Combatant Group (GICM)MuhahedinMuhahedin--ee KhalqKhalq Organization (MEK)Organization (MEK)National Liberation Army (ELN)National Liberation Army (ELN)Palestine Liberation Front (PLF)Palestine Liberation Front (PLF)Palestinian Islamic Jihad (PIJ)Palestinian Islamic Jihad (PIJ)Popular Front for the Liberation of Palestine Popular Front for the Liberation of Palestine

(PFLP)(PFLP)PFLPPFLP-- General Command (PFLPGeneral Command (PFLP--GC)GC)Real IRAReal IRARevolutionary Armed Forces of Colombia Revolutionary Armed Forces of Colombia

(FARC)(FARC)Revolutionary Nuclei (ELA)Revolutionary Nuclei (ELA)Revolutionary Organization 17 NovemberRevolutionary Organization 17 NovemberRevolutionary PeopleRevolutionary People’’s Liberation s Liberation

Army/Front (DHKP/C)Army/Front (DHKP/C)SalafistSalafist Group for Call and Combat (GSPC)Group for Call and Combat (GSPC)Shining Path (Shining Path (SenderoSendero LuminosoLuminoso, SL), SL)

TanzimTanzim QaQa’’idatidat alal--Jihad Jihad fifi BiladBilad alal--RafidaynRafidayn(QJBR) (al(QJBR) (al--QaidaQaida in Iraq) in Iraq)

United SelfUnited Self--Defense Forces of Colombia Defense Forces of Colombia (AUC)(AUC)

http://www.state.gov/s/ct/rls/fs/37191.htmhttp://www.state.gov/s/ct/rls/fs/37191.htm

2929

Other ListsOther Lists

Specially Designated Nationals (SDN)Specially Designated Nationals (SDN)

Terrorist Exclusion List (TEL)Terrorist Exclusion List (TEL)

Executive Order 13224Executive Order 13224

State Sponsors of TerrorismState Sponsors of Terrorism

3030

18 U.S.C. 18 U.S.C. §§ 2339A: Providing Material Support 2339A: Providing Material Support To Terrorists (NonTo Terrorists (Non--List Approach)List Approach)

Whoever provides material support or resources, or Whoever provides material support or resources, or conspires or attempts to do so, knowing or intending conspires or attempts to do so, knowing or intending that they are to be used:that they are to be used:

a. in preparation for or the carrying out a. in preparation for or the carrying out ““a federal a federal crime of terrorismcrime of terrorism”” commits a felony; orcommits a felony; or

b. in preparation for, or in carrying out, the b. in preparation for, or in carrying out, the concealment of an escape from the commission of a concealment of an escape from the commission of a ““federal crime of terrorismfederal crime of terrorism”” commits a felonycommits a felony

3131

18 U.S.C. 18 U.S.C. §§ 2339A:2339A:Enforcement Challenges:Enforcement Challenges:

Tracing material support or resources, especially Tracing material support or resources, especially currency, to ultimate recipientcurrency, to ultimate recipient

Tracing material support or resources, especially Tracing material support or resources, especially currency, to specific currency, to specific ““federal crime of terrorismfederal crime of terrorism””

Proving that donor intended to provide material Proving that donor intended to provide material support or resources for specific support or resources for specific ““federal crime of federal crime of terrorismterrorism””

Countering claim that material support or Countering claim that material support or resources were intended for benevolent purposesresources were intended for benevolent purposes

3232

BROAD SCOPE OF U.S.BROAD SCOPE OF U.S.EXTRATERRITORIAL CRIMINAL LAWS EXTRATERRITORIAL CRIMINAL LAWS

October 1983 bombing of the U.S. Marines October 1983 bombing of the U.S. Marines barracks in Beirut, Lebanon.barracks in Beirut, Lebanon.

When a truck bomb killed 241 U.S. When a truck bomb killed 241 U.S. Marines, sailors and soldiers, U.S. criminal Marines, sailors and soldiers, U.S. criminal law did not cover this type of law did not cover this type of extraterritorial terrorist activity.extraterritorial terrorist activity.

Since the midSince the mid--1980s, the scope of U.S. 1980s, the scope of U.S. criminal law has expanded, adding a long criminal law has expanded, adding a long list of crimes with extraterritorial reach.list of crimes with extraterritorial reach.

Since September 11, 2001, the Since September 11, 2001, the extraterritorial scope of U.S. criminal laws extraterritorial scope of U.S. criminal laws has expanded even further.has expanded even further.

3333

Acts of Terrorism (Attempt and Conspiracy Included)Acts of Terrorism (Attempt and Conspiracy Included)

Hostage taking (18 U.S.C. Hostage taking (18 U.S.C. §§ 1203)1203)

Crimes against internationally protected persons (murder of Crimes against internationally protected persons (murder of diplomats) (18 U.S.C. diplomats) (18 U.S.C. §§ 1116)1116)

Murder of a U.S. national outside the U.S. (18 U.S.C. Murder of a U.S. national outside the U.S. (18 U.S.C. §§ 2332 (b))2332 (b))

Conspiracy to kill, kidnap, maim, or injure persons or damage Conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country (18 U.S.C. property in a foreign country (18 U.S.C. §§ 956)956)

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

Aircraft Piracy (49 U.S.C. Aircraft Piracy (49 U.S.C. §§ 46502)46502)

Examples of Extraterritorial StatutesExamples of Extraterritorial Statutes

3434

Examples of Extraterritorial StatutesExamples of Extraterritorial StatutesActs of Terrorism (Attempt and Conspiracy Included)Acts of Terrorism (Attempt and Conspiracy Included)

Destruction of aircraft or aircraft facilities (18 U.S.C. Destruction of aircraft or aircraft facilities (18 U.S.C. §§ 3232))

Mailing threatening communications (18 U.S.C. Mailing threatening communications (18 U.S.C. §§ 876)876)

Destruction of an energy facility (18 U.S.C. Destruction of an energy facility (18 U.S.C. §§1366)1366)

Arson and bombing of Government property (18 U.S.C. Arson and bombing of Government property (18 U.S.C. §§ 844(f)(2) or 844(f)(2) or (3)(3)))

Criminal laws passed in conjunction with international conventioCriminal laws passed in conjunction with international conventions ns or agreementsor agreements

3535

Legal Elements Of Crimes Legal Elements Of Crimes Of Conspiracy And AttemptOf Conspiracy And Attempt

ConspiracyConspiracy

An agreement, formal or informal, to accomplish someAn agreement, formal or informal, to accomplish someunlawful objectiveunlawful objective

Knowingly joined in by the defendantKnowingly joined in by the defendant

An overt act in furtherance of the conspiracyAn overt act in furtherance of the conspiracy

AttemptAttempt

Intent to commit an unlawful actIntent to commit an unlawful act

Some act which constitutes a Some act which constitutes a ““substantial stepsubstantial step”” toward toward accomplishing the unlawful objectiveaccomplishing the unlawful objectiveUN convention on terrorism financing UN convention on terrorism financing ––funds do not funds do not have to have to be actually used to carry out offensebe actually used to carry out offense

3636

Information Collection ToolsInformation Collection ToolsFISAFISATitle III InterceptTitle III InterceptConsensual RecordingsConsensual RecordingsTitle 18 Pen Register/Title 18 Pen Register/

Trap and Trace OrderTrap and Trace OrderRule 41 Search WarrantRule 41 Search Warrant2703 Court Order2703 Court Order

National Search WarrantNational Search WarrantNational Security LetterNational Security LetterGrand Jury SubpoenaGrand Jury SubpoenaMail CoversMail CoversTax informationTax information

Image from: Air Force Research Laboratory

3737

What to Use & When:What to Use & When:A Comparative AnalysisA Comparative Analysis

FISA v. Title III InterceptFISA v. Title III Intercept

Consensual RecordingsConsensual Recordings

FISA v. Title 18 Pen Register/Trap and Trace OrderFISA v. Title 18 Pen Register/Trap and Trace Order

FISA v. Rule 41 Search WarrantFISA v. Rule 41 Search Warrant

National Security Letter v. Grand Jury SubpoenaNational Security Letter v. Grand Jury Subpoena

Many times the choice dictates whether or not a prosecution Many times the choice dictates whether or not a prosecution will have to deal with classified information.will have to deal with classified information.

3838

THE U.S. COURT SYSTEMTHE U.S. COURT SYSTEM

CONSTITUTIONAL AND STATUTORY CONSTITUTIONAL AND STATUTORY REQUIREMENTS:REQUIREMENTS:•• Confrontation ClauseConfrontation Clause•• DiscoveryDiscovery•• HearsayHearsay•• Probable Cause to Arrest or SearchProbable Cause to Arrest or Search•• None of This Affected by Terrorism or None of This Affected by Terrorism or

Ticking BombTicking Bomb•• No Separate Court System No Separate Court System –– Public TrialPublic Trial

3939

BUT ALL IS NOT LOST!BUT ALL IS NOT LOST!

WE ARE MAKING THIS WORK IN WE ARE MAKING THIS WORK IN MANY CASESMANY CASES

THE CLASSIFIED INFORMATION THE CLASSIFIED INFORMATION PROCEDURES ACT (CIPA) ADDRESSES PROCEDURES ACT (CIPA) ADDRESSES THE BALANCE THAT MUST BE STRUCK THE BALANCE THAT MUST BE STRUCK BETWEEN THE RIGHTS OF A CRIMNAL BETWEEN THE RIGHTS OF A CRIMNAL DEFENDANT AND THE UNITED DEFENDANT AND THE UNITED STATESSTATES’’ NATIONAL SECURITY NATIONAL SECURITY INTERESTSINTERESTS

4040

Classified Information Procedures ActClassified Information Procedures Act(CIPA)(CIPA)

Enacted in 1981 to counter Enacted in 1981 to counter ““greymailgreymail”” problemproblemProvides for the pretrial litigation of the Provides for the pretrial litigation of the discoverability admissibility and use at trial of discoverability admissibility and use at trial of classified informationclassified informationProcedural statute; does not alter the rules Procedural statute; does not alter the rules regarding discovery and admissibilityregarding discovery and admissibilityProvides several important and unique tools to Provides several important and unique tools to protect against the unauthorized disclosure of protect against the unauthorized disclosure of classified information in litigation. classified information in litigation.

4141

CIPA StructureCIPA StructureProcedural SectionsProcedural Sections•• Section 2 = Pretrial ConferenceSection 2 = Pretrial Conference•• Section 3 = Protective OrdersSection 3 = Protective Orders•• Section 4 = Discovery of Classified Information by Section 4 = Discovery of Classified Information by

the Defensethe Defense•• Section 5 = Notice of intent to disclose classified Section 5 = Notice of intent to disclose classified

informationinformation•• Section 6 = Use of Classified Information at TrialSection 6 = Use of Classified Information at Trial•• Section 7= Interlocutory AppealSection 7= Interlocutory Appeal•• Section 8 = Introduction of Classified InformationSection 8 = Introduction of Classified Information•• Section 9 = Security ProceduresSection 9 = Security Procedures•• Section 10 = Identification of Information Section 10 = Identification of Information

““Relating to the National DefenseRelating to the National Defense””

4242

MOST IMPORTANT:MOST IMPORTANT:

CIPA ALLOWS THE GOVERNMENT CIPA ALLOWS THE GOVERNMENT TO KNOW TO KNOW BEFOREBEFORE CLASSIFIED CLASSIFIED INFORMATION IS DISCLOSED IN A INFORMATION IS DISCLOSED IN A TRIAL WHAT THE COST OF GOING TRIAL WHAT THE COST OF GOING FORWARD IS!FORWARD IS!

WE CAN DECIDE TO DISMISS WE CAN DECIDE TO DISMISS CHARGES OR THE ENTIRE CASE IF CHARGES OR THE ENTIRE CASE IF NECESSARY NECESSARY –– NO SURPRISES!NO SURPRISES!

4343

Discovery and CIPA:Discovery and CIPA:When does the case involve classified information?When does the case involve classified information?

ItIt’’s part of your case (e.g. espionage)s part of your case (e.g. espionage)ItIt’’s part of the context (e.g. terrorism)s part of the context (e.g. terrorism)Advised by investigative agencyAdvised by investigative agencyAdvised by defense counsel, defendant Advised by defense counsel, defendant or witnessor witnessPrudential searchPrudential search

4444

Prudential SearchPrudential SearchBy rule, the prosecutor must make available to the defense: By rule, the prosecutor must make available to the defense: information about the defendantinformation about the defendant’’s prior oral and written s prior oral and written statements to law enforcement, physical evidence, reports of statements to law enforcement, physical evidence, reports of examinations and tests and expert opinions. examinations and tests and expert opinions.

The prosecutor must disclose all exculpatory evidence and The prosecutor must disclose all exculpatory evidence and information to the defense.information to the defense.

At trial, the prosecution must disclose evidence and informationAt trial, the prosecution must disclose evidence and informationthat impeaches, or undermines, the credibility of a witness, or that impeaches, or undermines, the credibility of a witness, or information that might give the witness a reason to be biased ininformation that might give the witness a reason to be biased infavor of the government favor of the government ––such as fees or benefits received.such as fees or benefits received.

At trial, the prosecution must also disclose all prior statementAt trial, the prosecution must also disclose all prior statements s made by the witness concerning the subject of the testimony.made by the witness concerning the subject of the testimony.

4545

Section 1 Section 1 -- DefinitionsDefinitions

““Classified InformationClassified Information”” means any means any information or material that has been information or material that has been determined by the US Government determined by the US Government pursuant to an Executive order, statute, or pursuant to an Executive order, statute, or regulations, to require protection against regulations, to require protection against unauthorized disclosure for reasons of unauthorized disclosure for reasons of national security and any restricted data, national security and any restricted data, as defined in the Atomic Energy Act of as defined in the Atomic Energy Act of 1954.1954.

4646

Section 2 Section 2 -- Pretrial ConferencePretrial Conference

Anytime after filing of indictment or Anytime after filing of indictment or information, any party may move for information, any party may move for pretrial conference to consider matters pretrial conference to consider matters relating to classified informationrelating to classified informationCourt may act Court may act suasua spontesponte

4747

Section 3 Section 3 -- Protective OrderProtective OrderUpon motion of the US Government, the court SHALL issue an orderUpon motion of the US Government, the court SHALL issue an orderto protect against the disclosure of any classified information to protect against the disclosure of any classified information disclosed by the US Government to any defendant in any criminal disclosed by the US Government to any defendant in any criminal case in a US district court.case in a US district court.

Contents:Contents:security clearances for all persons who will have access to security clearances for all persons who will have access to classified information, including defense teamclassified information, including defense teamprohibit disclosure of any classified information to anyone prohibit disclosure of any classified information to anyone without appropriate court authorization, clearance and needwithout appropriate court authorization, clearance and need--toto--knowknowexplain requirements for storage, access, and use of classified explain requirements for storage, access, and use of classified informationinformationappoint a courts security officer (appoint a courts security officer (csocso))makes violation punishable as contempt, 18 U.S.C. makes violation punishable as contempt, 18 U.S.C. §§ 401401

4848

Section 3 Section 3 –– Protective OrderProtective Order

Can the court require a security clearance Can the court require a security clearance for defense counsel?for defense counsel?•• Yes.Yes.

US v. Bin Laden, 58 F. Supp. 2d 113 (SDNY 1999); compare US US v. Bin Laden, 58 F. Supp. 2d 113 (SDNY 1999); compare US v. v. JolliffJolliff, 548 F. Supp. 232 (, 548 F. Supp. 232 (D.MdD.Md. 1981).. 1981).

Can the court require a security clearance Can the court require a security clearance for court personnel?for court personnel?•• Yes, except for the Judge.Yes, except for the Judge.

US v. Smith, 899 F.2d 564, 568US v. Smith, 899 F.2d 564, 568--69 (6th Cir. 1990). 69 (6th Cir. 1990).

4949

Section 4 Section 4 -- DiscoveryDiscoveryUpon a specific showing by the United States, the Court may Upon a specific showing by the United States, the Court may authorize the United States to:authorize the United States to:•• Redact or withhold documents, orRedact or withhold documents, or•• Substitute a summary of the classified information, orSubstitute a summary of the classified information, or•• Substitute a statement admitting the relevant facts that the Substitute a statement admitting the relevant facts that the

classified information out tend to prove.classified information out tend to prove.

Substitutions are preferred by the Intelligence CommunitySubstitutions are preferred by the Intelligence Community•• Often eliminates need to produce actual classified Often eliminates need to produce actual classified

information to defendantinformation to defendant•• Much easier and quicker to produce than the actual classified Much easier and quicker to produce than the actual classified

documentsdocuments•• Usually more focused and arguably more helpful to the Usually more focused and arguably more helpful to the

defense. defense.

5050

Section 4 Section 4 -- DiscoveryDiscoveryThe Court may permit the United States to make its The Court may permit the United States to make its request in the form of a statement submitted in camera request in the form of a statement submitted in camera and ex parte.and ex parte.

If the Court grants the GovernmentIf the Court grants the Government’’s motion following s motion following an ex parte showing, the entire text of the statement of an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the the United States shall be sealed and preserved in the records of the court for appeal.records of the court for appeal.

Section 4 NOT limited to pretrial discovery, but Section 4 NOT limited to pretrial discovery, but includes discovery during trial. US v. Oincludes discovery during trial. US v. O’’Hara, 301 F.3d Hara, 301 F.3d 563 (7th Cir. 2002).563 (7th Cir. 2002).

In ruling the on the governmentIn ruling the on the government’’s motion to limit, s motion to limit, restrict or deny discovery, the court may engage in restrict or deny discovery, the court may engage in balancing. S. Rep. 823 at 6, reprinted in Code Cong. & balancing. S. Rep. 823 at 6, reprinted in Code Cong. & Admin News, 4299Admin News, 4299--4300. 4300.

5151

Section 4 Section 4 –– DiscoveryDiscovery

CIPA 4 not intended to change any of the CIPA 4 not intended to change any of the substantive rules of discovery.substantive rules of discovery.

HoweverHowever……““While CIPA creates no new While CIPA creates no new rule[srule[s]]……, the , the procedures it mandates protect a government procedures it mandates protect a government privilege in classified information similar to an privilege in classified information similar to an informantinformant’’s privileges privilege…”…” US v. US v. YunisYunis, 867 F.2d , 867 F.2d 617 (DC Cir. 1989) 617 (DC Cir. 1989)

5252

Section 4 Section 4 –– DiscoveryDiscovery

““We hold, in short, that classified information We hold, in short, that classified information is not discoverable on a mere showing of is not discoverable on a mere showing of theoretical relevance in the face of the theoretical relevance in the face of the governmentgovernment’’s classified information privilege, s classified information privilege, but that the threshold for discovery in this but that the threshold for discovery in this context further requires that a defendant context further requires that a defendant seeking classified information, like a seeking classified information, like a defendant seeking the informantdefendant seeking the informant’’s identity in s identity in RoviaroRoviaro, is entitled only to information that is , is entitled only to information that is at least at least ““helpful to the defense of the accusedhelpful to the defense of the accused..””YunisYunis at 622. at 622.

5353

Section 4 Section 4 -- DiscoveryDiscovery

The purpose of CIPA is to The purpose of CIPA is to ““protec[tprotec[t] and ] and restric[trestric[t] the discovery of classified ] the discovery of classified information in a way that does not information in a way that does not impair the defendant's right to a fair impair the defendant's right to a fair trial.trial.”” US v. OUS v. O’’Hara, 301 F.3d 563, 568 Hara, 301 F.3d 563, 568 (7th Cir. 2002).(7th Cir. 2002).

5454

Section 5 Section 5 -- NoticeNotice

The defendant must provide the prosecutor The defendant must provide the prosecutor and court written notice of the classified and court written notice of the classified informationinformation•• he expects to disclose, orhe expects to disclose, or•• reasonably expects to cause the disclosure ofreasonably expects to cause the disclosure of

in connection with any trial or pretrial in connection with any trial or pretrial proceedingproceedingwithin the time specified by the court or 30 within the time specified by the court or 30 days prior to trial days prior to trial Defendant has a continuing duty to notifyDefendant has a continuing duty to notify

5555

Section 6 Section 6 -- Use at TrialUse at TrialSection 6(a) Section 6(a) -- Motion for HearingMotion for Hearing

United States may move for a hearing to make all determinations United States may move for a hearing to make all determinations concerning concerning --•• useuse•• relevancerelevance•• admissibilityadmissibility

of classified information that would otherwise be made during of classified information that would otherwise be made during trial or pretrial proceeding.trial or pretrial proceeding.

When the motion is made pretrial, the court shall rule pretrial.When the motion is made pretrial, the court shall rule pretrial.

All or a portion of the Section 6(a) hearing shall be held in caAll or a portion of the Section 6(a) hearing shall be held in camera mera if the Attorney General certifies a public proceeding may resultif the Attorney General certifies a public proceeding may result in in the disclosure of classified information.the disclosure of classified information.

AG certification usually based on a letter or declaration from tAG certification usually based on a letter or declaration from the he agency originating the classified information.agency originating the classified information.

5656

Section 6 Section 6 -- SubstitutionsSubstitutions

There are many ways to say something in There are many ways to say something in an unclassified manner.an unclassified manner.Replace a specific country with Replace a specific country with ““Country Country AA”” or or ““a Middle East location.a Middle East location.””Government has used the substitution Government has used the substitution provisions of section 6 affirmatively to provisions of section 6 affirmatively to protect the identity of/sensitive protect the identity of/sensitive information concerning witnesses from information concerning witnesses from disclosure at trial. disclosure at trial.

5757

Section 6 Section 6 –– The CourtThe Court’’s Optionss Options

If the Court orders disclosure/use and the government If the Court orders disclosure/use and the government refuses, the Court SHALLrefuses, the Court SHALL----dismiss the indictment, ordismiss the indictment, orwhen the interests of justice would not be served by when the interests of justice would not be served by dismissaldismissalorder order ““such other actionsuch other action”” as the court determines as the court determines appropriateappropriate

““Such Other ActionSuch Other Action”” includesincludesdismissing only certain countsdismissing only certain countsfinding against the United States on any issue to which finding against the United States on any issue to which the classified information relates; orthe classified information relates; orstriking or precluding certain testimonystriking or precluding certain testimony

5858

Section 7 Section 7 -- Interlocutory AppealInterlocutory Appeal

The United States may take an The United States may take an interlocutory appeal of any orderinterlocutory appeal of any order•• authorizing the disclosure of classified authorizing the disclosure of classified

information;information;•• imposing sanctions for nondisclosure of imposing sanctions for nondisclosure of

classified information; orclassified information; or•• Refusing to issue a protective order.Refusing to issue a protective order.

The appeal shall be expedited.The appeal shall be expedited.

5959

Section 8 Section 8 -- Introduction of Introduction of Classified InformationClassified Information

TestimonyTestimonyThe United States may object to any line of The United States may object to any line of testimony that might result in a classified testimony that might result in a classified disclosure.disclosure.The Court may take The Court may take ““suitable actionsuitable action”” to to determine if the response would be classifieddetermine if the response would be classifiedThe Court may require The Court may require ----•• The Government to proffer the expected testimony.The Government to proffer the expected testimony.•• The Defense to proffer the nature of the information The Defense to proffer the nature of the information

to be elicited.to be elicited.

6060

Section 9 Section 9 -- Security ProceduresSecurity Procedures

The Chief Justice of the U.S. Supreme The Chief Justice of the U.S. Supreme CourtCourtIn consultation with the In consultation with the •• Attorney GeneralAttorney General•• Director of Central Intelligence, andDirector of Central Intelligence, and•• Secretary of DefenseSecretary of Defense

Prescribe rules to protect classified Prescribe rules to protect classified information in the custody of Article III information in the custody of Article III courts.courts.These rules are often incorporated into a These rules are often incorporated into a CIPA protective order.CIPA protective order.

6161

WE CAN BUILD WE CAN BUILD CASES TO AVOID CASES TO AVOID

THIS PROBLEMTHIS PROBLEM

PATRIOT ACT PATRIOT ACT –– Early Law Enforcement Early Law Enforcement InvolvementInvolvement•• Parallel Criminal InvestigationParallel Criminal Investigation•• Sting or Other IllegalitySting or Other Illegality•• Preserve the Option of Criminal ProsecutionPreserve the Option of Criminal Prosecution

Choose criminal investigative means.Choose criminal investigative means.

We might know we are willing to disclose We might know we are willing to disclose certain information in exchange for the certain information in exchange for the opportunity to arrest and disrupt.opportunity to arrest and disrupt.

6262

TYPES OF CHARGESTYPES OF CHARGES

ConspiracyConspiracyAttemptAttemptSolicitationSolicitationMoney LaunderingMoney LaunderingImmigrationImmigrationFalse StatementsFalse StatementsRICORICO

ALL OF THESE MAY HELP US AVOID HAVING TO ALL OF THESE MAY HELP US AVOID HAVING TO USE CERTAIN INTELLIGENCE AND/OR EXPOSE USE CERTAIN INTELLIGENCE AND/OR EXPOSE

OUR SOURCES AND METHODSOUR SOURCES AND METHODS

6363

SOMETIMES WE JUST KNOW SOMETIMES WE JUST KNOW WE CANWE CAN’’T USE THIS OPTIONT USE THIS OPTION

Often, criminal prosecution is simply not a Often, criminal prosecution is simply not a good idea or cangood idea or can’’t be done!t be done!

6464

HOW THIS WORKS:HOW THIS WORKS:Case Example: Case Example: ““StingSting””

Facts:Facts:Intelligence indicates that an individual Intelligence indicates that an individual

living in the U.S. has ties to Al Qaedaliving in the U.S. has ties to Al Qaeda

U.S. Government cannot use this evidence U.S. Government cannot use this evidence in its casein its case--inin--chief because it ischief because it is……1. too sensitive1. too sensitive2. evidentiary foundation2. evidentiary foundation

6565

Case Example: Case Example: ““StingSting””

Options:Options:Monitor the individual and waitMonitor the individual and wait(resource problems)(resource problems)

Take the Take the ““Al CaponeAl Capone”” approachapproach(may not be doing anything that we can (may not be doing anything that we can charge, penalty insignificant)charge, penalty insignificant)

Actively go out and try to Actively go out and try to ““stingsting””the targetthe target

6666

Case Example: Case Example: ““StingSting””

Option C (Sting) Succeeds:Option C (Sting) Succeeds:

Undercover agent succeeds in developing a case in Undercover agent succeeds in developing a case in which target conspires with others to provide which target conspires with others to provide $500,000 to $500,000 to JemaahJemaah IslamiyaIslamiya

Investigation purposefully avoided using Al Qaeda Investigation purposefully avoided using Al Qaeda in order to avoid the complicated discovery in order to avoid the complicated discovery obligations related to the known intelligenceobligations related to the known intelligence

6767

Case Example: Case Example: ““StingSting””

The defense argues entrapment (i.e. the agent induced the The defense argues entrapment (i.e. the agent induced the target to commit the crime).target to commit the crime).

At trial the prosecution will be able to rebut the At trial the prosecution will be able to rebut the entrapment defense with evidence that the defendant entrapment defense with evidence that the defendant was predisposed to commit the crime.was predisposed to commit the crime.

6868

Case Example: Case Example: ““StingSting””Classified InformationClassified Information

Detainee StatementsDetainee StatementsFISA Electronic SurveillanceFISA Electronic SurveillanceCovert intelligence officer recovered a documentCovert intelligence officer recovered a documentIntelligence from a foreign countryIntelligence from a foreign countryAnother Related Investigation Another Related Investigation –– CanCan’’t yet prosecutet yet prosecute

The defense asks for all of this in discovery.The defense asks for all of this in discovery.

Rule 16 and Jencks.Rule 16 and Jencks.

Government also has obligation to search for all Government also has obligation to search for all exculpatory information.exculpatory information.

What does the government do?What does the government do?

6969

QUESTIONS?QUESTIONS?