Since the September 11, 2001 attacks on the United States, the nation’s counter-terrorism strategy consists of using both military force and law enforcement methods to prevent, disrupt, neutralize, and punish terrorists and those who support terrorism.[1]
The Roles of Government in Counter-terrorism
All three branches of government collaborate in applying the law enforcement paradigm to stop terrorism and ensure the integrity of the rule of law. First is the legislative branch. Congress enacts federal laws criminalizing terrorism and the support of terrorism. These laws authorize the executive and judicial branches of government to apply the law enforcement paradigm to counter-terrorism.
Second is the executive branch. The Constitution of the United States obligates the President and executive branch employees to faithfully execute laws governing counter-terrorism. The primary departments that enforce laws to combat terrorism are the Departments of Justice, State, Homeland Security and Treasury. Counter-terrorism roles and missions are further developed and defined by inter-agency collaboration. The intelligence community, consisting of the Central Intelligence Agency and the National Security Agency, provide support and work with the principal investigative agency, the Federal Bureau of Investigation.
Finally, the judicial branch determines legal rights and duties of all involved parties. Courts are the forum for prosecuting alleged terrorists, though they must also balance the interests of the government and rights of the accused.
In this module, we will identify the counter-terrorism roles and missions of agencies and departments that operate under the law enforcement paradigm and we will then examine and evaluate specific tools in their arsenals.
Executive departments and agencies involved in law enforcement play specialized counter-terrorism roles and undertake missions established by statutes, executive orders, and presidential and inter-agency decisions. Let’s examine the roles of these departments and agencies.
The State Department determines which groups qualify as terrorist organizations and cooperates internationally in counter-terrorism. The FBI and National Security Administration use investigative techniques to identify and monitor terrorists. The Department of Homeland Security prevents terrorists from entering or staying in the United States. The Department of Justice detains and prosecutes terrorists and their supporters. Finally, the Department of Treasury cuts off sources financing terrorism.
Although these departments and agencies have unique roles and missions, they collaborate in applying the tools and resources available to government to prevent and punish terrorism. In practice, the law enforcement paradigm consists of eight counter-terrorism functions:
(1) designation of a group as a foreign terrorist organization;
(2) immigration control and deportation;
(3) surveillance;
(4) profiling;
(5) detention;
(6) extradition; and
(7) prosecution.
Foreign Terrorist Organizations
Section 219 of the Immigration and Nationality Act permits the State Department to designate a group as a “foreign terrorist organization” when it finds all of the following elements:
(1) the organization is a foreign entity;
(2) the organization engages in terrorist activity, terrorism, or material
support of terrorism, or retains the capacity and intent to engage in terrorism; and
(3) the terrorist activity or terrorism threatens the security of U.S. citizens or the
national security of the United States.[2]
The Secretary of State consults with the Attorney General to apply these criteria to compile a list of questionable organizations and to then designate foreign terrorist organizations. Groups designated as foreign terrorist organizations include al-Qaeda, ISIS, Hamas, the Irish Republican Army, the Revolutionary Armed Forces of Colombia and over fifty others.[3]
Anyone who supports a group designated as a foreign terrorist organization is put “on notice.” Supporting one in any way is illegal and the U.S. government can block foreign terrorist organization funds that are in the control of United States financial institutions. Title 8, Section 1189(a)(8) prohibits a criminal defendant from challenging a designation because Congress intended to delegate this exclusive power to the Secretary of State to make a designation and to remove the subject from judicial review.[4]
For example, In United States v. Hammoud, a Lebanese national appealed his conviction for providing cash and equipment to Hezbollah, a designated foreign terrorist organization. He claimed that the prohibition against challenging the State Department’s designation of Hezbollah violated his Constitutional right to a jury determination of guilt on every element of the charged offense. The Fourth Circuit found that the question of whether the designation of Hezbollah as a foreign terrorist organization was valid was expressly precluded from judicial review by statute.[5]
While a criminal defendant may not challenge the designation, the organization itself may challenge its own designation, but getting the designation reversed in court is difficult. A court can only reverse a designation if it is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” Moreover, the organization does not have the right to be informed of the precise nature of the evidence against it. The court renders its decision based solely on the “administrative record” that was created unilaterally by the Department of State. A designation may be set aside if it lacks “substantial support in the administrative record as a whole or in classified information submitted to the court.” [6]
Immigration Control and Deportation
Any non-citizen who engages in, incites, endorses, or persuades others to engage in terrorism, is a member of a foreign terrorist organization, or is likely to engage in terrorism if admitted to the U.S., is inadmissible under the Immigration and Nationality Act.[7]
Recently, the United States denied an entry visa to Gerry Adams, an Irish national and president of the Irish Republican Army, an organization that had engaged in terrorism in the United Kingdom, because of Adams’ advocacy of and personal involvement in terrorism. The Fourth Circuit upheld the denial of Adams’ visa, holding the State Department’s determination that Adams’ advocacy of and personal involvement with IRA terrorist violence was a legitimate, good-faith reason for denial.[8]
Additionally, aliens whom the Department of Justice believes are a danger to the security of the United States, have engaged in or are likely to engage in terrorism or are members of a foreign terrorist organization, can be denied asylum and deported.[9]
Moreover, a court cannot review a determination that an alien is removable on this basis.[10] Mouloud Bellout, an Algerian citizen and member of the Armed Islamic Group, a State Department listed foreign terrorist organization, attempted to enter the U.S. at Los Angeles International Airport using a fraudulent Belgian passport. After the agency now known as Immigration and Customs Enforcement initiated removal proceedings, Bellout applied for asylum and petitioned to stop the deportation, alleging that he would be tortured by Algerian police or terrorists if he were deported to Algeria. The Ninth Circuit held that it lacked jurisdiction to review Bellout’s claims because the relevant statute prohibited judicial review, deferring to the determination by the Attorney General that Bellout was a “danger to the security of the United States” based on his membership in a foreign terrorist organization.[11]
Methods of Identifying Terrorists
Surveillance
The USA PATRIOT Act,[12] enacted in the wake of the 9/11 attacks, enhanced the federal government’s authority to conduct surveillance, intercept communications and gather information to prevent terrorism and prosecute terrorists. Various sections of the Act allow the federal government to:
- seize records from internet service providers and libraries on an FBI certification that the records are sought in connection with a foreign intelligence investigation;[13]
- conduct broad electronic surveillance of suspected terrorists as part of foreign counterintelligence operations;
- share information collected on a terrorist suspect with prosecutors provided there is “no substantial likelihood” that communications of a “U.S. person” will be collected;
- execute nationwide rather than particularized counterterrorism search warrants; and
- collect information about suspected terrorists from financial institutions without probable cause so long as there is reason to believe the target is the agent of a foreign power or foreign terrorist organization.
One of the most significant aspects of the PATRIOT Act is that it amended the Foreign Intelligence Surveillance Act, broadening the FBI and NSA’s ability to share information gathered from electronic eavesdropping and surveillance with federal prosecutors. Thanks to evidence collected from surveillance and information sharing authorized by statutes, federal prosecutors have successfully prosecuted terrorists on numerous occasions. Prosecutors may not have been successful in doing so had they have had to comply with the Fourth Amendment’s requirements for obtaining a warrant.[14]
In U.S. v. Sami Al-Arian, federal prosecutors used extensive communications intercepted under the authority of the Foreign Intelligence Surveillance Act as amended by the PATRIOT Act to prove that Al-Arian, a University of South Florida professor, had provided material support to the Palestinian terror group, Islamic Jihad.[15] Despite privacy and civil liberties concerns, courts have upheld the constitutionality of the use of intelligence-related surveillance to support counterterrorism prosecutions.[16]
Profiling
The federal government engages in two forms of profiling to prevent terror attacks. The first is demographic profiling, defined as focusing investigative resources on people from countries in which terrorism originates. Profiling to find people who fit the demographic criteria of most terrorists is controversial but lawful, unless someone prosecuted as the result of its use can prove that law enforcement had no probable cause to make an arrest and/or that a discriminatory purpose motivated the government to arrest him.[17] After 9/11, the FBI and major city police departments used demographic profiling to survey, question, and detain aliens from Muslim-majority countries, sparking claims of discrimination. In response, the DOJ published “Guidance on the Use of Race by Federal Law Enforcement Agencies” which, while prohibiting demographic profiling in “traditional law enforcement activities,” permits federal law enforcement officers to engage in demographic profiling while “investigating or preventing threats to national security” up to any Constitutional or statutory limits.[18]
Behavioral profiling is defined as focusing investigative resources on people acting in patterns similar to those employed by known terrorists, thereby creating a reasonable inference of involvement in terrorist activity. This has greater political support and less legal risk than demographic profiling because it looks at behaviors that correlate with historical instances of terrorists’ behaviors rather than immutable characteristics such as race, gender, or ethnicity.[19]
Nevertheless, civil rights groups are attempting to end to all profiling. In early 2018, one group filed a lawsuit, Muslim Advocates v. U.S. Department of Homeland Security, challenges alleged demographic profiling and harassment of Muslim travelers.[20] In Hassan v. City of New York, Muslim rights advocates alleged the that NYPD Intelligence Bureau had developed a “human mapping system” that monitored Muslims along the East Coast and “infiltrated almost every aspect of Muslim life, from mosques and student associations, to halal butcher shops and restaurants, to private citizens.”[21] Without admitting wrongdoing, the NYPD agreed to pay $75,000 and revise its profiling policies.[22]
Temporary Detention – Administrative and Material Witness
Detention of a potential terrorist or a person who poses a threat to United States national security is divided into two categories. The first is administrative detention, which is protective rather than punitive. Under the PATRIOT Act it can be extended as long as the terrorist remains a danger to national security as certified by the Attorney General, in six month intervals.[23]
In the 2001 case of Zadvydas v. Davis, the petitioner, an ethnic Lithuanian drug trafficker, argued that his indefinite administrative detention in the U.S. violated his constitutional rights. The Supreme Court held that although the government must generally release an administrative detainee after a reasonable time to safeguard his constitutionally-protected interest in liberty, a “small segment of particularly dangerous individuals” [24] can be held indefinitely due to the dangers they pose. Later cases have confirmed that terrorists may be classified as “particularly dangerous individuals” and can be administratively detained indefinitely.
Section 412(a) of the PATRIOT Act, enacted after Zadyvdas, adds Section 236A to the Immigration and Nationality Act, allowing the Attorney General, with the assistance of DHS and State and local law enforcement, to take into administrative detention any alien certified inadmissible or deportable on one of six grounds, including terrorist activities and any other activity that “endangers the security of the United States.”[25] Although Section 412(a)(5) then requires the government to begin criminal or deportation proceedings within seven days, Section 412(a)(6) permits it to indefinitely detain certified illegal alien terrorists unlikely to be deported due to continuing investigations for up to six months.[26] Further, the government is not obligated to release identities of suspected terrorists.[27]
The second type of temporary detention is a material witness detention. Under the federal material witness statute, if the testimony of a person is important in a criminal proceeding or even a grand jury investigation, and a subpoena is unlikely to secure the presence of that person to testify, a court may order the arrest and detention of that person.[28]
Osama Awadallah, a Jordanian living in California, spent three months in detention under the material witness statute because he had associated with, and had information regarding, two terrorists responsible for the September 11th attacks and was likely to flee to Jordan unless detained.[29] Awadallah was released on bail only after testifying before the grand jury about the hijackers.
The Second Circuit held that Awadallah’s detention under the material witness statute to secure his grand jury testimony, was “reasonable under the circumstances” and did not violate Awadallah’s constitutional rights despite the temporary deprivation of his liberty.[30]
Someone detained as a material witness can subsequently be detained as an unlawful combatant. One example is that of Jose Padilla, arrested in Chicago in May 2002 on suspicion of plotting a “dirty bomb” attack and initially detained on a material witness warrant. A court refused to grant his habeas corpus petition to release him. Later on, he was charged as an unlawful combatant and detained in military prison for years[31] before being tried and convicted in federal court.[32]
Civil libertarians have criticized this tactic to combat terrorism. They fear that material witness detention is used as a form of administrative detention where the government has insufficient evidence to establish that a detainee is a threat to national security or to buy time to develop criminal charges for which probable cause to detain has not been established.
Extradition and Prosecution
Terror suspects who are not within the United States’ jurisdiction are often indicted before they are detained. In 1998, Osama bin Laden was indicted by a grand jury in Manhattan for conspiring in the bombing of American embassies in Nairobi and Dar es Salaam and killing U.S. citizens, but the U.S. could not secure the cooperation of Sudan or Afghanistan in detaining and transferring him to the U.S. for trial.[33]
Extradition is the judicially approved and diplomatically directed procedure to detain and transfer a suspect from one country to another for prosecution. Terrorism is universally regarded as a crime, and, provided an extradition treaty is in place, a request approved by a federal judge and transmitted from the Department of State to the foreign ministry of the country where the suspect is located requesting extradition of a terrorism suspect is usually granted. In 2017, Spain, based on an extradition treaty with the U.S., extradited Ali Charaf Damache, an Algerian-Irish dual citizen and suspected al-Qaeda terrorist, to stand trial in federal court in Philadelphia after he was indicted in 2011 for conspiracy to provide material support to terrorists and identity theft to facilitate international terrorism.[34]
Sections 2331 through 2339 of Title 18 of the U.S. Code define, authorize prosecution of, and impose criminal penalties up to and including death for anyone who commits “terrorism.”[35] Yet most acts that satisfy the legal definition of terrorism are prosecuted as more traditional crimes, such as homicide, aircraft piracy and destruction, destruction by explosives, use of a weapon of mass destruction and conspiracy to commit murder.
Successful counterterrorism convictions have included the conspirators in the 1993 World Trade Center bombing,[36] the bombers of U.S. Embassies in Africa in 1998,[37] the would-be 20th 9/11 hijacker, Zacarias Moussaoui,[38] and the “American Taliban,” John Walker Lindh, who conspired to kill Americans and provided services to al-Qaeda and the Taliban.[39]
The Material Support Statute, which criminalizes providing money, training, equipment, personnel, transportation, services, physical assets, or “expert advice or assistance” to terrorists and terrorist organizations, is the most powerful law for prosecuting terrorists.[40] Courts have allowed this statute to be used to deny terrorist organizations access to financial and human capital by imposing civil liability.[41] The prohibition against providing terrorist groups material support is so broad that it prohibits training and advising terrorists in the law of armed conflict, even where experts providing these services lack any intent to further terrorist activities.[42].
Convictions for Material Support Statute violations have disrupted terrorist organizations’ resources, limiting their capacity to execute attacks in the United States while deterring others from joining their ranks. In one case, U.S. v. Mehanna, a U.S. citizen, Tarek Mehanna, the “media wing” of al-Qaeda in the U.S., was convicted of providing material support to al-Qaeda by translating, interpreting, and distributing materials promoting jihad against the United States.[43]
In another case, U.S. v. Sattar, a court convicted Lynne Stewart, the lawyer for Omar Abdel Rahman, the mastermind of the 1993 World Trade Center bombing, for providing material support by sending encrypted messages indicating Rahman’s approval of further terrorist attacks.[44]
In our next module, we will move away from the law enforcement paradigm and discuss non-criminal sanctions against terrorists such as domestic economic sanctions and the potential civil liability of terrorists and terrorist organizations for their acts.
[1] Off. of Pres., National Strategy for Counterterrorism (2011). https://obamawhitehouse.archives.gov/sites/default/files/counterterrorism_strategy.pdf
[2] 8 U.S.C. § 1189(a)(1).
[3] U.S. Dep’t of State, Foreign Terrorist Organizations, https://www.state.gov/j/ct/rls/other/des/123085.htm
[4] 8 U.S.C. § 1189(a)(8).
[5] U.S. v. Hammoud, 381 F.3d 316, 331 (4th Cir. 2004) (citing 8 U.S.C. § 1189(a)(8))
[6] Joey Shabot, Transacting Terror: The Regulation of Terrorist Financing and Procedural Due Process, 1, 5, http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/3)Shabot-GinsburgEssay.pdf (citing 8 U.S.C. § 1189(b)(3)).
[7] 8 U.S.C.§1182(a)(3)(B)
[8] Adams v. Baker, 909 F.2d 643, 649 (1st Cir. 1990).
[9] 8 U.S.C. § 1158 (b)(2)(A)(iv)-(v); 8 U.S.C. § 1227(4)(B).
[10] 8 U.S.C. § 1158(b)(2)(D).
[11] Bellout v. Ashcroft, 363 F.3d 975, 977 (9th Cir. 2004).
[12] Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001) (“PATRIOT Act”).
[13] PATRIOT Act, supra note 12, at § 215 (codified at 50 U.S.C. §1861).
[14] Testimony of Robert Mueller, Director of the FBI, Before the United States Senate Committee on the Judiciary, Washington, DC (May 24, 2004).
[15] U.S. v. Sami Amin Al-Arian, 308 F.Supp.2d 1322, (M.D. Fla. 2004); FBI Charges Florida Professor With Terrorist Activities, CNN (Feb. 20, 2003), http://www.cnn.com/2003/US/South/02/20/professor.arrest/.
[16] In re Sealed Case No. 02-001, 310 F.3d 717, 728 (FIS Ct. Review 2002); Jeremy D. Bailie, The Constitutionality of the Patriot Act, 4 Inquiries 1 (2012).
[17] Marshall v. Columbia Lea Regional Hospital, 345 F.3d 1157, 1168 (10th Cir. 2003); Samuel L Gross & Debra Livingston, Racial Profiling Under Attack, 102 Colum. L. Rev. 1413 (2002).
[18] U.S. Department of Justice, Guidance for Federal Law Enforcement Agencies Regarding their Use of Race, Ethnicity,Gender, National Origin, Religion, Sexual Orientation, or Gender Identity3-4 (December 2014),
[19] David A. Harris, New Risks, New Tactics:An Assessment of the Re-Assessment of Racial Profiling in the Wake of September 11, 2001, 2004 Utah L. Rev. 913, 941-42 (2005).
[21] Hassan v. City of New York, 804 F.3d 277 (3rd Cir. 2015); Hassan v. City of New York, Center for Constitutional Rights, ccrjustice.org/home/what-we-do/our-cases/hassan-v-city-new-york .
[22] Ray Sanchez, Settlement Reached in Third Lawsuit Accusing NYPD of Spying on Muslims, cnn, https://www.cnn.com/2018/04/05/us/nypd-muslim-surveillance-settlement/index.html
[23] 8 U.S.C. §1126a(6)-(7).
[24] Zadvydas v. Davis, 533 U.S. 678, 691 (2001).
[25] PATRIOT Act, supra note 12, at § 412(a).
[26] 8 U.S.C. § 1226A(6)-(7).
[27] Center for National Security Studies v.U.S. Department of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003).
[28] 18 U.S.C. §3144.
[29] Ray Rivera & Matthew Sweeney, Acquaintance of 2 Hijackers is Acquitted, N.Y. Times (Nov. 18, 2006), https://www.nytimes.com/2006/11/18/nyregion/18immigrant.html
[30] US v. Awadallah, 349 F.3d 42, 47 (2d Cir. 2003).
[31] Rumsfeld v. Padilla, 542 U.S. 426, 430-32 (2004).
[32] Abby Goodnough & Scott Shane, PadillaIs Guilty on All Charges in Terror Trial, N.Y. Times, (Aug. 17,2007)
[33] United States v. bin Laden, U.S. District Court for the Southern District of New York, Indictment No. S(9) 98 Cr. 1023 (LBS) (S.D.N.Y. Nov. 5, 1998), https://www.nonproliferation.org/wp-content/uploads/2016/05/us_indictment_against_bin_laden.pdf.
[34] Algerian-born Irish Citizen Extradited to US on Terror Charges, Irish Times (June 22, 2017), https://www.irishtimes.com/news/crime-and-law/algerian-born-irish-citizen-extradited-to-us-on-terror-charges-1.3163954; Rebecca R. Ruiz, et. al., Terror Suspect Brought to U.S. for Trial, Breaking From Trump Rhetoric, N.Y. Times (July 21, 2017), https://www.nytimes.com/2017/07/21/world/europe/al-qaeda-suspect-court-trump-sessions-guantanamo.html.
[35] 18 U.S.C. §§2331—2339.
[36] U.S.v. Salameh, 261 F.3d. 271 (2d Cir. 2001); U.S. v. Rahman, 189 F.3d 88 (2d Cir. 1999).
[37] U.S.v. Bin Laden et al., 109 F. Supp. 2d 211 (S.D.N.Y. 2000).
[38] U.S. v. Zacarias Moussaoui, Crim. No. 01-455-A, United States District Court for the Eastern District of Virginia (E.D. Va. 2001).
[39] U.S.v. Lindh, 227 F. Supp. 2d 565 (E.D. Va. 2002)
[40] 18 U.S.C. § 2339A-D (2012).
[41] Boim v. Quranic Literacy Inst., 291 F.3d 1000 (7th Cir. 2002)
[42] Holder v. Humanitarian Law Project, 561 U.S. 1, 5-6 (2010).
[43] Superseding Indictment, U.S. v. Mehanna, 2010 WL 2516469, No.09-CR-10017-GAO (D. Mass. June 17, 2010)
[44] U.S. v. Sattar et al., 314 F. Supp.2d 279, 290-91 (S.D.N.Y. 2004).