Class Notes PDF

CPCL LAW 866 CLASS ONE 1. Intro: Who the primary threat acters are? What is the primary tool used for national security? How terrorism in persecuting work? 1.1. Some procedures required in criminal sector are not required in national security threat. 1.2. Apple: (cou...

CPCL LAW 866 CLASS ONE 1. Intro: Who the primary threat acters are? What is the primary tool used for national security? How terrorism in persecuting work? 1.1. Some procedures required in criminal sector are not required in national security threat. 1.2. Apple: (court authorization) warrant letter (subpoena) – not required as before to access someone data – warrant less - (Apple products not the person). Includes internet patterns, search, and encrypted chat under FISA statute, section 702. 1.3. Twitter: denied order regarding accessing Trump account/records etc. 1.4. Usually, they demand records/data from 3rd party without the person knowledge in order to avoid evidence being damaged or person run etc. 1.5. Mutual legal treats – if both countries have same crime, they can send ________ 1.6. Third party Doctrine (data is not owned by you) 1.7. Quarles public safety exception to 5th amendment (Miranda) 2. United States v. Mark Domingo 2.1. ______ 2.2. The next day: “More like a group” twitter post (target religious people). 2.3. 2017-2019: ISIS Propaganda – threat and picture/massage targeted western people. 2.4. Files: Video and photos from his phone related to ISIS Propaganda. 2.5. 2019 Promoting ISIS Propaganda – post about the Islamic State: Covenant video 2.6. March 3, 2019: “America Needs Another Vegas Event” – terrorism post 2.7. March 18, 2019: Proposing targets – national guard armory, Churches, police, etc. 2.8. March 21, 2019: Talking with foreign fighters – post/group chat twitter and direct messages. 2.9. BoringSunday – his account 2.10. There is no federal crime conspiracy between a criminal and FBI/Agent. 2.11. Video footage from grocery store buying stud to make a bomb. 2.12. CLASS TWO 1. Arrest warrant based on probable cause, and search warrant based on reasonable suspicion. Miranda. Statement that criminalize him. 239. Material support = himself/weapons. Used of Adected interstate commerce (Federal concern) - a lot of federal law apply only to conducts edect interstate commerce. Attempt – steps that corroborates intent to do crime (not committed). If the defendant said he was entrapped, the gov has to prove all the matter related to the case. Multi factor test (court uses upon a case) – Predisposition (5 factors). Was there inducement /encourage (money, gifts, promises)___. He must prove inducement – two of them - (it is not defense) and gov have only to prove one (entrapment?). United State sentencing guidelines. A large number of prison years are irrelevant, but judges can sentence a person within the Statutory maximum. 2. Terrorism threat picture: International, domestic (U.S. terrorism list). Sleeper Cells – coming to the country illegally who have adiliating with terrorism groups but with no evidence. 3. Terrorism definition, some countries do not want to have a generalize definition to justify such conduct. U.S. law definition does not vary much to the convention definition. A quite broader than the convention definition with no exceptions. FBI classifies cases domestic or international terrorism ________. These just definition, but does not have crimes of being domestic or international terrorism. 1  CPCL LAW 866 4. Insurgency (Insurgent violent), like that U.S. attacks the armed groups (street) in Iraq (not the army) – because they are not attempting to because they are not attempting to overthrow the government. Guerilla Warfare, general term for military operations. 5. Is a group required for an act to be terrorisms? No, it is the violence with the intent. Can attacks against armed forces be terrorism? It can _____. Is terrorism a violation of international law according to U.S. law? Probably no, because there is no country has ________. In U.S. there is no crime of terrorism, there is crime providing or supporting terrorism. There is no internation define terrorism, international law does not criminalize terrorism currently. Slides: 1. Charges: Count 1: Providing Material Support to Terrorism - Provide Material Support or Resources Element 1: material support = himself, weapons. Element 2: Intended His Support Would be Used to Prepare For or Carry Out Crime of Use of Weapon of Mass Destruction. Count 2: Attempted Use of a Weapon of Mass Destruction - Attempted to Use a Bomb - Against Person or Property in U.S. - Used or Adected Interstate Commerce (text messages, discord, Debit card - lowe’s) Element 1: WMD = Pressure Cooker Bomb Attempt = Substantial Step Strongly Corroborates Intent Crime Will Occur Unless Interrupted 2. Entrapment - Defendant was predisposed to commit the crime; or - Defendant was not induced by government agents to commit the crime - “It is not entrapment if government agents merely provide an opportunity to commit the crime.” Predisposition: Five Factors - Did defendant show reluctance? - Defendant’s character and reputation - Did government actor suggest the crime? - Did defendant commit crime for profit? - What was the inducement, if any? 3. Sentencing - Statutory Maximum - United States Sentencing Guidelines - Judicial Discretion - Sentence in United States v. Domingo 4. Terrorism Threat Picture 4.1. Foreign Terrorist Organizations 2  CPCL LAW 866 - Recruitment, Fundraising, Traveling - Sleeper Cells - Homegrown Violent Extremists 4.2. Domestic Violent Extremists - Racially Motivated Violent Extremists - Lone Wolfs vs. Organized Groups 4.3. “The Federal Bureau of Investigation and the Department of Homeland Security have assessed that lone odenders pose the highest priority threat of mass casualty violence. These odenders are often radicalized online, or through a combination of online and in-person influences, and look to attack soft targets with easily accessible weapons.” - Strategic Assessment and Data on Domestic Terrorism 4.4. “Racially or ethnically motivated violent extremists (RMVEs) and militia violent extremists (MVEs) present the most lethal Domestic Violent Extremism threats, with RMVEs most likely to conduct mass-casualty attacks against civilians and MVEs typically targeting law enforcement and government personnel and facilities.” - Odice of Director of National Intelligence (2021) 5. Terrorism Investigations and Prosecutions - 846 Domestic Terrorism Subjects Arrested Between 2015-2019 - 1,000 Domestic Terrorism Investigations per year Between 2017-2019 - Doubled in 2021 to over 2,000 6. Defining Terrorism - 1986: NSDD-207 Use or threaten violence to “achieve a political objective through coercion or intimidation of an audience beyond the immediate victims.” (CTL 4) - 2002: UN Definition Defining Terrorism: UN Comprehensive Convention on International Terrorism (2002): Unlawfully and intentionally cause death, serious injury, or damage to property in order “to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.” - U.S. Federal Law Defining International Terrorism U.S. Law (18 U.S.C. 2331)(1)) Violent or dangerous acts that violate U.S. criminal laws, occur primarily outside the U.S. or transcend national boundaries, and are intended to: 1. intimidate or coerce a civilian population; 2. influence the policy of a government by intimidation or coercion; or 3. adect the conduct of a government by mass destruction, assassination, or kidnapping. Defining Domestic Terrorism U.S. Law (18 U.S.C. 2331(5)) Dangerous acts that violate U.S. criminal laws, occur primarily within the U.S., and are intended to: 1. intimidate or coerce a civilian population; 3  CPCL LAW 866 2. influence the policy of a government by intimidation or coercion; or 3. adect the conduct of a government by mass destruction, assassination, or kidnapping. 7. Terrorism vs. Insurgency vs. Guerilla Warfare - Insurgency: Overthrow of government through subversion and armed conflict. - Guerilla Warfare: Military operations with irregular or indigenous forces. Questions: - When is a mass-shooting terrorism? - Is a group required for an act to be terrorism? - Can attacks against armed forces be terrorism? - What does a “war on terror” mean? - 8. Almog v Arab Bank - Plaintids sued Arab Bank in U.S. Court under Alien Tort Claims Act for financing Hamas. - Plaintids argued Hamas attacks on civilians violated the Law of Nations - Law of Nations: Law that (1) nations universally follow, (2) out of legal obligation, (3) forbidding a wrong of mutual concern. Examples include Genocide, Crimes Against Humanity. - Defense: Many nations “exempt from the definition of terrorism conduct that furthers the rights of self-determination of a people.” (CTL 21) - Ruling for PlaintiRs: Despite disagreement on meaning of “Terrorism,” Terrorist Bombing Convention condemned bombings intended to intimidate or coerce civilian population. 9. Saperstein - Plaintids sued Palestinian Authority in U.S. Court under Alien Tort Claims Act for sponsoring terrorist violence against civilians in Israel - Ruling for Defense: Politically motivated terrorism and killing civilians in armed conflict do not violate the Law of Nations Defining Terrorism: Almog and Saperstein - Are Almog and Saperstein inconsistent? - Is terrorism a violation of international law (according to U.S. law)? CLASS THREE 1. Role of the Military: Posse Comitatus Act 1.1. The Posse Comitatus Act of 1878 (18 U.S.C. § 1385) “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the [U.S. military] as a posse comitatus or otherwise to execute the laws shall be … imprisoned not more than two years.” 2. Posse Comitatus: Fear of Standing Armies 2.1. U.S. Declaration of Independence: The King of England “has kept among us, in times of peace, Standing Armies... and has adected to render the Military independent of and superior to the Civil power.” (CTL 839) 2.2. U.S. Constitutional Convention: 4  CPCL LAW 866 “When a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army.” (CTL 839) 3. Bissonette v. Haig 3.1. The Question: Was the use of military personnel to search and seize property at Wounded Knee a violation of the individuals’ Fourth Amendment rights? - Two Sub-Questions: Was the use of military personnel a violation of the Posse Comitatus Act? Was the search and seizure unreasonable under the Fourth Amendment? 3.2. Violated Posse Comitatus: Military personnel were used “in such a manner that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature.” (CTL 841) 3.3. Fourth Amendment protects against “unreasonable searches and seizures.” 3.4. Whether a search or seizure is “reasonable” is determined by balancing the interests for and against the seizure. 3.5. The government’s interests in using the military to assist civilian law enforcement are generally: 1. To maintain order in times of domestic violence or rebellion; and 2. To improve the ediciency of civilian law enforcement by use of military technology, equipment, information, and personnel. (CTL 840) 3.6. “Usually, the interests arrayed against a seizure are those of the individual in privacy, freedom of movement, or, in the case of a seizure by deadly force, life. Here, however, the opposing interests are more societal and governmental than strictly individual in character. They concern the special threats to constitutional government inherent in military enforcement of civilian law.” (CTL 839) 3.7. “The use of military forces to seize civilians can expose civilian governments to the threat of military rule and the suspension of constitutional liberties.... It may also chill the exercise of fundamental rights, such as the rights to speak freely and to vote, and create the atmosphere of fear and hostility which exists in territories occupied by enemy forces.” (CTL 839) 4. Fourth Amendment 4.1. “The right of the people to be secure in their persons, houses, papers, and edects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or adirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 5. The Insurrection Act (10 U.S.C. §§ 251-253) 5.1. § 251: Federal Aid for State Governments “Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.” 5.2. § 252: Use of Armed Forces to Enforce Federal Authority “Whenever the President considers that unlawful obstructions … or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may … use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.” 5  CPCL LAW 866 5.3. § 253: Use of Armed Forces to Guarantee Constitutional Rights “The President, by using the … armed forces … shall take such measures as he considers necessary to suppress … any insurrection … if it so hinders the execution of the laws … that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law.” 6. Domestic Military Intelligence Collection: Laird v. Tatum 6.1. Did Army surveillance program violate Posse Comitatus Act? - Military action was not “regulatory, proscriptive, or compulsory in nature,” either in general or as to the plaintids. (CTL 851). - Plaintids’ alleged harms are merely their “perception” that the military’s surveillance is “inappropriate,” their “belief” that it is inherently dangerous, and their “speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm” to them. 6.2. Does the “potential for civil disorder” justify Armed Forces intelligence gathering to prepare for possible invocation of § 251? - Dissent: “The act of turning the military loose on civilians even if sanctioned by an Act of Congress, which it has not been, would raise serious and profound constitutional questions. Standing as it does only on brute power and Pentagon policy, it must be repudiated as a usurpation dangerous to the civil liberties on which free men are dependent.” (CTL 852). 7. U.S. Military, Civil Unrest, and Elections 7.1. May 2020 Civil Unrest - President “strongly recommended” governors use the National Guard to “establish an overwhelming presence until the violence has been quelled.” - White House threatened to invoke Insurrection Act to deploy the US military. - Would 10 U.S.C. § 252 or 253 authorize that? 7.2. January 6, 2021: Would § 252 or 253 apply? 8. Targeted Strikes: U.S. Operations Overseas - Bush, Obama, were low. Trump was high. 9. Targeted Strikes: International Law 9.1. Two Requirements First: Targeting civilians is permissible (1) for such time as they are (2) taking direct part in hostilities, (3) against a nation. Second: Collateral damage must be proportional to the military objective. (CTL 150-152) 9.2. International Law: Two Requirements - For such time: not punishment for past acts - Taking direct part: Not just material support - In hostilities: Acts intended to kill or damage 10. Targeted Strikes: U.S. Policy U.S. Policy (CTL 152-159) - “Areas of active hostilities” - 2013 U.S. Policy Standards and Procedures 6  CPCL LAW 866 1. Legal basis 2. Continuing, imminent threat to US persons 3. Meet five criteria Near certainty terrorist is present; Near certainty civilians will not be injured or killed; Capture is not feasible; Foreign government will not address threat; and No other reasonable alternatives exist to edectively address threat 11. Targeted Strikes: Targeting U.S. Citizens DOJ White Paper: Targeted killing of Anwar al-Aulaqi U.S. in non-international armed conflict with al-Qaida U.S. citizens retain Due Process rights abroad Balance individual’s interests against: - Imminent threat of violent attack against US - Capture infeasible - Follow Law of War principles DOJ White Paper proposes “a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat.” (CTL 162). CLASS FOUR 1. Review: 1.1. Limited Role of Military 1.1.1. Posse Comitatus Act of 1878 - Bissonette v. Haig and Laird v. Tatum: Use of military violates Posse Comitatus Act if it is regulatory, proscriptive, or compulsory in nature 1.1.2. The Insurrection Act (10 U.S.C. §§ 251-255) 1.2. Targeted Strikes: International Law - Can target civilians (1) for such time; as they are (2) taking direct part; (3) in hostilities against nation. - Collateral damage must be proportional to the military objective. 1.3. U.S. Targeted Strike Policy - Legal basis - Continuing, imminent threat to US persons - Five criteria Near certainty terrorist is present; Near certainty civilians won’t be injured or killed; Capture is not feasible; Foreign government will not address threat; and No other reasonable alternatives exist 1.4. Due Process and Targeting of U.S. Citizens - U.S. citizens retain Due Process rights abroad - Due Process Clause: “No person shall be... deprived of life, liberty, or property, without due process of law.” - Due Process Balancing Test 7  CPCL LAW 866 - Can target U.S. citizen who: Poses imminent threat of attack against US Capture is infeasible Operation follows Law of War principles - DOJ White Paper adopts “a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat.” 2. Modern History of U.S. Intelligence - Pre-World War Two: Military responsibility - World War Two: Formed civilian agency - National Security Act of 1947 - Intelligence Reform and Terrorism Prevention Act of 2004 (CTL 191-193) 3. National Security Act of 1947 - Created National Security Council “To advise the President with Respect to the integration of domestic, foreign, and military policies relating to the National Security.” - Created Central Intelligence Agency CIA has “no police, subpoena, or law enforcement powers or internal security functions.” (CTL 194-198) 4. The U.S. Intelligence Community (“USIC”) - CIA: Human Intelligence (“HUMINT”) - NSA: Signals Intelligence (“SIGINT”) - Other: DIA (Warfighting), NGA (“GEOINT”) - FBI: Internal security (CTL 179, 198) 5. Executive Order 12,333 - Passed in 1981 - Response to allegations of abuses in Vietnam War-era surveillance - Set roles for agencies that generate and consumer intelligence (CTL 210-215) 5.1. Executive Order 12,333: Role of CIA Sections 1.7, 3.5: CIA focus on “foreign intelligence” which is “information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists.” Section 1.7: In its counterintelligence activities, CIA is prohibited from “assuming or performing any internal security functions within the United States[.]” Section 2.4: Only FBI can surveil or conduct nonconsensual physical searches within the U.S. Section 2.6: But, USIC elements can assist in law enforcement activities to disrupt foreign intelligence or international terrorist activities Section 2.9: Limits on infiltrating U.S. organizations (CTL 213-215) 6. The Role of the FBI - No single statute governing FBI authorities - Where is the FBI’s authority written down? (See https://www.fbi.gov/about/faqs/where-is-the-fbis-authority-written-down) 8  CPCL LAW 866 - FBI is both an intelligence agency and a law enforcement agency (CTL 195) 7. How the FBI Investigates Terrorism - Preliminary Investigation (initial limited info/tip) Information or allegation indicating existence of federal crime or national security threat o Can get public information, do surveillance, and issue grand jury subpoenas. - Full Investigation Articulable factual basis that reasonably indicates federal crime or threat to national security. o Can get search warrants, wiretaps, FISAs (2022 Strategic DT Assessment, p. 10) 8. The Joint Terrorism Task Force (“JTTF”) - JTTF at all 56 FBI Field Odices. - Let by FBI, with other federal, state, local agencies (each FBI odice has a group similar to the following) Naval Criminal Investigative Service Homeland Security Investigations Los Angeles Police Department Los Angeles Sherid’s Department 9. The Intelligence Cycle: SIGINT Process - Three Steps: Extract Filter Store - Extraction from private businesses in the U.S. (Facebook, Google, etc.) - Google and Facebook retain extensive information (www.theguardian.com/commentisfree/2018/mar/28/all-the-data-facebook-google-has- on-you-privacy) 10. Legal Framework for Seizing Digital Data Factual Search Warrant Showing 2703(d) Orders Required Pen Register & Trap and Trace Subpoena BASIC INFO CONTENT Subpoena, require the business provide METADATA = subscriber data (identify stage). 9  CPCL LAW 866 11. Seizing Digital Data: Grand Jury Subpoenas (METADATA) 10  CPCL LAW 866 12. Seizing Digital Data: 2703(d) Orders Seizing Digital Data: 2703(d) Orders - Here not only knowing who is account belong to, also knowing when he sent a message on a specific time without knowing the context, the below after getting the warrant. 13. Seizing Digital Data: Search Warrants 11  CPCL LAW 866 CLASS FIVE - No class CLASS SIX 1. U.S. Intelligence Community 1.1. USIC: Governed by National Security Act of 1947 and Executive Order 12,333 1.2. CIA: Focus on “foreign intelligence” 1.1. FBI: Focus on internal security 1.1. FBI: Preliminary vs. Full Investigations Sidenote: **No federal crime of terrorism but there is a definition, so therefore we look over other laws and statutes (details in the following section). 2. Federal Crime of Terrorism 18 U.S.C. 2332b(g)(5) 2.1. OWense that is: 2.1.1. Calculated to influence conduct of government by intimidation or coercion; 2.1.2. Or to retaliate against government conduct 2.1.3. And is a violation of a listed statute CTL 685-686 3. “Left of Boom” Crimes 3.1. U.S. Constitution, First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 4. U.S. v. Rahman: Seditious Conspiracy 4.1. Rahman was leader of group whose members bombed the World Trade Center and planned other bombings. 4.2. Rahman issued decrees sanctioning attacks, and directed followers to “do jihad with the sword, cannon, grenade, missile against God’s enemies.” (CTL 691-692) 5. Seditious Conspiracy (18 U.S.C. 2384) 5.1. Two or more persons conspire to... 5.2. Overthrow, destroy by force, or oppose by force the authority of the U.S. Government, or by force prevent, hinder, or delay the execution of any law of the United States. 6. U.S. v. Rahman: Challenge #1 6.1. Rahman argued the law violated the First Amendment by criminalizing mere advocacy. 6.2. Brandenburg test: OK to criminalize advocacy only if the advocacy is directed towards, and likely to result in, imminent lawless action. 6.3. Court held that Seditious Conspiracy does not criminalize advocacy 6.4. Instead, Seditious Conspiracy requires agreement to use force, not merely to advocate force. (CTL 691-692) 12  CPCL LAW 866 7. U.S. v. Rahman: Challenge #2 7.1. Rahman argued Seditious Conspiracy is overbroad because it prohibits a substantial amount of protected speech. 7.2. Government regulation of speech must be narrowly tailored to prohibit criminal conduct without prohibiting a substantial amount of protected speech. 7.3. Court held Seditious Conspiracy is not overbroad because it criminalizes not speech alone, but rather the agreement between two people to engage in violence. 7.4. Note: Speech can be the evidence of the agreement, but the speech itself is not the crime. The crime is the agreement. 8. U.S. v. Rahman: Hypothetical 8.1. Could statements alone be crimes absent a conspiracy? 8.2. Online threats? 18 U.S.C. 875(c) 8.3. Solicitation? 18 U.S.C. 373 (CTL 695-699) - Threat have to be specific, objective threat ______ 9. U.S. v. Stone: Seditious Conspiracy 9.1. Members of Christian militant group plotted to kill police to spark anti-government uprising. 9.2. How diderent from Rahman? 9.3. Court found members discussed plot but did not reach agreement, so had no conspiracy. 9.4. Court found agreement to kill local odicers is not a specified crime under Seditious Conspiracy. (CTL 695-699) 10. Material Support to Terrorism: 18 U.S.C. 2339A 10.1. Provide specified form of support (money, personnel, physical support, materials, etc.) 10.2. Knowing or intending it will be used… 10.3. To commit violation of a specified statute (CTL 700) *Participating in a punch of crimes that collaboratively known/used in terrorism crime but not terrorism crime. 11. Material Support to Foreign Terrorist Organization: 18 U.S.C. 2339B 11.1. Provide specified form of support 11.2. Knowing or intending it will be used… 11.3. To benefit a Foreign Terrorist Organization - “FTO” designated by Secretary of State - Defendant must know the group is an FTO or has engaged in terrorism (doesn’t need to intend to further terrorism) 12. Holder v. Humanitarian Law Project 12.1. Human rights organization wanted to support Kurdistan Workers Party to establish Kurdish state in Turkey and Liberation Tigers of Tamil Eelam to create Tamil state in Sri Lanka. 12.2. Both groups were designated as FTOs. 12.3. Constitutional challenges to 2339B prohibitions against providing training, expert advice/assistance, services, and personnel to an FTO. 13  CPCL LAW 866 12.4. Challenge One: Vagueness (5th Amendment) 12.5. Challenge Two: Freedom of Speech (1st Amendment) 12.6. Challenge Three: Freedom of Association (1st Amendment) Challenge One: Vagueness (5th Amendment) - Law is void for vagueness if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” - Court held the acts in 2339 are sudiciently specific, and several are expressly defined “training,” “personnel,” etc. Challenge Two: Overbroad and punishes mere advocacy (1st Amendment) - Law prohibits material support to FTO in the form of speech. - Law must be necessary to further compelling government interest Is ban on training FTOs in legitimate advocacy necessary to further compelling government interest? Court held FTOs are so tainted that work that legitimized them furthers their terrorist means. Court held money is fungible, so money or services to “legitimate” aspect of their work can be used for terrorist acts Dissent - Training on advocacy for political change through peaceful means is not fungible. - Adding legitimacy to an FTO is too broad a concern. - Courts should interpret 2339B only to prohibit activity like training when defendant knows or intends it will assist the FTO’s terrorist actions. Challenge Three: Freedom of Association (1st Amendment) - Court held 2339B does not prohibit membership in FTO - Court held 2339B does not prohibit promoting or advocating for FTO - Court held 2339B prohibits giving material support, which goes beyond simple association or assembly. (CTL 704) CLASS SEVEN 1. Material Support to Foreign Terrorist Organization: 18 U.S.C. 2339B - Provide specified form of support - Knowing or intending it will be used… - To benefit a Foreign Terrorist Organization “FTO” designated by Secretary of State Defendant must know the group is an FTO or has engaged in terrorism (doesn’t need to intend to further terrorism) 2. Holder v. Humanitarian Law Project - Human rights organization wanted to support Kurdistan Workers Party to establish Kurdish state in Turkey and Liberation Tigers of Tamil Eelam to create Tamil state in Sri Lanka. - Both groups were designated as FTOs. 14  CPCL LAW 866 (CTL 704) - Constitutional challenges to 2339B prohibitions against providing training, expert advice/assistance, services, and personnel to an FTO. Challenge One: Vagueness (5th Amendment) Challenge Two: Freedom of Speech (1st Amendment) Challenge Three: Freedom of Association (1st Amendment Challenge One: Vagueness (5th Amendment) Law is void for vagueness if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Court held the acts in 2339 are sudiciently specific, and several are expressly defined “training,” “personnel,” etc. Challenge Two: Overbroad and punishes mere advocacy (1st Amendment) Law prohibits material support to FTO in the form of speech. Law must be necessary to further compelling government interest Is ban on training FTOs in legitimate advocacy necessary to further compelling government interest? Court held FTOs are so tainted that work that legitimized them furthers their terrorist means. Court held money is fungible, so money or services to “legitimate” aspect of their work can be used for terrorist acts Dissent Training on advocacy for political change through peaceful means is not fungible. Adding legitimacy to an FTO is too broad a concern. Courts should interpret 2339B only to prohibit activity like training when defendant knows or intends it will assist the FTO’s terrorist actions. Challenge Three: Freedom of Association (1st Amendment) Court held 2339B does not prohibit membership in FTO Court held 2339B does not prohibit promoting or advocating for FTO Court held 2339B prohibits giving material support, which goes beyond simple association or assembly. 3. Review: U.S. Anti-Terrorism Crimes - 18 U.S.C. 2384: Seditious Conspiracy - Conspiracy and Attempt - 18 USC 2339A: Material Support to a Terrorism Odense - 18 USC 2339B: Material Support to a Foreign Terrorist Organization 4. Review: Constitutional Challenges - First (1st) Amendment: Overbreadth - First Amendment: Brandenburg imminence test - Fifth (5th) Amendment: Vagueness 5. United States Sentencing Guidelines - United States Sentencing Guidelines 15  CPCL LAW 866 - Based on relevant conduct and criminal history - Determines “advisory” sentencing range 6. U.S. Sentencing Guidelines: Sentencing Table It was enforced till 2008, then court refused to follow it since Congress did not pass it as law. 7. The Terrorism Enhancement - U.S.S.G. Section 3A1.4: “a felony that involved, or was intended to promote, a federal crime of terrorism” - Increases odense level by 12, sets minimum level of 32, and increases criminal history to VI 8. Federal Crime of Terrorism: 18 U.S.C. 2332b - OWense that is: Calculated to influence conduct of government by intimidation or coercion; Or to retaliate against government conduct And is a violation of a listed statute (CTL 685-686) 9. Fourth Amendment Origins - Pre-1765 Colonial America: British use of general warrants and writs of assistance - No limitation on location - No need to describe the object or person sought - License to “break into any shop or place suspected.” (CTL 230) 10. Fourth Amendment 16  CPCL LAW 866 - The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - What is a search? - What makes a search “unreasonable”? - Does it apply to electronic surveillance? - Who are “the people”? 11. Fourth Amendment: Katz v. United States (1968) - FBI placed an electronic listening device on top of a public telephone booth without a warrant - Government argued seizure of the data was not a search of “persons, houses, papers, and edects.” - Supreme Court held that the Fourth Amendment protects people not places (CTL 230-231) 12. Fourth Amendment: What is a “Search”? - United States v. Jacobsen: “a search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” - Third Party Doctrine Smith v. Maryland: When person voluntarily submits data to a third party, the person has no reasonable expectation of privacy in that data. So a government search of that data is not a “search” regulated by the Fourth Amendment. (like using email “Gmail/Google, person knows that they save the data like Emails so it’s not reasonable expectation of privacy) - Carpenter v. United States (2018): Supreme Court refused to extend the third-party doctrine to cell site location information. “An individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell-site location information].” (CTL 230-231) 13. Fourth Amendment: What is a “reasonable search” - Generally requires warrant - Six Primary Exceptions 1. Search incident to arrest (odicer safety) 2. Automobile searches (inherently mobile) 3. Hot pursuit (public safety) 4. Stop and frisk (odicer safety) 5. Special needs (limited public safety purpose) 6. Border searches (reduced expectation of privacy) 14. Fourth Amendment: Electronic Surveillance and National Security - 1928: Supreme Court held wiretapping not a search - 1934: Congress criminalizes wiretapping - 1940: President requests wiretaps of subversives - 1967: Supreme Court held wiretapping is a search (but did not extend to national security) 17  CPCL LAW 866 - 1968: Congress passes law governing wiretaps for criminal cases (did not extend to national security) 15. Fourth Amendment: Domestic Security Exception? - US v. Keith: In 1968, the White Panther Party bombed a CIA odice in Michigan. Government used warrantless wiretaps in the investigation “to gather intelligence to protect the nation from attempts by domestic organizations to attack and subvert the existing structure of government.” - Question: Is “domestic security” a “special need” that makes a warrantless search reasonable? - Supreme Court found no domestic security exception. “National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of ‘ordinary’ crime. Though the investigative duty of the executive may be stronger in such cases, so also is there a greater jeopardy to constitutionally protected speech.” - “The question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant requirement would unduly frustrate the edorts of Government to protect itself from acts of subversion and overthrown directed against it.” - “The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech” (CTL 238 - 239) 16. Fourth Amendment: Foreign Intelligence Exception: - In re Directives to Yahoo: FISA allowed warrantless surveillance of communications (1) from persons outside U.S., (2) believed to be agents of foreign powers, (3) to acquire foreign intelligence. - Court found “special needs” exception because (1) purpose was not law enforcement and (2) requiring a warrant would materially interfere with the government purpose because speed and secrecy are critical tools. - “We hold that a foreign intelligence exception to the Fourth Amendment’s warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States. (CTL 248) 17. Fourth Amendment: Technological Advances - GPS tracking devices - Cell phones seized incident to arrest - Cell phones reviewed at border searches (CTL 249-252) 18. Surveillance Abroad: In re Terrorist Bombings of U.S. Embassies - Bill of Rights applies to U.S. government actions against U.S. citizens abroad - Fourth Amendment reasonableness requirement applies abroad, but warrant requirement does not apply (CTL 252-53) 18  CPCL LAW 866 CLASS EIGHT CLASS NINE CLASS TEN 19