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Introduction United and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
defines new federal criminal offenses relating to terrorism
introduces reforms to criminal procedure to make it easier to investigate and detect acts of terrorism
many definitions of terrorism the Constitution is not a “suicide pact” and that
the first priority of government must be to protect the American people
Electronic Surveillance
Foreign Intelligence Surveillance Act provided procedures for electronic surveillance
of threats to national security extended in 1994 to cover physical searches of
dwellings and other structures the Foreign Intelligence Surveillance Court
Conditions to Obtain a FISA Warrant probable cause that the target is the agent of a foreign
power or a member of an international terrorist organization
based on the “probability of a possibility” that the target of the order “may engage” in activities threatening the national security or “may engage” in terrorism (less than probable cause)
the primary purpose must be to investigate a threat to national security or threat of terrorism
the place or communication device targeted for surveillance must be being used or is about to be used by a foreign power or terrorist organization to carry out activities that threaten the national security
FISA an American citizen or resident of the United
States may not be singled out for surveillance under FISA based on the First Amendment
FISA warrants generally are easier to obtain than warrants for ordinary criminal investigations
“the wall” section 218 of the PATRIOT Act
FISA (cont.) FISA warrants authorize government investigations
for 120 days and may be renewed for up to a year FISA authorizes the U.S. attorney general to conduct
the emergency surveillance of U.S. citizens and residents for seven days (or longer for a non-citizen) before obtaining a warrant
pen registers are employed to record telephone numbers dialed from a phone
trap-and-trace devices record the numbers of incoming calls
e-mail and voice mail roving wiretaps emergency electronic surveillance
Sneak and Peek Warrants anticipatory searches authorizes law enforcement to delay notifying an
individual that they have conducted a search Section 213 30 day delay, 90 day extension tangible/intangible evidence
Information and Records United States v. Miller national security letters seizure of business records
Detention of Noncitizens Section 412: a noncitizen may be detained for
seven days without being charged with a criminal or immigration violation
the attorney general of the United States must certify that there are “reasonable grounds to believe” that an immigrant is a terrorist or has engaged in terrorist activities
Material Witness Warrants the government is able to arrest a witness whose testimony is
material to a grand jury investigation or to a criminal prosecution and who may be unavailable at a later date to testify or who may flee in order to avoid testifying
such individuals are to be released following their testimony Department of Justice: every individual detained under a
material witness warrant has been found to have relevant information
proposed reforms limits on the length of detention very high burden of proof of flight risk detained persons should be informed as to why
Monitoring of Lawyer-Client Communications
available where “reasonable suspicion exits to believe that a pre-trial detainee or an inmate may use communications with attorneys . . . to further or facilitate acts of terrorism”
attorney-client privilege to keep communications confidential does not apply where communications are intended to “facilitate criminal acts or a conspiracy to commit criminal acts” and are not related to “seeking or providing legal advice”
may be undertaken without a warrant required notification of attorneys
Interrogations
enhanced interrogation techniques used on high-value detainees
Article III of the Geneva Conventions enemy combatants Detainee Treatment Act of 2005 changes from Bush to Obama policy
Military Commissions and Combat Status Review Tribunals
military commissions Authorization for Use of Military Force provide most of the basic rights that are considered
important to a fair trial possess the flexibility to limit these rights in the
interest of protecting national security Department of Defense, Military Commission
Order No. 1 Rasul v. Bush
Military Commissions (cont.)
Hamdi v. Rumsfeld combatant status review tribunals administrative review boards Hamdan v. Rumsfeld flaws of the military commissions
exclusion from trial failure to follow rules of evidence jury verdicts limited appeals
Military Commissions (cont.)
Military Commissions Act of 2006 Boumediene v. Bush announced closure of Guantanamo Guantanamo prosecutions debate whether terrorism should be treated as an act of
war and prosecuted before a military commission or as a common crime and prosecuted before civilian criminal courts