Terrorism Coady Notes That it

Terrorism

Coady notes that it is important to define terrorism because it is necessary to properly address the moral issues surrounding it. He defined terrorism as "the organized use of violence to attack noncombatants or their property for political purposes" (Halwani 2006). Igor Primoratz defines terrorism as "the deliberate use of violence, or threat of its use, against innocent people, with the aim of intimidating some other people into a course of action they otherwise would not take" (Halwani 2006). And Frederick H. Gareau defines terrorism as consisting of "deliberate acts of a physical and/or psychological nature perpetrated on a select group of victims...The overall purpose of terrorism is to intimate and coerce" (Gutierrez 2006). In the March 22, 2002 issue of the Harvard Journal of Law and Public Policy, Noah Feldman notes that in the wake of the September 11th attacks, there arose the need to coordinate the roles among crime-fighting agencies such as the Federal Bureau of Investigation, and war-oriented or foreign-oriented institutions such as the military and the Central Intelligence Agency, for the separation of such roles had ill served the objective of preventing domestic terror (Feldman 2002). Therefore, fighting terrorism requires coordination between law enforcement agencies, the CIA, and the military.

In October 2001, President George W. Bush authorized the National Security Agency "to intercept the international communications of people with know links to al Qaida and related terrorist organizations" (Donohue 2006). When news of the program became public knowledge in 2005, Attorney General Alberto Gonzales defended Bush's power to ignore warrants required under the Foreign Intelligence Surveillance Act or Title III of the Omnibus Crime Control and Safe Streets Act, for Congress had authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the September 11th attacks (Donohue 2006). Prior to the twentieth century, the use of surveillance for national security reasons was generally limited to times of actual war (Donohue 2006).

Under ordinary circumstances, an individual would have a reasonable expectation of privacy and thus under the Fourth Amendment, surveillance would require a warrant, however under the new restrictions, the Foreign Intelligence Surveillance Act considered any "acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication," and central to the statute was that by definition, consent had not been given by the target (Donohue 2006). The FISA provided three ways to initiate surveillance: Attorney General Certification, application to the Foreign Intelligence Surveillance Court, and emergency powers, and of these, the second serves as the principle means through which surveillance is conducted (Donohue 2006).

Seven weeks after the September 11th attacks, the United States Patriot Act was enacted, granting the federal government new powers to expand surveillance, curtail financing, and deport aliens in connection with terrorist activity (Sinnar 2003). The statute expanded the range of aliens who could be excluded or deported from the U.S. On terrorism-related grounds and reduced the procedural protections available to them (Sinnar 2003). The new act stated that immigrants "certified" as threats to national security had to be held in government custody without bond pending deportation proceedings and removal from the United States, and that detention could become indefinite for immigrants found to be deportable but whom other countries decline to accept (Sinnar 2003). Section 411 of the act expands the grounds on which immigrants can be excluded or deported for reasons of terrorism, and section 412 establishes a new mechanism for certifying and detaining immigrants pending removal (Sinnar 2003).

The new criteria cover not only individuals who plot or participate in acts of terrorism, but also those who are more remotely affiliated with proscribed organizations (Sinnar 2003). Prior to the Patriot Act, the U.S. Secretary of State designated particular groups as "foreign terrorist organizations" in a specific procedure under section 219 of the Immigration and Nationality Act, which limited designation to foreign groups that engaged in terrorism and that threatened U.S. national security or the security of U.S. nationals (Sinnar 2003). Section 411 of the Patriot Act broadened the concept of terrorist organizations to include any group that the government deemed to be a "group of two or more individuals, whether organized or not" that engages in committing, inciting, or planning a terrorist activity, and makes inadmissible or deportable any alien who has raised funds, solicited members, or provided material support to any of these groups, or likely to do so in the future (Sinnar 2003).

Two major changes to the FISA that the Patriot Act made was that it allowed applications where foreign intelligence constituted only "a significant purpose" for the investigation and it authorized the state to obtain tangible objects (Donohue 2006). Prior to the Act, FISA applications required that the gathering of foreign intelligence be the reason for search or surveillance, however the new law allowed for applications when foreign intelligence provided merely a significant reason (Donohue 2006). According to the Attorney General, even if the primary ends of the surveillance related to ordinary crime, authorization could be sought, guidelines which eventually dropped the wall between the FBI's prosecution and intelligence functions, allowing the agency to go around the Fourth Amendment (Donohue 2006).

The USA PATRIOT Improvement and Reauthorization Act of 2005 made all but two of the temporary surveillance powers permanent: roving wire taps under the FISA, and FBI authority, with a court order, to obtain tangible items such as books, records, papers and documents, for foreign intelligence and international terrorism investigations (Donohue 2006). It also introduced new counter-terrorism powers, along with anti-drug measures aimed at preventing the bulk purchase of ingredients used in the manufacture of methamphetamine (Donohue 2006).

According to Michael J. Bulzomi in the July 2002 issue of The FBI Law Enforcement Bulletin, the goal of U.S. law enforcement investigating international terrorism is to "identify the terrorists, deter future terrorist attacks, seize financial assets, and build cases that will lead to the conviction of those involved in terrorists attacks," all the while ensuring the "security and safety of citizens against individual rights" (Bulzomi 2002). Federal, state and local investigators work together on terrorist task forces investigating international terrorist cases that will be brought before state and/or federal courts (Bulzomi 2002). Because investigators must gather evidence and assets from within the U.S. And from foreign sources, cooperation with foreign law enforcement and security agencies is required (Bulzomi 2002). Subjects may include foreign nationals, as well as American citizens living abroad. Bulzomi notes that the "citizenship of suspects and the level of participation of American law enforcement in the overseas investigation will determine the legal standards to which American investigators will be held when prosecuting these cases" (Bulzomi 2002).

U.S. magistrates do not have the authority to issue search warrants for overseas searches, however one way of gather evidence from foreign jurisdictions is through the use of a mutual legal assistance treaty, and should one not exist between the United States and the foreign nation involved, then a letter rogatory or a subpoena may be sought (Bulzomi 2002). MLATs establish procedures by which evidence may be obtained by the U.S. from foreign nations, and allow federal prosecutors to request foreign law enforcement officials to gather evidence in their countries for the use in U.S. legal proceedings, or terms may include the actual involvement of U.S. officials in the evidence gathering process (Bulzomi 2002). The major advantage of a mutual legal assistance treaty is that compliance on the part of the signatories is mandatory. As of 2002, the U.S. had entered into MLATs with thirty-four nations (Bulzomi 2002). If a MLAT does not exist between the U.S. And the foreign country involved, then investigators may consider a letter rogatory, which is simply authority from a federal court to request the assistance of the foreign jurisdiction that may honor the request by using evidence-gathering tools allowed by their own laws and then forward the information or evidence to the U.S. authorities, however assistance is discretionary on the part of the foreign nation (Bulzomi 2002). American authorities might also consider issuing subpoenas to persons or entities located within the U.S. that have actual or constructive possession of the information located overseas, however some courts may refuse to enforce subpoenas for evidence located outside the U.S. On comity grounds because compliance with the subpoena could expose the party to criminal liability under the foreign country's laws (Bulzomi 2002).