Chapter 9

Crimes Against the Government and Terrorism

Supplement 9.1 Examples of Statutes Covering Perjury and Related Crimes.

Federal Statute. USCS, Chapter 18, Section 1621 (2016). Perjury Generally

Whoever

(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a

law of the United States authorizes an oath to be administered, that he will testify, declare,

depose, or certify truly, or that any written testimony, declaration, deposition, or certificate

by him subscribed, is true, willfully and contrary to such oath states or subscribes any

material matter which he does not believe to be true; or

(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted

under [another statute] willfully subscribes as true any material matter which he does not

believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by

law, be fined under this title or imprisoned not more than five years, or both.

Hawaii HRS, Section 710-1060 (2015). Perjury

(1) A person commits the offense of perjury if in any official proceeding the person makes,

under an oath required or authorized by law, a false statement which the person does not

believe to be true.

(2) No person shall be convicted under this section unless the court rules that the false statement

is a “materially false statement” as defined by [another section]. It is not a defense that the

declarant mistakenly believed the false statement to be immaterial.

Virgin Islands, V.I.C., Title 14, Section 1548 (2015). Subornation of Perjury

Whoever willfully procures or induces another to commit perjury, shall be imprisoned not more

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than 10 years.

V.I.C., Title 14, Section 1549 (2015). Perjury Resulting in Conviction of Innocent Person

Whoever, by willful perjury or subornation of perjury, procures the conviction and punishment of

any innocent person, is punishable by the same penalty that was inflicted upon such innocent

person; but in no case shall the punishment be less than one year imprisonment.

Connecticut Conn. Gen. Stat., Section 53a-156 (2016). Perjury: Class D Felony

a) A person is guilty of perjury if, in any official proceeding, he intentionally, under oath,

makes a false statement, swears, affirms or testifies falsely, to a material statement which he

does not believe to be true.

Supplement 9.2 Civil Rights Charges Against Law Enforcement Officials.

Allegations of mistreatment by law enforcement officers are difficult to prove, and many are not

prosecuted at the local level according to some reports. The FBI has had some success in prosecuting law

enforcement officers, as illustrated by the 2010 conviction of a former Chicago police commander, Jon

Burge, 60, of Apollo Beach, Florida. Burge was convicted of perjury and obstruction of justice for

providing false statements in a civil lawsuit alleging that he and others tortured and abused suspects who

were in their custody. Burge testified that he did not participate in or know about any of the following

allegations of torture: administering electric shocks to suspects’ genitals; burning suspects on radiators

and threatening them with loaded guns; and suffocating suspects with typewriter covers. The events

occurred during the 1980s; the hearings occurred in 2003. According to one federal official:

For decades, Jon Burge’s horrific actions ran contrary to all that our justice system stands for.

Burge betrayed the public trust, first by abusing suspects in his custody, and then by lying under

oath to cover up what he and other officers had done. . . . The Civil Rights Division [of the FBI]

will aggressively prosecute any officer who violates the Constitution.1

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Burge was sentenced to 4-1/2 years in prison for his crimes. He was released from a halfway

house near his home in Tampa, Florida, in 2015 and quickly spoke out, condemning the $5.5 million

reparations fund Chicago established for the torture victims. Burge referred to the victims as “human

vermin” and alleged that the city would settle any case because it costs less than fighting. Plaintiffs’

attorney referred to Burge as a “serial human rights violator who has committed racist crimes against

humanity too numerous to count.”2

Federal trials may also occur after the failure of local or state trials, as illustrated by the well-

known case involving the 1991 beating of Rodney King, an African American suspect. The beating by

Los Angeles police officers was captured on video by an amateur photographer, but the officers were

acquitted at their trial in nearby Simi Valley. These acquittals were followed by three days of intense

rioting in Los Angeles, causing the deaths of more than 50 persons and property damage in excess of $1

billion.

Subsequently the officers were tried in federal court on charges of violating King’s federal civil

rights. Two of the officers, Timothy Wind and Theodore Brisno, were acquitted, but Sergeant Stacey

Koon and Officer Laurence Powell were convicted. Koon and Powell began serving their 2-1/2-year

prison terms at a minimum security facility in October 1993.

In August 1994, a federal appeals court ordered resentencing because the trial judge failed to

follow the federal sentencing guidelines (discussed in Chapter 11 of the text), which could have sent the

defendants to prison for 70 to 87 months. The U.S. Supreme Court ruled on the case, giving credence to

the discretion of trial judges who sentence under federal sentencing guidelines. The Court approved the

trial judge’s consideration of the fact that Koon and Powell had endured a significant burden because of

trials in state and federal courts and that they were at risk of abuse by other inmates in prison. It did not

approve the trial court’s consideration of the low probability that the defendants would commit these or

similar offenses again and the adverse effects that the convictions would have on their careers. The

Supreme Court did, however, hold that it was appropriate for the lower court to consider King’s behavior,

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which contributed significantly to provoking the defendants’ misconduct. The case was sent back for the

trial judge to decide whether the sentence was appropriate under the U.S. Supreme Court’s interpretation

of the federal sentencing guidelines. After reconsidering his initial decisions, the trial judge did not alter

the original sentences of Koon and Powell.3

Koon and Powell served time in prison, were released for brief stays in halfway houses, and then

were released unconditionally. Despite what some considered lenient sentences, the case does

demonstrate that federal civil rights charges may be successful after (or in lieu of) state charges.

Supplement 9.3 Excerpts from the Court Decision Reversing Barry Bonds’ Conviction for

Obstruction of Justice.

United States v. Bonds

784 F.3d 582 (9th Cir. 2015), cases and citations omitted

“During a grand jury proceeding, defendant gave a rambling, non-responsive answer to a simple

question. Because there is insufficient evidence that Statement C was material, defendant’s conviction for

obstruction of justice in violation of 18 U.S.C. Section 1503 is not supported by the record. Whatever

action 1503’s scope may be in other circumstances, defendant’s conviction here must be reversed.

A reversal for insufficient evidence implicates defendant’s right under the Double Jeopardy

Clause. His conviction and sentence must therefore be vacated, and he may not be tried again on that

count.

REVERSED.

[In the body of the opinion, the court quotes and explains the relevant statute]:

Title 18 U.S.C., Section 1503(a), which defendant was convicted of violating, provides in

relevant part as follows: “Whoever . . . corruptly or by threats or force, or by any threatening letter of

communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due

administration of justice, shall be punished as provided in subsection (b).” Known as the omnibus clause,

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this language “was designed to proscribe all manner of corrupt methods of obstructing justice.” We have

held that a defendant “corruptly” obstructs justice if he acts “with the purpose of obstructing justice.” . . .

[The court notes that this is very broad and gives several examples of behaviors that could be

included.]

Stretched to its limits, section 1503 poses a significant hazard for everyone involved in our

system of justice, because so much of what the adversary process calls for could be construed as

obstruction. . . . Witnesses would be particularly vulnerable because, as the Supreme Court has noted,

“[u]nder the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to

give answer that are not entirely responsible.”

Lawyers face the most pervasive threat under such a regime. Zealous advocacy sometimes calls

for pushing back against an adversary’s just case and casting a despicable client in a favorable light, yet

such conduct could be described as “endeavor[ing] to . . . impede . . . the administration of justice.” Even

routine advocacy provides ample occasion for stumbling into the heartland of the omnibus clause’s

sweeping coverage. Oral arguments provide a ready example. One need not spend much time in one of

our courtrooms to hear lawyers dancing around questions from the bench rather than giving pithy, direct

answers. . . .

It is true that any such maneuver would violate section 1503 only if it were done “corruptly.” But

it is equally true that we have given “corruptly” such a broad construction that it does not meaningfully

cabin the kind of conduct that is subject to prosecution. . . .

Making everyone who participates in our justice system a potential criminal defendant for

conduct that is nothing more than the ordinary tug and pull of litigation risks chilling zealous advocacy. It

also gives prosecutors the immense and unreviewable power to reward friends and punish enemies by

prosecuting the latter and giving the former a pass. The perception that prosecutors have such a potent

weapon in their arsenal, even if never used, may well dampen the fervor with which lawyers, particularly

those representing criminal defendants, will discharge their duties. The amorphous nature of the statute is

also at odds with the constitutional requirement that individuals have fair notice as to what conduct may

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be criminal. . . .

[For these reasons, the court states that the statute] calls for prudential limitations on the

government’s power to prosecute under it. Such a limitation already exists in our case law . . . : the

requirement of materiality. . . . [The statement must also be read in context.]

We start with the self-evident proposition that Statement C, standing alone, did not have the

capacity to divert the government from its investigation or influence the grand jury’s decision whether to

indict anyone. Here it is again:

That’s what keeps our friendship. You know, I am sorry, but that—you know, that—I was a

celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous

father. I just don’t get into other people’s business because of my father’s situation, you see.

The statement says absolutely nothing pertinent to the subject of the grand jury’s investigation. Even

when paired with the question that prompted it,

Did Greg ever give you anything that required a syringe to inject yourself with?

Statement C communicates nothing of value or detriment to the investigation. Had the answer been “I’m

afraid of needles,” it would have been plausible to infer an unspoken denial, with the actual words serving

as an explanation or elaboration. But, as given, the answer did not enlighten, obfuscate, confirm or deny

anything within the scope of the question posed.

The most one can say about this statement is that it was non-responsive and thereby impeded the

investigation to a small degree by wasting the grand jury’s time and trying the prosecutor’s patience. But

real-life witness examinations, unlike those in movies and on television, invariably are littered with non-

responsive and irrelevant answers. . . .

An irrelevant or wholly non-responsive answer says nothing germane to the subject of the

investigation, whether it’s true or false. . . . [The court looks at the whole record as the statements quoted

do not stand alone.]

On careful review of the record, we find insufficient evidence to render Statement C material. In

conducting this review, we are mindful that we must give the jury the benefit of the doubt and draw all

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reasonable inferences in favor of its verdict. . . .

The government charged a total of seven statements, only one of which the jury found to be

obstructive. Two of these statements (including Statement C) appear to be wholly irrelevant—verbal

detours with no bearing on the proceedings. One statement is “I don’t know,” followed by a brief

explanation for the lack of knowledge. The rest are direct answers that the government claimed were

false, all concerning whether defendant’s trainer had provided or injected him with steroids. In the context

of three hours of grand jury testimony, these six additional statements are insufficient to render the

otherwise innocuous Statement C material. If this were enough to establish materiality, few witnesses or

lawyers would be safe from prosecution.”

______________________________________________________

A blistering dissent referred to the above opinion and that of the concurring justice by stating that

they “have struck out.” The dissent then proceeded to give “three strikes” for its opinion. Federal

prosecutors subsequently announced that they would not petition the U.S. Supreme Court to hear the case.

Supplement 9.4 Treason and Petit Treason.

The U.S. Criminal Code’s chapter entitled “Treason, Sedition, and Subversive Activities” contains

numerous sections defining the relevant crimes and their punishments. The punishment for treason

against the United States is death or imprisonment for not less than five years and a fine of not less than

$10,000. A person convicted of treason under the federal code may not hold any office in the U.S.

government.4 In view of the U.S. Supreme Court’s decisions regarding capital punishment (discussed in

the text in Chapter 11), the constitutionality of the death penalty for treason may be questioned.

In his Commentaries on the Laws of England, noted English jurist William Blackstone stated that

implicit in the word treason is “betraying, treachery, or breach of faith.” Treason referred not only to an

act against the king and government but also to situations in which an inferior betrayed a superior.

Treason thus included the actions of a wife against her lord or husband and of a servant against his master

or mistress, although these offenses were called petit treason.5 For that offense the penalty was drawing

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and hanging for a male offender, drawing and burning for a female. The word drawing meant to drag the

offender by horse to the place of execution. Petit treason did not become part of U.S. legal tradition,

although some states, such as California, enacted a petit treason statute but subsequently repealed it, as

noted here:

Petit treason abolished

The rules of the common law distinguishing the killing of a master by his servant, and of a

husband by his wife, as petit treason, are abolished, and these offenses are homicides, punishable

in the manner prescribed by this chapter.6

Supplement 9.5 Cases of Espionage in the United States.

The most famous spy case in U.S. history involved the execution in 1953 of Julius and Ethel Rosenberg,

who were accused of providing protected information to the Soviet Union during World War II by

delivering secrets about the atomic bomb. They were convicted of conspiracy to violate the federal

espionage act. In 1993, the American Bar Association observed the fortieth anniversary of the

Rosenbergs’ executions with a mock trial during which the Rosenbergs were “acquitted,” with the jury

ruling that the prosecution’s case was shabby.7

The Rosenbergs’ two sons, Robert, age 6, and Michael, age 10, were placed in the care of their

grandmother. When she could no longer care for them, they were adopted by Abel and Anne Meeropol,

and they took the couple’s last name. The sons attempted for years to clear their parents’ names, but as

one stated, “It’s much harder to prove someone innocent than to prove them guilty.” There were

procedural and other issues with the case, as noted by the mock trial, but a 2008 confession by Julius

Rosenberg’s former classmate and codefendant, Morton Sobell, apparently convinced the sons that at

least their father was guilty. According to Michael, “I don’t have any reason to doubt Morty,” although

they did question the seriousness of the information their father may have given and concluded that their

mother was “convicted on flimsy evidence to place leverage on her husband; and neither deserved the

death penalty.”8

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In 2010, Walter Kendall Myers, a former U.S. State Department official, was sentenced to life in

prison without the possibility of parole after he pled guilty to one count of espionage conspiracy and two

counts of wire fraud for his criminal acts over almost 30 years. His wife, Gwendolyn Steingraber Myers,

was sentenced to 81 months in prison after she pled guilty to one count of conspiracy to obtain and

transmit national defense information. Both accepted a monetary judgment against them in the amount of

$1,735,054. Both defendants were charged with providing information to the Republic of Cuba.9

In 2009, federal prosecutors arrested Stewart David Nozette, 52, a Maryland scientist with the

U.S. Department of Defense and the National Aeronautics and Space Administration. Nozette was

charged with attempted espionage. Prosecutors, who called him a “walking safe deposit box” of

government secrets, some of which he had already given to Israel, were successful in their argument that

he should be held without bail. FBI agents claimed that Nozette sought $2 million for selling secrets to an

undercover agent who posed as an Israeli intelligence officer. In September 2011, Nozette entered guilty

pleas and agreed to a prison sentence of 13 years.10

In June 2010, after intensive investigation for almost a decade, the FBI arrested 10 alleged

Russian agents and obtained guilty pleas in exchange for four Russians held in Russian prisons. Each pled

guilty to “one count of conspiracy to act as an agent for a foreign government within the United States.”

They were sentenced to time served. All defendants were required to reveal their true names and forfeit

any assets they may have gained from their crimes. In a plea arrangement negotiated by high-level U.S.

authorities after consultation with President Barack Obama and just 11 days after their arrests, the 10

agents were flown from the United States to Vienna, Austria, on a charter flight, where they were

exchanged for four prisoners released by Russia and flown to Vienna. The exchange occurred on the

airport tarmac. The four Russians released by the Russian Federation to the United States were required to

sign confessions to espionage as a condition of their release, but they were immediately pardoned. Why

these four? According to an expert on espionage, “We obviously feel some obligation to them . . . . You

don’t leave your men behind on the battlefield.”11

In November 2015, Jonathan J. Pollard, a Navy intelligence analyst who was convicted of

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espionage for spying for Israel and sentenced to life in prison, was released on parole after serving 30

years in a U.S. prison but denied permission to return to Israel, where his wife lives. He cannot leave the

United States for five years without the government’s permission.12

Supplement 9.6 Economic Espionage and the Case of Sergey Aleynikov.

Sergey Aleynikov was arrested in 2009 and charged with corporate economic espionage. He served one

year in prison before his conviction was reversed by the U.S. Court of Appeals for the Second Circuit on

17 February 2012. Aleynikov, a programmer for Goldman Sachs Group Inc., was alleged to have copied

trading codes of the corporation and was charged under the federal Economic Espionage Act of 1966. He

was subsequently convicted of a state crime of “unlawful use of secret scientific material,” alleged to be a

violation of a 1967 law rarely invoked. In July 2015, that conviction was overturned. In a 72-page

opinion, the judge in the latter case, Manhattan Supreme Court Justice Daniel Conviser, wrote that

although the defendant no doubt acted wrongly when he copied information from the Goldman servers

before he left the company in 2009, the prosecution did not prove that he committed “the obscure crime”

of an “unlawful use of secret scientific material.” The judge stated that the prosecution in this case relied

on a 1967 law that was enacted prior to the advent of modern computer technology and thus was not

applicable. According to the judge, trying to convict this defendant under that old law was analogous to

trying to “fit a square peg in a round hole.” The defendant’s attorney said the decision was “a resounding

vindication of the American system of government.” According to the judge, the prosecution did not

prove that the defendant made a “tangible reproduction” of the code, “or intended to take most of its

value” as required by the statute.13

Supplement 9.7 Treason and Related Statutes.

Treason Alabama, Code of Ala., Section 13 13A-11-2 (2015).

(a) A person commits the crime of treason if he levies war against the State of Alabama or

adheres to its enemies, giving them aid and comfort.

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(b) No person shall be convicted of treason unless upon the testimony of two witnesses to the

same overt act or upon confession in open court.

Treason Arkansas, A.C.A., Section 5-51-201 (2015).

(a) Treason against the state shall consist only in:

(1) Levying war against the state; or

(2) Adhering to its enemies, giving them aid and comfort.

(b) No person shall be convicted of treason unless on:

(1) The testimony of two (2) witnesses to the same overt act; or

(2) The person’s own confession in open court.

Misprision of treason California, Cal. Penal Code, Section 38 (2015).

Misprision of treason is the knowledge and concealment of treason, without otherwise assenting

to or participating in the crime.

Misprision of treason Florida, Fla. Stat., Section 876.33 (2015).

Whoever having knowledge of the commission of treason conceals the same and does not, as

soon as may be, disclose and make known such treason to the Governor or one of the justices of

the Supreme Court or a judge of the circuit court, shall be judged guilty of the offense of

misprision of treason.

Misprision of treason Vermont, V.S.A., Title 13, Section 3403 (2015).

A person owing allegiance to this state, knowing such treason to have been committed, or

knowing of the intent of a person to commit such treason, who does not, within fourteen days

from the time of having such knowledge, give information thereof to the governor of the state, to

one of the justices of the supreme court, a superior or district judge or a justice of the peace, shall

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be guilty of misprision of treason.

Florida, Fla. Stat., Section 876.36 (2015). Inciting insurrection

If any person shall incite an insurrection or sedition amongst any portion or class of the

population of this state, or shall attempt by writing, speaking, or by any other means to incite

such insurrection or sedition, the person so offending shall be guilty of a felony of the second

degree.

The federal criminal code defines sedition, in part, as follows:

[W]hoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity,

desirability, or propriety of overthrowing or destroying the government of the United States or

any state, territory, district or possession thereof, or the government of any political subdivision

therein, by force or violence or by the assassination of any officer of any such government; or

Whoever, with intent to cause the overthrow or destruction of any such

government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly

displays any written or printed matter advocating, advising, or teaching the duty,

necessity, desirability, or propriety of overthrowing or destroying any government in the

United States by force or violence or attempts to do so. . . .14

Thus, sedition is a communication or agreement aimed at stirring up treason or defaming the government.

See again Florida’s statute prohibiting inciting insurrection, quoted above.

Supplement 9.8 Additional Information on Terrorism.

A. Categories of Terrorism

Long before the terrorist attacks in the United States and other countries, the Task Force on Disorders and

Terrorism divided terrorism into six categories:

Civil disorders: “[A] form of collective violence interfering with the peace, security, and normal

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functioning of the community.”

Political terrorism: “[V]iolent criminal behavior designed primarily to generate fear in the

community, or a substantial segment of it, for political purposes.”

Nonpolitical terrorism: Terrorism that is not aimed at political purposes but that exhibits

“conscious design to create and maintain a high degree of fear for coercive purposes, but the end

is individual or collective gain rather than the achievement of a political objective.”

Quasi-terrorism: “Those activities incidental to the commission of crimes of violence that are

similar in form and method to true terrorism but which nevertheless lack its essential ingredient.”

It is not the main purpose of the quasi-terrorists “to induce terror in the instant victim,” as in the

case of true terrorism. Typically, the fleeing felon who takes a hostage is a quasi-terrorist, whose

methods are similar to those of the true terrorist but whose purposes are quite different.

Limited political terrorism: “[A]cts of terrorism which are committed for ideological or political

motives but which are not part of a concerted campaign to capture control of the State.” Limited

political terrorism differs from real terrorism in the former’s lack of a revolutionary approach.

Official or state terrorism: Activities carried out by “nations whose rule is based upon fear and

oppression that reach terrorist proportions.”15

Any of these categories of terrorism may consist of acts or threats or both.

Terrorist acts may also be categorized as classical or as modern. The Task Force discussed

several characteristics that distinguish modern terrorism from classical terrorism. First, as the result of our

technological vulnerability, the potential for harm is greater today than in the past. This development,

which includes improved intercontinental travel and mass communication, has increased the bargaining

power of the modern terrorist. Second, television carries the terrorists’ actions to the entire world, giving

modern terrorists more power than classical terrorists. Finally, modern terrorists believe that through

violence they can maintain or increase hope for their causes.

In addition to categorizing terrorism, it is possible to articulate some of the objectives, strategies,

and tactics of terrorist acts and of terrorists.

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B. Terrorism Objectives, Strategies, and Tactics

A primary objective of terrorists is to create violence or to instill the fear of violence, as well as to destroy

the confidence people have in their government.

Terrorist groups have been categorized as xenofighters, who fight for foreigners, or homofighters,

who fight for their own people. Often xenofighters are seeking removal of a foreign power or a change of

political boundaries regarding a foreign power. They have such goals as the following:

To attract international attention

To harm the relations of the target country with other nations

To cause insecurity and to damage the economy and public order in the target country

To build feelings of distrust and hostility toward the government among the target country’s

population

To cause actual damage to civilians, security forces, and property in the target country16

Homofighters must win the support of their compatriots in their fight to discredit their own

government; thus they must adopt policies that do not alienate the citizenry. One approach is the Robin

Hood demand, in which terrorists use an acceptable cause to justify their unacceptable tactics. The

kidnapping of Patricia Hearst in 1974 is an example; the Symbionese Liberation Army demanded that

Hearst’s family distribute free food to the needy.

Some of the strategies and tactics used by homofighters are as follows:

Undermining internal security, public order, and the economy in order to create distrust of the

government’s ability to maintain control

Acquiring popular sympathy and support by positive action

Generating popular repulsion from extreme counterterrorist repressive measures

Damaging hated foreign interests

Harming the international position of the existing regime

Causing physical damage and harassing persons and institutions that represent the ruling regime17

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C. Terrorism Victims

In one sense all of society is victimized by terrorist acts. The action taken against the immediate victim is

coercive, designed to impress others. The immediate victims may be involved incidentally, as when they

are killed by a randomly placed bomb, or they may be selected with considerable discrimination, as, for

example, when a prominent politician is assassinated or a businessperson is kidnapped. Terrorism is

characterized by gross indifference toward the victims, which includes their dehumanization and their

treatment as mere elements in a deadly power play. All of these characteristics were evident in the

terrorist acts of 9/11. The randomness of victimization by terrorism is illustrated by most of the examples

in the text. The ultimate objective of the terrorist, particularly the political terrorist, is the establishment of

a bargaining position, so the identity of the victims is unimportant in most cases. Kidnapping and taking

hostages are terrorist techniques par excellence for this purpose. The victims are treated largely as objects

to be traded for what the terrorist wants: money, release of prisoners, publication of manifestos, escape,

and so on. These bargains are extralegal and rest on a recognition of the powers of life and death that the

terrorist holds over victims. This aspect raises serious social, political, and humanitarian issues for those

who must make these awesome decisions affecting the lives and safety of the victims. For example, the

United States, England, and other countries refused to negotiate with Iraqi terrorists who captured their

citizens and threatened to behead them if the countries did not follow their demands—to withdraw troops

from Iraq, release Iraqi women from English prisons, and so on. The 2004 executions of British citizen

Kenneth Bigley, 62, along with Americans Jack Hensley, 48, and Eugene Armstrong, 52, all taken

hostage in Iraq, came after pleas from their families to spare their lives. The beheadings were filmed and

made public. In more recent years, terrorist beheadings have been placed on social media.

Terrorist victimization produces special individual and collective traumas. Many hostages and

kidnap victims experience incongruous feelings toward their captors, and the events may constitute a

serious challenge to their own value systems. The most striking manifestation of this is the Stockholm

syndrome, named after an incident that occurred in the Swedish capital in 1973. The Stockholm syndrome

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is a feeling of empathy toward the hostage takers and a displacement of frustration and aggression on the

part of the victims toward authorities. In some terrorist acts, such as those of 9/11, death and destruction

occur so rapidly that the Stockholm syndrome concept is not applicable. In others, such as the kidnapping

of Patty Hearst, the syndrome applies. Hearst identified with her captors and was subsequently convicted

of willingly participating with them in a bank robbery. Hearst served time in prison. In 2001, President

Bill Clinton pardoned her.

Another way in which many individuals are victimized by terrorist attacks is in the creation of

fear that leads people to change their lifestyles. This occurred among many Americans who were not

direct victims of the 9/11 events but who feared additional terrorist acts. Perhaps the fear of flying that led

many to cancel flights (or decline to book them) after these events was the greatest manifestation of the

fear created by the terrorist acts of that day. All Americans were victimized by the enormous cost to

taxpayers of the increased airport and other types of security instituted after the 9/11 and subsequent

terrorist attacks. The initial declines in the stock market and massive layoffs and firings at some

companies sent shock waves throughout much of the economy. These and other financial setbacks are, to

some extent, associated with recent terrorist acts.

Victimization as we have known it, however, may be mild compared with the implications of the

next topic: weapons of mass destruction.

D. Weapons of Mass Destruction and the FBI’s Efforts

Terrorism today is potentially more deadly than in the past, as we now have weapons that have the

capacity to destroy not only thousands or millions of people but also entire cities, states, and countries.

The seriousness and potential harm from weapons of mass destruction (WMDs), along with the belief that

Iraq had WMDs and would use them, led the United States and Great Britain to invade and occupy Iraq in

the spring of 2003, despite the lack of support from other countries and the inability of United Nations

inspectors to locate such weapons in 2002 and 2003. No WMDs were found.

The FBI uses the definition of WMDs found in the federal criminal code:

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(A) any destructive device as defined in section 921 of this title (i.e. explosive device);

(B) any weapon that is designed or intended to cause death or serious bodily injury through the

release, dissemination, or impact of toxic or poisonous chemicals, or their precursors;

(C) any weapon involving a biological agent, toxin, or vector (as those terms are defined in

section 178 of this title)

(D) any weapon that is designed to release radiation or radioactivity at a level dangerous to

human life.18

In 2006, the FBI established the Weapons of Mass Destruction Directorate (WMDD) to assist the

agency with its four major areas of focus regarding WMDs: preparedness, countermeasures,

investigations/operations, and intelligence. According to the FBI, the purpose of the WMDD is

to create a unique combination of law enforcement authorities, intelligence analysis capabilities,

and technical subject matter expertise that exists nowhere else in the U.S. government. The

creation of WMDD enabled the FBI to focus its WMD preparedness prevention and response

capabilities in a single, focused organization rather than through decentralized responsibilities

across divisions.19

In 2011, the FBI established its Counterproliferation Center (CPC) to combat what it called “a

significant threat” from “the spread of WMD and other technologies.” The CPC is a component of the

FBI’s National Security Branch, and its purpose is to combine its efforts with private as well as other

government sectors in an effort to prevent the use and spread of WMDs.20

E. States and WMDs

States have also taken legislative action to counter WMDs and other terrorist threats. For example,

Virginia defines a weapon of terrorism as

any device or material that is designed, intended or used to cause death, bodily injury or serious

bodily harm, through the release, dissemination, or impact of (i) poisonous chemicals; (ii) an

infectious biological substance; or (iii) release of radiation or radioactivity.21

17

Virginia statutes provide that if a victim dies as the result of a terrorist act, the perpetrator may be

charged with capital murder.22

Supplement 9.9 Countering Violent Extremism.

The FBI has launched a New Awareness Program for Teens in an effort to discourage young people from

joining terrorist groups. The agency has developed an interactive website “to open the eyes of teens to the

devastating reality and deceptive messaging of violent extremism and to help strengthen their resistance

to radicalization and possible recruitment. (https://cve.fbi.gov, accessed 26 April 2016). The FBI’s

introduction to its new program, which is entitled, “Don’t Be a Puppet: Pull Back the Curtain on Violent

Extremism,” is reproduced in part:

“Today like never before, violent extremists of all kinds are deliberately targeting our nation’s

young people with poisonous propaganda—especially in cyberspace, where they are flooding social

media with slick recruiting videos and persuasive calls to action.

The FBI’s investigations and analysis indicate that these efforts—to a disturbing degree—are

succeeding. Across America, there are young people who are embracing various forms of violent

extremism, actively communicating with violent extremist groups in the U.S. or leaving their families and

traveling to war zones thousands of miles away to enlist in violent extremist movements—some are even

plotting and launching attacks in the U.S. and overseas.

In this hyper-connected world—where violent extremist information is only a click away—it’s

more crucial than ever that young people learn what violent extremism is, how it hurts innocent victims

and perpetuates violence, and how its recruiting strategies are intended to deceive.

Today, as part of its leading role in helping to prevent terrorist attacks and in sharing its expertise

on public safety issues, the FBI is taking the next step in educating communities on violent extremism by

launching a new, free program for teens nationwide. [The website goes into detail on the Don’t Be A

Puppet program and then concludes:]

Incidents like the Charleston shootings and the Boston Marathon bombings have demonstrated

18

that extremist violence transcends race and religion and can have a devastating impact on communities.

It’s the FBI’s hope that the new initiative can make a difference in helping to keep young people from

being radicalized and recruited, now and in the future.23

In March 2016, the “country’s first jury trial involving a violent act committed in the name of the

Islamic State” resulted in the conviction of Abdul Malik Abdul Kareen, 44, a convert to Islam, who was

convicted of conspiring to support Islamic terrorists to attack the Curtis Culwell Center in Garland, Texas,

where an anti-Islam cartoon exhibit was being viewed. The defendant was charged with transporting

weapons across state lines (from Arizona), training and arming the two men (Elton Simpson, 30, and

Nadir Soofi, 34) who opened fire outside the facility on 3 May 2015 and wounded a security guard before

they were shot and killed. Kareen was also convicted of conspiring to support Islamic extremists, lying to

federal agents, and with being a felon in possession of a firearm (that charge based on his prior conviction

for driving while intoxicated for which he was incarcerated). He was scheduled for sentencing on 27 June

2016.24 Kareem could be sentenced to 45 years in prison.

Supplement 9.10 The Controversial USA Patriot Act.

In the fall of 2001, President George W. Bush signed legislation to expand the powers of law enforcement

to deal with terrorism threats. The USA Patriot Act included, among other provisions, an expansion of

wiretaps on terrorist suspects’ e-mail, use of the Internet, and telephone conversations.25

The extensive USA Patriot Act was enacted so quickly that, according to some critics, there was

insufficient debate on its 157 sections. Others took the position that the nation needed legislation quickly

and could not take time for more debate under the extraordinary circumstances of 9/11 and its aftermath.

By spring 2003, the Bush administration proposed even more comprehensive measures for security, while

the American Civil Liberties Union and other organizations and individuals proclaimed that such

measures would violate civil liberties. One of the controversial issues was the provision giving the

president the power to designate a person as an enemy combatant (a person who is alleged to have been

associated with terrorist attacks against the United States) and to hold that individual for questioning

19

without being charged and without counsel. In June 2004, in the case of Yaser Esam Hamdi, the U.S.

Supreme Court ruled that an enemy combatant cannot be held indefinitely without due process. That case

is excerpted in Supplement 9.11.

The enemy combatant provision was also challenged in 2005 by José Padilla, who was born in

New York and grew up in Chicago. Padilla had been in U.S. custody since June 2002 without being

charged with a crime. Padilla was arrested at Chicago’s O’Hare airport in May 2002 and subsequently

held at the military brig in Charleston, South Carolina, as an enemy combatant. In February 2005, a U.S.

District Court judge in Spartanburg, South Carolina, held that within 45 days Padilla must be charged

with a crime, released, or this order appealed. The case was reversed by the Fourth Circuit Court of

Appeal in September 2005, with that court holding that the detention of Padilla was necessary for national

security. In April 2006, in Padilla v. Hanft, a divided U.S. Supreme Court refused to review the case.26

On 4 January 2006, the U.S. Supreme Court granted the request by the Bush administration to

transfer Padilla from federal military custody in South Carolina to federal civilian custody in Florida,

where he had been indicted for allegations unrelated to and less serious than those for which the U.S.

government had held him as an enemy combatant for over three years. Padilla was moved to a Miami jail,

where he was held without bail awaiting his trial on charges of providing support to terrorist cells. He was

convicted and sentenced to 17 years and 4 months in prison; he could have been sentenced to life.27 In

September 2011, a three-judge panel of the Eleventh Circuit Court of Appeals upheld Padilla’s conviction

(along with that of two other appellants) but ruled that the sentencing judge committed “numerous

sentencing errors” in calculating Padilla’s sentence below the federal guidelines. The court sent his case

back for resentencing. According to the appellate court, U.S. District Judge Marcia Cooke’s sentencing of

Padilla “reflects a clear error of judgment about the sentencing of this career offender” and did not take

into account his criminal history or risk of recidivism. In November 2011, the full court refused to review

Padilla’s case as did the U.S. Supreme Court.28 Padilla was subsequently sentenced to a 21-year sentence.

In a prior case, Rasul v. Bush, decided in 2004, the U.S. Supreme Court had ruled that all persons

(even foreign nationals) in U.S. custody have some due process rights. They have a right to know why

20

they are being detained, to consult with an attorney, and to have a hearing before a neutral judge. The

case was brought by two Australian citizens and 12 Kuwaiti citizens who were captured abroad and

incarcerated at Guantanamo Bay, Cuba, along with approximately 640 other foreign nationals who had

been captured by U.S. military forces abroad.29

Apparently as a reaction to U.S. Supreme Court decisions concerning enemy combatants,

Congress passed and President Bush signed the Military Commissions Act of 2006, which granted special

military tribunals the sole power to hear the habeas corpus petitions of persons designated as enemy

combatants, thus removing that power from the jurisdiction of U.S. courts.30 In 2008, the U.S. Supreme

Court considered the constitutionality of this act in two cases involving 37 detainees and combined for

hearing and decision. The Court held the act unconstitutional because it stripped U.S. courts of their

jurisdiction in habeas corpus petitions filed by enemy combatants. As a result of Boumediene v. Bush, all

persons held by U.S. officials once again have the right to challenge their detention before a neutral judge

in U.S. courts. According to Justice Anthony Kennedy, who wrote the opinion for the Court’s majority of

five justices, the provision of military tribunals to hear habeas corpus petitions from those detained at the

U.S. Naval Station at Guantanamo Bay is not an adequate substitute for the procedural protections

provided by the U.S. Constitution. Kennedy emphasized, however, that

It bears repeating that our opinion does not address the content of the law that governs

petitioners’ detention. That is a matter yet to be determined. We hold that petitioners may invoke

the fundamental procedural protections of habeas corpus. The laws and Constitution are designed

to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled;

and in our system they are reconciled within the framework of the law. The Framers decided that

habeas corpus, a right of first importance, must be a part of that framework, a part of that law.31

In March 2011, President Barack Obama reversed his previous position and issued an executive

order and permitted military trials, with revised procedures, to resume at Guantanamo. President Obama

had planned to close that prison and hold civilian rather than military trials. Congress blocked those plans.

In his March order, the president also enumerated procedures that must be followed concerning the

21

detainees in Cuba—procedures such as a review of their status within one year and every three years

thereafter for the purpose of determining whether they remain a threat to U.S. security. The order also

prohibits torture and inhumane treatment of the detainees.32 The United States was still holding inmates in

the prison at Guantanamo Bay as of this writing, although the population had been reduced. In April

2016, Congress held hearings concerning the issue of closing the facility.

In June 2007, in al-Marri v. Pucciarelli, a three-judge panel of the Fourth District Court of Appeals held

that the government may not hold indefinitely in a military facility a person who entered the United States

legally and established connections within the country. The case involved a Bradley University student,

Ali al-Marri, a citizen of Qatar, who was arrested in 2001 at his college in Peoria, Illinois, and charged

with credit card fraud and lying to federal authorities. Prior to al-Marri’s trial on those charges, President

Bush found him to be a serious threat to the United States and designated him an enemy combatant based

on allegations by the U.S. Department of Justice that al-Marri had attended Osama bin Laden’s terrorist

training camp in Afghanistan. Al-Marri was detained in military custody in Charleston, South Carolina,

for four years. During his first 16 months of detention, he was not permitted any contact with his family

or with an attorney. Al-Marri challenged his detention as an enemy combatant; the government requested

the U.S. Supreme Court to transfer him to the custody of the U.S. Attorney General, which it did, but the

appeal became moot after al-Marri entered a guilty plea.33 He was released in July 2015 and permitted to

return to Qatar.

Another legal issue regarding counterterrorism legislation is whether any of the statutes conflict

with free speech and other constitutional rights. The U.S. Supreme Court looked at these issues in 2010.

The case of Holder v. Humanitarian Law Project followed a decade of controversy over provisions of an

earlier law, as well as the USA Patriot Act, and the provision that

whoever knowingly provides material support or resources to a foreign terrorist organization, or

attempts or conspires to do so, shall be fined . . . or imprisoned not more than 15 years, or both,

and, if the death of any person results, shall be imprisoned for any term of years or for life. To

violate this paragraph, a person must have knowledge that the organization is a designated

22

terrorist organization. . . . that the organization has engaged or engages in terrorist activity. . . . or

that the organization has engaged or engages in terrorism.34

The key words in that statute are material support, which had been interpreted in the

Antiterrorism and Effective Death Penalty Act of 1996 to mean providing service, training, expert advice,

or assistance and personnel. The USA Patriot Act interpreted training to mean teaching a specific skill.

The Holder case involved a 79-year-old U.S. lawyer, Ralph D. Fertig, president of the Humanitarian Law

Project, who wanted to help a militant Kurdish group in Turkey in its efforts to find peaceful ways to

meet its goals. The Humanitarian Law Project is a nonprofit organization that promotes human rights and

mediates international conflicts. The USA Patriot Act gives the U.S. State Department the power to

designate foreign organizations or groups as “foreign terrorist organizations” that threaten “the security of

United States nationals or the national security of the United States.”35 When she was secretary of state,

Madeleine K. Albright designated 30 or more groups under this law, including the groups to which Fertig

and his organization wished to provide assistance. Fertig, his organization, and others sued to have the

“material support” provision declared unconstitutional on the grounds that it is vague and it violates the

First Amendment right to free speech. The U.S. Supreme Court, by a 6–3 vote, upheld the law, ruling that

it is not vague and it does not violate Free Speech.36

Supplement 9.11 The Rights of Enemy Combatants.

The case excerpted below is a lengthy one, with hundreds of citations to and quotations from precedent

cases and significant historical and other documents. The case emphasizes the overall importance of due

process and the right to counsel for all persons, even those designated as enemy combatants, a term the

Obama administration abandoned and then restored. The case held that “due process demands that a

citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the

factual basis for that detention before a neutral decision maker.”

23

Hamdi v. Rumsfeld

542 U.S. 507 (2004), cases and citations omitted

O’Connor, J., delivered the Court’s opinion, joined by Rehnquist, C.J., and Kennedy and Breyer, JJ.

Souter, and Ginsburg, JJ., concurred in part and dissented in part but concurred in the judgment. Scalia,

Stevens, and Thomas, JJ., dissented.

“On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack

prominent targets in the United States. Approximately 3,000 people were killed in those attacks. One

week later, in response to these “acts of treacherous violence,” Congress passed a resolution authorizing

the President to “use all necessary and appropriate force against those nations, organizations, or persons

he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such

organizations or persons, in order to prevent any future acts of international terrorism against the United

States by such nations, organizations or persons.” Soon thereafter, the President ordered United States

Armed Forces to Afghanistan, with a mission to subdue al Qaeda and quell the Taliban regime that was

known to support it.

This case arises out of the detention of a man whom the Government alleges took up arms with

the Taliban during this conflict. His name is Yaser Esam Hamdi. Born an American citizen in Louisiana

in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided

in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition

of military groups opposed to the Taliban government, and eventually was turned over to the United

States military. The Government asserted that it initially detained and interrogated Hamdi in Afghanistan

before transferring him to the United States Naval Base in Guantanamo Bay [Cuba] in January 2002. In

April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in

Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The

Government contends that Hamdi was an “enemy combatant,” and that this status justifies holding him in

the United States indefinitely—without formal charges or proceedings—unless and until it makes the

determination that access to counsel or further process is warranted.

24

In June 2002, Hamdi’s father, Esam Fouad Hamdi, filed the present petition for a writ of habeas

corpus . . . naming as petitioners his son and himself as next friend. The elder Hamdi alleges in the

petition that he has had no contact with his son since the Government took custody of him in 2001, and

that the Government has held his son “without access to legal counsel or notice of any charges pending

against him.” . . .

[The father alleged that his son was in Afghanistan to do relief work, was there only two months

prior to 9/11, and that he could not possibly have received military training. The government disputed

those allegations and alleged that Hamdi trained with and received weapons training with a Taliban

military unit. The government further alleged that] a series of “U. S. military screening team[s]”

determined that Hamdi met “the criteria for enemy combatants,” and “a subsequent interview of Hamdi

has confirmed that he surrendered and gave his firearm to Northern Alliance forces, which supports his

classification as an enemy combatant.” . . .

[The Court stated the issue of the case as follows:]

The threshold question before us is whether the Executive has the authority to detain citizens who

qualify as “enemy combatants.” There is some debate as to the proper scope of this term, and the

Government has never provided any court with the full criteria that it uses in classifying individuals as

such. It has made clear, however, that, for purposes of this case, the “enemy combatant” that it is seeking

to detain is an individual who, it alleges, was “‘part of or supporting forces hostile to the United States or

coalition partners’” in Afghanistan and who “‘engaged in an armed conflict against the United States’”

there. We therefore answer only the narrow question before us: whether the detention of citizens falling

within that definition is authorized.

[The Court’s reasons for its holding are lengthy; here is a portion of those statements.]

The President [is authorized by law] to use “all necessary and appropriate force” against “nations,

organizations, or persons” associated with the September 11, 2001, terrorist attacks. There can be no

doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an

organization known to have supported the al Qaeda terrorist network responsible for those attacks, are

25

individuals Congress sought to target in passing the [statute]. We conclude that detention of individuals

falling into the limited category we are considering, for the duration of the particular conflict in which

they were captured, is so fundamental and accepted an incident to war as to be an exercise of the

“necessary and appropriate force” Congress has authorized the President to use.

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful

combatants, by “universal agreement and practice,” are “important incident[s] of war.” The purpose of

detention is to prevent captured individuals from returning to the field of battle and taking up arms once

again. . . . It is now recognized that ‘Captivity is neither a punishment nor an act of vengeance,’ but

‘merely a temporary detention which is devoid of all penal character.’ . . . “‘A prisoner of war is no

convict; his imprisonment is a simple war measure.’” “The object of capture is to prevent the captured

individual from serving the enemy. He is disarmed and from then on must be removed as completely as

practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released.”

There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. . . . A

citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition

partners” and “engaged in an armed conflict against the United States.” Such a citizen, if released, would

pose the same threat of returning to the front during the ongoing conflict.

In light of these principles, it is of no moment that the [statute] does not use specific language of

detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of

waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and

unmistakably authorized detention in the narrow circumstances considered here. Hamdi objects,

nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. . . . We

take Hamdi’s objection to be not to the lack of certainty regarding the date on which the conflict will end,

but to the substantial prospect of perpetual detention. . . .

[The opinion noted that Hamdi argued that he could be held indefinitely and the Court agreed that

was not an unreasonable concern.]

Even in cases in which the detention of enemy combatants is legally authorized, there remains the

26

question of what process is constitutionally due to a citizen who disputes his enemy-combatant status.

Hamdi argues that he is owed a meaningful and timely hearing and that “extra-judicial detention [that]

begins and ends with the submission of an affidavit based on third-hand hearsay” does not comport with

the Fifth and Fourteenth Amendments. The Government counters that any more process than was

provided below would be both unworkable and “constitutionally intolerable.” Our resolution of this

dispute requires a careful examination both of the writ of habeas corpus, which Hamdi now seeks to

employ as a mechanism of judicial review, and of the Due Process Clause, which informs the procedural

contours of that mechanism in this instance.

Though they reach radically different conclusions on the process that ought to attend the present

proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas

corpus remains available to every individual detained within the United States. Only in the rarest of

circumstances has Congress seen fit to suspend the writ. At all other times, it has remained a critical

check on the Executive, ensuring that it does not detain individuals except in accordance with law. All

agree suspension of the writ has not occurred here. Thus, it is undisputed that Hamdi was properly before

an Article III court to challenge his detention. Further, all agree that [the statute section] and its

companion provisions provide at least a skeletal outline of the procedures to be afforded a petitioner in

federal habeas review. Most notably, [the statute] provides that “the person detained may, under oath,

deny any of the facts set forth in the return or allege any other material facts,” and [the statute] allows the

taking of evidence in habeas proceedings by deposition, affidavit, or interrogatories.

[The Court discussed the nature of habeas petitions and reviewed the arguments of both sides in

this case.] . . .

Both of these positions highlight legitimate concerns. And both emphasize the tension that often

exists between the autonomy that the Government asserts is necessary in order to pursue effectively a

particular goal and the process that a citizen contends he is due before he is deprived of a constitutional

right. The ordinary mechanism that we use for balancing such serious competing interests, and for

determining the procedures that are necessary to ensure that a citizen is not “deprived of life, liberty, or

27

property, without due process of law,” [according to our precedents, is that] the process due in any given

instance is determined by weighing “the private interest that will be affected by the official action”

against the Government’s asserted interest, “including the function involved” and the burdens the

Government would face in providing greater process. The [precedent case] . . . contemplates a judicious

balancing of these concerns, through an analysis of “the risk of an erroneous deprivation” of the private

interest if the process were reduced and the “probable value, if any, of additional or substitute

safeguards.” We take each of these steps in turn.

It is beyond question that substantial interests lie on both sides of the scale in this case. Hamdi’s

“private interest . . . affected by the official action,” is the most elemental of liberty interests—the interest

in being free from physical detention by one’s own government.

[This interest is not] . . . offset by the circumstances of war or the accusation of treasonous

behavior, for “[i]t is clear that commitment for any purpose constitutes a significant deprivation of liberty

that requires due process protection.” “Procedural due process rules are meant to protect persons not from

the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Indeed, . . .

the risk of erroneous deprivation of a citizen’s liberty in the absence of sufficient process here is very real.

Moreover, as critical as the Government’s interest may be in detaining those who actually pose an

immediate threat to the national security of the United States during ongoing international conflict,

history and common sense teach us that an unchecked system of detention carries the potential to become

a means for oppression and abuse of others who do not present that sort of threat. Because we live in a

society in which “[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of

a person’s physical liberty,” our starting point for the analysis is unaltered by the allegations surrounding

the particular detainee or the organizations with which he is alleged to have associated. We reaffirm today

the fundamental nature of a citizen’s right to be free from involuntary confinement by his own

government without due process of law, and we weigh the opposing governmental interests against the

curtailment of liberty that such confinement entails.

On the other side of the scale are the weighty and sensitive governmental interests in ensuring

28

that those who have in fact fought with the enemy during a war do not return to battle against the United

States. . . . [T]he law of war and the realities of combat may render such detentions both necessary and

appropriate, and our due process analysis need not blink at those realities. Without doubt, our

Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are

best positioned and most politically accountable for making them.

The Government also argues at some length that its interests in reducing the process available to

alleged enemy combatants are heightened by the practical difficulties that would accompany a system of

trial-like process. In its view, military officers who are engaged in the serious work of waging battle

would be unnecessarily and dangerously distracted by litigation half a world away, and discovery into

military operations would both intrude on the sensitive secrets of national defense and result in a futile

search for evidence buried under the rubble of war. To the extent that these burdens are triggered by

heightened procedures, they are properly taken into account in our due process analysis.

Striking the proper constitutional balance here is of great importance to the Nation during this

period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that

this country holds dear or to the privilege that is American citizenship. It is during our most challenging

and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in

those times that we must preserve our commitment at home to the principles for which we fight abroad. . .

.

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy

combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the

Government’s factual assertions before a neutral decisionmaker. . . .

At the same time, the exigencies of the circumstances may demand that, aside from these core

elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden

the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the

most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution

would not be offended by a presumption in favor of the Government’s evidence, so long as that

29

presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the

Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria,

the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls

outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant

tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due

regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in

fact an enemy combatant…

We think it unlikely that this basic process will have the dire impact on the central functions of

warmaking that the Government forecasts. The parties agree that initial captures on the battlefield need

not receive the process we have discussed here; that process is due only when the determination is made

to continue to hold those who have been seized. . . .

In sum, while the full protections that accompany challenges to detentions in other settings may

prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations

posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to

challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.

[The opinion discussed the separation of powers issue.]

. . . We have long since made it clear that a state of war is not a blank check for the President when it

comes to the rights of the Nation’s citizens. Whatever power the United States Constitution envisions for

the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most

assuredly envisions a role for all three branches when individual liberties are at stake. Likewise, we have

made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial

Branch to play a necessary role in maintaining this delicate balance of governance, serving as an

important judicial check on the Executive’s discretion in the realm of detentions. Thus, while we do not

question that our due process assessment must pay keen attention to the particular burdens faced by the

Executive in the context of military action, it would turn our system of checks and balances on its head to

suggest that a citizen could not make his way to court with a challenge to the factual basis for his

30

detention by his government, simply because the Executive opposes making available such a challenge.

Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this

process. . . .

Aside from unspecified “screening” processes and military interrogations in which the

Government suggests Hamdi could have contested his classification, Hamdi has received no process. An

interrogation by one’s captor, however effective an intelligence-gathering tool, hardly constitutes a

constitutionally adequate factfinding before a neutral decisionmaker. . . . Plainly, the “process” Hamdi has

received is not that to which he is entitled under the Due Process Clause. . . .

Hamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to

counsel upon his detention and by disposing of the case without permitting him to meet with an attorney.

Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for

consultation purposes on several occasions, and with whom he is now being granted unmonitored

meetings. He unquestionably has the right to access to counsel in connection with the proceedings on

remand. No further consideration of this issue is necessary at this stage of the case.

The judgment of the United States Court of Appeals for the Fourth Circuit is vacated, and the

case is remanded for further proceedings.

It is so ordered. ”

Scalia, J., with whom Stevens, J., joins, dissenting.

. . . “This case brings into conflict the competing demands of national security and our citizens’

constitutional right to personal liberty. Although I share the Court’s evident unease as it seeks to reconcile

the two, I do not agree with its resolution.

Where the Government accuses a citizen of waging war against it, our constitutional tradition has

been to prosecute him in federal court for treason or some other crime. Where the exigencies of war

prevent that, the Constitution’s Suspension Clause allows Congress to relax the usual protections

temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been

31

thought sufficient to permit detention without charge. No one contends that the congressional

Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an

implementation of the Suspension Clause. Accordingly, I would reverse the decision below. . . .

The allegations here, of course, are no ordinary accusations of criminal activity. Yaser Esam

Hamdi has been imprisoned because the Government believes he participated in the waging of war

against the United States. The relevant question, then, is whether there is a different, special procedure for

imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime. . . .

[The opinion discussed the history of treason statutes.]

The Founders well understood the difficult tradeoff between safety and freedom. . . .

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with

it.

Many think it not only inevitable but entirely proper that liberty give way to security in times of

national crisis. . . . Whatever the general merits of the view that war silences law or modulates its voice,

that view has no place in the interpretation and application of a Constitution designed precisely to

confront war and, in a manner that accords with democratic principles, to accommodate it. Because the

Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I

respectfully dissent.”

Thomas, J., dissenting.

“The Executive Branch, acting pursuant to the powers vested in the President by the Constitution

and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and

should be detained. This detention falls squarely within the Federal Government’s war powers, and we

lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge

should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by

failing adequately to consider basic principles of the constitutional structure as it relates to national

security and foreign affairs and by using the balancing scheme of [a precedent case]. I do not think that

32

the Federal Government’s war powers can be balanced away by this Court.

Arguably, Congress could provide for additional procedural protections, but until it does, we have

no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I

could not accept the particulars. The plurality utterly fails to account for the Government’s compelling

interests and for our own institutional inability to weigh competing concerns correctly. I respectfully

dissent.”

______________________________________________________

Supplement 9.12 Additional Federal Statutes Regarding Security.

The Enhanced Border Security and Visa Entry Reform Act of 2002

The Enhanced Border Security and Visa Entry Reform Act of 2002 was enacted in May of that year. This

extensive act has many facets designed to provide greater security with regard to the entrance of

foreigners into the United States.37

In recent years other changes have been made in security at U.S. borders. The largest agency

within the Department of Homeland Security (DHS), U.S. Customs and Border Protection, is charged

with “stopping terrorists, terrorist weapons, illegal drugs, aliens, and materials harmful to agriculture from

entering at, or between, ports of entry.”38

DHS estimated that 11 million illegal immigrants were living in the United States in 2006

(compared with an estimated 3 million in 1980; later estimates were up to 11.9 million in 2008), with

approximately 6 million of them from Mexico. In May of that year, President Bush announced that, as a

stopgap measure, he was sending National Guard troops to the borders to stop the entry of illegal aliens.

Congress passed and President Bush signed the Secure Fence Act of 2006, which, among other

provisions, increased the number of border security agents, increased funding for border security, and

provided for constructing miles of “virtual” fencing along the United States/Mexico borders.39 Funding

has been an issue, however, although in May 2010, the government announced that an additional 1,200

National Guard troops would be dispatched to the Southwest borders. Subsequently, Congress passed and

33

President Obama signed a bill authorizing $600 million for 1,500 additional border agents and other

measures to increase security at U.S. borders.40

Local and state jurisdictions also enacted legislation to eliminate illegal immigration; courts faced

significant increases in immigration appeals; immigration officers handled increased applications for

citizenship; and politicians debated and social scientists researched the issue of whether illegal

immigrants are more likely than others to commit crimes.41

Of particular significance in recent state legislative efforts to control immigration is that of

Arizona, which enacted a controversial statute in 2010. Among other provisions, the legislation permits

law enforcement authorities who legitimately stop, detain, or arrest a person to question his or her

immigration status and even detain persons they suspect of being in the country illegally. Before the

statute was to become effective on 28 July 2010, federal District Court of Arizona judge Susan Bolton

issued a preliminary injunction against the enforcement of the four most controversial provisions. The

state appealed, and the Ninth Circuit affirmed the preliminary injunction. The U.S. Supreme Court upheld

that decision on three sections but ruled that the provision concerning “stop and ask” did not preempt

federal authority.42

Ongoing immigration issues affect both the federal government and states and were a major focus

of the 2016 elections. In November 2014, President Barack Obama gave a policy speech on immigration.

It was followed by memoranda from some of his officials concerning implementation of the

administration’s immigration programs. Texas and 26 other states challenged their authority to do so.

That case was heard by the U.S. Supreme Court on 18 April 2016, but the Court had not rendered a

decision as of this writing. The essential facts are contained in Texas v. United States, both in the opinion

issued 16 February 2015 by the United States District Court for the Southern District of Texas, and in the

subsequent appeals, including the decision by the Fifth Circuit Court of Appeals, which was appealed to

the U.S. Supreme Court.43

The Public Health Security and Bioterrorism Preparedness Response Act of 2002

34

In June 2002, Congress passed a bill authorizing $4.6 billion to fund measures to protect the United States

from bioterrorist attacks. The Public Health Security and Bioterrorism Preparedness Response Act of

2002 focuses on improving the country’s ability to respond quickly and efficiently to bioterrorist attacks.

The act funds programs that provide for public health preparedness. It also provides for enhanced controls

on biological agents and increases protections for the nation’s food, drug, and drinking water supplies.

Funds are made available to states, local governments, and other public and private health facilities to

assist in the preparation for potential health epidemics. 44

The Intelligence Reform and Terrorism Prevention Act of 2004

On 17 December 2004, President George W. Bush signed into law the Intelligence Reform and Terrorism

Prevention Act of 2004, after which Congress created the Office of National Intelligence. The statute

implemented one of the recommendations of the 9/11 Commission—that “the federal government should

set standards for the issuance of birth certificates, and sources of identification, such as drivers’ licenses.”

45 This law gives the Secretary of Transportation, in consultation with the director of the DHS, the

authority to issue regulations concerning federal standards for issuing such items as drivers’ licenses. It

also contains requirements for strengthening the security of social security numbers, including the manner

in which they are assigned to newborns. The law prohibits states and their political subdivisions from

displaying social security numbers on drivers’ licenses, motor vehicle registrations, or any other personal

identification documents. The Intelligence Reform Act also created the position of Director of National

Intelligence, to be nominated by the president and confirmed by the Senate. In signing the act, the

president referred to it as the “most dramatic reform of our nation’s intelligence capabilities since

President Harry S. Truman signed the National Security Act of 1947.” 46

In May 2005, John D. Negroponte, who had served as the U.S. Ambassador to Iraq and before

that as the U.S. Ambassador to the United Nations, was sworn in as the first Director of National

Intelligence. John Michael McConnell succeeded Negroponte under President Bush. In January 2009,

President Barack Obama appointed Admiral Dennis C. Blair to the post. He resigned in May 2010 and

35

was replaced by James Clapper, the fourth person to hold this position in six years.

Notes

36

1 .FBI Chicago, “Former Chicago Police Commander Convicted of Perjury, Obstruction of Justice

Related to Torture of Suspects,” Department of Justice Press Release (28 June 2010),

http://www.fbi.gov/chicago/press-releases/2010/cg062810.htm, accessed 2 March 2012.

2 .“Disgraced Chicago Cop Jon Burge Breaks Silence, Condemns $5.5 Million Reparations Fund,”

Chicago Sun Times (17 April 2015), http://www.chicago.suntimes.com, accessed 4 August 2015.

3 . See United States v. Koon, 34 F.3d 1416 (9th Cir. 1994), aff’d. in part and rev’d. in part, remanded,

515 U.S. 1190 (1995).

4 . The federal treason statute is codified at USCS, Title 18, Section 2381 (2016).

5 . William Blackstone, Commentaries on the Laws of England, vol. 4 (Birmingham, Ala.: Special

edition, privately printed for The Legal Classics Library, 1983), p. 75.

6 .Cal. Penal Code, Section 191 (2016).

7 . See Rosenberg v. United States, 346 U.S. 273 (1952); “A Different Verdict,” Houston Chronicle (11

August 1993), p. 2.

8 .Quoted in “Rosenbergs’ Sons Sadly Accept that Father Was a Spy,” New York Times (17 September

2008), p. 22.

9 .FBI Washington Field Office, U.S. Department of Justice press release (16 July 2010),

http://www.fbi.gov/washingtondc/press-releases/2010/wfo071610.htm, accessed 2 March 2012.

10 .“Bail Is Denied for Accused Scientist,” Los Angeles Times (30 October 2009), p. 24; FBI Washington

Field Office, U.S. Department of Justice press release, “Maryland Scientist Charged with Attempted

Espionage” (19 October 2009), http://www.fbi.gov/washingtondc/press-releases/2009/wfo101909a.htm,

accessed 2 March 2012; “Ex-White House Scientist Pleads Guilty in Spy Case Tied to Israel, New York

Times (8 September 2011), p. 18.

11 .“Swap Idea Emerged Early in Case of Russian Agents,” New York Times (10 July 2010), p. 1; “10

Plead Guilty in Spy Ring Case as Swap Unfolds,” New York Times (9 July 2010), p. 1; “As the Spy

Swap Was Hammered Out, a Balancing Act for Prosecutors,” New York Times (17 July 2010), p. 17.

12 .“Prison Time over for American who Spied for Israel,” New York Times (20 November 2015), p. 4.

13 .“Ex-Goldman Programmer Aleynikov Wins Dismissal of Second Conviction” (6 July 2015),

http://www.reuters.com, accessed 28 December 2015; United State of America v. Sergey Aleynikov, No.

11-1126 (2d Cir. 2012).

14 14.USCS, Title 18, Section 2385 (2016).

15 .National Advisory Committee on Criminal Justice Standards and Goals, Disorders and Terrorism

(Washington, D.C.: U.S. Government Printing Office, 1976), pp. 3–7.

16 .Ariel Merari, “A Classification of Terrorist Groups,” Terrorism 1(2) (1978): 332–347.

17 .Ibid., p. 339.

18 .USCS, Title 18, Section 2332a (2016), http://www.fbi.gov/, accessed 6 August 2015.

19 .FBI, “Weapons of Mass Destruction,” http://www.fbi.gov/, accessed 6 August 2015.

20 .FBI, “FBI Counterproliferation Center: Keeping Weapons of Mass Destruction and Other Critical

Technologies out of the Wrong Hands,” http://www.fbi.gov, accessed 6 August 2015.

21 .Va. Code Ann., Sections 18.2-46.4 and 18.2-46.5 (2015).

22 .Va. Code Ann., Section 18.2-31(13) (2015).

23 . FBI, “Countering Violent Extremism,” https://www.fbi.gov, accessed 26 April 2016.

24 “Man Convicted of Aiding Terrorists Who Attacked Anti-Islam Cartoon Exhibit,” New York Times (18

March 2016), p. 14.

25 .The USA Patriot Act, revised and codified, USCS, Title 42, Section 5332 et seq. (2016).

26 .Padilla v. Hanft, 389 F.Supp.2d 678 (D.S.C. 2005), rev’d., 423 F.3d 386 (4th Cir. 2005), cert. denied,

547 U.S. 1062 (2006).

27 .“Justices Let U.S. Transfer Padilla to Civilian Custody,” New York Times (5 January 2005), p. 21.

28 .United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011), reh’g. en banc, denied, 2011 U.S. App.

LEXIS 26193 (11th Cir. 2011), cert. denied, Padilla v. United States, 2012 U.S. LEXIS 4814 (2012).

29 .Rasul v. Bush, 542 U.S. 466 (2004).

30 .Military Commissions Act of 2006, Public Law 109-366, 120 Stat. 2600, USCS, Title 28, Section

2241(e) (2016).

31 .Boumediene v. Bush, 553 U.S. 723 (2008).

32 .The White House Office of the Press Secretary, “Executive Order—Periodic Review of Individuals

Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force” (7

March 2011).

33 .al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008), vacated, remanded, application granted, al-Marri

v. Spagone, 555 U.S. 1220 (2009), and habeas corpus denied, dismissed sub nom., 2012 U.S. Dist.

LEXIS 20558 (D.Colo. 2012).

34 .USCS, Title 18, Section 2339B(a)(1) (2016). The case is Holder v. Humanitarian Law Project, 561

U.S. 1 (2010).

35 .See USCS, Title 18, Section 1189(a)(1), (d)(4) (2016).

36 .Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).

37 .Enhanced Border Security and Visa Entry Reform Act of 2002, USCS, Title 8, Section 1701 et seq.

(2016).

38 .Brian A. Reaves, BJS Bulletin, Federal Law Enforcement Officers, 2004 (July 2006),

http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=867, accessed 1 March 2012.

39 .Secure Fence Act of 2006, Public Law 109-367 (2006).

40 .“National Guard Will Be Deployed to Aid at Border,” New York Times (26 May 2010), p. 1; “Obama

Signs Border Bill to Increase Surveillance,” New York Times (14 August 2010), p. 8.

41 .See, for example, Laura J. Hickman and Marika J. Suttorp, “Are Deportable Aliens a Unique Threat to

Public Safety? Comparing the Recidivism of Deportable and Non-deportable Aliens,” Crime and Public

Policy 7(2) (February 2008): 59–92.

42 .United States v. Arizona, 641 F.3d 339 (9th Cir. 2011), cert. granted, Arizona v. United States, 132 S.Ct.

845 (U.S. 2011), aff’d. in part, reversed in part, Arizona v. United States, 132 S.Ct. 2492 (2012).

43 .Texas v. United States, 86 F.Supp. 3d 591 (S.Dist.Tx, 2015), appeal dismissed by, motion denied 2015

U.S. App. LEXIS 22276 (5th cir. 21 Dec. 2015), writ of cert. granted, 136S.Ct. 906 (19 Jan. 2016).

44 .Public Health Security and Bioterrorism Preparedness Response Act of 2002, Public Law 107-188

(2006), codified at USCS, Title 42, Section 201 (2016).

45 .Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458 (2004), 118 Stat. 3638

(2009).

46 .The White House, “President Signs Intelligence Reform and Terrorism Prevention Act,”

http://www.whitehouse.gov/news/releases/2004/12/20041217-1.html, accessed 25 July 2007.