TERRORISM CASES: THE TENSION BETWEEN CRIMINAL PROSECUTION AND INTELLIGENCE GATHERING

Transcription

1 TERRORISM CASES: THE TENSION BETWEEN CRIMINAL PROSECUTION AND INTELLIGENCE GATHERING Gregg N. Sofer Counterterrorism Section US Department of Justice May 11, 2006 Cartagena, Colombia 1

2 COUNTERTERRORISM SECTION Headquarters element of the Department of Justice Over 90 U.S. Attorneys Offices Responsible for coordinating and prosecuting terrorism cases in the United States court system Approximately 40 attorneys Work with the intelligence community and the law enforcement community Work with our foreign counterparts all over the world 2

3 U.S. Historic Approach to Terrorism Traditionally, terrorism has been prosecuted reactively after after a terrorist event occurs Following 9/11, the Justice Department s s policy is PREVENTION 3

4 STRATEGIC MISSION OF THE U.S. JUSTICE DEPARTMENT The National Security Strategy of the USA National Strategy for Combating Terrorism Defeat, Deny, Diminish, Defend DOJ Strategic Plan Prevent, disrupt, and defeat terrorist threats to the United States Use all of our laws to disrupt, dismantle, incapacitate and prosecute terrorists 4

5 How Can We Prevent an Attack? MILITARY DISRUPTION Kill or Capture Lots of issues in United States these days When it works and it is appropriate, it is an excellent option 5

6 How Can We Prevent an Attack? WORK WITH FOREIGN COUNTERPARTS Sometimes we can ask a foreign government to assist us in disruption We often work closely with our counterparts to assist prosecutions outside of the U.S. BUT We lose some or all control over the outcome and we may have concerns about how our information is handled 6

7 How Can We Prevent an Attack? LOOK FOR LINKS INFORMATION SHARING Greater use of intelligence and other sources of information that have not traditionally been used by prosecutors USA PATRIOT Act, Section 218 and 504 Connecting the dots 7

8 How Can We Prevent an Attack? PROSCUTION AS DISRUPTION Prosecute terrorist financing and material support: Intervene before the terrorist act Use non-terrorism legal tools: Social Security, False Statements, Tax, Immigration (The Al Capone approach) 8

9 LAW ENFORCEMENT THE BIG QUESTION: DO WE CONTINUE TO INVESTIGATE AND/OR GATHER INTELLIGENCE? OR DO WE ARREST AND PROSECUTE? 9

10 CONCERNS: ALERT OTHERS STRENGTH OF CASE SEVERITY OF PENALTY LACK OF INFORMATION: DON T T REALLY KNOW WHAT ELSE IS GOING ON CO-CONSPIRATORS CONSPIRATORS AND CONTACTS 10

11 OTHER PROBLEMS? SOURCES AND METHODS SOURCES AND METHODS SOURCES AND METHODS 11

12 SENSITIVITIES Most of the terrorism cases we see in the United States involve some classified information often because of the way they are investigated Many terrorism cases have an international dimension and U.S. prosecutors must be sensitive to the foreign government s s interests Has to be integrated into U.S. legal system 12

13 THE UNITED STATES LEGAL SYSTEM 13

14 KEY COUNTERTERRORISM PARTICIPANTS and PARTNERS Criminal Division and U.S. Attorney s s Offices Anti-Terrorism Advisory Councils (ATACs( ATACs) Office of Intelligence Policy Review (OIPR) Federal Bureau of Investigation (FBI) Joint Terrorism Task Forces (NJTTF and JTTFs) Central Intelligence Agency (CIA) National Security Agency (NSA) Defense Intelligence Agency (DIA) State and Local Law Enforcement Agencies 14

15 KEY LEGISLATIVE AUTHORITIES USA PATRIOT Act Foreign Intelligence Surveillance Act (FISA) Intelligence Reform and Terrorism Prevention Act (IRTPA) Material Support Statutes Extraterritorial Statutes 15

16 USA PATRIOT Act USA PATRIOT Act Improves information sharing Stronger criminal laws against terrorism White House Photo By Eric Draper Enhances immigration and border protection Provides support for terrorism victims Addresses new technologies and threats Increases government personnel and resources 16

17 Breaking Down The Wall USA PATRIOT Act Section 203: Before the USA PATRIOT Act, federal prosecutors were prohibited from disclosing grand jury and wiretap information to intelligence and national defense officials (unless such officials were actually assisting with the criminal investigation) even if the information indicated that terrorists were planning a future attack. Section 203 of the USA PATRIOT Act permits sharing of Title III and grand jury information under certain specified circumstances. Section 218: Amends the FISA legal standard now significant purpose. Section 504: Permits federal officers to coordinate with federal law enforcement on electronic surveillance and physical searches. Section 905: Mandates that foreign intelligence information found in the course of a criminal investigation be shared with the Director of the CIA 17

18 Breaking Down The Wall MARCH 6, 2002 INTELLIGENCE SHARING PROCEDURES Requires "all relevant DOJ components," including prosecutors at Main Justice and in the field, to be "fully informed" so that they are "free to offer advice and make recommendations," including advice and recommendations about the use of FISA itself (e.g., nominate FISA targets). FBI Agents may disseminate to criminal prosecutors all relevant foreign intelligence information, including information obtained from FISA. Prosecutors and criminal agents may advise FBI intelligence agents on all aspects of FI and FCI investigations. 18

19 Foreign Intelligence Surveillance For use in intelligence investigations Allows for court-approved electronic and other surveillance of persons suspected of acting as agents of a foreign power. Enables the government to effectively pursue foreign intelligence and foreign terrorist investigations FISA Court Probable cause standard different than in a criminal investigation target is foreign power or agent of a foreign power Passed in Amended in 1994, 1998, and

20 Intelligence Reform & Terrorism Prevention Act of 2004 President George W. Bush puts his signature on S. 2845, The Intelligence Reform and Terrorism Prevention Act of 2004, in Washington, D.C.,, Dec. 17,

21 Title VI: Terrorism Prevention New Criminal Offenses Sec Receiving military-type type training from a foreign terrorist organization. Sec Hoaxes and recovery costs. Sec Participation in nuclear and weapons of mass destruction threats to the United States. Sec Missile systems designed to destroy aircraft. Sec Radiological dispersal devices. Sec Variola virus.(smallpox). 21

22 Material Support: The List Approach Social wing & military wing Social wing provides support by winning hearts & minds through social programs Creates ready pool of volunteers for military wing United States policy no distinction between support for social wing and support for material wing 22

23 18 U.S.C. 2339B: Providing Material Support To Terrorist Organizations Whoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization,, or attempts or conspires to do so, commits a felony 23

24 What Is Material Support Or Resources? Currency or monetary instruments Financial securities & financial services Lodging, training, expert advice/assistance, safe houses, false documentation or identification Communications equipment Facilities Weapons, lethal substances and explosives Personnel, transportation and other physical assets DOES NOT INCLUDE medicine or religious material 24

25 18 U.S.C. 2339B: Providing Material Support To Terrorist Organizations Authorized the Secretary of State to designate an entity as a foreign terrorist organization ( FTO ) Providing material support or resources to an FTO, or attempting or conspiring to do so, is a felony Need not trace material support or resources to a crime 25

26 What Is A Foreign Terrorist Organization? Foreign terrorist organization is defined as: a foreign organization; that engages, or has the capability to engage, in terrorist activity; that threatens the national security of the United States or the security of U.S. nationals 26

27 FTO Facts: First designations in 1997 Designation of group occurs only after exhaustive interagency review process (may include classified material) Designation is subject to judicial challenge by group 42 groups, including aliases (e.g. al Qa ida ida, Kahane Chai,, United Self-Defense Forces of Columbia, a/k/a AUC,, etc.) Not illegal to make payments to FTO prior to designation 27

28 Foreign Terrorist Organizations Abu Nidal Organization (ANO) Abu Sayyaf Group Al-Aqsa Aqsa Martyrs Brigade al-jihad (Egyptian Islamic Jihad) al-qa Qa ida Ansar al-islam Armed Islamic Group (GIA) Asbat al-ansar Aum Shinrikyo Basque Fatherland and Liberty (ETA) Communist Party of the Philippines/ New People s s Army Continuity Irish Republican Army (CIRA) Gama a al-islamiyya (Islamic Group) HAMAS (Islamic Resistance Movement) Harakat ul-mujahideen (HUM) Hizballah (Party of God) Islamic Jihad Group Islamic Movement of Uzbekistan (IMU) Jaish-e-Mohammed (JEM) (Army of Mohammed) Jemaah Islamiya al-jihad (Egyptian Islamic Jihad) Kahane Chai (Kach) Kongra-Gel (KGK, Fomerly Kurdistan Workers Party (PKK)) Lashkar-e Tayyiba (LT) (Army of the Righteous) Lashkar I Jhangvi Liberation Tigers of Tamil Eelam (LTTE) Libyan Islamic Fighting Group (LIFG) Moroccan Islamic Combatant Group (GICM) Muhahedin-e Khalq Organization (MEK) National Liberation Army (ELN) Palestine Liberation Front (PLF) Palestinian Islamic Jihad (PIJ) Popular Front for the Liberation of Palestine (PFLP) PFLP- General Command (PFLP-GC) Real IRA Revolutionary Armed Forces of Colombia (FARC) Revolutionary Nuclei (ELA) Revolutionary Organization 17 November Revolutionary People s s Liberation Army/Front (DHKP/C) Salafist Group for Call and Combat (GSPC) Shining Path (Sendero( Luminoso,, SL) Tanzim Qa idat al-jihad fi Bilad al-rafidayn (QJBR) (al-qaida in Iraq) United Self-Defense Forces of Colombia 28 (AUC)

29 Other Lists Specially Designated Nationals (SDN) Terrorist Exclusion List (TEL) Executive Order State Sponsors of Terrorism 29

30 18 U.S.C. 2339A: Providing Material Support To Terrorists (Non-List Approach) Whoever provides material support or resources, or conspires or attempts to do so, knowing or intending that they are to be used: a. in preparation for or the carrying out a a federal crime of terrorism commits a felony; or b. in preparation for, or in carrying out, the concealment of an escape from the commission of a federal crime of terrorism commits a felony 30

31 18 U.S.C. 2339A: Enforcement Challenges: Tracing material support or resources, especially currency, to ultimate recipient Tracing material support or resources, especially currency, to specific federal crime of terrorism Proving that donor intended to provide material support or resources for specific federal crime of terrorism Countering claim that material support or resources were intended for benevolent purposes 31

32 BROAD SCOPE OF U.S. EXTRATERRITORIAL CRIMINAL LAWS October 1983 bombing of the U.S. Marines barracks in Beirut, Lebanon. When a truck bomb killed 241 U.S. Marines, sailors and soldiers, U.S. criminal law did not cover this type of extraterritorial terrorist activity. Since the mid-1980s, the scope of U.S. criminal law has expanded, adding a long list of crimes with extraterritorial reach. Since September 11, 2001, the extraterritorial scope of U.S. criminal laws has expanded even further. 32

33 Examples of Extraterritorial Statutes Acts of Terrorism (Attempt and Conspiracy Included) Hostage taking (18 U.S.C. 1203) Crimes against internationally protected persons (murder of diplomats) (18 U.S.C. 1116) Murder of a U.S. national outside the U.S. (18 U.S.C (b)) Conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country (18 U.S.C. 956) Use of weapons of mass destruction (18 U.S.C. 2332a) Aircraft Piracy (49 U.S.C ) 33

34 Examples of Extraterritorial Statutes Acts of Terrorism (Attempt and Conspiracy Included) Destruction of aircraft or aircraft facilities (18 U.S.C. 32) Mailing threatening communications (18 U.S.C. 876) Destruction of an energy facility (18 U.S.C. 1366) Arson and bombing of Government property (18 U.S.C. 844(f)(2) or (3)) Criminal laws passed in conjunction with international conventions ns or agreements 34

35 Conspiracy Legal Elements Of Crimes Of Conspiracy And Attempt An agreement, formal or informal, to accomplish some unlawful objective Knowingly joined in by the defendant An overt act in furtherance of the conspiracy Attempt Intent to commit an unlawful act Some act which constitutes a substantial step toward accomplishing the unlawful objective UN convention on terrorism financing funds do not have to be 35 actually used to carry out offense

36 Information Collection Tools FISA Title III Intercept Consensual Recordings Title 18 Pen Register/ Trap and Trace Order Rule 41 Search Warrant 2703 Court Order National Search Warrant National Security Letter Grand Jury Subpoena Mail Covers Tax information Image from: Air Force Research Laboratory 36

37 What to Use & When: A Comparative Analysis FISA v. Title III Intercept Consensual Recordings FISA v. Title 18 Pen Register/Trap and Trace Order FISA v. Rule 41 Search Warrant National Security Letter v. Grand Jury Subpoena Many times the choice dictates whether or not a prosecution 37 will have to deal with classified information.

38 THE U.S. COURT SYSTEM CONSTITUTIONAL AND STATUTORY REQUIREMENTS: Confrontation Clause Discovery Hearsay Probable Cause to Arrest or Search None of This Affected by Terrorism or Ticking Bomb No Separate Court System Public Trial 38

39 BUT ALL IS NOT LOST! WE ARE MAKING THIS WORK IN MANY CASES THE CLASSIFIED INFORMATION PROCEDURES ACT (CIPA) ADDRESSES THE BALANCE THAT MUST BE STRUCK BETWEEN THE RIGHTS OF A CRIMNAL DEFENDANT AND THE UNITED STATES NATIONAL SECURITY INTERESTS 39

40 Classified Information Procedures Act (CIPA) Enacted in 1981 to counter greymail problem Provides for the pretrial litigation of the discoverability admissibility and use at trial of classified information Procedural statute; does not alter the rules regarding discovery and admissibility Provides several important and unique tools to protect against the unauthorized disclosure of classified information in litigation. 40

41 CIPA Structure Procedural Sections Section 2 = Pretrial Conference Section 3 = Protective Orders Section 4 = Discovery of Classified Information by the Defense Section 5 = Notice of intent to disclose classified information Section 6 = Use of Classified Information at Trial Section 7= Interlocutory Appeal Section 8 = Introduction of Classified Information Section 9 = Security Procedures Section 10 = Identification of Information 41 Relating to the National Defense

42 MOST IMPORTANT: CIPA ALLOWS THE GOVERNMENT TO KNOW BEFORE CLASSIFIED INFORMATION IS DISCLOSED IN A TRIAL WHAT THE COST OF GOING FORWARD IS! WE CAN DECIDE TO DISMISS CHARGES OR THE ENTIRE CASE IF NECESSARY NO SURPRISES! 42

43 Discovery and CIPA: When does the case involve classified information? It s s part of your case (e.g. espionage) It s s part of the context (e.g. terrorism) Advised by investigative agency Advised by defense counsel, defendant or witness Prudential search 43

44 Prudential Search By rule, the prosecutor must make available to the defense: information about the defendant s s prior oral and written statements to law enforcement, physical evidence, reports of examinations and tests and expert opinions. The prosecutor must disclose all exculpatory evidence and information to the defense. At trial, the prosecution must disclose evidence and information that impeaches, or undermines, the credibility of a witness, or information that might give the witness a reason to be biased in favor of the government such as fees or benefits received. At trial, the prosecution must also disclose all prior statements made by the witness concerning the subject of the testimony. 44

45 Section 1 - Definitions Classified Information means any information or material that has been determined by the US Government pursuant to an Executive order, statute, or regulations, to require protection against unauthorized disclosure for reasons of national security and any restricted data, as defined in the Atomic Energy Act of

46 Section 2 - Pretrial Conference Anytime after filing of indictment or information, any party may move for pretrial conference to consider matters relating to classified information Court may act sua sponte 46

47 Section 3 - Protective Order Upon motion of the US Government, the court SHALL issue an order to protect against the disclosure of any classified information disclosed by the US Government to any defendant in any criminal case in a US district court. Contents: security clearances for all persons who will have access to classified information, including defense team prohibit disclosure of any classified information to anyone without appropriate court authorization, clearance and need- to-know explain requirements for storage, access, and use of classified information appoint a courts security officer (cso( cso) makes violation punishable as contempt, 18 U.S.C

48 Section 3 Protective Order Can the court require a security clearance for defense counsel? Yes. US v. Bin Laden, 58 F. Supp. 2d 113 (SDNY 1999); compare US v. Jolliff,, 548 F. Supp. 232 (D.Md( D.Md ). Can the court require a security clearance for court personnel? Yes, except for the Judge. US v. Smith, 899 F.2d 564, (6th Cir. 1990). 48

49 Section 4 - Discovery Upon a specific showing by the United States, the Court may authorize the United States to: Redact or withhold documents, or Substitute a summary of the classified information, or Substitute a statement admitting the relevant facts that the classified information out tend to prove. Substitutions are preferred by the Intelligence Community Often eliminates need to produce actual classified information to defendant Much easier and quicker to produce than the actual classified documents Usually more focused and arguably more helpful to the defense. 49

50 Section 4 - Discovery The Court may permit the United States to make its request in the form of a statement submitted in camera and ex parte. If the Court grants the Government s s motion following an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court for appeal. Section 4 NOT limited to pretrial discovery, but includes discovery during trial. US v. O Hara, O 301 F.3d 563 (7th Cir. 2002). In ruling the on the government s s motion to limit, restrict or deny discovery, the court may engage in balancing. S. Rep. 823 at 6, reprinted in Code Cong. & Admin News,

51 Section 4 Discovery CIPA 4 not intended to change any of the substantive rules of discovery. However While CIPA creates no new rule[s],, the procedures it mandates protect a government privilege in classified information similar to an informant s s privilege US v. Yunis,, 867 F.2d 617 (DC Cir. 1989) 51

52 Section 4 Discovery We hold, in short, that classified information is not discoverable on a mere showing of theoretical relevance in the face of the government s s classified information privilege, but that the threshold for discovery in this context further requires that a defendant seeking classified information, like a defendant seeking the informant s s identity in Roviaro,, is entitled only to information that is at least helpful to the defense of the accused. Yunis at

53 Section 4 - Discovery The purpose of CIPA is to protec[t]] and restric[t] ] the discovery of classified information in a way that does not impair the defendant's right to a fair trial. US v. O Hara, O 301 F.3d 563, 568 (7th Cir. 2002). 53

54 Section 5 - Notice The defendant must provide the prosecutor and court written notice of the classified information he expects to disclose, or reasonably expects to cause the disclosure of in connection with any trial or pretrial proceeding within the time specified by the court or 30 days prior to trial Defendant has a continuing duty to notify 54

55 Section 6 - Use at Trial Section 6(a) - Motion for Hearing United States may move for a hearing to make all determinations concerning - use relevance admissibility of classified information that would otherwise be made during trial or pretrial proceeding. When the motion is made pretrial, the court shall rule pretrial. All or a portion of the Section 6(a) hearing shall be held in camera if the Attorney General certifies a public proceeding may result in the disclosure of classified information. AG certification usually based on a letter or declaration from the t agency originating the classified information. 55

56 Section 6 - Substitutions There are many ways to say something in an unclassified manner. Replace a specific country with Country A or a a Middle East location. Government has used the substitution provisions of section 6 affirmatively to protect the identity of/sensitive information concerning witnesses from disclosure at trial. 56

57 Section 6 The Court s s Options If the Court orders disclosure/use and the government refuses, the Court SHALL-- dismiss the indictment, or when the interests of justice would not be served by dismissal order such other action as the court determines appropriate Such Other Action includes dismissing only certain counts finding against the United States on any issue to which the classified information relates; or striking or precluding certain testimony 57

58 Section 7 - Interlocutory Appeal The United States may take an interlocutory appeal of any order authorizing the disclosure of classified information; imposing sanctions for nondisclosure of classified information; or Refusing to issue a protective order. The appeal shall be expedited. 58

59 Section 8 - Introduction of Classified Information Testimony The United States may object to any line of testimony that might result in a classified disclosure. The Court may take suitable action to determine if the response would be classified The Court may require -- The Government to proffer the expected testimony. The Defense to proffer the nature of the information to be elicited. 59

60 Section 9 - Security Procedures The Chief Justice of the U.S. Supreme Court In consultation with the Attorney General Director of Central Intelligence, and Secretary of Defense Prescribe rules to protect classified information in the custody of Article III courts. These rules are often incorporated into a CIPA protective order. 60

61 WE CAN BUILD CASES TO AVOID THIS PROBLEM PATRIOT ACT Early Law Enforcement Involvement Parallel Criminal Investigation Sting or Other Illegality Preserve the Option of Criminal Prosecution Choose criminal investigative means. We might know we are willing to disclose certain information in exchange for the 61 opportunity to arrest and disrupt.

62 TYPES OF CHARGES Conspiracy Attempt Solicitation Money Laundering Immigration False Statements RICO ALL OF THESE MAY HELP US AVOID HAVING TO USE CERTAIN INTELLIGENCE AND/OR EXPOSE OUR SOURCES AND METHODS 62

63 SOMETIMES WE JUST KNOW WE CAN T T USE THIS OPTION Often, criminal prosecution is simply not a good idea or can t t be done! 63

64 HOW THIS WORKS: Case Example: Sting Facts: Intelligence indicates that an individual living in the U.S. has ties to Al Qaeda U.S. Government cannot use this evidence in its case-in in-chief because it is 1. too sensitive 2. evidentiary foundation 64

65 Case Example: Sting Options: Monitor the individual and wait (resource problems) Take the Al Capone approach (may not be doing anything that we can charge, penalty insignificant) Actively go out and try to sting the target 65

66 Case Example: Sting Option C (Sting) Succeeds: Undercover agent succeeds in developing a case in which target conspires with others to provide $500,000 to Jemaah Islamiya Investigation purposefully avoided using Al Qaeda in order to avoid the complicated discovery obligations related to the known intelligence 66

67 Case Example: Sting The defense argues entrapment (i.e. the agent induced the target to commit the crime). At trial the prosecution will be able to rebut the entrapment defense with evidence that the defendant was predisposed to commit the crime. 67

68 Case Example: Sting Classified Information Detainee Statements FISA Electronic Surveillance Covert intelligence officer recovered a document Intelligence from a foreign country Another Related Investigation Can t t yet prosecute The defense asks for all of this in discovery. Rule 16 and Jencks. Government also has obligation to search for all exculpatory information. What does the government do? 68

69 QUESTIONS? 69