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The Tools of Counterterrorism by Ed Carpenter, Jason Felch, Sarah Moughty, James Sandler, and Ben Temchine
Here is a list of some of the laws and precedents the government is using to combat the domestic war on terrorism. Click on a link to learn more.

The Foreign Intelligence Surveillance Act

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The 1978 Foreign Intelligence Surveillance Act (FISA) was enacted as a response to public outrage over the extent of domestic spying during the Kennedy, Johnson, and Nixon administrations. While recognizing that intelligence gathering is a legitimate function in the national security interest, Congress passed the law to limit the government's power to break into homes and spy on U.S. citizens.

FISA created a distinction between criminal and intelligence/counterintelligence investigations in terms of the standards the government must meet to obtain warrants for electronic surveillance. In a criminal investigation, law enforcement must show probable cause to obtain a surveillance warrant. However, to obtain a FISA warrant, it needs to prove only that there is reasonable suspicion that the target of the surveillance is "a foreign power or an agent of a foreign power" -- a standard much easier to meet. The act also required that "the purpose of the surveillance is to obtain foreign intelligence information."

Under FISA, the government has to obtain court approval before sharing any knowledge gained during an intelligence investigation with criminal investigators. The act established the Foreign Intelligence Surveillance Court, known as the FISA Court, to hear the government's case and approve both surveillance and information-sharing requests in secret. Under the law, the chief justice of the Supreme Court is required to appoint seven District Court judges to the FISA Court, which meets once a week in a secure, soundproof room in the Justice Department to hear the government's requests.

Since 1978, the FISA Court has never rejected a surveillance request. Because of this, some critics have argued that the court merely serves as a rubber stamp for the government.

Patriot Act

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Signed by President Bush on Oct. 26, 2001, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or USA Patriot Act, changed how the federal government gathers intelligence. One of the most significant changes allows Foreign Intelligence Surveillance Act (FISA) warrants to be issued if "a significant" purpose for obtaining the warrant is intelligence gathering. This lowers the threshold set by FISA in 1978 that stipulated such warrants be issued only if "the" purpose was gathering intelligence.

The Patriot Act, and its interpretation by Attorney General John Ashcroft, also breaks down the "wall," created by FISA in 1978 and subsequent interpretation by attorneys general and the courts, that separated criminal and intelligence investigations by allowing the sharing of information between law enforcement (i.e. police, prosecutors, etc.) and intelligence agencies.

The "wall" was erected after widespread abuses that the FBI and other agencies conducted under the rubric of national security. These abuses included wiretapping, surreptitious entries, know as "black bag jobs," and secret operations designed to monitor organizations and individuals perceived as dangerous dissenters. They came to light as a result of the Watergate investigation during the Nixon administration, as well as revelations of a special Senate investigation in 1975 led by then-Senator Frank Church (D-Idaho).

Under the Patriot Act and the attorney general's new guidelines, FISA data obtained from wiretaps, trap and trace devices, pen registers, e-mail, secret grand jury informations and other information in criminal cases can now be turned over to intelligence agencies if the material is deemed "foreign intelligence information."

The Patriot Act also gives more authority to law enforcement to direct intelligence gathering. Law enforcement agencies can now obtain roving wiretaps, which allow intelligence agencies to follow an individual from device to device, instead of obtaining a warrant for each phone, computer, pager, etc., as in the past. Broader powers were also given to use "sneak and peek" search warrants in federal criminal cases, including misdemeanors. Such warrants authorize law enforcement officers to enter and search private premises without the owner's permission or knowledge.

Attorney General's Guidelines

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When Congress passes a new law, the attorney general typically issues guidelines on how federal law enforcement should interpret that law in the field. On Sept 23, 2002, Attorney General John Ashcroft issued the first in a series of guidelines outlining the Justice Department's interpretation of the Patriot Act's regulations on information sharing between criminal and intelligence investigations. The "Attorney General's Guidelines Regarding Information Sharing under the USA Patriot Act" set out the procedures for sharing intelligence collected by law enforcement in criminal investigations, including information from secret grand jury testimony, wiretaps, bugs and e-mail intercepts. The attorney general and the CIA director, together with the secretary of homeland security must approve any exceptions to this information sharing.

The guidelines require law enforcement officials, including federal prosecutors and the FBI, to immediately notify the CIA director, the assistant to the director for Homeland Security or other U.S. intelligence community officials, such as a Joint Terrorism Task Force, of any intelligence information collected during a criminal investigation.

Other FISA sharing guidelines, issued by Ashcroft on March 6, also call for the attorney general and federal criminal prosecutors to consult with intelligence officials to help direct intelligence investigations -- something that was prohibited under Justice Department practice prior to the Patriot Act's passage. Information gathered under a FISA electronic surveillance or physical search warrant that may be used in a criminal case must first be approved by the attorney general.

FISA Court Opinion

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On May 17, 2002, the secret Foreign Intelligence Surveillance Act (FISA) Court ruled that portions of guidelines issued by Attorney General John Ashcroft on intelligence sharing violated federal law. The court said the policy established by Ashcroft, who cited the Patriot Act for his authority, shortcut the Constitution and FISA by replacing existing surveillance requirements used for criminal prosecution with the more lax FISA requirements.

In its ruling, the court cited the constitutional right to privacy of U.S. citizens, saying Ashcroft's policy "was not reasonably designed or 'consistent with the need of the United States to obtain, produce, or disseminate foreign intelligence information'" as mandated by FISA. Prior to the Patriot Act, FISA had been interpreted by attorneys general and the FISA Court as having mandated a "wall" between the criminal and intelligence sides of an investigation. In this ruling, the FISA Court felt that the new procedures issued by the attorney general had illegally dismantled that wall.

The FISA Court also said the powers given to criminal investigators by Ashcroft might allow the government to illegally use intelligence information in criminal cases. It noted that the Department of Justice, under the Clinton administration, had abused the FISA process and misled the court at least 12 times and that the government had admitted FBI officials had provided erroneous information to the court on more than 75 requests for warrants and wiretaps.

U.S. District Judge Royce C. Lamberth signed the ruling, which wasn't released until August by his replacement, Presiding U.S. District Judge Colleen Kollar-Kotelly. It was the first-ever published opinion by the FISA Court.

Upon the ruling's release, the Justice Department filed an appeal citing the FISA Court's failure to consider the expanded intelligence sharing powers legalized under the Patriot Act. The Department of Justice also argued that the May 17 ruling violated the Constitutional separation of powers between the judiciary and executive branches.

FISA Court of Review Opinion

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On Nov. 18, 2002, the Foreign Intelligence Surveillance Act (FISA) Court of Review, convening for the first time ever, overturned the lower FISA Court's May 17 ruling. The Court of Review said that Attorney General John Ashcroft's guidelines did not, in fact, violate FISA law or the Constitution, as the FISA Court had ruled.

"We think that the FISA as passed by Congress in 1978 clearly did not preclude or limit the government's use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution," the Court of Review wrote in its unsigned decision.

The Court of Review noted that the idea of the "wall" came from a 1995 Attorney General directive entitled "Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations," and not from FISA law.

The landmark decision, hailed by Attorney General Ashcroft as "a victory for liberty, safety and the security of the American people," was handed down with only one side, the Department of Justice, presenting its case. FISA requests -- unlike Title III criminal warrants -- are granted by the "secret" court, and are never challenged in court because they are never part of an open criminal proceeding.

The FISA Court of Review's decision was unusual in that the court, for the first time, addressed policy guidelines rather than a specific secret FISA warrant request -- as the lower court does -- where the need for secrecy and one-sidedness to avoid disclosure to a defendant is clear.

"Obviously you want one-sided arguments when seeking to obtain a (FISA) warrant, but in this case it wasn't connected to a specific warrant request, but a much more general approach to procedure," said David Cole, Georgetown Law Center Professor.

Because of the secret nature of the Court of Review, attorneys for the American Civil Liberties Union and National Association of Criminal Defense Lawyers were not permitted to present oral arguments. Only amicus briefs supporting the May 17 lower court decision from the two organizations were allowed into the record.

The one-sided nature of the appeal left open the question as to whether the decision can be further appealed to the U.S. Supreme Court by anyone except the Justice Department, which won. Usually, only participants in a case have the option to appeal.

Material Support Statute

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Material support, or knowingly providing financial support, physical assets or services to a foreign terrorist organization was criminalized during the Clinton administration as part of the Anti-Terrorism and Effective Death Penalty Act of 1996. In 2001, the Patriot Act increased the penalty for providing material support from 10 years in prison to 15 years and determined that "if the death of any person results, [violators] shall be imprisoned for any term of years or for life."

Prosecutors first used the law in 2000, when 18 people were charged with running a cigarette smuggling ring in North Carolina to raise money for Hezbollah, a terrorist organization based in Lebanon. Since the Sept. 11, 2001 attacks on the World Trade Center, more than 30 people have been charged with material support of terrorists, including alleged "sleeper cells" in Detroit, Mich., Seattle, Wash., Portland, Ore. and Lackawanna, N.Y.

The most well known use of the material support statute was the prosecution of John Walker Lindh, who was captured by U.S. forces in Afghanistan in 2001. Lindh was charged with providing material support to Al Qaeda and Harkat ul-Mujahedeen, an outlawed Pakistani militant group fighting in Kashmir. The prosecution argued that attending a training camp run by a terrorist organization was a violation of the material support statute. The Department of Justice has since used the same argument in other cases, including the Lackawanna prosecution.

In an agreement with the government, Lindh pled guilty to two lesser felonies, supporting the Taliban, which was not a designated terrorist organization, and carrying explosives.

A growing number of defense attorneys have accused the Justice Department of using the material support statute to criminally charge people who are associated with a terrorist organization, but who have yet to commit a crime.

"Enemy Combatant" Designation

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On Feb. 7, 2002, the White House announced that captured members of the Taliban and Al Qaeda would not qualify as prisoners of war under the Third Geneva Convention. Though the words "enemy combatant" did not appear in the official press release, the order highlighted a controversial new power being used by the Bush administration: the right to detain -- without criminal charges and without access to legal counsel -- anyone determined to pose a terrorist threat to the United States.

Hundreds of captured Taliban and Al Qaeda soldiers have been held as enemy combatants at the U.S. Naval base in Guantanamo Bay, Cuba since the Afghan war. About 660 remain there today, including Juma Al Dosari, an Al Qaeda recruiter who helped convince the "Lackawanna Six" to train in Afghanistan. The administration has said that while no law obliges them to do so, they are providing these detainees with many of the protections guaranteed by the Geneva Convention.

But when Jose Padilla, an American citizen, was detained in Chicago's O'Hare airport on May 8, 2002 and later declared an enemy combatant by President Bush, some began to question the use of this power. The justification for Padilla's detention as an enemy combatant was made in a six-page sworn declaration by Defense Department attorney Michael Mobbs. The document, known as the "Mobbs Declaration" and based largely on two unnamed intelligence sources, argues that Padilla trained with Al Qaeda, and was in the planning stages of developing a "dirty bomb."

But, as a footnote in the document states, the two "confidential sources" were "not entirely candid" with their interrogators, gave information that is "uncorroborated" and "may be part of an effort to mislead." One source was "being treated with various types of drugs" at the time of interrogation, and the other recanted in a subsequent interview. In addition, since these caveats were made, as many as 10 interpreters used in Guantanamo have come under investigation for possible sabotage of those interrogations, raising additional questions about the accuracy of evidence obtained there.

The information from the two confidential sources was the basis for removing Padilla from the judicial system, placing him under Department of Defense authority, and holding him incommunicado "until the cessation of hostilities" in the war on terrorism. No such footnotes appear in the two-page Mobbs declaration for Yaser Esam Hamdi, an American citizen captured in Afghanistan, and no Mobbs Declaration has been made public for Ali Saleh Kahlah Al-Marri, a Qatari graduate student who was charged with material support before being declared an enemy combatant.

Critics of the enemy combatant designation -- which include the American Bar Association, numerous legal scholars, and civil liberty advocates -- say that is has been used arbitrarily by the Bush administration, and employed when criminal charges would be difficult to prove, or as a threat to secure a guilty plea. They cite the inconsistency in cases such as John Walker Lindh, known as "the American Taliban"; Iyman Faris, the truck driver who allegedly plotted with Al Qaeda to destroy the Brooklyn Bridge; and Richard Reid, the alleged shoe bomber -- all were treated as criminal defendants, despite circumstances similar to those of declared enemy combatants. The threat -- overt or implied -- of enemy combatant status, which U.S. Attorney for Western New York Michael Battle has referred to as "The Hammer," has convinced many in these cases to plead guilty, the critics say.

The Department of Justice has argued that the detention of enemy combatants has occurred "during the course of virtually every major conflict in the Nation's history." But the novelty of using this status to detain American citizens can be inferred by the rarely used legal precedents used to defend it: Ex parte Milligan, a Civil War era Supreme Court case involving a civilian accused of conspiring with the Confederacy to set off bombs in the North, and Ex parte Quirin, a World War II era case involving Nazi saboteurs, two of whom were U.S. citizens.

One of the few rights enemy combatants retain is their habeas corpus right to challenge their detention. In December 2002, a district court judge ruled that Padilla has a right to an attorney, and in mid-October 2003, the 2nd Circuit Court will hear the Justice Department's appeal of that decision. On Oct. 1, 2003, Hamdi's attorneys referred his case to the Supreme Court, which is where the debate over enemy combatant detentions may ultimately be decided.

Extreme Measures

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On Nov. 3, 2002, the United States government, in coordination with the government of the Republic of Yemen, employed "extreme measures" by targeting and killing six suspected Al Qaeda members. This lethal covert action was conducted with the use of an unmanned Predator drone aircraft, which fired a missile into the vehicle in which the suspects were riding in the Yemeni desert.

The phrase "extreme measures" is used to describe a largely covert tactic currently being employed in the war on terror. It denotes a course of action primarily applied by a military or other assault force in an effort to eliminate a specific threat to a nation's security.

While extreme measures usually result in the death of a person or persons, or the destruction of an object, their use is often justified as legal under specific conditions during both times of peace and times of war. Extreme measures are typically referred to in the context of targeted killing of individuals, assassinations, commando missions or missile strikes.

American military legal experts frequently cite the killing of Japanese Admiral Yamamoto Isoroku as an example of extreme measures taken during World War II. American intelligence learned the admiral's travel itinerary and intentionally shot down his aircraft.

In peacetime, President Clinton's use of air strikes targeted at Osama bin Laden and his Al Qaeda training camps is referred to as an example of extreme measures.

The United States often defends its use of extreme measures by citing Article 51 of the United Nations Charter which affords a country the right of self-defense.

Extreme measures differ from regular military tactics in that the former are usually applied secretly and in an environment or situation that would otherwise prohibit regular military force.

Ed Carpenter and Ben Temchine are students at U.C. Berkeley's Graduate School of Journalism. Jason Felch is a reporter with the Center for Investigative Reporting. James Sandler is a field producer for New York Times Television. Sarah Moughty is an associate producer for FRONTLINE's Web site.

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posted october 16, 2003

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