1. Chapter Thirteen Crimes Against the State

2. Chapter Thirteen: Learning Objectives Understand how defining and applying crimes against the state reflects the enduring idea of balancing security and freedom during wartime. Know that treason is a fundamental weapon against present allegiance and support to foreign enemies. Appreciate that crimes against potential terrorist attacks are subject to the limits placed on traditional criminal law. Understand that the most commonly prosecuted crime against the state since September 11, 2001 is “providing material support or resources” to terrorists or terrorist organizations.

3. Applying Old and New Laws to New Threats Older Laws – Treason – Sedition – Sabotage – Espionage New Laws – Use of Weapons of Mass Destruction – Acts of Terrorism Transcending National Boundaries – Harboring or Concealing Terrorist – Providing Material Support to Terrorists

4. Treason Article III, Section 3 U.S. Constitution (only crime in constitution) – Levying war against United States – Adhering to enemies of United States Giving aid and comfort – Conviction requires testimony of two witnesses to same overt act, or confession

5. Treason (continued) Law found in U.S. Constitution reflects the debate and predicament of the drafters of the Constitution (themselves traitors of England) Limited treason law Limits on prosecution of treason built into Constitution

6. Treason (continued) Treason actus reus – Levying war against U.S. – Giving aid and comfort to enemies of U.S Treason mens rea – Intentionally giving aid for purpose of betraying U.S.

7. Treason (continued) Cases since Revolution – Ethel Rosenburg, convicted of conspiring to give atomic bomb secrets to Soviet Union (1951) – U.S. v. Cramer (1945) Government failed to sustain a conviction notwithstanding eyewitness accounts of two FBI agents regarding a conversation they saw Cramer have with two “saboteurs”

8. Sedition Stirring others up to overthrow the government by violence Advocating violent overthrow of the government Seditious speech – Urging overthrow in speeches Seditious libel – Urging overthrow in written materials

9. Sedition Seditious conspiracy – Agreeing to overthrow – Smith Act (1940) Congress made it crime to conspire to teach or advocate overthrowing the government by force Crime to be a member of a group that advocated the violent overthrow of the government – Dennis v. U.S. (1951) – Convictions of communist party members upheld against First Amendment challenge – US Criminal Code (2006) seditious conspiracy requires conspiracy that advocates violence

10. Sabotage Destroying or damaging property for purpose of interfering with or hindering preparations for war and defense during national emergencies 2006 U.S. Criminal Code, Title 18, Part I, Chapter 105, Section 2153 – Mens rea in code not clear: willfully, Intent to, reason to believe… – Actus reus: injure, destroy, contaminate, infect….

11. Espionage Spying 2006 U.S. Code, Title 18, Chapter 37, Section 794 Espionage during Peace – Turning over or attempting to turn over information about national defense to any foreign country with the intent or reason to believe that the information is to be used to hurt U.S. or help foreign country Espionage during War – Collecting, recording, publishing, or communicating any information about troop movements, ships, aircraft, or war material and any other information which might be useful to the enemy

12. Anti-Terrorism Crimes Source – Anti-terrorism and Effective Death Penalty Act (1996)(AEDPA) Response to Oklahoma City Bombing – Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (U.S.A. PATRIOT ACT) Extended, embraced and modified, AEDPA Response to attacks on U.S. September 11, 2001 – Intelligence Reform and Terrorism Prevention Act 2004 (IRTPA) Congress’ attempt to clarify, make less ambiguous crimes after challenges to AEDPA – Humanitarian Law Project v. Reno (2000) Humanitarian Law Project v. Mukasey (2009) (note: Oct. 1, 2009 U.S. Supreme Court decided to hear another challenge in Holder v. Humanitarian Law Project)

13. Anti-terrorism Crimes Use of certain weapons of mass destruction Acts of terrorism transcending national boundaries Harboring and concealing terrorist Providing material support to terrorists Providing material support or resources to designated foreign terrorist organizations

14. Anti-terrorism Crimes (continued) International terrorism – Violent acts or acts dangerous to human life – Committed outside the U.S. – Would be crimes if they were committed inside the U.S. – Are committed, or appear to be committed, with the intent To intimidate or coerce a civilian population To influence the policy of a government by intimidation or coercion; To affect the conduct of a government by mass destruction, assassination, or kidnapping

15. Anti-terrorism Crimes (continued) Domestic Terrorism – Violent acts or acts dangerous to human life – Committed inside the U.S. – Would be crimes if they were committed inside the U.S. – Are committed, or appear to be committed, with the intent To intimidate or coerce a civilian population To influence the policy of a government by intimidation or coercion; To affect the conduct of a government by mass destruction, assassination, or kidnapping

16. Use of Weapons of Mass Destruction Life imprisonment (or capital punishment if someone died) to – Use – Threaten to use – Attempt or conspire to use – Weapon of mass destruction (any destructive device) – against a U.S. citizen outside the U.S. Any person or property in the U.S. Property owned leased or used by U.S. Government Property owned or leased by foreign government inside the U.S.

17. Act of Terrorism Transcending National Boundaries Conduct takes place partly outside and partly inside the U.S. – Kill, kidnap, maim, assault resulting in serious bodily injury, assault with deadly weapon a person within U.S – Create a substantial risk of SBI – Threaten or attempt or conspire to commit the above – If, victim is U.S. Government (expanded list of governmental type folks, agencies)

18. Harboring or Concealing Terrorist Whoever harbors or conceals (actus reus) Any person he knows, or has reasonable ground to believe (mens rea) – has committed one of several offenses relating to terrorism including chemical and biological weapons, nuclear weapons, energy and airport facilities, etc

19. Providing Material Support to Terrorists and/or Terrorist Organizations Initially enacted as part of AEDPA Embraced by Patriot Act Federal felony to provide, attempt, or conspire to provide material support or resources to commit a long list of federal crimes – Aimed at providing support to individual terrorists – Or providing support to designated foreign terrorist organizations.

20. Providing Material Support to Terrorists and/or Terrorist Organizations (cont.) Proximity crime – Close to other crimes (the 44 federal crimes terrorists and terrorist organizations might commit) Aim at nipping terrorism in the bud Case holdings tend to indicate that this provision is unconstitutional John Walker Lindh –challenged law on vagueness grounds, but ended up pleading guilty Humanitarian Law Project v. Reno (2000) – 9 th Circuit held that the provision violated constitution because several terms included were vague

21. Providing Material Support to Terrorists and/or Terrorist Organizations (cont.) IRTPA enacted to amend the provisions of AEDPA on providing material support which were held unconstitutionally vague Humanitarian Law Project v. Mukasey (2009) examined the IRTPA’s new language

22. Humanitarian Law Project v. Mukasey (2009) Facts Issue Holding

23. Summary of case holdings Court examined the terms “training” (found it vague); “expert advice or assistance” (found parts vague and parts not vague); “service” (found it vague); “personnel” (not vague) Decision of the US District Court was affirmed