The anti-terrorist legislation in the US: inter arma silent leges?
Prof. John A.E. Vervaele

‘The greatest danger posed by terrorism to our democracy and to our constitutional republic may be our executive branch’s overreaction to terrorism and its use of terrorism to erode the constitutionally mandated checks and balances and sharing of powers in foreign affairs, war powers and combating international crime’. Blakesley (1992)

1. Introduction

Since 11 September 2001, the themes of security and terrorism have dominated the media in the US as never before. Due to the ensuing wars in Afghanistan and Iraq and their aftermath the global war on terrorism is practically never out of the headlines. Nevertheless, in the US the interest in the Bush I administration’s domestic policy on security and terrorism has greatly increased. Questions are asked concerning the government’s position on information with respect to the threat of the 9/11 attacks. The court cases against suspected terrorists and the consequential application of the new anti-terrorist legislation raise questions concerning the priority of principles of national security over the constitutional state and civil rights as laid down in the Bill of Rights. To illustrate, a random selection from the topics in the American press in 2003-2004: Banks, internet providers, airlines and libraries allow access to personal information; The Pentagon’s Terrorism Information Awareness program (TIA) under fire; FBI uses Carnivore as a digital dragnet; Migrants detained and deported based on classified evidence; Searches and tapping operations without a judicial warrant; Justice Department disregards judicial orders as contrary to national security; Government has assets of Palestinian aid organisations and NGOs frozen; Guantánamo prisoners tried by military commissions; Legislation against the International Criminal Court approved; Government declares US citizens enemy combatants.

The Bush I administration has made the fight against terrorism a top priority of its security and justice policy. It has greatly reduced the fragmented nature of the enforcement organisation. Despite the criticism which was and still is being directed at the FBI for its defective handling of information to prevent the attacks on 11 September, its position has clearly been strengthened. By now, the FBI devotes 36% of its capacity to the fight against terrorism. In the US alone, 66 joint terrorism teams of the FBI are operational. Some 5 000 police officers belonging to the investigation or intelligence services of the FBI operate exclusively in this field. The budget was increased to USD 4 318 million, which by now equals three times the budget of the DEA which is responsible for the old war, namely the war on drugs. The Bush I administration has also created a new super-ministry for domestic security. This Department of Homeland Security (DHS) is the result of the largest federal reorganisation after WWII. A total of 22 existing federal services, which together number 170 000 full-time positions and were formerly independent or part of other Departments, have now become part of the DHS, such as, for example, the Immigration and Naturalization Service (INS) and the Customs Service. The Secret Service and the Coast Guard also come under the DHS from now on, but they retain a certain measure of autonomy and report directly to the State Department. The FBI and the CIA were not involved in the merger and have remained part of the Department of Justice (DoJ) and the State Department respectively. The Bush I administration also deemed it necessary to radically expand, by means of emergency legislation against terrorism embedded in the the USA Patriot Act (USAPA) and in presidential executive orders, the competences of the enforcement organisations, also in the proactive phase, and to make their implementation less dependent upon judicial control. It also reinforced the position of the intelligence services in criminal law enforcement.

In the first year after 11 September, public support for these reforms and for the special legislation was unquestioned. Less of the rule of law and more security were accepted in broad circles. By now, however, the practical implementation and the way in which the executive has relegated the legislature and the judiciary to the sidelines have caused public support to erode considerably. The tone of the quality media has become much sharper and Congress is requesting the government to account for the anti-terrorism policy conducted. There are pressing questions concerning the position of information before the attacks and the need for far-reaching powers of enforcement in the fight against terrorism, as well as concerning the growing influence of the intelligence services in criminal law enforcement. Why did the FBI and the CIA withhold information from each other before 11 September? Why did the Bush I administration refuse to disclose information concerning the post-11 September detentions and deportations? Was the substantial limitation of civil rights and the equally substantial expansion of secret procedures (secret detention and trial based on classified evidence) and preventive or proactive criminal law actually necessary? The political row over the reliability of the information underlying the declaration of war against Iraq has stirred up the debate even further. Some critics claim that democracy and the constitutional state are dying a slow death behind closed doors. Did the executive use the 11 September attacks to establish a de iure and de facto police state which has suspended the constitutional state’s functioning until further notice? Have Congress and the judiciary been ousted from the game? The fight against terrorism not only leads to severe criticism, but it also encounters political opposition. In a number of states, local authorities refuse to implement certain parts of the anti-terrorist legislation. They hold the opinion that the national security policy has become the main aim of the justice policy under Attorney General (AG) Ashcroft, at the expense of civil rights and constitutional guarantees. The DoJ is involved in an increasing number of legal battles, fighting tooth and nail to have unfavourable decisions tested against national security interests on appeal before the Courts of Appeal or the Supreme Court, even if the consequences are that civil rights do not escape unscathed. Justice is also more and more often faced with subpoenas to release documents and judicial injunctions to carry out or refrain from carrying out certain acts. The Department has meanwhile also opted to launch the offensive and has instructed US Attorneys nationwide to defend the anti-terrorism legislation both legally and politically. Nevertheless, the Bush I administration has been confronted with several set-backs by the federal judiciary, including by the US Supreme Court. It will therefore not come as a surprise that the political dogfight over the appointment of new Judges at the Supreme Court has begun. 

The questioning about the quality of information gathering and sharing by and within the intelligence community has led to the establishment of the National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission), an independent, bipartisan commission created by congressional legislation and theWhite House. The 9/11 Commission was installed only in late 2002, because of opposition by the Bush I administration to its creation. The 9/11 Commission was charged with preparing a full and complete account of the circumstances surrounding the September 11, 2001 terrorist attacks, including the preparedness for and the immediate response to the attacks. The Commission was also mandated to provide recommendations designed to guard against future attacks. It released its final report on July 22, 2004, including 41 recommendations. Most of the recommendations deal with the Intelligence Community. The Bush I Administration adopted most of the recommendations and in August 2004 it published several executive orders dealing with the intellingence community. Although the Bush I administration sought intelligence reform legislation in line with the recommendations of the 9/11 Commission, it did water down several aspects, as for instance the overseeing power of the NID concerning the Pentagon. The Bush I administration set up a tough campaign to soften the results of the reform. A final compromise has led to the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). The bill includes very substantial changes in the intelligence community, by amending the National Security Act of 1947. The intelligence community will be coordinated, both substantially and financially by a National Intelligence Director (NID). In his office a National Counterterrorism Center (NCTC) and a Board on Safeguarding Privacy and Civil Liberties will be established. The bill also includes a revised definition of national intelligence, widening it to all types of intelligence, regardless of the source from which it derived and including information gathered within or outside the US. Threats to national or homeland security are explicitly included. The reform also aims to strengthen the sharing of terrorism information and the creation of what is called a information sharing environment. The reform is not limited to the intelligence community. Several measures are aimed at strengthening transport security and border protection. The 9/11 Commission also recommends that the FBI should give more priority to national security than to criminal justice and should for that reason establish a specialized and integrated national security workforce in order to shift towards a preventive counterterrorism posture. This recommendation has been integrated in the bill in Title II. Finally, the bill contains several Patriot-Act alike provisions, dealing with substantial criminal law and financial enforcement.

The 9/11 attacks and the anti-terrorism approach in the US have not remained without consequences in Europe. Many European countries have adopted special anti-terrorism legislation or significantly tightened the existing laws and the European Union has accelerated the adoption of the Framework Decisions on the criminal law harmonisation of terrorism and the European arrest warrant and elaborated an extensive anti-terrorism action plan. The judiciary, both national and supranational, have to deal with emergency measures. After the rail attacks on March 2004 in Madrid there is a real risk that the EU will seek most of its inspiration from the US approach for the elaboration of an EU home security policy. European criminal law scholars and practitioners should now examine to what extent the fundamental guarantees of the constitutional state have in the US been traded in for guaranteeing national security and how this has been translated into criminal law and criminal procedural law and the connected special legislation. For this reason, this article will outline the preparatory history of the current anti-terrorism legislation against the background of how the US has handled special legislation in the past. In a second part, the main components of the anti-terrorism legislation will be analysed. Hereby, attention will be paid to formal legislation from Congress, Presidential Decrees and DoJ guidelines.

2. 11th September 2001 and the enactment of the USA Patriot Act

On 14 September, shortly after the 11 September 2001 attacks on symbolic locations like the Twin Towers in New York, the Pentagon ‑ and presumably also nearly the White House ‑ in Washington DC, President Bush retroactively proclaimed a national emergency based on the National Emergencies Act. He qualified the acts of aggression as acts of war committed by foreign attackers, and not primarily as criminal offences. The tone had been set. AG Ashcroft subsequently underlined that the DoJ’s new approach to terrorism would primarily be directed at preventive or proactive enforcement. As early as 17 September, the DoJ issued a new law on terrorism, the Mobilization against Terrorism Act. This proposal formed the framework for a Bill in the House of Representatives on 2 October and in the Senate on 4 October, which was integrated by the President of the Senate in the Bill with the symbolic name USA PATRIOT ACT (USAPA). The Bill (H.R. 3162) was submitted to the House of Representatives on 23 October and voted through the next day by 357 to 66 votes. On 25 October, the Senate passed the text unamended by 98 votes to 1. On 26 October, the President signed the text into law of the land. The Patriot Act is a large and complex law implementing substantial changes in over 15 federal framework laws and granting unfrequented powers to enforcement agencies and intelligence services. Despite the complexity and constitutional sensitivity of many provisions, the Act was approved by Congress in an expedited procedure, without reports, debate or amendments worth mentioning. Nevertheless, the Act includes many provisions which were copied from legislative proposals from before 11 September, but which had fallen by the wayside in the Congressional debates because a large majority considered them fatal to civil rights or questioned their compatibility with the Constitution. In reality the proposal was negotiated by the government and a handful of Congressmen during a period of three weeks. AG Ashcroft asked Congress for its urgent and unconditional approval against the background of imminent new attacks about which the FBI issued a warning on 11 October. The Patriot Act has also led to the adoption in the states of what are known as Fellow Patriot Acts, legislation which introduces similar provisions at the state level concerning search and seizure, special and exceptional powers for the governor, etc.

Because of the Patriot Act, many legislative powers have been delegated to the government. Scattered throughout the Act, a number of reporting duties to Congress were built in, but these are conspicuously vague. For a long time, Congress comforted itself with the idea that the Patriot Act only applies temporarily and will therefore at some point automatically cease to apply. However, what is termed the sunset provision only applies to some parts of the Act. Furthermore, it was always suggested that the special provisions were for the purpose of fighting terrorism. However, the Act offers a wide range of possibilities for the intensive use of the new powers in a broader crime field and this is what in fact systematically occurs.

However far-reaching the new Patriot Act may be, neither special legislation, nor anti-terrorism legislation is a novelty in the history of the US. 

3. The Patriot Act in historical perspective

3.1. Special legislation in the US

Freedom and the exercise of civil rights are of primordial importance in the US. Historically, this has translated into the Bill of Rights, which due to the case-law of the Supreme Court is effective in all areas of public and private life. Remarkably though, in the history of the US the Rechtsstaat, i.e. the state subject to the rule of law and based on constitutional principles, has often been sidelined in times of crisis and political instability. Special legislation is readily resorted to, especially by US Presidents. I will list a few striking examples which illustrate that the prevailing image in Europe concerning US civil rights is strongly coloured by the case-law of the Supreme Court in the years 1953-1969 (Warren Court): 1/ Under the threat of war with France at the end of the 18th century, President Adams regarded the numerous French nationals in the US as a danger to public order. At his request, Congress approved the Alien and Sedition Acts (1798). In addition to extending the required period of residence for obtaining US nationality, a legal basis was created for the deportation of aliens who presented a danger to public order. The publication of false or misleading information concerning the government, Congress or the President with the intention of insulting them or damaging their reputation was made a federal offence. At that time, the Bill of Rights was not even seven years old. 2/ During the Civil War, President Lincoln made extensive use of his Presidential powers and completely sidelined Congress. He also suspended the application of habeas corpus. Approximately 13 000 people were arrested and detained without any further trial. The Supreme Court obliged the President to respect habeas corpus, but this judgment was subsequently neutralised by Congress which retroactively approved the Presidential Decree. 3/ In 1917, the US declared war on Germany. As a result of the approval of the Espionage Act (1917) and the Sedition Act (1918) criticism of the government or Congress was made an offence and it was used against dissidents in practice. The freedom of speech was restricted. 4/ The Japanese attack on Pearl Harbor in 1941 involved the US in WWII. President Roosevelt gave the military permission to bar persons from certain zones. Non-cooperation in reallocation was made an offence. One year later, 120 000 Japanese-American citizens, many of whom were born in the US, were locked up in camps. The Supreme Court considered the Presidential Decree to be compatible with the Constitution. On the other hand, in 1942 the Supreme Court decided that citizens may not be convicted by military tribunals, not even in times of imminent danger. 4/ In the Cold War, Congress fell in with the initiatives of senator McCarthy to suppress politically undesirable organisations. The anti-communist and anti-socialist prosecutions were mainly based on the Smith Act (1940), which made it an offence to incite violence against the government. The Supreme Court upheld the prosecutions. The McCarran-Walter Act (the Migration and Nationality Act of 1952) made it possible to deport persons who had ties with communist or anarchist groups on the basis of guilt by association without the need to prove that the organisation pursued illegal aims or that those persons were involved in concrete acts. President Truman’s veto against the legislative proposal was outvoted in Congress. In 1961, the Supreme Court considered guilt by association to be contrary to the First Amendment of the Constitution.

The use of Presidential powers to introduce special legislation is therefore not exceptional in the US. It is also noteworthy that in many cases Congress either delegated powers or covered them by legislation after the fact. There is, however, lively debate in the US concerning the scope of these powers of Congress and the President in relation to respecting the democratic constitutional state.

3.2. Anti-terrorism legislation in the US

With the Patriot Act, the US did not take its first steps in legislating against terrorism. In 1986, President Reagan signed the federal Omnibus Diplomatic Security and Anti-Terrorism Act. The objective of this Act is to protect the diplomatic missions and essential infrastructure, such as military bases and American ships. The Act markedly expands criminal law jurisdiction by making punishable certain acts of international terrorism against Americans that are committed by non-Americans, regardless of where these acts take place. The Bill defined international terrorism by referring to the Foreign Intelligence Surveillance Act (FISA). The Act limits the offences themselves to violent offences against persons, including their attempt and their plotting. The scope of jurisdiction therefore closely depends on the executive’s interpretation of the fundamental concept of international terrorism. After the hijacking of the cruise ship Achille Lauro and the murder of an American passenger and other PLO activities the Anti-Terrorism Act of 1987 was adopted, which declares the PLO to be a terrorist organisation.

In 1993, the US was confronted with the first, serious attack on home ground, a bomb attack on the World Trade Center in New York. Despite the limited number of casualties (6) and the speedy trial of the suspects, politics and the public considered domestic terrorism a major threat. In 1995, the Clinton administration drafted a specific federal anti-terrorism act, the Omnibus Counterterrorism Act, which tightens criminal law jurisdiction for terrorism committed in or from the US and makes it an offence to finance terrorism. After the bombing of a federal building in Oklahoma City in which 168 people were killed the Bill was tightened further. Especially the tapping competences of the FBI and access to the data of service providers (travel agents, credit card companies, etc.) were expanded considerably. Clinton earned the full support of the Senate which almost unanimously approved the Comprehensive Terrorism Prevention Act (1995) in June. In the House of Representatives, however, opposition was raised from republican quarters concerned over the restriction of constitutional civil rights and the growing competences of the federal enforcement agencies. The House of Representative Judiciary Committee submitted a Bill of its own. In March 1996, this version, the Antiterrorism and Effective Death Penalty Act (AEDPA), was passed by the House by 229 votes to 191. In April 1996, Clinton signed the Bill into law. The core of Clinton’s proposals has remained intact, with the exception of a number of new FBI powers. The following points are important. The government (State Department), i.e. not Congress, from now on decides on qualification as a terrorist organisation. It is not necessary for the organisation to commit criminal offences in order to fit the definition. It is sufficient that the group engages in terrorist activities which endanger the safety of US citizens or the security of the US itself. The Immigration and Nationality Act defines terrorism as the use of violence. The security of the US is endangered if the interests of defence or foreign affairs or the economic interests of the US are at stake. The government’s decision can only be tested in the courts to a very limited extent, as the government is allowed to use classified information and the grounds for testing by the courts are limited. An organisation like the ANC could therefore fulfil the qualification without question. Qualification for the list and thus also the definition of terrorist offences is made highly dependent on the political considerations of the government. The Act furthermore reintroduces guilt by association by prohibiting all material support, including fundraising, for the organisation concerned, even if the material support is intended for, for example, humanitarian aid. Financial institutions are required to freeze the assets of the organisation in question worldwide. Members of the organisation are denied access to the US or they are deported. Title IV of the Act provides for special secret removal courts. These make decisions concerning deportation based on classified information and completely disregard the rights of the defence. Their decision is also confidential. 

The government used the AEDPA selectively. Only after 18 months did the government produce the first list of terrorist organisations. Secretary of State Albright placed 30 organisations on this list that are regarded as special designated terrorists or SDTs. The number of prosecutions for material support is few and far between. Classified evidence, however, is used quite often to deport aliens.
In 1996 another Bill was approved by the Clinton Administration, namely the Aviation Security and Anti-Terrorism Act. Here, too, the House of Representatives restricted the powers of investigation that were slightly too broad. Special legislation is further not only to be found in specific anti-terrorism Acts. In the framework of the fight against organised crime it also became easier to deal with and confiscate the flows of money of criminal organisations. The enforcement agencies were also granted wider powers by means of legislation regulating the security services. For example, the Fiscal 1999 Intelligence Authorization Act authorises the FBI to apply roving wiretaps which allow for the tapping of all communications of one person, even if this person changes communication devices. The FBI is also given permission to use the pen register and trap and trace devices in counter-terrorism operations, which gives it access to large amounts of non-content information at service providers, for example, information concerning which numbers have been called from a certain telephone during a certain period of time.

The anti-terrorism legislation of the Bush I administration was therefore not created in a vacuum. Important building blocks were provided under the Reagan and Clinton Administrations. The anti-terrorism legislation of the Bush I administration is elaborated on three fronts. There is the formal Patriot Act of Congress, then there are the Presidential Decrees and, finally, AG Ashcroft is very active in issuing internal guidelines. 

4. Analysis of the Patriot Act

The Patriot Act numbers approximately 350 pages and in ten Titles amends over 15 existing federal laws, among which the Wiretap Statute, the Computer Fraud and Abuse Act, the Foreign Intelligence Surveillance Act, the Pen Register and Trap and Trace Statute, the Immigration and Nationality Act, the Money Laundering Act and the Bank Secrecy Act. The complexity of the Act is doubtless the reason why not a single book has yet been published in the US analysing the Patriot Act in-depth and from front to cover. A number of reforms are substantial, but the sting is often in small details. In April 2003, the House of Representative Committee on the Judiciary submitted an extensive list of probing questions to the DoJ. On a number of points, the answers allow some insight into the practical implementation and this has been included in the analysis.

4.1. Domestic security

The DoJ and the FBI are given secret funding for the fight against terrorism and counterterrorism (Sec. 101 and 103). From this, rewards for informers and one-time informers can be paid or the costs of detaining suspects of terrorism in foreign countries. A special taskforce for the prevention and detection of cyberterrorism, such as attacks on financial payment systems or critical digital infrastructure, was also established at the Secret Service. The AG and the Secretary of State are given more room to pay financial rewards in the framework of the fight against terrorism (Sec. 501-502). The DNA databank is enhanced with data concerning persons who are suspected of terrorism and violent crimes (Sec. 503). Educational institutions can be required to release records of their courses, disclose the names of students, indicate which literature is studied, etc. (Sec. 507-508). Direct marketing companies must also grant wider access to their personal records (Sec. 505). Specific funds are further established for assistance to victims of terrorism (Sec. 621-624) and special funding is provided for a secure information sharing system for all federal and state law enforcement agencies (Sec. 701). Finally, specific provisions have been included in the Patriot Act, mainly in Title IX, concerning the exchange of information between the services charged with enforcement, such as the FBI, and the intelligence services (CIA, etc.).

4.2. Bugging of verbal communications, tapping of electronic and digital communications and searches

4.2.1. Historical background and starting points

The provisions concerning bugging, tapping and searching digital and electronic communications are mostly amendments of existing rules (federal criminal procedural law, FISA and federal substantive criminal law) and must therefore be analysed in a broader context. Since the 1960s, judicial control over the use of powers of investigation has been a recurring theme in the case-law of the Supreme Court, especially as regards the Fourth Amendment (warrant clause). The Fourth Amendment expressly states that a warrant can only be issued when there is probable cause. In Katz v. US, the Supreme Court decided that a warrant is needed for bugging, unless a matter of national security is involved. In Berger v. New York, the Supreme Court stated that the warrant for wiretapping must be sufficiently specific with respect to the target, the method and the duration. In 1968, the legislator regulated this topic in Title III of the Omnibus Crime Control and Safe Street Act. The conditions for obtaining a warrant are laid down in legislation. The enforcement agencies must be able to show probable cause in an affidavit. As a rule, therefore, a warrant is required, but there are numerous exceptions. In case of tapping without a warrant, however, the action taken may not be unreasonable and there must be probable cause in the mind of the investigating officer. The Act also expressly states that ‘the statute does not limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts by foreign powers, to obtain foreign intelligence information deemed essential to the security of the US, or to protect national security information against foreign intelligence activities’. In short, tapping without a warrant is always possible in national or international investigations for the purpose of protecting national security. In 1972, the Supreme Court decided in the Keith case that the Constitution makes a warrant compulsory if the investigation concerns ‘domestic individuals’ and has ‘no significant connection with a foreign power’. The legislator got the message and in 1978 the by now infamous FISA surveillance was introduced, which makes it possible to bug and tap ‘foreign powers and their agents’ without a warrant. For the tapping or bugging of related US citizens or US residents a warrant must be issued by a secret FISA court. In the period between the entry into force of the FISA (1978) and 1 September 2001 this possibility was used 47 times. In the period from September 2001 until the end of 2002 alone, it was used 113 times.

In the discussion concerning access to electronic and digital information in the framework of criminal investigations a number of concepts are involved. Important is the distinction between content information and addressing information, comparable to the envelope and the letter. Another relevant factor is whether the surveillance takes place in real time or not and whether the surveillance is prospective (telephone tap) or retrospective (access to stored information, for example, in e-mails or on voice recorders). Of course, there is also a distinction between direct surveillance by the service provider or the operator of the information network and surveillance by the enforcement agencies themselves (requisitioning data, tapping, etc.).

Title II of the Patriot Act amends certain powers of investigation under the general federal law of criminal procedure (Title III of the Crime Control Act) and under the special criminal law and criminal procedural law on security in the FISA. In both systems, it is useful to distinguish between interception orders, pen/trap orders, subpoenas and search warrants. Title II of the Patriot Act considerably expands the possibilities of digital investigation and makes them less dependent on judicial authorisation. That this expansion of powers is usually not limited to terrorism offences has only recently dawned on the politicians in Washington. Finally, the IRTPA (2004) has further widened the application of the FISA, by including in the definition of international terrorism all preparatory acts.

4.2.2. Interception orders and wiretaps

In general criminal procedural law a warrant is required for listening in on conversations and placing bugs (electronic eavesdropping) and for tapping (i.e. including access to the content of real time conversations), and in practice this warrant is granted in 99.9% of cases. The court can only grant warrants for an exclusive list of crimes and has to determine with due regard to probable cause that the suspect has committed the offence and that the method of investigation will yield evidence. The investigative bodies have to report to the court within 30 days. The court can extend this period by another thirty days. Interception and tapping is possible without a warrant if a specially authorised investigative officer reasonably determines that an emergency situation exists that involves a/ an immediate danger of death or serious physical injury to any person, b/ conspirational activities threatening the national security interest, or c/ conspirational activities characteristic of organised crime and if d/ a warrant could have been obtained. The court must authorise the emergency interception a posteriori within 48 hours. The Patriot Act adds terrorism, computer fraud and computer abuse to the specific application list (Sec. 201). Crimes like murder, hijacking and kidnapping were already on the list, but due to the broad definition of terrorism in the Patriot Act the scope of application is widened substantially. Roving wiretaps become the rule. Neither the locations, nor the facilities that will be tapped need to be specified (Sec. 206). Reporting the subject is sufficient and all means of communication fall under the scope of application. Roving wiretaps are possible when it can be shown that the persons in question ‘have demonstrated a purpose to thwart interception by changing facilities’. In practice, they are often blindly permitted.

For recorded data, such as voice-mail messages, interception orders are no longer required under the Patriot Act (see 4.3.4.). For intercepting communications of suspected computer trespassers judicial authorisation is no longer required either (Sec. 217). Sec. 202 also makes it possible to tap on-line communications for violations of the Computer Fraud and Abuse Act, for example in the fight against hackers who hack teleconferences. 

In FISA criminal procedural law it is sufficient that the AG certifies that ‘the purpose of an order is a suspicion that the target is a foreign power or an agent of a foreign power’. The tapping order must specify who the target is and the places at which the surveillance is directed. The order is issued by the FISA court, which decides on the basis of classified evidence and with a narrow margin of discretion. The decision is confidential. The order is valid for 90 days or even a year where foreign powers are concerned. There is no duty to report to the FISA court. The Patriot Act has widened the scope of application to a considerable extent. All means of communication that the target uses may from now on be tapped and the person carrying out the tap need no longer be identified in the application and the order. This way, roving wiretaps become possible under the FISA for a period of 120 days (Sec. 206-207). It is moreover sufficient that the AG certifies that it concerns ‘a significant purpose’ instead of ‘the purpose’, which relaxes the application of the FISA. This greatly broadens the material scope of application.

4.2.3. Pen/trap orders

Since 1986, the Pen Register and Trap and Trace Statute regulates the access to and the collection of non-content communication data in general criminal procedural law. With a pen/trap order, for example, phone numbers of all calls from or to a certain telephone number can be traced. It is sufficient to certify to the court that the information is relevant for an ongoing criminal investigation. The order can also apply to other persons besides the suspect, i.e. including third parties. It is not required to report back to the court. Concerning the question whether the rules also permit online pen/trap orders, conflicting judgments have been delivered in case-law. The Patriot Act now makes the orders expressly applicable to electronic networks. This makes it possible to access e-mail addresses, IP addresses and IP remote addresses, for example. Pen/trap orders are non-content orders, but there is still some debate concerning the scope of application to non-content information where electronic networks are concerned. All information concerning dialling, addressing and signalling and the ‘from’ and ‘to’ fields in e-mails fall within the scope of application, as does web browsing. The subject line in e-mails, however, is content information. In any case, it is clear that the information which can be obtained through pen/trap orders goes beyond merely identifying data (personal details like name, address) and that they can also concern things like the duration, the dates, the location and the nature of services rendered and account numbers and payment details and can therefore also contain privacy-sensitive information. In the Patriot Act, the pen/trap orders are not limited to terrorism offences.

The Patriot Act (Sec. 220) also deviates from the basic rule that a court can only grant an order for its own jurisdiction. However, communications often run through competing providers of fixed and non-fixed connections with registered offices in different US states. The federal courts now no longer require that the pen/trap orders identify the providers and the orders are valid nationwide, throughout the entire territory of the US. The FBI can also install its own pen/trap equipment at service providers. This is subject to judicial supervision.

In FISA criminal procedural law, the conditions for a pen/trap order are stricter than under the general criminal law system. Relevance for the ongoing investigation is not sufficient; an indication must also be given that the means of communication was used to contact an ‘agent of a foreign power’. The legislator clearly wished to avoid that US citizens would be overly subjected to secret pen/trap orders. Due to the Patriot Act (Sec. 214), a pen/trap order is now possible as soon as it concerns ‘foreign intelligence information’ and does not concern a US citizen or, if it does concern a US citizen, when its objective is to protect against international terrorism and clandestine activities and does not exclusively concern activities which are protected under the First Amendment (freedom of speech). Here, too, the criterion of ‘the purpose’ has been replaced by ‘a significant purpose’ (Sec. 218).

4.2.4. Subpoenas for stored information

Many specific laws provide the possibility to subpoena documents upon penalty of a fine. The Grand Jury also has this power under federal criminal procedural law and uses it often. Probable cause is not a requirement for the Grand Jury. The applicability of such subpoenas to electronically stored information (e-mails, lists of subscribers, transaction overviews at service providers) was the subject of much dispute due to the lack of clarity on this point in the Electronic Communications Privacy Act (ECPA). The Patriot Act has amended the ECPA (Sec. 209-210). From now on, subpoenas can be used not only for obtaining certain information (such as personal details, means of payment, etc.) concerning service providers’ clients, but also for obtaining related data (such as credit card numbers or bank account numbers, the IP and IP remote address), and this is now true for all internet communications. Probable cause is not required. In this way, it has become much simpler for enforcement agencies to uncover the user’s true identity. This instrument is often used in practice and also allows information concerning the duration of the session, temporarily assigned network addresses, etc., to be obtained without judicial authorisation. In this way, not only stored e-mails can be inspected, but also stored voice-mails, i.e. both electronically stored and wire-stored information. Before the Patriot Act, voice-mails still required a wiretap warrant under the Wiretap Statute. Another advantage is that all MIME (Multipurpose Internet Mail Extensions) can be inspected in this way, including e-mail with all kinds of attachments (data, voice-mails, etc.).

In addition, the Patriot Act (Sec. 211) has placed the cable companies, which now also offer e-mail and telephone services, on an equal footing with telephone and internet companies. Before that, access to information at cable companies was very limited. The Cable Act provided for judicial proceedings whereby the Public Prosecutor’s Office had to show that there was ‘clear and convincing evidence’ that the subscriber was ‘reasonably suspected of engaging in criminal activity’, a standard of evidence that is greater than probable cause. The user also had to be informed and was therefore a party to the proceedings. Based on Sec. 212, service providers can now also voluntarily pass on non-content information to enforcement agencies in urgent circumstances of a life-threatening nature. Content data could already be passed on.

Under FISA criminal procedural law, subpoenas always required judicial authorisation, whereby it had to be shown, without probable cause, that the target was a foreign power or an agent of a foreign power. The material application of the subpoena was limited to travel agents and transport companies, etc. Sec. 215 of the Patriot Act has greatly broadened the FISA subpoena to cover all ‘tangible things’, which includes, for example, company accounts. Judicial authorisation is still needed, but from now on it need only be shown that the information is relevant for the ongoing investigation (relevance standard) into terrorism offences or for the position of information concerning foreign powers or their agents. The addressee of the FISA subpoena does not need to be linked to the criminal activity in any way; it is sufficient that he can supply relevant information. The FISA subpoena also applies to US citizens, but in that case the investigation may not exclusively concern First Amendment information.

Congress further granted the DoJ the power to issue national security letters based on which companies have to supply information concerning financial transactions, telephone communications, e-mails, etc. The companies are also prohibited from notifying the customers that information is so supplied.

4.2.5. Physical search warrants

In general criminal procedural law, a search requires a search warrant for which probable cause is a prerequisite. Recent case-law of the Supreme Court has excepted many situations from this requirement and has also considered a limited delay in the notification of the search to be compatible with the Fourth Amendment. The Patriot Act has broadened the exceptions to the knock and announce rule (Sec. 213), which could make the secret warrant (sneak and peek) the future rule in terrorism offences. The sneak and peek is mainly intended for searches, but is also applied for seizure. The sneak and peek is also used to bug computers. The Patriot Act also put an end to the patchwork of rules and case-law concerning the sneak and peek. The uniform standard has become that notice of the search may be delayed ‘if the courts finds reasonable cause to believe’ that prior notice could result in the endangerment of people, the threatening of witnesses, disposal of evidence, obstructing the investigation, flight risk, etc. The delay is granted for a reasonable period. In practice, a period of 90 days is often used, but this can be extended. In July 2003, the House of Representatives voted down the expansion of the sneak and peek power in the Patriot Act with a surprising majority. The AG immediately started a campaign to retain this power. The competent Senate committee is still dealing with this proposal. 

Under Rule 41(a) of the Federal Rules of Criminal Procedure a search warrant was needed for each separate district. By means of Sec. 219 of the Patriot Act, the courts can now issue a single-jurisdiction search warrant for the investigation of domestic or foreign terrorism, which is valid throughout the entire territory of the US. This power was first used for a search of America Media, Inc., in Florida, the employer of the first anthrax victim.

Under FISA criminal procedural law, the AG can allow searches without the court’s intervention for a period of one year if the locations in question have been exclusively used by a foreign power. If the search targets an agent of a foreign power, judicial authorisation is required. In order to grant this authorisation, the court must be convinced of the ‘probable cause that the US target is an agent of a foreign power’. Here, too, the investigation may not exclusively concern ‘First Amendment-protected activities’. The total duration is 45 days. The Patriot Act extends this time limit to 120 days (Sec. 207).

4.3. Financial enforcement law

In Title III of the Patriot Act, the focus is on the fight against money laundering and the financing of terrorism. It was originally intended to elaborate a separate Financial Anti-Terrorism Act, but eventually this was integrated into the Patriot Act. For this reason, the Title may also be cited as the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001. Of course there is a clear connection between Title III and substantive criminal law concerning terrorism. It emerged from the national money laundering strategy of 2002 how much the financing of terrorism has become a priority in tackling money laundering. The tasks of the money-laundering unit in the US, FinCEN, have also been enlarged (Sec. 361). All financial transaction systems, from cash transactions, ATM and internet to informal systems such as hawala or hundi and trade in valuable objects (art, diamonds, etc.) are the subject of further regulation and enforcement. The Treasury and FinCEN have elaborated detailed departmental and further regulation on this point. It is noteworthy that financial enforcement law and the fight against the financing of terrorism have been set up as a global enforcement strategy.

The Patriot Act contains a whole catalogue of measures to extend the scope of application of the money laundering legislation in the US and thus to tackle the financing of terrorism. First of all, the US extended its direct jurisdiction over financial institutions. Under private law, having a bank account in the US is a sufficient jurisdictional link with the money-laundering act, even if it took place abroad (Sec. 317). Numerous changes have also been made in the field of criminal law. The criminal law fines have been increased to twice the amount of the transaction or a maximum of one million dollars. Criminal law jurisdiction has also been extended. If in the commission of the offence a financial transaction takes place in the US in whole or in part or the illegally obtained property is placed in the US in whole or in part or if the financial institution or agent has a bank account in the US, there is jurisdiction (Sec. 317). All banks, including foreign ones, are moreover barred from carrying out transactions with illegally obtained funds (Sec. 318). Jurisdiction with respect to money laundering is further extended, as money laundering is now considered a continuous offence. Because of this, there is jurisdiction in all locations where acts have been performed in relation to the funds in question. Finally, the court can serve a repatriation order on the accused. In case of non-compliance the penalty can be increased or the accused can be held in contempt of court. In addition, the basic offences with respect to money laundering are extended to cover all violent offences, corruption, smuggling and all offences under the extradition treaties. This makes all transactions in the US with these illegally obtained funds illegal. Sending money from or to the US with the intention of promoting one of these offences is penalised separately. On that basis, for example, it is possible to confiscate smuggled funds of USD 10 000 or more (bulk cash smuggling). The same applies to funds transmitted through illegal transfer systems, such as underground banking or hawala, which is made an offence in Sec. 373. Here, moreover, the Public Prosecutor’s Office no longer needs to demonstrate that the perpetrator knew that he was violating a licensing rule. All financial agencies, with or without customer service, come under the rule. Trade in illegally obtained property or trade in property for the purpose of committing an offence is specifically penalised. Evidence of promoting the commission of offences or of handling stolen property no longer needs to be produced. Of the same category is the penalisation of counterfeiting foreign currency and negotiable instruments. The AG and the Treasury/FinCEN can also issue subpoenas for the disclosure of documents or freezing orders. Here, too, keeping a bank account in the US is a sufficient jurisdictional link. The fact that the negotiable instruments or deposits are not located in the US is irrelevant, as the bank has the power to dispose of them. Since September 2001, the Office of Foreign Assets Control (OFAC) has had 600 bank accounts with a total credit balance of 124 million dollars frozen worldwide in connection with some 70 ongoing investigations.

Besides this, there has been a considerable extension of indirect territoriality. This means that severe obligations have been imposed on US financial institutions with respect to foreign account holders (including foreign financial institutions) and foreign transactions. This does not only concern the duty to retain records and to report. Financial institutions and their agents in the US can be requested to be put under special financial supervision for a period of four months if a foreign jurisdiction, financial institution or transactions abroad are ‘of primary money laundering concern’ (Sec. 311). The special supervision may concern transactions, information regarding the owner of accounts in the US, information concerning clients and transactions involving interbank and suspense accounts, etc., and may also mean that maintaining or opening certain interbank or suspense accounts is prohibited. This special supervision, which is further defined and implemented by FinCEN, may last for a maximum of 120 days. FinCEN also further delineates the regulations concerning the supervision of bank accounts in the US which are owned by foreign account holders (Sec. 312). Foreign banks with suspense accounts in the US are from now on also obliged to appoint a legal representative in the US, who then becomes the legal addressee of any possible subpoenas. In case of non-cooperation in the subpoena procedure the accounts have to be closed upon penalty of a fine of USD 10 000 per day. With respect to accounts of a foreign person in the US, including foreign banks, a restraining order can be imposed and an account manager can be appointed. By means of these arrangements and obligations, awkward cooperation with third countries is avoided and the US obtains worldwide indirect jurisdiction in the fight against money laundering. On 28 December 2001, the Treasury published the implementing regulations. Their elaboration by the Treasury was strongly influenced by the Bush I administration’s security agenda. The provisions concerning seizure and confiscation are also extended. Illegally obtained property is often deposited into a suspense account of a foreign bank with a US bank in the US. In case of seizure, the US bank can raise the defence of innocent ownership. Under the Patriot Act, the equivalent amount can now be confiscated from the suspense account. The only person who can raise the innocent owner defence is the owner, not the bank, unless the bank itself is accused of money laundering. This new instrument was used in the James Gibson case. Gibson, a lawyer, was accused of money laundering and fraud and he fled to Belize taking all his property and assets. It proved impossible to seize the funds in Belize. Subsequently, the equivalent amount was seized in the US. As regards confiscation, it is now possible that the property of a person who has been convicted of international terrorism is confiscated in its entirety. The Civil Assets Forfeiture Reform Act of 2000 was also amended (Sec. 323) for the purpose of broadening the execution of foreign requests for confiscation to include all offences which could also be a basic offence for confiscation in the US and to freeze the assets pending a civil restraining order from the federal district court. Defence in the US is not possible, only in the requesting country.

In October 2001, the Department of Finance established a mixed team of investigation called Operation Green Quest. Led by the US Customs service, experts were selected from the IRS, Secret Service, FBI, OFAC, FinCEN and from amongst DoJ federal prosecutors. The operation exclusively concerns the financing of terrorism. The liaison officers in US embassies worldwide are also used.

The IRTPA (2004) further strengthens the position of FinCEN, by facilitating technological improvements to provide authorized law enforcement and financial regulatory agencies access to FinCEN data and by imposing upon financial institutions the duty to report to FinCEN certain cross-border electronic transmittal of funds. Moreover, the money laundering provisions are widened, by not only referring to certain international transactions, but also to certain types of accounts as such. Finally, the new bill introduces, in addition to any other administrative, civil, or criminal remedy or penalty, tough industry-wide prohibition orders and civil monetary penalties for employees of financial instutions knowingly accepting compensation for certain services. 

4.4. Terrorism and substantive criminal law

The Patriot Act amends the existing substantive terrorism legislation. The most important development is no doubt the fact that by means of Sec. 802, besides the definition of the crime of terrorism, a definition of domestic terrorism is also introduced in federal legislation. In the Patriot Act itself, this also confers jurisdiction for the judicial authorisation of searches with validity throughout the US. The definition is extremely broad and for its delineation strongly depends on the implementing legislation of the government. Domestic terrorism means ‘activities that a/ involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; b/ appear to be intended 1/ to intimidate or coerce a civilian population; 2/ to influence the policy of a government by intimidation or coercion; or 3/ to affect the conduct of a government by mass destruction, assassination, or kidnapping; and c/ occur primarily within the territorial jurisdiction of the United States.’ At the same time, Sec. 808 considerably expands the basic offences constituting the crime of terrorism. 

The penalisations and possibilities for confiscation have also been enlarged. Sec. 801 makes offences of a number of acts against or involving means of mass transportation with the possibility of life imprisonment in case of fatal casualties. These acts include, for example, arson, the placing of biological or chemical products or interference with the operation of transportation to the extent that passengers’ safety becomes at risk. Sec. 803 furthermore makes the harbouring or concealing of terrorists a separate offence. The specific penalisation of assisting terrorism is extended. Due to the broad definition of terrorism and assistance, any form of support, including financial and non-material support, is punishable and this penalisation is therefore also often used in practice. Material support includes all forms of advice and assistance, and of course also financial services and digital support. No special intent is needed; it suffices that the person concerned should have been aware that the support would be used for committing terrorist offences. Nor is it relevant whether the offences were actually committed. Providing or collecting funds intending or knowing that these will be used to commit terrorism, or to perform acts which are intended to cause the death or serious injury of a civilian or to intimidate a society or coerce a government to carry out or abstain from certain acts is an offence. Material support to foreign terrorist organisations is made a separate offence. On 1 November 2002, for example, four persons, among which were one US citizen and one US resident, were accused of conspiring to distribute cocaine and conspiring to lend material support to the foreign terrorist organisation AUC in a drugs-for-weapons agreement. Some 25 million dollars’ worth of Russian and Eastern European weapons were to be supplied against an equal value in cocaine. The two US-related persons arranged a deal between two highly placed AUC members and a dealer, who, however, turned out to be an undercover agent. Sec. 811, by the way, for most terrorism offences raises the punishment for conspiracy to the level of the punishment for the realised offence. Further, Sec. 814 provides for the stricter punishment of cyber terrorism. In case of serious damage caused by spreading a virus it is now possible to impose up to ten years’ imprisonment, and in case of a repeat offence, up to twenty years. This also applies to damage to automated networks abroad, if this can affect commerce or communications with or in the US. Sec. 817 now makes it possible to prosecute the simple possession of toxic or biological products. It is no longer necessary to show that these products were intended for use as weapons. From a certain amount upwards evidence that these products were intended for bona fide research or medical use is inadmissible. Finally, by means of Sec. 813, terrorism has been recognised to be one of the basic offences for the purpose of the RICO legislation concerning organised crime, containing among other things far-reaching measures of confiscation. A private law confiscation regime was further introduced under Sec. 806, which disconnects confiscation from the origin of the goods and from the fact whether these goods were used for or were the product of terrorism offences.

In short, in the US a wide definition of terrorism and material support to terrorism is applied, which in practice is also used to deal with, for example, street gangs. However, it is not an offence to be a member of such an organisation, nor is an apologia for terrorism punishable. On the other hand, the concept of guilt by association is applied for support. Propagating the objectives of a terrorist organisation, for example, is a form of support. No evidence of malice or negligence is needed. According to critics, this greatly reduces the freedom of association and speech as laid down in the First Amendment.

The IRPTA (2004) further extends the definition of providing material support to terrrorism. Receiving military-type training from a foreign terrorist organization is defined as a specific offense. The bill includes new and very broad definitions of material support, training and expert advice or assistance. Finally, the bill does provide for a set of new offenses dealing with weapons of mass destruction

4.5. Protection of the external borders and migration laws: enemy aliens

In the US, an alien can violate immigration laws by failing to comply with visa obligations or by not having a legal visa. The grounds of inadmissibility with respect to immigration procedures have been very broadly defined (Sec. 411): 1/ members of organisations which have been designated foreign terrorist organisations (FTOs) by the Secretary of State; 2/ members of political, social or similar groups who publicly endorse acts of terrorist activity and thus undermine US efforts to reduce or eliminate terrorist activities and 3/ persons, either in an individual capacity or as a member of an organisation, who engage in acts which fall within the definition of terrorist activity, including the soliciting of funds or membership or providing material support. A person who associates with a terrorist organisation and during his stay in the US attempts ‘to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the US’ is inadmissible. Persons fulfilling these very broad criteria, which are delineated by the Secretary of State, are placed on the Terrorist Exclusion List (TEL). In the migration laws the definition of terrorism is therefore even wider than in substantive criminal law and guilt by association has been used liberally. In reality, this is simply blacklisting as a recognised migration policy.

The Patriot Act has extended the 24-hour rule for giving notice of the reason for administrative detention to 7 days (Sec. 412). Within these seven days, the person in question must have been charged with a criminal offence or brought before the public prosecutor in removal proceedings. The INS has changed the period of seven days into within a reasonable time, for which a period of 90 days is used. Persons concerned may be detained for six months, but the AG can extend this period. If national security so requires, this period can be extended several times (Sec. 412). After the removal order, Homeland Security must remove the alien from the country within 90 days, but several cases of indefinite detention have been reported due to failing cooperation with the country of origin.. After 11 September, some 800 aliens were detained based on the immigration laws in a massive detention operation by the FBI, known as PENTTBOM. Traditionally the DoJ is responsible for removal proceedings, which are not considered punitive. These proceedings are dealt with by immigration courts, which are part of the Executive Office for Immigration Review at the DoJ. The AG has provided a further legal implementation of the removal proceedings. Since 1964, it is possible to hold these proceedings behind closed doors in the interest of the parties, of the witnesses or in the public interest. On 21 September 2001, Chief Administrative Justice Creppy, at the AG’s request, issued a special memorandum declaring the administrative procedures concerning 9/11 prisoners to be cases of ‘special interest secrecy’. This means that all information concerning the judicial proceedings must remain secret, including the names of the persons involved, entry of the case in the docket, decision, etc. Because of the secrecy surrounding the detentions and the removal proceedings, a report from the inspector-general of the DoJ was eagerly awaited. His criticism of the detentions is far from mild: aliens suspected of violating immigration laws (expired visa or false entry on passport) have been indiscriminately detained together with aliens suspected of links with the offences of 11 September; both categories have been informed too late concerning the suspicions and had to wait for FBI clearance to know whether they would be removed or released. The clearance took many months to be issued. In most cases, the family was not or incorrectly informed concerning the place of detention and the proceedings against the detainees were kept secret. In fact, the Patriot Act has substantially enlarged the possibilities for replacing custody with detention. The AG and the INS have unprecedented power to detain persons long-term, without the possibility of defence and without having to state expressly what exactly constitutes the threat to national security. The procedure applies both to the period before removal and to the period after the decision to remove and the removal itself.

Under the Patriot Act, additional funding has also been made available for the Border Patrol, the Customs Service and the INS. The Department of State is given access to the National Crime Information Center’s Identification Index (NCIC-III), in particular to committed offences and wanted persons. The DoJ and the Department of State are working on a biometric standard for border controls, visas and passports. Educational institutions are furthermore given the obligation to release specific information concerning the education of aliens.

On January 12, 2005, the Supreme Court has decided that non-citizens have the right to be free from indefinite detention. The Court concluded that the statute relied on by the Government to support the practice of indefinite detention only authorized detention for as long as is “reasonably necessary” to achieve removal, which means that the Government has to come up with good and justified reasons. Otherwise the persons concerns must be released from detention. 

5. AG Aschroft and the further substantiation of the Patriot Act

The Patriot Act gives the DoJ and the AG far-reaching powers and makes them the central players in the field of anti-terrorism. Because of the broad definition of terrorism, the AG, has legally speaking, reinforced his jurisdiction vis-à-vis specialised law enforcement agencies, such as the Secret Service and the Coast Guard. The AG has complementary legislative competence and has used this on a number of crucial points in order to further substantiate the Patriot Act. In addition to the specific guidelines which we discuss here, guidelines also exist concerning FBI undercover operations and concerning the deployment of informants. These guidelines also apply to terrorism, but they were not elaborated as a result of the Patriot Act. Most guidelines concerning FISA are confidential. Insofar as they are accessible, they have been included in this article.

5.1. AG guidelines on general crimes, racketeering enterprise and terrorism enterprise investigations and the FBI’s powers of investigation

In May 2002, the AG issued new guidelines seeking to regulate the FBI’s powers of investigation in closer detail. These guidelines complement the specific guidelines concerning informants and undercover operations. The FBI is the primary federal investigative body, to the extent that investigative powers have not been granted to other federal law enforcement agencies, such as for example the Secret Service or the DEA. It is expressly stated that the guidelines do not prejudice the special FISA guidelines concerning the gathering of information and investigation with respect to international terrorism or foreign activities in the field of intelligence and counter-espionage. The AG guidelines distinguish between preliminary inquiries and criminal investigations. The preliminary inquiry may include various acts: a quick check of initial leads or a preliminary inquiry of up to 180 days. The FBI must initiate the preliminary inquiry if ‘the possibility of criminal activity and responsible handling requires some further scrutiny’. In the framework of the preliminary inquiry the FBI is authorised to make use of a considerable number of investigative powers, undercover operations among them. However, opening mail and tapping electronic communications are strictly prohibited. The actual criminal investigation (or full investigation) must be conducted when facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed. The requirement of reasonable indication is a lower threshold than probable cause. The indication can be based on direct evidence, but also on certain acts, such as the activities of the group or statements of its members. Preparatory acts can in any case be punishable under provisions concerning attempt, solicitation, acts in preparation of a terrorist crime (for example, providing material support) or conspiracy.
In case of the full investigation, a distinction must again be made between the investigation of general crimes and criminal intelligence investigations. If, for example, there are concrete indications that certain persons are about to rent an apartment or provide funding to commit terrorist crimes regular investigations are commenced. Criminal intelligence investigations are commenced for the purpose of gathering information concerning criminal groups, networks or enterprises. The focus is not on specific persons or acts. The main objective is to collect information concerning the aims, finances, membership and activities of the group. The group may be a racketeering enterprise within the meaning of the RICO legislation concerning organised crime or it may be a terrorist organisation. In both types of investigations, all investigative techniques are permitted, provided that they meet the specific statutory requirements. The intelligence investigation is limited to one year, but may be extended by top-ranking FBI officials ‘when facts or circumstances reasonably indicate that a group or enterprise has engaged or aims to engage in activities involving force or violence or other criminal conduct’, which is widely interpreted by the FBI, sometimes causing investigations to continue for several years. In addition to the usual methods of investigation (search, seizure, tapping, infiltration, informers, etc.) secret investigation techniques may also be used. In 2003, these guidelines were replaced by the national security intelligence (NSI) guidelines. The distinction between preliminary and full investigations was retained, but a category named threat assessment was added. The FBI may proactively use a number of investigative powers. The connected requirements and the scope are unknown, as many passages of these guidelines are confidential. The NSI guidelines also include far-reaching provisions concerning the exchange of information between intelligence services and the police force.

The FBI has the primary authority in the framework of counter-terrorism and foreign intelligence (Sec. 506). On that basis, the FBI can conduct on-line searches on a massive scale and collect information in public places and store it. In June 2002, the FBI to this end established special units, half of which are active abroad. These units have all the investigative powers at their disposal, including the secret powers of investigation under FISA. The AG has elaborated various guidelines on this and collected these in the AG Guidelines for FBI foreign intelligence collection and foreign counter-intelligence investigations, which are in part confidential. What is not mentioned in the guidelines, because they address the FBI, is that it is also possible to assign investigative tasks to the military. Although the Posse Comitatus Act prohibits military personnel from taking part in domestic law enforcement, an exception was introduced in the eighties for the war on drugs and in the nineties for the fight against the use of chemical or biological weapons of mass destruction. To this the fight against terrorism has now been added. For this reason, military personnel can detain persons and conduct searches when there is a threat to human life and if the civil justice authorities are unable to complete the task. 

5.2. Detention and legal privilege

In October 2001, the DoJ made it obligatory for penitentiary institutions to monitor communications between detainees and their attorneys with the objective of preventing acts which ‘could result in death or serious bodily injury to persons or substantial damage to property that would entail the risk of death or serious bodily injury to persons’. This exception to the Sixth Amendment is therefore not at all limited to detainees who are accused of terrorism. Before, this required judicial authorisation and it had to be demonstrated with probable cause that the criminal activity was being carried out. Now it suffices that there is a serious threat and the AG decides alone whether to limit this fundamental right. This was applied, for example, to Richard Colvin Reid, the ‘shoe bomber’. The information obtained can also be used in criminal proceedings against the attorney. Attorney Lynne Stewart, for example, was accused of establishing lines of communication with the aid of her Arabic interpreter between an Islamic organisation and her client, Sheik Omar Abdel-Raman, who is serving a life sentence for conspiracy to bomb buildings in New York and involvement in the plotting of an assassination attempt on the Egyptian President Hosni Mubarak.

6. Presidential exceptional law

6.1. Terrorist organisations and the financing of terrorist organisations

As is known, the US President in his capacity as Commander-in-Chief has far-reaching legislative and operational powers in the field of foreign affairs and military matters. The US has a long tradition of the use of political and economic sanctions, such as, for instance, against Cuba. Initially, this concerns sanctions against states, involving the imposition of export sanctions based on the Export Administration Act (EAA) and the International Emergency Economic Powers Act (IEEPA) upon companies which violate the trade embargoes with the states in question. Implementing legislation and decisions are taken by the Secretary of State, the Department of Commerce and the Department of Treasury/OFAC. The President may therefore decide to impose sanctions, especially in times of emergency. In 1995, President Clinton took the step of broadening the scope of sanctions under the IEEPA from states (i.e. state embargoes) to organisations. At that time, ten Palestinian and two Jewish organisations were blacklisted. Secretary of State Albright subsequently designated 30 organisationsas special designated terrorists (SDTs) or foreign terrorist organisations (FTOs) under the Effective Death Penalty and Public Safety Act (1996). By their inclusion in the list, supporting these organisations has become an offence and financial institutions in the US are required to block their balances.

Based on the leading case concerning the scope of the Presidential powers, it could be maintained that the Presidential powers with respect to 11 September have been exhausted, as these are completely regulated under the Patriot Act of Congress, which, for example, did not make provisions for the concept of enemy combatant or the establishment of military committees. This view is not shared by the Bush I administration. After the declaration of the state of emergency on 14 September 2001, the President on 24 September 2001 approved executive order 13224 on the basis of the International Emergency Economic Powers Act and also by way of implementing certain UN Resolutions, mainly Resolution no. 1333. Under this executive order, terrorist organisations were identified as specially designated global terrorists (SDGTs). The Secretary of Treasury may, for example, put any organisation on the list which ‘assist(s) in, sponsor(s), or provide(s) support for or is otherwise associated with a designated terrorist organisation’. The main idea of this executive order is to elaborate a financial sanctioning regime with a view to drying out these organisations’ flow of income. This means that the US can block the bank accounts of foreign banks in the US if other countries refuse to cooperate in blocking accounts in their own territory (indirect jurisdiction). All the property of the following can be blocked: a/ SDGTs included in the list; b/ persons who commit terrorist acts or who pose a significant risk of committing, acts of terrorism that threaten the security of US nationals or the national security, foreign policy, or economy of the United States and c/ persons who assist in, sponsor, or provide financial, material, or technological support for, or financial or other services to or in support of, such acts of terrorism or SDGTs, or to persons who act for or are controlled by SDGTs or are otherwise associated with them.

Citizens in the US are also prohibited from performing transactions with blocked property, to set up constructions or to cooperate in their set-up in order to organise the transaction in such a way as to evade the prohibition and to conspire to perform illegal transactions. All persons are prohibited from supporting SDGTs or associating with them through transactions in foreign currencies, credit transfers, the import or export of money or negotiable instruments. These prohibitions therefore also apply to foreign financial institutions that refuse to block the property of SDGTs. This also means that certain donations to charitable institutions become impossible, when they have ties with SDGTs. Civil sanctions may be as high as USD 11 000 per breach, penal sanctions as high as USD 50 000 per breach and 10 years’ imprisonment for wilful intent.

The executive order of 2001 partly overlaps the executive orders of President Clinton, who had already designated quite a number of organisations as SDTs or FTOs. However, the sanctioning regime was given a global scope of application and the type of sanctions available was also extended. Now, not only property of financial institutions can be blocked, but also the property of persons associated with SDGTs. It is therefore perfectly possible to block the property of foreign customers of companies with branches in the US. For this, it is not required that the organisations or persons involved have committed criminal offences. It is sufficient that they can be associated with those offences. Evidence of this may be kept secret and dealt with in camera and ex parte. A clear example of this is the Holyland Foundation (HLF) case. HLF is an NGO which was established in 1989 and has its headquarters in Texas, and ties with Hamas. By executive order 12947 issued by President Clinton in 1995, Hamas became an SDT and by executive order 13224 issued by President Bush in 2001, Hamas became an SDGT. On 4 December 2001, the Treasury Department/OFAC decided that HLF was acting for or on behalf of Hamas, which gave HLF the status of an SDT and SDGT. The Treasury subsequently issued a blocking notice which blocked all funds, accounts and property of HFL and prohibited any transactions involving such funds, bank accounts and property. The accounts were also seized. OFAC took the decision based on partially classified information (statements from foreign police informers and a secret FBI report). The District Court allowed the administration a wide margin of discretion and considered secret evidence admissible if it could be confirmed by supporting evidence. It also became clear from the Global Relief Foundation (GRF) case that the judiciary has only very limited powers in testing administrative acts in the field of foreign policy and security. In this case, GRF had been the subject of a FISA search and subsequently of an OFAC blocking order. Upon its application for an injunction order to undo the measures imposed, the GRF was told that ‘as a general principle this Court should avoid impairment of decisions made by the Congress or the President in matters involving foreign affairs or national security’ and that no violations of civil rights under the Bill of Rights could be established. The Court, not the attorneys, was given permission to inspect the evidence ex parte and in camera. This is obviously a far cry from full judicial review, and only a test of the reasonableness of an administrative decision.

The US is continuously updating the list. On 11 October 2001, 39 items were added, especially Al-Qaeda-related ones. On 2 November 2001 quite a few Saudi Arabian businessmen were added and on 22 November 2001, another 22 were added, among which Hezbollah, three Colombian organisations, the IRA, and the Jihad. Meanwhile, the list has become a document of 86 pages filled with thousands of organisations and persons. In 2004, many NGOs were added that are suspected of being associated with SDGTs. The 9/11 Commission does also recommend that vigorous effects to track terrorist financing must remain front and center in US counterterrorism efforts.

The IRTPA (2004), in addition to the judicial review procedure, introduces a review of designation as FTO upon petition. However, the organisation must provide evidence in the petition that the relevant circumstances are sufficiently different form the circumstances that formed the basis of the designation. The Decision is taken by the executive (The Secretary of State), who may consider classified information, not subjet to disclosure, in making a determination in response to a petition for revocation.

6.2. Military committees and enemy combatants

On 13 November 2001, President Bush, without consulting Congress, signed a military order for the trial of enemy aliens by military committees. In the past, members of Al-Qaeda, who were suspected of playing a part in the 1998 bombings of the US embassies in Kenya and Tanzania in which 200 people were killed, were successfully prosecuted and tried by general criminal courts in the US. As the Commander-in-Chief of the army, the President can have people tried before military committees for violations of the laws of war. This power is based on Articles I and II of the US Constitution. The problem is that wars are declared upon states and that there has been no official declaration of war against Al-Qaeda. Furthermore, members of Al-Qaeda are not citizens of a particular state to whom the Enemy Alien Act applies. The Supreme Court has however recognised that the US can be in a state of war without a formal declaration of war, which does not mean however that military committees can be established for no further reason. During the civil war, President Lincoln had given the army permission to detain citizens who were suspected of treason and rebellion and keep them in detention without judicial authorisation and to deny them habeas corpus. Still, in Ex parte Milligan the Supreme Court held that Milligan, who was the leader of a secret organisation rebelling against the government, could not be tried by a military court because he was a resident, he was not under arms, the civil courts were functioning, the country was not occupied and President Lincoln did not have a mandate from Congress to establish military courts. However, in Ex parte Quirin the Supreme Court declared President Roosevelt’s Executive Order 2561, which provided for the military trial of German saboteurs as enemy belligerents during WWII, to be constitutional. It must be noted, though, that this executive order was based on the declaration of war by Congress and did not impair the habeas corpus proceedings or other legal remedies. Of crucial importance is certainly the decision of the Supreme Court in Johnson v. Eisentrager concerning the trial of German soldiers who were taken prisoner in China and tried by military committees. The Supreme Court held that the term ‘any person’ in the Fifth Amendment ‘does not extend its protection to alien enemies engaged in hostilities against us’.
The Bush I administration has applied concepts from public international law and humanitarian law to terrorist organisations and their members. Their actions have been qualified as acts of war committed by foreign attackers, and not initially as criminal offences, with the result that the principles of criminal (procedural) law do not essentially apply. The persons involved are not suspects, but enemy combatants, who so far have no civil rights under American jurisdiction. An estimated 600 to 800 suspected Taliban and Al-Qaeda members of 40 different nationalities have been held prisoner since January 2002 in the Delta Z-Rayin camps in Guantánamo without having been charged or tried. Some have meanwhile been released in small numbers or transferred to allied countries, leaving some 600 persons in detention. It cannot be ruled out that the vacancies have been filled anew with fresh prisoners from Iraq, Afghanistan, Pakistan, etc. Furthermore, a number of US citizens are also still being held in military bases on the American continent.

Nowhere does the term enemy combatant appear in the Patriot Act. The legal parallel between war and international terrorism has been strongly criticised in the literature. At the same time, moreover, President Bush has restricted the application of international humanitarian law. For a long time, the Bush I administration maintained that the Geneva Conventions did not apply and that the status of prisoner of war did not apply either. In February 2002, certain rights were granted under the Geneva Conventions to Taliban fighters, but not to Al-Qaeda members. Nobody has been recognised as a POW; they are and remain unlawful combatants, who can be questioned at will with no or limited rights for as long as the war on terrorism lasts.
The military order sets aside a number of basic principles of constitutional civil rights and rules of general criminal procedure. Both the organisation and the dispensation of justice by the military committees is special law. Not only are the prosecutors and the judges members of the military, but also the attorneys, or they are civilian attorneys who have been screened by the government and have agreed to the rules of procedure. The entire procedure and the composition of the committees, including the attorneys’ identity, may be kept secret. Habeas corpus does not apply, the Miranda rights do not apply, the rights of the defence are limited, special rules of evidence are in force and there is no jury. Appellate proceedings have been provided for, but not before a federal appeals court of the regular criminal law judiciary. The appeal is lodged with a military panel and the final decision concerning guilt and punishment lies with the President. This is therefore a court procedure in the hands of the executive, which by definition fails to meet the requirements of independence and impartiality. In defence of trial by military committees the Bush I administration mainly argues that the military committees ensure speedy proceedings which do not jeopardise secret investigative information and surveillance methods and operations and thus guarantee public security. The government also contends that the military committees offer better protection to judges and witnesses against potential terrorist threats.

Also from the first elaboration of the further rules of procedure and evidence by the Department of Defense and the DoJ it emerges that many fundamental rights from criminal procedure and the Bill of Rights are not recognised in advance. There is no public trial (proceedings take place in camera), the attorneys do not have access to the witnesses of the other party, their legal privilege is not recognised and they need the permission of the Department of Defense to communicate with the press. Communications between the attorney and the witnesses are recorded. Where evidence is concerned, all evidence that ‘would have probative values to a reasonable person’ would be lawful. Hearsay evidence would be admissible. The prosecution would not be obliged to show the chain of custody of the evidence which means that the origin and the manner of its collection is no longer tested. Secret FISA evidence and secret surveillance evidence is also admissible, in camera, ex parte. It is feared that as a result evidence obtained through torture abroad will be used in the dispensation of justice by military committees. Two thirds of the military committee instead of a unanimous jury can pass a guilty verdict by a majority of two thirds of the votes. If the committee reaches the verdict that the person involved is not guilty, the committee’s chairman can nevertheless still decide that he is. Unanimity is required for imposing the death penalty.

In the summer of 2003 the Bush I Administration declared six prisoners in Guantánamo ready for trial, among whom are the British nationals Moazzamde Begg and Feroz Abassi and the Australian David Hicks. The courtroom is finished, the prosecutors have been appointed, but rules of procedure and evidence are still lacking. By now, defence attorneys have also been appointed in two cases, but still there are no formal charges. In ad hoc negotiations with the UK and Australia – both allied countries – it has been agreed that the death penalty will not be demanded against the persons involved, that they will be assisted by attorneys from their country of origin and that the legal privilege will be respected. The treatment of Capt. Jams Yee, the Muslim chaplain in Guantánamo, who is accused of smuggling confidential information, is food for thought. After his arrest in September 2003 he spent months in close military confinement and the Defense Department had allowed it to appear that he could be sentenced to death for these offences. However, in March 2004, when it emerged that the evidence against him was very weak, it was decided to dismiss the case. The official version is that the intention is to protect information in the interest of national security. The New York Times in its editorial, however, unequivocally labelled the proceedings as Military Injustice. Meanwhile, even military attorneys have begun to severely criticise the lack of due process before the military committees.

7. Judicial testing of the Patriot Act and the special government legislation

Concerned parties and interested third parties, NGOs and local authorities have legally challenged the serious limitation of civil rights. This has led to a stream of court cases at local and federal level. 

7.1. Civil rights, enemy aliens and open government

A substantial number of citizens and organisations have taken legal action to claim open government in relation to the post-9/11 detentions and removal procedures. Both media groups and NGOs have invoked the Freedom of Information Act (FIOA) in order to obtain access to the names of the detainees, the location and duration of their detention and information concerning the proceedings. Quite a few of these cases have been fought out up to the Federal Courts of Appeal, with conflicting outcomes. The North Jersey Media Group, for example, succeeded in its case against AG Ashcroft and Judge Creppy before the District Court and was given permission to attend removals related to 9/11. However, this decision was completely reversed before the US Third Circuit Court of Appeals which gave priority to significant national security concerns. A number of courts have resolutely let security prevail over the FIOA and the constitutional First Amendment right to access to information. Others have ordered the government only to disclose names or to make available to the press transcripts of closed hearings. For example, Federal Court Judge Gladys Kessler in August 2002, at the request of a number of NGOs in a case against DoJ and INS, decided that the government had to at least disclose the names of 150 prisoners. She considered that, notwithstanding the executive’s duty to protect the people, these tasks had to be exercised within the framework of the Constitution and the rule of law. On appeal, however, it was decided that the names of the detainees and their attorneys did not need to be revealed. Most of the 9/11 prisoners have meanwhile effectively been removed. The Center for Constitutional Rights has brought a class action concerning illegal detention before the District Court in Brooklyn, which concerns a case on the principle which the NGO would like the Supreme Court to hear. In addition, the Reporters Committee for Freedom of the Press is attempting to get the M.K.B. case before the Supreme Court.

7.2. Material support for terrorism

There have also been legal proceedings concerning the scope of the anti-terrorism provisions themselves, in particular concerning the relationship between material support and the constitutional right of the First Amendment. In January 2004, the US District Court of California in the case Humanitarian Law Project (HLP) v. John Ashcroft et al. tested Sec. 805(a)(2)(B) of the Patriot Act, making it an offence to provide expert advice or assistance to FTOs, against the Constitution. The Court arrived at the conclusion that this concept is so vague that there is a real danger that HLP will no longer be able to provide legal advice to the Kurdish PKK concerning compliance with human rights. This is due to the fact that no distinction is made as to the nature of the advice or expertise: ‘“expert advice or assistance” could be construed to include unequivocally pure speech and advocacy protected by the First Amendment or to encompass First Amendment protected activities’. However, the Court did not consider that the provision in itself poses a danger to the extent that any enforcement of it should be prohibited. The legal remedies offer sufficient guarantees to safeguard the civil right in question. For this reason, the injunction is limited to the activities of the persons concerned and no nationwide injunction is issued, but HLP can continue its activities as regards the PKK without running the risk of being prosecuted for this under Sec. 805 of the Patriot Act.

On the other hand, the Holy Land Foundation and the Benevolence International Foundation lost their cases against Ashcroft. The D.C. Circuit Court found that the blocking orders complained of were an important instrument of US foreign policy.

7.3. Terrorism and contestable evidence in general criminal law

In criminal law terrorism cases, the DoJ and the AG have opted for the military line and as a consequence for confinement under the statute of enemy combatants and trial by military committees. In a few cases, the regular criminal courts are competent, such as in the Zacarias Moussaoui case, concerning a French national of Moroccan birth who was detained in August 2001, i.e. before the attacks, on suspicion of a breach of immigration law. At that time, he was taking flying lessons. After the attacks, he was connected with Al-Qaeda and the terrorist acts of 9/11. Moussaoui is accused of being the twentieth hijacker whom circumstances prevented from boarding and of being jointly guilty of the death of 3 000 people. He has pleaded not guilty, and is risking the death penalty on four of the six charges against him. According to Moussaoui, several witnesses, among whom is Bin Al-Shibh, could prove his innocence. For this reason, he wishes to have Bin Al-Shibh questioned as a witness. The problem is, however, that Bin Al-Shibh, who was detained in Pakistan, is suspected of being the intermediary between Moussaoui and the 9/11 command and is being held as an enemy combatant overseas, presumably in Guantánamo. His statements are classified and can therefore not be contested.
Both the District Court and the US fourth Circuit Court of Appeals have recognised Moussaoui’s Sixth Amendment right to subject the witness Bin Al-Shibh to questioning, as one of the fundamental rights of a fair trial. In this case, District Court Judge Brinkema in January 2003 ordered that the testimony be recorded on video and that the video be made available to the jury or that the witness be heard by teleconference. AG Ashcroft continued to underline the fact that this would result in ‘the unauthorized disclosure of classified information’. The AG refused to implement the court decision, which was formally confirmed in a secret affidavit in mid-July 2003. The court could hold the government in contempt of court, but could also declare the Moussaoui case inadmissible, exclude part of the evidence or instruct the jury unfavourably for the government, preventing a death sentence. Judge Brinkema opted to exclude the death penalty and to strike the part of the indictment related to 9/11, as in her view there could be no fair trial under these circumstances. The part of the indictment concerning conspiracy to commit the Al-Qaeda actions has remained intact. Pro-Bush lawyers argue that in the given circumstances the best solution would be to even now declare Moussaoui an enemy combatant and transfer him to military jurisdiction, where he would anyway be barred from relying on the recognised constitutional right to the questioning of witnesses: ‘Although civil libertarians would likely decry his relocation to Guantánamo, the reality is that taking Moussaoui out of the civilian justice system would both better address security concerns and create a firewall so that existing constitutional principles in civilian trial don’t start to bend under the weight of the war on terror’. However, the government lodged an appeal against the decision with the US 4th Circuit Court of Appeals, which is known to be conservative, and which on 22 April 2004 decided to set aside the exclusion of evidence and of the possibility of a death sentence. On the other hand, the three-judge panel also decided that Moussaoui could not be deprived of the right to question detained Al-Qaeda members as witnesses and that he was entitled to present their testimony to the jury. Judge Brinkema was ordered to elaborate a compromise which would allow the witnesses to be questioned in a way which would not prejudice their questioning by the government in the framework of the war against terrorism. The defence has meanwhile lodged an appeal with the full Court of Appeal.

Criminal convictions have meanwhile been delivered against Richard Colvin Reid, known as the shoe bomber and John Walker Lindh, the American Taliban fighter. Reid was sentenced to life imprisonment for the attempted use of a weapon of mass destruction, attempted murder and interference with the flight crew. Lindh was sentenced to twenty years in prison for material support of a prohibited terrorist organisation on the basis of a guilty plea and plea agreement. The remaining charges were dropped as a result of the plea agreement.

7.4. Terrorism, enemy combatants and military committees

Most suspects of terrorism offences have, however, been removed from the ordinary criminal law proceedings by the American government. By declaring them enemy combatants they can be held in military detention while awaiting trial by a military committee. Both foreign and American citizens have been labelled enemy combatants. It is impossible in this context to deal with all cases in detail, but the Hamdi, Padilla and Rasul cases provide a representative glimpse of the legal limbo in which the persons concerned find themselves. On 18 June 2004, the Supreme Court delivered decisions on the principle in these cases, concerning both the legal protection of the field combatants, who are detained in Guantánamo, and of the enemy combatants, who were arrested and detained in the US itself. 

Yaser Esam Hamdi was taken prisoner in Afghanistan and after a brief stay in Guantánamo he was transferred to a military detention centre in Virginia, when it emerged that he was a US citizen. Since April 2002, he is being held without having been formally charged, without the right to an attorney, without the right to habeas corpus proceedings, etc. Friends of Hamdi have, with varying success, brought legal actions against the Department of Defense. The District Court has appointed an attorney and ordered the government to provide this attorney with free access to the detainee and to respect legal privilege. On appeal, the US 4th Court of Appeals decided that the District Court (Hamdi I) had taken insufficient account of national security interests and that the decision was insufficiently reasoned. The District Court subsequently decided that the grounds for detention – a statement by military advisor Mobbs – were insufficient to deprive the person concerned of his rights and that the government had to disclose all kinds of documents, among which the statements from Hamdi, for in camera review. At least both courts found that the detention could form the subject of judicial control. On appeal, again with the 4th Circuit (Hamdi II), the Court decided that military detention for an indefinite period of time was not only in conformity with the law, but also immune from judicial control, now that Hamdi had been taken prisoner in an active war zone in a foreign country. The statement by Mobbs was sufficient evidence of this. In January 2004, the Supreme Court decided to grant a writ of certiorari and answer a few fundamental questions. The Supreme Court recognises the Presidential prerogatives, and thus the concept of enemy combatant, on the basis of the Authorization for Use of Military Force Act. However, this does not provide for indefinite detention and is intended for detention in war zones and moreover limited to ‘necessary and appropriate force’. Even if the detention would be lawful, the second question is what the detainee’s constitutional rights would be to challenge his status of enemy combatant. Based on the special constitutional interests – read: the prerogatives of the President and the government – the government has argued that the balance of powers should be respected and that the judiciary should display reticence in these matters. The Supreme Court uses clear and edifying language: ‘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 (...) We have long since made 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.’ The Supreme Court therefore adds that ‘due process demands that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker’. The Court expressly indicates that this can be done before a military tribunal and that it is possible to reverse the burden of proof, as long as the person concerned is given a fair chance to gainsay this, which also presupposes the right to an attorney. Questioning by security officers holding a person in custody ‘hardly constitutes a constitutionally adequate fact finding before a neutral decision maker’. Clear language, but a divided Court nevertheless, as there were three dissenting opinions, in which especially Justice Thomas lashed out strongly and argued that: the judiciary should not test and assess the prerogatives of the executive; national security should not be subjected to ‘judicial second-guessing’ and gathering intelligence in the framework of the war against terrorism may necessitate detention and the judiciary is not in a position, nor should it desire to be the judge of that. In September 2004 Hamdi has been transfered to Saoedi-Arabia afer bilateral negotiations between the US and Saoudi-Arabia.. He lost his US citizenship and cannot leave the Saoudi-Arabia territory. 

The Padilla case is interesting, because Padilla was detained at an airport in the US, instead of on a foreign battlefield. José Padilla, an American citizen who converted to Islam and therefore uses the name Abdullah al Muhajir, is suspected of having been active in Al-Queda and to have plotted to explode a radiological dispersion bomb (or ‘dirty bomb’) in the US. The evidence against him is secret. First Padilla was a suspect under criminal law and he was assigned an attorney, but a few months later the President decided that he was an enemy combatant and his case was therefore transferred from the DoJ to the Department of Defense. The District Court recognised that there was military jurisdiction, but was also of the opinion that Padilla had the right to challenge the qualification of enemy combatant by means of habeas corpus proceedings and also held that he had the right to an attorney. The suspect furthermore has the right to submit his own evidence which has to be offset against the government’s evidence in contentious proceedings. The Department of Defense has refused to discuss this. On appeal the US 2nd Court of Appeals in November 2003 decided that Padillla could not be labelled an enemy combatant and that after 19 months of pre-trial detention his illegal detention had to end or the Presidential decision had to be tested on the merits and that the government had to show the basis for his detention beyond a reasonable doubt. In this decision, the difference with the Hamdi case was expressly underlined. The Supreme Court has still not answered the questions presented. After all, the Court was of the opinion that the jurisdiction of New York, the place of jurisdiction under regular criminal law, was the incorrect starting point and that it should have been the jurisdiction of South Carolina, where he was in military detention and where the responsible military staff directly supervised his detention. As a result, the case was referred back to the competent jurisdiction. Objections were raised against this in sharply dissenting opinions, as the secret transfer from Justice to Defense took place on the basis of ex parte proceedings implementing the President’s order and this occurred at the same time when habeas corpus proceedings had been instigated. For this reason, Justices Stevens, Souter, Ginsburg and Breyer urged that the issue should not be clouded: ‘At stake is nothing less than the essence of a free society (...) Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process (...) Executive detention of subversive citizens (...) may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence’. In any case, the competent jurisdiction will have to take the decision of the Supreme Court in the Hamdi case into consideration. 

Finally, the Supreme Court delivered a judgment in combined cases Rasul et alia v. US. The claimants, Guantánamo detainees from the UK, Australia and Kuwait, were arrested in Afghanistan and Pakistan at the beginning of 2002 and have now been in detention for over 24 months without having been charged, without the right to an attorney and without trial. The District Court has combined their cases and decided that the Supreme Court’s judgment in Johnson v. Eisentrager could be followed here. This means that when an alien finds him/herself outside the territorial sovereignty of the US, he/she has no means of redress to apply the US Constitution. The District Court rejected the argument that this is only true for enemy aliens. No alien held outside the territorial sovereignty of the US can rely on habeas corpus, for example. The US Court of Appeals for the District of Colombia Circuit took over the judgment of the District Court and pointed out that the Supreme Court has reconfirmed the criteria in US v. Verdugo-Urquidez. However, the Supreme Court held that the US, despite the fact that it does not have full sovereignty over the base, still exercises full and exclusive jurisdiction over it. This means that the federal courts in the US are quite competent to decide on the legality of detentions and the application of constitutional guarantees. With this important decision, the Supreme Court has put an end to the legal limbo of Guantánamo and reinstated the right to habeas corpus in this form of administrative military confinement and the incommunicado regime. Of course, it remains to be seen how the US courts will implement this legal protection in the light of the Presidential prerogatives concerning war, foreign policy and national security. The Hamdi case can serve as a source of inspiration when dealing with the merits (e.g. legality of arrest and detention, access to an attorney, denied questioning, etc.). It is also as yet unclear whether this judgment will also have an effect on the rights of detainees in the hands of the US in military centres in Asia, etc., now that the Supreme Court has abandoned the criterion of territorial jurisdiction and replaced it with the following: ‘habeas acts upon the person holding the prisoner, not the prisoner himself, so that the court acts ‘within (its) respective jurisdiction’ if the custodian can be reached by service of process’. Justice Scalia in a thunderous dissenting opinion spoke of the extension of habeas corpus proceedings to the four corners of the world. His concluding sentence speaks volumes and explains why he closed with ‘I dissent’ instead of the usual ‘I respectfully dissent’: ‘For this Court to create such a monstrous scheme in time of war, and in frustration of our military commander’s reliance upon clearly stated prior law, is judicial adventurism of the worst sort.’ He also called upon Congress to intervene legislatively. 
The Bush I administration considered that it could meet the Supreme Court’s wishes by establishing an annual secret control procedure before a panel of three military officers, who have to assess whether their release constitutes a threat to national security. Decisions of the panel need not be reasoned and are not open to appeal. In December 2005 about 210 cases have been reviewed by the panels. Two detainees have been released by the panels. Several detainees did refuse to cooperate, because of the fact that they have neither the right to an independent attorney, nor access to the file. It is doubtful whether this system corresponds to a ‘meaningful and fair opportunity before a neutral decision maker’. From the very start problems have occurred in connection with the independence of certain military officers and as regards the legal quality of the procedure. This is the reason why several proceedings of the panels have been challenged before the regular federal courts. In November 2004 The US District Judge Robertson, dealing with Hamdan’s harbeas corpus appeal in the federal court in Washington D.C, issued an order to suspend the panel procedure, as he wanted to fully apply the third Geneva Convention. 

8. Conclusion

In 1998, Chief Justice William Rehnquist wrote that civil rights may be limited in times of emergency. During a lecture for the New York City Bar Association, Chief Justice Stephen Breyer claimed that the Constitution always matters, perhaps particularly so in times of emergency. These opinions of two justices of the Supreme Court illustrate the heart of the problem. To what extent does the US Constitution provide possibilities for special legislation in times of crisis (war, insurrection, state of emergency)? May essential elements of the rule of law, like equality before the law and fair trial, simply be set aside for certain citizens? Are secret evidence, secret trial, administrative arrest and far-reaching discretionary powers of investigation for police and security services compatible with the Constitution? How are the legislature and the executive subject to judicial control in the implementation of special legislation? 

The special Congressional and Presidential legislation since 11 September 2001 is not unique in the history of the US. It is in part an implementation of the constitutional prerogatives of the President in the field of defence, security and foreign affairs. Nevertheless, a clear paradigm switch has taken place. Congress has opted for far-reaching delegation to the executive, with many blanket laws which the executive can interpret at will and without any built-in mechanisms for effective political control. In its implementation of these laws, the Bush I Administration has unleashed the rhetoric of war upon terrorism. The motto is cut down the laws to get at the devil. Insofar as the constitutional state and the fundamental rights and legal guarantees it establishes form an obstacle, they have to be (temporarily) cleared out of the way to make room for concepts of national security. Furthermore, the executive in question is not very taken with abundant transparency and attempts to keep as much information concerning legislation, administration and dispensation of justice secret. Under the Bush I administration, this secrecy has exceeded a limit and is undermining essential concepts of the rule of law, such as accessible legislation, open government and the public administration of justice. Incommunicados become part of the system and attorneys are having great trouble exercising their profession. The rule of law continuously loses out to the security state. Secrecy dims the light of justice and causes the basic ideas of the Enlightenment and modern criminal law to shine less brightly. The 9/11 Commission does not recommend any changes in this respect. It only recommends increasing reporting duties to Congress. These have been integrated in the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004. Title VI provides for reporting requirements of the AG to the intelligence committees of Congress concerning the use of coercive measures (electronic surveillance, physical searches, pen registers, access to records) under the FISA, the secret warrants and the use of FISA-information in criminal proceedings. The IRTPA also establishes a Board on Safeguarding Privacy and Civil Liberties. This Board has access to all relevant information in all relevant agencies, but the bill does explicitly include the fact that the Board is working under the responsibility of the NID and the President and that the NID, in consultation with the AG, can decide to withhold certain information to protect national security, sensitive legal information or counterterrorism information. Civil liberties are not fully guaranteed by a Board being part of the executive and only having access to information and practices if compatible with the higher interests of national security. Once again the protection of civil liberties is made dependent upon the security agenda.. 

In addition to secret criminal law, there are also clearly several speeds within criminal law and criminal procedure. Criminal law makes a distinction between ordinary citizens and enemies. The criminal law of the enemy (enemy combatants, enemy aliens) is based on starting points which reach back to criminal law theories developed in the 1920s and 30s which were based on dangerousness instead of unlawfulness. Mezger, for example, spoke of Täterstrafrecht, Lebensführungsschuld and Lebensentscheidungsschuld, in which criminal law objectifies certain categories of citizens based on race, creed or nationality and in which it no longer matters whether criminal law intervention takes place post or ante-delictum. The criminalisation of enemy aliens and enemy combatants and the launching of the concepts of preventive war and pre-emptive strike in the field of justice fit in with this context. In criminal procedure, a disctintion is made between the common criminal procedure and the FISA procedure. The reach of the special FISA procedure, secret and based upon intelligence investigation, is constantly being increased, both ratione materiae, personae, in such a way that has become a parallel to the investigative procedural framework, also in domestic criminal cases. The Patriot Act has ensured that FISA criminal law in the field of security may also be used by the FBI in the fight against domestic terrorism. Secret special methods of investigation have been expanded and the classified nature of much of the evidence is resulting in cases that are more and more often dealt with in camera or ex parte. In addition, the powers of investigation of the intelligence services have also been broadened and their information may be used as secret evidence in criminal procedure. It may be feared that the secret dispensation of justice will only promote prohibited questioning techniques, which have been qualified as stress and duress techniques. Finally, the Bush I administration also brought about a considerable militarisation of criminal law justice, both by assigning investigative tasks to intelligence services and military units and by the establishment of the military committee for the enemy combatants. Due to the limited scope of application of the Constitution and the systematic non-recognition of international rights and international jurisdiction, Guantánamo has become a symbol of legal limbo or a legal black hole. The achievements of the Enlightenment and the French Revolution, which were so dear to the Founding Fathers of the US and its Constitution, seemed to have been lost in present-day constitutional relations.

Also within the regular criminal law system reforms have been substantial. As appears from the Patriot Act, the powers of the FBI have been greatly extended. To the extent that judicial control is still required, the threshold for it has been lowered considerably. As a consequence, judicial authorisation threatens to deteriorate into a rubber stamp or digital fiat. For a great many powers of investigation, such as requisitioning stored information from service providers, no judicial authorisation whatsoever is now required and access to information has been subjected to extremely low thresholds. The disclosure duties of service providers and the requisitioning powers of the FBI are so far-reaching that we may speak of actual dragnet tactics in collecting information. It is often not permitted that the persons concerned are informed of the fact that information belonging to them or concerning them has been disclosed. 

The effectiveness of important parts of the Patriot Act is not limited in time, such as for example the secret search or the pen/trap orders or the single jurisdiction warrants. The Bush I Administration has already requested Congress to extend the remaining provisions, which expire at the end of 2005. In addition, DoJ has already elaborated a ‘Son of the Patriot Act’ or Patriot Act bis, which is a second framework law. The intention is to put the Bill before Congress in due time. However, the text has leaked out and is known to contain even more drastic limitations of fundamental rights by the further extension of secret FISA criminal law in the field of security, broader powers for the AG with respect to enemy aliens and broader powers of supervision in the framework of national security.

Bush’s Presidential victory in November 2004 underlines that the new republicanism will be able to realise its vision of a new constitutional order. It remains to be seen if the Bush II administration will further expand the anti-terrorist emergency legislation. The 9/11 Commission does underline the fact that some of the most controversial provisions of the Patriot Act are to tu to meet their sunset at the end of 2005. However, the 9/11 Commission is careful. It doe not exclude that the Federal Government may need additional powers and may need to enhance the use of its existing powers. It is aware of the concerns about the restrictions of freedoms and civil rights and the concerns regarding the shifting balance of power to the government and limits its recommendation for that reason to a full and informed debate on the Patriot Act. The Bush I administration was alleged to be seeking a permanent status for the emergency legislation and to wish to expand police powers even further and also to bring the war on drugs under the scope of application of the anti-terrorist law. Security and anti-terrorism will remain a top priority for the Bush II administration. The nomination of Alberto R. Gonzales, kwown as the architect of the Guantánomo legislation, as Attorney General indicates that Bush wants to further expand the emergency legislation. It is a pity that the Congress hearings of Gonzalez in January 2005 concentrated so unilaterally on the use of torture against terrorism suspects. Gonzalez pledged to abide by all international law in this respect. However, he was not submitted to questioning about strengthening the Patriot Act and further integrating foreign and domestic anti-terrorist legislation and intelligence gathering. It seems that members of Congress themselves are still not sufficiently aware of the importance of the rule of law in times of emergency. 

Meanwhile, the Supreme Court has delivered some principled judgments to ensure that security mindedness does not marginalize the constitutional state. The question is whether the Supreme Court has made itself sufficiently clear. Is the decision concerning detention in Guantánamo also applicable to detention in Afghanistan? Why has the Supreme Court not provided stricter requirements for the body which is to test habeas corpus and legal protection? Why has the Supreme Court paid little or no attention to applicable international law? Legal proceedings at the state level as a result of the Supreme Court decisions and the upcoming legislative action under the Bush II administration will determine the degree of constitutionality of the anti-terrorism policy in the US and will therefore also partly determine European policy after the attacks in Madrid on 11 March 2004. We can only hope that both the judiciary and the legislator are fully aware of the fact that undermining the democratic constitutional state and its civil rights and freedoms is the weakest possible answer to one of the largest threats this democratic constitutional state has ever faced.