CHAPTER FIFTEEN
CRIMINAL PROCEDURE IN TIMES OF CRISIS
Learning Objectives
After studying this chapter, students should be able to:
3. Understand that FISA was enacted to protect the security of all U.S. persons from foreign
4. Understand the counterterrorism and counterintelligence tools that are part of the USA
5. Know that the National Security Letters (NSLs) allow the FBI to obtain metadata from all
6. Know that the Capone approach and sting operations are preventive counterterrorism and
7. Understand the controversy over Miranda warnings for persons detained on suspicion of
8. Know that the CIA has to follow the same rules and regulations for counterterrorism
9. Know the two different views of terrorism and understand the strengths and weaknesses
10. Appreciate how counterterrorism and counterintelligence investigations have evolved in
the ever-changing Digital Age.
Lesson Plan
I. Illegal Immigrants and the Constitution
Learning Objective 1: Understand how courts balance government needs against individual Fourth
Amendment rights when people are detained to determine their immigration status.
A. The Fourth Amendment and “deportable aliens”
1. Stopping a deportable alien for suspected immigration law crimes is a Fourth
Amendment seizure.
B. Detention during deportation hearings
1. A subject of much debate.
2. Most agree that two criteria should determine the reasonableness of detaining noncitizens
3. Heated debate over:
a. How to decide whom to detain.
4. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amended
the detention process and requires that any alien be held in custody who has committed a
fairly long list of crimes.
Class Discussion/Activity
Have students research the latest cases involving detention of deportable aliens. Have
there been any recent holdings regarding this issue? Have students bring back any
information they found to the class as a whole and discuss their research results.
II. Counterterrorism and the War Powers
Learning Objective 2: Understand the role of the FBI in counterterrorism and counterintelligence
efforts. Appreciate the emphasis on the prevention of terrorism since the 9/11 attacks.
Media Tool
“10 Facts About Enemy Combatants”
http://www.politico.com/story/2013/04/what-is–an-enemy-combatant-90436.html
o Article discussing enemy combatants on politico.com and provides a video of
White House personnel explaining that Tsarnaev is not an enemy combatant.
o Discussion: Discuss with students why Tsarnaev is not an enemy combatant
according to the White House. Further discussion can cover the ten facts
included in the article. This website would be an interesting way to add to the
material already included in the text.
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3-4
Class Discussion/Activity
Have students break into groups and do research on lawful and unlawful enemy
combatants. Bring students back together as a class and discuss what they were
able to find about the two terms and why the difference in terms is important.
What If Scenario
What if a terrorist attempted to set off a bomb in your city? What would you want
the government to do?
C. President George W. Bush started building the counterterrorism regime immediately
after September 11, 2001.
1. September 14, 2001 declared a “national emergency by reason of certain terrorism
attacks” (Presidential Documents 2001, President Proclamation 7463)
D. Congress threw its weight behind the president’s war power with the Authorization for
Use of Military Force (AUMF)
E. November 13, 2001 President Bush Ordered Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism.
F. Declared the detainees to be unlawful enemy combatants.
G. The courts and the war powers
1. How much power does the Constitution give the president to wage the counterterrorism
offensive without interference from the Congress and the federal courts?”
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3. The Guantanamo detention cases
1) Unlimited
3) The amount of power depends on the circumstances
4. Rasul v. Bush (2004)
a. The U.S. Habeas Corpus Statute empowered the federal courts to hear and decide
5. Hamdan v. Rumsfeld (2006)
6. Boumediene v. Bush (2008)
3, 4, & 5
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14
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1) Boumediene and his fellow Algerians had a constitutional right to go to the
U.S. federal courts to challenge their detention by a petition for a writ of
habeas corpus and struck down the MCA. The Court also ruled that the
DTA process is not an adequate substitute for habeas corpus review.
II. Counterterrorism, Counterintelligence, and the FBI
Learning Objective 2: Understand the role of the FBI in counterterrorism and counterintelligence
efforts. Appreciate the emphasis on the prevention of terrorism since the 9/11 attacks.
Learning Objective 3: Understand that FISA was enacted to protect the security of all U.S.
persons from foreign terrorism. Know that the secret FISA court (FISC) oversees
counterterrorism and counterintelligence investigations to balance this national security interest
against the privacy rights of U.S. citizens.
Learning Objective 4: Understand the counterterrorism and counterintelligence tools that are
part of the USA Patriot Act. Know that the Patriot Act didn’t create these tools but made it easier
for the government to apply them to counterterrorism investigations.
Learning Objective 5: Know that the National Security Letters (NSLs) allow the FBI to obtain
metadata from all customer records for intelligence-gathering purposes from telephone
Media Tool
“USA Patriot Act”
https://www.fincen.gov/resources/statutes-regulations/usa-patriot-act
o The United States Department of the Treasury Financial Crimes Network.
o Discussion: Discuss with students how the Treasury Department uses the USA Patriot
Act to catch offenders who commit financial crimes. How does this relate to terrorism?
Class Discussion/Activity
Have students research the most current cases related to the NSLs. Discuss the new
cases if there are any. Discuss why it is so rare for the NSLs to be challenged.
What If Scenario
What if the company you worked for received an NSL and you were responsible
for sending the information? What would you do? What if you had also been told
there was a gag order and you could not talk to anyone about the NSL or even tell
anyone your company had received one?
A. Agencies involved in counterterrorism and counterintelligence operations include:
2. The FBI has always been both a law enforcement agency and an intelligence agency.
See Assignments 1, 2, & 3
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B. After 9/11 the FBI focused more on prevention.
1. Two FBI divisions were responsible for supervising the FBI’s counterterrorism
and counterintelligence programs.
a. The Counterterrorism Division
b. The Counterintelligence Division
C. Foreign Intelligence Surveillance Act (FISA)
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2. Four main elements:
a. Application
3. Enacted in the wake of the Watergate scandal
4. Main purpose is to ban unrestrained domestic spying by the executive branch
D. FISA Court (FISC)
1. A secret court.
3. Serve for up to seven years.
5. Judges work alone.
E. USA Patriot Act
2. “Sneak–and–peek” search warrants
3. “Lone wolf” terrorists
4. Business records
a. The Patriot Act’s business records provision creates a “National security
equivalent of a grand jury subpoena.”
b. Library provision.
F. National security letters (NSLs)
1. The FBI sends NSLs to telephone companies, Internet Service Providers,
2. FBI NSLs before the Patriot Act
a. The Patriot Act didn’t create NSLs; it only beefed them up.
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3. FBI NSLs after the 2006 Patriot Act Amendments
a. Expanded FBI issuing authority beyond FBI headquarters to include heads of
field offices and Special Agents in Charge.
4. NSL targets and data
a. Two critical limits to NSLs
5. NSLs and the Inspector General’s report
a. Justice Department Inspector General (IG) instructed to review “the
6. NSLs in court
a. Only a tiny number enter the court system
b. Challenges
a. Issuing them in the first place
b. Gag orders
G. FBI proactive intelligence–gathering
1. Driven by a theory of preventive policing
2. The Capone approach
3. “Sting” operations
a. Undercover FBI agents gather “ironclad evidence against suspects” by
catching suspects “committing an overt act.”
III. Miranda v. Arizona and Terrorism Suspects
Learning Objective 7: Understand the controversy over Miranda warnings for persons detained
on suspicion of terrorist acts. Know that the U.S. Department of Justice has both reaffirmed its
commitment to the Miranda rule and encouraged agents to interpret the public safety exception
broadly in terror cases
Media Tool
“Why Should I Care That No One’s Reading Dzhokhar Tsarnaev His Miranda Rights?”
http://www.slate.com/articles/news_and_politics/jurisprudence/2013/04/dzhokhar_tsarna
ev_and_miranda_rights_the_public_safety_exception_and_terrorism.html
o Slate article discussing the public safety exception and potential problems with
not reading a terrorist Miranda warnings.
o Discussion: Discuss with students the origin of the public safety exception in
Quarles. Ask students if they believe that the public safety exception applies to
grand scale terrorist acts or should be more limited to immediate public safety.
Class Discussion/Activity
Have students research the most recent cases involving Miranda and terrorism. Have
them brief a case that they find and discuss how they would rule if they were the ones
ruling on the case.
What If Scenario
What if a terrorist were found plotting a bombing in your neighborhood? How would you
want them treated? What if you were accused of a terrorist plot? How would you want to
be treated?
A. Failed attacks by Umar Farouk Abdulmutallab (the “underwear bomber”) and Faisal Shahzad
brought up the issue of Miranda and the public safety exception in the war on terror.
2. U.S. Department of Justice has reaffirmed its commitment to Miranda but also
encourages its agents to use the public safety exception broadly in terror cases.
B. The Boston Marathon bombing brought the debate back into the headlines.
IV. National Security Agency (NSA) Surveillance
Learning Objective 8: Know that the CIA has to follow the same rules and regulations for
Media Tool
“The Central Intelligence Agency”
https://www.cia.gov/index.html
o Central Intelligence Agency Website.
o Discussion: Discuss with students what information they were able to uncover on
the CIA website. Would any of them be interested in a career working with the
counterterrorism or counterintelligence operations?
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1. Snowden
a. Was working for the intelligence industry contracted by the government.
B. The NSA claims it spies only on foreigners but insiders say it is impossible to do that.
1. Intelligence gathering on citizens is claimed to be “incidental” not intentional.
2. FISC opinions say that gathering metadata about U.S. persons doesn’t violate their
rights.
V. Trying Terrorism Defendants
Learning Objective 8: Know the two different views of terrorism and understand the strengths
and weaknesses of each to prosecute people who have committed terroristic acts.
What If Scenario
What if your city were threatened with a terrorist act? What if the terrorist were
captured before being able to carry out the plot? Would you want the terrorist tried
in federal court or by a military commission? Why?
A. Suspected terrorists can be tried in two kinds of proceedings
1. Ordinary courts
2. Special military courts
a. War crimes
B. Trials in U.S. federal courts
2. The federal courts have imposed severe sentences on defendants convicted of
Sentencing Guidelines Manual 2009, §3A1.4) for those convicted of the
federal crime of terrorism.
B. Trials by Military Commission
1. Special rules with fewer rights and more relaxed procedures and standards of proof
govern military commissions.
2. According to the Military Order of November 13, 2001, the sources of military
commission authority include:
See Assignment 4
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c. Requires the president to “faithfully” execute the laws, which include
(according to the president):
1) The Articles of War
2) The Authorization for Use of Military Force
b. The Authorization for Use of Military Force, which authorized the president to
use all necessary force against terrorists and their supporters
c. The law of war (Geneva Conventions)
3. The jurisdiction of military commissions, according to the Military Order of
4. Trial proceedings of military commissions.
a. Provides defendants in capital cases the right to at least one additional lawyer
who’s an expert on the law relating to death penalty cases.
b. Permits evidence derived from statements obtained by cruel, inhumane, and
degrading treatment if “use of such evidence would otherwise be consistent with
the interests of justice”
c. Continues to permit defendants to be tried ex-post facto for conduct not
considered to constitute a war crime at the time it was committed, such as
material support for terrorism.
C. Debate: Military commissions versus trial in U.S. federal courts
1. Debate centers around two stark views: terrorist-attacks-as-war and terrorism as
crime.
2. Terrorists acts as war
3. Trials in U.S. criminal courts
a. Some nations won’t extradite terrorism suspect or provide evidence to the U.S.
except for civilian trials.
4. Keep both options
VI. Criminal Procedure in the Digital Age: Homegrown Terrorist Suspects and ISIS (Case Study)
Learning Objective 9: Appreciate how counterterrorism and counterintelligence investigations
have evolved in the ever-changing Digital Age.
Class Discussion
Have students research the evolution of counterterrorism and its origins in
a digital era. What are the implications for investigations and
counterintelligence?
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Lecture Notes
Shortly following the terrorist attacks on 9/11 the Taliban was defeated and there was a shift
from retaliation to prevention. The President and the Congress joined together in declaring a
national emergency which required power by the President to use military force. Declaration of
A series of challenges followed the detention of unlawful enemy combatants at Guantanamo
Bay. These challenges were based on Johnson v. Eisentrager (1950). These cases included Rasul
v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008). The Supreme
Court denied enemy combatants access to U.S. federal courts in Johnson v. Eisentrager (1950).
In Rasul v. Bush (2004), the Supreme Court held that federal courts may hear petitions from non-
citizens detained as enemy combatants at Guantanamo Bay. Congress prevented courts from
Many law enforcement agencies are involved in the war on terror. Some of these include the
CIA, FBI, NSA, as well as local law enforcement agencies. Although the FBI has always been a
law enforcement and intelligence agency, since 9/11 it has become more focused on preventing
and disrupting terrorist behavior. The FBI has the counterterrorism division and the
counterintelligence division.
The Foreign Intelligence Surveillance Act (FISA) authorizes certain government surveillance
of communications for foreign intelligence purposes. Four main elements of FISA include:
application; objective basis; minimization guidelines; and ex parte order. There is also a FISA
Court which reviews FISA surveillance requests.
The USA Patriot Act includes a number of tools used to monitor, search, and prosecute
suspects in the war on terror. These tools include roving wiretaps, “sneak-and-peak” search
warrants, “lone–wolf terrorists”, and the business record provision. Roving wiretaps allow
surveillance of individuals rather than devices. “Sneak-and-peak” search warrants allow officers
National Security Letters (NSLs) order telephone companies, Internet Service Providers,
consumer credits reporting agencies, banks, and other financial institutions to turn over metadata
on all of their customers. The Patriot Act did not create NSLs but did expand issuing authority,
eliminate the required link to a foreign power, direct that no NSL investigation could be based
solely on activities protected by the First Amendment. NSL targets and data, NSLs and the
Inspector General’s report, NSLs in court.
Post 9/11 the FBI has become more proactive in gathering intelligence. The difficult for the
FBI in this area is to determine when the suspect moves from legal First Amendment protected
activities to violent extremist acts. Two tactics used by the FBI are the Capone approach and
An ongoing debate exists as to whether terrorist suspects should be given Miranda warnings. The
public safety exception is often used but only allows for a limited time. One side of the debate argues
terrorist suspects should not receive Miranda warnings because they are war criminals. Another
holds that the public safety exception should be interpreted broadly in cases of suspected terrorism.
Persons detained as unlawful combatants face federal court trials according to the nature and
seriousness of the offense, the defendant’s culpability, and their willingness to cooperate. Federal courts
have high conviction rates and traditionally give long sentences in terrorism trials. Military
Commissions are established by the President as commander in chief, and replace the authority of
federal courts in trying non-citizens for terrorist acts, and are not bound by constitutional requirements.
Commissions have relaxed rules of procedure and consist of a panel of military officers.
The Supreme Court has held that stopping a deportable alien for suspected immigration crimes is
a Fourth Amendment seizure, but that the national interest in controlling immigration outweighs the
intrusion of a brief detention at a checkpoint. The reasonableness of detaining non–citizens during
Key Terms
unlawful enemy combatant: As defined by the Military Commissions Act: “a person who has
engaged in hostilities or who has purposely and materially supported hostilities against the U.S.
or its co-belligerents who is not a lawful combatant (including a person who is part of the
lawful enemy combatant: As defined by the Military Commissions Act, a person who is a member
of: the regular forces of a State who is at war with the U.S.; of a militia, volunteer corps, or organized
resistance movement belonging to a State at war with the U.S; or of a regular armed forces who
suspension clause: Located in Article I, section 9 of the U.S. Constitution, it provides that the
writ of habeas corpus can only be suspended “when in cases of rebellion or invasion the public
safety may require it.” (p. 580)
Counterterrorism Division: FBI division whose mission is to “identify and disrupt potential
terrorist plots, freeze terrorist finances, share information with law enforcement and intelligence
partners world-wide, and provide strategic and operational threat analysis to the intelligence
community” (U.S. Department of Justice, Office of the Inspector General 2007, 19) (p. 582)
Counterintelligence Division: FBI division whose responsibility it is to keep our nation’s most
valuable secrets out of the hands of spies. (p. 582)
United States Person: “A citizen of the United States, an alien lawfully admitted for permanent
residence, an unincorporated association a substantial number of members of which are citizens
of the United States or aliens lawfully admitted for permanent residence, or a corporation which
is incorporated in the United States…” (Section § 1801(i) of FISA) (p. 583)
sneak-and-peek search warrants: Warrants allowing officers to enter private places without the
occupant consenting or knowing about it. (p. 587)
“lone wolf terrorist”: A terrorist without a connection to a “foreign power.” (p. 588)
business records provision: A provision in The Patriot Act (§ 215) that creates a “national
security equivalent of grand juries.” (p. 589)
National Security Letters (NSLs): Letters to telephone companies, Internet Service Providers,
consumer credit reporting agencies, banks, and other financial institutions “directing the
recipients to turn over all of the metadata from all customer records for intelligence-gathering
purposes.” (Doyle 2001, 1) (p. 591)
Sting operations: FBI agents (most of them undercover) gather “ironclad evidence against
suspects” by catching suspects “committing an overt act.” (p. 605)
Article III courts: ordinary federal courts whose authority comes from Article III of the
Constitution. (p. 618)
war crimes: Acts committed during wartime that inflict “ needles and disproportionate suffering
and damages” in pursuit of a “military objective.” (p. 618)
military commissions: a panel of military officers acting under military authority to try enemy
combatants for war crimes. (p. 619)
military courts-martial: panels of military officers formed to try members of U.S. Armed
Forces for violating the Uniform code of Military Justice. (p. 619)
terrorist-acts–as–crime view: The view that we should abolish military commissions and treat
and try those who commit terrorism acts in U.S. criminal courts. (p. 621)
deportable alien: a person who admits to authorities that he or she is deportable or is
found to be deportable by an immigration judge. (p. 626)
noncriminal (civil) deportation proceedings: Civil proceedings to determine if a person is
deportable under federal law, which raises the controversial issue of who should be detained and
who should remain free during the proceedings. (p. 629)
Assignments
1. Have students visit the Department of Justice website and the American Civil Liberties
2. Have students discuss how we can balance individual rights and still protect the U.S. from
terrorist attack. Has the balance shifted too far or not far enough toward security to the detriment
4. Have students research the current status of the Edward Snowden case. Where is he at this
time? What has the National Security Agency done to attempt to bring him to the United
States for trial? Students can write an argumentative essay on the topic and discuss whether
5. Have students find a case dealing with the Illegal Immigration Reform and Immigration