Homeland Security - Assignment Example

Homeland Security The legal system of the United s has provisions regarding terrorists and acts of terrorism. These laws cover different aspects of terrorism. Some of these laws include the Foreign Intelligence Security Act, the Anti-Terrorism and Effective Death Penalty Act 1996 and the USA Patriot Act. For this case, many aspects of the above mentioned laws will come into play. The purpose of this memo is to highlight how these laws may affect the case and its outcome. I will analyze the issues that are likely to arise under these laws for this particular case. Foreign Intelligence Security Act (FISA) The 1978 Foreign Intelligence Surveillance Act (FISA) allowed agents easy access to warrants if they could show that there was a substantial “foreign intelligence” angle to their work; the warrants would be granted by a special FISA court. FISA can now be used in cases that are entirely crimial in nature, agents can get automatic “admisitrative” FISA warrants as long as agents can assert that there is some foreign intelligence angle to the cases, they receive such warrants on demand (Darmer, 2004). Prior to 9/11, FISA was not considered a law enforcement tool; its function was solely preventative. FISA surveillance powers were available only when the primary purpose of an investigation was to obtain foreign intelligence, including counterespionage and counterterrorism information. FISA authorized surveillance under flexible conditions that are considered unacceptable when the government’s objective is to gather evidence for criminal persecution (Howard, Forest and Moore, 2006). FISA surveilleance is permitted after showing diluted suspicion not equivalent to the traditonal criminal starndard of probable cause. Surveilllance and searches can continue over extensive peiods of time, with less jusicial supervision. The person targeted normallly is never notified that he was subjected to surveillance. If that peron is prosecuted, his attorney normally cannot review the surveillance documents for prurposes of his defense, as they could if surveillance had been conducted under conventional law enforcement standards (Darmer, 2004). If the judge finds that there is probable cause that the individual is indeed a terrorism funder, then he can use the provisions as set by FISA to determine whether this calim is true or not. FISA establishes leagl procedures for electronic surveillance, physical serches as well as the use of trap and trace devices and pen registers to gather jevidence. if this evidence is collected on the activities of the suspect, then it can be used agaist him in court. this law is applicable to anyone who is involved in any way in terrorism activities. this means that anyone found guilty of terririst activities can be tried using this law regardless of whether he is a citizen of the US or not. the Lone Wolf provision of FISA also allows for the prosecution of a suspected terrorist without having to confirm the people he/she is working with. inthis case, if there is enough physical evidence to show that the suspected financier of terrorism is guilty as charged, there is no need to find the people he is working with jfor him to be sentenced. The USA PATRIOT Act This is an Act of the US Congress which became law on 26 October 2001. The letters USA PATRIOT are acronyms for Uniting and Strengthening America by Providing Appropriate tools Required to Intercept and Obstruct Terrorism Act of 2001 (Bazan, 2008). This is one important piece of legislation that every judge dealing with a terrorism case should be conversant with. the issues that are likely to come up in regards to this law are discussed below. The Patriot Act has ten titles outlining new powers of government for counterterrorist activities, expands technical support for the FBI, expands electronic intelligence gathering research, and defines presidential authority in response to terrorism. The purpose of Title II is to improve the government’s ability to gather electronic evidence. Title II allows intelligence agencies and federal law enforcement to share records and data with federal law enforcement to share noncriminal information with each other (Nicholson, 2005). In addition, it forces private corporations to share records and data with federal law enforcement departments during investigations and data with federal law enforcement departments during investigations and allows the FBI to seize material when it believes national security is in jeopardy (Howard, Forest and Moore, 2006). Title III empowers federal law enforcement to interact with banking regulators and provides arrest power outside American borders for terrorist financing and money laundering. Title IV increases border patrols and monitoring of foreigners within the United States, mandating detention of susupected terrorists. Title VII focuses on police information sharing, specifically targeting a nationwide police investigative network known as a the Regional Information Sharing System RISS. Prior to the Patriot Act, RISS was only to be used in criminal investigations (Nicholson, 2005). The Patriot Act made especially important changes in the complex Foreign Intelligence Surveillance Act (FISA). The expanded FISA provisions now allow FBI agents to obtain business and educational records, without any need to certify that the targeted customer or student is considered a foreign agent or a suspect in any way. Before 9/11, FISA gave investigators access to the records of a narrow category of travel-industry business and any non businesses, provided that the person targeted was a foreign agent. The Patriot Act now permits FBI access to all the record of any business and any non-business entity, apparently including noncommercial entities such as a synagogue or mosque (Doyle, 1996). The Patriot Act liberalizes use of the federal government’s four major tools of surveillance: wiretaps, search warrants, subpoenas, and pen/trap orders (which allow investigators to log and map all the telephone numbers called by a suspect). The 1978 Foreign Intelligence Surveillance Act (FISA) allowed agents easy access to warrants if they could show that there was a substantial “foreign intelligence” angle to their work; the warrants would be granted by a special FISA court (Hulnick, 2004). FISA can now be used in cases that are entirely crimial in nature, agents can get automatic “admisitrative” FISA warrants as long as agents can assert that there is some foreign intelligence angle to the cases, they receive such warrants on demand (Darmer, 2004). The Patriot Act gives prosecutors, for the first time, the ability to use FISA powers when their primary objective is not preventive but is rather to gather evidence for criminal prosecution. The FISA does not require that the person targeted be a foreign spy or an intermational terrorist. Foreign national and US citizens qualify as “foreign agents” subject to clandestine searches and broad FISA surveillance when they are merely suspected of having ties to forign organizations or goverments, and even when they are merely employed by various legitmate foreign organization (Darmer, 2004). The most powerful provisions of the law allow for easy access to records. Under the Patriot Act, the FBI can force anyone to turn over records on their customers or clients, giving the government unchecked power torigle through individual’s financial records, medical histories, internet useage, travel patterns, or reading habits from libraries and bookstores (White, 2004). Futhermore, the Patriot Act expands exception to the normal requirement for probable cause in wiretap law. As with its new power to search records, the FBI need not show probable cause or even reasonble suspicion of criminal activity, and judicial oversight is essentially nil (Darmer, 2004). Lastly, the Patriot Act allows the government to conduct searches without notifying the subjects until long after the search has been executed. Under these changes and other authorities asserted by the Bush administration, US intelltigence agents could conduct a secret search of an American citizen’s home, uses evidence found there to delcare him an enemy combatant, and imprison him without trial (Sauter and Carafano, 2005). The courts would have no chance to review these decisions, they may never even find out about them. The Patriot Act wire tap authority was expanded, as was information sharing among various federal agencies. By certifying a need for the material sought in an investigation of international terrorism, government agents are granted the authority to subpoena any individual records in libraries, bookstores, telephone companies, Internet providers, and universities. this Act allows the US attorney General to hold foreigners who are suspected terrorists for up to seven days before charging them with a crime or beginning deportation procedures. The law stipulated the establishment of a system to fingerprint and photograph foreigners at their entrance point into the United States (Nacos, 2010). Those who oppose the Patriot Act argue it goes too far in attacking civil liberties while expanding police powers. A further concern consists of sharing noncriminal intelligence during criminal investigations. Lastly, there is a concern too much power is granted to the government to monitor the activities of its own citizens (Purpura, 2007). However, this should not be problem in this case as the law stipulates clearly what should happen when one is suspected of engaging in terrorism activities. The law allows for substantive evidence to be collected so that it can be used in making appropriate judgments. In the case of someone who has been suspected of funding terrorism, this law should be applied to get evidence that will implicate the suspect in the case. The Anti-Terrorism and Effective Death Penalty Act 1996 The Antiterrorism and Effective Death Penalty Act was passed on April 24, 1996. Its purpose was to discourage terrorism, provide for a means to dealing with it (the death penalty most - likely the case) and to seek justice for the victims of such an act. It was signed into law by U.S President Bill Clinton. The AEDP Act would have an influence on the habeas corpus law in the United States Constitution, especially when it concerned incarceration of suspects (Sauter and Carafano, 2005). The Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132) is broken down in to six titles. Title I of the Act extends federal habeas corpus law as it applies to both state and federal prisoners whether on death row or imprisoned for a term of years by providing: A bar on federal habeas reconsideration of legal and factual issues ruled upon by state courts in most instances; creation of a general 1 year statute of limitations; creation of a 6 month statute of limitation in death penalty cases; encouragement for states to appoint counsel for indigent state death row inmates during state habeas or unitary appellate proceedings; and a requirement of appellate court approval for repetitious habeas petitions (Doyle, 1996). Title II recasts federal law concerning restitution, expands the circumstances under which foreign governments that support terrorism may be sued for resulting injuries, and increases the assistance and compensation available to the victims of terrorism. Title III is crafted to help sever international terrorists from their sources of financial and material support. It enlarges the proscriptions against assisting in the commission of various terrorist crimes. It authorizes the regulation of fundraising by foreign organizations associated with terrorist activities. It adjusts the Foreign Assistance Act to help isolate countries who support terrorists and to bolster counterterrorism efforts in those who oppose them (Scheppler, 2006). Title IV addresses immigration-related terrorism issues. It establishes or adjusts mechanisms to bar alien terrorists from the U.S., to remove from the U.S. any who are here, to narrow asylum provisions which allow terrorists to frustrate efforts to bar or remove them, and to expedite deportation of criminal aliens. Title V adjusts the restrictions on possession and use of materials capable of producing catastrophic damage in the hands of terrorists. Title VI implements the treaty requiring the countries of the world to limit plastic explosives to those with pre-explosion detection devices implanted within them (Doyle, 1996). This law can be used to deter the suspect from ever coming to the US to carry out any business. This law can also be used to help trace international communication between the suspect and other terrorists to find out to what extent he is involved in the whole operation. this legislation categorically makes it a criminal offence to finance a terrorist group. this is one piece of legislation which the judge ccan use as a guide to pass the correct sentence to the suspected financier. Conclusion Financing an act of terrorism is punishable under the laws of the United States of America. The USA PATRIOT Act, the Anti-Terrorism and Effective Death Penalty Act 1996 and the Foreign Intelligence Security Act (FISA) are all important legislations which impact on the outcome of terrorism cases. it is important for judges who are involved in terrorism related cases to know and understand these legislations so as to give the best possible sentence to the suspects when they are proven to be guilty. The USA PATRIOT Act which was passed in the wake of the September 11 2001 terrorist attacks in the US. This law gave law enforcers greater powers to trace, find and punish those suspected of being terrorists. The act enables law enforcement officers to trace terrorist’s communication patterns. The kind of information gathered while tracing suspects’ communication is very important as it can be used as evidence that can have a huge impact on the outcome of a case. The Foreign Intelligence Security Act and the Anti-Terrorism and Effective Death Penalty Act 1996also provide for provisions for evidence collection which can determine how a case goes. These laws provide a strong basis for trying terrorism related activities by providing legal basis for carrying out extensive searches on the communication patterns and even banking accounts. References Bazan, E.B. (2008). The foreign intelligence surveillance act: Overview and modifications. New York: Nova Science Publishers, Inc. Darmer, K. (2004). Civil Liberties VS. National Security. New York: Prometheus Books. Doyle, C. (1996, June 9). Antiterrorism and Effective Death Penalty Act of 1996. Retrieved January 28, 2011, from Scientist Federation of American: http://www.fas.org/irp/crs/96-499.htm Howard, R.D., Forest, J.J. and Moore, J.C. (2006). Homeland security and terrorism: Readings and interpretations. New York: McGraw-Hill Hulnick, A. S. (2004). Keeping the US Safe. Westport, CT: Praeger. Nacos, B. L. (2010). Terrorism and Counterterrorism. New York, New York: Longman/Pearson. Nicholson, W.C. (2005). Homeland security law and policy. Springfield, IL: Charles C Thomas Purpura, P. (2007). Terrorism and homeland security: An introduction with applications. Burlington, MA: Elsevier, Inc. Sauter, M. and Carafano, J.J. (2005). Homeland security: A complete guide to understanding , preventing and terrorism. New York: McGraw-Hill Scheppler, B. (2006). The USA PATRIOT Act: Antiterror legislation in response to 9/11. New York: Rosen Publishing Group, Inc. White, J. R. (2004). Defending the Homeland. Belmont, CA, USA: Wadsworth, Cenage Learning. Read More