The Material Support Terrorism Offenses - Essay Example

Task The key element in proving material support to terrorism is mens rea. The intention of knowingly providing financial or any other form of material support to a terrorist organization has to be sustained by the prosecution in a charge of providing material support to a terrorist organization (Abram Normans, 2002, p.6). These involves the advancement of evidence that the accused, at the time of committing the offence, knew that he/she was providing material support to a terrorist organization and knew the terrorist organization in question. 2 Terrorism has been defined by different kinds of laws including the following: 1. The International Terrorism Act of 1990 2. The Patriots Act 3. The UN Convention on International Terrorism 3 There are various definitions attached to terrorism. The United Nations, the Arab Convention and the European Convention all give divergent definitions to the term ‘terrorism’. The UN’s definition to terrorism is more descriptive of the acts that may be cited as terrorism acts. It adopts a broad description of acts that may be interpreted to be acts of terrorism by its members. This includes unlawful actions, including against civilians, carried out with an intention of causing serious bodily harm or the taking of hostages to induce a state of terror to the public. It therefore offers a broad definition to the term that allows other criminal acts against the state or citizens, which have not yet been classified as terrorist acts, to be categorized as terrorist acts. The Arab Convention on the other hand adopts a more liberal definition to terrorism. It defines terrorism to encompass not only acts, but also threat of criminal action against the state or citizens of a given country. The convention also recognizes that terrorist threats may also be directed to the environment in an attempt to jeopardize national resources. The European convention adopts an imprecise definition to terrorism. Rather, the convention gives the objective manifestations of the terrorism acts. It then goes on provide that a terrorist offence is an offense under the twelve existing conventions on terrorism. This encompasses the problem associated with offering a strict definition to the term, as terrorism encompasses many criminal activities and is thus incapable of a strict definition. 4 The yunis case amplifies America’s renewed efforts to curb international terrorism by employing the new antiterrorism laws. The case demonstrated the acceptance of recent international law principles of extraterritorial jurisdiction that give room for the prosecution of terrorists in US soil. It encompasses the international law principle that terrorism is an act condemned internationally and as such, terrorist suspects can be prosecuted in any national jurisdiction of the world. The Noriega case illustrated the application of domestic criminal laws universally to prosecute criminal activities committed outside the United States. The court relied on the international law principle of extended territorial jurisdiction to prosecute crimes committed outside the US national borders, whose effects had far-reaching consequences on American soil. The Yousef case illustrated the use of extraterritorial jurisdiction to prosecute the accused with charges of terrorism and conspiracy to commit criminal and terrorist acts within the territory of the United States. All the aforementioned cases are regarded as progressive cases as they form a future model for prosecuting terrorists within the US territory. They further show the expanded use of both the domestic law and international law to combat efficiently the threat of terrorism in America. 5 The Moussaoui case is important because it illustrates the success of the criminal justice system in trying and convicting suspected terrorists. It also shows that the best way to follow in promoting national security is reaffirmation of the values of the justice system. Moussaui wanted to review his confession to which the prosecution was opposed to such procedures. 6 The defendant had launched his appeal based on the argument that he had no access to documentary evidence that had since been classified by the government, and had he been afforded access to such information his plea would have been very different. Adequate substitutions made under CIPA would have been adequate in protecting his case had the CIPA process not have been cut short. 7 The first key point in the UN convention against torture is that member states are required to take legislative, administration, judicial and other measures to prevent any act of torture within its territories. The second key point is to the effect that no state should take any measure to extradite any of its citizens to a country where it is feared that the person may be exposed to torture and other inhumane treatment. The third key point is that member states should take all the necessary measures to criminalize all forms of torture in their national laws. 8 In the Padelia case, it was found that according to the US law, an order for habeus could only be filed as against the person directly in charge of the confinement. In this case, the order should have been filed against the commander of the military brig in which Padelia was held. 9 Section 3930 gives the difference between lawful and unlawful enemy combatant. Under the Act, the difference between the two combatants lies in the presence or absence of a uniform and a chain of command. Lawful enemy combatants include members of armed forces involved in hostilities with the US or a group of volunteer corps or organized resistance movement under some form of responsible military command and wear fixed signs recognizable from a distance. Unlawful enemy combatants on the other hand refer to a person who is engaged in hostilities with the US and lacks the traits possessed by a lawful combatant. 10 A military commission refers to a military tribunal created for administering justice among the members of the armed forces outside the scope of normal criminal and civil proceedings. 11 The legal authority for implementing martial law lies in the president. The major issue for concern in martial law status regards the fundamental human rights of citizens. This is because martial law results in the suspension of all human rights and government power is by decree. It would therefore be prudent to address first the issue of rights. 12 Torture may be defined as the intentional infliction of pain, suffering, and exposure to any other form of inhumane and degrading treatment with a view of extracting information or inflicting punishment on the person. 13 MEMORANDUM TO: FROM: NAME DATE: RE: CONFESSIONS AND ADMISSIONS Question What are the pros and cons of confessions and admissions obtained by torture? Answer Although extracting information from prisoners using torture has been shunned by modern democracies, it is arguable that information extracted by this means is sometimes valuable and has been used successfully to avert future or imminent tragedies. However, in most cases information obtained by torture is often inaccurate, as the prisoners will confess merely to avoid the pain. Such information is usually unreliable and inadmissible in courts. 14 MEMORANDUM TO: FROM: NAME DATE: RE: AGGRESSIVE INVESTIGATIVE TECHNIQUES Question What are aggressive investigative techniques, which are not torture considered as torture? Answer Aggressive investigative techniques, that do not include torture, are necessary in extracting information from uncooperative prisoners. These investigative techniques are meant to extract information without necessarily resulting to torture and include a number of stress inducing techniques. Examples of these include sleep deprivation, long time standing and the attention grab. These techniques cannot be classified as torture. 15 Civilians should not be able to seek compensation for injuries and death for terrorist activities based on inadequate security provided by a private property owner. This is because, as opposed to other tortuous claims, the duty of care and standard of care in these claims is different. Terrorism is a global threat incapable of being handled by provision of security by a single person. There would also be the problem of proving negligence on the part of the property owner because proving that the property owner would have actually averted the danger or harm is much easily pleaded than proved in court in a terrorism claim. 16 MEMORANDUM TO: FROM: NAME DATE: RE: TARGETED KILLINGS Question presented Describe targeted killings providing the specific authority for targeted killing. Answer Targeted killing is the deliberate targeting and killing of enemy combatants who are suspected of being involved in direct hostilities with the country. The legal authority for targeted killings in America lies with the president. Most of the legal framework for targeted killings in America draws from treaties and conventions expressly providing for targeted killings. These includes American Armed Conflict laws and the use of self-defense under Article2 (4) of the UN charter. It should however be noted that these laws only provide for targeted killings in armed conflict situations only. 17 a) The controversial issues in rendition concern the issues of blatant disregard for fundamental rights and freedoms of citizens. The rights to freedom and a fair trial are greatly undermined by the rendition process. The state would therefore be overburdened in showing that the rendition was justified and there was no disregard for the accused rights. b) Rendition may be defined a covert act abducting a suspected criminal from one nation and transferring him to another nation for purposes of interrogation and investigation into his alleged conduct. c) MEMORANDUM TO: THE JUSTICE DEPARTMENT FROM: NAME DATE: RE: RENDITION Question presented What is a rendition and, how and when can it be used? Discussion Rendition is the practice of kidnapping terrorist suspects and sending them to secret destinations across the globe for investigation and interrogation as to their criminal activities. The CIA is the national department that is charged with the task of carrying out the renditions. Renditions may be used as a diplomatic means of ensuring the prisoners provide evidence or are used as witnesses in cases across the globe, where their evidence is required in another state. Reference Abrams Norman, (2002) ‘The Material Support Terrorism Offenses: Perspectives Derived from the (Early) Model Penal Code’ Journal of National Security Law & Policy 1.5 insct.org/jnslp/wp-content/uploads/.../02_ABRAMS_MASTER.pdf Read More