Terrorism and the Law - Essay Example

Terrorism and the Law 1. Explain what is required to prove that someone has provided material support to a terrorist organization. A person should be investigated if he or she has contributed money, food, clothing, shelter and other services to terrorist organizations because these are normally indicators of material support. For instance, based on the Suppression of the Financing of Terrorism Convention Implementation Act 2002, it was a criminal offense to collect or provide funds to support terrorist activities (Ryder 67). Under federal law, material support is generally considered a terrorist financing offense. As amended by IRTPA in December 2004 AEDPA section 2339B(a) defines material support as “any property, tangible or intangible or service, including money, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communication equipment, facilities, weapons, lethal substance, explosives, personnel, transportation, and with the exemption of medicine or religious materials (Samaha 468). The government must be able to prove that the “donor defendant acted with culpable intent knowledge” so as it is safe to say that such individual has provided material support to a terrorist organization (Samaha 468). 2. Terrorism is defined by at least four different kinds of laws. Name at least three kinds of laws. There are varying definitions of terrorism which makes it controversial and it is defined by different kinds of laws such as the following: International criminal law, National criminal law (e.g. United States Law Code), and general insurance policies. 3. The United Nations, The Arab Convention and European Convention define terrorism differently. Explain each definition. The United Nations The United Nations and the council on the suppression of terrorism seek to define it by adopting general legislative measures against it which results to serious legal consequences. As a result to this, the United Nations is encouraging every state to define terrorism in the context of National Law (Saul 141). The Arab Convention On the other hand, the Arab Convention is very particular in excluding armed struggle against oppression from the definition of terrorism and its suppression. The threat to right of securing self-determination and independence which can be counteracted by armed struggle in whatever means is particularly excluded in the definition of terrorism (Williamson 59). This therefore paves the way for the difficulty in coming up with universal definition of terrorism. European Convention European Convention on the other hand on its suppression of terrorism encourages States to consider terrorism and its acts not as political offences or as being inspired by political motives (Dumitriu 587). 4. Yunis, Noriega and Yousef were progressive rulings on extraterritorial jurisdiction. In a few sentences, what does each case stand for? Why are they considered progressive rulings? The US District Court decision of United States vs. Yunis case stands for the acceptance of certain principles of extraterritorial jurisdiction allowing prosecution of terrorists in the United States (Wegner). In other words, the said case has become the model for the prosecution of terrorists in the US courts. The Noriega case depicts how the head of the state can be brought before trials in the US courts. In the midst of this trial, Noriega case can substantially apply three types of immunity: foreign sovereign immunity, head of state immunity, and act of state immunity. The case of Yousef on the other hand depicts the clash between the Iran Penal Code and the International Covenant on Civil and Political Rights. These two have certain principles that at some point would bring substantial consideration on the progress of the case. These three are considered progressive rulings because from time to time, various modifications, amendments or changes have been implemented on various laws in the world. This means substantial changes may apply on how a certain case may be finally viewed in courts. For instance, the US might be able to gain more experiences on how to handle cases like Noriega in the future and along the process, there might be substantial changes and refinement that may be applied. 5. Why is the Moussaoui case important? What procedural steps did the defendant want to take that the government objected to? Moussaoui case is important because it represents how the US courts could gain substantial evidences from the personal testimony of the alleged or defendant and converts them into something material prior to indictment of the case. This shows that the criminal justice system still works in America especially in being detailed about the aggravating and mitigating factors involved in the case. The next important lesson learned in the Moussaoui case is the demonstration of fact-finding role involved in criminal trials. It is important for the US government to expose the truth by showing the defendant’s responsibility in the crime and the government’s personal conduct in the case. The next point of the Moussaoui case is about showing how the defendant achieved protection against abuses of the power of the state. All of these potentially depict the fact why the US criminal justice system is one of the finest in the world. In fact, the defendant certainly asked to defend himself through his personal testimonies and later requested for lawyers to guide him about some technicalities. There was a fair procedural trial involved in the case in order for the defendant to have equal chance in taking what the government objected to. 6. How does CIPA help the defendant with discovery? See Moussaoui case for guidance. The Classified Information Procedures Act (CIPA) on the Moussaoui case was able to authorize interlocutory appeals of orders under CIPA itself; CIPA protection was preserved disregarding its approval or not; and finally, CIPA was able to technically apply only documentary information and those disclosed by the defendant during trial. 7. Briefly summarize three of the key points in the UN Covenant Against Torture. The first point is about defining what torture is about while ensuring that it is a criminal offense in the hope to prevent its actual implementation. The second point is about ensuring that it shall be reported directly to the instituted committees of the Convention through reporting and monitoring activities. Finally, the third point is about ratification, amendments and arbitration mechanism in cases of disputes. 8. Rumsfeld v. Padilla dealt with habeas corpus, “enemy combatant” and “Custodians”. What did the Supreme Court decide in Padilla about habeas petitions? Over Padilla’s habeas petitions, the Supreme Court decided that the New York federal court was lacking Habeas Corpus jurisdiction. In this regard, only South Carolina federal court as his only proper forum for his habeas petitions. 9. What is the difference between an unlawful enemy combatant and a lawful enemy combatant under S3930? Under S3930, the presence or absence of a uniform and chain of command is where the difference between an unlawful enemy combatant and a lawful enemy combatant is found. For instance, a lawful enemy combatant can be a person who is a member of the regular forces of a State. The unlawful enemy combatants on the other hand can be determined as a person who is a member of Taliban, Al-Qaeda and other related forces. 10. Explain a Military Commission. Military Commission, an official document issued by the government, is under the supervision of the Department of Defense. It confers on the recipient the officers’ rank in the armed forces. 11. What is the legal authority for the implementation of martial law? Identify the issues and concerns you would address if you were responsible for deciding whether to authorize martial law. The implementation of martial law is covered by national authority imposing military rule instituted by military authorities. In a country, order, security and services are essential to be provided by civilian government or authorities. They have to function in great order so as not to threaten the existing order, security and ongoing services in the State. In cases when there is failure of achieving these, a national emergency is necessary and this is essentially covered by martial law placing a certain region or State under it. A national emergency is necessary and this can be implemented through martial law that most of the time would only last temporarily. As for me, I have to be specific on the country’s order, security and implementation of proper services in order to protect the welfare of the people. For instance, the executive body should be able to allocate or employ military forces in order to ensure peace and security at the same time in cases when there is chaos that would threaten national security and the government’s political, social and economic stability. 12. There has been much debate about torture. The debate has included defining torture. Provide your own definition of “torture”. The prevailing varieties of definition of torture are significantly covered by international law and national laws. Usually, it is viewed as a method of achieving political information through inflicting excruciating pain and punishments. As a result, it usually brings discomfort to whoever receives this kind of act. It is in this reason that torture should be defined on the basis of understanding the human instinct towards pain and discomforts. These pains and discomforts however are not only limited to physical, but it include emotional and psychological aspects of the human nature. Torture therefore should be defined as an act that violates an individual’s right to experience life with comfort that further infringes human’s physical, emotional and psychological needs. It should be applied in situations involving investigation of important information covered by any cases encompassing international and domestic laws and these shall be in line with interrogation, confessions and admissions. 13. Draft a memorandum to your subordinates explaining the pros and cons of confessions and admission obtained by torture. To all Subordinates, Confessions and admissions obtained by torture in some way or another have become effective in our time but by scrutinizing them in great detail, there could also be some major drawbacks about them. This memorandum is intended to inform you some of the pros and cons of confessions and admissions obtained by torture. On the ground of legal, ethical and moral considerations, torture has become one of the most controversial issues integrated with international and domestic laws. However, torture has become effective way to turn away possible future attacks as we substantially learned from Filipinos’ experience with their Muslim insurgents and as Dubai successfully grappled with Al Qaeda terrorists. Furthermore, torture has become proven effective in ensuring fear among detainees. Due to this fear, there is a good chance to achieve better lead and information about certain crimes. However, torture has also been proven ineffective especially in cases where the prisoner would not be willing to disclose information. Torture should not be continuously implemented this way. It may at some point end the prisoner’s life which further would result to certain complexities including some violations of the law. 14. Draft a memorandum to your staff explaining what you consider to be aggressive investigative techniques, which are not torture. To the Staff, Torture is defined as aggressive investigative technique. However, there are some other techniques outside the bound of torture definition under the international and domestic law, but still remains to be aggressive and investigative techniques. One of them involves significant threats. This may involved about giving threat to the prisoner informing him or her to involve his or her family and to the extent of causing their lives. This substantially would create psychological and emotional impacts on the concerned prisoner allowing him or her to disclose substantial information on the crime investigation. Other technique is about paying the prisoner a substantial amount just to disclose whatever information he or she has. At some point, this would ensure disclosure of information, but at certain level, it would be challenging to look for reliable basis of the truth. 15. Should civilians be able to seek monetary relief from injuries or death associated with terrorist’s acts on the basis of inadequate security provided by a private property owner? Use the arguments presented in the cases in Chapter Four to support your position. The move to do this is a good opportunity for civilians especially on the ground of addressing their optimum welfare, but there should be regulation in this case. Prior to its implementation, there should be existing international standards and principles on this matter. It is important to point out that there must be existing laws that should cover on these issues. In the event that there is even one, but it lacks comprehensive review, then it is important to revise and amend it on the ground that it would totally cover the term about inadequacy of security provided by property owner and its association with terrorist’s acts. For instance, ‘inadequate security” must be thoroughly defined including its detailed parameters. In doing this, there should be a clear ground on having civilians to seek monetary relief from injuries or death associated with terrorist’s acts on the basis of inadequate security provided by a private property owner. 16. Provide a short memo outlining the specific legal authority for targeted killings. Identify the laws you rely on. This memo outlines the specific legal authority for targeted killings. Targeted killings may or may not be legal under international law depending on circumstances. Those individuals outside the bound of law are subjects to deliberate lethal attacks by the government, which summarizes the very nature of target killings. However, targeted killings are covered by International human rights law which includes authoritative standards such as the Basic Principles on the use of Force and Firearms by Law Enforcement Officials. Although it upholds the right to life, the human rights law also has certain rules of enforcement especially on the issues of allowing lethal force. Therefore, targeted killings should always find its basis on the context of International human rights law, which at some point should not violate the existing laws of war covered by the Geneva Conventions of 1949, 1907 Hague Regulations and customary laws of war. 17. Rendition is a controversial subject. a. Assuming you were the legal counsel for the government, describe the issues that are controversial. Rendition is a legal term for “handing over”. The first issue that is controversial about rendition is the act of transferring the suspect to other countries where human rights violations or abuses are very common. These countries are usually adapting high bar US law in order to convict suspected terrorists. Another important controversial issue about rendition is the inability of intelligence agencies to provide circumstantial evidence or proof beyond reasonable doubt surrounding its very act. Furthermore, the US is associated with rendition because of its high level of energy provided for counter terrorisms. Thus, the US usually is associated with any negative issues surrounding rendition. In addition, rendition is also associated with interrogations which usually results to torture. b. Provide your own definition of rendition Rendition is an act that aims to take into account resolution of crimes and other related cases both in the international and domestic context of the law. Its very act can be justified and even strongly hidden because of the degree of difficulty in finding circumstantial evidence and a proof beyond reasonable doubt. c. Provide a draft of a memo explaining to your staff what it is and when and how it can be used. Rendition is just a way to implement the law and to provide circumstantial evidence or proof beyond reasonable doubt. At present, it is very controversial, but its various drawbacks remain as hearsays. It is effective to apply rendition especially in cases that involved terroristic acts and other related crimes that involved extensive investigations. It can be used by applying the context of the law, both justifiable in international and domestic setting in order not to be inhibited by various technicalities in the law. References Dumitriu, Eugenia. The EU’s Definition of Terrorism: The Council Framework Decision on Combating Terrorism. Available from: http://www.germanlawjournal.com/pdfs/Vol05No05/PDF_Vol_05_No_05_585-602_special_issue_Dumitriu.pdf. [Accessed 21st August 2011]. Ryder, Nicholas. Financial Crime in the 21st Century: Law and Policy. Northampton, MA: Edward Elgar Publishing. Samaha, Joel. Criminal Law. 10th ed. Belmont, CA: Cengage Learning. Saul, Ben. “Definition of ‘Terrorism’ in the UN Security Council: 1985-2004.” Chines Journal of International Law. 4.1 (2005): 141-166. Wegner, Adam W. “Extraterritorial Jurisdiction under International Law: The Yunis Decision as a Model for the Prosecution of Terrorists in US Courts.” Law and Policy in International Business. 22 (1991). Williamson, Myra. Terrorism, war and international law: the legality of the use of force against Afghanistan in 2001. Burlington, VT: Ashgate Publishing Ltd. Read More