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The Law of Counterterrorism

by: Zusman, Lynne K.

The Law of Counterterrorism

by: Zusman, Lynne K.

ISBN 13:
9781614380375
ISBN 10:
1614380376
Format: Paperback
Copyright: 06/30/2012
Publisher: American Bar Association

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Summary

This book examines the roles federal agencies play, the highly esoteric nature of counterterrorism law, and the importance of adhering to the rule of law when engaged in counterterrorism. Topics include Afghanistan, the Taliban and Al-Qaeda; the DOJ torture memo; the philosophy of terrorism; war crimes jurisdiction; the 9/11 Commission; current and future national security principles; the National Security Council system; communications surveillance; the PATRIOT Act, and more.

Background	p. iii
Words and Perspectives	p. v
Note from Editor and Dedication	p. xi
Acknowledgments	p. xiii
Foreword	p. xv
About the Editor	p. xxiii
About the Contributors	p. xxv
Combatants	p. 1
Afghanistan	p. 6
Interim History: The British Colonial Period	p. 7
Was the Taliban Entitled Legally to Recognition as the Government of Afghanistan?	p. 12
Combatant and Prisoner of War Status and the Taliban and Al-Qaeda	p. 15
The Martens Clause	p. 19
World War II	p. 20
Geneva Diplomatic Conference	p. 21
Al-Qaeda	p. 24
The Taliban	p. 25
Article 4A(1)	p. 25
Article 4A(2)	p. 27
Article 4A(3)	p. 27
Article 4A(6)	p. 29
Special Operations Forces in Non-Standard Uniforms	p. 29
President Bush's Decision	p. 32
Conclusions and Lessons to Be Learned	p. 38
NYPD: On the Front Line	p. 61
Application of the Advice of Counsel Defense in Controversial Cases	p. 69
Introduction	p. 69
Difficult Legal Issues Involving Uncertain Areas of the Law	p. 71
DOJ Torture Memo-Yes, and Then No	p. 72
Yes	p. 72
Then No	p. 74
Congressional Response-The Military Commissions Act and Wholesale Immunity	p. 75
Theories of the Defenses	p. 77
Advice of Counsel	p. 77
Entrapment-by-Estoppel and Public Authority	p. 79
Applying the Advice-of-Counsel Defense to the War on Terrorism	p. 80
Intent vs. Reasonable Difference of Opinion	p. 80
Liability	p. 81
Judgment Calls on the Battlefield	p. 82
Interrogation and Treatment of Detainees	p. 82
Conclusion-The Lesson Learned	p. 83
The Revolution of Substantive Criminal Counterterrorism Law: "Material Support" and Its Philosophical Underpinnings	p. 91
Philosophy of American Terrorism Crimes-Generally	p. 92
Criminalizing Terrorism	p. 93
The Narcotics Analogy	p. 93
The Counterterrorism Crime Challenge	p. 95
Preventive Prosecution-Inchoate Offenses	p. 97
The Money-Laundering Paradigm: "Material Support"	p. 98
The Underpinnings of the United States Enforcement Program	p. 99
Section 2339B and the Designation of Terrorist Groups	p. 101
The Overinclusiveness Argument	p. 102
Conduct Criminalized by Section 2339B	p. 103
"Material Support or Resources"	p. 104
Conclusion: The Efficacy of "Material Support"	p. 105
Detention and Interrogation	p. 107
Detention Authority	p. 108
Who May Be Detained-"Unlawful Combatants"	p. 109
Interrogation and Treatment of Detainees	p. 112
Other Treatment Issues	p. 119
What Process Is Due?	p. 121
Conclusion	p. 126
Military Commissions	p. 135
War Crimes Jurisdiction	p. 137
Global War Crimes Tribunals	p. 139
U.S. Military Tribunals	p. 139
U.S. Military Commissions-Historical Context	p. 140
U.S. Military Commissions-2011	p. 142
Comparison of Trial Procedures	p. 145
Conclusion	p. 149
The 9/11 Commission: "This Is a New Type of War"	p. 153
The Commissions Functioning	p. 153
The Commissions Narrative of the 9/11 Attacks	p. 156
The Commission's Analysis and Findings	p. 159
Whether the 9/11 Plot Could Have Been Detected	p. 159
Larger U.S. Government Failures vis-à-vis al Qaeda	p. 160
The Commissions Recommendations	p. 162
The Effect of the Commissions Work	p. 164
Intelligence and the Law: Introduction to the Legal and Policy Framework Governing Intelligence Community Counterterrorism Efforts	p. 167
Introduction	p. 167
Background: Underlying National Security Principles	p. 169
Modern Intelligence Era-Statutory and Policy Framework	p. 172
Intelligence Community Organization	p. 172
Legislation-The National Security Act and IC Reform	p. 172
National Counterterrorism Center	p. 175
Intelligence Organization and Structure: Governing through Executive Directives	p. 176
Intelligence Community Directives	p. 177
Operational Responsibilities and Authorities	p. 177
Legislative Framework for Operations of the IC	p. 177
General	p. 177
Central Intelligence Agency	p. 177
Defense Elements	p. 180
Non-Defense Elements of the Intelligence Community	p. 181
Executive Order 12333: Selected Authorities and Constraints	p. 182
Intelligence and Law Enforcement Collaboration	p. 185
Statutory and Policy Barriers	p. 185
Post-9/11 Actions to Remove Barriers to Counterterrorism Collaboration	p. 187
Challenges in Sharing Intelligence with Law Enforcement	p. 189
Information Sharing and Protection of Sources and Methods	p. 191
Legislation	p. 191
Executive Directives Relevant to Sharing and Protecting Intelligence	p. 192
Leaks	p. 195
Protecting Classified Information in Court	p. 196
Covert Action	p. 197
Intelligence Oversight	p. 201
Executive Oversight	p. 201
Judicial Oversight	p. 203
Legislative Oversight	p. 204
Conclusion	p. 206
National Security Reform	p. 219
21st-century National Security Threats Require Seamless Integration of Executive Branch Departments and Agencies	p. 218
The National Security Council System	p. 220
The National Security Council System's Inadequacy for 21st-century Threats	p. 222
Options for Reforming the National Security Council System in Light of the Separation of Powers	p. 225
Updating the Counterterrorism Toolkit: A Brief Sampling of Post-9/11 Surveillance Laws and Authorities	p. 233
General Procedural Requirements for Criminal Surveillance	p. 233
Procedural Requirements to Conduct Criminal Surveillance Have Evolved to Balance Public Safety and Individual Liberty	p. 233
Government Surveillance Laws Prior to 1978	p. 234
Communications Act of 1934	p. 235
Title III of the Omnibus Crime and Control and Safe Streets Act of 1968	p. 235
Foreign Intelligence Surveillance Act of 1978	p. 236
Background	p. 236
FISA Surveillance: 1978-2001	p. 237
Expansion of FISA Surveillance Post-2001: The PATRIOT Act and IRTPA	p. 238
Expansion to Permit Roving Wiretaps (PATRIOT Act)	p. 238
Expansion to Permit Surveillance of "Lone Wolf" Terrorists (IRTPA)	p. 240
Expansion to Permit Collection of "Any Tangible Thing" (PATRIOT Act)	p. 241
Expansion of FISA Surveillance Post-2001: The Protect America Act of 2007 and the FISA Amendment Act of 2008	p. 242
The Protect America Act of 2007	p. 243
The FISA Amendments Act of 2008	p. 245
National Security Letters	p. 246
Expansion of NSLs under the PATRIOT Act (Section 505)	p. 246
Controversy over PATRIOT Act Expansion of NSLs	p. 247
Solutions and Amendments to NSL Provisions	p. 247
NSL Procedures and Problems	p. 248
Conclusion	p. 249
Index	p. 273
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Amazon no longer offers textbook rentals. We do!

The Law of Counterterrorism

The Law of Counterterrorism

9781614380375

1614380376

Summary

Author Biography

Table of Contents

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