Chapter Thirteen

Crimes Against the State

Joel Samaha

Chapter Thirteen: Learning Objectives

Understand how defining and applying crimes against the state reflects the enduring idea of balancing security and freedom during wartime.

Know that treason is the only crime that is defined in the Constitution, is a fundamental weapon against present allegiance and support to foreign enemies, and is very difficult to prove because of it’s history.

To know the definition of other ancient crimes of disloyalty: sedition, sabotage and espionage

Appreciate that crimes against potential terrorist attacks are subject to the limits placed on traditional criminal law.

Know that the most commonly prosecuted crimes against the state since September 11, 2001 have involved alleged terrorists or terrorist organizations.

Appreciate that “providing material support or resources” is open to constitutional challenges.

Applying Old and New Laws to New Threats

Older Laws• Treason• Sedition• Sabotage• Espionage

New Laws• Use of Weapons of Mass Destruction• Acts of Terrorism Transcending National

Boundaries• Harboring or Concealing Terrorist• Providing Material Support to Terrorists

Treason Article III, Section 3 U.S. Constitution

(only crime in constitution)• Levying war against United States• Adhering to enemies of United States

Giving aid and comfort • Conviction requires

testimony of two witnesses to same overt act, or confession

Treason (cont) Law found in U.S. Constitution

reflects the debate and predicament of the drafters of the Constitution (themselves traitors of England)

Limited treason law Limits on prosecution of treason built

into Constitution

Treason (cont.) Treason actus reus

• Levying war against U.S.• Giving aid and comfort to enemies of U.S

Treason mens rea• Intentionally giving aid for purpose of

betraying U.S.

Treason (cont.) Cases since Revolution

• Ethel Rosenburg, convicted of conspiring to give atomic bomb secrets to Soviet Union (1951)

• U.S. v. Cramer (1945) Government failed to get conviction

notwithstanding eyewitness accounts of two FBI agents regarding a conversation they saw Cramer have with two “saboteurs”

Sedition Stirring others up to overthrow the

government by violence Advocating violent overthrow of the

government Seditious speech

• Urging overthrow in speeches Seditious libel

• Urging overthrow in written materials

Sedition Seditious conspiracy

• Agreeing to overthrow• Smith Act (1940)

Congress made it crime to conspire to teach or advocate overthrowing the government by force

Crime to be a member of a group that advocated the violent overthrow of the government Dennis v. U.S. –Convictions of communist party

members upheld against First Amendment challenge• 2006 seditious conspiracy requires

conspiracy that advocates violence

Sabotage Destroying or damaging property for

purpose of interfering with or hindering preparations for war and defense during national emergencies

2006 U.S. Criminal Code, Title 18, Part I, Chapter 105, Section 2153• Actus reus: injure, destroy, contaminate,

infect….• Mens rea in code not clear: willfully, Intent

to, reason to believe…

Espionage Spying 2006 U.S. Code, Title 18, Chapter 37, Section

794 Espionage during Peace

• Turning over or attempting to turn over information about national defense to any foreign country with the intent or reason to believe that the information is to be used to hurt U.S. or help foreign country

Espionage during War• Collecting, recording, publishing, or

communicating any information about troop movements, ships, aircraft, or war material and any other information which might be useful to the enemy

Espionage Act Today Since 2009, the US government charged 6

government employees under this act.• Bradley Manning• Thomas Drake• Shamai Leibowitz• Stephen Jin-Woo Kim• Jeffrey Sterling• John Kiriakou

Anti-Terrorism Crimes Source

• Anti-terrorism and Effective Death Penalty Act (1996)(AEDPA) Response to Oklahoma City Bombing

• Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (U.S.A. PATRIOT ACT) Extended, embraced and modified, AEDPA Response to attacks on U.S. September 11, 2001

• Intelligence Reform and Terrorism Prevention Act 2004 (IRTPA) Congress’ attempt to clarify, make less ambiguous crimes

after challenges to AEDPA Humanitarian Law Project v. Reno (2000)

Humanitarian Law Project v. Mukasey (2009)

Anti-terrorism Crimes Use of certain weapons of mass

destruction Acts of terrorism transcending

national boundaries Harboring and concealing terrorists Providing material support to

terrorists Providing material support or

resources to designated foreign terrorist organizations

Anti-terrorism Crimes (cont.) International terrorism

• Violent acts or acts dangerous to human life• Committed outside the U.S.• Would be crimes if they were committed

inside the U.S.• Are committed, or appear to be committed,

with the intent To intimidate or coerce a civilian population To influence the policy of a government by

intimidation or coercion; To affect the conduct of a government by mass

destruction, assassination, or kidnapping

Discussion ActivityReview the link below regarding the E-verify program

Do you think this is a beneficial program?How can the use of this program aid in the

fight against terrorist activity in the United States?

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=e94888e60a405110VgnVCM1000004718190aRCRD&vgnextchannel=e94888e60a405110VgnVCM1000004718190aRCRD

Harboring or Concealing Terrorists

Whoever harbors or conceals (actus reus)

Any person he knows, or has reasonable ground to believe (mens rea)• has committed one of several offenses

relating to terrorism including chemical and biological weapons, nuclear weapons, energy and airport facilities, etc

Use of Weapons of Mass Destruction

Life imprisonment (or capital punishment if someone died) to• Use• Threaten to use• Attempt or conspire to use• Weapon of mass destruction (any

destructive device) • against

a U.S. citizen outside the U.S. Any person or property in the U.S. Property owned leased or used by U.S.

Government Property owned or leased by foreign government

inside the U.S.

Providing Material Support to Terrorists and/or Terrorist Organizations

Initially enacted as part of AEDPA Embraced by Patriot Act Federal felony to provide, attempt, or

conspire to provide material support or resources to commit a long list of federal crimes • Aimed at providing support to individual

terrorists• Or providing support to designated foreign

terrorist organizations.

Providing Material Support to Terrorists and/or Terrorist Organizations (cont.)

Proximity crime• Close to other crimes (the 44 federal crimes

terrorists and terrorist organizations might commit)

Aim at nipping terrorism in the bud Case holdings tend to indicate that this

provision is unconstitutional John Walker Lindh –challenged law on vagueness

grounds, but ended up pleading guilty Humanitarian Law Project v. Reno (2000)

9th Circuit held that the provision violated constitution because several terms included were vague

Providing Material Support to Terrorists and/or Terrorist

Organizations (cont.) IRTPA enacted to amend the

provisions of AEDPA on providing material support which were held unconstitutionally vague

Humanitarian Law Project v. Mukasey (2009) examined the IRTPA’s new language

Top Terrorist Plots Cases Top plot include defendant’s whose actions

were inspired by jihadist ideas Homegrown terrorists

• 81% of the defendant’s in the top 50 plot cases were legal US residents

Prominent number of cases material support cases

Discussion Activity

Review the link below regarding “Homegrown” terrorist activity in the United States

What surprised you about the information in this article?

Do you feel the United States should be putting more efforts into seeking out groups outside the jihadist ideology?

Discuss what, if anything, you took from this article.http://www.cnn.com/2012/05/03/opinion/brooks-bridge-homegrown-terrorists/index.html

Case: Holder v. Humanitarian Law Project

Facts: Does the providing material support the statute which defines the crime as “knowingly provide material support or resources to a foreign terrorist organization” violate the First Amendment freedom of speech and assembly rights?

Issue: Did they provide material support to terrorist organizations?

Holding: Supreme Court decided that as applied to the facts of the case in Holder v. Humanitarian Law Project that the “material support” for terrorist organization was neither constitutionally vague nor did it violate First Amendment speech and assembly rights.

Discussion ActivityReview the link below regarding Homeland Security

Discuss the mission of Homeland SecurityDiscuss what improvements the development of

Homeland Security has given to the United StatesDiscuss what agencies fall under the Homeland

Security umbrellaHow do the various agencies work together to

enforce the mission of Homeland Security?http://www.dhs.gov/how-do-i/by-type