CHOICES OF RESPONSE

SEE ATTACHED CHAPTERReaction Paper must be in full APA style and format and be no less than 800 words (excluding the separate cover, abstract, and reference pages). The paper must include a cover/title page, a separate abstract page with keywords, in-text citations, properly placed page numbers, running heads, and a separate reference page identifying all sources. The abstract paragraph must be no less than 75 words. Your Reaction Paper must address at least one full chapter assigned for the module in the course outline. No more than 25% of each written assignment in this course may be attributed to referenced sources. Your papers must be 75% original thought. Again, your cited work and quotations must not exceed 25%. Failure to properly use in-text citations or required quotation formatting will be considered evidence of potential Academic Honor Code violations. The submission of writings from prior courses, classes, schools, colleges, or universities to fulfill assignment requirements in this class will be referred as a potential Academic Code Violation. It is strongly suggested you follow the following logical flow in presenting your reaction paper: critical overview of the entire reading, significant facts or information disclosed, and conclusions based upon inductive or deductive reasoning. A Reaction Paper is designed to develop and sharpen your critical thinking, cognitive skills, and problem-solving abilities, as well as your writing skills. Your objective in writing this assignment is to clearly articulate your assessment of the information presented by the author(s) and to formulate and clarify your position on or reaction to the writings. Avoid “I will” and “My” paper will” type constructions in your writings. In other words, the use of “I” and “My” in your papers must be avoided.SEE ATTACHED CHAPTERReaction Paper must be in full APA style and format and be no less than 800 words (excluding the separate cover, abstract, and reference pages). The paper must include a cover/title page, a separate abstract page with keywords, in-text citations, properly placed page numbers, running heads, and a separate reference page identifying all sources. The abstract paragraph must be no less than 75 words. Your Reaction Paper must address at least one full chapter assigned for the module in the course outline. No more than 25% of each written assignment in this course may be attributed to referenced sources. Your papers must be 75% original thought. Again, your cited work and quotations must not exceed 25%. Failure to properly use in-text citations or required quotation formatting will be considered evidence of potential Academic Honor Code violations. The submission of writings from prior courses, classes, schools, colleges, or universities to fulfill assignment requirements in this class will be referred as a potential Academic Code Violation. It is strongly suggested you follow the following logical flow in presenting your reaction paper: critical overview of the entire reading, significant facts or information disclosed, and conclusions based upon inductive or deductive reasoning. A Reaction Paper is designed to develop and sharpen your critical thinking, cognitive skills, and problem-solving abilities, as well as your writing skills. Your objective in writing this assignment is to clearly articulate your assessment of the information presented by the author(s) and to formulate and clarify your position on or reaction to the writings. Avoid “I will” and “My” paper will” type constructions in your writings. In other words, the use of “I” and “My” in your papers must be avoided.
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CHOICES OF RESPONSE
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CHOICES OF RESPONSE
SYNOPSIS
§ 2.01 The Institutional Responses to Violence
[A] The Intelligence Community
[B] The Law Enforcement Approach
[C] The Military Option
[D] Separation of Functions
§ 2.02 Detentions Without Trial
[A] Aliens and Visa Violations
[B] Material Witness Warrants
§ 2.01 THE INSTITUTIONAL RESPONSES TO VIOLENCE
Western society, if not all societies, has formulated three primary institutional responses to
threats and acts of violence:
1. Prevention — combination of protective devices and persuasion
2. Prosecution — traditional civilian criminal processes
3. Military action — use of lethal force to subdue and control
Each of these modes of response carries its own limitations to ensure adequate controls on
government action. Each was part of the U.S. bag of tools in 2001, but for a variety of reasons the
media and politicians chose to emphasize the military option and to blend prevention with
prosecution. All three routes are still available and should be used, but there are open questions
about whether they should be blended or confined each to its own arena with its own limitations.
It could be a mistake to combine these functions just as it is a mistake to combine other functions
of government. Each response is subject to controls that have developed over extended periods of
time, controls evolved from reasons and traditions that are not lightly to be set aside. That there
are points of intersection and overlap among the three does not mean that some degree of
separation is not desirable. For example, a long-standing statute of the U.S., known as the posse
comitatus provision, bars the military from engaging in domestic law enforcement. Similarly, court
orders allowing wiretaps on telephones were, and could be again, based on different standards for
preventive or prosecutorial uses.
To promote safety while limiting the intrusion of government into our lives, we need to
understand the framework of responses available to us. There is an interlocking set of
“communities” devoted to public safety within [36/37]government today. Similarly, there are
interlocking legal controls or restraints that operate both on the individual or group who
contemplates terrorist action and on the government agencies attempting to respond.
The U.S. government, more than most governments in history or even in the world today, has
divided and separated various units that deal with different aspects of public safety. The three
principal divisions which deal with violence are intelligence, law enforcement, and the
military.1 In a rather loose sense, their functions could be thought to form a spectrum of prevention,
prosecution, and warfare. There are many other agencies involved in public safety, primarily those
that deal with public health and response to emergencies.
The division of public safety into different units could be analogized to how individuals deal
with their own home safety. Think about the steps you take to guard against intrusions on your
own space. First, you lock your doors. This is a phenomenon of relatively recent vintage, and there
are many societies in the world today that still do not have locking doors. If this is not enough, and
you have the money, you install an electronic security system, and perhaps you have that system
wired to call armed guards at a signal of intrusion, or maybe you even go so far as to build a gated
community with guards at the entrance. All these are progressive steps of increasingly aggressive
preventive measures that you can take on your own or in conjunction with immediate neighbors.
Second, if you have been the subject of an intrusion, you may want to apprehend and punish the
intruder. In early stages of society, this might have been done by the individual acting alone or by
a family group, but for many centuries this function has been turned over to more or less formalized
community representatives and most recently to law enforcement agencies. Whether the purpose
is to disable the specific intruder or to deter others, punishment is the province of communal
groups.
Finally, if the community feels threatened as a group by some outside group, we move to the
level of armed conflict between politically defined groups. Again, in more “primitive” societies
these conflicts were often less deadly and widespread than is likely to be the case today, but the
concept of an organized military response that operates across more or less defined borders
between recognized political groups is ancient.
These three steps reflect roughly the three divisions of prevention, enforcement, and military
action. Each stage carries not only its own culture and modes of operation, but is also constrained
by a set of limiting rules. The civil liberties implications of prevention (such as limits on
demonstrations or searching persons entering an airport) may differ somewhat from the civil
liberties aspects of criminal law enforcement. The limitations on military action are among the
most elusive of legal concepts [37/38]because they arise rather infrequently and because the
enforcement mechanisms for those limits themselves are somewhat tenuous.
The three modes interact with each other to form something like a tripod on which public safety
rests. The tripod would not stand as well without all three, and the strength of each depends not
only on its own structure but on the controls that keep it in place.
Prior to 9/11, the Department of Justice and related agencies had been pursuing the prosecutorial
option for years and were beginning to respond to terrorism just as effectively as we can respond
to domestic violence, sexual assaults, or any other form of socially promulgated violence — that
is to say, not to anyone’s genuine satisfaction but with enough commitment to protect some
potential victims.2 The Departments of State3 and Treasury4 with their related agencies had been
engaged in preventive measures such as interception of illegal imports, tracking of illicit financial
transactions, participation in international law conferences, funding of economic development in
beleaguered areas of the world — again, not a completely satisfactory response but one with some
promise of long-term gains. Meanwhile, the Department of Defense and its related agencies had
been gathering intelligence and placing assets in hot spots to be prepared for some military
involvement as needed.
Each response carries its own limitations, both legal and practical. Ordinary criminal law
enforcement is widely perceived to be an inadequate [38/39]response to international terrorism for a
number of reasons. A nation’s jurisdiction to prescribe criminal sanctions for an action depends
on either a nexus with that action or jus cogens (erga omnes). Pursuit and capture in another state
can create enormous diplomatic issues. Medium-scale, long-term operations raise stakes above
ordinary crime. The public expects interdiction more than post-hoc punishment. A terrorist group
can be infiltrated only at great risk.
Military action is constrained by the law of war, now more often known as the law of armed
conflict (LOAC). With military action, the “war” metaphor overreaches for a number of reasons
and the language just does not fit the situation — there is no cohesive enemy, no territorial
objective, no single peace resolution available. And if terrorist operatives were enemy combatants,
then it could be asserted that actions they take against military targets would be legitimate and not
punishable. On the other hand, there certainly are appropriate uses of military force in pursuit of
terrorists. The idea of a limited military engagement or “military operation other than war”
(MOOTW) is more appropriate than the language of war.
Prevention through the use of intelligence information relies on government information about
private persons, which raises secrecy and privacy concerns. Use of that information for either
detention or other punitive measures also raises due process problems.
[A] The Intelligence Community
By both Executive Order and statute, the Intelligence Community is defined as consisting of the
CIA, the eight intelligence agencies within the Department of Defense (DIA, NSA, NRO, NIMA,
and the intelligence agencies (IAs) of the four uniformed services), and portions of five executive
departments (State, Treasury, Homeland Security, Energy, and FBI).5
Until recently, under the National Security Act,6 the CIA was formally the lead agency for
coordination of all intelligence. Amendments to the IC structure in 2004, including creation of a
Director of National Intelligence, may or may not affect the actual operation of the IC.
There are many interesting assessments available on the internet of the U.S. intelligence effort.
In 1996, there was a presidential review of intelligence operations that resulted in enhancing the
role of the Defense Department.7
[39/40]
About 80% of the total intelligence budget of the U.S. is in the Defense Department, which first
emphasized technological intelligence to track and identify military targets and then shifted that
technology to monitoring communications traffic. That factor, plus budget cuts at the end of the
Cold War, plus the fact that most CIA personnel were trained in the ways of Soviet intelligence
rather than the distinctly different culture of terrorist organizations, all combined by the late 1990s
to leave the U.S. less than adequately prepared to infiltrate or monitor terrorist organizations The
National Commission on Terrorist Attacks Upon the United States (9/11 Commission) put it this
way:
During the Cold War, intelligence agencies did not depend on seamless integration to track
and count the thousands of military targets — such as tanks and missiles — fielded by the
Soviet Union and other adversary states. Each agency concentrated on its special mission,
acquiring its own information and sharing it via formal, finished reports. The Department
of Defense had given birth to and dominated the main agencies for technical collection of
intelligence.9
The Commission commented that the end of the Cold War also meant budget cuts, that the CIA
had become highly risk averse and had no personnel trained for infiltrating terrorist organizations,
and that the “intelligence community’s confederated structure left open the question of who really
was in charge of the entire U.S. intelligence effort.”10
The Commission made specific recommendations addressing the structure of the Intelligence
Community:
The United States has the resources and the people. The government should combine them
more effectively, achieving unity of effort. We offer five major recommendations to do
that:
• unifying strategic intelligence and operational planning against Islamist terrorists across the
foreign-domestic divide with a National Counterterrorism Center;
• unifying the intelligence community with a new National Intelligence Director;
• unifying the many participants in the counterterrorism effort and their knowledge in a
network-based information-sharing system that transcends traditional governmental
boundaries;
• unifying and strengthening congressional oversight to improve quality and accountability;
and
• strengthening the FBI and homeland defenders.11
[40/41]
When bills were introduced in Congress to implement these recommendations, political
controversy arose over whether the new NID would have full budgetary and personnel control over
the existing units within the Department of Defense. The Commission’s recommendation for a
Director of National Intelligence to sit above the Director of Central Intelligence was designed to
relieve the DCI of some of the office’s conflicting job descriptions by assuming overall
coordination of the Intelligence Community. On December 17, 2004, Congress passed a bill
incorporating most elements of the Commission recommendations. The DNI is to have some
degree of involvement with the funding and deployment of intelligence resources in the
Department of Defense, and also to have consultation authority with domestic agencies such as
the FBI.12
On a more substantive plane, the Commission’s recommendation to “unify across the foreigndomestic divide” runs counter to the mandate of EO 12,333 issued by President Ronald Reagan on
December 4, 1981.13 Unifying raises two concerns, each of which has both policy and value
dimensions. EO 12,333 was based on some of the work of the so-called “Church Commission,”
which held hearings and issued reports from 1973-1976 primarily on the activities of the CIA.
Although a major focus of the recommendation for a foreign-domestic divide was the protection
of civil liberties of U.S. persons, another aspect was the belief that the accumulation of too much
power in one place could make that agency inefficient by reducing the need for it to justify its
actions to other agencies.
Second, and related to the first, the unification of all intelligence gathering would eliminate
competition within the government for attention and resources. Not all competition is good, but
Judge Posner makes a strong argument that it would be a good thing in this context.14
These are critical issues for the structure and control of intelligence gathering, which will in turn
dictate legal arguments over the validity of investigatory techniques. The prevention leg of our
tripod involves protecting the homefront through various devices, ranging from ordinary locks to
ultra-sophisticated biotechnology. The major problem with this approach is that security relies on
information, and information means invasion of privacy. The tension between security and privacy
leads to First-Amendment-based limits on the degree to which government can intervene into a
terrorist plot before harm occurs.
[41/42]
A second problem with the prevention strategy is that to be most effective, it should include
attempts to engage the issues that are enraging the terrorist. Ideally, the terrorist would yield to the
logic and compassionate persuasion of violence avoidance, but the very statement of the problem
assumes that moral suasion has been tried and failed. To engage the terrorists’ issues on their
merits, a tightrope must be walked, not appearing to reward terrorism by yielding to the terrorists’
demands while defusing the hatred by recognizing and acceding to their legitimate demands.
Prevention is directed obviously to the future. It consists primarily of gathering and analyzing
intelligence data to determine who is about to commit what kind of harm. The prevention step
itself may consist of an arrest in the nature of a conspiracy charge or unlawful possession charges,
which is where prevention and prosecution overlap, or it may consist instead of mere warnings or
even attempts to “turn” a conspirator to become an informant. Thus, when prevention services
successfully “break a terrorist cell,” they may prosecute, make a public statement that a threat has
been eliminated, or secretly leave the cell in place for future monitoring.
[B] The Law Enforcement Approach
The U.S. had successfully prosecuted a number of terrorism cases prior to 9/11. Among the
most famous were the first World Trade Center cases and the conspiracy case against Sheikh
Rahman and some of his followers. The WTC prosecution resulted in conviction of four
conspirators.15 Although the alleged mastermind Ramzi Yousef fled the country, he was later
apprehended in Pakistan and prosecuted for other crimes. In a separate prosecution, Sheikh
Rahman and nine of his followers were prosecuted for conspiracy to blow up tunnels and bridges
in the New York area.16
In the year 2000, there was a pending indictment in the Southern District of New York against
Osama bin Laden and a number of others for the bombing of the Embassies in Kenya and
Tanzania.17 Several defendants in the embassy bombing case eventually pleaded guilty, offered
differing levels of cooperation, and were sentenced to various terms in prison. El-Hage and three
other defendants were convicted after trial and sentenced to life imprisonment. In failing to come
to a unanimous recommendation for the death penalty, the jury noted that some of its members
believed that life imprisonment was a worse punishment than death.
Other successful prosecutions of terrorists had included Fawaz Yunis, who hijacked Royal
Jordanian Flight 402 in 1985 and blew up the plane after letting the passengers go.18 The only
apparent connection between this incident and the U.S. was that two American citizens were on
board [42/43]the plane and thus were held hostage for a period of time during the incident.
More directly related to U.S. interests was the prosecution of Omar Rezaq for aircraft piracy. In
the words of the D.C. Circuit:
In 1985, Rezaq hijacked an Air Egypt flight shortly after takeoff from Athens, and
ordered it to fly to Malta. On arrival, Rezaq shot a number of passengers, killing two of
them, before he was apprehended. Rezaq pleaded guilty to murder charges in Malta, served
seven years in prison, and was released in February 1993. Shortly afterwards, he was taken
into custody in Nigeria by United States authorities and brought to the United States for
trial.19
Although one of the murdered passengers was American, Rezaq was not prosecuted for murder
of United States nationals but was charged with air piracy in which death resulted, a potential
capital offense.
Ramzi Yousef was involved in the first World Trade Center bombing, indeed was probably the
mastermind of the operation, but was arrested in Pakistan after attempting to orchestrate a bombing
of several airplanes in the Philippines. He was brought by U.S. authorities to the U.S. and charged
with conspiracy to destroy U.S. commercial airliners as well as one count of completed bombing
of a Philippines Airline craft bound for Tokyo.20
Despite this history of successful prosecutions and the presence of well-trained prosecutorial
teams within the U.S. Justice Department, the Administration has chosen to emphasize the military
option and the President’s role as Commander-in-Chief of the armed forces. One study says that
the number of terrorism prosecutions spiked after 9/11 but has since declined.21 What might
explain a decline in prosecution of terrorism cases in the U.S.? a lack of interest? movement of
resources and personnel to other matters? that there have been no terrorist acts in the U.S. to
prosecute? that suspected terrorists have been the subject of rendition to other countries? that
federal priority has shifted dramatically to military action? Perhaps a combination of all of these
factors, and others unknown, has been [43/44]at work. The important question is whether the
criminal justice system is prepared to deal with prosecution of terrorist plots.
It is often said in the Anglo-American legal system that it is better that a guilty person go free
than that an innocent person go to prison. The entire structure of our system is loaded to protect
the accused against government over-reaching. This tilt starts with the burden of proof (beyond a
reasonable doubt), extends through the manifold procedural protections of trial (right to counsel,
confrontation of witnesses, right against self-incrimination, right to a jury, double jeopardy),
includes some more substantive protections (protection against ex post facto legislation, freedom
of expression), and is subsumed under the general heading of due process of law. There is an
interesting debate that can be had over the question of the degree to which the single phrase “due
process” subsumes all the other specific guarantees of the Bill of Rights, but for present purposes
it is enough to emphasize that due process is the expression of a tradition stretching back to the
Magna Carta.
The principal values emphasized in all western criminal justice systems and now finding their
way int …
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