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Sunday, September 11, 2011


Terrorism as Treason: US Citizens and Domestic Terror
8:09 AM ET

Lauren Prunty, St. John's University School of Law Class of 2012, is the author of the third article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. She writes on federal anti-terrorism law and the benefits of prosecuting domestic terrorists for treason...


In August 2010, Hawo Mohamed Hassan, a 63-year-old woman from Minnesota, was arrested and charged along with 13 other members of the Somali community for providing material support to a terrorist organization. Hassan went door-to-door collecting charitable donations of food, medical supplies and other necessities in an effort to bring humanitarian aid to the people of war-torn Somalia. Nonetheless, the US Department of Justice (DOJ) indicted Hassan and the others on charges of channeling funds and supplying fighters to the militant Somali group al-Shabab. In other words, for providing "material support" to terrorists. While Hassan has maintained that she did not know the funds were being channeled to al-Shabab, this is of little importance to the DOJ, as acts of terrorism can be unintentional under the Patriot Act, signed into law by President George W. Bush.

Under current anti-terrorism statutes, "material support" is broadly defined. It does not require that the actor either intend to or know they are funding terrorism. This means that a person like Hassan can be found to materially support terrorism without ever knowing she did so. Hassan has declared her innocence. However, she has also admitted to raising the funds and, unfortunately, there is no distinction in the eyes of the law.

In October 2011, Hassan will face trial in a federal court on charges of conspiracy and providing material support to a terrorist organization. If she is convicted, she may face a life sentence. However, under the proposed Terrorist Expatriation Act, she could instead be subjected to an arguably more grave possibility; the recision of her US citizenship—a punishment far worse than prison, without a trial or due process protections that are mandated by the Constitution.

In May 2010, Senators Joe Lieberman and Scott Brown proposed an addition to the current expatriation statute, making the provision of material support of resources to a foreign terrorist organization an action for which a US citizen may lose his or her citizenship. The proposed amendment relies on the same broad definition of material support found in the anti-terrorism statutes. The bill seeks to bring existing federal law concerning expatriation up-to-date by including provisions applicable to the current War on Terror, such as allowing the State Department to revoke the citizenship of people suspected of allying themselves with terrorist organizations. As Senator Lieberman stated, the current War on Terror involves "fighting an enemy who doesn't wear the uniform of a conventional army or follow the law of war."

It is undoubtedly true that today's War on Terror falls outside the lines of traditional warfare, and perhaps we need to look at today's enemies in a new light. However, it is also important to remember that today's enemies may often be US citizens, fighting against our country from within. For example, Faisal Shahzad, the Times Square Bomber, planned and attempted to commit acts of war against his own country. Nonetheless, as a US citizen he was afforded the rights and protections guaranteed by the Constitution. However deplorable and reprehensible the actions of domestic terrorists may be, they are still US citizens and their constitutional rights must be honored. Otherwise, the rights and privileges of US citizenship ultimately become meaningless. Legislation that seeks to revoke an individual's citizenship before a criminal conviction, or before they are afforded a trial and due process, is quite simply unconstitutional.

Despite the changing nature of today's warfare, a domestic enemy is anything but new. Concerns regarding treason, the only crime listed in the Constitution, date back to the days of Benedict Arnold and the Founding Fathers themselves. The Constitution defines treason as an act of "levying war against the United States." Historically, during times of conventional war, an individual aiding the enemy by providing information, support or other resources would be subject to prosecution for treason. However, in the twenty-first century, questions of war and treason in the US do not involve conventional enemies. Rather, treason today takes the form of Faisal Shahzad or Farooque Ahmed, who attempted to bomb the DC Metro, and other domestic terrorists, whose actions are tantamount to waging war against the US.

If we recognize domestic terrorism as the modern day incarnation of treason, the proposed Terrorist Expatriation Act is both redundant and unnecessary. In addition to being constitutionally invalid, the proposed subsection merely reiterates federal expatriation law that has been in place since the 1940s, and under which an individual may be stripped of their citizenship following a trial and conviction for the charge of treason. In looking at the future of both domestic and foreign policy, the US must recognize that modern day terrorists who attack their homeland are in fact committing treason. Today's world no longer involves Benedict Arnold or Russian double agents, rather treason today has taken on the form of domestic terrorism and individuals that levy war against the US and advocate for the overthrow of the nation.

Lauren Prunty graduated from Villanova University in 2007 with a major in political science and a minor in business. She is the Managing Editor of the Journal of Civil Rights and Economic Development.

Suggested citation: Lauren Prunty, Terrorism as Treason: US Citizens and Domestic Terror, JURIST - Dateline, September 11, 2011, http://jurist.org/dateline/2011/09/lauren-prunty-domestic-terrorism-treason.php.




This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org






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Sunday, September 11, 2011


Prosecuting Terrorism: Maintaining a United Criminal Justice System
8:09 AM ET

Christie Tomm, St. John's University School of Law Class of 2012, is the author of the second article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. She writes on the need to maintain a single justice system in prosecuting alleged foreign terrorists...


After a decade of uncertainty, the Obama administration recently announced that Khalid Sheikh Mohammed would be tried in a military tribunal, as opposed to federal court. Until the death of Osama Bin Laden, Mohammed was the person most directly involved in the 9/11 attacks apprehended by US authorities. As such, his prosecution would function as a symbol of much-awaited justice for those Americans whose lives were devastated by the horrific events of that day. However, in deciding to try Mohammed in a military tribunal, that justice will be muted and its significance undermined.

The US government set a dangerous precedent when it passed the Military Commissions Act of 2006 (MCA). In doing so, it gave another governing body, one that is not required to adhere to the fundamental rights outlined in the Constitution, jurisdiction to determine the guilt or innocence of non-citizens suspected of terror-related crimes. For the Constitution to continue to serve as a fundamental governing principle nationally and internationally, its validity and dominance in the federal criminal justice system should never be questioned. To ensure this, when a person, citizen or non-citizen, is charged with any crime, from petty larceny to tax evasion or terrorism, there can be only one set of rules that govern what rights the defendant is entitled to.

The MCA is contrary to the principles established by the US during more than 200 years of common law. The MCA allows military tribunals to admit into evidence confessions that do not respect an individual's Miranda or Fifth Amendment rights, and the MCA does not require that a terror suspect be given a trial to determine his guilt once he is deemed an enemy combatant, essentially allowing for his indefinite detention. However, despite the fact that the federal criminal justice system does provide these fundamental rights, it is more than adequately able to handle the trials of suspected terrorists. The executive branch, through its specially trained district attorneys, FBI agents and terrorist task forces, is prepared to deal with the particular challenges that come with investigating and trying a suspect that is not a US citizen, likely to be uncooperative and to evoke controversy and intense emotion in the public forum.

The federal criminal justice system also has procedural benefits, such as well-established sentencing guidelines with longer minimum sentences for terrorism-related crimes and the district attorneys have more power to negotiate plea deals. Furthermore, there is a greater likelihood that other nations will investigate intelligence gathered from suspected terrorists when they are being tried in a more trusted federal court system. Additionally, federal courts also have the benefit of the public-safety exception recognized by the US Supreme Court in Quarles v. New York, which resolved Congress's concern that the Fifth Amendment right not to self-incriminate was an unmanageable burden on the prosecution of suspected terrorists. Under the public-safety exception, when the police are aware of a danger to the public that needs to be resolved immediately, they can ask suspects about the risk without Mirandizing them, and the statements will still be admissible at trial. Faisal Shahzad, the "Times Square Bomber," was interrogated under the public-safety exception, ultimately pleading guilty to the attempted bombing and then sentenced to life in prison.

In spite of these facts, Congress turned away from the federal criminal justice system and invoked the rules of war, which have not been considered since World War II, to create an alternate justice system and rules of criminal procedure. However, in doing so, Congress has opened the floodgates. This approach was never necessary to begin with in light of the adequacy of the federal criminal justice system. Furthermore, going forward there are grave concerns regarding the impossibility of limiting the MCA's use only to suspected terrorists that are foreign aliens. If the US is going to demand high human rights standards of other nations, it must meet them itself. The only way to do this is to exclusively use the federal criminal justice system in order to convey the confidence that the US can, and will, provide justice to those wronged while guaranteeing certain fundamental rights to defendants that are still presumed innocent. In no instance would such a statement have been more significant than in Khalid Sheik Mohammed's case.

Christie Tomm is a graduate of Swarthmore College with degrees in economics and history. Tomm is the author of the note "The U.S. Criminal Justice System: Protecting Constitutional Rights and National Security," which will be published in the forthcoming issue of the Journal of Civil Rights and Economic Development.

Suggested citation: Christie Tomm, Prosecuting Terrorism: Maintaining a United Criminal Justice System, JURIST - Dateline, September 11, 2011, http://jurist.org/dateline/2011/09/christie-tomm-prosecuting-terrorism.php.




This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org






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