Anti Terrorism Crimes Lawyer

Criminal Defense Lawyer John T. Floyd believes that every person, regardless of race, religion or creed, deserves to be treated fairly, with respect, and given a complete and vigorous defense according to the Constitution and laws of the United States.  This belief is especially important when defending those suspected or charged with terrorism related offenses.

If you, a family member, or close friend are the target of a terrorism investigation by any governmental agency, typically FBI or ICE, it is imperative that you immediately consult with an experienced criminal defense lawyer. The moment you know, or reasonably suspect, that a criminal investigation has commenced, you should contact the John T. Floyd Law Firm. Do not speak to any investigator, or law enforcement support personnel, without legal counsel being present.  Cooperation, without legal counsel, can be a prelude to future difficulties and in some cases tantamount to a confession. Mr. Floyd has represented dozens of individuals who were targeted as suspects in terrorism related crimes. He understands these intrusive law enforcement investigations and is imminently qualified to deal with the intricacies of the government prosecutions that too often evolve from those investigations.  Mr. Floyd stands ready to defend you against the awesome powers of the government once it has targeted you in a terrorism-related offense, which can have devastating personal, financial and emotional implications.

Since 911, the government’s legal and quasi-political “war on terror,” along with the cascading social reactions to terrorism on American soil, has created significant tension between the legitimate need to conduct terrorism investigations and the historical constitutional mandate to protect basic civil liberties which are the hallmark of our free and open society. Fundamental constitutional protections such as the right to counsel and right to confront one’s accusers have been significantly eroded under the guise of public safety and social order. Other important due process rights (derived from longstanding United States Supreme Court precedents), such as the right of access to exculpatory or impeachment evidence that tends to support a claim of innocence, have been trampled upon.  Social bias and religious intolerance (the underpinnings of racism, bigotry and fear) have created a public climate which has allowed some unscrupulous law enforcement investigators and government prosecutors to use the “war on terror” for political reasons. Mr. Floyd will defend you against these bad faith government actions.

 In today’s uncertain social and bipartisan political climate, when even the whisper of terrorism related allegations triggers deep revulsion and scorn from the public, fear and abandonment from friends and co-workers and intense media attention, it is vitally important that dedicated criminal defense lawyers stand fast to their oath to protect the Constitution of the United States and zealously advocate on behalf of their clients in this deeply troubling social environment.  John Floyd has made that commitment and will stand firm.

           
Latest legal developments relative to defending against prosecutions in terrorism cases.

There have been two fairly extensive media studies concerning the U.S. Justice Department’s campaign to secure convictions on terrorism charges.

 First, the Washington POST in June 2005, in a two-part series by Dan Eggen and Julie Tate, found that Justice Department statistics relied upon by the Bush administration are “misleading at best.” President Bush, Attorney General Alberto R. Gonzales, and Gonzales’ predecessor John D. Ashcroft have repeatedly used the statistics to bolster its “war on terror.”

The statistics, covering the period between September 11, 2001 and late September 2004, claim that federal terrorism investigations produced more than 400 charges, over half of which result in convictions.

The POST study, however, revealed that only 39 people were actually convicted of crimes related to terrorism. The vast majority of the others were convicted of other minor crimes such as making false statements to either a grand jury or law enforcement agents, or violating immigration laws, or violating laws involving fraud. Of the entire list of people convicted, the average sentence was 11 months, according to the POST.

“Taken as a whole,” the POST reported, “the data indicate that the government’s effort to identify terrorists in the United States has been less successful than authorities have often suggested. The statistics provide little support for the contention that authorities have discovered and prosecuted hundreds of terrorists here. Except for a small number of well-known cases – such as truck driver Iyman Faris, who sought to take down the Brooklyn Bridge – few of those arrested appear to have been involved in active plots inside the United States.”

Of all those people charged as a result of Justice Department investigations during the three years following the 9/11 attacks, the POST found no “demonstrated connection” between 180 of them and terrorism or terrorist groups. Only nine of those charged, including Faris and 9/11 plotter Zacarias Moussaoui, had any link to the Al Qaeda terrorist network. A significant number of the remaining group of the 180 involved Colombian drug cartel cases, Palestinian supporters, and even Rwandan war criminals.

A large number of people caught up in these federal terrorism investigations, according to the POST, were named by anonymous informants, became victims of “suspicious circumstances
or bad luck – and have remained classified as terrorism defendants years after being cleared of connections to extremist groups.”

The 180 cases the POST identified as having no connection to terrorism does not include the terrorism suspects as Guantanamo Bay, secret locations around the world, the three suspects held in a military prison in South Carolina, or approximately 50 people detained as “material witnesses.”

Only three life sentences have been handled down to terrorist defendants: to Richard Reid who tried to blow up an airliner over the Atlantic Ocean; Masoud Khan, a Maryland man who traveled to Pakistan and sought to fight with the Taliban; and Zacarias Moussaoui, convicted of being an actual 9/11 plotter. Two more – Ahmed Abdel Sattar, a postal worker convicted of conspiring to kill and kidnap in a foreign country, and Ali Timimi, a Virginia spiritual leader convicted of encouraging others to attend terrorist camps – face life sentences.

A second study, conducted by the Transactional Records Access Clearinghouse (TRAC), an affiliate of Syracuse University in New York, concluded in September 2006 that prosecution in terrorism cases have returned to pre-9/11 levels. The TRAC study, reported in THE PULSE: PROGRESSIVE POLITICAL NEWS and the Washington POST, concluded that  “ … as many as nine out of 10 terrorism investigations do not result in prosecutions, that most charges are not related to terrorism and that only about a third of those prosecuted end up in prison” (reported THE PULSE).

TRAC pointed out that in 2002 federal prosecutors filed charges against 355 defendants in “international terrorism cases” but in 2005 the number had dropped to 45, fewer than the number in 2001, and only 19 charges were filed in the first eight months of 2006. Between 2001 and 2005, according to TRAC, federal prosecutors refused to bring charges in two-thirds of the nearly 1400 of the international terrorism cases referred to them by the FBI and other law enforcement agencies, and the rate of refusal increased to nine out of 10 cases in 2006. The prosecutorial decisions not to prosecute were attributable to either weak evidence or a total lack of evidence, reported TRAC.

LEGAL ANALYSIS

There is a paucity of reported terrorism cases that went to trial, resulted in a conviction, and whose results are reported in the federal reporters.

As the Washington POST and TRAC studies revealed, most “terrorism” cases resulted in guilty pleas to reduced charges, most of them minor charges resulting in an average of 11 months. Even the most serious and highly publicized terrorism cases involving John Paul Lindh, Jeffery Len Battle, and Richard Reid  ended with guilty pleas – and the “plea agreements” in those cases foreclosed any opportunity to appeal. (Even Moussaoui entered a pro se guilty plea.)

It can be reasonably concluded, therefore, that the primary strategy in terrorism cases of defense attorneys across the country is to negotiate a plea agreement to a reduced charge with a relative minor sentence. It can also be reasonably assumed that the attorneys can bolster their efforts to secure a plea agreement with vigorous pretrial attacks on the propriety of the law enforcement investigations that produced the charges and the sufficiency of the evidence federal prosecutors must depend upon to secure convictions.

Faced with these pretrial attacks by defense attorneys, and the natural prosecutorial reluctance to delve in matters of reputed national security, it appears that prosecutors are receptive to entering into plea agreements.  However, favorable pleas agreements only appear after zealous and effective representation by defense counsel who push for disclosure of classified evidence while preparing for trial

In the reported case involving Ramsi Yousef, and a number of co-defendants, convicted after two trials in New York for the 1993 World Trade Center bombing and a plot to blow up commercial airliners in the Philippines. See, United States v. Yousef, 327 F.3df 56 (2nd Cir. 2003)(147-page opinion). The defense strategies by the attorneys representing Yousef and his co-defendants were primarily procedural in nature: jurisdiction challenges, venue challenge on the Philippines charge, restrictions on discovery rights, failure to give Miranda warnings prior to securing statements from Yousef in the Philippines, attempts to sever co-defendants, and challenges to the 180-year sentences imposed.

In another case, United States v. Rahman, 188 F.3d 88 (2nd Cir. 1999), Omar Admad Ali Abdel Rahman was convicted in a seditious conspiracy to bomb office buildings, blow up tunnels and bridges in New York, and assassinate the President of Egypt and an Israeli citizen (a Zionism militant). Much like the attorneys in the Yousef, the attorneys in defense relied primarily on procedural and constitutional challenges to undermine the government’s case: motions to sever,  attempts to suppress telephone conversations, a seditious conspiracy enjoyed same protections available under treason clause, conviction of Muslim cleric violated religious freedoms guaranteed under First Amendment, illegal seizure of passports during a weapons search, informant’s involvement in crime violated due process, and denial of Jihad expert witness.       

These two high-profile cases indicate that traditional alibi and non-involvement defenses have not played a significant role in defending against terrorism prosecutions. The defenses in these cases simply tried to undermine the government’s case with constitutional (some very significant) and procedural challenges.

No clear defense strategy has emerged from the relative small number of high profile terrorism prosecutions. But what has surprisingly emerged is the U.S. Supreme Court’s refusal to dance to the Bush administration’s sophomoric song on terrorism.

In Rasul v. Bush, 542 U.S. 466 (2004) the Supreme Court confronted a case involving aliens being detained at Guantanamo Bay, Cuba. The Court said that the lower federal court had jurisdiction to hear a challenge concerning the fact of confinement raised by the aliens and the authority to decide conditions of confinement issues alleged by aliens under the Alien Tort Statute.

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004) the Court dealt with a case involving an American citizen being charged as an enemy combatant. The court held that due process required that such an individual be afforded a meaningful fact opportunity to contest the charges against him/her.

In Rumsfeld v. Padilla, 542 U.S. 426 (2004) the Supreme Court heard a case involving an enemy combatant being held in a Navy brig in Charleston, South Carolina. The court dealt with only two procedural issues: first, the Navy brig commander was the respondent in a 28 U.S.C. 2254 habeas corpus proceeding, and, two, the District Court in the District of Columbia did not have jurisdiction over the brig commander.

In Clark v. Martinez, 543 U.S. 371 (2005) the Court held that the government does not have the constitutional authority to hold an “inadmissible alien” indefinitely. The court held, first, the Immigration and National Act placed a time limit on how long an illegal alien can be held after a deportation hearing has been conducted and an “illegal” status determined, and, second, a reasonable time period is no more than six months. The court held these time constraints and protections apply to “inadmissible aliens.”

Finally, in Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006) the Court faced a long anticipated case involving Salim Ahmed Hamdan at Guantanamo Bay charged with terrorism and related offenses. In strong language, the High Court held that the Detainee Treatment Act did not deprive the court of jurisdiction in such cases; the military commission schedule to hear these cases did not have express authority under the act to do so; that the military commission violated the Geneva Convention; and that military procedures being utilized violated the Code of Military Justice.

The current trend seems to be away from homegrown terrorism prosecutions under the Anti-Terrorism and Effective Death Penalty Act and Patriot Act toward a focus on acts of terrorism transcending national boundaries under 18 U.S.C.A. Sec. 2232(b).

If this trend persists, a defense attorney will face uphill battles formulating an effective defense strategy in these cases. First, these cases generally involve a “conspiracy” which means there will be a government informant or a co-conspirator turned government witness; and, second, the cases will almost invariably have recorded telephone conversations and records evidencing involvement in the conspiracy. Combined with juries prone to convict, it is very difficult and in some cases nearly impossible to pursue traditional non-involvement/alibi defenses.

This all means that it is important for defense counsel to demand discovery of evidence and exculpatory material early and evaluate the merits of his case immediately.  If the attorney believes that his client, more likely than not, will be found guilty, he will have to assume a strategy of attacking the propriety of the law enforcement investigation and fighting hard for declassification of evidence that might be helpful to the defense.  It is also important to continue with an aggressive press throughout the discovery process for full and complete access to material and witnesses that might provide useful information for the defense.  It is only after zealous advocacy and complete commitment to the client’s Fifth and Sixth Amendment rights to fair trial and the due process necessary to mount a proper defense that defense counsel can obtain the best possible plea agreement for a terrorism related client.

If after evaluating the evidence the attorney truly believes that the government cannot prove its case to a jury beyond a reasonable doubt, he will have to mount a full-court, frontal assault on every aspect of the government’s case, including all the discovery tactics discussed above, as well as attempt to secure favorable media coverage. The media is becoming increasingly receptive to these cases as disclosure after disclosure keeps coming out about how the Bush administration lied, suppressed, and distorted information about the “war on terror.”

 

2001
Total Cases:             79
Cases prosecuted:    53
Cases declined:       26
Declination rate:     33%

2002
Total cases:             268
Cases prosecuted:   118
Cases declined:       150
Declination rate:       56%

2003
Total cases:             232
Cases prosecuted:     53
Cases declined:       179
Declination rate:       77%

2004
Total cases:             213
Cases prosecuted:     60
Cases declined:       153
Declination rate:       72%

2005
Total cases:             210
Cases prosecuted:     33
Cases declined:       177
Declination rate:       84%

2006 (First nine months)
Total cases:              150
Cases prosecuted:      19
Cases declined:        131
Declination rate:        87%

Source: Transactional Records Access Clearinghouse at Syracuse University, New York.

First impression of the statistics demonstrate the over-reaction to the 9/11 tragedy. There was a law enforcement rush to develop “terrorism” cases. This initial law enforcement reaction prompted a re-evaluation process by U.S. Attorneys. They first saw that the FBI had not adequately developed the cases suitable for prosecution, and, second, they realized the rules of discovery would compel some disclosure of highly sensitive national security material. Some of the cases the U.S. Attorneys chose not to prosecute may have been real “terrorism” cases, but faced with prosecution of minor players and the threat of sensitive disclosure of classified information, they elected resolve those cases either by plea agreements to reduced charges or dismissals.

Illustrative Cases

In 2004 the United States Justice Department, under the direction of former Attorney General John Ashcroft, indicted a Palestinian activist named Muhammad Salah, and a co-defendant named Abdelhaleen Ashqar, in one of the highest profile cases in the Bush administration’s “war on terror.”

These two men, between 1988 and 1993, “ran a U.S.-based terrorist-recruiting and financing cell” that “financed the activities of a terrorist organization that was murdering innocent victims abroad, including American citizens,” according to Ashcroft.

The trial of the two men got underway in a federal courthouse last fall. Prosecutors were forced to drop a key charge against Salah – that he had sent a recruit to scout terrorist targets in Israel in 1999. Prosecutors dismissed that charge because was an uncover FBI informant whose credibility was not trusted by the prosecution team.

The key evidence against the defendants was a confession secured from Salah in 1993 while he was in custody of the Israeli secret police. In court papers, Salah described being “hooded, bound, deprived of sleep, housed in a refrigerator cell, threatened, physically abused, held incommunicado and denied access to a lawyer until he made oral statements and signed written statements in Hebrew, a language he did not speak or understand.”

Salah spent five years in an Israeli prison before being returned to the United States.

The trial court allowed prosecutors to introduce evidence of acts of terrorism committed against Israel by Hamas that between 1992 and 2004 (five of those years in which Salah was in an Israeli prison).

On cross examination, Salah’s attorney, Michael Deutsch, elicited evidence that since 1987 some 1400 Israeli soldiers and civilians have been killed while more than 5,500 unarmed Palestinians were killed.

“Are you not interested in the fact that Palestinians, unarmed Palestinian people, are killed at a rate of five times the number of Israelis are killed?” Deutsch asked the government witness.

The jury on February 11, 2007 acquitted the two defendants on the more serious charges of providing money and aid to Hamas but found them guilty on lesser charges.

“This [jury verdict] rejects the idea we can criminalize someone for resisting an illegal occupation in another country,” Deutsch told the Washington POST.

The government still tried to claim “victory” on the lesser guilty verdicts but they decisively lost the “war on terror” charge.

William Moffett, a defense attorney who has defended other accused terrorists, told the New York Times the government wanted to turn the “fight for Palestinian rights” in the Middle East “into a battle of criminal law in an American courtroom. The Bush administration cannot win this way by trying to make criminals out of people who are fighting for their freedom.”

The Chicago jury agreed.

Salah and Ashgar remain in custody on the lesser convictions which carry a maximum penalty of 20 years. Deutsch said he fully expects the government to seek the maximum penalty.

The Anti-Terrorism and Effective Death Penalty Act (1996) makes it a crime to give financial or other material support to a “foreign terrorist organization.” A person convicted under this act can be sentenced up to 15 years for a charity contribution to such an organization – even before the organization is designated as a “foreign terrorist organization” by the Secretary of State.

In 2002 the Justice Department issued a two-count indictment against the “Buffalo Six” – an alleged Al-Qaeda “sleeper cell” – for providing aid to a “foreign terrorist organization.” Five of the suspects were arrested in New York and another in Bahrain. The leader of the group was killed in Yemen by an unmanned CIA drone on November 4, 2002. A month later the uncle of one of the suspects was also arrested for allegedly funneling $3 million to Yemen in support of terrorist activity.

The government began to apply pressure, telling the defendants that they would be labeled “enemy combatants” and held in indefinite confinement. The strategy worked. One member of the group, Faysal Galab, became a government witness and in January 2003 was sentenced to seven years. That created a domino effect. Shafal Mosed, another defendant, pled guilty on March 24, 2003 and was sentenced to eight years. Yahga Goba pled guilty on March 25, 2003, and was sentenced to seven years. The other three defendants, Sahim Alwan and Yassin Taher and Mukhtar Al-Bakri, pled guilty in April and May of 2003. Taher received eight years, Alwan received nine years, and Al-Bakri received ten years.

In August 2004 Fawaz Damara, spiritual leader of Ohio’s largest mosque, was convicted of lying to American authorities about his connections to terrorist organizations. He was stripped of his citizenship and deported to Israel. His conviction was upheld by an American appeals court in March 2005.

Shahawar Matin Siraj, a Pakistani immigrant, was arrested in August 2004 for plotting to blow up the 34th Street Subway Station near Madison Square Garden He was convicted in May 2006. His lawyer put forth the defense that he was a dimwitted dupe. He was sentenced to 30 years on January 9, 2007.

Oregon attorney Brandon Mayfield was arrested in May 2004 shortly after the Madrid train bombings. He was arrested after Madrid police found a plastic bag with detonators caps in it with a fingerprint on it that the FBI matched to Mayfield. The FBI conducted physical and electronic searches of Mayfield’s home and law office He was released after the Madrid police realized the fingerprint on the plastic bag belonged to an Algerian. Mayfield sued the government. In November 2006 the government agreed to settle the civil rights lawsuit, paying Mayfield $2 million for the violation of his civil rights.

In 2003 Lyman Faris was arrested for threatening to blow up the Brooklyn Bridge. He was also threatened with the prospect of being labeled an “enemy combatant.” He pled guilty and in October 2003 was sentenced to 20 years in prison.

Another accused terrorist, Ali Saleh Kahlah al-Marri, who had been arrested in 2001 on document fraud charges, refused a plea bargain. He was declared an “enemy combatant” and placed in a military prison where he remains today.

Assem Hammoud, an Al-Qaeda operative, was arrested in April 2006. He admitted to plotting to blow up the transit tunnel between New York and New Jersey. His case is still pending.

Adgan Amin Hassoun and Mohamed Heshan Youssef were arrested on a ten-count indictment in Miami, Florida, charging that they provided financial support to terrorists and recruited members for terrorist groups. Their cases also remain open

The Chicago “terror” trial exemplifies why the government is not anxious to proceed to trial in terrorism cases. Juries can be highly skeptical of the government’s conduct – secret prisons, torture, illegal surveillance, etc.

 

John T. Floyd in the news

John T Floyd comments on the Houston Taliban case on Houston Local TV:
Kobie Diallo Williams' lawyers, John Floyd and Alamdar Hamdani, described him an a contrite man who realized the error of his ways and took steps to make things right...

 

Voluntary Interviews with FBI,
Joint Terrorism Task Force

FBI agents have launched another series of interviews of Muslims and Arab Americans across the country, hoping to glean information that could prevent a major terrorist attack during this election year and in the foreseeable future.

Voluntary interviews of community leaders, students, business people and others have already been conducted and will most likely continue. Authorities have said they do not know how many people will be contacted, but the effort is expected to expand significantly.

The new round of questioning is also far more targeted than an earlier program of voluntary interviews with men from Arab and Muslim countries, which followed the Sept. 11, 2001, terrorist attacks and was criticized for being ineffective and using profiling.

According to the FBI, these interviews are voluntary and are for informational purposes only. Therefore, the questioning does not necessarily signify that the people are under investigation themselves. However, targets of these interviews are identified by intelligence or investigative information.

The questions being posed vary widely from where people have traveled and who they met abroad to whether they have attended certain mosques. Some of the interview subjects were also asked broad questions, such as their opinion of the U.S. invasion of Iraq or of the Syrian government. Recent converts to Islam also appear to be targeted.

The FBI is carrying out the interviews in collaboration with regional Joint Terrorism Task Forces, which include law enforcement officers from other agencies, including Treasury Agents, and agents within the Department of Homeland Security.

Most important, targets should clearly understand that making False Statements to Federal Agents is a federal crime punishable up to five (5) years in the Federal Bureau of Prisons. In addition, if the false statements are made in relation to a terrorism investigation, the defendant faces a minimum of ten (10) years incarceration. Since September 11, 2001, many individuals have been indicted, found guilty and imprisoned for making false statements to federal agents for often trivial and unrelated matters.

Make sure an attorney is present at all times during any “voluntary” interview. It is important to note that everything you say to an FBI agent or other law enforcement representative is recorded, nothing is ‘off the record,’ including immigration status.

 

The interviewee may determine the date, time, and location of the interview, including who may attend the interview, including an interpreter if needed. The FBI is required to provide an interpreter if requested.

 

All interviews are completely voluntary and no one is obligated to volunteer to speak with an FBI agent or other law enforcement representatives.

 

The interviewee has absolute discretion as to what questions to answer in such a voluntary interview. However, anything and everything you say during these voluntary interviews is on the record and can be used against you

 

Terrorism

As part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, Congress passed a comprehensive ban on the provision of "material support or resources" to entities that are designated by the United States Government as "foreign terrorist organizations." See 18 U.S.C. § 2339B. This ban includes a prohibition on the provision of "personnel" or "training" to such organizations. The official policy of the Department of Justice on the § 2339B prohibitions relating to "personnel" and "training," states that no United States Attorney is to initiate a criminal investigation, commence grand jury proceedings, file an information or complaint, or seek the return of an indictment in matters involving overseas terrorism without the express authorization of the Assistant Attorney General of the Criminal Division. This approval requirement applies to all suspected violations of § 2339B.

Section 302 of the AEDPA authorizes the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to designate entities as foreign terrorist organizations if certain statutory criteria are met. Designations last for two years unless revoked or set aside, and the designations can be renewed for additional two year periods. See 8 U.S.C. § 1189; 62 Fed. Reg. 52,650 (1997) (designating 30 organizations); 64 Fed. Reg. 55,112 (1999) (redesignating 27 organizations and adding a group headed by Osama bin Laden); 65 Fed. Reg. 57,641 (2000) (designating Islamic Movement of Uzbekistan); 66 Fed. Reg. 27,442 (2001) (designating the "Real IRA"); People's Mojahedin Org. of Iran v. Department of State, 182 F.3d 17 (D.C. Cir. 1999) (rejecting challenges by two designated groups), cert. denied, 120 S. Ct. 1846 (2000); National Council of Resistance of Iran v. Department of State, 2001 WL 629300 (D.C. Cir. June 8, 2001) (groups that have sufficient U.S. presence are entitled to procedural due process).

Pursuant to section 303 of the AEDPA and 18 U.S.C. § 2339B(a)(1), it is a crime for anyone within the United States or subject to its jurisdiction to knowingly provide "material support or resources" to a designated foreign terrorist organization. The statute also proscribes attempt and conspiracy, and provides for extraterritorial federal jurisdiction. 18 U.S.C. §§ 2339B(a)(1) & (d).

Pursuant to a cross-reference to another federal statute, the term "material support or resources" is defined as currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials. See 18 U.S.C. § 2339B(g)(4); 18 U.S.C. § 2339A (providing material support to terrorists). Although the same definition of "material support or resources" applies to both 18 U.S.C. § 2339A and 18 U.S.C. § 2339B, the guidance provided in this section of the United States Attorneys' Manual only addresses "personnel" and "training" within the context of 18 U.S.C. § 2339B and is limited to that statute.

Personnel
A person may be prosecuted under § 2339B for providing "personnel" to a designated foreign terrorist organization if and only if that person has knowingly provided the organization with one or more individuals to work under the foreign entity's direction or control. Individuals who act independently of the designated foreign terrorist organization to advance its goals and objectives are not working under its direction or control and may not be prosecuted for providing "personnel" to a designated foreign terrorist organization. Only individuals who have subordinated themselves to the foreign terrorist organization, i.e., those acting as full-time or part-time employees or otherwise taking orders from the entity, are under its direction or control. NOTE: There are two different ways of providing "personnel" to a designated foreign terrorist organization: 1) by working under the direction or control of the organization; or 2) by recruiting another to work under its direction or control. The statute encompasses both methods, so long as the requisite direction or control is present.

A person may also be prosecuted under § 2339B for attempting or conspiring to provide personnel to a designated foreign terrorist organization if and only if that person has knowingly attempted or conspired to provide the organization with one or more individuals to work under its direction or control.

Training
Section 2339B also prohibits knowingly providing any "training" to a designated foreign terrorist organization, regardless of the subject matter of the training. The verb "train" is commonly understood to mean: "to teach so as to make fit, qualified, or proficient." Webster's Ninth New Collegiate Dictionary 1251 (1989). As this definition implies, the term "training" connotes instruction or teaching designed to impart specific skills, as opposed to general knowledge (e.g., one can receive training in how to drive a car, but a lecture on the history of the automobile would not normally be thought of as "training").

A person may be prosecuted under § 2339B for providing "training" to a designated foreign terrorist organization if and only if that person has knowingly provided instruction to the organization designed to impart one or more specific skills. This policy also applies to attempts and conspiracies, i.e., a person may be prosecuted under § 2339B for attempting or conspiring to provide training to a designated foreign terrorist organization if and only if that person has knowingly attempted or conspired to provide instruction to the organization designed to impart one or more specific skills.

1) the term ''international terrorism'' means activities that - (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;

(B) appear to be intended -

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion;

or
(iii) to affect the conduct of a government by mass destruction, assassination,

or kidnapping; and

(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum;

 

(2) the term ''national of the United States'' has the meaning given such term in section 101(a)(22) of the Immigration and Nationality Act;
(3) the term ''person'' means any individual or entity capable of holding a legal or beneficial interest in property;
(4) the term ''act of war'' means any act occurring in the course of - (A) declared war;
(B) armed conflict, whether or not war has been declared, between two or more nations; or
(C) armed conflict between military forces of any origin; and

(5) the term ''domestic terrorism'' means activities that - (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended - (i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States.

Penalties:
(a) Homicide. - Whoever kills a national of the United States, while such national is outside the United States, shall - (1) if the killing is murder (as defined in section 1111(a)), be fined under this title, punished by death or imprisonment for any term of years or for life, or both;
(2) if the killing is a voluntary manslaughter as defined in section 1112(a) of this title, be fined under this title or imprisoned not more than ten years, or both; and
(3) if the killing is an involuntary manslaughter as defined in section 1112(a) of this title, be fined under this title or imprisoned not more than three years, or both.

(b) Attempt or Conspiracy With Respect to Homicide. - Whoever outside the United States attempts to kill, or engages in a conspiracy to kill, a national of the United States shall - (1) in the case of an attempt to commit a killing that is a murder as defined in this chapter, be fined under this title or imprisoned not more than 20 years, or both; and
(2) in the case of a conspiracy by two or more persons to commit a killing that is a murder as defined in section 1111(a) of this title, if one or more of such persons do any overt act to effect the object of the conspiracy, be fined under this title or imprisoned for any term of years or for life, or both so fined and so imprisoned.

(c) Other Conduct. - Whoever outside the United States engages in physical violence - (1) with intent to cause serious bodily injury to a national of the United States; or
(2) with the result that serious bodily injury is caused to a national of the United States; shall be fined under this title or imprisoned not more than ten years, or both.

(d) Limitation on Prosecution. - No prosecution for any offense described in this section shall be undertaken by the United States except on written certification of the Attorney General or the highest ranking subordinate of the Attorney General with responsibility for criminal prosecutions that, in the judgment of the certifying official, such offense was intended to coerce, intimidate, or retaliate against a government or a civilian population.

Fact Sheet
Office of Counterterrorism
Washington, DC
October 19, 2004

Foreign Terrorist Organizations

Foreign Terrorist Organizations are foreign organizations that are designated by the Secretary of State in accordance with section 219 of the Immigration and Nationality Act (INA), as amended. FTO designations play a critical role in our fight against terrorism and are an effective means of curtailing support for terrorist activities and pressuring groups to get out of the terrorism business.

Identification
The Office of the Coordinator for Counterterrorism in the State Department (S/CT) continually monitors the activities of terrorist groups active around the world to identify potential targets for designation. When reviewing potential targets, S/CT looks not only at the actual terrorist attacks that a group has carried out, but also at whether the group has engaged in planning and preparations for possible future acts of terrorism or retains the capability and intent to carry out such acts.

Designation
Once a target is identified, S/CT prepares a detailed "administrative record," which is a compilation of information, typically including both classified and open sources information, demonstrating that the statutory criteria for designation have been satisfied. If the Secretary of State, in consultation with the Attorney General and the Secretary of the Treasury, decides to make the designation, Congress is notified of the Secretary’s intent to designate the organization and given seven days to review the designation, as the INA requires. Upon the expiration of the seven-day waiting period, notice of the designation is published in the Federal Register, at which point the designation takes effect. An organization designated as an FTO may seek judicial review of the designation in the United States Court of Appeals for the District of Columbia Circuit not later than 30 days after the designation is published in the Federal Register.

FTO designations expire automatically after two years, but the Secretary of State may redesignate an organization for additional two-year period(s), upon a finding that the statutory criteria continue to be met. The procedural requirements for designating an organization as an FTO also apply to any redesignation of that organization. The Secretary of State may revoke a designation or redesignation at any time upon a finding that the circumstances that were the basis for the designation or redesignation have changed in such a manner as to warrant revocation, or that the national security of the United States warrants a revocation. The same procedural requirements apply to revocations made by the Secretary of State as apply to designations or redesignations. A designation may also be revoked by an Act of Congress, or set aside by a Court order.

Legal Criteria for Designation
(Reflecting Amendments to Section 219 of the INA in the USA PATRIOT Act of 2001)
It must be a foreign organization.

The organization must engage in terrorist activity, as defined in section 212 (a)(3)(B) of the INA (8 U.S.C. § 1182(a)(3)(B)),* or terrorism, as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C. § 2656f(d)(2)),** or retain the capability and intent to engage in terrorist activity or terrorism.

The organization’s terrorist activity or terrorism must threaten the security of U.S. nationals or the national security (national defense, foreign relations, or the economic interests) of the United States.

 

Legal Ramifications of Designation
It is unlawful for a person in the United States or subject to the jurisdiction of the United States to knowingly provide "material support or resources" to a designated FTO. (The term "material support or resources" is defined in 18 U.S.C. § 2339A(b) as "currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.)

Representatives and members of a designated FTO, if they are aliens, are inadmissible to and, in certain circumstances, removable from the United States (see 8 U.S.C. §§ 1182 (a)(3)(B)(i)(IV)-(V), 1227 (a)(1)(A)).

Any U.S. financial institution that becomes aware that it has possession of or control over funds in which a designated FTO or its agent has an interest must retain possession of or control over the funds and report the funds to the Office of Foreign Assets Control of the U.S. Department of the Treasury.

 

 

Other Effects of Designation
Supports our efforts to curb terrorism financing and to encourage other nations to do the same.

Stigmatizes and isolates designated terrorist organizations internationally.

Deters donations or contributions to and economic transactions with named organizations.

Heightens public awareness and knowledge of terrorist organizations.

Signals to other governments our concern about named organizations.

 

 

Current List of Designated Foreign Terrorist Organizations
Abu Nidal Organization (ANO)

Abu Sayyaf Group

Al-Aqsa Martyrs Brigade

Ansar al-Islam

Armed Islamic Group (GIA)

Asbat al-Ansar

Aum Shinrikyo

Basque Fatherland and Liberty (ETA)

Communist Party of the Philippines/New People's Army (CPP/NPA)

Continuity Irish Republican Army

Gama’a al-Islamiyya (Islamic Group)

HAMAS (Islamic Resistance Movement)

Harakat ul-Mujahidin (HUM)

Hizballah (Party of God)

Islamic Movement of Uzbekistan (IMU)

Jaish-e-Mohammed (JEM) (Army of Mohammed)

Jama'at al-Tawhid wa'al-Jihad

Jemaah Islamiya organization (JI)

al-Jihad (Egyptian Islamic Jihad)

Kahane Chai (Kach)

Kongra-Gel (KGK, formerly Kurdistan Workers' Party, PKK, KADEK)

Lashkar-e Tayyiba (LT) (Army of the Righteous)

Lashkar i Jhangvi

Liberation Tigers of Tamil Eelam (LTTE)

Mujahedin-e Khalq Organization (MEK)

National Liberation Army (ELN)

Palestinian Islamic Jihad (PIJ)

Palestine Liberation Front (PLF)

Popular Front for the Liberation of Palestine (PFLP)

PFLP-General Command (PFLP-GC)

al-Qa’ida

Real IRA

Revolutionary Armed Forces of Colombia (FARC)

Revolutionary Nuclei (formerly ELA)

Revolutionary Organization 17 November

Revolutionary People’s Liberation Army/Front (DHKP/C)

Salafist Group for Call and Combat (GSPC)

Shining Path (Sendero Luminoso, SL)

United Self-Defense Forces of Colombia (AUC)

 

* Section 212(a)(3)(B) of the INA defines "terrorist activity" to mean: "any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:

(I) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.
(III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18, United States Code) or upon the liberty of such a person.
(IV) An assassination.
(V) The use of any--
(a) biological agent, chemical agent, or nuclear weapon or device, or
(b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.

(VI) A threat, attempt, or conspiracy to do any of the foregoing."

Other pertinent portions of section 212(a)(3)(B) are set forth below:

(iv) Engage in Terrorist Activity Defined

As used in this chapter [chapter 8 of the INA], the term ‘engage in terrorist activity’ means in an individual capacity or as a member of an organization–

to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;

to prepare or plan a terrorist activity;

to gather information on potential targets for terrorist activity;

to solicit funds or other things of value for–

(aa) a terrorist activity;

(bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or

(cc) a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity;

II. to solicit any individual–
(aa) to engage in conduce otherwise described in this clause;

(bb) for membership in terrorist organization described in clause (vi)(I) or (vi)(II); or

(cc) for membership in a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity; or

III. to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training–

(aa) for the commission of a terrorist activity; (bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;

(cc) to a terrorist organization described in clause (vi)(I) or (vi)(II); or

(dd) to a terrorist organization described in clause (vi)(III), unless the actor can demonstrate that he did not know, and should not reasonably have known, that the act would further the organization’s terrorist activity.

 

 

This clause shall not apply to any material support the alien afforded to an organization or individual that has committed terrorist activity, if the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, concludes in his sole unreviewable discretion, that that this clause should not apply."

"(v) Representative Defined

As used in this paragraph, the term ‘representative’ includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.

i. Terrorist Organization Defined

As used in clause (i)(VI) and clause (iv), the term ‘terrorist organization’ means an organization--

I. designated under section 219 [8 U.S.C. § 1189];

II. otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General, as a terrorist organization, after finding that the organization engages in the activities described in subclause (I), (II), or (III) of clause (iv), or that the organization provides material support to further terrorist activity; or

III. that is a group of two or more individuals, whether organized or not, which engages in the activities described in subclause (I), (II), or (III) of clause (iv).

 

** Section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 defines "terrorism" as "premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents."

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