Terrorism

Since the tragedy of 9-11, Mr. Floyd has represented dozens of individuals and entities regarding terrorism investigations and related criminal acts in the State of Texas and Washington D.C. It is urgent for anyone contacted by FBI, or any other agency that is part Anti-Terrorism Task Force, regarding “voluntary” interviews to contact an attorney immediately.

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."

[End]

 

 

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