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A Research Guide to Cases and Materials on Terrorism

 

Compiled by Andrew Grossman

 

Andrew Grossman is a retired U.S. Foreign Service Officer who served in Seoul, Abidjan, London, Tehran, Algiers and Geneva. He holds the degrees of B.A. in Economics (Clark), LL.B. (Columbia), M.A. in L.I.S. (University College London) and of Licencié en droit européen et international, Maître & Docteur en droit (Louvain-la-Neuve) and is a member of the New York and District of Columbia Bars. He lives in London, where he writes on private international law issues, especially in the fields of nationality, bankruptcy and tax. Among his publications are "Conflict of Laws in the Discharge of Debts in Bankruptcy", 5 Int'l Insolvency Rev. 1 (1996), "Nationality and the Unrecognized State", 50 Int'l & Comp. L.Q. 849 (2001), "Birthright citizenship as nationality of convenience", Proceedings, Council of Europe, Third Conference on Nationality, Strasbourg, Oct. 11-12, 2004; and "'Islamic land': Group Rights, National Identity and Law", 3 UCLA J. Islamic & Near E.L. 53 (2004). His previous work in this series is "Finding the Law: the Micro-States and Small Jurisdictions of Europe". He recently completed research into conflicts in the cross-border enforcement of tax claims and has begun a project analyzing the limits of national autonomy in matters of nationality under European law.

 

Published May 2006

 

 

Table of Contents

 

INTRODUCTION          

General sources of information: comprehensive sites, archives, lists         

International organizations

NGOs, private research organizations, universities  

Other databases      

Government-sponsored sites             

RELEVANT ASPECTS OF THE LAW     

Criminal (Penal) Law           

Case Law: Selected Opinions             

Previous terrorist cases, reports        

Prosecution in the USA based on violation of a foreign statute  (not necessarily terrorism-related)    

On-line articles and other materials

Specific instances:  

Membership in a proscribed organization   

Organized crime     

Crimes against foreign missions and internationally protected persons              

Particular Human Rights Issues; unintended consequences 

General       

Law review articles 

Signals interception, wiretaps          

Other newspaper articles    

Extradition

Case Law: Selected Opinions             

Documents

Extrajudicial extraction: kidnapping, rendition        

Treaty and convention issues            

Current cases           

Status and immigration, including deportation issues and refugee law   

Documents

Newspaper article  

Bibliography            

Law review articles 

Case Law: Selected Opinions             

Charity, foundation, eco-terrorism issues            

"Animal rights", anti-abortion, eco-terrorism, quasi-charity terrorism              

Laws and legal instruments:              

Specimen cases       

Charities:   

Eco-terrorism and animal rights:     

Anti-abortion:          

Money laundering and the financial support of terrorism            

Case law     

Selected statutes and international materials            

Newspaper articles 

Reports and documents       

Some law review articles; book         

Other crimes     

Smuggling, tax evasion, racketeering:           

Counterfeiting         

Bank robbery, kidnapping

Corruption

Treason              

Case Law: Selected Opinions

Internment cases

Statute law

Passive support of terrorists and terrorism          

Some articles           

Case law     

Libel cases, and their limitations     

On apologists for terrorism 

"State Terrorism"           

Nuremberg Trials and the Eichmann Case

Libya           

International Tribunals       

Other "universal jurisdiction" cases and issues          

United States cases

UK cases     

Afghan, Iraqi, Geneva Convention issues      

Religion and terrorism

Cases: militia and radical Christian sects; religious-based provocation              

Other reports and articles   

A few newspaper articles:    

Medical preparedness and bio-terrorism             

Cases addressing some miscellaneous legal issues            

Counter-terrorism and Human Rights   

European Union:    

Relevance of the Law of War, the Geneva Conventions   

Other   

Statutes and bills; legislative projects; commentaries             

Government, academic and scholarly reference sites, archives

Government reports

Articles, Documents: skeptical, contrary and critical views

Middle East issues

 

 

Introduction

 

A bibliographic survey of the law relating to terrorism -- even one that tries to avoid advocacy and argument, and perhaps even more so on account of that -- exposes its author to criticism more than anything over definition and criteria for inclusion. Terrorism itself is a moving target: laws addressing it written by a fearful Establishment, its history written by the victors. Terrorist acts can be undertaken for all sorts of reasons or, conceptually at least, for none at all other than to promote anarchy or to express hatred. A purely criminal undertaking (as in extortion) is the least likely to threaten the wider public (such crime tends to be local or limited to particular ethnic groups) and it is also the easiest to deal with. Terrorist acts commonly arise out of grievance and frustration, real or imagined: religious, political, economic, personal. Terrorism, or the threat of terrorism, can involve weapons of mass destruction, or it can consist of measures of murder and mayhem, repression and intimidation directed at individuals, at a group or class, or at all the inhabitants of a region or state. While a dozen or more sectors of the law are pertinent to terrorism -- some as cause, some as effect, some as impediment and some as punishment -- historically no law has been more successful than the mere passage of time in bringing it to an end. Terrorism and its companion, civil unrest, either bring revolutionary change and are then sanctified in a new national myth[1], or they fail and grievances either continue to fester or are overtaken by events.

 

It can come as no surprise that the political Establishment focuses on terrorism occurring at home, or targeting our friends. When it is by elements of one friendly state against others of our friends (Irish republicans against British and Irish nationalists; ethnic Greeks and ethnic Turks; Orthodox Slavs and Catholic Slavs) one may perhaps side with the group most like oneself. As in Monty Python's "The News for Parrots"[2] a mishap may be seen as tragic only to the extent that it has an impact on ourselves, our group, our class. Motivation, expectation and allegiance may be such that there is no obvious solution: "justice" and "compromise" may prove mutually exclusive in a way ill understood by outsiders. Compromise and sacrifice may be unacceptable to those who, because they have wealth and prospects have the most to lose and also the most political influence.[3] If those charged with combating terrorism fail to appreciate the real limits of their power, or if use the notion of a "war against terrorism" chiefly as a political expedient, the situation they claim to defuse may instead be worsened. Most sovereignty, if one goes back in time far enough, derives from conquest: under modern notions of international law conquest does not afford good title to land, but how many decades or centuries back must one's claim lie in order to be beyond repudiation? The application of legal norms -- of the law -- to terrorism is itself an expedient: and that's certainly true to the extent that the law's actors are not there to "do justice" but rather "to play the game according to the rules".[4] It is, however, of the essence of the rule of law that those ruled by it accept its decisions.[5]

 

One would do well to keep in mind the power of claims to vested interests and the ability of those who profit from them, however indirectly to garner support, to delay change and to prolong iniquity. But even an objectively fair offer in compromise may not put an end to facts and myths that draw support, active and tacit, for extremist solutions. There are few ethnic groups whose status and location are not the result of colonization, voluntary or forced movement and war. The treaties concluding the First World War, and the ensuing resettlements[6], the dissolution of the Ottoman Empire[7] and the creation of states and zones of influence, lie behind many recent European and Middle East conflicts. Whether such historical facts will stimulate and support terrorism many years later depends on the existence of a survivor class from among the losing side, of a historical record, of myths, and of a culture that will sustain anger and violent action.

 

Western Europe, the United States and what is known as the "Old Commonwealth" deem themselves, and are demanded by others, to be pluralistic nations. Mazzini's unity of nation and commonality of nationality commonality of language, territory, ethnicity, culture, religion and history[8] would violate modern notion of human rights -- but only in those developed nations[9], target regions for migration by members of other cultures, mainly family members of previous migrants. The result is a bouleversement of what used to be known as "allegiance"[10] (carried over into America and crystallized in the XIVth Amendment and discussed further below), and fears of a developing "fifth column". We have, however, been there before: quite apart from lessons of the Indian wars and of the civil rights movement, the Sedition Act[11], the language laws[12], the German American Bund cases[13], the Chinese exclusion[14] and Japanese internment[15] and expatriation[16] and the Communist cases[17] showed our fear of the "other", and our ability to postulate that this other threatened the well-being of the State. Civil and human rights to dissent, to associate, to sympathize with the enemy, real or perceived, have strengthened in the intervening years. The claim of the State to undivided loyalty of those who owe it "permanent"[18] and "temporary"[19] allegiance has weakened concomitantly.

 

The aim of "official" -- i.e., sovereign, terrorism by those who have in law a monopoly of coercive force -- is that "shock and awe": the intimidation of all others by "benign terror". It is not clear that a modern, liberal state can accomplish this the way totalitarian and imperial rulers did. One aim of private, political terrorism is to provoke officialdom to outrageous response and thereby to procure external support. Gandhian passive resistance may not be intended to provoke violent response[20]; but if it does, the State, or the Establishment, has lost: Mississippi Burning[21]. It may be assumed that public suicides such as the 1981 Northern Irish death fasts[22], the self-immolations in Vietnam[23] and suicide-murders, as in Israel[24], Iraq[25], Afghanistan[26] have as their goal public unease and political destabilization. Mass random killings may aim to provoke disproportionate responses[27] and, gain perversely moral high ground. Once in power terrorists may become "statesmen", be forgiven their crimes and have the opportunity to rewrite history books to make of themselves national heroes.[28] Victims may be marginalized, their private rights and interests subordinated to political and diplomatic expediency. The criminal law may be marginalized by pardon or by refusal to prosecute, as has happened in Northern Ireland. "Truth and reconciliation" through public witnessing[29] happens only sometimes. Old animosities and remembrances of terror may be revived as new myths to support revived rivalries and justify genocide, as happened in the course of the breakup of Yugoslavia. Or they may be denied, suppressed as a matter of official policy: Armenians and Kurds in Turkey; the civil unrest in Cyprus, 1960-1974. Past and present terrorism may be ignored by other states -- allies and commercial partners of the perpetrators -- when it suits their political and economic interests. Generations that follow the beneficiaries of past terrorism have vested interests that are not easily ignored: children do not, as a rule, inherit the debts of their ancestors. In short, the law is secondary to politics and to diplomacy, pragmatism and expedience. Our investigation of case law will, therefore, be less than fully satisfying: these cases concern in fact countries where terrorism is, put in geographic and demographic scale, not a genuine threat to the political, social or economic system. And that is true however much of a public shame and political issue it has become, however much disquiet it may have spawned. Compare, for example, the cost of natural disasters and human error or negligence: the tsunami[30], hurricane Katrina[31], Chernobyl[32].

 

* * *

 

The point of this survey is not so much to list sources -- many of these could be found with a search engine and legal database; others by using some of the better bibliographic sites listed here. It is rather to provide some assistance in planning research and in formulating issues to address -- to examine the range of issues and provide links, first to sources that are considered reliable and unbiased, then to specimen law cases[33] and scholarly articles and, finally, to opinions and arguments not otherwise adumbrated which, even if they are in support of a particular agenda are coherent, plausible and forthright in their advocacy or apologia. Collected here are many of the major court cases involving terrorism and terrorists of the modern era, as well as a sampling of issues related to terrorism.

 

Whatever the researcher's focus he or she might well begin by reading the Grotius lecture delivered at the British Institute of International and Comparative Law on November 13, 2003 by Judge Gilbert Guillaume.[34]

 

 

Because of the relatively short life of many Web sites and links and the limited access to Anglo-American case law by students and researchers in other areas of the world, all the cases cited and many of the articles listed have been archived and should be accessible for some years. Many cases cited within those archived have also been archived and are linked. If access to an outside link is broken readers should try accessing them at Archive.org or searching for the document by title and document name in a search engine such as Goggle, Yahoo, Lawcrawler or a meta-search engine such as Dogpile.com or Mamma.com.

 

 

General sources of information: comprehensive sites, archives, lists

 

International organizations

 

International Committee of the Red Cross, 360 documents under "terrorism"

International Organization for Migration, 137 documents under "terrorism"

United Nations High Commissioner for Human Rights
and 3523 documents found under "terrorism"

United Nations High Commissioner for Refugees, 299 documents under "terrorism"

 

NGOs, private research organizations, universities

 

"Terrorism Central"

"Terrorism Research Center"

Terrorisme.net (in French with some English)

American Society of International Law, Resources on Terrorism

ASIL Electronic Information system

Carnegie Endowment for International Peace

Council on Foreign Relations

Counter-Intelligence, Counter-Espionage, Counter-Terrorism (Australian site; many archived documents and articles)

Crisis Group

Federation of American Scientists, Intelligence Resources Program (incl. "Terrorism Resources")

Federation of American Scientists, Terrorism: Background and Threat Assessments

Foundation for Defense of Democracies, Washington D.C.[35] especially: Overview of European terrorist organizations

Georgetown Law School: Legal journal index

Havenworks (archive site)

Hoover Institution publications on terrorism; Adam Garfinkle ed., A Practical Guide to Winning the War on Terrorism (2004) (PDF 20 sections, 230 p.)

International Centre for Political Violence and Terrorism Research, Nanyang Technological University, Singapore

International Peace Academy, New York

Jamestown Foundation[36]

Janes Insurgency and Terrorism Centre (registration or subscription required)

Jurist

Kentucky Virtual Library, Political Science & Law: Terrorism

Legal Journals Index (UK): 284 articles mentioning "terrorism" and "international law"

MIPT "Terrorism knowledge base"

NYU Center on Law and Security "Terrorist Trial Report Card"  (PDF 232 Kb.)

Peacemakers Trust (Canadian charity) bibliography

Social Science Research Network

SOS Attentats

St. Mary's School of Law (San Antonio), "Terrorism legal resources" (under construction Feb. 2006)

Syracuse University, TRAC Reports (Federal law enforcement and spending)

University of Washington School of Law, Gallagher Library, Law review articles on terrorism

 

Other databases

 

Archival site: The Memory Hole

Findlaw: "War on Terror";
"War on Terror: Cases";
"Terrorism";
Lawcrawler.com

Jura (Germany), Terrorismusgesetz (in German)

Legalday.com (searchable UK database of newspaper articles, cases, press releases)

Terrorisme.net: collected materials relevant to terrorism (in French and English)

Washington Post: collected articles

Wikipedia[37]: "Terrorism"

 

Government-sponsored sites

 

CIA FOIA database, 710 hits for "terrorism"

Congressional Research Service, Terrorism and National Security, Issues and Trends (PDF 112 Kb.) (see below for other CRS publications)

Institute for Counter-Terrorism (Israel)

Israel Ministry of Foreign Affairs, Terror communiqués (incl. specific terrorist cases, arrests, convictions)

Other GAO reports

U.S. Army Training and Doctrine Command, "A Military Guide to Terrorism in the Twenty-first Century"

U.S. Dept. of Justice, Office of the Inspector General, Report on the Mayfield case (PDF 82.3 Mb.); Dan Eggen, "Patriot Act Partly Blamed in Madrid Case", Washington Post, Mar. 11, 2006. P. A04

U.S. Government Accountability Office, principal terrorism reports

 


RELEVANT ASPECTS OF THE LAW


 

Criminal (Penal) Law

 

It is not the aim to set out here all the possible crimes that may be charged in connection with a terrorist act, plot or campaign especially since new laws are being enacted in response to new outrages and so any such effort would be chasing a moving target. Existing law addresses arson, sabotage, murder and attempted murder, genocide, civil rights offenses, weapons offenses, conspiracy. New laws cover membership in and aid to scheduled organizations, but the list of such organizations is subject to administrative change and for the accused to prove termination of involvement with a newly-listed entity may be difficult.

 

The full text of published opinions in major recent U.S. prosecutions may be accessed below. Within each opinion there are further links where judgments in cited cases are available online. Additional cases have been included below either for their notoriety or for their explanatory value. Sections that follow address legal issues peripheral to terrorism. Most of the case law here is from the USA the UK, Canada, Australia and New Zealand. The researcher may want to search the European Court of Human Rights database and some of the country-specific sites listed below. Some non-US jurisprudence can be examined indirectly by looking at the US, UK and Canadian cases appearing in the sections on extradition and on refugee law.

 

Terrorism tends to be cyclical. Researchers will do well to start with the early sedition acts and review the concept of allegiance as it has changed over two centuries. For the USA, the obligations of allegiance are, besides loyalty: payment of taxes, fulfillment of military service upon conscription, and provision of information upon subpoena[38].

 

Case Law: Selected Opinions

 

Center for National Security Studies v. U.S. Department of Justice, 331 F.3d 918 (Nov. 18, 2002) (secrecy with regard to the identity of persons detained following 9/11 attacks)

Hamdi v. Rumsfeld, 243 F.Supp.2d 527 (E.D.Va. 2002), 296 F.3d 278 (4th Cir. 2002), both reversed by: 316 F.3d 450 (4th Cir. 2003); judgment vacated by: 542 U.S. 547 (2004); on remand: 378 F.3d 426 (4th Cir. 2004) (nationality issue, enemy combatant)

Humanitarian Law Project v. U.S. Dep't of Justice, 393 F.3d 902 (9th Cir. 2004); on remand 380 F.Supp.2d 1134 (C.D. Cal. 2005) (statutory definition of terrorism)

People's Mojahedin Organization of Iran v. Albright, 182 F.3d 17 (D.C. Cir. 1999) (designation as terrorist organization)

United States v. Bin Laden, 91 F.Supp.2d 600 (S.D. N.Y. 2000); 92 F.Supp.2d 225 (S.D. N.Y. 2000); 109 F.Supp2d 211 (2000)

United States v. El-Hage, 213 F.3d 74 (2d Cir. 2000)

United States v. Faris, 388 F.2d 452 (4th Cir. 2004), vacated and remanded, 125 S.Ct. 1637 (2004), conviction and sentence affirmed, 2005 U.S. App. LEXIS 29066, 2005 WL 3556095 (4th Cir. 2005)

United States v. Fortier, 242 F.3d 1224 (10th Cir. 2001) and see: Ralph Blumenthal, "Release of Oklahoma City Bombing Figure Kindles Fears", N.Y. Times, Jan. 19, 2006

United States v. Haouari, 2001 WL 1586676 (S.D.N.Y.) (denial of motion for new trial)

United States v. Lindh, 212 F.Supp.2d 541, 574 (E.D.Va.2002)

United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998)

United States v. Nichols, 169 F.3d 1255 (10th Cir. 1999)

United States v. Rahman, 189 F.3d 88 (2d Cir. 1999)

United States v. Reid, 214 F.Supp.2d 84 (D. Mass. 2004), aff'd 369 F.3d 619 (1st Cir. 2004)

United States v. Salimeh, 152 F.3d 88 (2d Cir. 1998), 261 F.3d 271 (2d Cir. 2001)

United States v. Sattar, 272 F.Supp.2d 348 (S.D.N.Y.2003); United States v. Sattar, 314 F.Supp.2d 279 (S.D.N.Y.2004); United States v. Sattar, 395 F.Supp.2d 79 (S.D.N.Y. 2005) (conviction of lawyer for Rahman); further documents on Lynne Stewart site and on Cryptome.org

United States v. Yousef, 327 F.3d 56 (2d Cir. 2003)

United States v. Afshari, 426 F.3d 1150 (9th Cir. 2003) (assistance to Mujahedin-e Khalq)

 

In re Application under s. 83.28 of the Criminal Code, [2004] 2 S.C.R. 248 (Can.) (sabotage of Air India Flight 182)

R. v. Ribic, 2003 FCA 246, 185 C.C.C. (3d) 129 (F.C.A. 2003) (Canadian citizen prosecuted for terrorist activities in support of ethnic Serbs in Bosnia)

 

R (ex rel. Kurdistan Workers' Party) v Home Secretary, [2002] EWHC Admin 644 (Eng.) (defining "terrorism" and "terrorist organization"

R (Gillian) v Comr of Police of Metropolis, [2004] EWCA Civ. 1067, [2005] Q.B. 388 (C.A.) (random stop-and-search by police for "articles of terrorism")

 

Averill v. United Kingdom [2000] E.C.H.R. 212, European Court of Human Rights: rights of persons (particularly those charged with terrorist offenses) upon arrest

 

Previous terrorist cases, reports

 

"Police Break Up Suspected Bomb Plot in Brooklyn", New York Times report, Aug. 1, 1997

"Suspects in Bomb Plot Took Two Paths From the West Bank", New York Times report, Aug. 3, 1997 (Planners of subway bombing, "more aimless than ardent", not part of any broad organized conspiracy)

Discussion of the Front de Libération de Québec (in French)

Discussion: Movimiento Independentista Revolucionario Armado (MIRA)

New York Times, May 21, 2002: FBI director warns "Suicide Attacks Certain in U.S."

Puerto Rico: United States v. Rodriguez, 803 F2d 318 (7th Cir. 1986) (FALN)

Quebec: R. v. Vallieres, [1970] 4 C.C.C. 69 (Que. Q.B. App. 1969) (murder)

R. v. Cossette-Trudel, 11 C.R. (3d) 1, 52 C.C.C. (2d) 352 (Que. C.S.P. 1979) (kidnapping of foreign diplomat; sentencing issues)

UN Documents, Decolonization Committee, Reports of the Rapporteur

United States v. Rosado, 728 F.2d 89 (2d Cir. 1984) (due process issues; citing other cases)

USDOJ, Bombs in Brooklyn: "How the Two Illegal Aliens Arrested for Plotting to Bomb the New York Subway Entered and Remained in the United States" (March 1998)

 

Prosecution in the USA based on violation of a foreign statute
(not necessarily terrorism-related)

 

United States v. McNab, 331 F.3d 1228 (11th Cir. 2003) (criminal conviction in the U.S. based on a determination by the U.S. court that defendant violated a law of another country)

United States v. Miller, 26 F.Supp.2d 415 (N.D.N.Y. 1998) (Canadian customs and excise fraud; money laundering)

United States v. Pasquantino, 336 F.3d 321 (4th Cir. 2003, aff'd 544 U.S. --- (Apr. 26, 2005) (Canadian customs and excise fraud, alcohol)

United States v. Trapilo, 130 F.3d 547 (2d Cir. 1997) (Canadian customs and excise fraud, tobacco)

Compare: United States v. Bean, 537 U.S. 7 (2002) (denial of firearms license based on Mexican conviction, reversing 253 F.3d 234 (5th Cir. 2001))

 

On-line articles and other materials

 

Library of Congress Research Studies: "Terrorism and Crime"

Max-Planck Institute for Foreign and International Criminal Law, Web portal

T. O'Connor, North Carolina Wesleyan College, "The Criminology Of Terrorism: History, Law, Definitions, Typologies"

Religious incitement and its theological background: see Tim Rutton, "Drawn into a Religious Conflict", Los Angeles Times, Feb. 4, 2006

U.S. Department of Justice, Criminal Resource Manual 9-91.100: Providing "material support" for terrorists

 

Specific instances:

 

How a terrorism issue can and will be dealt with is dependent upon political and diplomatic issues: whether the incident or movement represents a domestic threat or a threat to trade, investment or other vital national interests. Executive and legislative action may or may be logical and proportionate. Terrorism that is far away and unlikely to impinge on domestic interests[39] escapes the popular imagination, whereas a single terrorist act close to home may unleash irrational fear and disproportionate response. Product tampering is a case in point:

 

 

Not far removed from this sort of terrorism is public panic over disease, however remote the actual danger of infection at the time: BSE, avian influenza, smallpox, anthrax. The political search for a scapegoat and a plausible solution are well illustrated by the anthrax cases; but these also demonstrate the propensity of the press to fan hysteria and, indeed, to spur the authorities to action that may be out of proportion to facts and to risk: Hatfill v. New York Times Co., 415 F.3d 320 (4th Cir. 2005). See also Pennekamp v. Florida, 328 U.S. 331 (1946) (reversing contempt conviction of newspaper editor and publisher following publication of editorials critical of the administration of justice in local courts; citing Campbell v. New York, 186 Misc. 586, 62 N.Y.S.2d 638 (Ct.Cl. 1946) as a quintessential miscarriage of justice case.). The recruitment of public fear and outrage seems to blur the meaning and significance of "reasonable doubt" and make miscarriage of justice more likely; once obtained, the fact that affirmance of a conviction serves to underpin the reputation and integrity of the legal system and the positions of those in power hinders serious consideration of justice.[40] In the United States, the assumption is that executive clemency can be used to resolve the tragedy of miscarriage of justice. Such a remedy is, however, made uncertain by the opposition of some prosecutors to the reopening of cases even for the examination of existing DNA evidence, and the obstacles standing in the way of clemency proceedings and to appeals.[41] On prosecutorial misconduct, see, e.g., Jerry Markon and Timothy Dwyer, "Federal Witnesses Banned in 9/11 Trial", Washington Post, Mar. 15, 2006, p. A01.

 

Meanwhile, the risk of radiological terrorism is undiminished:

Leah Litman, "Cleaning House -- Dirty Bombs and the Nuclear Non-Proliferation Treaty", 25 Harv. Intl'l Rev. #1092 (2003)

Testimony of Dr. Henry Kelly, President, Federation of American Scientists, before the Senate Committee on Foreign Relations, March 6, 2002

The Goiânia (Brazil) incident

Jeffrey Goldbert, "The Ghost of Purim Past" N.Y. Times, Mar. 14, 2006 (Iranian threat against Israel).

 

Chemicals agents that have been used as instruments of terror include sarin:

and ricin:

 

Some court judgments thus far on ricin-related incidents have bordered on the bizarre:

 

Membership in a proscribed organization

 

Popular imagination, and the political establishment close behind, have on occasion given human and constitutional rights little priority when they perceive a threat to the status quo, to vested interests, or to society and the State. Aside from immigration, naturalization and deportation cases see:

 

Membership, or deemed membership, in specific subversive organizations has often had severe consequences under immigration law and, more recently, anti-terrorism law.

 

Organized crime

 

Political terrorists, such as the IRA and offshoots, and the Protestant militias of Northern Ireland, are addressed elsewhere. Nonpolitical criminal gangs are mentioned here for the sake of completeness. The kidnapping for ransom by terrorist and insurgent groups of individuals, especially foreigners (as in Iraq and Colombia), is scarcely new.

 

Specimen cases discussing terrorism in the context of organized crime:

 

Documentary material:

 

Crimes against foreign missions and internationally protected persons

 

Demonstrations, sometimes violent, against foreign missions have been a mainstay of popular protests. It is said that the takeover of the American Embassy in Tehran on November 4, 1979 was unexpected even by the demonstrators who succeeded in overrunning it.[42] There had been a similar demonstration only days before which had been diffused by the local police. Perhaps, like Master Sergeant Samuel K. Doe when he overran the presidential palace in Monrovia on April 12, 1980[43], their success was accidental, attributable to security errors and failings. As with many crimes, happenstance is a major element of terrorist "success". It is easy for any government and any law enforcement agency to claim "progress" in combating terrorism because so many conspiracies fail or are diffused in the course of planning or in the early stages of execution and before even coming to official notice. Those that succeed can have unintended, or at least unexpected, consequences, no less than in the assassination of the Archduke Franz Ferdinand on June 28, 1914.[44] Cited below are a few notable documents and recent judgments regarding crimes on internationally protected persons. The Erdos case (below) and the 1974 kidnapping and death of U.S. vice consul John S. Patterson, for which Bobby Joe Keesee[45] was convicted of conspiracy and served time in prison, increased U.S. pressure for additional domestic and international legal protections for diplomatic and consular staff.

 

Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (1977)

19 U.S.C. § 1116, Murder or manslaughter of foreign officials, official guests, or internationally protected persons

United States v. Bin Laden, 93 F.Supp.2d 484 (S.D.N.Y. 2000), 109 F.Supp.2d 211 (S.D.N.Y. 2000) (bombing of U.S. embassies in Nairobi and Dar es Salaam; related opinions are cited and linked within these two)

United States v. Erdos, 474 F.2d 157 (1973); Jordan J. Paust, Non-Extraterritoriality of "Special Territorial Jurisdiction" of the United States: Forgotten History and The Errors of Erdos, 24 Yale J. Int'l L. 305 (1999)

R (on the application of Nejad) v. Home Secretary, [2004] EWCA Civ. 33 (1983 Iranian embassy siege)

R. v. Cossette-Trudel, 11 C.R. (3d) 1, 52 C.C.C. (2d) 352 (Que. C.S.P. 1979) (kidnapping of foreign diplomat by FLQ)

United States Diplomatic and Consular Staff in Tehran (United States v. Iran), ICJ, (1979)

 

See also the case of the "November 17" Greek anarchist-terrorists[46] who assassinated foreign diplomats.

 

Particular Human Rights Issues; unintended consequences

 

The tension found in the law of refugee status (see below) is also found here: whether a terrorist or a supporter of an organization that conducts terrorist activities should be granted rights that he or she would not allow to others. Taking this issue further is the question of the right of an entire people or nation to vote into office via a democratic election a government that scorns democracy and will violate of human rights, engage in state or state-sponsored terrorism, end democracy and perhaps install a theocratic state.[47] Past interference by foreign governments in the affairs of other countries, Iran and Chile for example, have not been happy ones. A few cases relevant to this issue appear on this page; the researcher may also want to review the International Court of Justice Web site.

The application of anti-terrorist law in situations not obviously considered by the legislature during its passage has a parallel in the wide-ranging use of RICO and tax evasion charges to combat not only organized crime but small-scale drug smuggling and evasion of foreign customs duty and excise taxes, discussed elsewhere on this page. Other current administrative and executive issues include the centralization of power in the Executive; eavesdropping on domestic, or partly domestic, communications; and "racial profiling" as a counter-terrorism law-enforcement tool. These issues may be researched in newspaper databases.  

 

General

 

Office of the United Nations Commissioner for Human Rights

Amnesty International USA, "War on Terror"

Source Watch, Center for Media and Democracy, "War on Terrorism"

 

Law review articles

 

Anne-Marie Slaughter and William Burke-White, "The Future of Law: Protecting the Rights of Civilians", 24 Harv. Int'l Rev. (2002)

New York University Law School, Center on Law and Security, Publications

European Journal of International Law, (vol. 14, 2003), Symposium: 'A War Against Terrorism', Table of Contents and links to full text of all articles

 

Signals interception, wiretaps

 

In re Sealed Case No. 02-001, 310 F.3d 717 (Intel. Surveillance Ct. of Review 2002)

Symposium webcast, Case Western Reserve University, Frederick K. Cox International Law Center

Council on Foreign Relations webcast, "The Law of War in the War on Terrorism"

James Bamford, "The Agency That Could Be Big Brother", N.Y. Times, Dec. 25, 2005

Wikipedia: GCHQ

Wiretaps and dissent: "In 1971, stolen FBI files exposed the government's domestic spying program", Los Angeles Times, Mar. 8, 2006

Liberty, Katharine Gun (GCHQ whitleblower) case

 

Other newspaper articles

 

Suzanne Goldenberg, "Terrorism law used on Vegas 'vice lord'", Guardian, Nov. 7, 2003

Michelle Garcia, "N.Y. Using Terrorism Law to Prosecute Street Gang", Washington Post, Feb. 1, 2003, p. A03

Walter Pincus and Dan Eggen, "325,000 Names on Terrorism List", Washington Post, Feb. 15, 2006, p. A01

The Guardian: Special report, attack on London, "The terrorist who wasn't", Mar. 8, 2006 (de Menezes case -- problem of pressure on the police resulting in tragic errors) - With links to other reporting on the London bombing and other terrorism incidents.

 


 

Extradition

 

It is an irony of refugee law that persecuted dissenters are entitled to protection both from the enemies and the friends of the state of refuge[48], subject only to Art. 1(f) and 33 of the 1950 Refugee Convention[49]. The Doherty case and others involving prison escapees and Irish republicans wanted for violent crimes led to a revision of the U.S.-U.K. extradition treaty that sharply limited grounds for refusing extradition. This treaty, not yet ratified by the United States but effectively implemented by Britain, can have perverse results, as in the Bermingham, Mulgrew & Darby case. There a decision by the British authorities not to prosecute the accused for their actions in the U.K. while employed by a U.K. Bank made them subject to extradition to the United States[50]. See also the Feb. 24, 2006 judgment in the Norris case, below.

 

Case Law: Selected Opinions

 

In re Castioni, [1891] 1 Q.B. 149 (offense of a political character)

In re Meunier, [1894] 2 Q.B. 415 (offense of a political character)

R (Al-Fawwaz) v Brixton Prison Governor, [2001] UKHL 69, [2002] 1 A.C. 556

R. v. Home Secretary, Ex p. Puttick, [1981] Q.B. 767 (naturalization issue; marriage under fictitious name of former terrorist); also [1980] Fam. 1

Nadarajah v. Gonzalez, 2006 U.S. App. LEXIS 6615, 2006 WL 686385 (9th Cir.) (Tamil Tigers)

Ahmad v. Wigan, 726 F.Supp. 389 (E.D.N.Y. 1989), aff'd 910 F.2d 1063 (2d Cir, 1990) (Abu Nidal terrorist group)

In re Extradition of Marzook, 924 F.Supp. 565 (S.D.N.Y. 1996) (Hamas)

INS v Doherty, 502 U.S. 314 (1992), reversing 908 F.2d 1108 (2d Cir. 1990) (IRA)

United States v. Demjanjuk, 612 F.Supp. 544 (N.D. Ohio 1985); United States v. Demjanjuk, 367 F.3d 623 (6th Cir. 2004); United States v. Demjanjuk, 128 Fed.Appx. 496 (6th Cir. 2005) (Nazi death camp guard)

 

Ahani v. Canada, [2002] 1 S.C.R. 72 (Iranian terrorist), and see:
Ahani v Canada (1051/2002) Court of Appeal of Ontario: 58 O.R. (3d) 107 (Aug. 2, 2002)
Human Rights Committee: CCPR/C/80/D/1051/2002 (June 15, 2004),
(2004) 11 I.H.R.R. 941; (2004) 39 E.H.R.R. SE12; Human Rights International comment:

Suresh v. Minister of Citizenship and Immigration, [2000] 2 F.C. 592, reversed [2002] 1 S.C.R. 3 (Tamil Tigers)

United States v. Dynar, [1997] 2 S.C.R. 462 (extradition to USA for alleged money laundering offense committed in Canada)

Ward v. Attorney-General of Canada, [1993] 2 S.C.R. 689 (IRA)

 

Zaoui v. Attorney-General, [2004] 2 N.Z.L.R. 33 (Dec. 19, 2003); Attorney-General v. Zaoui, [2004] N.Z.C.A. 244 (Sept. 30. 2004); Zaoui v. Attorney-General, [2005] N.Z.S.C. 38 (June 21, 2005) (PDF 324 Kb.) (risk to suspected supporter of terror of torture or of cruel, inhuman or degrading treatment or punishment if deported)

 

On the doctrine of specialty, forbidding trial for a crime not specified in the extradition documents, see US-UK extradition treaty (PDF 4Kb.); Justice (UK human rights charity) briefing (PDF 4 kb.); Liberty briefing (PDF 4 kb.); (US) Foreign Affairs Manual, 7 FAM 1600 (PDF 168 Kb.)
Also: cases and documents cited and linked at United States v. Keesee, 121 F.3d 718 (9th Cir. 1997) (crimes for which defendant was not extradited may be considered in sentencing). On Bobby Joe Keesee, see: "Diplomat's Seizure Linked to ex-POW" (PDF 24 Kb.), N.Y. Times, June 9, 1974, p. 8; "Body of U.S. Aide is Believed Found in North Mexico" (PDF 36 Kb.), N.Y. Times, July 10, 1974, p. 5; "Keesee pleads guilty to federal charges in skyjacking of businessman's plane" Amarillo Globe News, Nov. 2, 1999; other articles

 

Extrajudicial extraction: kidnapping, rendition

 

These are extraordinary cases and their outcome seems to depend on diplomatic and political considerations, especially given the lack of legal redress under Ker, Frisbee and Alvarez-Machain (extrajudicial seizures) as well as cases denying Constitutional protection to aliens abroad. The case of U.S. citizen (and military deserter) Ronald Anderson illustrates this: his seizure and frog-marching into the USA from the Canadian side of the border was serendipitously (in the days before camcorders) recorded on 8mm film and widely broadcast, generating Canadian pressure for his release.

 

"U.S. Returns Deserter to Canada", Washington Post, Aug. 31, 1974, p. A13

and see "Narcotic Agent Held on Canada's Charges" (PDF 32 Kb.), New York Times, Feb. 16, 1930, p. 14 (PDF 30.6 Kb.).

 

Political and diplomatic questions aside, U.S. law enforceable by the courts is represented by a series of cases:

Arar v. Ashcroft, --- F.Supp.2d ---, 2006 WL 346439 (E.D.N.Y. 2006) (Canadian citizen in transit at JFK Airport, New York rendered to Syria and there tortured); and see N.Y. Times editorial, Feb. 26, 2006, "A Judicial Green Light for Torture".

Collier v. Vaccaro, 51 F.2d 17 (4th Cir. 1931) (Canadian charges of murder, kidnap and larceny against informer working with U.S. narcotics agent)

Elmaghraby v. Ashcroft, 2005 WL 2375202 (E.D.N.Y.), and see Nina Bernstein, "U.S. Is Settling Detainee's Suit in 9/11 Sweep", N.Y. Times, Feb. 28, 2006

Frisbie v. Collins, 342 U.S. 519 (1952); and see Aaron Schwabach and S.A. Patchett, "Doctrine or Dictum: The Ker-Frisbie Doctrine and Official Abductions Which Breach International Law", 25 U. Miami Inter-Am. L. Rev. 19 (1993)

Jaffe v. Snow, 610 So.2d 482 (Fla. 5th Dist. 1992) and related Canadian proceedings including Jaffe v. Miller, 1994 CarswellOnt 2871 (Ont. Gen. Div.1994) (Florida bounty hunter extradited and jailed in Canada for kidnapping); Jaffe v. Smith, 825 F.2d 304 (11th Cir. 1986) (forcible repatriation by bounty hunter no obstacle to trial in U.S.)

Ker v. Illinois, 119 U.S. 436 (1886)

United States v. Alvarez-Machain, 504 U.S. 655 (1992); Sosa v. Alvarez-Machain, 542 U.S. 692 (2004); comment, Duke Law School, United States v. Alvarez-Machain & Sosa v. Alvarez-Machain; Jonathan A. Bush, How Did We Get Here? Foreign Abduction After Alvarez-Machain, 45 Stan L. Rev. 939 (1993) (PDF 148 Kb.)

United States v. Awadallah, 202 F.Supp.2d 17 (S.D.N.Y. 2002) (perjury, 9/11 testimony; Constitutional issues, discussing Toscanino)

United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974) (unlawful eavesdropping, kidnapping and torture by American agents in Uruguay; holding largely discredited by subsequent case law and rejected in other circuits: see citing references)

 

Compare the UK rule:
In re Schmidt, [1995] A.C. 339 and Reg. v. Horseferry Rd. Ct., Ex p. Bennett, [1994] 1 A.C. 42. There it is a question of the degree of official misconduct that determines whether the court shall stay prosecution when normal extradition arrangements have been bypassed.

 

Treaty and convention issues

 

With respect to the USA convention matters concern chiefly the death penalty and US courts' definition of "political crime". The latter led to a more expansive extradition treaty with the UK that (notwithstanding that it has not yet been ratified by the United States) has allowed extradition to the US of persons indicted for actions performed in the UK with effects in the USA, in cases where the UK authorities have chosen not to prosecute.

 

US-UK Extradition Treaty, 2003 (PDF 32 Kb.)

Extradition Act 2003, chapt. 41

U.S. Department of State comment

 

ECHR: Soering v. United Kingdom, 1989 ECHR 14

Canada: Canadian Charter of Human Rights: Reference re Ng Extradition, [1991] 2 S.C.R. 858

United States v. Burns, [2001] 1 S.C.R. 283

UK: Bohning v. United States, [2005] All E.R. (D) 241 (Oct) (double jeopardy (ne bis in idem; but note the "two sovereign" issue:

R. (St. John) v. Governor of Brixton Prison, [2001] EWHC Admin 543, [2002] Q.B. 613

Ramda v. Home Secretary, [2005] All E.R. (D) 223 (Nov)

United States v. Krueger, 415 F.3d 766 (7th Cir. 2005), citing Blockburger v. United States, 284 U.S. 299 (1932))

United States v. Lara, 541 U.S. 193 (2004) (tribal court)

And compare: Coumas v. Superior Court, 31 Cal. 2d 682, 192 P.2d 449 (1948) (state constitutional bar); People v. Mackle, 241 Mich. App. 583; 617 N.W.2d 339 (Ct. App. 2000) (prosecution in Canada followed by extradition and prosecution in Michigan).

Treaty rights may be abrogated by Congress: United States v. Dion, 476 U.S. 734 (1986)

 

Current cases

 

Haroon Rashid Aswat (accused terrorist; BBC report)

R. (Norris) v. Home Secretary, [2006] EWCA Crim. 280; Nikki Tait, "Businessman loses first round in extradition plea", Financial Times, Feb. 25, 2006, p. 3; Ian Norris accused of price-fixing; Cleary Gottlieb note on an earlier District Court decision, June 2005 (PDF 143 Kb.)

Bermingham, Mulgrew & Darby case, mentioned above[51]

Zoe Brennen, "Snatched by the American courts", Times (London), Mar. 19, 2006, p. 5-2

 


 

Status and immigration, including deportation issues and refugee law

 

One may see in the current context of a "war on terror"[52] (as in past crises of "clear and present danger"[53]) not only preventive measures and new criminal sanctions but the tightening of public surveillance and of control of status. Thanks to the capabilities of modern computerization these changes may, unlike past wartime measures, be irreversible. It has been a hallmark of Common Law countries that citizens are not required to carry identity documents and need not register their addresses with the local authorities.[54] The parliamentary debate in Britain over the proposal to introduce national identity cards[55], and that in the United States over security in the issuance of driving licenses[56], a quasi-identity card[57], have highlighted the issue.

A further inevitable response to the terrorist threat from abroad is to tighten border controls and visa issuance, with unintended consequences for the innocent.[58] There may be a limit: member states of the European Union, the European Economic Area and Switzerland are bound by treaty to allow unrestricted entry of nationals of other member states (except for reasons of national security, health and public policy, strictly construed).[59] The USA, Canada and Mexico have lesser mutual entry obligations under NAFTA. There may also be pressure to abrogate through legislation the grant of nationality by jus soli -- birthright citizenship[60] -- although the need for a constitutional amendment makes that a daunting proposition in the United States.[61]

Almost alone[62] among human-rights oriented legal instruments and likely due to the factual context in which the Convention was conceived, the Refugee Convention makes its protection (the grant of refugee status) dependent upon prior conduct compatible with the preservation of human rights and "the purposes and principles of the United Nations" (Refugee Convention, art. 1(f) and 33 (unworthiness))

 

Documents

 

House of Commons research paper, "Anti-Terrorism, Crime and Security Bill: Parts IV and V: Immigration, Asylum, Race and Religion" (PDF 376 Kb.)

International Organization for Migration documents (131 listed as of Jan. 17, 2006)

Congressional Research Service, Terrorist Grounds for Exclusion of Aliens (PDF 92 Kb.)

UK Home Office: "terrorist behavior" justifying exclusion

UK Terrorism bill details

 

International refugee instruments

Convention (1951) and Protocol (1967) Relating to the Status of Refugees

 

UNHCR documentation:
REFWORLD documentation search
Other document and article search

1997 testimony of INS General Counsel on terrorists, asylum and deportation (PDF 64 Kb.)

 

Newspaper article

 

Celia W. Duger, "Asylum Rules Protect Both U.S. Allies and Adversaries, I.N.S. Says", N.Y. Times, Aug. 5, 1997

 

Bibliography

 

Boston College, Immigration Law Guided Research Seminar

Marianne Wiedemann, "Naturalisation and International Terrorism under German Law"

Course documents, Prof. R. A. Boswell, UC Hastings College of the Law

Guy Goodwin-Gill, The Refugee in International Law (2d Ed. 1998)

James C. Hathaway, The Law of Refugee Status (1991)

 

Law review articles

 

In addition to the articles listed at the Gallagher Law Library site, see:

Theresa Sidebotham, "Immigration Policies and the War on Terrorism", 32 Denv. J. Int'l L. & Pol'y 539 (2004)

Chadwick M. Graham, Note: "Defeating an Invisible Enemy: The Western Superpowers' Efforts to Combat Terrorism by Fighting Illegal Immigration", 14 Transnat'l L. & Contemp. Probs. 281 (2004)

Rene Bruin and Kees Wouters, "Terrorism and the Non-derogability of Non-refoulement", 15 Int'l J. Refugee L. 5 (2003)

LAIC Hot Topics 42: Terrorism (2003)

 

Case Law: Selected Opinions

 

A v Secretary of State for the Home Department, [2004 E.W.C.A. Civ. 1123, [2004] All E.R. (D) 62 (Aug.) (addresses the 1951 Refugee Convention art. 1(f) issue; also admissibility of confessions under torture)

In re M., [1994] 1 A.C. 377 ("[T]he argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War.") And see Ian Ward, "The Story of M: A Cautionary Tale from the United Kingdom", 6 Int'l J. Refugee L. 194 (1994)

R v Immigration Appeal Tribunal ex parte 'B', CO/1852/87, [1989] Imm. A.R. 166 (effect of political activity in host country on asylum claim; anti-Khomeini Iranian)

Secretary of State for the Home Department v. Rehman, [2001] U.K.H.L. 47, [2003] 1 A.C. 153 (deference to executive in matters of national security)

 

Bastanipour v. INS, 980 F.2d 1129 (7th Cir. 1992) (Iranian Christian convert)

Jean v. Nelson, 472 U.S. 846 (1985) (Haitian asylum seeker)

Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003) (executive powers in relation to terrorism suspect)

Shaughnessy v. Mezei, 345 U.S. 206 (1953) (stateless person)

United States ex rel. Knauff v. Shaughnessy[63], 338 U.S. 537 (1950) ("Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.")

 

Ahani v. Canada, 7 Imm. L.R. (3d) 1, 77 C.R.R. (2d) 144 (F.C.A. 2000) (incarceration with view to deportation of former member of Iranian government agency engaging in terrorist activities)

Moumdjian v. Canada, 177 D.L.R. (4th) 192 (Armenian terrorist group)

Pushpanathan v. Minister of Citizenship and Immigration, [1998] 1 S.C.R. 982 (drugs trafficker; asylum claimant; discussion of art. 1(f) issues)

Ward v. Attorney General of Canada, [1993] 2 S.C.R. 689 (IRA)

 

See also: extradition cases, above. These and other cases concerned with immigration and security issues are listed and discussed on the McGill University Law Faculty Equity/Access Research Group site.

 


 

Charity, foundation, eco-terrorism issues

 

There are two separate issues here: entities that may or may not register as 501(c)(3) charitable and 501(d) religious organizations that support, directly or indirectly, terrorist activity abroad; and domestic extremist organizations that initiate and support violence for political aims, typically animal rights and environmental issues. Various Muslim charities have been before the courts in the recent past and some reported cases are included here; see also "money laundering" below.

 

Debra Morris, "Charities and Terrorism", 5 Int'l J. of Not-for-Profit Law (2002)

 

"Animal rights", anti-abortion, eco-terrorism, quasi-charity terrorism

 

American Veterinary Medical Association

An anti-animal-rights site: Animanscam.com

Anti-Defamation League: Eco-terrorism page

ARC News (UK animal rights online magazine)

EURSOC Two (Sept. 2005)

Southern Poverty Law Center:
Neal Horsley
Kevin Kjonaas

T. O'Connor, North Carolina Wesleyan College, "History of Eco-terrorism"

Wikipedia: abortion

Wikipedia: Earth Liberation Front

 

Laws and legal instruments:

 

E.O. 13224: "Blocking property and prohibiting transactions with persons who commit, threaten to commit. or support terrorism" (PDF 404 Kb.)

UK: Serious Organized Crime and Police Act 2005, 2005  chapter 15; as applicable to demonstrations and protests see R. (Haw) v. Home Secretary, [2005] EWHC 2061, [2006] 2 W.L.R. 50 (D.C.) (Brian Haw's protest in Parliament Square[64]; see Parliamentsquare.org.uk)

IRS: Chief Counsel Memorandum on foreign charities (PDF 64 Kb.)

 

Specimen cases

 

Charities:

Global Relief Foundation v. New York Times Co., 390 F.3d 973 (7th Cir. 2004) (defamation)

Global Relief Foundation v. O'Neill, 315 F.3d 748 (7th Cir.2002)

Hall v. Save Newchurch Guinea Pigs (Campaign), [2005] All E.R. (D) 301 (Mar.) (animal rights)

Hewitt v. Grunwald, [2004] EWHC 2959 (QB), [2004] All E.R. (D) 366 (Dec.) (defamation case, trustees of "Interpal", said to support Palestinian terrorism, against Board of Deputies of British Jews)

Holy Land Found. for Relief and Dev. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003)

 

Eco-terrorism and animal rights:

 

R. v. Belmar, 27 C.C.C. (3d) 142 (B.C. C.A. 1986) (Environmental terrorists)

Huntingdon Life Sciences Ltd  v. Stop Huntingdon Animal Cruelty, [2003] All E.R. (D) 280 (Jun.)

United States v. Kjonaas, D. N.J., Case # 3:04-cr-00373-AET-2, Docket; CNN report; Times (London) account; from PACER: verdict; proposed jury instructions

 

Anti-abortion:

 

National Organization for Women, Inc. v. Scheidler, 510 U.S. 249 (1994)

Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists, 422 F.3d 949 (9thCir. 2005)

United States v. Jordi, 418 F.3d 1212 (11th Cir. 2005) (enhancement of sentence)

 


 

Money laundering and the financial support of terrorism

 

"Money laundering" is an expansive term that may be attached to the handling of money in connection with any sort of offense. Much of the support of low-level terrorist activity in the Middle East, and the financing of the 9/11 attacks in the USA, has been financed by such crimes as small-scale credit card and check fraud and excise tax evasion (tobacco trafficking[65]). 

 

Case law

 

United States v. Abu Marzook, 2006 WL 250008 (N.D. Ill.); United States v. Marzook, 383 F.Sup.2d 1056 (N.D. Ill. 2005) (Hamas) (over 100 reported cases deal in some way with membership in, cooperation with or financing of Hamas)

United States v. Gilbert, 244 F.3d 888 (11th Cir. 2001) (gaming facility as money laundering enterprise)

United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004); 405 F.3d 1034 (4th Cir. 2005) (Hizballah)

United States v. Talebnejad, 342 F.Supp.2d 346 (D. Md. 2004) (hawala case)

United States v. Uddin, 365 F.Supp.2d 825 (D. Mich. 2005) (hawala case)

Arrêt du 12 décembre 2005 (Switzerland)

 

Selected statutes and international materials

 

UK: Proceeds of Crime Act 2002 and Money Laundering Regulations 2003: HM Revenue & Customs explanation (with links to the statutory and regulatory texts

Monaco: Law No. 1253 of Jul. 12, 2002 modifying Law No. 1162 of Jul 7, 1993 on participation of financial entities in the fight against money laundering

USA: 18 U.S.C. § 1956 Laundering of monetary instruments

Moneylaundering.com library of U.S. laws and regulations

UN Security Council Resolution 1373 (2001)

International Criminal Court; Wikipedia article

 

Newspaper articles

 

Peter Slavin, "Cash Flow to Hamas Is More Restricted, Deeper Underground", Washington Post, Feb. 19, 2006, p. A23

David Rose and Will Pavia, "Bank red tape stops British cash reaching quake victims" Times, Oct. 14, 2005

Salah case (Hamas funding): "Palestinian human rights lawyer testifies in Hamas trial in U.S.", Ha'aretz Daily, Mar. 15, 2006

 

Reports and documents

 

"An Anti-Money Laundering Strategy for the Inland Revenue" (PDF 192 Kb.)

Asian Development Bank, "Manual on Countering Money Laundering and the Financing of Terrorism"

Cains Advocates Ltd., Isle of Man money laundering legislation (PDF 60 Kb.)

Commodity Futures Trading Commission, Anti-Money Laundering and Terrorist Financing

Crown Prosecution Service, Money Laundering Offences

FATF "Typologies Report, 2003/2004" (PDF 188 Kb.)

Federalist Society, Money Laundering and the War on Terrorism

GAO, Investigations of Terrorist Financing, Money Laundering and Other Financial Crimes (PDF 116 Kb.)

HM Treasury Anti-Money Laundering Strategy, Oct. 2004 (PDF 948 Kb.)

HM Treasury money laundering overview

IBRD, "Anti-Money Laundering and Combating the Financing of Terrorism"

IMF, "Suppressing the Financing of Terrorism" (PDF 1 Mb.)

IRS, "Examples of Money Laundering Investigations, 2005" (annual report; others searchable on IRS site)

OECD Financial Action Task Force documents (site search; about 170 hits on Jan. 27, 2006)

OECD Financial Action Task Force on Money Laundering

U.S. Treasury, Anti-Terrorist Financing Guidelines, Federal Register, pp. 73063-73067 (Dec. 8, 2005) (PDF 76 kb.)

UK Joint Money Laundering Steering Group

UN Office on Drugs and Crime, UNODC Legal Library (drug control and related financial transaction legislation)

US Dept. of the Treasury, Terrorism and Financial Intelligence

 

France, National Police, "La lutte contre le financement du terrorisme" (in French)

Poursuite des acte de terrorisme, Lexinter (in French)

Juan Manuel Rodríguez Cárcamo, State attorney, Government of Spain, "La Prevención de la Financiación del Terrorismo" Derecho Internacional, Oct. 2004 (PDF 140 Kb.) (in Spanish)

 

Kevin Coleman, "Tracking Terrorism: Follow the Money?", Directions Magazine, May 13, 2005

Illicit funds transmission, typically by non-bank money transfer services including Western Union Financial Services, Inc. (subsidiary of First Data Corp.), MoneyGram International, Inc., PayPal (PayPal Inc. and PayPal (Europe) Ltd., subsidiaries of eBay, Inc.) and hawalas

Paul Schaafsma, "Financial Engineers Need to be Patriots Too", Financial Engineering News "Legal Factors in Finance" (2005)

 

Some law review articles; book

 

Rachel Ehrenfeld, Funding Evil: How Terrorism is Financed and How to Stop It (2003) FrontPage Magazine discussion
Ehrenfeld v. Salim A Bin Mahfouz, 2005 WL 696769 (S.D.N.Y.)

Eric J. Gouvin, "Bringing Out the Big Guns: The USA PATRIOT Act, Money Laundering, and the War on Terrorism", 55 Baylor L. Rev. 955 (2003)

Todd M. Hinnen, "The Cyber-front in the War on Terrorism: Curbing Terrorist Use of the Internet", 5 Colum. Sci. & Tech. L. Rev. 5 (2004)

Megan Roberts, "Big Brother Isn't Just Watching You, He's Also Wasting Your Tax Payer Dollars: An Analysis of the Anti-Money Laundering Provisions of the USA PATRIOT Act", 56 Rutgers L. Rev. 573 (2004)

Jeffrey P. Taft, "Internet-based Payment Systems: An Overview of the Regulatory and Compliance Issues", 56 Consumer Fin. L.Q. 42 (2002)

 


 

Other crimes

 

Smuggling, tax evasion, racketeering:

 

Counterfeiting:

(1) Of currency by one sovereign of the currency of another (viz: North Korea and Nazi Germany):

North Korea and "Old IRA"

The Wall Street Journal, "North Korea's Counterfeit Goods Targeted" June 1, 2005

Wikipedia: "Superdollar"

 

(2) Of intellectual property on behalf of terrorists:

"Interpol warns of link between counterfeiting and terrorism" Interpol memo

Hedieh Nasheri, Intellectual Property Theft, Organized Crime, and Terrorism, 4 Int'l J. of Comp. Criminology 48 (2004) (obtainable from Ingenta Connect), reprinted in Jay Albanese, ed. Transnational Crime (2005)

 

Bank robbery, kidnapping:

The Northern Bank robbery (IRA);

Colombian FARC and ELN (PDF 803 Kb.)

United States v. Melendez-Carrion, 820 F.2d 56 (2d Cir. 1987) (Wells Fargo robbery, Puerto Rican terrorists; bail issues)

Kidnapping: Colombian FARC and ELN (PDF 803 Kb.)

RICO and money laundering laws can and are used in creative fashion to deal with terrorism and other conspiracies:  United States v. Hammoud,  381 F.3d 316 (4th Cir. 2004) (Hizballah)

 

Corruption:

Transparency International

Stanley E. Morris, "Following the money trail: where corruption meets terrorism", TI Newsletter, Sept. 2002 (PDF 4 Kb.)

And see: Foreign Corrupt Practices Act
CRS Report to Congress

ABA explanation

 


 

Treason

 

The issue is the threat, real or imagined, of violent overthrow of the existing order. Underlying the modern problem is the erosion of the claim by the State to allegiance[66]: permanent in the case of its nationals, temporary in the case of non-national residents. The allowance of dual nationality implies a recognition of conflict of allegiances. This is probably inevitable with the end of unity of the family in matters of nationality and domicile, and an independent right of women to retain their nationality and to transmit it to offspring born in wedlock. Modern views of civil and human rights make it difficult for the State to demand a primacy of loyalty and to inhibit sympathy for foreign and dissident states, ethnicities and groups. It also calls into question any demand for primacy of the loyalty of its expatriates from foreign governments.[67] In the past, members of particular sects deemed threatening to the State's interests and primacy, have encountered hostility and discrimination: Jehovah's Witnesses[68], Amish[69], Seventh-day Adventists[70], Scientologists[71].

 

Wikipedia, List of convicted or accused traitors, by country

 

Case Law: Selected Opinions

 

R. v. Aeneas Macdonald, (1747) 18 St. Tr. 520

R. v. Casement, [1917] 1 K.B. 98 (Treason Act, 1351)

R. v. Joyce, [1946] A.C. 347 ("Lord Haw Haw")

 

Compare: Fujizawa v. Acheson, 85 F. Supp. 674 (S.D. Cal. 1949)

D'Aquino v. United States, 180 F.2d 271 (9th Cir. 1950), 192 F.2d 338 (9th Cir. 1951) ("Tokyo Rose")

Kawakita v. United States, 96 F.Supp. 824 (S.D. Cal. 1950), aff'd 190 F.2d 506 (9th Cir. 1951), aff'd 343 U.S. 717 (1952) (Japanese-American)[72]

 

Co-operative Committee on Japanese Canadians v. Att-Gen., [1947] A.C. 87 (expulsion of native-born, Canadian-citizen Japanese-Canadians)

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (subsequently resolved by agreement and banishment, a reminder of the Kawakita case)

Riel v. The Queen, Ex p. Riel, (1885) 10 App. Cas. 675 (Canadian métis)

 

Internment cases:

A v. Home Secretary (No. 2), [2005] UKHL 71, [2005] 3 W.L.R. 1249, reversing [2005] 1 WLR 414 (suspicion of terrorism; risk of torture if expelled)

Liversidge v. Anderson, [1917] A.C. 260

Rex v. Halliday, [1942] A.C. 206

 

Prosecution for disclosure of official secrets.

R. v. Shayler, [2003] 1 A.C. 247

Korematsu v. United States, 323 U.S. 214 (1944)

United States v. Pollard, 747 F.Supp. 797 (D.D.C. 1990), aff'd 959 F.2d 1011 (D.C. Cir. 1992)

Mordecai Vanunu case (Israel)

 

Statute law

 

"The modern treason statute is 18 U.S.C. § 2381; it basically tracks the language of the constitutional provision. Other provisions of Title 18 criminalize various acts of war-making and adherence to the enemy. See, e.g., § 32 (destruction of aircraft or aircraft facilities), § 2332a (use of weapons of mass destruction), § 2332b (acts of terrorism transcending national boundaries), § 2339A (providing material support to terrorists), § 2339B (providing material [*561]  support to certain terrorist organizations), § 2382 (misprision of treason), § 2383 (rebellion or insurrection), § 2384 (seditious conspiracy), § 2390 (enlistment to serve in armed hostility against the United States). See also 31 CFR § 595.204 (2003) (prohibiting the "making or receiving of any contribution of funds, goods, or services" to terrorists); 50 U.S.C. § 1705(b) (criminalizing violations of 31 CFR § 595.204). The only other citizen other than Hamdi known to be imprisoned in connection with military hostilities in Afghanistan against the United States was subjected to criminal process and convicted upon a guilty plea. See United States v. Lindh, 212 F. Supp. 2d 541 (ED Va. 2002) (denying motions for dismissal); [Katharine] Seelye, ['Threats and Responses: The American in the Taliban',] N. Y. Times, Oct. 5, 2002, p. A1, col. 5."

 

Hamdi v. Rumsfeld, 542 U.S. at 560-61

 

Note: Jose Padilla has since been prosecuted as a civilian
Wikipedia
Slate

 


 

Passive support of terrorists and terrorism

 

Early treason cases addressed the disloyalty of individuals owing allegiance, permanent or temporary, to the sovereign or the republic by fact of birth or presence respectively. Post-World War II cases punished treasonous propaganda and abuse of Allied war prisoners by persons owing allegiance to Allied states. At least since the Vietnam War, however, overt criticism of one's own country's war-making has been impossible of prosecution in the West. The issue has become more complex as massive immigration followed by "family reunification" of spouses and offspring has led to the formation of communities with solidarity -- to varying degrees -- to the culture and state of origin.[73] The fear of "fifth column" support of the enemy was behind the German-American Bund cases and the internment of Japanese. But such fears merge easily with fear and loathing of the "other" and blatant racism.[74] In the recent past, it has morphed -- in the Balkans and in parts of Africa -- to ethnic cleansing, genocide and murder. There is an alternative or supplementary motivation, one that was seen in Hitler's Reich too: economic advantage and the seizure of property. In the Middle East and North Africa, as earlier with massive population movement, it has led to the transportation or expulsion of ethnic groups with or without compensation. It has also led, less dramatically but no less measurably, to the erosion of minority populations in some countries and regions.[75]

 

This issue includes within it to a certain degree the charities and quasi-charities (more fully covered in the section above on financial support of terrorism) which funnel money from the ethnic communities in the West and from philosophic supporters of the aims of foreign groups which may be disposed to violence. The difference between the threat posed by al Qaeda, the Salafists[76] and their sympathizers is demographic: no other minority in the West can mobilize comparable numbers both abroad (in Asia and Africa) and locally (in Europe, the Americas and Australia). The Muslim Diaspora can be called upon to demonstrate solidarity over specific issues, and for funds.[77]. The incident over the caricatures of Mohammed published first in Denmark and then elsewhere is illustrative.[78] The lack of symmetry between the expectations of and demands for by many Muslims of Western respect for theirs, and their own disdain for Western, values, norms and symbols should be unsurprising.[79] Other violent groups, too, find solidarity in Westernized migrant communities abroad, some of whom may deem those members of their faith who practice a more orthodox and literal version of it to be worthy of respect and support.[80] It is impossible to know how widespread such support for the more religiously observant may be[81] although litigation following the closure by U.S. authorities of certain Muslim charities provides at least anecdotal information. The Israeli peace movement has provided some details of the funding of West Bank settlements and of "violence-prone settlers".[82]

 

The most unfortunate source of passive support for terrorism is an unreasoned enmity and a schadenfreude based on no greater logic than "the enemy of my enemy is my friend".[83] On the other hand, Christopher Harmon (below) reminds us that "most terrorist groups come to an end".

 

Some articles

 

Christopher C. Harmon "How al-Qaeda May End", (Heritage Foundation, May 2004)

Daniel Byman, "Passive Sponsors of Terrorism", 47 Survival (Brookings, 2005)
(explained in Byman, "Deadly Connections: States that Sponsor Terrorism" (2005)
Georgetown Univ. description; Cambridge Univ. Press description)

Democracy and Islamism: F. Gregory Gause III, "Can Democracy Stop Terrorism?", Foreign Affairs, Sept/Oct. 2005

Library of Congress, The Psychology and Sociology of Terrorism (Sept. 1999) (PDF 1.4 Mb.)

Paul K. Davis & Brian Michael Jenkins, "Deterrence & Influence in Counterterrorism," RAND Corporation (2002)

 

A collateral issue is that of apologetics and of propaganda support for terrorists, past and present. Holocaust denial is a crime in some countries.  Statutes are being enacted and prosecutions attempted for giving encouragement to terrorists and "aid and comfort to the enemy".

 

"Abu Hamza al-Masri convicted" (CNN)

 

Case law

 

United States v. Al-Arian, 308 F.Supp.2d 1322 (M.D.Fla. 2004)

United States v. Al-Arian, 329 F.Supp.2d 1294 (M.D.Fla. 2004) (ruling on gov't motion on scienter)

Case comments: "Al Arian acquitted" (Miami Herald)
Tampa Tribune, Al Arian special reports
Campus Watch: collection of articles on Campus anti-Zionism and anti-Semitism, including the Al Arian case
Eric Boehlert, "The prime-time smearing of Sami Al-Arian" Salon.com (2002)

 

Libel cases, and their limitations

 

The issue is retaliation for an accusation of involvement in or support of terrorism. United Kingdom courts are particularly hospitable to plaintiffs in libel cases. In addition to the cases where organizations have sought to avoid classification as supporters of terrorism, there is potential for litigation over published allegations, or over expressions of an essentially political nature, as in the cases below. In the USA, First Amendment rights as explained in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) severely limit in the United States the scope of actions in defamation and for enforcement of foreign libel judgments. An alternative form of intimidation, SLAPP suits, has achieved a certain notoriety there.[84] The cases here cited have a nasty political, but not a genuine terrorism, aspect. Defamation, leafleting and the haranguing of clientele are not on the plane of economic sabotage, violence and threats of physical harm (see "eco-terrorism", above). Legislation against revisionism (Holocaust denial and the like) appealing to violent nationalist extremists raises yet further issues regarding the proper way to deal with incipient domestic terror.

 

Bachchan v. India Abroad Publications, Ltd., 154 Misc.2d 228, 585 N.Y.S.2d 661 (Sup.Ct. N.Y. Co. 1992) (First Amendment issues)

Cassel & Co. Ltd. v. Broome, [1972] A.C. 1027

Irving v. Penguin Books, [2000] All E R. (D) 523
and see, regarding Irving's 2006 conviction and imprisonment in Austria: Roger Boyes, "Backlash at jailing of historian who denied Holocaust", Times, Feb. 21, 2006; Brian Wilson, "Is David Irving any different from a racist skinhead?", Scotland on Sunday, Feb. 26, 2006

Matusevitch v. Telnikoff, 877 F.Supp 1 (D.D.C. 1995)

The classic libel case may be -- for the record length of its trial, for its triviality and for its misspent judicial resources[85] -- McDonald's Corp. v. Steel and Morris, Queen's Bench, June 19, 1997, abridged judgment; Court of Appeal, Mar. 31, 1999 judgment. Judgments and transcripts also at McSpotlight.org
John Vidal, McLibel: Burger Culture on Trial (1997). European Court of Human Rights judgment: Steel and Morris v. United Kingdom, ECHR, Case No. 68416/01 (finding violations of art. 6(1) and 10 of the Convention); summary and analysis

 

More on the conflict between globalization and culture and the involvement of legal systems:

Robert Wai, "Countering, Branding, Dealing: Using Social Rights in and around the international trade regime", 14 Eur. J. Int'l L. 35 (2003)

Benjamin R. Barber, "Jihad vs. McWorld", Atlantic Monthly, Mar. 1992 (and his 1995 book of the same title)

 

On apologists for terrorism

 

Ted Honderich, "The Right to Terrorism" (anti-American, anti-Semitic bias leads to apologia)

On the (UK) Terrorism Bill and provisions against "glorifying terrorism":

Bill as original presented (PDF 316 Kb)

Political analysis:
Wikipedia article
Politics.co.uk

Newspaper report: Philip Webster and Greg Hurst, "Blair wins fight to ban glorifying of terrorism", Times, Feb. 16, 2006, p. 1, and editorial (leader) "Glorifying nonsense: Vague proposals inevitably make for bad law"

 

Cuba and other hostile countries: This is a politically and diplomatically difficult subject. Pragmatism and expedience can be seen in official the relationship over time to the governments of enemy and former enemy states, and to free-lance activists, to mercenaries and to incendiary propaganda. See, e.g., on Luis Posada Carriles: Tim Winer, "Case of Cuban Exile Could Test the U.S. Definition of Terrorist" and Wikipedia; Posada is mentioned in United States v. Campa, 419 F.3d 1219 (11th Cir. 2005), vacated and en banc hearing ordered, 429 F.3d 1011 (11th Cir. 2005).

 

See also the Neutrality Act of 1937

 


 

"State Terrorism"

 

This is a title easily and conveniently applied to the acts, the failure to act and the inability to act of feared or despised pariah states and governments (as in "axis of evil"). It is as easily used by the accused as by the accusers.[86] The term is thus weakened by its extensive use for propaganda purposes by left and right and it has appeared in few legal judgments. It encompasses governments that rule by terrorizing their own citizens[87] and is distinguishable from the more banal "state-sponsored terrorism" undertaken by non-governmental parties with the connivance or support of the state. Just as the inverse of "terrorist" is "freedom fighter", the inverse of defense against terrorism, or defense of the status quo and vested interests, is bound to also to attract the "state terrorism" label for some. The more so as one of the aims of terrorism is to provoke violent response, and perhaps over-reaction, from the authorities of the target state. The term is probably more political than legal, and for our purposes ought to be restricted to events and situations of the sort that have come before tribunals, domestic and international and international bodies. The Nuremburg and Tokyo trials, the International Criminal Tribunal, the ICTY and other tribunals charged with prosecuting perpetrators of particular atrocities, the UN and domestic cases seeking asylum and refugee status, punishment of foreign officials or recompense for wrongful death, torture, injury and loss constitute relevant case law. Military action in defense of empire and other displays of overwhelming power to intimidate others either by way of reprisal or to protect of paramount national interests have yielded uncountable instances of the deliberate use of terror or the toleration of terror by state actors or by members of one ethnic group against another. Genocide is just one example.

Terror, domestic or cross-border, may be unleashed by dysfunctional government or by the venality of rulers as an instrument of policy or by inability to govern: the Khmer Republic, Sierra Leone, Liberia, Bosnia, Afghanistan, Iraq, Ivory Coast, Sudan, Somalia, Rwanda, Haiti and, arguably, Zimbabwe at various times are examples, in no particular order. Non-state actors like the Lord's Resistance Army in Uganda and warlords in a number of other countries are subsets of the foregoing. To a greater or lesser extent, such terror will have overseas implications, economic, political and demographic.

 

General information, Wikipedia

Scott Atran, "Strategic Blunder: Confounding Rogue States and Terrorist Networks" (Feb. 2004) (PDF 212 Kb.)

Algerian war: terror as an instrument of war

International Law Commission, Commentaries to Draft Articles on Responsibilities of States for Internationally Wrongful Acts (Nov. 2001) (PDF 1.3 Mb.)

American Bar Association Report: U.S. Foreign Sovereign Immunities Act (Apr. 2001) (PDF 276 Kb.)

Pelin Turgot, "Senior general 'stoked Kurdish conflict to keep Turkey out of EU'", Independent, Mar. 9, 2006

 

The Nuremburg Trial and the Eichmann case
(terror, genocide as instruments of government policy)

 

Nuremburg Trial, 6 F.R.D. 69 (1946)

Attorney-General of the Government of Israel v. Eichmann, 36 ILR. 5 (1961)

Green, The Eichmann Case, 23 Modern Law Review 507 (1960)

Harry Mulisch et al, Criminal Case 40/61, the Trial of Adolf Eichmann: An Eyewitness Account (2005)

Peace Palace Library bibliography

 

Libya

 

In 1992 the United Nations Security Council condemned Libyan involvement in international terrorism (Resolutions 731 and 748) (discussion in: Gaddafi v. Telegraph Group Ltd, [2000] EMLR 431)

Bernhard Graefrath, Leave to the Court What Belongs to the Court: The Libyan Case, 4 Eur. J. Int. L. 184 (1994)

Lockerbie Case

Univ. of Syracuse, timeline

American Society of International Law, Insight (March 1998)

 

International Tribunals

 

International tribunals, statutes

Global Policy Forum on an international tribunal for Cambodia

American Society of International Law, EISIL resources

"Bringing the wicked to the dock", Economist, Mar. 11, 2006, p. 22

 

Other "universal jurisdiction" cases and issues

 

General:

ASIL Insight, "World Court Orders Belgium to Cancel an Arrest Warrant Issued Against the Congolese Foreign Minister"

ASIL Insight: "U.S. Courts Rule on Absolute Immunity and Inviolability of Foreign Heads of State: The Cases against Robert Mugabe and Jiang Zemin"

ACLU "Civil Liberties Report" (PDF 20 Kb.)

ABA Standing Committee on Law and National Security (PDF 148 Kb.)

Amnesty International

Wikipedia article

Conal Urquhart, "Israel scorns 'anti-semitic little Belgium'", Guardian, Feb. 14, 2003

 

ICJ:

(U.S. - Iran)

(France - Congo)

(Belgium - Congo)

(genocide)

Comment, Cath. Univ. of Leuven, Institute of International Law, Working Paper No. 25 (Jan. 2003) (PDF 108 Kb.)

 

United States cases

 

Libya: Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984)

Smith v. Socialist People's Libyan Arab Jamahiriiya, 886 F.Supp. 306 (E.D.N.Y. 1995)

Price v. Socialist People's Libyan Arab Jamahiriya, 389 F.3d 192 (D.C. Cir. 2004)

Chile: Letelier v. Republic of Chile, 488 F.Supp. 665 (D.D.C. 1980); 748 F.2d 790 (2d Cir. 1984)

Guatemala: Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)

Saudi Arabia: In re Terrorist Attacks on Sept. 11, 2001, 349 F.Supp.2d 765 (S.D.N.Y. 2005)

Iran: Flatow v. Islamic Republic of Iran, 999 F.Supp. 1 (D.D.C. 1998) (but compare: Glenn Kessler, "Administration Blocks Ex-Hostages' Bid for Damages From Iran", Washington Post, Mar. 19, 2006, p. A01)

Iraq: Daliberti v. Republic of Iraq, 97 F.Supp.2d 38 (D.D.C. 2000)

PLO (a "liberation organization", subsequently (as Palestinian Authority) a government with state-like qualities for some purposes: Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir. 1991))

Boim v. Quranic Literary Institute, 340 F.Supp.2d 885 (N.D. Ill. 2004) (Hamas)

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1996) (Bosnia)

United States v. Moussaoui, 65 Fed.Appx. 881 (4th Cir. 2003); 382 F.3d 453 (4th Cir. 2004) (classified testimony, access to incarcerated combatant witnesses; includes list of case citing this case through March 2005); indictment; order barring Government use of aviation-related evidence; and see, on start of Moussaoui trial, Jerry Markon, "The Man Who Wasn't There on 9/11", Washington Post, Mar. 4, 2006, p. A01; Jerry Markon and Timothy Dwyer, "Federal Witnesses Banned in 9/11 Trial", Washington Post, Mar. 15, 2006, p. A01; Stephen Labaton and Matthew L. Wald, "Lawyer Thrust Into Spotlight After Misstep in Terror Case", N.Y. Times, Mar. 15, 2006.

 

UK cases

 

In re Pan American World Airways, [1992] Q.B. 854

R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex p., Pinochet Ugarte, [2000] 1 A.C. 61; [2000] 1 A.C. 147; SOSIG bibliography on the Pinochet case

 

Belgian case against Ariel Sharon:

Procureur général c/ Sharon (in French)

 

Afghan, Iraqi, Geneva Convention issues

 

Abu Ghraib: Ibrahim v. Titan Corp., 391 F.Supp.2d 10 (D.D.C. 2005)

International Committee of the Red Cross

Human Rights Watch

American Society of International Law

ECOSOC Human Rights Commission, Situation of Detainees at Guantánamo Bay (PDF 348 Kb.)

Letter from 260 physicians to The Lancet, 367 Lancet 811 (2006) (force-feeding)

Con Coughlin, "Trapped in a legal no-man's land", Daily Telegraph, Feb. 17, 2006

Kim Sengupta, "Voices from Guantánamo", Independent, Mar. 6, 2006

Richard Norton-Taylor and Suzanne Goldenberg, "Judge's anger at US torture", Guardian, Feb. 17, 2006[88]

Wiki News on Australian/British prisoner: David Hicks gets British Citizenship

Criticism by lawyer for prisoners: "American Gulag", Los Angeles Times, Feb. 26, 2006

New York Times editorial, "They Came for the Chicken Farmer", Mar. 8, 2006

George B. Micklum, "MI5, Camp Delta, and the story that shames Britain", Independent, Mar. 16, 2006

Camp Nama: Eric Schmitt and Carolyn Marshall, "In Secret Unit's 'Black Room,' a Grim Portrait of U.S. Abuse", N.Y. Times, Mar. 19, 2006

 


 

Religion and terrorism

 

The historical link between religion and aggression is notorious, reaching back to antiquity and continuing to the present. Indeed, modern concepts of human rights and refugee law stem from the World War II and the Cold War eras. Extremists of all kinds have conducted, incited, or supported terrorist acts, but most are isolated atrocities by individuals and small groups, or assassinations, although a martyr may later be made icon of a particular terrorist movement: Baruch Goldstein[89] and uncountable numbers of suicide bombers, particularly Palestinians who have attacked or died attempting to attack Israeli targets. Religion may be only one element of ethnicity in regional terrorism, as with the Tamil Tigers[90]. Within Islam, murderous hostility simmers between the major divisions, Shia and Sunni[91] and against minor sects such as the Ahmadis, deemed heretics in Pakistan and denied there the status of Muslims.[92]

 

A compilation of articles on religious radicalism in South Asia.

 

While the United States has been threatened from within, notably by millenarian and neo-Christian militia groups[93], it is the 9/11 hijacking-murders (New York, Washington, Pennsylvania) (and in England the 7/7 London bombing-murders[94]) by radical Muslims that have generated the most fear. There is a theoretical, doctrinal underpinning to this Islamic radicalism which can be traced to the Muslim Brotherhood[95] and the writings of Sayyid Qutb[96] which castigate the Islamic civil state as well as the west for "jahiliyyah" (ignorance of divine guidance) -- justifying jihad. Qutb rejects civil sovereignty and nationality, all sovereignty belonging to Allah; a rejection taken further by others who demand a return to the Muslim Caliphate[97]. The Deoband school (of which the Taliban are representative but naive[98]) has taken such integrist teachings to extremes.[99]

 

Cases: militia and radical Christian sects; religious-based provocation

 

Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997) (Ruby Ridge)

Andrade v. Chojnacki, 338 F.3d 448 (5th Cir. 2003) (Branch Davidians, Waco)

Westboro Baptist Church v. Patton, 32 Kan.App.2d 941, 93 P.3d 718 (2004) (tax exemption claim of wildly anti-gay, anti-Semitic Church that celebrates natural and terrorist disasters as "just punishment"); details on church's Web site

 

Other reports and articles

 

On religious extremists in Britain: New York Times OpEd, Jul. 8, 2005, "Our Ally, Our Problem"

CRS, "Islamic Extremism in Europe"

"Made in America Wahhabism", Los Angeles Times, Mar. 8, 2005

Wikipedia: "Militia Groups"

Religious extremism driving out modernism: John M. Broder, "For Muslim Who Says Violence Destroys Islam, Violent Threats", N.Y. Times, Mar. 11, 2006

 

The asymmetry of the demands of Islamists and some other Muslims regarding religious-based issues, and law in the USA and Europe arise first in the reservations regarding human rights, and the Arab Charter of Human Rights, and, in 2006, in the matter of the cartoons of Muhammad published first in Denmark and then in many other countries. But dual standards are nothing new, and as law ago as UNCTAD, representatives of African and Asian nations justified them by pointing out that it was the West that had (1) enunciated the standards and (2) declared that it was observing them. There is a particular problem with titled officials of revealed religions who claim exclusivity for their faiths: ecumenism is both modern and liberal.

 

A few newspaper articles:

Anthony Shadid and Kevin Sullivan, "Anatomy of the Cartoon Protest Movement", Washington Post, Feb. 16, 2006, p. A01

Daniel Howden et al., "How a meeting of leaders in Mecca set off the cartoon wars around the world", Independent, Feb. 10, 2006

"How Liberal Britain Let Hate Flourish", Times, Feb. 12, 2006

and an earlier article on sectarian conflict in Denmark

Kevin Sullivan, "Denmark Tries to Act Against Terrorism as Mood in Europe Shifts", Washington Post, Aug. 29, 2005, p. A09

Compare the Voltaire incident in France: Andrew Higgins, "Blame It on Voltaire: Muslims Ask French To Cancel 1741 Play", Wall Street J., Mar. 6, 2006, p. 1

 

Other articles:

Wolfgang Palaver, Katholisch-Theologische Fakultätder Universität Innsbruck, "Terrorismus: Wesensmerkmale, Entstehung, Religion"

(Google machine translation)

A hostile retort to Islamic revisionism: Andrew G. Bostom, "Eurabia's Morass Elicits Mythical 'Solutions'"

Some of the issues are discussed by this author's article, "'Islamic Land': Group Rights, National Identity and Law", at 3 UCLA J. Islamic & Near E. L. 53 (2004) (Westlaw citation: 3 UCLAJINEL 53; Lexis citation: 3 JINEL 53)

 


 

Medical preparedness and bio-terrorism

 

Centers for Disease Control and Prevention, resources on terrorism

 

World Health Organization, documentation

 

Manning and Goldfrank, Preparing for Terrorism: Tools for Evaluating the Metropolitan Medical Response System Program (2002)

 

PBS, NOVA Biowarfare and Bioterror

 

Interpol: Bio-terrorism

 


 

Cases addressing some miscellaneous legal issues

 

Anti-suit injunction

Bank of Tokyo Ltd. v. Karoon, [1986] 3 All E.R. 468 (C.A.)

 

Torture

Al Adsani v. United Kingdom, C.A. Jan 21, 1994

 


 

Counter-terrorism and Human Rights

 

Yale Avalon Project Diana Human Rights Archive

Int'l Peace Academy, Human Rights, the United Nations and the Struggle Against Terrorism (2003) (PDF 216 Kb.)

UNHCR, Terrorism and human rights

Inter-American Commission on Human Rights

University of Minnesota Human Rights Library

AIDH List of human rights instruments (in French)

Carters (Orangeville, ON law firm), Anti-Terrorism Law Resources

 

European cooperation

 

European Union: Freedom, Security and Justice

"Fight Against Terrorism"

 

Council of Europe

 

ICRC: Especially "International humanitarian law and terrorism"

 


 

Relevance of the Law of War, the Geneva Conventions

 

Kenneth Roth, "The Law of War in the War on Terror", Foreign Affairs, Jan-Feb. 2004

John Yoo, "Behind the 'Torture Memos'", Mercury News, Jan. 2, 2005

Alexis Markels, "Will Terrorism Rewrite the Laws of War?", NPR, Dec. 6, 2005

Daniel Moon, "The Geneva Conventions, POWs, and the War on Terrorism", 1 Strategic Insights (Sept. 2002)

Crimes of War Project, Washington, DC

Council of Europe, Findings: Enemy Combatants and the Geneva Conventions

Center for American Progress, Washington, DC, Memorandum on the Geneva Conventions (significance for safety of U.S. troops)

Anthony Dwarkin, "Rethinking the Geneva Conventions", Global Policy Forum, Jan. 30, 2003

Human Rights Watch, On the requirements of the Geneva Conventions, Jan. 28, 2002

 


 

Other

 

Statutes and bills; legislative projects; commentaries

(selection based on on-line availability and provided as examples, not an exhaustive survey)

 

Australia

Anti-Terrorism Bill 2005 (PDF 332 Kb.)

Parliamentary Library, advice and analysis (PDF 308 Kb.)

Wikipedia

Democratic Audit of Australia documents
Christopher Michaelson, "Australia's Antiterrorism Laws Lack Adequate Oversight Mechanisms" (PDF 40 Kb.)
Jenny Hocking, The Anti-Terrorism Bill (No 2) 2005: When scrutiny, secrecy and security collide (40 Kb.)
Michael Kirby, "Terrorism and the Democratic Response: A Tribute to the European Court of Human Rights"

 

New South Wales

Crimes Legislation Amendment (Terrorism) Bill

 

Belgium

La Belgique mieux armée dans la lutte contre le terrorisme

Un projet de loi «antiterroriste» hâtif et liberticide

Terrorisme: un projet de loi controversé

 

Canada

Anti-terrorism activities

Anti-Defamation League

 

Germany

University of Kassel, Peace research

Die Zeit, Politik (in German)

 

France

Legislation

Projet de loi relatif à la lutte contre le terrorisme

Exposé des motifs

Rapport par Alain Marsaud

Amendements déposés sur le texte No. 2615

Dossier législatif (http://www.senat.fr/dossierleg/ppl03-365.html)

Loi autorisant la ratification de la convention internationale pour la répression du financement du terrorisme

"Loi relative à la lutte contre le terrorisme et portant dispositions diverses relatives à la sécurité et aux contrôles frontaliers"

Communiqué commun LDH, SM, SAF, DELIS, IRIS, Antivideo-IDF - Nov. 23, 2005

Liberty & Security comment

Human Rights Watch comment

Rapport d'information (PDF 548 Kb.)

 

Case law

Conseil constitutionnel

Decision No. 86-213 DC, Sept. 3, 1986, "Loi relative à la lutte contre le terrorisme et aux atteintes à la sûreté de l'Etat"

Advocate General's opinion

Analyzed here

Comparison of French and Irish counter-terrorism jurisdictional issues

Revue de l'actualité juridique française

 

Germany

Gibt es Recht in Terrorismus (lecture, Leipzig Univ., Oct. 19, 2003) (PDF 120 Kb.)

Die internationale Bekämpfung des Terrorismus mit Mitteln des Rechts: Erich Kussbach, Péter Pázmány Catholic University

Terrorism as a Challenge for National and International Law - Security versus Liberty?, (Hrsg.) Ch. Walter, S. Vöneky, V. Röben, F. Schorkopf, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, Bd. 169. Springer Verlag, Heidelberg 2003.

 

Luxembourg

 

Philippines

Philippines Anti-Terrorism Bill

"United Nations, the International Rule of Law and Terrorism" (PDF 148 Kb.)

Philippines Terrorism: The role of militant Islamic converts (International Crisis Group, Dec. 2005) (PDF 1.3 Mb.)

 

South Africa

Anti-Terrorism Bill, 2000

 

Spain

Ley Orgánica 4/2003, de 21 de mayo, complementaria de la Ley de prevención y bloqueo de la financiación del terrorismo

Derechos (bills, international instruments; in Spanish)

El Mundo, Madrid train bombing, March 11, 2004

El Pais

 

Switzerland

Penal Code, Financement du terrorisme Art. 260quinquies

 

Trinidad and Tobago (PDF 88 Kb.)

 

United Kingdom

Prevention of Terrorism Act

Home Office, "Terrorism and the Law"

Terrorism Bill (text)

Terrorism Bill (as amended)

Statewatch, Parliamentary human rights papers (PDF 260 Kb.)

Prevention of Terrorism Bill, briefing papers

Prevention of Terrorism Bill, explanatory notes

Law Society, briefings

Cryptome, archived documents

Amnesty International, Briefing on the Terrorism Bill

Human Rights Watch, Terrorism Bill 2005

Liberty, terrorism

Wikipedia, Terrorism Bill 2005

"Public Whip" Parliamentary voting data

SOSIG, Terrorism Bill

SOSIG, Departments of Defense

 

United States

Thomas, terror legislation

Public Law No: 107-56, 115 Stat. 271, USA PATRIOT Act, H.R. 3162  

Epic, terrorism

Epic, USA PATRIOT Act

ACLU, terrorism law

Terrorism risk insurance act of 2002

Cornell Law School, LII Backgrounder on Terrorism Law

 

Government, academic and scholarly reference sites, archives

 

On the conflation of the Iraq war and terrorism:

L'empire contre Iraq, Le Monde Diplomatique dossier ("La menace terroriste") (in French)

Leila Sadat, Terrorism and the Rule of Law (abstract; UN issues)

"Find Articles"

Questia

GPO Bookstore

Library of Congress: Thomas

"Resource Shelf"

US Mission to the United Nations

WORLDLII

Peace Palace Library, The Hague

International Committee of the Red Cross

Biblioteca Jurídica Virtual (in Spanish)

US Department of State

 

Government reports

 

Congressional Research Service, Report RL32223, Foreign Terrorist Organizations, Feb. 6, 2004 (PDF 396 Kb.)

Congressional Research Service, Issue Brief IB95112, "Terrorism, the Future, and U.S. Foreign Policy", Nov. 2, 2001 (PDF 168 Kb.)

Other CRS Reports

Congressional Research Service: Gary Price, GWU, archive

CRS, State Department archive

CRS, Federation of American Scientists archive

U.S. Department of State, 2001 Report on Foreign Terrorist Organizations

U.S. Department of State, Patterns of Global Terrorism

-- "Bad data forces change in terrorism report"

U.S. Joint Chiefs of Staff, National Military Strategy of the United States of America 2004 (PDF 460 Kb.)

9/11 responses

UK: Legislation against terrorism: a consultation paper (Dec. 1998)

 

Articles, Documents: skeptical, contrary and critical views

 

Henry C. Lieu, World Order, "Failed States and Terrorism", Asia Times, Feb. 2004

Federation for American Immigration Reform (anti-immigration lobby group)

Abraham D. Sofaer, former Legal Advisor, U.S. Department of State, Hoover Institution Newsletter, Winter 2002, "Time to stop playing games with terrorists" ("It requires a shift from responding to terrorist attacks as ordinary crimes to using military force wherever and whenever necessary to prevent attacks.") See also "On the Necessity of Pre-emption" 14 Eur. J. Int'l L. 109 (2003)

Simon Chesterman, "Just War or Just Peace After September 11", 37 J. Int'l L. & Politics 281 (2005) (PDF 104 Kb.)

Review of Benjamin and Simon, "Are We Safer?", N.Y. Rev. of Books, Mar. 9, 2006

William Blum, Rogue State (2000), excerpts from book; San Francisco Chronicle article

 

Middle East matters

 

Jerusalem Media and Communications Centre

Middle East Media and Research Institute

Anglo-American Committee of Inquiry, Palestine 1916-1999

Gershom Gorenberg, "Israel's Tragedy Foretold", N.Y. Times, Mar. 10, 2006 (legal issues regarding West Bank settlements)

 

 

 

350 selected newspaper accounts of terrorist-related political and legal activity that have informed the research for this project since April 2005 (few of which are cited in the text above) have been indexed and linked.

 

 

 

 



[1] See the writings of Ernest Gellner and Benedict Anderson.

[3] Yoav Gelber, Palestine 1948 War, Escape and the Emergence of the Palestinian Refugee Problem, at 298-302 (2001). The European -- and Israeli -- expectation is compromise and concession; the Palestinian is "justice" without regard to compromise or counterclaim and this without regard to issues of security.

[4] Michael Herz, "'Do Justice!': Variations of a Thrice-Told Tale", 82 Va. L. Rev. 111 (1996).

[5] N.Y. Times editorial, "The Judges Made Them Do It", Apr. 6, 2005;  Gina Holland, "Ginsburg Reveals Details of Threat", Washington Post/AP, Mar. 15, 2006; Washington Post, Charles Lane, "Ginsburg Faults GOP Critics, Cites a Threat From 'Fringe'", Washington Post, Mar. 17, 2006, p. A03.

[6] On this see Stelio Séfériadès, "L'échange des populations", 25 Rec. des cours 307 (1928-IV).

[7] Jean S. Saba, L'Islam et la nationalité (1931); Paul Ghali, Les Nationalités détachées de l'Empire Ottoman à la suite de la Guerre (1934); Abdelouahed Belkeziz, La Nationalité dans les Etats arabes (1963); Bruce Maddy-Weitzman, The Crystallization of the Arab State System, 1945-1954 (1993).

[10] F. T. Piggott, "The 'Ligeance of the King'", The Nineteenth Century and After, No. 464, Oct. 1915, p. 729.

[11] Law of July 14, 1798, 1 Stat. 597; e.g., United States v. Callender, 25 F.Cas 239 (C.C.D.Va. 1800) (No. 14,709).

[12] Prohibiting the teaching of foreign languages in primary schools; see Meyer v. Nebraska, 262 U.S. 390 (1923); Bartels v. Iowa, 262 U.S. 404  (1923).

[13] Among them United States v. Baeker, 55 F.Supp. 403 (E.D. Mich. 1944).

[21] Jurist
University of Missouri-Kansas City Law School "Famous Trials"
FBI, "Mississippi Burning"
Court TV

[23] See Frances FitzGerald, Fire in the Lake (1972).

[24] Israel Ministry of Foreign Affairs, Terrorism
British National Archives, 11 documents concerning Irgun

[27] An erosion of human, civil and even political rights may be counted among these.

[28] Menahem Begin (and see: Jean Shaoul, "Terrorism and the Origins of Israel" (Al Jazeera; repeating an essay that appears on numerous anti-Zionist and anti-Israel Web sites)); Yassir Arafat (but see: "The Nobel After Arafat"); Gerry Adams; Nelson Mandela (Umkhonto we Sizwe; see also Wikipedia's account).

[32] Wikipedia; Richard Garwin, Council of Foreign Relations, letter to APS Forum on Physics and Society, vol. 28, Jan. 1999

[33] The issues decided by cited judgments may be peripheral to terrorism as a research subject; they are included for illustrative purposes. Few decisions address the definition of "terrorism" as such, and indeed black-letter law can only punish specific acts and deeds. See Humanitarian Law Project v. U.S. Dep't of Justice, 380 F.Supp.2d 1134 (C.D. Cal. 2005). 18 U.S.C. § 23339B(g)(6) provides: "'terrorist organization' means an organization designated as a terrorist organization under section 219 of the Immigration and Nationality Act": in other words, an organization so designated from time to time by the Secretary of State.

[34] Published at 53 Int'l & Comp. L.Q. 537 (2004).

[35] Apparently nonpartisan, but with a stated agenda "to support the defense of democratic societies under assault by terrorism and Militant Islamism."

[36] Information "about events and trends in those societies which are strategically or tactically important to the United States"

[37] See, on the reliability of Wikipedia entries, "Wikipedia under the microscope over accuracy", Independent, Mar. 13, 2006; "Anonymous Source Is Not the Same as Open Source", N.Y. Times, Mar. 13, 2006

[38] Blackmer v. United States, 284 U.S. 421, 437 (1932) (Writ of certiorari; fines imposed on a U.S. citizen resident in France for disobeying a subpoena to testify in a criminal case). For background on Henry Blackmer, see "Cripple Creek History". The case attracted substantial contemporary interest in France, and a book: Albert Gouffre de Lapradelle, Affaire Henry M. Blackmer extradition (1929).

[39] But see the Letelier v. Republic of Chile cases, 488 F.Supp. 665 (D.C.D.C. 1980); 502 F.Supp. 259 (D.C.D.C. 1980); 748 F.2d 790 (2d Cir. 1984) (F.S.I.A. issues).

[40] Bob Woffinden, Miscarriages of Justice (1987); Jessica Blanc and Erc Jenses, The Exonerated. Referred to in the latter play is the convictions of Sonia Jacobs (Jacobs v. Singletary, 952 F.2d 1282 (11th Cir. 1992)). See also Northwestern Law School Center on Wrongful Convictions

[41] Adam Liptak, "Serving Life, With No Chance of Redemption", N.Y. Times, Oct. 5, 2005; Adam Liptak, "To More Inmates, Life Term Means Dying Behind Bars", N.Y. Times, Oct. 2, 2005.

[42] The author was petroleum attaché ("regional resources officer") at the U.S. Embassy in Tehran on Nov. 4, 1979 but fortuitously escaped being taken hostage. There had been a similar demonstration a few days earlier which was defused. Classified exchanges between the Embassy and Washington on the issue of giving the Shah a visa were included by the Embassy attackers among many purloined cables published as "Documents from the nest of spies".

[43] Biographic notes: Samuel K. Doe

[47] Shibley Telhami, "In the Mideast, the Third Way Is a Myth", Washington Post, Feb. 17, 2006, p. A19

[48] Celia W. Dugger, "Asylum Rules Protect Both U.S. Allied and Adversaries, I.N.S. Says", New York Times, Aug. 5, 1997

[49] See below, "Status and Immigration".

[51] See note 50.

[52] "War" must be in the figurative sense, since the "enemy" remains undefined except in the imagination. This creates a problem in purporting to apply (or not) the laws of war. There is, in any case, an asymmetry and a risk of the "war" degenerating into a typical colonial conflict. In Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003) the Second Circuit had to address whether the President has "inherent power" to detain a suspected or presumed enemy combatant "for the duration of armed conflict". That the conflict is with a non-sovereign enemy without corporate existence or centralized power structure was not addressed, but the possibility of its indefinite duration was.

[53] Words used by Mr. Justice Holmes in Schenck v. United States, 249 U.S. 47 (1919) and in 107 U.S. Supreme Court judgments since then.

[54] For purposes of comparison, the European Commission Web site shows the registration requirements for each member state

[56] And, potentially, the insurance coverage of unlicensed drivers. The misrepresentation issue is addressed in a few cases including Perez v. Ohio Casualty Ins. Co., 2005 WL 2363828 (N.J. Super.) and State Farm Ins. Co. v. Sabato, 767 A.2d 485 (N.J. Super. 2001).

[58] Nina Bernstein, "Seized With Heavy Hand at Border, For Paperwork Errors", N.Y. Times, Feb. 10, 2006

[59] See a string of European Court of Justice cases severely limiting the right of member states to exclude European citizens, notably R. v. Pieck, [1980] E.C.R. 2171 (lack of residence permit) and Van Duyn v. Home Office, [1974] E.C.R. 1337 (staff member of Church of Scientology), Adoui & Cornuaille v. Belgium, [1982] E.C.R. 1665 (prostitution).

[60] See the writer's paper on this subject, submitted to the Council of Europe Conference on Nationality in October 2004.

[61] Already the exercise of family reunification claims have been hindered: the issuance of K (fiancé(e)) visas and immigrant visas for spouses and immediate family are subject to strict conditions and some delay. USCIS "How do I bring my fiancé(e) to the United States?" (with links to relevant U.S. Code and C.F.R. provisions)

[62] The Convention Relating to the Status of Stateless Persons copies it nearly verbatim.

[63] Reported in N.Y. Times: March 27, 1951, pp. 1, 18; Nov. 2, p. 11; Nov. 3, pp. 1 & 5; 4 Nov., p. 42; Ellen Raphael Knauff, The Ellen Knauff Story (1952), includes the text of the Board's 29 Aug. 1951 judgment in Case No. A-6937471 and the Attorney General's decision of Nov. 2 approving the grant of immigrant status leading to naturalisation.

[64] The issue here may be more serious than many would assume. Assimilating in-your-face dissent and eccentricity to support of terrorism, or using laws, deliberately vague and open-ended and designed to thwart terror against passive dissenters, may deny the government a consensus for measures necessarily questionable in terms of human rights because they are aimed at presumed planners of terrorist acts and their supporters. Compare the more general issue of suppressing public dissent in the presence of policymakers, e.g. the January 31, 2006 Cindy Sheehan T-shirt incident: CNN report; Sheehan (Truthout)

[65] The following trafficking cases were motivated by greed, not terrorism: United States v. Trapilo, 130 F.3d 547 (2d Cir. 1997) ("We therefore hold that a scheme to defraud the Canadian government of tax revenue is cognizable under the federal wire fraud statute, 18 U.S.C. §§ 1343, and reverse the order of the district court that dismissed the indictment alleging a money-laundering conspiracy in violation of 18 U.S.C. §§ 1956"); similarly, United States v. Pasquantino, 336 F.3d 321 (4th Cir. 2003); contra, United States v. Boots, 80 F.3d 580 (1st Cir. 1996), cert. denied 519 U.S. 905 (1996).

[66] For background see Clive Parry, British Nationality Law and the History of Naturalisation (1954)

[67] Speech of President Mohammad Khatami to Iranian-Americans at the United Nations, 20 Sept. 1998, reported by Associated Press, 20 Sept. at 16.25 EDT.

[68] B. (R.) v. Children's Aid, [1995] 1 S.C.R. 315 (transfusion for infant); Re Jensen, (1976) 67 D.L.R.(3d) 514, 69 I.L.R. 194 (naturalisation oath); Roncarelli v. Duplessis, [1959] S.C.R. 121 (use of public facilities); Watch Tower Bible and Tract Society v. Mount Roskill Borough, [1959] N.Z.L.R. 1236 (S.Ct.) (reversing finding of "subversive"); Walsh v. Lord Advocate, [1956] 1 W.L.R. 1002 (H.L.) (conscription); Adelaide Company of Jehovah's Witnesses v. Commonwealth, [1943] 67 C.L.R. 116 (H.C. Australia) (prejudicial to conduct of war).

[69] Wisconsin v. Yoder, 406 U.S. 205 (1972) (compulsory education); United States v. Lee, 455 U.S. 252 (1982) (state pension scheme).

[70] Sherbert v. Verner, 374 U.S. 398 (1963) (refusal to work on the Sabbath); Prais v. Council, [1976] E.C.R. 1589 (recruitment examination held on a Saturday).

[71] Van Duyn v. Home Office, [1974] E.C.R. 1337, upon reference in [1974] 1 W.L.R. 1107 (Ch. Div.); Hubbard v. Vosper, [1972] 2 Q.B. 84; Church of the New Faith v. Commissioner for Pay-roll Tax, (1983) 49 A.L.R. 65 (H.C. Australia); Church of Scientology v. Sweden, ECHR, 14 July 1980, R. & D., vol. 21, p. 109, Application No. 8282/78.

[72] But see also Kawakita (Hayashi) v. Lorenz, 271 P.2d 18 (Cal. 1954) (dismissal of claim for fraudulent disposal of Kawakita family property during their internment).

[73] See note 67 above.

[74] Thus: Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (1995)

[75] Robert Fisk, "Exodus: Christians of the Arab World Flee Their Biblical Homeland", Independent, Sept. 24, 1997, p. 11

[77] Tara Lewelling, "Exploring Muslim Diaspora Communities in Europe through a Social Movement Lens: Some Initial Thoughts", 4 Strategic Insights (May 2005Naval Postgraduate School, Center for Contemporary Conflict, (PDF 80Kb.)

[78] Francis Elliott et al., "The Two Faces of Islam UK", Independent, Feb. 12, 2006

[79] See the references under "Relgioin and Terrorism".

[80] Thus: The Kach movement of Rabbi Meyer Kahane, Jewish Virtual Library; Center for Defense Information
India: B. Raman, "Terrorism: India's Unending War", Rediff, April 4, 2003
and see: "Moneylaundering and the financial support of terrorism" above. The support of extremist Islamic centers abroad by sometimes outwardly "moderate" Saudi donors is well known: Washington Institute for Near East Policy, "Subversion from within: Saudi funding of extremist groups in the United States"; Aspen Institute Berlin,
Interview with Irshad Manji, Steven Emerson and Gilles Kepel (undated, probably 2005).

[81] Yoginder Sikand, Pakistan, Islam and Indian media stereotypes, Daily Times (Pakistan), Feb. 3, 2006

[83] Samuel Brittan reviewing Samuel P. Hungtington, The Clash of Civilizations (2002). See also Niall Ferguson, "The crash of civilizations", Los Angeles Times, Feb. 27, 2006 and Huntington, "The Clash of Civilizations?", Foreign Affairs, Summer 1993.

[84] George W. Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out (1996). Several bibliographies and analyses can be found with a search engine.

[85] The case may hold lessons for those charged with distinguishing harmless propaganda from incipient terrorism. One remarkable point of the judgment was that McDonalds (who seemed to be claiming that it was being terrorized by defamatory leafleting) was libeled because they were said to be depleting the rain forests when in fact their agricultural demands are affecting Latin American forests. The defendants speak the language of anarchists, but only the plaintiffs seem to have seen them as terrorists. This writer attended part of the trial.

[86] "'[T]he proposals contained in this draft shall be binding [when] ... State terrorism against Libya shall end, there shall be a halt to threats and provocations against it'", quoting a letter from representatives of the Libyan Government, in Smith v. Socialist People's Libyan Arab Jamahiriya, 886 F.Supp. 306, 314 (E.D.N.Y. 1995).

[87] "Europe's last dictatorship? Just grin and bear it", Economist, Mar. 20, 2006. When this writer was at the National Library of Belarus in Minsk on a legal documentation project some years ago, he was astonished to find missing from the law library shelves certain numbers of the second series of the Official Gazette. He was advised that these had been suppressed by the Presidency. There are a few, but not many, governments that enforce unpublished laws and regulations.

[88] Mr. Justice Lawrence Collins, mentioned in this and the following article, is the general editor of Dicey & Morris on the Conflict of Laws and writer of many books and articles on private international law, pre-judgment remedies, European law and other legal subjects, including, recently, "Comity in Modern Private International Law", in James Fawcett, ed., Reform and Development of Private International Law, Essays in Honour of Sir Peter North 89 (2002). Not addressed in that article is the denial of comity to the ruling of a court in a terrorist state or corrupt legal system: Bank Melli Iran v. Pahlavi, 58 F.3d 1406 (Iran); Roxas v. Marcos, 89 Haw. 91, 969 P.2d 1209 (1998) (Philippines); cf. Muduroglu Ltd. v. T.C Ziraat Bankasi, [1986] Q.B. 1226 (Ct. App.) (Libya; forum non conveniens); Bridgeway Corp. v. Citibank, 201 F.3d 134 (2d Cir. 2000) (Liberia; civil war, corruption); Rockwell Int'l Systems, Inc. v. Citibank, N.A., 719 F.2d 583 (2d Cir. 1983) (letter of credit case; post-revolutionary Iranian judicial system incapable of affording an adequate remedy); Corporacion Salvadorena de Calzado, S.A. v. Injection Corp., 533 F.Supp. 290 (S.D.Fla. 1982) (due process; failure to abide by procedural rules of Salvadoran law).

[89] Wikipedia, "Baruch Goldstein"; cf. the fringe Jewish Task Force

[91] South Asia Analysis Group, "Massacres of Shias in Iraq and Pakistan"

[92] Newspaper articles archived on an Ahmadiyya-sponsored site; Pervez Amir Ali Hoodbhoy, "How Islam Lost Its Way", Washington Post, Dec. 30, 2001

[95] Ewen MacAskill, "UK to build ties with banned Islamist group", Guardian, Feb. 17, 2006.

[96] Northfield Mount Hermon School, Ted Thornton, "Sayyid Qutb"; Wikipedia; Ashland University Ashbrook Center, "The Thought of Sayyid Qutb"; Milestones ("Ma'alim fi'l Tariq") (1965) (and at several other Internet sites)

[98] Chip Brown, "The Freshman", N.Y. Times Magazine, Feb. 26, 2006 (former Taliban ambassador/spokesman now a freshman at Yale)