ISSUES IN FBI LAW ISSUES IN FBI LAW ENFORCEMENT ENFORCEMENT

RELATED TO COUNTER-RELATED TO COUNTER-TERRORISM TERRORISM

INVESTIGATIONSINVESTIGATIONS

Ranjana NatarajanRanjana Natarajan

National Security ClinicNational Security Clinic

University of Texas School of LawUniversity of Texas School of Law

April 1 and 2, 2009April 1 and 2, 2009

COUNTER-TERRORISM CASES – COUNTER-TERRORISM CASES – THE BASICSTHE BASICS

Basics of Law Enforcement Investigations And Criminal CasesBasics of Law Enforcement Investigations And Criminal Cases

Methods of Criminal Counter-terrorism Investigation And Methods of Criminal Counter-terrorism Investigation And ProsecutionProsecution

Rights Relating to Law Enforcement InvestigationsRights Relating to Law Enforcement Investigations

CRIMINAL LAW ENFORCEMENT CRIMINAL LAW ENFORCEMENT INVESTIGATIONS AND CASESINVESTIGATIONS AND CASES

Criminal law involves prosecution by state or federal Criminal law involves prosecution by state or federal government for acts that have been classified as crimes.government for acts that have been classified as crimes.

Criminal investigation: tools include questioning, physical Criminal investigation: tools include questioning, physical surveillance, telephone and electronic surveillance, surveillance, telephone and electronic surveillance, grand jury testimony, subpoenas, use of confidential grand jury testimony, subpoenas, use of confidential informants, and search warrants. informants, and search warrants.

All criminal investigations do not lead to arrests, All criminal investigations do not lead to arrests, indictments, and criminal prosecution. indictments, and criminal prosecution.

CRIMINAL CASES – THE BASICSCRIMINAL CASES – THE BASICS Stages of criminal cases: arrest, booking and bail, Stages of criminal cases: arrest, booking and bail,

arraignment, preliminary hearing, pre-trial motions, plea arraignment, preliminary hearing, pre-trial motions, plea bargains, trial, and sentencing.bargains, trial, and sentencing.

Criminal trial: burden of proof is on the government to Criminal trial: burden of proof is on the government to prove “beyond a reasonable doubt” / presumption of prove “beyond a reasonable doubt” / presumption of innocenceinnocence

Key rights in criminal cases: Key rights in criminal cases: Right to counselRight to counsel Right to speedy jury trialRight to speedy jury trial Right against self-incriminationRight against self-incrimination Double-jeopardy protectionsDouble-jeopardy protections Fourth Amendment right to be free of unreasonable Fourth Amendment right to be free of unreasonable

searches / exclusion of evidencesearches / exclusion of evidence

RELEVANT CRIMES RELEVANT CRIMES UNDER FEDERAL LAWUNDER FEDERAL LAW

Federal terrorism offensesFederal terrorism offenses, , at 18 U.S.C. § 2331-2339D.at 18 U.S.C. § 2331-2339D.

18 U.S.C. § 2339A. Providing 18 U.S.C. § 2339A. Providing material support to terrorists material support to terrorists

18 U.S.C. § 2339B. Providing 18 U.S.C. § 2339B. Providing material support or resources material support or resources to designated foreign terrorist to designated foreign terrorist organizationsorganizations

Federal criminal offenses Federal criminal offenses completely unrelated to completely unrelated to terrorism.terrorism.

18 U.S.C. § 1324. Bringing in 18 U.S.C. § 1324. Bringing in and harboring certain aliens and harboring certain aliens (Alien smuggling)(Alien smuggling)

18 U.S.C. § 1324a. Unlawful 18 U.S.C. § 1324a. Unlawful employment of aliensemployment of aliens

18 U.S.C. § 1001-10038. 18 U.S.C. § 1001-10038. Fraud and false statement Fraud and false statement offenses offenses

18 U.S.C. § 1541-1547. 18 U.S.C. § 1541-1547. Passport and visa offensesPassport and visa offenses

The government may also prosecute under state criminal provisions.

METHODS OF CRIMINAL COUNTER-TERRORISM METHODS OF CRIMINAL COUNTER-TERRORISM INVESTIGATION AND PROSECUTIONINVESTIGATION AND PROSECUTION

Traditional tools of investigationTraditional tools of investigation Voluntary law enforcement interviewsVoluntary law enforcement interviews

LEGAL PROTECTIONS RELATING TO LAW LEGAL PROTECTIONS RELATING TO LAW ENFORCEMENT INVESTIGATIONSENFORCEMENT INVESTIGATIONS

THERE IS NO DUTY OR LEGAL OBLIGATION TO THERE IS NO DUTY OR LEGAL OBLIGATION TO SPEAK TO LAW ENFORCEMENT OFFICERS. SPEAK TO LAW ENFORCEMENT OFFICERS. Right to stay silent whether or not in custody (Fifth Amendment Right to stay silent whether or not in custody (Fifth Amendment

privilege against self-incrimination; privilege against self-incrimination; Miranda v. ArizonaMiranda v. Arizona)) Exceptions: must provide identification (full name and Exceptions: must provide identification (full name and

sometimes current address) to law enforcement officer, if asked.sometimes current address) to law enforcement officer, if asked. Exceptions: all immigrants must carry proof of immigration Exceptions: all immigrants must carry proof of immigration

status on their persons at all times.status on their persons at all times.

THERE IS NO CRIMINAL OR CIVIL PENALTY OR THERE IS NO CRIMINAL OR CIVIL PENALTY OR PRESUMPTION OF GUILT FOR FAILING TO SPEAK PRESUMPTION OF GUILT FOR FAILING TO SPEAK TO LAW ENFORCEMENT OFFICERS. TO LAW ENFORCEMENT OFFICERS.

LEGAL PROTECTIONS, cont’d.LEGAL PROTECTIONS, cont’d.

PEOPLE WHO AGREE TO BE QUESTIONED BY LAW PEOPLE WHO AGREE TO BE QUESTIONED BY LAW ENFORCEMENT OFFICERS HAVE RIGHTS: ENFORCEMENT OFFICERS HAVE RIGHTS:

The right to be represented and have an attorney present.The right to be represented and have an attorney present.

The right to choose the time, date, and place of the interview. The right to choose the time, date, and place of the interview. A public place is preferable to the client’s home, business, or A public place is preferable to the client’s home, business, or

any law enforcement agency office. any law enforcement agency office.

The right to refuse to answer any, all, or select questions put to The right to refuse to answer any, all, or select questions put to her or him.her or him. Examples: questions regarding political beliefs and speech; Examples: questions regarding political beliefs and speech;

religious beliefs and speech (and charitable giving); political or religious beliefs and speech (and charitable giving); political or community associations (First Amendment, U.S. Constitution)community associations (First Amendment, U.S. Constitution)

COUNSEL YOUR CLIENT COUNSEL YOUR CLIENT ON ALL THE RISKSON ALL THE RISKS

Law enforcement interviews may lead to more investigation Law enforcement interviews may lead to more investigation of you, your family, and your associates.of you, your family, and your associates.

Lying to a federal officer is a crime. Your statements may be Lying to a federal officer is a crime. Your statements may be misinterpreted, or you may make innocent mistakes. misinterpreted, or you may make innocent mistakes.

The FBI has no obligation to close your file after the The FBI has no obligation to close your file after the interview, and they can keep it open as long as they want. interview, and they can keep it open as long as they want.

Some people who give an interview are asked again for Some people who give an interview are asked again for more interviews, or asked to be informants. more interviews, or asked to be informants.

Any statements you make can be used against you later. Any statements you make can be used against you later. You will have no record of the interview, but the FBI will You will have no record of the interview, but the FBI will

make a written report that you cannot review. make a written report that you cannot review.