extraterritorial issues...2007/04/20 · states attorney's office in houston, as an assistant...

Extraterritorial Issues

Fundamental Principles Governing ExtraterritorialProsecutions–Jurisdiction and Venue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

By John De Pue

Counterterrorism Cooperation Between Allies: A Game Theory Illustration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

By Jeff Breinholt

The USA PATRIOT Act and Bilateral Information Sharing. . . . . . . . . . . 23By Karl Sandoval

Obtaining Foreign Evidence Outside of the Mutual Legal Assistance Treaty Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

By Corey J. Smith

National Security Evidence and Terrorism Prosecutions: CooperationBetween the United States and the United Kingdom . . . . . . . . . . . . . . . . . . 32

By Jocelyn A. Aqua

March 2007

Volume 55Number 2

United StatesDepartment of JusticeExecutive Office for

United States AttorneysWashington, DC

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Steven J. ParentActing Director

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In This Issue

In Honor

This issue of the United States Attorneys' Bulletin is dedicated toMichael T. Shelby, the former United States Attorney for the SouthernDistrict of Texas. Mr. Shelby served as an Assistant United States Attorneyfor over ten years and as United States Attorney from 2002 to 2005.

As a career prosecutor, Michael worked for five years as an AssistantDistrict Attorney at the Harris County District Attorney's Office, servingprimarily in the Special Prosecutions Division. In 1989, he joined the UnitedStates Attorney's Office in Houston, as an Assistant United States Attorney,specializing in the investigation and prosecution of cases involving publiccorruption, organized crime, and environmental law. In 1997, he moved toPhoenix, Arizona, where he continued his work as an Assistant United StatesAttorney, prosecuting corrupt public officials. In early spring 2002, Michaelwas sworn in as the United States Attorney for the Southern District ofTexas. Among his many accomplishments while serving as the United StatesAttorney, was his creation of the Anti-Terrorism Advisory Council, whichwas used nationwide as the model for other United States Attorneys' offices.

Michael was a Commissioned Officer in the U.S. Naval Reserve, where he held the rank ofCommander (Select) and was assigned to Reserve SEAL Team FIVE. He was a decorated veteran withactive military service in the Middle East during Operation Desert Storm, and in Bosnia.

Michael was the recipient of the Executive Office for United States Attorneys' Director's Award andreceived numerous awards from the Federal Bureau of Investigation (FBI), the U.S. Drug EnforcementAdministration (DEA), the U.S. Customs Service, the Environmental Protection Agency, the InternalRevenue Service, the National Aeronautics and Space Administration, and numerous state and local lawenforcement agencies. He received personal letters of commendation from Attorney General Janet Renoand FBI Directors Louis Freeh and William Sessions. He routinely served as an instructor for the FBI,DEA, and the Department's National Advocacy Center, where he taught Basic Trial skills to fellowprosecutors. In recognition of his commitment as a prosecutor and teacher, Courtroom A106 at theNational Advocacy Center was dedicated in his honor.

Michael passed away on July 18, 2006, after a courageous battle with cancer. He was a man ofstrength, humor, integrity and great love. He believed that the greatest gift in life is time, and he was anexample to all who knew him of living his life to the fullest. He was an expert sky diver, snow and waterskier, mountain climber, marathon runner, as well as an award winning screenplay writer.

He is survived by his wife, Diana Jane Shelby; two daughters, Elizabeth Jane Shelby and Sarah SeayShelby; his mother, Marilyn Seay Shelby; two brothers, Robert Seay Shelby, and David Shelby, Jr.; andtwo sisters, Teena and Lisa Shelby. He will be remembered by his family, friends, and colleagues, for hisfirm commitment to his profession and his exemplary service to his country as an Assistant United StatesAttorney, United States Attorney, and as a member of the Navy's elite SEAL Team FIVE.

MARCH 2007 UNITED STATES ATTORNEYS ' BULLETIN 1

Fundamental Principles GoverningExtraterritorial Prosecutions–Jurisdiction and Venue

John De PueSenior Trial AttorneyCounterterrorism SectionNational Security Division

I. Introduction

The purpose of this issue of United StatesAttorneys' Bulletin is to address legalprinciples governing matters that

frequently arise in the prosecution ofextraterritorial terrorism cases. These include theability of the United States to proscribe such actsand assert jurisdiction over them, thedetermination of the district in which suchprosecutions will be venued, and the ability of theUnited States to project its investigative and lawenforcement capabilities overseas. Although theprinciples contained in this survey represent thecurrent views of the Counterterrorism Section andcomport with what the Department of Justice(Department) believes to be the present state ofthe law, just as in any criminal prosecution,government counsel should always consult thecurrent law of the circuit and its application to theparticular case. Should legal issues arise thatrequire further guidance, it may be obtained fromeither the Criminal Division's CounterterrorismSection or the Department's Office of LegalCounsel.

II. Jurisdiction

A. Definitions

Jurisdiction in a criminal case addressespower or authority—the question of jurisdictioninforms prosecutors of both the authority bywhich Congress enacts legislation and theauthority that the courts have to act in a particularcase.

In contrast, the term venue simply defines thejudicial district in which such authority is to beexercised, once an offense is committed.

B. Constraints under internationallaw—limitations on the exercise ofjurisdiction when such action infringesupon the rights of other sovereigns

Extraterritorial jurisdiction simply relates tothe authority of a government to criminalizeactivity that occurs outside its territorial borders,or to investigate or prosecute such activity. Theexercise of extraterritorial jurisdiction by one statewith respect to criminal activity necessarilyencroaches, in some measure, upon thesovereignty of the nation where the offenseoccurred. Under customary international law,there are five generally recognized principlesupon which a country can permissibly assertextraterritorial jurisdiction. See United States v.Yousef, 327 F.3d 56, 91-92 (2d Cir. 2003). Thejurisdictional bases include the following.

• The objective territorial principle—where theoffense occurs in one country but has effectsin another, for example, killing someone byshooting across an international border.

• The nationality principle—the offender is acitizen of the prosecuting state.

• The protective principle—the offense offendsthe vital interests of the prosecuting state,such as counterfeiting that nation's currency.

• The passive personality principle—the victimis a citizen of the prosecuting state.

• The universality principle—the offense, suchas piracy, is universally condemned by theinternational community, sometimes in amultinational convention or treaty to whichthe United States is a signatory.

Furthermore, in Yousef, the court held that, wherea jurisdictional provision authorizing itsextraterritorial assertion has been enacted toimplement a treaty obligation, the relevant treatyprovision is, itself, a sufficient basis underinternational law for asserting such jurisdiction.

2 UNITED STATES ATTORNEYS ' BULLETIN MARCH 2007

Despite these limitations upon the exercise ofextraterritorial jurisdiction stemming fromcustomary international law, where Congress hasclearly articulated its intent to legislateextraterritorially, the legislation trumps anylimitation upon the assertion of such jurisdictionbased upon customary international law. Id at 327;United States v. Yunis, 924 F.2d 1086, 1091 (D.C.Cir. 1991). However, where Congress's intent issilent, the courts ordinarily infer that it intended tolegislate in a manner that is in harmony with suchprinciples.

C. Constitutional constraints upon theassertion of extraterritorial jurisdiction

Several circuits have held that, whereCongress criminalizes extraterritorial conduct,substantive due process requires some nexusbetween the United States, or its vital interests,and the proscription. Yousef, 327 F.3d at 112 (planto attack Philippine Airlines flight sufficientlyrelated, under Due Process Clause, to U.S.interests, where attack was a "test run" for furtherattacks on U.S. flag carriers); United States v.Davis, 905 F.2d 245 (9th Cir. 1990) (findingadequate nexus to U.S. interests where factsshowed that defendant intended to smuggle drugsinto U.S. territory); see also United States v.Clark, 435 F.3d 1100, 1108 (9th Cir., 2006)(defendant's U.S. citizenship sufficient to satisfydue process concerns); but cf. United States v.Martinez-Hidalgo, 993 F.2d 1052 (3d Cir. 1993)(no nexus with the United States required wherethe extraterritorial conduct is universallycondemned by law-abiding nations). The DueProcess Clause is ordinarily satisfied merely bydemonstrating that the offense falls within one ofthe five internationally recognized bases forasserting extraterritorial jurisdiction set out above.Cf. United States v. Marino-Garcia, 679 F.2d1373, 1379-81 (11th Cir. 1982) (imputing toCongress the intent to confine reach ofextraterritorial jurisdiction over a stateless vesselon the high seas to that permitted underinternational law).

Congressional authority to legislateextraterritorially does not, by itself, createextraterritorial jurisdiction. Congress must enact astatute authorizing the assertion of suchjurisdiction, and it is clear that it possesses thepower under the Constitution to do so. See EEOCv. Arabian Amer. Oil Co., 499 U.S. 244, 248(1991).

Nonetheless, Congress is not ordinarily heldto the same standard, in relation to explicitConstitutional authority, when legislatingextraterritorially as it is in the enactment ofdomestic legislation. This is becauseextraterritorial legislation does not possess thesame capacity to encroach upon governmentalpowers reserved to the states and because theUnited States has the inherent sovereign power tolegislate extraterritorially. See United States v.Curtiss-Wright Export Corp., 299 U.S. 304, 315(1936); see also Japan Line, Ltd, v. County of LosAngeles, 441 U.S. 434, 448 (1979).

In this respect, Constitutional bases for theenactment of extraterritorial legislation includethe following.

• An incident of the Congressional authority to"Define and punish offenses against the law ofnations." U.S. Const. Art. 1 § 8, cl. 8.

• An incident of Congressional authority toimplement treaties under the "necessary andproper clause" of Article I § 8, cl. 18.

• An incident of Congressional authority "toregulate Commerce with foreign Nations."Art. I § 8, cl.3. See United States v. Clark, 435F.3d at 1114-17 (approving legislationprohibiting travel in foreign commerce toengage in illicit sexual activities with minors).

D. Determining whether a statute isintended by Congress to be extraterritorial

Under both international law and theConstitution, Congress possesses the authority tolegislate extraterritorially. Nevertheless, it isnecessary to inquire whether, in the context of aparticular statute, it has, in fact, done so. First,consider the language of the statute. Does itexpressly address its jurisdictional scope? Statutesthat contain formulas specifically defining thescope of jurisdiction include the following.

• Foreign murder of a U.S. national (18 U.S.C.§ 1119).

• War crimes (18 U.S.C. § 2441).

• Murder of, or assault upon, a U.S. nationalabroad for the purpose of coercion,intimidation, or retaliation, as certified by theAttorney General (18 U.S.C. § 2332).

• Use of weapons of mass destruction (18U.S.C. § 2332a).


• Bombing public places or facilities (18 U.S.C.§ 2332f (b)).

• Providing material support to foreign terroristorganizations (18 U.S.C. § 2339B(d)).

• The commission of certain felony offenses bypersons accompanying the armed forcesoverseas (18 U.S.C. § 3261).

Some federal statutes are expressly confinedin their application to the "special maritime andterritorial jurisdiction of the United States," forexample, murder under 18 U.S.C. § 1111. Thephrase "special maritime and territorialjurisdiction" is defined in 18 U.S.C. § 7. Itincludes federal enclaves, such as the following.

• National parks and military installations.

• Territorial waters.

• U.S. flag vessels.

• U.S.-owned aircraft (while flying in U.S.airspace, or over international waters ).

It also includes some territory outside theUnited States, such as the following.

• Places not subject to the jurisdiction of anynation with respect to crimes by or againstU.S. nationals. See 18 U.S.C. § 7(7).

• The premises of U.S. diplomatic, consular,military, or other U.S. missions or entities inforeign states or residences relating to suchentities (but only when the victim or theoffender is a U.S. national). See 18 U.S.C.§ 7(9).

Thus, in some instances, an offensecommitted within the "special territorialjurisdiction of the United States" may actuallyinvolve an extraterritorial crime. Finally, somestatutes reach criminal activity involving "anybuilding, vehicle, or other real or personalproperty in whole or in part owned or possessedby, or leased to the United States or anydepartment or agency thereof . . . ." See 18 U.S.C.§ 844(f)(1); 18 U.S.C. § 2252A(a)(4)(A). Suchbroad language can also reasonably be construedto reach such property and facilities of theUnited States even when outside the territoriallimits of the United States. But see United Statesv. Martinelli, 62 M.J. 52, 60 (C.A.A.F. 2005)(three members of Court of Appeals for theArmed Forces holding that such language is notextraterritorial).

"Special aircraft jurisdiction" is anotherjurisdictional term of art that governs aircraftpiracy (49 U.S.C. § 46502) and the statuteproscribing the destruction of an aircraft (18U.S.C. § 32). The term is defined in 49 U.S.C.§ 46501(2). To be cognizable under the air piracystatute, an offense must be committed while theaircraft is "in flight," a term of art defined in 49U.S.C. § 46501(1).

E. Jurisdictional provisions common tostatutes implementing treaties

The United States is party to a number ofmultilateral agreements designed to combatterrorism. These agreements contain provisionsrequiring signatories to criminalize the proscribedconduct and either extradite or prosecute personspresent within their territory who are believed tohave committed prohibited acts. Statutesimplementing such treaties, therefore, authorizeprosecution of any offender by virtue of his merepresence in the United States. Hostage taking (18U.S.C. § 1203) is an example of an offense uponwhich extraterritorial jurisdiction can bepredicated solely upon the defendant's being"thereafter found" in the United States. The phrase"thereafter found" has been held to include thedefendant's forcible rendition for the purpose ofstanding trial for another offense (see Yunis, 924F. 2d at 1090 ) or for the very crime to which the"thereafter found" provision applies. SeeUnited States v. Rezaq, 134 F.3d 1121 (D.C. Cir.1998) ("afterward found" requirement permitsprosecution for aircraft piracy even in cases wheredefendant is forcibly returned to the United Statesto stand trial for only that offense). A number ofmultilateral agreements designed to combatterrorism, the implementing federal legislation,and jurisdictional provisions of such legislation,are provided as an addendum to this article.

F. What if the statute is silent with respectto its extraterritorial application?

The presumption of territoriality. As theSupreme Court recently observed in Small v.United States, 544 U.S. 385, 388-89 (2005), "indetermining the scope of [a] statutory phrase, wefind help in the commonsense notion thatCongress generally legislates with domesticconcerns in mind. . . . This notion has led theCourt to adopt the legal presumption thatCongress ordinarily intends its statutes to havedomestic, not extraterritorial application." Id.(citation and internal quotes omitted). Forexample, crimes against individuals or their


property, such as assaults, murder, burglary,larceny, robbery, and other offenses which affectthe peace and good order of the community are,unless Congress expressly says to the contrary,presumptively territorial in scope. United States v.Bowman, 260 U.S. 94, 98 (1922).

A statute does not, however, becomeextraterritorial, so as to require an assessment asto whether Congress intended to override thepresumption of territoriality, simply because thelegislation reaches activities that occur (or areintended to occur) outside the territorialjurisdiction of the United States. Thus, such anoffense can be considered a domestic crime if aportion of the crime occurred in the United States.See United States v. Moncini, 882 F.2d 401, 402(9th Cir. 1989) (introducing child pornographyinto the United States through the mails); see alsoUnited States v. Lombardo, 241 U.S. 73, 77(1916) ("where crimes consist of distinct partswhich have different localities the whole may betried where any part can be proved to have beendone"); 18 U.S.C. § 3237 (any offense involvingthe use of the mails or transportation in interstateor foreign commerce, is a continuing offense andmay be prosecuted in any district through whichsubject matter moves).

In Pasquatino v. United States, 544 U.S. 349(2005), the Supreme Court rejected the argumentthat the government had improperly employed thefederal wire fraud statute (18 U.S.C. § 1343),which prohibits the use of interstate wires to effect"any scheme or artifice to defraud, or forobtaining money or property by means of false orfraudulent pretenses," to reach extraterritorialconduct—the smuggling of untaxed liquor intoCanada. Expressly addressing concerns articulatedin Justice Ginsburg's dissent that the use of thestatute for such a purpose would contravene thepresumption of extraterritoriality, Id. at 377(Ginsburg, J., dissenting)), the Court reasoned:

[O]ur interpretation of the wire fraudstatute does not give it 'extraterritorialeffect.' . . . Th[e] [defendant's] offensewas complete the moment they executedthe scheme inside the United States; '[t]hewire fraud statute punishes the scheme,not its success.' . . . This domestic elementof petitioner's conduct is what theGovernment is punishing in thisprosecution, no less than when itprosecutes a scheme to defraud a foreignindividual or corporation, or a foreign

government acting as a marketparticipant.

Id. at 371. Thus, by the same token, where thelocus of a conspiracy to provide material supportto a foreign terrorist organization (18 U.S.C.§ 2339(b)) is within the jurisdiction of theUnited States, the offense does not becomeextraterritorial simply because the materialsupport is destined for a beneficiary that engagesin extraterritorial terrorist activities. In such cases,it is unnecessary to consider whether Congressexpressly intended to reach extraterritorialactivity, as the offense is territorial in nature.

The exception that largely swallows the rule.The Bowman Court made it clear that the"presumption of territoriality" has no applicationwith respect to legislation that does not simplycodify common law breaches of the peace and isdesigned to deter injury to the United States andits interests, regardless of the locus of the offense.The Court explained as follows.

[T]he same rule of interpretation [i.e., thepresumption of territoriality] should notbe applied to criminal statutes which are,as a class, not logically dependant upontheir locality for the government'sjurisdiction, but are enacted because ofthe right of the government to defenditself against obstruction or fraudwherever perpetrated, especially ifcommitted by its own citizens, officers oragents. . . . [T]o limit their locus to thestrictly territorial jurisdiction would be togreatly curtail the scope and usefulness ofthe statute and leave open a largeimmunity for frauds as easily committedby citizens on the high seas, and inforeign countries as at home. In suchcases, Congress has not thought itnecessary to make specific provision inthe law that the locus shall include thehigh seas and foreign countries, butallows it to be inferred from the nature ofthe offense.

Bowman, 260 U.S. at 98.

Relying upon this language, the courts ofappeals have repeatedly viewed federal statutes,otherwise silent as to their jurisdiction application,to involve subject matter from which it could beinferred that Congress intended extraterritorialapplication. Examples of offenses whereCongressional intent to trump the presumption of


territoriality has been inferred include thefollowing.

• Fraud or making false claims against thegovernment (Bowman, 260 U.S. at 99-100).

• Conspiracy to induce aliens to unlawfullyenter the United States (United States v.Delgardo-Garcia, 374 F.3d 1337, 1346 (D.C.Cir. 2004)).

• Extraterritorial conspiracy to bomb U.S.registered aircraft (United States v. Yousef,327 F.3d at 87-88).

• Smuggling contraband into the United States(United States v. Plummer, 221 F.3d 1298(11th Cir. 2000)).

• Conspiracy to import narcotics into theUnited States (United States v. McAllister,160 F.3d 1304, 1308-09 (11th Cir. 1998)(collecting cases)).

• Conspiracy to murder and assault a U.S.government official (United States v. Benitz,741 F.2d 1312 (11th Cir. 1984)).

But see Small v. United States, 544 U.S. 385, 387(2005) (invoking presumption of territoriality andholding that offense of possession of a firearm bya convicted felon does not apply to foreignconvictions); United States v. Martinelli, 62 M.J.52 (narrowly construing exception to presumptionof territoriality to apply only to frauds againstgovernment and holding that presumption appliesto receipt of child pornography).

Finally, in determining whether Congressintended that a statute apply outside the borders ofthe United States, it is appropriate to take intoaccount not only its purpose, but also its structure,legislative history, and, in appropriate cases, thetext and negotiating history of the treaty which thelegislation implements. See Sale v. Haitian Ctrs.Council, 509 U.S. 155, 174-77 (1993) (examininglegislative history of statute, as well as text andhistory of the convention it implemented, todetermine whether "forced repatriation"provisions of the Immigration and Nationality Actwere intended to apply extraterritorially).

Offenses that are ancillary to extraterritorialcrime. Attempts, accessory after the fact,conspiracy, and the use of a firearm during and inrelation to a crime of violence (18 U.S.C.§ 924(c)), have been held to assume the territorialcharacter of the base offense. See Yousef, 327F.3d at 87-88 (collecting cases); United States v.Lindh, 212 F. Supp. 2d 541, 580 (E.D. Va. 2002)

(an extraterritorial violation of 18 U.S.C. § 2339Bis a crime of violence to which a § 924(c) use of afirearms count can attach); see also United Statesv. Khan, 309 F. Supp. 2d 789, 823 (E.D. Va.,2004); United States v. Goba, 240 F. Supp. 2d242, 249 (W.D.N.Y. 2003). Thus, it isunnecessary to conduct a separate inquiry as towhether Congress intended such an ancillaryoffense to have extraterritorial effect.

G. Prohibitions against "providingmaterial support"

Title 18 U.S.C. §§ 2339A and 2339B,respectively, prohibit providing "material supportor resources" knowing or intending that they areto be used in preparation for, or carrying out, oneof a number of enumerated terrorist crimes(§ 2339A) or knowingly providing "materialsupport or resources" to a foreign terroristorganization (FTO) (§ 2339B). Both statutesembrace attempts and conspiracies as well. Sincethe events of September 11, 2001, these twostatutes have become mainstays in theDepartment's war on terrorism. As of April 2005,eighty-nine persons have been charged withviolations in sixteen different districts. In addition,§ 2339C, which is discussed in connection withthe Terrorist Financing Convention, infra,prohibits providing or collecting funds to fosteracts of terrorism.

Section 2339A. As originally enacted, 18U.S.C. § 2339A prohibited a person "within theUnited States" from providing material support orresources, knowing that it would be used for thecommission of a terrorist crime. See Pub. L. No.103-322 § 120005, 108 Stat. 2022 (1994). As partof the USA PATRIOT Act, however, thejurisdictional limitation, "within theUnited States," was deleted. Pub. L. No. 107-56,§ 805, 115 Stat. 377 (2001). The plain implicationof that amendment was to expand thejurisdictional scope of the statute to extraterritorialacts of providing material support. Thus, it wouldappear, at a minimum, that such offenses are nowakin to "ancillary offenses," which means thattheir jurisdictional scope corresponds to that ofthe crime that the material support or resources isintended to facilitate. Consequently, after October26, 2001, where the contemplated terrorismoffense permits the exercise of extraterritorialjurisdiction, so also would a § 2339A violationdesigned or intended to facilitate it. Prior to thatdate, the prohibited conduct must have occurred


"within the United States" to constitute a violationof § 2339A.

Section 2339B. In contrast to § 2339A, asoriginally enacted, persons embraced by theprohibition against providing material support orresources to FTOs were limited to those "withinthe United States or subject to the jurisdiction ofthe United States." Subsection (d) stated that"[t]here is extraterritorial Federal jurisdiction overan offense under this section"—a provision thatthe Department believes was intended to makeclear that the phrase "or subject to the jurisdictionof the United States" reached persons outside theUnited States who provided such material supportto an FTO, as long as they were U.S. nationals.The scope of the jurisdictional predicate–subjectto the jurisdiction of the United States–is notsettled. At the least, the term embraces U.S.nationals and corporations. It is not certainwhether it includes resident aliens as well.

As part of the Intelligence Reform andTerrorism Prevention Act of 2004, Pub. L. No.108-458, 118 Stat. 3638 (IRTPA), Congresssubstantially expanded the jurisdictionalprovisions of § 2339B. In particular, it authorizedthe assertion of jurisdiction over the provision ofmaterial support to an FTO under the followingcircumstances.

• The offense (the provision of material supportor resources) occurred, in whole or in part, inthe United States.

• The offender is a U.S. citizen or a permanentresident alien.

• The offender is a stateless person whosehabitual residence is the United States.

• The offender is brought into or found in theUnited States, after the conduct for theoffense occurred, even if the conduct requiredfor the offense occurred outside theUnited States.

• The offense occurred in, or affects, interstateor foreign commerce.

• The offender aided and abetted or conspiredwith any person over whom jurisdiction existsunder any of the above circumstances.

Thus, as amended by the IRTPA, in manyinstances where the predicate conduct—theprovision of material support—neither occurswithin the United States nor is perpetrated by aU.S. national, § 2239B permits the exercise ofextraterritorial jurisdiction. Perhaps the most

dramatic extension of extraterritorial jurisdictioninvolves instances where the defendant providesmaterial support to an FTO overseas and is thenprosecuted by virtue of his mere presence,whether voluntary or involuntary, in theUnited States. The justification for the assertion ofsuch jurisdiction is that, by providing assistance toan FTO—which by definition presents a threat tothe security of the United States—the defendantengages in conduct which, itself, threatens thesecurity of the United States. This rationale issupported by the "protective" theory ofextraterritorial jurisdiction that was discussedpreviously. The new jurisdictional provisions to §2339B should not be employed, as the basis forasserting jurisdiction over an offense, where theprohibited conduct predated December 17, 2004,the date of IRTPA's enactment. An attempt to doso would implicate constitutional Ex Post Factoprinciples.

Section 2339C. As noted earlier, § 2339C,which became effective June 25, 2002, in thewake of the United States' accession to theTerrorist Financing Convention, prohibits fund-raising or monetary contributions to those bentupon undertaking activities that violate one of anumber of international terrorism conventions. Italso reaches contributions made with knowledgethat the funds are to be used to carry out actsintended to cause death or bodily harm for thepurpose of intimidating a population orcompelling a government. The role of § 2339Cwill likely be confined to those rare instanceswhere the jurisdictional provisions of §§ 2339Aand 2339B do not reach a person located abroad,but against whom a U.S. prosecution isappropriate. Note the multiple jurisdictionalpredicates enumerated in § 2339C(b) andsummarized in our compilation of treaty-implementing jurisdictional provisions. One ofthem permits the assertion of extraterritorialjurisdiction over an offense on the basis of thedefendant's presence in the United States, alone.

Section 2339D. Section 2339D was added toChapter 113 of Title 18 (of which §§ 2339A, Band C are also a part), by the IRTPA. Brieflysummarized, § 2339D prohibits the receipt ofmilitary-type training from, or on behalf of, anFTO, with knowledge that the organization hasbeen so designated or that it engages in terroristactivity. The jurisdictional predicates for thisoffense are virtually the same as for a violation of§ 2339B discussed above. Therefore, there are avariety of bases for the assertion of extraterritorial


jurisdiction, including the fact of the defendant'ssubsequent presence in the United States, whethervoluntary or involuntary.

III. Venue

A. Constitutional constraints

U.S. Const. Art. III, § 2, cl. 3 provides:

All criminal trials, [except in cases ofimpeachment] shall be held in the State wheresuch crime shall have been committed; butwhen not committed within any State, the trialshall be at such Place or Places as Congressmay by law have directed.

The final phrase ("but when not committed. . . ") has been held to "impose no restriction as tothe place of trial, except that the trial cannot occuruntil Congress designates the place, and mayoccur at any place which shall have beendesignated." Cook v. United States, 138 U.S. 157,182 (1891).

B. Proof requirements

Venue must be established by apreponderance of the evidence. See United Statesv. Naranjo, 14 F.3d 145, 146 (2d Cir. 1994).Unlike claims based upon a lack of jurisdiction,however, claims of improper venue are waived ifnot raised prior to trial. See Singer v.United States, 380 U.S. 24 (1965). Chargingpapers should allege the basis for venue in theparticular district.

C. Venue statutes for territorial offenses

In some limited circumstances, Congress hasspecifically designated the district (within theconstitutional limitation) in which venue exists.Some examples of such offenses include thefollowing.

• Flight to avoid prosecution (18 U.S.C.§ 1073) (district in which original crimecommitted or where defendant was detained).

• Capital cases (18 U.S.C. § 3235) (countywhere the offense was committed, whenwithout "great inconvenience").

• Murder or manslaughter (18 U.S.C. § 3236)(place where injury inflicted).

Venue for territorial offenses where no districtis specified by statute is governed by Fed. R.Crim. P. 18. "Unless a statute or these rules permitotherwise, the government must prosecute anoffense in a district where the offense was

committed." Title 18 U.S.C. § 3237 is arefinement to the general rule, where the offenseoccurs in more than one district.

(a) Except as otherwise provided byenactment of Congress, any offense againstthe United States begun in one district andcompleted in another, or committed in morethan one district, may be inquired of andprosecuted in any district in which suchoffense was begun, continued, or completed.

Any offense involving the use of the mail,transportation in interstate or foreign commerce,or the importation of a person or an object into theUnited States, is a continuing offense and, exceptas otherwise expressly provided by enactment ofCongress, may be inquired of and prosecuted inany district from, through, or into which suchcommerce, mail matter, or imported object orperson moves.

In addition, in United States v Rodriguez-Moreno, 526 U.S. 275 (1999), the Supreme Courtheld that the offense of using or carrying a firearmduring a predicate crime of violence or a drugtrafficking crime can properly be prosecuted inthe district where the predicate offense occurred,even though the using or carrying did not occur inthat district. This is because the underlying crimeof violence is an element of the § 924(c) offense.

With respect to a conspiracy to commit aterritorially-based offense, "venue is proper in anydistrict in which an overt act in furtherance of theconspiracy was committed by any of the co-conspirators. . . . The defendant need not havebeen present in the district, so long as an overt actin furtherance of the conspiracy occurred there."United States v. Naranjo, 14 F.3d at 147. SeeUnited States v. Bin Ladin, 91 F. Supp. 2d 600(S.D.N.Y. 2000) (venue in Southern District ofNew York for conspiracy to bomb U.S. Embassiesin Africa proper, where overt acts in furtheranceof the conspiracy occurred there).

The "continuing offense" principal caninclude the receipt of phone calls and—theDepartment believes—e-mail messages in thedistrict where the sender or recipient is located.See, e.g., United States v. Kim, 246 F.3d 186, 191-93 (2d Cir. 2001) (offense of wire fraud iscommitted in any district in which transmission issent or received, even if defendant making thetransmissions never enters the country).

Venue determinations are offense specific.Where more than one count is charged in an


indictment, venue must be established withrespect to each count. See United States v. BeechNut Nutrition Corp., 871 F.2d 1181, 1188 (2d Cir.1989). This principle also governs substantivecrimes and conspiracy, even if the substantiveoffense is in furtherance of the conspiracy. Thus,where no element of that offense is committed inthe district where the underlying conspiracyoccurred, it cannot be joined with the conspiracyfor trial. See United States v. Corona, 34 F.3d876, 879-80 (9th Cir. 1994).

D. Venue for extraterritorial offenses

Title 18 U.S.C. § 3238 provides:

The trial of all offenses begun orcommitted upon the high seas, orelsewhere out of the jurisdiction of anyparticular State or district, shall be in thedistrict in which the offender, or any oneof two or more joint offenders, is arrestedor first brought; but if such offender oroffenders are not so arrested or brought inany district, an indictment or informationmay be filed in the district of the lastknown residence of the offender or anyone of two or more joint offenders, if nosuch residence is known, the indictmentor information may be filed in the Districtof Columbia.

Several courts have held or suggested that anoffense may be extraterritorial under § 3238 when"begun" on the high seas or in a foreign country,even though subsequent overt acts or elements ofthe offense occur within the United States. SeeUnited States v. Erwin, 602 F.2d 1183, 1185 (5thCir. 1979) ("that venue may also be appropriate inanother district will not divest venue properlyestablished under § 3238"); United States v. BinLadin, 91 F. Supp. 2d at 614 n.23 (collectingcases). But see United States v. Gilboe, 684 F. 2d235, 239 (2d Cir. 1982) (dicta). Thus, in circuitsthat follow this rule, prosecutors may have ameasure of latitude in determining whether toallege venue with respect to an offense begunoverseas, but involving the commission ofsubsequent elements in U.S. territory on the basisof § 3237 (pertaining to territorial crimes), or,alternatively, under § 3238 (pertaining toextraterritorial offenses).

E. Options and considerations fordetermining venue for an extraterritorialoffense under § 3238

Indict while the defendant is still overseas.The prosecutor may wish to do so to lock in venuewith respect to a particular offense, to stop therunning of the statute of limitations, or to satisfy arequirement for extradition. If a defendant isindicted while still abroad, the indictment shouldordinarily be returned in the district of thedefendant's last known residence (or the lastknown residence of any indicted codefendant).Where there is no such district (or the formerresidence cannot be ascertained), venue lies in theDistrict of Columbia.

Use the "first brought" or "arrested" option. Itmay be advisable to determine the federal districtinto which the defendant will likely be "firstbrought" or "arrested," indict in that district, andreturn him there. In United States v. Feng, 277F.3d 1151, 1155 (9th Cir. 2002), the court heldthat, regardless of whether an indictment wasreturned in a particular district before, during, orafter the defendant was "first brought" there,venue was proper under the "first brought orarrested" clause of § 3238. The downside to thisoption is that, in cases where the defendant isactually first brought or arrested in a district otherthan that where the anticipatory indictment isreturned, the indictment is a nullity and the districtwhere the defendant's arrival or arrest occursgoverns the venue determination.

Apprehend the defendant and return him tothe United States without first indicting him. Insuch cases, venue lies in the district where thedefendant first enters the United States. Bear inmind that the phrase "first brought" means that thedefendant must be returned in a custodial status.See United States v. Liang, 224 F.3d 1057, 1060(9th Cir. 2000).

Under the "first brought" option, venue istriggered by any incidental stop in theUnited States, regardless of whether it is theintended destination of the flight returning thedefendant from overseas. See Chandler v.United States, 171 F.2d 921, 933 (1st Cir. 1948)(brief layover triggers "first brought" venue).Thus, an en route refueling stop can effectivelythwart a plan to return the defendant to aparticular district for indictment and trial.

The venue by "arrest" option under § 3238 isoffense specific. The term "arrested" applies to the


district in which the defendant is first restrained inconnection with the offense charged. Thus, if adefendant's case has been venued in a particulardistrict, and the defendant is present in that districtawaiting trial, he may be "arrested" there for anextraterritorial offense, with the result that venuefor that offense will be in the same district as thatfor the previously charged crime. See UnitedStates v. Wharton, 320 F.3d 526, 536-37 (5th Cir.2003); United States v. Catino, 735 F.2d 718, 724(2d Cir. 1984).

F. Venue analysis

• Is the offense territorial or extraterritorial? Ifthe former, in which district did the offenseoccur or did it occur in several districts?

• If territorial, is there an option as to thedistrict in which to bring the charges? If so, isone preferable to the others?

• If extraterritorial, does the prosecutor want orneed, for some reason, to indict prior todefendant's return?

• If the prosecutor wishes to file a prereturnindictment, which is the appropriate district?

• Are there reasons for wanting to effect thedefendant's return to a particular district? Ifso, does the government want to indict him inthat district in anticipation of his being "firstbrought" in that district?

G. Venue for criminal complaints

A criminal complaint to obtain the extraditionof a defendant may be needed. Federal Rules ofCriminal Procedure 3 and 4 do not particularizethe district in which a complaint can be soughtand an arrest warrant obtained for anextraterritorial offense, when an indictment is notfirst returned. It is advisable to seek process in thedistrict where an indictment is likely to bebrought, but it is the Department's position thatany U.S. magistrate judge can issue a warrant foran extraterritorial offense, without regard to thelocation where the indictment is likely to bereturned.

IV. International agreementsauthorizing extraterritorial jurisdiction

A number of international agreements, towhich the United States is a party, are designed tothwart acts of terrorism and are enumeratedbelow. The federal legislation that implementsthose agreements, and the bases under which such

legislation authorizes the assertion of jurisdictionover such offenses, are identified. Note that, in anumber of instances, federal jurisdiction can vestover a person charged with a treaty-implementingoffense merely by virtue of his presence in theUnited States and without regard to the location ofthe crime.

• Convention for the Suppression of theUnlawful Seizure of Aircraft ("HagueConvention") (effective Sept. 14, 1971). The"effective dates" connote the dates when theUnited States became a party to the particularconvention. In many instances, the effectivedate of the implementing legislation is alsogoverned by that date.

Implementing Legislation—49 U.S.C.§ 46502(b) (penalizes commission of anyoffense embraced by the HagueConvention, such as the seizure orattempted seizure of an aircraft in flight,when outside the "special aircraftjurisdiction").

Jurisdictional Predicates—commission onan aircraft "in flight," outside of the"special aircraft jurisdiction of theUnited States," and one of the following:(A) a U.S. national was aboard theaircraft; (B) the offender was a U.S.national; or (C) "the offender isafterwards found in the United States."See Rezaq, 134 F.3d at 1131-32 (thephrase "afterwards found" includes thedefendant's forcible return).

• Convention On Offenses and Certain OtherActs Committed On Board Aircraft, ("TokyoConvention") (effective Oct. 1, 1969).

Implementing Legislation—49 U.S.C.§§ 46502(a) (aircraft piracy); 46504(assault upon or interference with aircrewmember); 46505 (carrying a weapon orexplosive on an aircraft); 46506(commission of certain crimes, such asassault, aboard an aircraft).

Jurisdictional Predicates—49 U.S.C.§ 46502 (a)—(A) commission of anoffense in the special aircraft jurisdictionof the United States; or (B) attemptedcommission in the special aircraftjurisdiction although the aircraft is not "inflight" at the time of the attempt, if itwould have been "in flight" had theoffense been consummated; 49 U.S.C.


§ 46504—commission of the offense "inthe special aircraft jurisdiction of theUnited States;" 49 U.S.C. § 46505—commission or attemptedcommission of offense on an aircraft in orintended for operation "in airtransportation or intrastate airtransportation" (The term "airtransportation" is defined as "foreign airtransportation, interstate transportation, orthe transportation of mail by aircraft.");49 U.S.C. 46506—commission on boardan aircraft, in the special aircraftjurisdiction, of an offense punishable ifcommitted in the special maritime andterritorial jurisdiction of the U.S. or underthe District of Columbia Code.

• Convention for the Suppression of UnlawfulActs Against the Safety of Civil Aviation,("Montreal Convention") (effective Feb. 23,1973).

Implementing Legislation—18 U.S.C.§ 32—destruction of aircraft or aircraftfacilities.

Jurisdictional Predicates—§ 32(a)(1)(setting fire to, damaging, destroyingaircraft)—any aircraft in special aircraftjurisdiction; or any civil aircraft used ininterstate, overseas, or foreign commerce;§ 32(a)(2) (placing destructive device on"any such aircraft") see subsection (a)(1);§ 32(a)(3) (disabling an aircraftnavigation facility) must jeopardize "anysuch aircraft in flight"—see subsection(a)(1); § 32(a)(4) (setting fire to,damaging, or placing destructive deviceon appliances, structures, ramps,etc.)—facility must be used in connectionwith aircraft defined in subsection (a)(1);§ 32(a)(5)(acts of violence againstpersons on "any such aircraft" if that act islikely to endanger "the safety of suchaircraft")—the aircraft must be onedefined in subsection (a)(1); § 32(a)(6)(knowing communication of falseinformation that endangers safety ofaircraft)—the aircraft must be one definedin subsection (a)(1). Section 32(b) (acts ofviolence against any individual aboard anaircraft registered in a country other thanthe United States so as to endanger itssafety, destruction of such aircraft,placing destructive device on suchaircraft)—jurisdiction where: (1) a U.S.

national is on board (or would have beenon board the aircraft); (2) the offender is aU.S. national; or (3) "the offender isafterwards found in the United States."See United States v. Yousef, 327 F.3d at88-89 (approving exercise ofextraterritorial jurisdiction for placing abomb on a civil aircraft registered inanother county, where defendant was"afterwards found in the United States").

• Protocol for the Suppression of Unlawful Actsof Violence At Airports Serving InternationalCivil Aviation Supplementary to theConvention for the Suppression of UnlawfulActs Against Civil Aviation ("AirportViolence Protocol") (effective Nov. 18, 1994).

Implementing Legislation—18 U.S.C.§ 37—prohibits use of any device,substance, or weapon, to perform an actof violence against a person serving incivil aviation, or damage to airportfacilities such that it endangers, or islikely to endanger, safety at that airport.

Jurisdictional Predicates—(1) theprohibited activity takes place in theUnited States; (2) the prohibited activitytakes place outside the United States and(A) the offender is later found in theUnited States; or (B) an offender orvictim is a U.S. national.

• Convention for the Prevention andPunishment of Crimes Against InternationallyProtected Persons (IPP Convention) (effectiveJan. 6, 1985).

Implementing Legislation—18 U.S.C.§ 112 (assaults upon or intimidation offoreign official, foreign guest, orinternationally protected person (IPP)); 18U.S.C. § 878 (threats and extortionagainst a foreign official, official guest, orIPP); 18 U.S.C. § 1116 (murder ormanslaughter of foreign official, officialguest, or IPP); 18 U.S.C. § 1201(a)(4)(kidnapping of foreign official).

Jurisdictional Predicates—18 U.S.C.§ 112—jurisdiction where victim is aforeign official, "official guest," or IPPoutside the United States if: (1) he is anemployee or agent of the United States;(2) the offender is a U.S. national; (3) theoffender is "afterwards found" in theUnited States; 18 U.S.C. § 878—as above


(see 18 U.S.C. § 878(d)). 18 U.S.C.§ 1116—as above (see 18 U.S.C.§ 1116(c)). 18 U.S.C. § 1201(a)(4)—asabove (see 18 U.S.C. § 1201 (e)).

• International Convention Against the Takingof Hostages ("Hostage-Taking Convention")(effective Jan. 6, 1985)

Implementing Legislation—18 U.S.C.§ 1203—hostage taking.

Jurisdictional Predicates—18 U.S.C.§ 1203(b).

If the offense is extraterritorial, there isjurisdiction if :(A) the offender or the victim is aU.S. national; (B) "the offender is found in theUnited States"; (C) the government ororganization sought to be compelled is theUnited States. See 18 U.S.C. § 1203(b)(1).

If the offense occurred inside theUnited States (and there are no otherextraterritorial aspects to the offense), there isfederal jurisdiction where the entity sought to becompelled is the United States. See 18 U.S.C.§ 1203(b)(2).

• Convention on the Protection of NuclearMaterials ("Nuclear Materials Convention")(effective Mar. 3, 1980).

Implementing Legislation—18 U.S.C.§ 831—prohibited transactions involvingnuclear materials.

Jurisdictional Predicates—(1) commissionof the offense in the United States, thespecial maritime and territorialjurisdiction, or the special aircraftjurisdiction; (2) the offender or victim is anational of the United States or a U.S.corporation; (3) the defendant is thereafterfound in the United States, even if theoffense is extraterritorial.

• Convention for the Suppression of UnlawfulActs Against the Safety of MaritimeNavigation ("Maritime Safety Convention")(effective Mar. 6, 1995).

Implementing Legislation—18 U.S.C.§ 2280—prohibits, inter alia, seizure orexercise of control of a ship by force; actsof violence against a person on board aship, if likely to endanger the vessel;destruction of the vessel or cargo.

Jurisdictional Predicates—(1) In the caseof a "covered ship" (A "covered ship" is

one navigating or scheduled to navigateinto, through or from waters beyond theterritorial sea of a single country, or alateral limit of that country's territorial seawith an adjacent country." 18 U.S.C.§ 2280(e))—there is jurisdiction if: (A)the activity is committed (i) against or onboard a ship flying the U.S. flag; (ii) inthe United States; (iii) by a U.S. nationalor a stateless person who habituallyresides in the United States; (B) duringthe commission of such activity, a U.S.national is seized, threatened, injured, orkilled; or (C) the offender is later found inthe United States. (2) In the case of a shipnavigating or scheduled to navigate solelywithin the territorial sea or internationalwaters of a country other than theUnited States, if the offender is laterfound in the United States after suchactivity is committed; and (3) in the caseof any vessel, if the activity is committedin an attempt to compel the United Statesto do, or abstain from doing, any act.

• Protocol for the Suppression of Unlawful ActsAgainst the Safety of Fixed Platforms Locatedon the Continental Shelf ("Fixed PlatformProtocol") (effective Mar. 6, 1995). A "'fixedplatform' means an artificial island,installation, or structure, permanently attachedto the seabed for the purpose of exploration orexploitation of natural resources or for othereconomic purposes." 18 U.S.C. § 2281(d),para. 2.

Implementing Legislation—18 U.S.C.§ 2281—prohibits, inter alia, efforts toseize control of a fixed platform, commitan act of violence against persons onboard a fixed platform, or commit otheracts likely to endanger its safety.

Jurisdictional Predicates—See 18 U.S.C.§ 2281(b). (A) the fixed platform islocated on the continental shelf of theUnited States; (B) the platform is locatedon the continental shelf of anothercountry, but the offense is committed by aU.S. national or a stateless person whohabitually resides in the United States; (C)the victim of any such activity is a U.S.national; (D) the platform is locatedoutside the U.S. continental shelf, but "theoffender is later found in the United States."


• Convention on the Prohibition of theDevelopment, Production, Stockpiling andUse of Chemical Weapons and on TheirDestruction ("Chemical WeaponsConvention") (effective Apr. 29, 1997).

Implementing Legislation—18 U.S.C.§ 229 (prohibits development, production,stockpiling, retention, use or threat to useany chemical weapon, with certainexceptions and exemptions).

Jurisdictional Predicates—(1) the offensetakes place within the United States; (2)the offense is committed by a U.S.national outside the United States; (3) theoffense is committed against a U.S.national outside the United States; (4) theoffense is committed against propertyoutside the United States that is owned,leased, or used, by the United States orany U.S. department or agency.

• Convention on the Marking of PlasticExplosives for the Purpose of Detection("Plastic Explosives Convention") (effectiveJune 21, 1998).

Implementing Legislation—18 U.S.C.§ 84l (prohibits manufacture of unmarkedplastic explosives); 18 U.S.C. § 842(m)(prohibits importation of unmarked plasticexplosives); 18 U.S.C. § 842(n) (prohibitstransfer or receipt of unmarked plasticexplosives); 18 U.S.C. § 842(o) (prohibitspossession of unmarked explosives).

Jurisdictional Predicates—Nonestated—by virtue of the nature of theoffenses, jurisdiction not extraterritorial.

• International Convention for the Suppressionof Terrorist Bombings ("Terrorist BombingConvention") (effective June 26, 2002).

Implementing Legislation—18 U.S.C.§ 2332f (prohibits placing or dischargingan explosive in a public place with theintent to cause death or serious bodilyharm or extensive destruction, and suchdestruction results, or is likely to result).

Jurisdictional Predicates—See 18 U.S.C.§ 2332f(b). (1) The offense occurs in theUnited States and (A) it is committedagainst another state or facility of suchstate; or (B) is committed in an attempt tocompel another state or the United Statesto do, or abstain from doing, an act; (C)

the offense is committed on board a vesselflying the flag of another state, an aircraftregistered in another state, or belonging toanother state; (D) the perpetrator is foundoutside the U.S.; (E) the perpetrator is anational of another state or a statelessperson. (2) The offense occurs outside theU.S. and (A) the perpetrator is a U.S.national or stateless person habituallyresiding in the United States; (B) a victimis a U.S. national; (C) the perpetrator isfound in the United States; (D) theoffense is committed in an attempt tocompel the United States to do, or toabstain from doing, an act; (E) the offenseis committed against a state orgovernment facility of the United States;(F) the offense is committed against aU.S. flag vessel or U.S. registered aircraft;(G) the offense is committed on board aU.S. operated aircraft.

• International Convention for the Suppressionof the Financing of Terrorism ("TerroristFinancing Convention") (effective June 25,2002)

Implementing Legislation—18 U.S.C.§ 2339C (prohibits providing or collectingfunds with the intention or knowledge thatsuch funds are: (A) to be used to carry outan act which constitutes an offense underone of a number of enumerated treatiesrelating to terrorist activity; or (B) anyother act intended to cause death orserious bodily injury to any civilian orany other person not taking part inhostilities, when the purpose of the act isto intimidate a population, or to compel agovernment or international organizationto do, or abstain from doing, an act).

Jurisdictional Predicates—See 18 U.S.C.§ 2339C(b). There is jurisdiction oversuch offenses when: (1) the offense takesplace in the United States and (A) theperpetrator was a national of anothernation or a stateless person; (B) on boarda vessel flying a foreign flag or an aircraftregistered under the laws of another state;(C) on board an aircraft operated byanother state; (D) the perpetrator is foundoutside the United States; (E) wasdirected toward or resulted in the carryingout of a predicate act against: (i) anational of another state; (ii) another stateor government facility; (F) was directed


toward or resulted in the carrying out of apredicate act committed in attempt tocompel another state or internationalorganization to do, or abstain from doing,any act; (G) was directed toward orresulted in the carrying out of thepredicate act: (i) outside the U.S.; or (ii)within the U.S., and either the offense orthe predicate act was conducted in, or theresults thereof affected, interstate orforeign commerce; (2) the offense takesplace outside the United States and (A)the perpetrator is a U.S. national or astateless person who habitually resides inthe United States; (B) a perpetrator wasfound in the United States; or (C) wasdirected toward or resulted in the carryingout of a predicate act against (i) U.S.owned, leased, or used property; (ii) anyperson or property within theUnited States; (iii) any U.S. national orthe property of such national; (iv) anyproperty of a legal entity organized underU.S. law, including any state; (3) theoffense is committed aboard a U.S. flagvessel or a U.S. registered aircraft; (4) theoffense is committed on board an aircraftoperated by the United States.; (5) theoffense was directed toward or resulted inthe carrying out of a predicate actcommitted in an attempt to compel theUnited States to do, or abstain fromdoing, any act.�

ABOUT THE AUTHOR

�John De Pue joined the Criminal Division'sAppellate Section in 1978. Eleven years later, hejoined the Criminal Division's General LitigationSection as its senior legal advisor forcounterterrorism and, upon the establishment of aCounterterrorism Section in that Division, servedas its principal appellate advocate. In thatcapacity, he litigated several of the Department'smajor cases involving the assertion ofextraterritorial jurisdiction. Prior to joining theDepartment of Justice he served in the Army'sJudge Advocate General Corp in the Republic ofViet Nam and taught international law at WestPoint. He retired from the Army Reserve in 2000with the rank of Brigadier General, and from theDepartment of Justice in 2005. He subsequentlyreturned to duty with the Justice Department as anannuitant.a

Counterterrorism CooperationBetween Allies: A Game TheoryIllustrationJeff BreinholtDeputy ChiefCounterterrorism SectionNational Security Division

I. Introduction

The various commissions that studied thegovernment failings that contributed tothe World Trade Center and Pentagon

attacks found fault with how intelligence was

handled within the U.S. intelligence community.These studies led to structural changes designedto assure that information flows more freely topersonnel capable of connecting the dots, inhopes that better information will result in moreeffective counterterrorism operations. Except inpassing, the commission studies have generallynot delved in to the structural features of theintelligence and law enforcement communities,the incentives that developed among the playerswithin these structures to hoard or share


information, and the extent to which these factorsor structures drive this behavior. Instead, too manypanel reports make the mistake of placing a morecomplex environment into a binary system. Thosewho, before 9/11, refused to share information werewrong. Those who pushed for greater disseminationwere prescient. This assessment is as simplistic,since it overlooks legitimate reasons whyinformation-sharing limitations arise.

This article considers this issue in the contextof bilateral counterterrorism cooperation, and theissue of information-sharing between alliednations. I seek to go beyond the binaryclassification to consider how information-sharingbarriers might be redressed through economicanalysis. As I will show, it is not enough for twocountries to insist that they are fully cooperativewith each other in important law enforcementissues. Even very close allies have legitimatereasons for refusing to sharing terrorism-relatedinformation. The challenge is to understand thesereasons and to evaluate whether the underlyingconcerns can be accommodated in a way to makebilateral cooperation possible. This is whereeconomic theory can be useful.

For federal prosecutors, there are really twoseparate concepts—international cooperationagainst terrorism and information-sharing—thatmust be understood in order to assess the dynamicthat comes into play, and deal effectively withforeign counterparts. One way of understandingthis dynamic is an application of game theory, atool that over the last few decades has been appliedto legal analysis. Martin Shubick, Game Theory,Law, and the Concept of Competition" U. CIN. L.REV. (Fall 1991). Game theory is the study of thebasic elements of conscious conflict andcooperation among multiple people. It seeks toanswer complicated questions through the lens of asimple competition, and the strategy that comesinto play by rational actors. Game theory analysisresults in the establishment of an "equilibrium,"which is the strategy that would, and should, beadopted by the players, based on their rationalassessment of costs and benefits of the variouschoices available to them in the game. Where theequilibrium is not the most mutually beneficial, thegame theorist seeks to explain what circumstancesled to this result. This analysis can lead to thediscovery of institutional reforms. For Americanterrorism prosecutors, game theory offers insightinto the type of interactions with foreigncounterparts that we might push to institutionalize.

What does game theory suggest about the idealset of circumstances for fighting terrorismthrough international cooperation? As shownbelow, the factors that influence how terrorism-related intelligence flows between two countriesare complex, and bilateral counterterrorismcooperation is not subject to binary choices, asmay appear at first glance. Game theory analysissuggests some institutional reforms and conceptsthat will maximize the prospect of an optimalequilibrium. One such concept is what we refer toas the "silver bullet" concession: a commitmentby the recipient country that the source countrywill maintain control over the use of theintelligence it is sharing, including the right topull it when it appears that an unpalatable amountof disclosure is being threatened in the course ofthe other country's domestic legal proceedings. Itis my hope that we start to institutionalize thesilver-bullet concession in case-relatedinternational legal assistance.

II. The assumptions: two alliedcountries, each with an intelligenceservice

Game theory illustrations require a series ofassumptions.

The first assumption in the counterterrorismcooperation scenario is that the players are twoallied countries that are jointly interested infighting international terrorism. Because they areallies and have a mutual goal (and commonenemy), each is motivated to help the other, aslong as it can be done in a way that is consistentwith their own national security.

Each country has an intelligence capability,which means that it invests resources in thecollection and analysis of information used toprotect its citizens and assets from threats.Although intelligence is sometimes shared withother nations, such sharing is generally done in amanner designed to prevent the recipient countryfrom becoming aware of the sender's specificintelligence-collection capability. In fact, sosensitive is some of the intelligence that it is notshared within anyone outside the country. Withinthe United States, for example, certain classifieddocuments are marked with the letters"NOFORN," an abbreviation for "No ForeignDissemination." This subclassification denotesthat the document contains information thatshould not be shared with foreign partners. Thisdecision is based on the fact that the particular


sources and methods of its acquisition will bejeopardized by such sharing, even between alliedcountries. In intelligence parlance, there is aconcept known as "singular intelligence."Information is considered "singular" if its meredissemination will allow the recipients to knowhow it was collected. Thus, singular information ismore sensitive, and less disseminated, thannonsingular information.

Each country owns all of the intelligence itcollects. It has an interest in maintaining its sourcesand methods as long as possible, because it expendsresources developing them. As a result, it isimpossible for one country to legally compelintelligence collected by another. Such sharing isonly accomplished by consent. Consent, of course,can be obtained by diplomatic, military, oreconomic pressure.

The fact that the two countries are allies, andequally committed in the battle against internationalterrorism, does not mean that they shareintelligence with each other, as each country'sintelligence capability represents an extension of itssovereignty. Thus, each side takes precautionsagainst its intelligence being stolen by othercountries, including its closest allies. For example,if a nation catches a spy attempting to stealintelligence on behalf of a friendly foreign country,the spy will be prosecuted. This is necessary,because the disclosure of certain purloinedinformation—even to a trusted ally—ruins certainsources and methods forever. This point isillustrated by the American prosecution of JonathanPollard, a former National Security Agency analystconvicted of spying for Israel. See U.S. v. Pollard,959 F.2d 1011 (D.C. Cir. 1992).

The effectiveness of each country's intelligencecommunity is judged by how often it providesintelligence that is useful to operational decision-makers. Each country has adopted an intelligencesystem that rewards relevant personnel forobtaining information and analysis that provesuseful in taking proactive government action. Thatis, the intelligence collectors and analysts withineach country are trained in such a way that theyyearn to have their products used for the largergood. Meanwhile, each country also has operationaldecision-makers who appreciateintelligence—judged by volume, source reliabilityand track record, and internal consistency, amongother factors—that can be used to justify aparticular action. This means that, when peoplewho occupy comparable positions in each country'sintelligence apparatus get together, they speak the

same professional language. They canimmediately grasp the relevance of intelligencethat is discussed, based on their training.

Note that the above description illustrates thelimitations of the binary choice described byPresident Bush. With these assumptions, whichapproximate reality, the fact that a country is aclose ally of the United States—in the President'swords, "with us"—does not mean that everyrequest for terrorism-related intelligence willnecessarily be honored.

III. Stag Hunt

Within game theory, there is a usefulparadigm, called Stag Hunt, to illustrate thedynamic of intelligence-sharing betweencountries, under the foregoing assumptions.

It works like this: two people are hunting atthe same location. Before the hunt starts, they arenot in communication with each other. Each mustdecide unilaterally whether to be outfitted to hunta stag (a larger game animal) or a hare (a rabbit).Successfully hunting a stag requires thecooperation of another person, who must beoutfitted accordingly. A single player cansuccessfully get a hare alone, with the properhare-hunting equipment. A hare, however, cannotbe killed with stag-hunting equipment. For thetwo players, the payoff of a single stag (meatworth $4 each) is greater than what they wouldreceive if they each caught their own hare (meatworth $2 each). Each player, then, is faced with abinary choice, without the benefit of knowingwhat the other chooses. The matrix showing thecontingencies and payoffs is depicted like this:

Player 2

Choice:Stag

Player 2

Choice:Hare

Player 1

Choice:Stag

Player 1: $ 4

Player 2: $ 4

Player 1: $ 0

Player 2: $ 2

Player 1

Choice:Hare

Player 1: $ 2

Player 2: $ 0

Player 1: $ 2

Player 2: $ 2

The best result would be for both players tocooperate, and choose to rent the stag-huntingequipment. Killing a stag would yield $8 worth ofmeat, $4 per person. However, they cannot


communicate in order to confirm the other'scooperative attitude. What if one opts for the stag-hunting equipment, only to find that the otherplayer is loaded for hare? That person would be outof luck, and would suffer a day without any payout.If a person is sufficiently risk averse or cynicalabout human nature, he or she might conclude thatthe other player is going to practice pure self-interest. If this is the case, the best option would beto hunt for hare, where the payout does not dependon any cooperation, although it will be lower.

The Stag Hunt game is intentionally unreal, asthere are very few situations in whichcommunication necessary for cooperation isimpossible. However, it illustrates the dynamic thatis at play in the question of intelligence-sharingamong countries that are jointly interested incombating international terrorism. A completelyself-interested strategy means no cooperation.

Assume that two countries with an intelligenceapparatus and a mutual goal of fighting terrorismmust decide whether to share sensitive intelligence,and that the decision must be made in the context ofthe Stag Hunt game. If both countries agree tocooperate, the pooling of intelligence may allowthem to connect the various pieces of a developingterrorist plot so that law enforcement from one ofthe countries may prevent it. If one country refusesto cooperate, both countries may suffer a loss ofsources and methods, without either receiving thebenefit of a full pooling of information.

IV. Application of the game: building astructure for optimal equilibrium

The Stag Hunt illustrates a situation where nocommunication is permitted between the players.Moreover, each game ignores the iterative nature ofcommunication, where players make a series ofmoves that are informed by the other player'schoices. In the real world, this is represented by thegive and take of negotiation. In game theory, this isreferred to as the "extensive form" game model. Inthis model, players have an opportunity to assessand recalibrate their strategy over the course ofrepeated interactions.

Let's return to the set of assumptions describedfor the international counterterrorism cooperationexample, and add a few more. The two countriesare contiguous, citizens from one country oftentravel to the other, and the two countries often playhost to the same visitors. As a result, theintelligence each country collects domestically islikely to have operational significance to the other.

Assume further that, due to the actions of onecountry, its neighbor realizes that it hasintelligence which, if shared, will create somecounterterrorism options that would not otherwiseexist.

A discussion of hypothetical countries thatqualify for the series of assumptions we haveposited follows. The country of South hasannounced the indictment of a group ofindividuals involved in a credit card fraudscheme, and this news is widely publicized. Whatis not publicized is the fact that South hasadditional intelligence on these defendants,developed though its sensitive sources andmethods. Although South's intelligence suggeststhat the credit card scheme is part of a terroristfinancing operation, there is not enoughintelligence yet to justify seeking charges onSouth's crime of "providing material support."See 18 U.S.C. §§ 2339A, 2339B. For this, Southneeds additional evidence.

News of the credit card fraud prosecutionreaches North's intelligence service personnel,who realize that they have information suggestingthat some of the South defendants are receivingdirections from a North-based Al Qaidaoperative, who, in turn, is speaking by phone toAl Qaida leadership in Afghanistan. This issomething that South suspects, based on thefragmentary information collected through itspersonnel. One of North's most guarded nationalsecurity secrets is how the North intelligenceservice obtained this information. As a result, itdoes not part with this information lightly.North's intelligence service personnel telephoneSouth's intelligence service and say that is hasclassified intelligence related to the individualsrecently charged with credit card fraud. Nofurther elaboration is given.

Unlike the Stag Hunt, the reality is that thesetwo countries can communicate, at least up to apoint. This means that the scenario will take theextensive form.

Advised of the news from North, the firstexchange starts with a phone call from South.

_______________

South: We want your intelligence, to sharewith our prosecutors.

North: No.

_______________


If the dialogue ended at that point, there wouldbe an equilibrium with no payout on either side.South does not obtain the benefit of the North'sintelligence. Each country breaks even (except forthe de minimis cost of a long-distance phone call).Nothing ventured, nothing lost.

This equilibrium, however, is not ideal. What ifNorth's information about South's defendants, whencombined with the more fragmentary Southintelligence, could have been used to thwart aterrorist plot? What if the plot results in asensational attack, with hundreds of innocentcivilians dead in both South and North? Personnelinvolved in the decision not to share intelligencethat could have disrupted the attack will have quitea bit of explaining to do. They will likely becomeprofessional witnesses before various commissionsand legislative bodies in both countries.

When the initial request is rejected, South'sdiplomats enter into negotiation. Perhaps thediplomats repeat the South's President's statementthat you are either for or against us, in hopes thatNorth's intelligence officials will reconsider theirrejection. Assume (again, unrealistically) thatSouth's negotiators are not authorized to giveassurance as to how South's prosecutors will useNorth's intelligence, if they are fortunate enough toreceive it. This means that North's reaction islimited to a binary choice, a yes or no answer, andthat North has no way to control how South willuse North's intelligence once it is disseminated. Ifthis occurs, South will be faced with a unilateralchoice: either use the intelligence to supersede thecriminal charges, or do not use it. Assume thatSouth's decision will not be informed by thepreferences of North's intelligence.

With two players each facing a binary choice,there are four possible scenarios arising from thispoint.

• Scenario 1: North persists in saying no.

• Scenario 2: The intelligence is shared. Southuses it in criminal prosecution.

• Scenario 3: The intelligence shared. Southdoes not use it.

Placed within the Stag Hunt analysis, thesescenarios translate into this 2 x 2 matrix.

North:

ShareIntelligence

North:

Do notShare

South: Use It Scenario 2 Scenario1

South: Do notUse It

Scenario 3 Scenario1

In Scenario 1, there is no payout or costs foreither player (other than the costs which would beassessed if the failure to share information is laterdetermined to be part of a failure to prevent aterrorist attack). Scenario 1 is, however, probablythe worst situation. South and North are twoallied, contiguous nations committed to fightinginternational terrorism, yet they cannot reach anagreement to share information that is of jointinterest. To avoid this embarrassment, thecountries have incentive to try to negotiateconditions to avoid Scenario 1.

Consider Scenario 2, where South makes theunilateral decision to use the information. Whatare the respective costs and benefits to each side?North's government has assisted in a Southterrorism case, which benefits North. North'sintelligence service has found a worthy consumerfor its products, which is another benefit. Thecost to North for this decision, however, is likelythe permanent loss of the sources and methodsthat gave rise to this intelligence, because South'sdecision to use it is made without regard toNorth's intelligence concerns or equities.

Whether Scenario 2 is a good situation forNorth will depend on whether the benefits exceedthe costs. Because North was not involved in thedecision of how and if South's prosecutors woulduse the information in judicial proceedings, it hadno way to measure the bottom-line impact ofScenario 2. On the other hand, Scenario 2 givesSouth the payout of intelligence to use in acriminal prosecution. There is not much cost, ifone does not count the damage to the futurewillingness of North to provide this type ofintelligence, in light of the resulting damage to itssources and methods.

In Scenario 3, North's intelligence is shared,but not used by South. This means that the cost toNorth is small, since the sharing of theintelligence did not result in its publication, andany loss of sources and methods would be limited


to that portion which it would otherwise havetreated as NOFORN (unclear from these facts).What about the benefits to North? There are none,other than the goodwill it engendered with South.What is also unclear is what went into South'sdecision not to use the intelligence. It may havearisen from the fact that there was no mechanismfor obtaining North's assistance to place theintelligence into an admissible form for South'sjudicial proceedings. For example, North'sintelligence may have been shared in raw form,making it hearsay and difficult to properlyauthenticate under South's evidentiary rules. Ofcourse, North's intelligence service could provide awitness, a prospect that might involve cross-examination of the witness and the risk of anunpalatable amount of disclosure of nationalsecurity secrets. Although there might not be a costfor South, there would undoubtedly be frustration atpossessing intelligence it could not use, becausethere was no mechanism for obtaining additionalassistance from North.

The discussion of Scenarios 2 and 3 suggests athird round of play in which the countries negotiatefurther conditions that will justify their decision tocooperate. Given the foregoing assumptions andfacts, and the unknown factors that prevent a fullanalysis of Scenarios 2 and 3, the conditions shouldpermit North to maintain a certain amount ofcontrol over how South's prosecutors use theNorth's intelligence, and allow South's prosecutorsto obtain additional assistance from North so thatthe intelligence can be effectively exploited in ajudicial proceeding.

The negotiation would look like this.

_______________

South: We want your intelligence, to sharewith our prosecutors.

North: No.

South: Our President says that, in the fightagainst international terrorism,you are either with us or againstus. Each of our nations face acommon enemy, and this is animportant opportunity. If we fail tocooperate and terrorists strike, themedia and historians on both sidesof the border will be dancing onour graves.

North: O.K. How about this? You can seethis information, but yourprosecutors cannot use it unless

you convince us that it will bedone in such a way that ournational security interests—thesanctity of our sources andmethods—will be maintained.

South: How can we do that?

North: We will let you examine theintelligence, but your use of itwill be contingent on our abilityto prevent you from using it, ifand when it becomes clear thatsuch use will involve anunpalatable amount of disclosurein any resulting judicialproceedings, of our intelligencecollection capabilities.

South: Alternatively, you give us theinformation and our prosecutorswill review it. If they decide thatit justifies the addition ofterrorism charges to ourindictment, they will explain toyou how they plan to present it incourt. They will walk yourlawyers through their specificplans and strategy. They willalso try to minimize theuncertainty in what the court willrequire to authenticate and admitthat information, by seeking anadvance court ruling on itsadmissibility. By the time of thetrial, we will all know what isrequired.

North: What if these plans break downwhen it comes to the trial? Whathappens if a witness we provideto help you introduce thisintelligence is subject to cross-examination? How will weprotect against the prospect thatour witness may be forced by thejudge to testify about our statesecrets?

South: How about this? Even after thestart of the trial, you willmaintain an unfettered right toprevent us from introducing yourintelligence, including the rightto force us to pull thatinformation from the criminalproceeding if it appears, in yourjudgment, that our court is


permitting an unpalatable amountof disclosure. We will honor ourcommitment to you, even if ourprosecutors have to suffer the mostextreme judicial sanction—thedismissal of the prosecution. Thisway, we get to review and possiblyuse the intelligence you havecollected, you maintain the right tocontrol that intelligence consistentwith your national securityinterests, and we each gain thejoint benefit of fighting terrorismthrough bilateral cooperation.

North: I think we have a deal.

_______________

This is the equilibrium that is reached throughnegotiation, something that is not permitted by theclassic Stag Hunt model. By changing the dynamicto allow for communication in the context of thesharing of counterterrorism intelligence betweentwo allied countries, and considering the rationalmoves by each, we have used game theory toconstruct the optimal infrastructure to reach themost mutually beneficial equilibrium.

The optimum is reached by the requestingcountry's (South) willingness to concede to theproviding country (North) the unfettered right tomaintain control over the requesting country's useof the intelligence in any resulting legal proceeding,as a condition of it being permitted to review it inthe first instance.

This is close to an existing intelligence conceptknown as "originator-controlled" information(ORCON). Intelligence labeled in this way cannotbe used or disseminated without the consent of theoriginator. The optimal equilibrium will be reach inthis situation if South is willing to grant ORCONassurances to North, as a condition of examining itsintelligence.

If South grants ORCON assurances, Scenario 1is avoided entirely. The intelligence is shared.

From there, whether the ultimate resolution willbe Scenario 2 or Scenario 3 is not known, since thisdepends on factors that are beyond the control ofthe parties at the time of the agreement. ORCONassures that Scenario 3 will be reached, however,only if it is more mutually beneficial than Scenario2. Getting to Scenario 3 requires a willingness ofNorth to give permission for South to use theinformation in the judicial proceeding, which isbased on North's assessment of the costs (where

any uncertainty has been minimized by pretriallitigation). What little risk remains is offset by theability of North to make the unilateral decision towithdraw consent of the use of the intelligence.This means that it can exercise its ORCON rightsat its own discretion. If Scenario 3 isreached—the best one for South—it will alsonecessarily be the best one for North. Thenegotiations assure this result.

It is a beautiful thing. A set of rationally-negotiated conditions has been set in whicheveryone wins, except the terrorists.

V. Reality: The Charlotte HizballahCase

Shortly before the turn of the Millennium,when the United States was on a heightened stateof alert, an American customs official inWashington state noticed something strangeabout a foreign traveler seeking to enter theUnited States on an automobile ferry at thenorthwest border. The traveler's attempt tophysically escape the officer's questioning wasunsuccessful, and the officer uncovered explosivematerials in the trunk of the traveler's car. AhmedRessam, an Algerian who had spent time inCanada, was ultimately convicted of an Al Qaidaplot to blow up Los Angeles InternationalAirport. The result was aided by assistance fromthe Canadian government. See U.S. v. Ressam,221 F.Supp.2d 1252 (W.D.Wash. 2002).

Although the Ressam case received moreattention, there was another case on the east coastof the country that was perhaps even moresignificant, at least in terms of the long-termimplications for international cooperation. Itinvolved a group of Hizballah operatives in NorthCarolina. The group was led by MohamadYoussef Hammoud, and came to the attention ofthe authorities because of an interstate cigarettesmuggling operation uncovered by an off-dutysheriff.

Hammoud and his associates bought largequantities of cigarettes in North Carolina,smuggled them to Michigan, and sold themwithout paying Michigan taxes. They tookadvantage of the fact that Michigan imposes a taxof $7.50 per carton of cigarettes, while the NorthCarolina tax was only 50 cents. Before theirarrest on federal racketeering charges, the plotterstransported cigarettes valued at roughly $7.5million, depriving the state of Michigan of $3million in tax revenues. During this period,


Hammoud led weekly prayer services for Shi'aMuslims in Charlotte at his home, where he wouldurge the attendees to donate money to Hizballah.Hammoud would then forward some of the moneyto Hizballah leaders in Beirut. In addition to theRICO charges, Hammoud was ultimately chargedwith various immigration violations, sale ofcontraband cigarettes, money laundering, mailfraud, credit card fraud, and conspiracy to providematerial support to Hizballah. See United States v.Hammoud, 381 F.3d 316, 326-27 (4th Cir. 2004). Itbecame the first American terrorist financing caseto ever go to trial.

At the trial, the prosecutors called a childhoodfriend of Hammoud, Said Harb, to describe thecigarette smuggling operation and Harb's efforts toassist Hizballah in obtaining "dual use" equipment,such as global positioning systems, which could beused for both civilian and military activities. Harbtestified that Hammoud declined to becomeinvolved in providing equipment—which occurredin Canada—because he was helping Hizballah inhis own way. However, when Harb traveled toLebanon in September 1999, Hammoud gave him$3,500 for Hizballah. Id. at 327. The prosecutorsalso introduced summaries and analyses ofconversations captured electronically throughsurveillance conducted by the Canadian SecurityIntelligence Service (CSIS). A number of theseCSIS recordings were destroyed pursuant to routineprocedures. Fortunately, summaries and analysis ofthe conversations were prepared by a CSIScommunications analyst shortly after eachconversation was recorded. During pretrialproceedings, the district court ruled that the CSISsummaries were admissible as recordedrecollections, Fed. R. Evid. 803(5), and as publicrecords. See id. Rule 803(8).

At Hammoud's trial, the prosecutors introducedthe factual portions of some of these summaries(the analysis was redacted from the summariesbefore submission to the jury). Hammoud stipulatedto the admissibility of the summaries. 381 F.3d at335. The CSIS wiretaps showed a procurementoperation involving Harb was overseen byHizballah's Chief of Procurement from Lebanon,Hassan Laqis, and carried out by an operativetrained by Iran's Revolutionary Guard, MohamadDbouk. The CSIS information showed thatHizballah wired tens of thousands of dollars fromLebanon to Canada for the purchase of the dual-useequipment. Later in the procurement efforts,Hizballah entered into an agreement with itsoperatives in Canada to purchase equipment with

fraudulent credit cards, and pay fifty cents on thedollar for all items procured. See D. Scott Broylesand Martha Rubio, Smokescreen for Terrorism,52 UNITED STATES ATTORNEYS' BULLETIN 30(Jan. 2004).

Thus, Hammoud directly involved thedynamic discussed above. Canadian intelligence,specifically electronic surveillance, offeredAmerican counterterrorism officials insight intothe operations of a U.S.-based Hizballah cell.This intelligence was so good that the Americansused it in the criminal prosecution of the cellleader. What went into that decision?

The public answer to that question comesfrom a book by Tom Diaz and Barbara Newman.TOM DIAZ & BARBARA NEWMAN, LIGHTNING

OUT OF LEBANON: HEZBOLLAH TERRORIST ON

AMERICAN SOIL (2005). The U.S.-Canadiannegotiations essentially mimicked thenegotiations between North and South, after theban on communication in the Stag Hunt gamewas lifted.

CSIS used wiretaps and othercommunications intercepts to monitor theactivities of Hizballah operatives within Canada.In 1999, it learned that the Hizballah dual-useprocurement involved Said Harb, an Americanwho had traveled to Vancouver from Charlotte. Itnotified the FBI, which quickly realized thesignificance of the intelligence. The FBI knewthat Harb was tied to Hammoud, who wascharged with racketeering, but not yet terroristfinancing. The American prosecutors believedthat Harb would be a valuable prosecutionwitness if he could be convinced to cooperateagainst Hammoud, and that the CSIS electronicintercepts—never before used in any American orCanadian judicial proceeding—could be useful inconvincing Harb that he had no choice but tocooperate.

As Diaz and Newman describe it, "Anintricate dance thus commenced in the spring of1999. A rolling American team of FBIinvestigators and Justice Department lawyersshuttled to Canada to court the Canadians. By thesummer of 2000, the dance turned into a raceagainst time." Id. at 207.

The assurances that ultimately led to the dealwas referred to as the "silver bullet." In exchangefor granting American prosecutors the right to usethe Canadian intelligence, CSIS lawyers wereassured that they could withdraw the Canadianintelligence from the case at the first suggestion


that the presentation of the evidence would imperilCanada's security. Id. at 216. The U.S. prosecutorspromised to seek a pretrial ruling from the court inNorth Carolina on precisely what informationneeded to be presented in order to successfullyadmit the Canadian intelligence as one of thehearsay exceptions under the Federal Rules ofEvidence. This was accomplished prior to Harb'sFebruary 2001 guilty plea. A year later, Harbtestified against Hammoud, who was ultimatelyconvicted. Harb received a three and one-half yearsentence. Hammoud ultimately received a sentenceof over 150 years, which he is currently appealing.Id at 217. VI. Institutionalizing the "silver bullet"

It is sometimes said that great cases make badlaw. This is certainly not true of the CharlotteHizballah case, which represents an anecdotalexample of two allied countries coming together inan effort to fight a common threat, and creativethinking about how intelligence can be transformedinto evidence admissible in a criminal trial. Whatdoes it say about bilateral counterterrorismcooperation generally? Can these lessons fromCharlotte be institutionalized?

In Hammoud, the solution was the "silverbullet." CSIS lawyers maintained an unfetteredright to pull back Canadian intelligence if itappeared, during the American judicialproceedings, that Canadian national security wasabout to be compromised. Recall, in thehypothetical dialogue between North and South,this was the last promise made by the countryseeking permission to use the intelligence, aconcession that ultimately clinched the deal.

The "silver bullet" is essentially thereaffirmation of "originator controlled" (ORCON)limits on dissemination. Under ORCON, theoriginator of intelligence does not lose control overhow it is used merely by disseminating it. Instead,the receiving entity agrees, as a condition ofgaining access to the intelligence, to be bound bythe originator's conditions on use, and to notdisseminate it to any third-party absent theoriginator's permission. As shown in Part III, oncewe lift the ban on players' communication thatprevents a certain optimization in the Stag Huntmodel and play the game forward, the negotiationof ORCON conditions will result in the mostbeneficial equilibrium.

To illustrate, consider the cost/benefits to eachside of the negotiations. The cost of dissemination

subject to ORCON is close to zero for theoriginator, since it maintains control over whetherand how the intelligence is used by the receivingparty. The originator gives up nothing. Thismeans that any positive benefit will make thatchoice worthwhile. There will always be somebenefit to sharing intelligence, since it means thatthe originator has found a consumer, one of theassumed goals of its intelligence apparatus. Thesize of the benefit will vary, from small (therecipient country is ultimately unable to use it) tolarge (the intelligence is used to obtain asignificant counterterrorism result). In general,with ORCON assurances, the benefit to theoriginator will exceed the cost, which makes adecision by the originator to share theinformation easy.

Consider the cost/benefit for the requestingparty from the following two scenarios.

• The requesting party refuses to grantORCON assurances.

• The requesting party agrees to grant ORCONassurances.

In the first situation, if it is agreed that theoriginator's decision to share the intelligence willdepend on ORCON assurances, the intelligencewill not be forthcoming. In the second, therequesting party receives the intelligence, but it issubject to originator controls.

Receiving the intelligence, even if its value islimited by ORCON controls, is better than notreceiving it, since there is the benefit of havingpertinent knowledge. What about the cost? Thecost of granting ORCON assurances is whateverwill be incurred in seeking the originator'spermission prior to using the information, asopposed to maintaining the unilateral right todecide whether to use the intelligence that isshared. The cost, however, will always beexceeded by the benefit, because the cost is anecessary condition to receiving the information,without which there will be no benefit. Also, ifthe costs of obtaining additional permission fromthe originator do not exceed the benefit of usingthe information, the intelligence can be shelved.If the requesting party refuses to grant ORCONassurances to the originator, it will remainignorant of the intelligence, and will be deprivedof engaging in a later cost/benefit analysis.

This analysis illustrates the benefits of theinstitutionalization of ORCON assurances, apractice that may not seem intuitive in the


absence of game theory analysis. Countries shouldbe generous is giving ORCON assurances to theirallies if it increases the sharing of intelligence. InHammoud, the "silver bullet" assurances came fromU.S. prosecutors. Should lawyers be authorized tobind the entire U.S. Government in theirnegotiations with other countries' intelligenceservices? Binding the U.S. Government to certainlegal positions is what federal prosecutors doeveryday, in making decisions to grant immunity orenter into plea agreements. Why should they not bepermitted to grant ORCON assurances to foreignintelligence services?

The implication of this analysis is that greaterand more meaningful counterterrorism cooperationbetween allied nations is possible through adecision to institutionalize ORCON controls, and amutual understanding of each countries' discoveryobligations and evidentiary rules that makeoperations decisions a truly collaborative process.

VII. Conclusion

Game theory tools and the Stag Hunt scenariosshow the cost of uncertainty. In these cases,uncertainty results from the rules of the games,where the players are unable to communicate.These rules can lead to player decisions that mimicwhat would occur in a "zero-sum game." A zero-sum game is one in which a gain for one participantis always at the expense of another, such as in mostsporting events. In such a situation, the equilibriumcannot satisfy both players. When it is applied tothe concept of international cooperation by alliednations against terrorism, it illustrates the dangersthe United States simply cannot afford. In a zero-sum game, allies are transformed into adversaries.If each has a piece of a larger puzzle, theadversarial relationship will result in a failure toconnect the dots or solve the puzzle.

Fortunately, game theory illustrates a way outof this darkness. Bilateral counterterrorismcooperation need not be a zero-sum game, at least ifit involves countries with a history of trusting eachother. In this situation, they are able tocommunicate and agree to a set of conditions thatwill eliminate uncertainty. Where this is possible,the equilibrium will be the result of negotiation,with each side being rationally self-interested andaware of the other's moves.

The negotiation depicted in this article showsthe fallacy of viewing internationalcounterterrorism cooperation and information-sharing as a binary choice. Effective

cooperation requires recognition of the iterativenature of bilateral cooperation, and the very realrisks that arise when countries decide to sharetheir intelligence sources and methods. Managingthis risk requires conditions to assure that eachside is able to maintain its equities in the face ofthe actions of the other.

The hypothetical negotiations suggest anideal equilibrium. Intelligence is shared, but itremains subject to control by the originator,which maintains a role in the recipient's decision-making process concerning the use of theintelligence. This ideal has an added benefit: therecipient country is not left alone when facing themechanical challenge of using the information.For example, if the intelligence may bepotentially useful as evidence in a judicialproceeding, the ORCON assurances imply amechanism for the originator's involvement in thesolution—locating and negotiating with theproper foundational witness, a burden that willnot be borne solely by the recipient. In the end,each side maintains its right to protect itssovereign equities while maximizing theopportunity for effective joint counterterrorismoperations.�

ABOUT THE AUTHOR

�Jeff Breinholt is Deputy Chief,Counterterrorism Section, National SecurityDivision, and heads the Terrorist Financing Unit.He joined the Department of Justice with the TaxDivision, Western Criminal Enforcement Sectionin 1990 and spent six years as a Special AssistantU.S. Attorney for the District of Utah beforejoining the Counterterrorism Section in 1997. Heis a part-time lecturer at George WashingtonUniversity Law School, and a Research andPractice Associate of the Syracuse UniversityInstitute for National Security andCounterterrorism. He is the author of two booksand several articles on law enforcement andintelligence issues.a


The USA PATRIOT Act and BilateralInformation SharingKarl SandovalTrial AttorneyNational Security Division

I. Introduction

Much has been written about the eventsleading up to the attacks of September11, 2001, including the perceived

inability of U.S. law enforcement agencies todisseminate information that was obtained aboutthe hijackers before the attacks, in a timely,efficient, and thorough manner. Not surprisingly,the need to improve the intelligence sharingbetween domestic law enforcementagencies—and, by extension, with federalprosecutors—came squarely into focus in theaftermath of 9/11. Federal terrorism prosecutors,who were frustrated by the so-called "wall"observed between intelligence and lawenforcement, joined in the call for a change. Seegenerally Hearing on the USA PATRIOT ActBefore the House Subcommittee on Crime,Terrorism, and Homeland Security (Apr. 19,2005) (testimony of Barry M. Sabin, Chief,Counterterrorism Section, Department of Justice,concerning information sharing under the USAPATRIOT Act).

Congress moved quickly to address thisproblem. In late 2001, the USA PATRIOT Act,Pub. L. 107-56, 115 Stat. 272 (2001) (thePATRIOT Act), lifted long-standing barriers toinformation sharing by allowing the disclosure ofgrand jury information, and information derivedfrom Title III activity, to any federal lawenforcement official, where such informationrelated to foreign intelligence orcounterintelligence.

The Homeland Security Act of 2002, Pub. L.107-296, 116 Stat. 2135 (2002) (the HSA), andthe Intelligence Reform and Terrorism PreventionAct of 2004, Pub. L. 108-458, 118 Stat. 3638(2004) (IRTPA), expanded upon this foundationby allowing prosecutors and law enforcementagents to disclose to appropriate foreigngovernment officials grand jury and Title IIIinformation involving a threat of domestic orinternational terrorism, for the purpose ofresponding to such a threat.

This article summarizes the statutory changesthat have facilitated the bilateral sharing of grandjury and Title III information with foreignpartners, and proposes that the ability to shareterrorism-related information with them isespecially crucial today, as terrorism increasinglyplays out on an international stage. Indeed,terrorists routinely plan, coordinate, and seek tocarry out their acts across oceans and entirecontinents. The disrupted plot to blow upairplanes flying from England to the United Statesduring the summer of 2006 demonstrates thevalue of bilateral information sharing as a tool toprevent international terrorist attacks. To this end,Rule 6(e)(3)(D) of the Federal Rules of CriminalProcedure (the Rules) and 18 U.S.C. § 2517(8)now allow prosecutors and agents to share withtheir foreign counterparts, foreign intelligence andother terrorism-related information derived fromgrand jury and Title III activity. The evolution ofthese tools, and what they suggest about theability of federal prosecutors to share terrorism-related information with their foreigncounterparts, is discussed below.

II. The sharing of grand jury and TitleIII information before passage of ThePATRIOT Act

Rule 6(e)(2) generally prohibits the disclosureof a "matters occurring before the grand jury," aterm that is not defined in Rule 6 itself. However,the term "matters occurring before the grand jury"broadly encompasses "information that wouldreveal the strategy or direction of theinvestigation, the nature of the evidence producedbefore the grand jury, the views expressed bymembers of the grand jury, or anything else thatactually occurred before the grand jury."

Rule 6(e)(2) codifies the traditional rule ofgrand jury secrecy by prohibiting members of thegrand jury, government attorneys and theirauthorized assistants, and other grand jurypersonnel, from disclosing grand jury matters,subject to what were previously only a fewexceptions in Rule 6(e)(3).

Prior to the passage of the PATRIOT Act andIRTPA, Rule 6(e)(3)(A) narrowly allowed for


disclosure only when it was made: (1) to agovernment attorney for use in the performance ofthe attorney's duty, and (2) to governmentpersonnel deemed necessary by a governmentattorney to assist in the performance of suchattorney's duty to enforce federal criminal law. Inaddition, under Rule 6(e)(3)(C), disclosure couldalso be made to another federal grand jury, bycourt order and in other limited circumstances.

In practice, this chilled the ability of U.S. lawenforcement agencies to share bilaterally (andwith each other) intelligence information obtainedduring the course of a grand jury investigation.Indeed, in 2002, a report of the Select Committeeon Intelligence observed that, in the ten yearsbefore 9/11, grand jury investigations of variousterrorist plots had generated valuable intelligence,but little of it had been shared with theintelligence community. Joint Inquiry intoIntelligence Community Activities Before andAfter the Terrorist Attacks of September 11, 2001,S. REP. NO. 107-351 (2002), H.R. REP. NO. 107-792 at 89 (2002). While Rule 6(e) may haveprevented the disclosure of some of theinformation, the Committee noted that Rule 6(e)increasingly came to be used simply as an excusefor not sharing information. Id. at 92.

Before the PATRIOT Act, 18 U.S.C. § 2517also made it difficult for U.S. law enforcementagencies to disclose to one another informationobtained from a Title III intercept. Section 2517previously allowed disclosure of informationderived from a Title III wiretap, for example, onlyin limited circumstances. As of September 11,2001, Paragraph (1) of the statute provided asfollows:

(1) Any investigative or law enforcementofficer who, by any means authorized by thischapter, has obtained knowledge of thecontents of any wire, oral, or electroniccommunication, or evidence derivedtherefrom, may disclose such contents toanother investigative or law enforcementofficer to the extent that such disclosure isappropriate to the proper performance of theofficial duties of the officer making orreceiving the disclosure.

Section 2517(1) remains unchanged from theversion that existed prior to the PATRIOT Act.

The practical effect of this statute was to barthe bilateral (and domestic) sharing of terrorism-related information obtained from Title IIIactivity, especially in those investigations where

foreign officials were not already involved, whichis the case in most Title III investigations.

III. Grand jury and Title IIIinformation involving foreignintelligence may now be shared

A. Grand jury information

Section 203(a) of the PATRIOT Act amendedRule 6(e)(3)(C) to allow grand jury matters"involv[ing] foreign intelligence orcounterintelligence (as defined in Section 3 of theNational Security Act of 1947 (50 U.S.C. 401a)),or foreign intelligence information," to bedisclosed to any federal law enforcement,intelligence, protective, immigration, nationaldefense, or national security official, to assist inthe performance of their official duties. While thePATRIOT Act amended the then-existing versionof Rule 6(e)(3)(C), these changes are nowcontained in Rule 6(e)(3)(D). The term "foreignintelligence information" was defined in Rule6(e)(3)(C)(iv), now codified at Rule6(e)(3)(D)(iii), to include information relating tothe ability of the United States to protect againstactual or potential attacks or other grave hostileacts, international terrorism, or information withrespect to a foreign power or foreign territory thatrelates to the national defense or security of theUnited States. Under this section, a governmentattorney is also required to file, under seal, anotice with the court, advising it of the disclosureand identifying the departments, agencies, orentities, to which the disclosure was made. FED.R. CR. P. 6(e)(3)(D)(ii). Any federal official whoreceives information pursuant to this section mayuse that information only as necessary in theconduct of that person's official duties, subject toany limitations on the unauthorized disclosure ofsuch information. FED. R. CR. P. 6(e)(3)(D)(i).

IRTPA expanded the exceptions to thegeneral rule of grand jury secrecy, most notablywith the creation of new Rule 6(e)(3)(D), whichcontinues the PATRIOT Act's earlier changes.Rule 6(e)(3)(D) allows a government attorney todisclose any grand jury matter involving a threatof attack or other grave hostile acts of a foreignpower, or a threat of domestic or internationalterrorism, to any appropriate foreign governmentofficial, for the purpose of preventing orresponding to such a threat or acts. Congresspreviously sought to expand the exceptions togrand jury secrecy in the HSA. For example,§ 895 of the HSA would have allowed disclosure


of grand jury matters to foreign governments in anumber of circumstances. The Supreme Court,however, amended Rule 6 on April 29, 2002,making § 895 incapable of execution because itdid not reference the then-current version of Rule6. Therefore, Congress reenacted the changescontemplated by § 895 in IRTPA. An excellentanalysis of the IRTPA amendments was providedby Arnie Celnicker, Changes To Grand JurySecrecy Made By The Intelligence Reform AndTerrorism Prevention Act, 54 UNITED STATES

ATTORNEYS' BULLETIN 7 (2005).

IRTPA also amended Rule 6(e)(3) to allowdisclosure of grand jury matters to a foreigngovernment when disclosure is deemed necessaryby a government attorney to assist in enforcingfederal law, and when a government attorneyseeks a court order for disclosure to a foreigngovernment for its criminal investigation. FED R.CR. P. 6(e)(3)(A)(ii), 6(e)(3(E)(iii).

Thus, as it now stands, Rule 6(e)(3)(D) and, toa lesser extent, Rule 6(a)(3)(E), give prosecutorsand agents considerable leeway to share grandjury information with foreign partners in casesinvolving terrorism and other threats to nationalsecurity, subject to certain usage restrictionsimposed upon the recipient. In part, Rule6(e)(3)(D) now provides:

(D) An attorney for the government maydisclose any grand jury matter involvingforeign intelligence, counterintelligence (asdefined in 50 U.S.C. § 401a), or foreignintelligence information (as defined in Rule6(e)(3)(D)(iii)) to any federal lawenforcement, intelligence . . . or nationalsecurity official to assist the official receivingthe information in the performance of thatofficial's duties. An attorney for thegovernment may also disclose any grand jurymatter involving, within the United States orelsewhere, a threat of attack or other gravehostile acts of a foreign power or its agent, athreat of domestic or international sabotage orterrorism, or clandestine intelligencegathering activities by an intelligence serviceor network of a foreign power or by its agent,to any appropriate Federal, State . . . orforeign government official, for the purposeof preventing or responding to such threat oractivities.

As noted above, an official who receivesinformation under Rule 6(e)(3)(D) may use theinformation only as necessary in the conduct of

that person's duties, subject to any limitations onthe unauthorized disclosure of such information.Any foreign government official who receivessuch information may use the information only ina manner consistent with any guidelines issuedjointly by the Attorney General and the Directorof National Intelligence. FED. R. CR. P.6(e)(3)(D)(i).

B. Title III information

Mirroring the new rules regarding the sharingof grand jury information, § 2517 was amended toallow disclosure of foreign intelligenceinformation, obtained through Title III activity, toother federal law enforcement officials. Paragraph(6) of § 2517, which was added under the§ 203(B) of the PATRIOT Act, provides:

(6) Any investigative or law enforcementofficer, or attorney for the Government, whoby any means authorized by this chapter, hasobtained knowledge of the contents of anywire, oral, or electronic communication, orevidence derived therefrom, may disclosesuch contents to any other Federal lawenforcement, intelligence, protective,immigration, national defense, or nationalsecurity official to the extent such contentsinclude foreign intelligence orcounterintelligence (as defined in section 3 ofthe National Security Act of 1947 (50 U.S.C.401a)), or foreign intelligence information [asdefined in 18 U.S.C. 2510(19)], to assist theofficial who is to receive that information inthe performance of his official duties. Anyfederal official who receives informationpursuant to this provision may use thatinformation only as necessary in the conductof that person's official duties subject to anylimitations on the unauthorized disclosure ofsuch information.

The definition of "foreign intelligenceinformation" in 18 U.S.C. § 2510(19) is identicalin substance to the definition of that term informer Rule 6(e)(3)(C)(iv), now codified at Rule6(e)(3)(D)(iii).

Section 2517 was supplemented a year later,pursuant to the HSA, with the addition ofparagraph (7), which authorizes disclosure of TitleIII information

to a foreign investigative or law enforcementofficer to the extent that such disclosure isappropriate to the proper performance of theofficial duties of the officer making or


receiving the disclosure, and foreigninvestigative or law enforcement officers mayuse or disclose such [information] to theextent such use or disclosure is appropriate tothe proper performance of their official duties.

More importantly, the HSA also added 18U.S.C. § 2517(8), which allows law enforcementto disclose to foreign government officials TitleIII-derived evidence of a threat of actual orpotential terrorism anywhere in the world. Section2517(8) provides, in relevant part:

(8) Any investigative or law enforcementofficer, or other Federal official in carryingout official duties as such Federal official,who by any means authorized by this chapter,has obtained knowledge of the contents of anywire, oral, or electronic communication, orevidence derived therefrom, may disclosesuch contents or derivative evidence to any . . . foreign government official to the extentthat such contents or derivative evidencereveals a threat of actual or potential attack orother grave hostile acts of a foreign power oran agent of a foreign power, . . . [or] domesticor international terrorism . . . within theUnited States or elsewhere, for the purpose ofpreventing or responding to such a threat.

Just as with grand jury information received underFederal Rule 6(e)(3)(D), any foreign official whoreceives information pursuant to Paragraph (8)may use that information only consistent withsuch guidelines as the Attorney General andDirector of Central Intelligence shall jointly issue.

18 U.S.C. § 2517(8).

IV. Conclusion

Terrorism is, by many accounts, the greatestlong-term threat to the domestic safety andsecurity of the United States. It is clearly a lawenforcement issue. At the same time, the threat ofterrorism also plagues many of America's mostvalued foreign partners. Almost every day, welearn of some new terrorist plot aimed at strikingthe United States or one of its partners. Indeed,the very nature of international terrorism is tooperate across national borders and engage inincreasingly complex, multilayered activities tostrike globally.

The rules described above provide prosecutorsand agents with valuable tools to fight terrorismby facilitating bilateral information sharing. UnderRule 6(e)(3)(D), a federal prosecutor may now

disclose any grand jury matter involving a threatof terrorism to any appropriate foreigngovernment official, for the purpose of preventingor responding to such a threat. The threat may beof domestic or international terrorism, and the actof terrorism may be directed against theUnited States or elsewhere. The threat need not beimminent or specific. Also, under Rule 6(e)(3)(D),no court order is required to make such adisclosure. Section 2517(8) is almost identical insubstance, as it relates to information obtainedfrom Title III activity.

While foreign government recipients ofinformation under Rule 6(e)(3)(D) and 18 U.S.C.§ 2517(8) are bound by certain limitations on theiruse of the information, the potential value of theseprovisions cannot be overstated. For example, if afederal grand jury witness testified that persons inthe Middle East had a nascent plan to bomb amajor European airport, a prosecutor couldcommunicate that threat information to anyappropriate foreign government official, for thepurpose of preventing or responding to the threat.The prosecutor would need to timely providenotice of the disclosure to the court in the districtwhere the grand jury was convened, but theprovision of the information on a bilateral, or evenmultilateral, basis could be easily accomplished.The result would be the same if the "threatinformation" was obtained by authorized Title IIImeans.

Frequently, prosecutors and law enforcementagents neglect to take advantage of theseprovisions, often because they are simply unawareof their existence or the extent to which they mayfacilitate the effective dissemination of threat-based intelligence. In order to ensure that suchforeign intelligence information is shared withforeign partners in the fight against terrorism,prosecutors and agents are encouraged to enlistthe aid of Rule 6(e)(3)(D) and 18 U.S.C.§ 2517(8), as well as the expertise of prosecutorsin the Counterterrorism Section of the NationalSecurity Division. As with any internationalcriminal law issues, U.S. prosecutors should alsocoordinate information-sharing with the CriminalDivision's Office of International Affairs.�

ABOUT THE AUTHOR

�Karl Sandoval is a Trial Attorney in theTerrorist Financing Unit of the CounterterrorismSection, National Security Division. He was an


Assistant U.S. Attorney for the Southern Districtof California before joining the CounterterrorismSection in 2006. Mr. Sandoval was in private civilpractice for ten years before joining the U.S.Attorney's Office in 2004.a

Obtaining Foreign Evidence Outside ofthe Mutual Legal Assistance TreatyProcessCorey J. SmithAntiterrorism Advisory Counsel RegionalCoordinatorCounterterrorism SectionNational Security Division

I. Introduction

One of the few truisms in litigation,criminal and otherwise, is that a case isonly as good as its (admissible)

evidence. As technology shrinks the world,prosecutors increasingly find themselves handlinginternational criminal cases that present newevidentiary challenges. Whether an internationaltax shelter case, Racketeering Influenced CorruptOrganization (RICO), or terrorist financingprosecution, foreign evidence increasinglycomprises a large part of the government's case-in-chief. Obtaining evidence from foreignjurisdictions is only the first of many hurdles thatthe prosecutor must overcome. In addition, theprosecutor must also authenticate the evidenceunder Federal Rule of Evidence 901, and often,overcome inherent hearsay.

If the prosecutor is fortunate, the situs of theforeign evidence is a country with which theUnited States has a Mutual Legal AssistanceTreaty (MLAT). If the treaty encompasses thecrimes which the prosecutor is contemplating,evidence acquisition may be relativelystraightforward; a simple treaty request to theforeign government may suffice. If, however, anMLAT does not exist, or the contemplated

charges are not covered under the treaty,alternative methods must be employed. Forinstance, the United States Government hasMLATs with many Caribbean countries, few ofwhich encompass Title 26 offenses. In theseinstances, there is a panoply of tools available,each escalating in its intrusiveness.

A formal government-to-government requestfor assistance, or Letters Rogatory, is the mostwell-known method of obtaining foreign evidenceoutside of an MLAT. As an alternative, theprosecutor may inquire if law enforcement has apre-existing or Simultaneous CriminalInvestigation Program arrangement with the lawenforcement authorities in the foreign jurisdiction.Alternatively, the prosecutor may seek evidenceunder the procedures available in the legal systemof the foreign country. If the third party possessorof the evidence has a presence in theUnited States, a Bank of Nova Scotia (BNS) orPATRIOT Act subpoena may be appropriate.Finally, under particular circumstances, theprosecutor may simply move to compel theUnited States person with signatory authority overthe evidence in question to consent to itsproduction. The methodology to employ isdictated by the unique circumstances of eachinvestigation and the legal environment of theforeign country in question. The most efficientway to evaluate the legal climate of the foreignjurisdiction at play is through consultation withthe Department of Justice's (Department) Officeof International Affairs.


II. The Simultaneous CriminalInvestigation Program

The United States does not have aSimultaneous Criminal Investigation Program(SCIP) arrangement with many foreign countries.A SCIP is a formal, nonjudicial arrangementbetween complimentary law enforcement agenciesin two countries to share evidence. The bestknown SCIP is between the Internal RevenueService (IRS), Criminal Investigation Division(CID), and its counterpart, the CanadianDepartment of National Revue, CanadianCustoms and Revenue Agency (CCRA). Thisagreement was executed by the United States andCanadian Governments on March 31, 1983, andreauthorized on May 3, 2001.

The agreement permits the IRS-CID to sharetax return information with CCRA agents underTitle 26 U.S.C. § 6103(k)(4), if such sharing willfurther the development of an ongoing criminaltax investigation in the United States. The SCIPagreement, however, is limited. Paragraph 6 of theSCIP only permits sharing of evidence if suchdisclosures further the ends of "taxadministration." The SCIP process cannot be usedto obtain evidence in Title 18 investigations.Moreover, "matters occurring before the GrandJury" cannot be shared under the SCIP process.Another concern with law enforcement-to-lawenforcement evidence sharing is general secrecy.In many instances, security in foreign jurisdictionsis not as reliable as in the United States lawenforcement community. Occasionally a foreignlaw enforcement agency may be willing to shareevidence with the United States withoutrequesting reciprocity, but more often than not,the one way street of evidence sharing turns out tobe a dead end.

III. The Letters Rogatory

A Letters Rogatory, in contrast to a SCIP orMLAT, is a judicial animal that issues from thecourt. It is a formal request from a United StatesDistrict Court to the judiciary of a foreign nation,requesting the assistance of the latter in obtainingevidence. The execution of a request for judicialassistance is based on comity between nations atpeace. See United States v. Zabady, 546 F. Supp35, 39 n.9 (M.D. Pa. 1982). The power ofUnited States federal courts to issue LettersRogatory derives from Title 28 U.S.C. § 1781 andfrom the courts' inherent authority. United Statesv. Reagan, 453 F.2d 165, 171-73 (6th Cir. 1971);

United States v. Staples, 256 F.2d 290 (9th Cir.1958); United States v. Strong, 608 F. Supp. 188,192-94 (E.D. Pa. 1985); B & L Drilling Electric v.Totco, 87 F.R.D. 543, 545 (W.D. Okla. 1978).Federal courts also possess the power to executeLetters Rogatory at the request of foreigntribunals. 28 U.S.C. § 1782; In Re Request forAssistance from Ministry of Legal Affairs ofTrinidad and Tobago, 648 F. Supp 464 (S.D. Fla.1986).

Evidence, including documents and thetestimony of witnesses, may properly be soughtby means of a request for foreign judicialassistance before or after formal charges havebeen brought. United States v. Reagan, 453 F.2dat 173 n.4; In Re Grand Jury 81-2, 550 F.Supp 24,29 (W.D. Mich. 1982); United States v. Strong,608 F.Supp at 194. The request for assistance mayalso include the execution of a search warrant.Such a search will be upheld if executed inaccordance with the laws of the country in whichthe search took place, as long as the country hasreasonable procedural protections and safeguardsconsistent with United States law. United States v.Barona, 56 F.3d 1087 (9th Cir. 1995).

A prosecutor wishing to employ the use of aLetters Rogatory must first obtain the approval ofthe Office of International Affairs (OIA). TheOIA will have an attorney assigned to the countryfrom which evidence is sought, and he or she willbe able to inform the prosecutor of the particularlegal landscape of that country. Once OIAapproval is obtained, the prosecutor must preparea motion for the court and the actual LettersRogatory, which must include the charges beinginvestigated, the elements of those charges, thecriminal conduct being investigated, and a precisedescription of the evidence sought. If any specificevidence gathering techniques, such as witnessquestioning, are also being sought, that techniquemust also be described. Most importantly, theprosecutor must describe how the evidence soughtwill assist in proving the criminality of thetargeted suspect. The affiant in this case is not thespecial agent, but the prosecutor.

The Federal Rules of Criminal Procedure aresilent as to the procedure for the issuance ofLetters Rogatory, but case law suggests thatapplications may be made ex parte. If theevidence being sought is for investigativepurposes only, authentication of the evidenceunder Federal Rule of Evidence 901 is not aconcern. If, however, the evidence is sought for


preservation and use at trial, such as bank recordsor statements of witnesses, the domesticevidentiary rules must be observed. For instance,if a request for foreign judicial assistance seekstestimony for use at trial, the requirements of Rule15 of the Federal Rules of Criminal Proceduremust be followed. See United States v. Strong,608 F. Supp at 192-94 (approving post-indictmentrequest for judicial assistance to obtain depositionof foreign witness). If foreign bank records arebeing sought, the requirements of 18 U.S.C.§ 3505, including notice, must be followed.

Even if a foreign court accepts a United StatesLetters Rogatory, and issues an order compellingthe production of the requested evidence, it is byno means certain that the United States prosecutorwill receive the evidence in question, or willreceive it in a form admissible at trial. Dependingon the country, the foreign prosecutors chargedwith enforcing the Letters Rogatory Order may beunwilling to enforce the foreign Order, or the thirdparty possessor of the evidence may simply refuseto comply. Systemic corruption in foreignjurisdictions is only one reason why compliancewith a Letters Rogatory may be problematic.There are many less nefarious reasons whyrequested foreign evidence may never beproduced through a Letters Rogatory.

IV. Bank secrecy laws suspension

Bank secrecy laws are the obstacle mostfrequently encountered by United Statesprosecutors when seeking foreign financialrecords. Many jurisdictions have made it a crimefor financial institutions to provide customer bankrecords to law enforcement, or to foreign lawenforcement. Many of these countries, however,have exceptions to these laws. For instance, theTurks and Caicos Islands can provide bankrecords if the investigation does not involve taxcharges. Some jurisdictions provide a procedurethrough which law enforcement, including foreignlaw enforcement, can apply for a suspension ofthe bank secrecy laws. For example, in Lebanon,Law 318 of the Lebanese Republic, Article 6,creates a Special Investigation Commission whichis empowered to lift Lebanese bank secrecy lawsin particular money laundering investigations.Law 318, Article 1, enumerates the types ofinvestigations in which the bank secrecy laws canbe suspended. Under Law 318, the Lebanese banksecrecy laws can be suspended only in casesinvolving the following.

• The growing, manufacture, or trading ofnarcotics.

• Organized crime investigations.

• Terrorist acts.

• Illegal arms trade.

• Stealing or embezzling public or privatefunds, or their appropriation by fraud.

• Counterfeiting money or official documents.

Of course, the prosecutor must be mindful of thepolitical environment of the requested country. Aprocedure like that codified in Law 318 is only asgood as the will to enforce it.

The best way for a prosecutor to ascertain if aprocedure like Law 318 is available in a particularjurisdiction is to contact counsel for the financialinstitution from which records are sought.Typically, counsel will work with theUnited States prosecutor to achieve a mutuallyadvantageous resolution to obtaining foreignevidence. Counsel's objective is not to thwart lawenforcement, but to satisfy it. If the financialinstitution's counsel has any experience in the areaof criminal law and foreign evidence gathering, heor she will be motivated to prevent their clientfrom being on the receiving end of a moreintrusive request for evidence, such as a BNS orPATRIOT Act Subpoena.

A. Bank of Nova Scotia subpoena

If an evaluation of the facts and circumstancesof a particular case cause a prosecutor, inconsultation with OIA, to conclude that a LettersRogatory or Bank Secrecy Act (BSA) exceptionrequest are not likely to succeed, and if thefinancial institution in question has a presence inthe United States, a BNS or PATRIOT Actsubpoena may be appropriate. Institutions thatmaintain branches or affiliates in the United Statesare subject to legal process. In Re Grand juryProceeding (Bank of Nova Scotia), 722 F.2d 657(11th Cir. 1983), appeal following remand, 740F.2d 817 (1984); In Re Grand jury Proceeding(Bank of Nova Scotia), 691 F.2d 1384 (11th Cir.1982). If the financial institution does notmaintain a branch or affiliate in the United States,but has a correspondent relationship with aUnited States bank, a PATRIOT Act Subpoenamay be appropriate. 31 U.S.C. § 5318(k)(3).

OIA approval is required for the issuance, andif necessary, the enforcement, of all BNSsubpoenas. See USAM 9-13.525; Criminal


Resource Manual, § 279. Approval of a BNSsubpoena is dependent on a number of factors.

• The availability of alternative methods forobtaining the records in a timely manner.

• The indispensability of the records to thesuccess of the investigation or prosecution.

• The need to protect against the destruction ofrecords located abroad and to protect theUnited States' ability to prosecute forcontempt or obstruction of justice for suchdestruction.

If enforcement is necessary, the prosecutorwill need to plead a so-called comity analysis, andthe Court will be required to balance internationalcomity against law enforcement needs todetermine if an enforcement order should issue.Comity analysis derives from § 442(1)(c) of theRestatement (Third) of the Foreign Relations Lawof the United States (1987). See Richmark Corp v.Timber Falling Consultants, 959 F.2d 1468, 1474-79 (9th Cir. 1992). Typically, enforcement takesthe form of daily fines until compliance isobtained. Service of a BNS subpoena is upon afinancial institution's United States branch or U.S.registered agent. If the foreign bank does not havea branch or affiliate in the United States, and othermeans of obtaining the records are not viable, theonly remaining alternative may be a PATRIOTAct subpoena.

B. The PATRIOT Act subpoena

The Patriot Act subpoena derives its name,obviously, from the recently enacted PATRIOTAct, but is codified at 32 U.S.C. § 5318(k)(3),which states:

The Attorney General may issue … asubpoena to any foreign bank that maintains acorrespondent account in the United Statesand requests records related to suchcorrespondent account, including recordsmaintained outside of the United Staterelating to the deposit of funds in the foreignbank

Much like a BNS subpoena, a prosecutor mustobtain OIA approval prior to issuing and/orenforcing a PATRIOT Act subpoena. To obtainapproval, the prosecutor must establish anextraordinary need for the subject evidence, andshow that no other method is likely to result incompliance. In counterterrorism orcounterespionage cases, a classified supplementcan be submitted as part of the approval package.

In most cases, by the time the prosecutor iscontemplating the use of a BNS or PATRIOT Actsubpoena, he or she has had discussions with bankcounsel. It is often likely that the prospect of aPATRIOT Act subpoena will encourage a foreignfinancial institution to agree to some alternativemethod of providing the requested records, shortof a subpoena, that will not violate the subjectjurisdiction's bank secrecy laws. Voluntaryconsent is one such alternative procedure.

V. Compelled consent order

If the party controlling a foreign bank accountis subject to United States' jurisdiction or process,prosecutors can seek a court order compelling anaccount holder to sign a consent form obliging theforeign institution to provide the records inquestion. Doe v. United States, 487 U.S. 201(1988); United States v. Ghidoni, 732 F.2d 814(11th Cir. 1984); United States v. Lehder-Rivas,827 F.2d 682 (11th Cir. 1987). The SupremeCourt has ruled that such an order, if the consentform is properly worded in the hypothetical, doesnot violate a signatory's Fifth Amendmentprivilege against self-incrimination. Doe v.United States, 487 U.S. at 206-18. The consentform must clearly state that the signatory is notaffirming the existence or control over recordsthat may be located at a particular institution, butthat inasmuch as the institution requires hisconsent for the release of any records in itspossession, such consent is given. If a nominalcustodian, or signatory, refuses to voluntarily signsuch a consent form, the prosecutor can move theapplicable court for an order compelling consent.See id. The Supreme Court held in Doe that, sincea properly worded hypothetical consent form doesnot implicate the signatory's Fifth Amendmentrights, the signatory can be compelled to providesaid consent. The underpinning for this result isthe precept that, in the interest of the publicwelfare, the government is entitled to everyone'sevidence. Why should access to the sought-afterfinancial records be denied simply because of theunfortunate happenstance that they are locatedoutside the United States? This argument isespecially poignant when the person, under whosename these records are being held, is subject toU.S. jurisdiction.

Foreign courts have had mixed reactions tothese directives. A court in the Cayman Islands, adependency of the United Kingdom, held thatsuch compelled disclosure directives do notconstitute voluntary and freely given consent for


disclosure, as required under the secrecy laws ofthat jurisdiction. In re ABC Ltd., 1984 CILR 130,134-45 (Grand Court of the Cayman Islands,1984). For other countries that do not have suchstringent secrecy statutes, and that follow Britishcommon law, there is authority that suchdisclosures do constitute valid consent under thecommon law duty of a banker to keep thefinancial affairs of clients private. Tournier v.National Provincial & Union Bank of England,1 K.B. 461 (1924).

The use of compelled consent orders has beenwidely successful in obtaining foreign bankrecords. Even when the account holder is locatedoutside the United States, the prospect of asubpoena or compelled consent order may lead aGeneral Counsel for a foreign financial institutionto assist in obtaining voluntary consent underthese procedures. Also, there is no reason why acompelled consent order cannot be used to obtainother types of records that are subject to thesecrecy provisions of foreign jurisdictions, forexample, accounting records.

It is important for prosecutors to rememberone of the foundational dictates of the nobleprofession, regardless of the methodologyemployed in obtaining foreign evidence."Everything is negotiable." Before a prosecutoruses a PATRIOT Act subpoena, it is not onlyrequired, but wise, to explore less intrusive, andmore informal, methods of obtaining therequested evidence. More often than not, bank'scounsel will be a willing and capable ally in thisendeavor. If compulsory process is required,approval will be easier to obtain if it is precededby a record of informal request and negotiation.�

ABOUT THE AUTHOR

�Corey Smith is an Antiterrorism AdvisoryCounsel Regional Coordinator with the NationalSecurity Division, Counterterrorism Section. Hepreviously served as Assistant Chief with the TaxDivision, Southern Criminal Enforcement Section.

Material contained within this article derived, inpart, from material authored by James Springer,Senior Litigation Counsel, Tax Division, retired.


National Security Evidence andTerrorism Prosecutions: CooperationBetween the United States and theUnited KingdomJocelyn A. AquaTrial AttorneyCounterterrorism SectionNational Security Division

I. Introduction

On the morning of August 10, 2006,British Home Secretary John Reidannounced that British authorities had

arrested twenty-one individuals, in order todisrupt an international terrorist plot involving aseries of simultaneous attacks designed todetonate liquid explosives on board aircrafttraveling from the United Kingdom to the UnitedStates. By August 11, 2006, three additionalpeople were arrested and the assets of nineteen ofthose arrested were frozen by the Bank ofEngland. As acknowledged by Prime MinisterTony Blair, the events leading up to the arrestswere a result of "an enormous amount ofcooperation with the U.S. authorities which hasbeen of great value" to the investigation. "AirlinesTerror Plot" Disrupted (BBC News Aug. 10,2006), available athttp://news.bbc.co.uk/2/hi/uk_news/4778575.stm.

Within hours of this public announcement,Homeland Security Secretary Michael Chertoff,United States Attorney General Alberto Gonzales,Federal Bureau of Investigation (FBI) DirectorRobert Mueller, and Assistant Secretary for theTransportation Security Administration KipHawley, held a joint press conference to discussthe threat, highlighting the strong counterterrorismpartnership between the United States and theUnited Kingdom. "From the beginning of theinvestigation, we have been in constant contactwith our counterparts in the U.K. We share thesame philosophy of prevention, a sense of urgencyto dismantle these terrorist cells before an attackoccurs. The FBI and other law enforcementintelligence agencies have worked closely withour colleagues at MI-5 on all aspects of this case,

and they have aggressively pursued everydomestic lead that has arisen from the intelligencethat led to these arrests." Press Release,Department of Homeland Security Briefing onU.K. Terror Arrests (Aug. 10, 2006). AttorneyGeneral Gonzales, in a speech the following week,emphasized the long-standing and robust policiesin place for sharing national security informationat all levels of government, noting that "[t]he levelof cooperation between the United States and ourforeign [U.K.] counterparts is outstanding and istruly the untold story of the war on terror."Attorney General Alberto R. Gonzales, PreparedRemarks at the World Affairs Council ofPittsburgh on Stopping Terrorists Before TheyStrike: The Justice Department's Power ofPrevention (Aug. 16, 2006).

Although the United Kingdom and theUnited States have secured unprecedented newlevels of cooperation between the U.S. and U.K.criminal justice systems, this most recently foiledterrorist plot draws attention to the significantdifferences in the way United States and Britishauthorities investigate and prosecute terrorismcases. The British enjoy certain advantages undertheir antiterrorism laws, including: broader arrestand detention powers, lower necessity standardsfor intercepting communications, and morecomprehensive laws criminalizing theencouragement or incitement of terrorist acts.However, in addition to the many effectivecounterterrorism-related investigative toolsavailable to U.S. law enforcement, U.S.prosecutors also possess a greater ability to usedomestically intercepted communications asevidence, which has been critical to the success ofthe United States in extracting guilty pleas andobtaining terrorism convictions.

Counterterrorism prosecutions are consideredby both countries to be an essential tool fordisrupting terrorist operatives. As such, this articlediscusses the following topics:


• The advantages and disadvantages of theantiterrorism-related laws used incounterterrorism investigations andprosecutions in the United Kingdom,including evidentiary problems associatedwith the current U.K. prohibition on the use ofcertain U.K.-intercepted communications interrorism prosecutions.

• Recent examples of national securityintelligence sharing between U.S. and U.K.law enforcement that has resulted insuccessful terrorism prosecutions in bothcountries.

• Further guidance for U.S. and U.K.prosecutors regarding early informationsharing in serious and complex criminal cases,including counterterrorism cases, in order todetermine the most appropriate venue forprosecution.

II. Arrest and detention powers in theUnited Kingdom

Police in the United Kingdom are an integralpart of counterterrorism enforcement and havebeen given broad authority to stop and search avehicle or pedestrian on the grounds of preventingterrorism. See Terrorism Act 2000, §§ 43- 44.(The U.K. statutory laws and accompanyingexplanatory notes discussed herein are allavailable at http://www.opsi.gov.uk/legislation/uk.htm.) Additionally, U.K. police havepreemptive power to arrest an individual, withouta warrant, when there is a "reasonable suspicion"that the individual has been involved in thepreparation, instigation, or commission of an actof terrorism, regardless of whether the policebelieve the suspect is committing or hascommitted a crime. See id. § 41. A "reasonablesuspicion" standard in the United Kingdomgenerally will not meet the "probable cause"standard required pursuant to the FourthAmendment, although U.K. police often rely uponintercepted communications as grounds for"reasonable suspicion."

The British Government also may issuecontrol orders, which are preventative measures torestrict individuals who are believed to pose athreat to national security, but where there isinsufficient evidence to bring them to trial.Prevention of Terrorism Act 2005, §§ 1-9. Theorders require judicial approval, at times valid upto one year, and may restrict or ban an individual's

freedom to travel, to meet with certain groups, tovisit certain locations, or to use cell phones or theInternet. Additionally, certain control orders mayeven require a suspect to be monitored byelectronic tagging. As will be discussed below,one of the primary benefits of control orders hasbeen the ability to limit a suspect's opportunity tocommit terrorist acts, while U.K. law enforcementcontinues to collect evidence that is admissible ina British court of law.

Control orders thus can impose burdensomerestrictions on a suspect's civil liberties, and donot allow the individual the right to be present in ahearing or review the evidence on which the orderis based. For these reasons, control orders havebeen challenged in British courts as beingincompatible with the European Convention forthe Protection of Human Rights and FundamentalFreedoms (ECHR), which was incorporated intoBritish domestic law in 1998 through the U.K.'sHuman Rights Act. Article 5 of the ECHRprovides: "Everyone who is deprived of his libertyby arrest or detention shall be entitled to takeproceedings by which the lawfulness of hisdetention shall be decided speedily by a court andhis release ordered if the detention is not lawful."However, British courts do not have the power tooverturn a statute that is found by the courts to beinconsistent with the ECHR; the courts can onlymake a declaration of incompatibility. HumanRights Act, § 4, available at http://www.hri.org/docs/ECHR50.html. The U.S. Attorney Generalhas noted that the First Amendment's protectionsof freedom to travel and associate generally makecontrol orders incompatible with U.S. law. SeeAlberto R. Gonzales, U.S. Attorney General,Prepared Remarks at the Vienna E.U. InteriorMinisters Conference (May 5, 2006).

A more recent addition to the UnitedKingdom's detention powers permits the BritishGovernment to detain a terrorist without criminalcharges for up to twenty-eight days before thesuspect must be charged with a crime or released.Judicial approval is necessary after forty-eighthours and again after seven days. Terrorism Actof 2006, § 23-24. The judge, however, does notneed to find probable cause–only that there are"reasonable grounds for believing that the furtherdetention of the person to whom the applicationrelates is necessary to obtain relevant evidencewhether by questioning him or otherwise or topreserve relevant evidence." Id. This allows moretime for U.K. prosecutors to gather evidencebefore formally charging a terrorism suspect, and,


of course, differs from U.S. law, which requiresU.S. prosecutors, typically, to file a complaintestablishing probable cause within forty-eighthours of a warrantless arrest. Suspects held inconnection with the August 2006 airline plot werethe first individuals detained under the U.K. lawfor longer than two weeks.

III. Collection of evidence in the UnitedKingdom

The prevailing law governing the acquisitionof evidence within the United Kingdom, includingthe interception of communications by the lawenforcement, security, and intelligence agencies,is the Regulation of Investigatory Powers Act of2000 (RIPA). RIPA regulates interceptions of anycommunication made via the public mail, a publictelecommunications system (phone and Internet),or a private telecommunications system (internalphone system or computer network). RIPA, §§ 1-2. RIPA also applies to communications thatare being stored "in a manner that enables therecipient to collect it or otherwise to have accessto it." See RIPA Explanatory Notes, ¶ 32.

Intercepted communications include not onlythe covert interception of telephone calls, but alsoE-mails, faxes, text messages, Voice over InternetProtocol (VoIP), and ordinary mail. Id. § 2. Aswill be discussed in detail below, RIPA prohibitsthe use of such intercepted information asevidence in prosecutions. Id. § 17.

RIPA also describes the circumstances inwhich the acquisition of electroniccommunications can lawfully take place without awarrant, such as: when there are reasonablegrounds to believe that both parties haveconsented (notification that the call will berecorded); with the consent of one party (whereone party is an undercover agent); where theinterception takes place on an internal networkwith the consent of the controller of the system inconnection with the operation of service; when theinterception occurs in certain hospitals and inprisons. Id. §§ 3(1)-(3), 4(4)-(6).

Additionally, RIPA regulates the collection ofother communications and information, including:information obtained covertly pursuant to aphysical search or audio/video surveillanceauthorized on a residence or private vehicle usingan electronic bugging device ("intrusivesurveillance"); the collection of private data orother information, or the collection of information

through the use of electronic bugging in publicplaces, such as work areas and in public vehicles("directed surveillance"); the use of covert humanintelligence or undercover sources; andnoncontent data collection such as telephonerecords, Internet Service Provider records, andsubscriber information. Id. §§ 21-32. The levels ofauthorization that must be obtained, and thecircumstances under which public authorities mayauthorize these types of information gatheringvary, depending on the intrusiveness of thecollection and the entity undertaking thecollection.

Although the term "intercept evidence" issometimes confused with the informationacquired through the covert methods describedabove, there is no absolute bar on the use ofinformation legally obtained, without a warrant orthrough electronic bugging, as evidence in aBritish or foreign criminal proceeding.

There are several major differences betweenU.K. and U.S. wiretap authorities. First, in theUnited Kingdom, an interception warrant isauthorized through executive act by the HomeSecretary instead of through judicial approval. Id.§ 5. Separation of powers issues are less of aconcern in the United Kingdom under theparliamentary system, where the Prime Ministerand his cabinet also sit as members of thelegislature. Thus, there is only retrospectivejudicial oversight by an Interception ofCommunications Commissioner, who provides anannual review, and by the Investigatory PowersTribunal, which hears cases brought by aggrievedpersons. Id. §§ 57, 65-69.

Additionally, British interception warrants aregranted under a "necessity" and "proportionality"standard, as opposed to the "probable cause"standard required under U.S. law. The Britishwarrant must be necessary under one of thefollowing circumstances.

• In the interests of national security.

• For the purpose of preventing or detecting aserious crime.

• For safeguarding the economic well-being ofthe United Kingdom.

• For giving effect to the provisions of anyinternational mutual assistance agreement incircumstances appearing to the HomeSecretary to be equivalent to those in whichhe would issue a warrant.


Id. § 5(3)(a)-(d). An interception warrant alsomust be proportionate in that the Home Secretarymust balance the intrusiveness of the interferenceagainst the need for it in operational terms, andconsider whether the information which is soughtcould reasonably be obtained by other means.

U.S. criminal and intelligence electronicsurveillance authorities also contain "necessity"provisions that require a court to find that theinformation sought is not available throughnormal investigative procedures. See Title III ofthe Omnibus Crime Control and Safe Streets Act1968, 18 U.S.C. § 2518(3)(3); ForeignIntelligence Surveillance Act of 1978 (FISA), 50U.S.C. §§ 1804(a)(7)(E)(ii), 1823(a)(7)(C).Additionally, FISA also requires that a high-levelExecutive Branch official certify the same. 50U.S.C. §§ 1804(a)(7),1823(a)(7).

The necessary finding of probable cause,required under both U.S. statutes, would seem tobe a more stringent legal standard than anecessary and proportionate standard. To obtain afederal criminal wiretap, a United States judgemust also find that there is probable cause tobelieve that an individual is committing, hascommitted, or is about to commit, an enumeratedfederal crime; that communications relating to thecrime will be obtained through the interception;and that the targeted facilities or location arebeing, or will be, used in connection withcommission of the offense, or are leased to orcommonly used by the targeted individual. 18U.S.C. § 2518(3). To intercept communications orconduct a physical search of storedcommunications under FISA, a judge sitting onthe Foreign Intelligence Surveillance Court mustconclude, inter alia, that there is probable cause tobelieve that the target is a foreign power or anagent of a foreign power, and that the targetedfacilities or locations are, or are about to be, usedby a foreign power or agent of a foreign power (orfor physical search authority, that the premises orproperty to be searched is owned, used, possessedby, or is in transit to or from a foreign power or anagent of a foreign power). See 50 U.S.C. §§1805(a)(3), 1824(a)(3). It is likely that the lowerauthorization standard for British interceptionwarrants, as well as the lack of judicial approval,both contribute to the reluctance of the Britishgovernment to amend RIPA and admit evidencefrom interception warrants in British courts oflaw.

Another significant difference is the lack ofany notice provision in RIPA to require that thesubject of an interception warrant be notified ofthe collection, as compared to FISA and Title III,which both have notice provisions. See 18 U.S.C.§ 2518(8)(d) (notice to aggrieved party uponexpiration unless delay obtained); 50 U.S.C.§§ 1806(c)-(d), 1825(d)-(e) (notice to aggrievedparty if government intends to use FISA-obtainedor derived information in a proceeding).

IV. Use of evidence in United Kingdomterrorism prosecutions

As mentioned above, RIPA precludes U.K.prosecutors from using information obtainedthrough British interception warrants in a criminalproceeding, unlike Title III and FISA, whichimpose legal safeguards so that evidence securedpursuant to a lawful order may be admissible incourt under certain conditions, notwithstandingother external evidentiary bars. In the UnitedKingdom, the general rule is that neither thepossibility of interception, nor interceptedmaterial itself, can play any part in legalproceedings. This excludes evidence, questioning,and assertion or disclosure in legal proceedingslikely to reveal the existence (or the absence) of awarrant issued under the Act. The prohibitionapplies to protection of the contents of anintercepted communication or relatedcommunications data, if such disclosure couldpotentially reveal that surveillance occurred, andfurther protects any actions that might suggest thatinterception occurred. RIPA, § 17(1). There areexceptions for using intercepted communications,for example, in immigration proceedings and inappeals to terrorism designations, but theexistence of the warrant or its contents are neverdisclosed to the defendant. See RIPA, §§ 18(1)(e)-(f) and (2).

The issue of whether to lift the ban has beenstudied and rejected several times by the BritishGovernment, and since August 2006 has been thesubject of heated public debate. Various membersof Parliament, Britain's current Attorney General,and the Metropolitan Police Commissioner, NewScotland Yard, all have publicly denounced theban as an impediment to successful terrorismprosecutions. As a result, the Prime Minister hassought to reevaluate the government's prohibitiononce again. Ironically, both liberals andconservatives object to the prohibition. Severalmajor human rights organizations strongly object


to the ban and have argued that the evidentiarydifficulties espoused by the British Government tojustify various exceptional counterterrorismmeasures imposed over the past six years are moreviolative of human rights than the use of classifiedevidence at trial. These statutorily createdcounterterrorism measures have included: theindefinite detainment of non-U.K. personssuspected of terrorist activity, which has sincebeen found unlawful and has been repealed; theuse of control orders, which also has been thesubject of litigation; and the implementation of aprecharge detention policy for up to twenty-eightdays for those suspected of terrorist activity. Allsuch measures were implemented, in large part,because of the inadmissibility of evidence from aninterception warrant in criminal proceedings.

The British Government has concluded in thepast that, despite the difficulties in acquiringevidence for terrorism prosecutions, the ban isnecessary to prevent the exposure of Britishintercept techniques and capabilities, and to liftthe ban would undermine intercept warrants as aneffective crime fighting tool. Moreover, theBritish Government concluded that, under therequirements for a fair trial, the governmentwould be required to record and retain allintercept material, which it is not currentlyrequired to do. This, according to the BritishGovernment, would overwhelm the alreadyoverburdened intelligence structure, imposeintolerable resource burdens on interceptingagencies, and lead to a grave loss in capability.The British Government has noted that usingintercept material in court might help convictsome lower level criminals. However, it is of lessvalue against the most serious offenders, such asterrorists, who are often the most security-conscious, particularly when it comes tocommunications. Currently, the United Kingdomis the only common law jurisdiction to prohibitthe use of certain intercepted communications incriminal proceedings. It is not clear whether theupsurge in popular demand to reconsider thecurrent policy will effect any change.

Notwithstanding the inadmissibility of certainintercepted communications in court, RIPAprovides an exception for nonevidentiarydisclosure to U.K. prosecutors to ensure fairnessin criminal proceedings. See RIPA, § 18(7)(a)."Fairness" plays an important role in Britishprosecutions, as imported by Article 6 of theECHR, which requires that there be a "fair andpublic" hearing, where the accused must be

informed of the nature and the cause of theaccusation. See RIPA Explanatory Note 5 ¶ 5.RIPA, however, requires that intercepted materialbe destroyed as soon as its retention is no longernecessary for a purpose authorized under the Act.RIPA, § 15(4). If the prosecutor concludes that thematerial affects the fairness of the proceedings, inthe interests of justice, he may consult the trialjudge in an in camera, ex parte-style review–anexceptional circumstance. Id. § 18(7)(b), (9). Thejudge, after having considered the interceptedmaterial disclosed to him and determining that theinformation is essential, in the interest of justice,may direct the prosecution to make an admissionof fact that is abstracted from the interception, butthat does not reveal the fact of interception.Nothing in these provisions, however, allowsintercepted material, or the fact of interception, tobe disclosed to the defense.

Significantly, in the United Kingdom, there isno statutory bar on the use of foreign-interceptedcommunications obtained in accordance withforeign laws. Thus, it is possible for U.K.prosecutors, such as the Crown ProsecutionService (CPS), who are responsible forprosecuting terrorism cases in the UnitedKingdom, to use United States or other foreign-intercepted communications as evidence in theircriminal proceedings. Evidentiary use ofadmissible information, including foreignevidence, is governed by rules of admissibilitythat emphasize relevance and fairness. The Policeand Criminal Evidence Act of 1984 (PACE)allows the courts discretion to exclude otherwiseadmissible evidence if, having regard to themanner in which it was obtained, its admissionwould have such an adverse effect upon thefairness of the proceedings. PACE, § 78. This lawcould cause problems for U.K. prosecutors whowould like to use information from foreignintercepts in court, such as those obtainedpursuant to FISA, where the defendants in aBritish prosecution would not be permitted equalaccess to the information.

U.K. prosecutors are required to disclose tothe defense all material that undermines theprosecution's case or assists the defense's case, inorder to ensure the fairness of the criminalproceedings. However, where disclosure ofmaterial would, among other things, cause harmto national security, the prosecution may make aclaim to the court for public interest immunity.Section 3(6) of the Criminal Procedure andInvestigations Act 1996 (CPIA) prohibits a court


from disclosing to the defense any material that itconcludes is not in the public interest. CPIA,§ 3(6). British courts will decide in camera and exparte whether the public interest in nondisclosureis outweighed by the public interest in thedefendant having access to all relevant material. Ifthe court rejects a claim for public interestimmunity, the U.K. prosecutors may withdraw theprosecution to avoid having to make a damagingdisclosure and to maintain the confidentiality ofthe information and the good relations betweenboth governments. See Attorney General's Section18 RIPA Prosecutors Intercept Guidelines,available at http://www.lslo.gov.uk/guidance/2003_RIPA_intercept_guide_Eng_Wales.doc; see alsoCPS Disclosure Manual on public interestimmunity in criminal proceedings, available athttp://www.cps.gov.uk/legal/section20/chapter_a.html.

V. Use of British evidence in U.S. courts

The United Kingdom's 2001 Anti-terrorism,Crime and Security Act (ATCSA) was enactedfollowing 9/11, and allows for the disclosure ofconfidential information obtained by U.K.government entities to assist in criminalinvestigations or proceedings, either in the UnitedKingdom or abroad. ATCSA, § 18. Under thisstatute, the Home Secretary has the discretion topermit the use of such information in foreigncourts and to determine whether it is necessary torequire restrictions on the disclosure and usebefore approving its dissemination. The HomeSecretary may prevent disclosure to foreignjurisdictions that do not offer an "adequate" levelof protection, or for other policy reasons,including that it would be more appropriate for theUnited Kingdom to exercise jurisdiction.

With regard to U.K.-interceptedcommunications, RIPA states that there should be"restrictions [ ] in force which would prevent, tosuch extent (if any) as the Secretary of Statethinks fit, the doing of anything in, for thepurposes of, or in connection with, anyproceedings outside the United Kingdom whichwould result in such a disclosure [that] could notbe made in the United Kingdom." RIPA, § 15(7)(b). The Home Secretary thus generallyprohibits foreign governments from using Britishintercept evidence in criminal proceedings,including terrorism prosecutions. However, afrequently cited independent review conducted bymembers of parliament (the Newton Committee)submitted to the Home Secretary in December

2003, per requirement of ATCSA, concluded thatthe ban on the use of intercept evidence did notapply to the use of the same evidence in foreigncourts, "assuming that the intelligence andsecurity services are prepared to provide them."See Report of the Privy Counsellors Review of theAnti-Terrorism Crime and Security Act 2001 (theNewton Committee) (HC 100, Dec. 18, 2003), ¶210, available at http://www.statewatch.org/news/2003/dec/atcsReport.pdf.

VI. National Security informationsharing between U.S. and U.K. lawenforcement

The massive counterterrorism investigationassociated with this latest airline threat hasresulted in the acquisition of monolithic amountsof data, amassed both before and since the arrests.British authorities have reported carrying outsixty-nine searches of residences, businesses,vehicles, and open spaces, and have collectedbomb-making equipment and chemicals, as wellas more than 400 computers, 200 mobiletelephones, 8,000 items of removable storagemedia such as memory sticks, CDs, and DVDs,some 6,000 gigabytes of data, and six "martyrvideos." See Don Van Natta Jr. et al., In Tapes,Receipts and a Diary, Details of the British TerrorCase, N.Y. TIMES, Aug. 27, 2006, available at2006 WLNR 16893012. CPS has filed chargesagainst fifteen individuals in connection with itsinvestigation. See CPS Press Release: CPSAuthorises Charges in Alleged Aircraft TerrorPlot (Aug. 21, 2006) available at http://www.cps.gov.uk/news/pressreleases; Alan Cowell,Britain Charges 3 More Suspects With Plotting toBomb Airplanes, N.Y. TIMES, Aug. 30, 2006,available at 2006 WLNR 14995714. Offensescharged include conspiracy to murder pursuant tothe U.K. Criminal Law Act 1997, "preparing actsof terrorism" pursuant to U.K.'s Terrorism Act2006, "possession of articles useful to a personpreparing an act of terrorism," and "failing todisclose information of material assistance inpreventing an act of terrorism," both offensesunder U.K.'s Terrorism Act 2000. Informationfrom the searches conducted by British authoritieswill be reviewed in the coming months anddisseminated for investigative purposes in supportof these prosecutions.

U.S. prosecutors primarily receive U.K.-derived counterterrorism-related informationthrough the FBI, with assistance from the FBI's


Legal Attaché office (Legat) in London. Thisinformal process facilitates the flexible and rapiddisclosure of information, and is acknowledged inthe United States Attorneys' Manual (USAM) tobe a proper channel for information sharing,although such informal means of obtainingforeign information may not yield evidence thatwould be admissible in a criminal trial. SeeUSAM, Title 9; Criminal Resource Manual, 278.

RIPA provides safeguards to ensure thatinformation disseminated from the UnitedKingdom is only used, disclosed, and distributed,to the least extent necessary for the purposes forwhich it was authorized. RIPA, § 15. To secureadmissible evidence that conforms with theFederal Rules of Evidence, formal methods,although less flexible and oftentimes more time-consuming, may be required. The Office ofInternational Affairs (OIA) assists prosecutors inchoosing the proper means for obtainingadmissible evidence from abroad through the useof letters rogatory, mutual legal assistance treaty(MLAT) requests, and executive agreements.Assistant U.S. Attorneys also must coordinateefforts to obtain international evidence interrorism prosecutions with the CounterterrorismSection, as noted in the USAM. See USAM, Title9-2.131 (Matters Assumed by Criminal Divisionor Higher Authority); Title 9-2.136 (Investigativeand Prosecutive Policy for International TerrorismMatters); Title 9-2.155 (Sensitive Matters); andTitle 9-2.400 (Prior Approvals Chart).

Successful terrorism prosecutions in theUnited States and the United Kingdom arefrequently the result of close cooperation and thesharing of national security evidence within thelaw enforcement community. For example, inFebruary 2006, Abu Hamza al Masri, a Britishmilitant Islamic preacher, was sentenced to sevenyears in prison, in the United Kingdom, forsolicitation of murder and incitement of racialhatred. Hamza's arrest in the United Kingdom wasbased primarily upon evidence that was seizedduring a search of his residence at the time of hisarrest on an extradition arrest warrant, which hadbeen requested by the United States. Prosecutorsin the United States and the United Kingdom(CPS) and investigators from the FBI and NewScotland Yard worked closely during theinvestigation. Currently, the United States isseeking Hamza's future extradition for chargesbased on his attempt to set up a jihad trainingcamp in Oregon and his participation in a hostage-

taking conspiracy, during which sixteen Westerntourists were taken hostage in Yemen.

In another case, a jury convicted Ali Al-Timimi, a speaker and spiritual leader in NorthernVirginia, on April 22, 2005, for encouraging andcounseling others to go to Pakistan to receivemilitary training from the foreign terroristorganization, Lashkar-e-Taiba, in order to fightagainst American troops. Both the British andAustralian governments provided significantassistance in this and other related NorthernVirginia prosecutions.

Other cooperation has come in the form ofkey witness testimony. For instance, British armsdealer, Hemant Lakhani, was convicted andsentenced in September 2005 to forty-seven yearsin prison, in the United States, for his role inattempting to sell an anti-aircraft missile to a manwhom he believed represented a terrorist groupintent on shooting down a United Statescommercial airliner. Witnesses from the UnitedKingdom and Russia testified in New Jerseyfederal court about the assistance they provided totheir United States counterparts. Additionally,Mohammed Junaid Babar, a naturalized U.S.citizen, pled guilty to material support charges onJune 3, 2004 in the United States. In the course ofhis cooperation with the FBI, he was the primaryprosecution witness in a United Kingdom trial, inmid-2006, against seven suspects charged in theU.K. and Canada in connection with a U.K. bombplot.

Recent close cooperation between U.S. andU.K. prosecutors has resulted in the UnitedKingdom's High Court ruling on November 30,2006, which approved the extradition of twoBritish citizens charged with terrorism offenses inthe United States. The extraditions of HaroonRashid Aswat, believed to have set up a terroristtraining camp, and Babar Ahmed, wanted forconspiring to kill Americans and for running aWeb site used to fund terrorists and recruit alQaeda members, were conditioned upon U.S.assurances that the two would not be subject tothe death penalty or a military commission.

Significant and ongoing cooperation betweenU.S. and U.K. law enforcement resulted in theconviction and forty-year sentence of DhirenBarot that was imposed by a British court inNovember 2006, for conspiring to commit massmurder in the United States and the UnitedKingdom. In the course of his guilty plea, the


British court was provided details, by theUnited States, of Barot's involvement in plots toorchestrate potential attacks on significantinstitutions in both nations, including theInternational Monetary Fund and the New YorkStock Exchange, as well as to detonate dirtybombs.

VII. Speech-based prosecution in theUnited Kingdom

Despite the significant evidentiary issuesassociated with using British-obtained evidence,recent amendments to the United Kingdom'sterrorism laws provide British prosecutors withexpanded charging options. Similar laws areunavailable to prosecutors in the United Statesbecause they contain provisions that could not beimported directly into American law consistentwith the First Amendment. See generallyBrandenburg v. Ohio, 395 U.S. 444, 447 (1969)("[T]he constitutional guarantees of free speechand free press do not permit a State to forbid orproscribe advocacy of the use of force or of lawviolation except where such advocacy is directedto inciting or producing imminent lawless actionand is likely to incite or produce such action.").For instance, under U.K. law, a person commitsan offense if he incites another person to commitan act of terrorism wholly or partly outside theUnited Kingdom and the offense, if committed inthe United Kingdom, would constitute any ofseveral enumerated predicate offenses. TerrorismAct 2000, § 59.

Additionally, the ability to punish speech infavor of terrorism was expanded by the TerrorismAct 2006, and created new offenses forencouraging terrorism and disseminating terrorismpublications. Under U.K. law, a statement thatencourages terrorism and is likely to inducemembers of the public to commit or prepare terrorist acts may include a statement that"glorifies the commission or preparation" of suchacts or offences. Terrorism Act 2006, § 1(1)-(3).Disseminating terrorism publications may include:distributing, circulating, giving, or selling aterrorist publication; transmitting the contents ofsuch a publication electronically; providing aservice that allows others to receive or view suchpublications; or possessing such a publicationwith a view to its becoming the subject of conductdescribed above. Terrorism Act 2006, § 2.

Under both provisions, the defendant mustintend that his conduct induce the commission,

preparation, or instigation of a terrorist act, intendto provide assistance in the commission orpreparation of such acts, or he must be recklesswith regard to either effect. Significantly, theprosecution need not prove that a terrorist act wascommitted under either section. Id. Of greatinterest internationally, the United Kingdom'sTerrorism Act 2006 contains a section specifyingthe application of these encouragement anddissemination crimes to the Internet. TerrorismAct 2006, § 3. VIII. Jurisdictional Memorandum ofUnderstanding

In January 2007, the Attorneys General of theUnited States and the United Kingdom approved adocument entitled "Guidance For HandlingCriminal Cases With Concurrent JurisdictionBetween the United Kingdom and theUnited States of America" (hereinafter Guidance).Although not meant to replace existingmechanisms or lines of communication, thisGuidance will assist investigators and prosecutors,in both countries, by providing an additionalformal avenue for exchanging information inserious, sensitive, or complex criminal cases.These include counterespionage andcounterterrorism cases, where it is apparent toprosecutors in one country that a prosecutor in theother country could, potentially, have an interestin prosecuting the case. ¶¶ 1-2. The goal of theGuidance is to provide a mechanism forestablishing contact at the early stages of aninvestigation so that a coordinated decision can bemade by both U.K. and U.S. prosecutors.

The Guidance provides that a U.S. prosecutorhandling such a case should contact OIA, unlessthe case involves particularly sensitive orclassified information, in which case theprosecutor should contact the office of theAssistant Attorney General for National Securityin the National Security Division (NSD). ¶¶ 6, 9;Annex A. As noted earlier, terrorism-related casesrequire notification and ongoing consultation withthe NSD, consistent with the requirements set outin the USAM. With the exception of cases inwhich a U.S. prosecutor already has anestablished contact in the United Kingdom, theOIA (or the NSD) will contact the appropriateprosecuting agency in the United Kingdom, or,alternatively, either the office of the AttorneyGeneral for England, Wales, and Northern Irelandor the office of the Lord Advocate of Scotland.


Similarly, the Guidance provides that whenever aU.K. prosecutor handling a serious, sensitive, orcomplex case becomes aware of issues arisingfrom the possibility of concurrent jurisdiction withthe United States, he should contact theappropriate person responsible in the UnitedKingdom to act as a liaison with OIA (or theNSD), as appropriate. ¶ 8.

The Guidance is meant to encouragediscussions between U.S. and U.K. prosecutors todevelop a case strategy, to share informationabout the facts of the case, key evidence, and anyother information, in order to resolve issues ofjurisdiction. Jurisdictional questions may includeone or all of the following.

• Where and how the investigation may mosteffectively be prosecuted?

• Whether prosecutions should be initiated ordiscontinued?

• How aspects of the case could be moreappropriately pursued in each jurisdiction?

¶¶ 11-13. Finally, the Guidance notes that it maybe necessary for the offices of the AttorneysGeneral or Lord Advocate to become involved toresolve issues of jurisdiction. ¶ 16.

IX. Conclusion

The global nature of terrorism necessitatesearly and extensive communication betweeninternational sovereigns, in order to determine themost effective means by which to prosecuteterrorists who target the citizens of multiplecountries. As noted above, the differences in thescope of U.K. and U.S. terrorism laws will oftenresult in one course of action or jurisdiction ofprosecution that will be most favorable to bothcountries. Only by working in concert and sharing

critical information will the U.K. and the U.S.governments be able to develop an appropriate strategy in the early stages of a terrorisminvestigation, and continue to enjoy the types ofsuccess experienced in terrorism prosecutions todate. Such cooperation helped prevent the August2006 aircraft plot from becoming a reality, andhas led to the development of formal Guidance forlaw enforcement to forge stronger cooperationbetween the two nations.

The threat against U.S. and U.K. citizens,however, is far from over. Overwhelmingamounts of evidence obtained internationally inthe August 2006 plot will necessitate manymonths of forensic work, and trials are notexpected to begin in the United Kingdom until2008. In the meantime, and in the future, U.S. lawenforcement must continue to work closely withtheir British counterparts to keep the channels ofcommunication open and make sure that all leadsare aggressively pursued in the best interests ofboth nations.�

ABOUT THE AUTHOR

�Jocelyn A. Aqua is a Trial Attorney with theCounterterrorism Section of the National SecurityDivision. She joined the Department of Justice in2002 and was an attorney in the Office ofIntelligence Policy and Review until March 2006.Prior to joining the Department of Justice, Ms.Aqua was an associate at White and Case, LLPwhere her practice included complex internationalcivil litigation and international arbitration. a

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