Chapter Thirteen

Crimes Against the

State

Applying Old and New Laws to New

Threats
Older Laws

Treason
Sedition
Sabotage
Espionage

New Laws

Use of Weapons of Mass Destruction

Acts of Terrorism Transcending National
Boundaries
Harboring or Concealing Terrorist
Providing Material Support to Terrorists

Article III Section 3

Treason against the United States, shall consist only in
levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort. No Person shall be convicted of
Treason unless on the Testimony of two Witnesses to the
same overt Act, or on Confession in open court

Treason
Article III, Section 3 U.S. Constitution (only
crime in constitution)

Levying war against United States

Adhering to enemies of United States
Giving aid and comfort
Adhering means breaking allegiance to your own
country and forming an attachment to the enemy

Conviction requires
testimony of two witnesses to same overt act, or
confession

Treason (cont)
Law found in U.S. Constitution reflects the debate and
predicament of the drafters of the Constitution
(themselves traitors of England):
Concern: Balance between liberty and security
1.
2.

Peaceful opposition would be repressed, not just rebellion

Innocent people might be convicted because of perjury, passion
and/or insufficient evidence

Limits on prosecution of treason built into Constitution

1.
2.

3.

Banned legislatures and courts from creating new treasons

Required 2 witness to at least 1 overt act of treason (or a
confession in open court)
Made these limits part of the Constitution to make it tougher to
tamper with

Treason (cont.)
Treason actus reus

Levying war against U.S.

Giving aid and comfort to enemies of U.S

Treason mens rea

Intentionally giving aid for purpose of

betraying U.S.

Treason (cont.)
Cases since Revolution

Ethel Rosenburg, convicted of conspiring to

give atomic bomb secrets to Soviet Union
(1951)
U.S. v. Cramer (1945)
Government failed to get conviction notwithstanding
eyewitness accounts of two FBI agents regarding a
conversation they saw Cramer have with two
saboteurs

Sedition
Stirring up others to overthrow the
government by violence
Advocating violent overthrow of the
government can be done in 2 ways:
1.

Seditious speech
Urging overthrow in speeches

2.

Seditious libel
Urging overthrow in written materials

Sedition
Seditious conspiracy

Agreeing to overthrow
Smith Act (1940)
Congress made it crime to conspire to teach or
advocate overthrowing the government by force
Crime to be a member of a group that advocated
the violent overthrow of the government

Dennis v. U.S. Convictions of communist party

members upheld against First Amendment challenge

2006 seditious conspiracy requires conspiracy

that advocates violence

Sabotage
Destroying or damaging property for
purpose of interfering with or hindering
preparations for war and defense during
national emergencies
2006 U.S. Criminal Code, Title 18, Part I,
Chapter 105, Section 2153

Mens rea in code not clear: willfully, with intent

to or reason to believe
Actus reus: injure, destroy, contaminate,
infect.

Espionage
Spying
2006 U.S. Code, Title 18, Chapter 37, Section 794
Espionage during Peace

Turning over or attempting to turn over information

about national defenses to any foreign country with
the intent or reason to believe that the information is
to be used to hurt U.S. or help foreign country
Espionage during War
Collecting, recording, publishing, or communicating
any information about troop movements, ships,
aircraft, or war material and any other information
which might be useful to the enemy

Anti-Terrorism Crimes

Anti-Terrorism Crimes
Terrorism the use of violence and intimidation in the
pursuit of political aims.
Sources

Anti-terrorism and Effective Death Penalty Act (1996)

(AEDPA)
Response to Oklahoma City Bombing

Uniting and Strengthening America by Providing

Appropriate Tools Required to Intercept and Obstruct
Terrorism (U.S.A. PATRIOT ACT)
Extended, embraced and modified, AEDPA
Response to attacks on U.S. September 11, 2001

Intelligence Reform and Terrorism Prevention Act 2004

(IRTPA)

Congress attempt to clarify, make less ambiguous crimes after

challenges to AEDPA

Humanitarian Law Project v. Reno (2000)

Humanitarian Law Project v. Mukasey (2009)
(note: Oct. 1, 2009 U.S. Supreme Court decided to hear another
challenge in Holder v. Humanitarian Law Project)

Anti-terrorism Crimes
Use of certain weapons of mass
destruction
Acts of terrorism transcending national
boundaries
Harboring and concealing terrorist
Providing material support to terrorists
Providing material support or resources to
designated foreign terrorist organizations

Anti-terrorism Crimes (cont.)

International terrorism ( 2331[1] US Code)

Violent acts or acts dangerous to human life

Committed outside the U.S.
Would be crimes if they were committed inside
the U.S.
Are committed, or appear to be committed, with
the intent
To intimidate or coerce a civilian population
To influence the policy of a government by intimidation
or coercion;
To affect the conduct of a government by mass
destruction, assassination, or kidnapping

Anti-terrorism Crimes (cont.)

Domestic Terrorism ( 2331[1] US Code)

Violent acts or acts dangerous to human life

Committed inside the U.S.
Would be crimes if they were committed inside
the U.S.
Are committed, or appear to be committed, with
the intent
To intimidate or coerce a civilian population
To influence the policy of a government by intimidation
or coercion;
To affect the conduct of a government by mass
destruction, assassination, or kidnapping

Use of Weapons of Mass Destruction

Life imprisonment (or capital punishment if
someone died) to

Use
Threaten to use
Attempt or conspire to use
Weapon of mass destruction (any destructive device)
against
a U.S. citizen outside the U.S.
Any person or property in the U.S.
Property owned leased or used by U.S. Government
Property owned or leased by foreign government inside the
U.S

Includes: poisonous chemicals, disease

mechanisms, release of radiation dangerous to
human life

Act of Terrorism Transcending National

Boundaries
Conduct takes place partly outside and
partly inside the U.S.
Kill, kidnap, maim, assault resulting in serious
bodily injury, assault with deadly weapon a person
within U.S
Create a substantial risk of SBI
Threaten or attempt or conspire to commit the
above

If victim is U.S. Government (expanded list of

governmental type officials, employees,
agencies); or a government property

Harboring or Concealing
Terrorist
Whoever harbors or conceals (actus reus)
Any person he knows, or has reasonable
grounds to believe (mens rea)

has committed one of several offenses

relating to terrorism including chemical and
biological weapons, nuclear weapons, energy
and airport facilities, etc

Anti-Terrorism Crimes
Terrorism the use of violence and intimidation in the
pursuit of political aims.
Sources

Anti-terrorism and Effective Death Penalty Act (1996)

(AEDPA)
Response to Oklahoma City Bombing

Uniting and Strengthening America by Providing

Appropriate Tools Required to Intercept and Obstruct
Terrorism (U.S.A. PATRIOT ACT)
Extended, embraced and modified, AEDPA
Response to attacks on U.S. September 11, 2001

Intelligence Reform and Terrorism Prevention Act 2004

(IRTPA)

Congress attempt to clarify, make less ambiguous crimes after

challenges to AEDPA

Humanitarian Law Project v. Reno (2000)

Humanitarian Law Project v. Mukasey (2009)
(note: Oct. 1, 2009 U.S. Supreme Court decided to hear another
challenge in Holder v. Humanitarian Law Project)

Providing Material Support to Terrorists

and/or Terrorist Organizations
Initially enacted as part of AEDPA then
incorporated into the Patriot Act
Federal felony to provide, attempt, or
conspire to provide material support or
resources to commit a long list of federal
crimes

Aimed at providing support to individual terrorists

Or providing support to designated foreign
terrorist organizations.

Providing Material Support to Terrorists and/or

Terrorist Organizations (cont.)
Proximity crime

Conduct banned because of its closeness to other crimes (the 44

federal crimes terrorists and terrorist organizations might commit)
Aim at nipping terrorism in the bud
Case holdings tend to indicate that this provision is unconstitutional
John Walker Lindh challenged law on vagueness grounds, but
ended up pleading guilty (US v Lindh, 2002)

Humanitarian Law Project v. Reno (2000)

9th Circuit held that the provision violated constitution because
several terms included were vague

Types of Material Support

Financial Services
Lodging
Training
Expert advice or assistance
Safe houses
False documentation or identification
Communications equipment
Facilities
Weapons
Lethal substance, explosives
Personnel
Transportation
Other physical assets, except medicines or religious materials
Service (IRTPA)

Types of Material Support

Financial Services
Lodging
Training*
Expert advice or assistance*
Safe houses
False documentation or identification
Communications equipment
Facilities
Weapons
Lethal substance, explosives
Personnel*
Transportation
Other physical assets, except medicines or religious materials
Service*
*Vague

Providing Material Support to Terrorists and/or

Terrorist Organizations (cont.)

IRTPA enacted to amend the provisions of

AEDPA on providing material support
which were held unconstitutionally vague
Also changed the mens rea to: knowingly provide
material support or resources to a designated
terrorist organization

Humanitarian Law Project v. Mukasey

(2009) examined the IRTPAs new
language

Case: Humanitarian Law Project v.

Mukasey
Summary of case holdings:
Court examined the terms
Training (found it vague);
Expert advice or assistance (found
parts vague and
parts not vague);
Service (found it vague);
Personnel (no longer vague Congress fix worked)

Holding