This course examines the use of civilian Article
III courts to prosecute terrorists by following the logical
course of a prosecution - legal basis, investigative techniques,
litigation and sentencing issues. Major topics include:
Principles of counter-terrorist prosecutions, major legislative
packages, definitions of terrorism, numerous selected criminal
statutes, overview of the intelligence community, overview of
federal law enforcement agencies, use and protection national
security information, Fourth Amendment framework, the Attorney
General's Guidelines, U.S. agents acting abroad, electronic
surveillance, interviews and interrogation, use of the grand
jury, material witness, the Classified Information Procedures
Act, physical security, witness protection, relevant United
States Sentencing Commission Guidelines, litigation strategies
and case studies.
In an address by Honorable Charles E. Hughes, of New York, on
‘War Powers Under The Constitution,’ September 5, 1917, 42
A.B.A.Rep. 232, 238-239, 247-248, he said:
‘The power to wage war is the power to wage war successfully.
The framers of the constitution were under no illusions as to
war. They had emerged from a long struggle which had taught them
the weakness of a mere confederation, and they had no hope that
they could hold what they had won save as they established a
Union which could fight with the strength of one people under
one government entrusted with the common defense. In equipping
the National Government with the needed authority in war, they
tolerated no limitations inconsistent with that object, as they
realized that the very existence of the Nation might be at stake
and that every resource of the people must be at command. * * *
‘In the words of the Supreme Court: ‘It is also settled
beyond dispute that the Constitution is not self-destructive. In
other words, that the power which it confers on the one hand it
does not immediately take away on the other. * * *' This was
said in relation to the taxing power. Having been granted in
express terms, the Court held it had not been taken away by the
due process clause of the Fifth Amendment. As the Supreme Court
put it in another case: ‘the Constitution does not conflict with
itself by conferring upon the one hand a taxing power and taking
the same power away on the other by the limitations of the due
process clause.“
‘Similarly, it may be said that the power has been expressly
given to Congress to prosecute war, and to pass all laws which
shall be necessary and proper for carrying that power into
execution. That power explicitly conferred and absolutely
essential to the safety of the Nation is not destroyed or
impaired by any later provision of the constitution or by any
one of the amendments. These may all be construed so as to avoid
making the constitution self-destructive, so as to preserve the
rights of the citizen from unwarrantable attack, while assuring
beyond all hazard the common defense and the perpetuity of our
liberties. These rest upon the preservation of the nation.
‘It has been said that the constitution marches. That is,
there are constantly new applications of unchanged powers, and
it is ascertained that in novel and complex situations, the old
grants contain, in their general words and true significance,
needed and adequate authority. So, also, we have a fighting
constitution. We cannot at this time fail to appreciate the
wisdom of the fathers, as under this charter, one hundred and
thirty years old-the constitution of Washington-the people of
the United States fight with the power of unity,-as we fight for
the freedom of our children and that hereafter the sword of
autocrats may never threaten the world.’
The war powers of Congress and the President are only those
which are to be derived from the Constitution but, in the light
of the language just quoted, the primary implication of a war
power is that it shall be an effective power to wage the war
successfully. Thus, while the constitutional structure and
controls of our Government are our guides equally in war and in
peace, they must be read with the realistic purposes of the
entire instrument fully in mind.
Lichter v. U.S., 334 U.S. 742 (1948)