: A Research Guide to Cases and Materials on Terrorism
Compiled by Andrew Grossman
Andrew Grossman is a retired U.S. Foreign Service Officer who served in Seoul, Abidjan, London, Tehran, Algiers and Geneva. He holds the degrees of B.A. in Economics (Clark), LL.B. (Columbia), M.A. in L.I.S. (University College London) and of Licencié en droit européen et international, Maître & Docteur en droit (Louvain-la-Neuve) and is a member of the New York and District of Columbia Bars. He lives in London, where he writes on private international law issues, especially in the fields of nationality, bankruptcy and tax. Among his publications are "Conflict of Laws in the Discharge of Debts in Bankruptcy", 5 Int'l Insolvency Rev. 1 (1996), "Nationality and the Unrecognized State", 50 Int'l & Comp. L.Q. 849 (2001), "Birthright citizenship as nationality of convenience", Proceedings, Council of Europe, Third Conference on Nationality, Strasbourg, Oct. 11-12, 2004; and "'Islamic land': Group Rights, National Identity and Law", 3 UCLA J. Islamic & Near E.L. 53 (2004). His previous work in this series is "Finding the Law: the Micro-States and Small Jurisdictions of Europe". He recently completed research into conflicts in the cross-border enforcement of tax claims and has begun a project analyzing the limits of national autonomy in matters of nationality under European law.
Published May 2006
Table of Contents
General sources of information: comprehensive sites, archives, lists
NGOs, private research organizations, universities
Previous terrorist cases, reports
Prosecution in the USA based on violation of a foreign statute (not necessarily terrorism-related)
On-line articles and other materials
Membership in a proscribed organization
Crimes against foreign missions and internationally protected persons
Particular Human Rights Issues; unintended consequences
Signals interception, wiretaps
Extrajudicial extraction: kidnapping, rendition
Status and immigration, including deportation issues and refugee law
Charity, foundation, eco-terrorism issues
"Animal rights", anti-abortion, eco-terrorism, quasi-charity terrorism
Eco-terrorism and animal rights:
Money laundering and the financial support of terrorism
Selected statutes and international materials
Some law review articles; book
Smuggling, tax evasion, racketeering:
Passive support of terrorists and terrorism
Libel cases, and their limitations
Nuremberg Trials and the Eichmann Case
Other "universal jurisdiction" cases and issues
Afghan, Iraqi, Geneva Convention issues
Cases: militia and radical Christian sects; religious-based provocation
Medical preparedness and bio-terrorism
Cases addressing some miscellaneous legal issues
Counter-terrorism and Human Rights
Relevance of the Law of War, the Geneva Conventions
Statutes and bills; legislative projects; commentaries
Government, academic and scholarly reference sites, archives
Articles, Documents: skeptical, contrary and critical views
A bibliographic survey of the law relating to terrorism -- even one that tries to avoid advocacy and argument, and perhaps even more so on account of that -- exposes its author to criticism more than anything over definition and criteria for inclusion. Terrorism itself is a moving target: laws addressing it written by a fearful Establishment, its history written by the victors. Terrorist acts can be undertaken for all sorts of reasons or, conceptually at least, for none at all other than to promote anarchy or to express hatred. A purely criminal undertaking (as in extortion) is the least likely to threaten the wider public (such crime tends to be local or limited to particular ethnic groups) and it is also the easiest to deal with. Terrorist acts commonly arise out of grievance and frustration, real or imagined: religious, political, economic, personal. Terrorism, or the threat of terrorism, can involve weapons of mass destruction, or it can consist of measures of murder and mayhem, repression and intimidation directed at individuals, at a group or class, or at all the inhabitants of a region or state. While a dozen or more sectors of the law are pertinent to terrorism -- some as cause, some as effect, some as impediment and some as punishment -- historically no law has been more successful than the mere passage of time in bringing it to an end. Terrorism and its companion, civil unrest, either bring revolutionary change and are then sanctified in a new national myth[1], or they fail and grievances either continue to fester or are overtaken by events.
It can come as no surprise that the political Establishment focuses on terrorism occurring at home, or targeting our friends. When it is by elements of one friendly state against others of our friends (Irish republicans against British and Irish nationalists; ethnic Greeks and ethnic Turks; Orthodox Slavs and Catholic Slavs) one may perhaps side with the group most like oneself. As in Monty Python's "The News for Parrots"[2] a mishap may be seen as tragic only to the extent that it has an impact on ourselves, our group, our class. Motivation, expectation and allegiance may be such that there is no obvious solution: "justice" and "compromise" may prove mutually exclusive in a way ill understood by outsiders. Compromise and sacrifice may be unacceptable to those who, because they have wealth and prospects have the most to lose and also the most political influence.[3] If those charged with combating terrorism fail to appreciate the real limits of their power, or if use the notion of a "war against terrorism" chiefly as a political expedient, the situation they claim to defuse may instead be worsened. Most sovereignty, if one goes back in time far enough, derives from conquest: under modern notions of international law conquest does not afford good title to land, but how many decades or centuries back must one's claim lie in order to be beyond repudiation? The application of legal norms -- of the law -- to terrorism is itself an expedient: and that's certainly true to the extent that the law's actors are not there to "do justice" but rather "to play the game according to the rules".[4] It is, however, of the essence of the rule of law that those ruled by it accept its decisions.[5]
One would do well to keep in mind the power of claims to vested interests and the ability of those who profit from them, however indirectly to garner support, to delay change and to prolong iniquity. But even an objectively fair offer in compromise may not put an end to facts and myths that draw support, active and tacit, for extremist solutions. There are few ethnic groups whose status and location are not the result of colonization, voluntary or forced movement and war. The treaties concluding the First World War, and the ensuing resettlements[6], the dissolution of the Ottoman Empire[7] and the creation of states and zones of influence, lie behind many recent European and Middle East conflicts. Whether such historical facts will stimulate and support terrorism many years later depends on the existence of a survivor class from among the losing side, of a historical record, of myths, and of a culture that will sustain anger and violent action.
Western Europe, the United States and what is known as the "Old Commonwealth" deem themselves, and are demanded by others, to be pluralistic nations. Mazzini's unity of nation and commonality of nationality commonality of language, territory, ethnicity, culture, religion and history[8] would violate modern notion of human rights -- but only in those developed nations[9], target regions for migration by members of other cultures, mainly family members of previous migrants. The result is a bouleversement of what used to be known as "allegiance"[10] (carried over into America and crystallized in the XIVth Amendment and discussed further below), and fears of a developing "fifth column". We have, however, been there before: quite apart from lessons of the Indian wars and of the civil rights movement, the Sedition Act[11], the language laws[12], the German American Bund cases[13], the Chinese exclusion[14] and Japanese internment[15] and expatriation[16] and the Communist cases[17] showed our fear of the "other", and our ability to postulate that this other threatened the well-being of the State. Civil and human rights to dissent, to associate, to sympathize with the enemy, real or perceived, have strengthened in the intervening years. The claim of the State to undivided loyalty of those who owe it "permanent"[18] and "temporary"[19] allegiance has weakened concomitantly.
The aim of "official" -- i.e., sovereign, terrorism by those who have in law a monopoly of coercive force -- is that "shock and awe": the intimidation of all others by "benign terror". It is not clear that a modern, liberal state can accomplish this the way totalitarian and imperial rulers did. One aim of private, political terrorism is to provoke officialdom to outrageous response and thereby to procure external support. Gandhian passive resistance may not be intended to provoke violent response[20]; but if it does, the State, or the Establishment, has lost: Mississippi Burning[21]. It may be assumed that public suicides such as the 1981 Northern Irish death fasts[22], the self-immolations in Vietnam[23] and suicide-murders, as in Israel[24], Iraq[25], Afghanistan[26] have as their goal public unease and political destabilization. Mass random killings may aim to provoke disproportionate responses[27] and, gain perversely moral high ground. Once in power terrorists may become "statesmen", be forgiven their crimes and have the opportunity to rewrite history books to make of themselves national heroes.[28] Victims may be marginalized, their private rights and interests subordinated to political and diplomatic expediency. The criminal law may be marginalized by pardon or by refusal to prosecute, as has happened in Northern Ireland. "Truth and reconciliation" through public witnessing[29] happens only sometimes. Old animosities and remembrances of terror may be revived as new myths to support revived rivalries and justify genocide, as happened in the course of the breakup of Yugoslavia. Or they may be denied, suppressed as a matter of official policy: Armenians and Kurds in Turkey; the civil unrest in Cyprus, 1960-1974. Past and present terrorism may be ignored by other states -- allies and commercial partners of the perpetrators -- when it suits their political and economic interests. Generations that follow the beneficiaries of past terrorism have vested interests that are not easily ignored: children do not, as a rule, inherit the debts of their ancestors. In short, the law is secondary to politics and to diplomacy, pragmatism and expedience. Our investigation of case law will, therefore, be less than fully satisfying: these cases concern in fact countries where terrorism is, put in geographic and demographic scale, not a genuine threat to the political, social or economic system. And that is true however much of a public shame and political issue it has become, however much disquiet it may have spawned. Compare, for example, the cost of natural disasters and human error or negligence: the tsunami[30], hurricane Katrina[31], Chernobyl[32].
* * *
The point of this survey is not so much to list sources -- many of these could be found with a search engine and legal database; others by using some of the better bibliographic sites listed here. It is rather to provide some assistance in planning research and in formulating issues to address -- to examine the range of issues and provide links, first to sources that are considered reliable and unbiased, then to specimen law cases[33] and scholarly articles and, finally, to opinions and arguments not otherwise adumbrated which, even if they are in support of a particular agenda are coherent, plausible and forthright in their advocacy or apologia. Collected here are many of the major court cases involving terrorism and terrorists of the modern era, as well as a sampling of issues related to terrorism.
Whatever the researcher's focus he or she might well begin by reading the Grotius lecture delivered at the British Institute of International and Comparative Law on November 13, 2003 by Judge Gilbert Guillaume.[34]
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Because of the relatively short life of many Web sites and links and the limited access to Anglo-American case law by students and researchers in other areas of the world, all the cases cited and many of the articles listed have been archived and should be accessible for some years. Many cases cited within those archived have also been archived and are linked. If access to an outside link is broken readers should try accessing them at Archive.org or searching for the document by title and document name in a search engine such as Goggle, Yahoo, Lawcrawler or a meta-search engine such as Dogpile.com or Mamma.com. |
International Committee of the Red Cross, 360 documents under "terrorism"
International Organization for Migration, 137 documents under "terrorism"
United Nations High Commissioner for Human Rights
and 3523 documents found under
"terrorism"
United Nations High Commissioner for Refugees, 299 documents under "terrorism"
Terrorisme.net (in French with some English)
American Society of International Law, Resources on Terrorism
ASIL Electronic Information system
Carnegie Endowment for International Peace
Counter-Intelligence, Counter-Espionage, Counter-Terrorism (Australian site; many archived documents and articles)
Federation of American Scientists, Intelligence Resources Program (incl. "Terrorism Resources")
Federation of American Scientists, Terrorism: Background and Threat Assessments
Foundation for Defense of Democracies, Washington D.C.[35] especially: Overview of European terrorist organizations
Georgetown Law School: Legal journal index
Havenworks (archive site)
Hoover Institution publications on terrorism; Adam Garfinkle ed., A Practical Guide to Winning the War on Terrorism (2004) (PDF 20 sections, 230 p.)
International Centre for Political Violence and Terrorism Research, Nanyang Technological University, Singapore
International Peace Academy, New York
Janes Insurgency and Terrorism Centre (registration or subscription required)
Kentucky Virtual Library, Political Science & Law: Terrorism
Legal Journals Index (UK): 284 articles mentioning "terrorism" and "international law"
MIPT "Terrorism knowledge base"
NYU Center on Law and Security "Terrorist Trial Report Card" (PDF 232 Kb.)
Peacemakers Trust (Canadian charity) bibliography
Social Science Research Network
St. Mary's School of Law (San Antonio), "Terrorism legal resources" (under construction Feb. 2006)
Syracuse University, TRAC Reports (Federal law enforcement and spending)
University of Washington School of Law, Gallagher Library, Law review articles on terrorism
Archival site: The Memory Hole
Findlaw: "War on Terror";
"War on Terror: Cases";
"Terrorism";
Lawcrawler.com
Jura (Germany), Terrorismusgesetz (in German)
Legalday.com (searchable UK database of newspaper articles, cases, press releases)
Terrorisme.net: collected materials relevant to terrorism (in French and English)
Washington Post: collected articles
CIA FOIA database, 710 hits for "terrorism"
Congressional Research Service, Terrorism and National Security, Issues and Trends (PDF 112 Kb.) (see below for other CRS publications)
Institute for Counter-Terrorism (Israel)
Israel Ministry of Foreign Affairs, Terror communiqués (incl. specific terrorist cases, arrests, convictions)
U.S. Army Training and Doctrine Command, "A Military Guide to Terrorism in the Twenty-first Century"
U.S. Dept. of Justice, Office of the Inspector General, Report on the Mayfield case (PDF 82.3 Mb.); Dan Eggen, "Patriot Act Partly Blamed in Madrid Case", Washington Post, Mar. 11, 2006. P. A04
U.S. Government Accountability Office, principal terrorism reports
It is not the aim to set out here all the possible crimes that may be charged in connection with a terrorist act, plot or campaign especially since new laws are being enacted in response to new outrages and so any such effort would be chasing a moving target. Existing law addresses arson, sabotage, murder and attempted murder, genocide, civil rights offenses, weapons offenses, conspiracy. New laws cover membership in and aid to scheduled organizations, but the list of such organizations is subject to administrative change and for the accused to prove termination of involvement with a newly-listed entity may be difficult.
The full text of published opinions in major recent U.S. prosecutions may be accessed below. Within each opinion there are further links where judgments in cited cases are available online. Additional cases have been included below either for their notoriety or for their explanatory value. Sections that follow address legal issues peripheral to terrorism. Most of the case law here is from the USA the UK, Canada, Australia and New Zealand. The researcher may want to search the European Court of Human Rights database and some of the country-specific sites listed below. Some non-US jurisprudence can be examined indirectly by looking at the US, UK and Canadian cases appearing in the sections on extradition and on refugee law.
Terrorism tends to be cyclical. Researchers will do well to start with the early sedition acts and review the concept of allegiance as it has changed over two centuries. For the USA, the obligations of allegiance are, besides loyalty: payment of taxes, fulfillment of military service upon conscription, and provision of information upon subpoena[38].
Center for National Security Studies v. U.S. Department of Justice, 331 F.3d 918 (Nov. 18, 2002) (secrecy with regard to the identity of persons detained following 9/11 attacks)
Hamdi v. Rumsfeld, 243 F.Supp.2d 527 (E.D.Va. 2002), 296 F.3d 278 (4th Cir. 2002), both reversed by: 316 F.3d 450 (4th Cir. 2003); judgment vacated by: 542 U.S. 547 (2004); on remand: 378 F.3d 426 (4th Cir. 2004) (nationality issue, enemy combatant)
Humanitarian Law Project v. U.S. Dep't of Justice, 393 F.3d 902 (9th Cir. 2004); on remand 380 F.Supp.2d 1134 (C.D. Cal. 2005) (statutory definition of terrorism)
People's Mojahedin Organization of Iran v. Albright, 182 F.3d 17 (D.C. Cir. 1999) (designation as terrorist organization)
United States v. Bin Laden, 91 F.Supp.2d 600 (S.D. N.Y. 2000); 92 F.Supp.2d 225 (S.D. N.Y. 2000); 109 F.Supp2d 211 (2000)
United States v. El-Hage, 213 F.3d 74 (2d Cir. 2000)
United States v. Faris, 388 F.2d 452 (4th Cir. 2004), vacated and remanded, 125 S.Ct. 1637 (2004), conviction and sentence affirmed, 2005 U.S. App. LEXIS 29066, 2005 WL 3556095 (4th Cir. 2005)
United States v. Fortier, 242 F.3d 1224 (10th Cir. 2001) and see: Ralph Blumenthal, "Release of Oklahoma City Bombing Figure Kindles Fears", N.Y. Times, Jan. 19, 2006
United States v. Haouari, 2001 WL 1586676 (S.D.N.Y.) (denial of motion for new trial)
United States v. Lindh, 212 F.Supp.2d 541, 574 (E.D.Va.2002)
United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998)
United States v. Nichols, 169 F.3d 1255 (10th Cir. 1999)
United States v. Rahman, 189 F.3d 88 (2d Cir. 1999)
United States v. Reid, 214 F.Supp.2d 84 (D. Mass. 2004), aff'd 369 F.3d 619 (1st Cir. 2004)
United States v. Salimeh, 152 F.3d 88 (2d Cir. 1998), 261 F.3d 271 (2d Cir. 2001)
United States v. Sattar, 272 F.Supp.2d 348 (S.D.N.Y.2003); United States v. Sattar, 314 F.Supp.2d 279 (S.D.N.Y.2004); United States v. Sattar, 395 F.Supp.2d 79 (S.D.N.Y. 2005) (conviction of lawyer for Rahman); further documents on Lynne Stewart site and on Cryptome.org
United States v. Yousef, 327 F.3d 56 (2d Cir. 2003)
United States v. Afshari, 426 F.3d 1150 (9th Cir. 2003) (assistance to Mujahedin-e Khalq)
In re Application under s. 83.28 of the Criminal Code, [2004] 2 S.C.R. 248 (Can.) (sabotage of Air India Flight 182)
R. v. Ribic, 2003 FCA 246, 185 C.C.C. (3d) 129 (F.C.A. 2003) (Canadian citizen prosecuted for terrorist activities in support of ethnic Serbs in Bosnia)
R (ex rel. Kurdistan Workers' Party) v Home Secretary, [2002] EWHC Admin 644 (Eng.) (defining "terrorism" and "terrorist organization"
R (Gillian) v Comr of Police of Metropolis, [2004] EWCA Civ. 1067, [2005] Q.B. 388 (C.A.) (random stop-and-search by police for "articles of terrorism")
Averill v. United Kingdom [2000] E.C.H.R. 212, European Court of Human Rights: rights of persons (particularly those charged with terrorist offenses) upon arrest
"Police Break Up Suspected Bomb Plot in Brooklyn", New York Times report, Aug. 1, 1997
"Suspects in Bomb Plot Took Two Paths From the West Bank", New York Times report, Aug. 3, 1997 (Planners of subway bombing, "more aimless than ardent", not part of any broad organized conspiracy)
Discussion of the Front de Libération de Québec (in French)
Discussion: Movimiento Independentista Revolucionario Armado (MIRA)
New York Times, May 21, 2002: FBI director warns "Suicide Attacks Certain in U.S."
Puerto Rico: United States v. Rodriguez, 803 F2d 318 (7th Cir. 1986) (FALN)
Quebec: R. v. Vallieres, [1970] 4 C.C.C. 69 (Que. Q.B. App. 1969) (murder)
R. v. Cossette-Trudel, 11 C.R. (3d) 1, 52 C.C.C. (2d) 352 (Que. C.S.P. 1979) (kidnapping of foreign diplomat; sentencing issues)
UN Documents, Decolonization Committee, Reports of the Rapporteur
United States v. Rosado, 728 F.2d 89 (2d Cir. 1984) (due process issues; citing other cases)
USDOJ, Bombs in Brooklyn: "How the Two Illegal Aliens Arrested for Plotting to Bomb the New York Subway Entered and Remained in the United States" (March 1998)
United States v. McNab, 331 F.3d 1228 (11th Cir. 2003) (criminal conviction in the U.S. based on a determination by the U.S. court that defendant violated a law of another country)
United States v. Miller, 26 F.Supp.2d 415 (N.D.N.Y. 1998) (Canadian customs and excise fraud; money laundering)
United States v. Pasquantino, 336 F.3d 321 (4th Cir. 2003, aff'd 544 U.S. --- (Apr. 26, 2005) (Canadian customs and excise fraud, alcohol)
United States v. Trapilo, 130 F.3d 547 (2d Cir. 1997) (Canadian customs and excise fraud, tobacco)
Compare: United States v. Bean, 537 U.S. 7 (2002) (denial of firearms license based on Mexican conviction, reversing 253 F.3d 234 (5th Cir. 2001))
Library of Congress Research Studies: "Terrorism and Crime"
Max-Planck Institute for Foreign and International Criminal Law, Web portal
T. O'Connor, North Carolina Wesleyan College, "The Criminology Of Terrorism: History, Law, Definitions, Typologies"
Religious incitement and its theological background: see Tim Rutton, "Drawn into a Religious Conflict", Los Angeles Times, Feb. 4, 2006
U.S. Department of Justice, Criminal Resource Manual 9-91.100: Providing "material support" for terrorists
How a terrorism issue can and will be dealt with is dependent upon political and diplomatic issues: whether the incident or movement represents a domestic threat or a threat to trade, investment or other vital national interests. Executive and legislative action may or may be logical and proportionate. Terrorism that is far away and unlikely to impinge on domestic interests[39] escapes the popular imagination, whereas a single terrorist act close to home may unleash irrational fear and disproportionate response. Product tampering is a case in point:
Not far removed from this sort of terrorism is public panic over disease, however remote the actual danger of infection at the time: BSE, avian influenza, smallpox, anthrax. The political search for a scapegoat and a plausible solution are well illustrated by the anthrax cases; but these also demonstrate the propensity of the press to fan hysteria and, indeed, to spur the authorities to action that may be out of proportion to facts and to risk: Hatfill v. New York Times Co., 415 F.3d 320 (4th Cir. 2005). See also Pennekamp v. Florida, 328 U.S. 331 (1946) (reversing contempt conviction of newspaper editor and publisher following publication of editorials critical of the administration of justice in local courts; citing Campbell v. New York, 186 Misc. 586, 62 N.Y.S.2d 638 (Ct.Cl. 1946) as a quintessential miscarriage of justice case.). The recruitment of public fear and outrage seems to blur the meaning and significance of "reasonable doubt" and make miscarriage of justice more likely; once obtained, the fact that affirmance of a conviction serves to underpin the reputation and integrity of the legal system and the positions of those in power hinders serious consideration of justice.[40] In the United States, the assumption is that executive clemency can be used to resolve the tragedy of miscarriage of justice. Such a remedy is, however, made uncertain by the opposition of some prosecutors to the reopening of cases even for the examination of existing DNA evidence, and the obstacles standing in the way of clemency proceedings and to appeals.[41] On prosecutorial misconduct, see, e.g., Jerry Markon and Timothy Dwyer, "Federal Witnesses Banned in 9/11 Trial", Washington Post, Mar. 15, 2006, p. A01.
Meanwhile, the risk of radiological terrorism is undiminished:
Leah Litman, "Cleaning House -- Dirty Bombs and the Nuclear Non-Proliferation Treaty", 25 Harv. Intl'l Rev. #1092 (2003)
Testimony of Dr. Henry Kelly, President, Federation of American Scientists, before the Senate Committee on Foreign Relations, March 6, 2002
Jeffrey Goldbert, "The Ghost of Purim Past" N.Y. Times, Mar. 14, 2006 (Iranian threat against Israel).
Chemicals agents that have been used as instruments of terror include sarin:
and ricin:
Some court judgments thus far on ricin-related incidents have bordered on the bizarre:
Popular imagination, and the political establishment close behind, have on occasion given human and constitutional rights little priority when they perceive a threat to the status quo, to vested interests, or to society and the State. Aside from immigration, naturalization and deportation cases see:
Membership, or deemed membership, in specific subversive organizations has often had severe consequences under immigration law and, more recently, anti-terrorism law.
Political terrorists, such as the IRA and offshoots, and the Protestant militias of Northern Ireland, are addressed elsewhere. Nonpolitical criminal gangs are mentioned here for the sake of completeness. The kidnapping for ransom by terrorist and insurgent groups of individuals, especially foreigners (as in Iraq and Colombia), is scarcely new.
Specimen cases discussing terrorism in the context of organized crime: