Vol 42. No. 1 Fall 2017 | School of Law | SIU

Vol 42. No. 1 Fall 2017

ARTICLES

Material Support for Terror and Holder v. Humanitarian Law Project: An Empirical Examination

Benjamin Bricker .......................................................................... 1

Zeinab Taleb-Jedi, a naturalized U.S. citizen from Iran, traveled to Iraq to assist and advocate for the People’s Mojahedin Organization of Iran (PMOI), a leftist group seeking the overthrow of the Iranian government.  However, the group also had been designated a terrorist organization by the U.S. State Department.  When Taleb-Jedi returned to the United States in 2006, she was charged with violating section 2339B of the U.S. Code by providing “material support” for the terrorist group.  Similarly, Tarek Mehanna was charged with providing material support for terrorism after he provided Arabic to English translations of al-Qaeda recruiting documents.  More recently, when the widow of the Orlando nightclub shooter was arrested in early 2017 she too was charged with providing material support to her husband and to ISIS, or the Islamic State.  These examples show the expanding—and expansive—use of American law criminalizing material support for terrorism.  Yet, given the strong protection both American society and U.S. courts have given to First Amendment free speech rights, what should occur when, as in the cases of Mehanna and Taleb-Jedi, ostensible material support for terror groups comes in the form of words and speech assisting terrorist groups?

This Article examines material support prosecutions before and after Holder v. Humanitarian Law Project (Holder).  The Holder decision stands as the Supreme Court’s principal interpretation of individual First Amendment and Fifth Amendment rights in terrorism prosecutions.

The German Court System in Combatting State Security Matters, in Particular Terrorism

Dr. Manfred Dauster.................................................................... 31

Since the jurisdiction of the Federal Supreme Court in state security matters was abolished in 1969, and the federal lawmakers decided not to establish a federal first-instance court on those matters, the competence question has become confusing, or at least, complicated.  The jurisdiction in most of section 120 of the German Courts’ Constitution Act (CCA) cases is clear and does not raise any dispute.  However, article 120, paragraphs 1 and 2 of the CCA implies legal traps with respect to competence and jurisdiction, and respective misjudgment of the jurisdiction preconditions comprise risks as to the extent that verdicts might be overruled by the Federal Supreme Court due to unlawful assessment of elements of section 120 of the CCA.  

This Article provides an overview and history of the German court system and its relation to state security matters.  It also analyzes the effects of Germany’s jurisdictional scheme on state security and terrorism proceedings.  Finally, it offers a recommendation and its consequences to simplify a just jurisdictional scheme for state security matters.

Terrorism and Evidence Gathering: Case Studies from Germany

Dr. Hans-Joachim Lutz................................................................. 55

Germany knows many different forms of terrorism.  These include right-wing extremist terrorism, left-wing extremist terrorism, and Islamist terrorism.  First, this Article will briefly explain right-wing and left-wing extremist terrorism in Germany.  Then, this Article will explore a special case of Islamist terrorism which demonstrates the difficulty of these proceedings.

The Use of Classified Information in Terrorism Trials

Bruce M. MacKay........................................................................ 63

The most potent weapon America possesses in the battle against terrorism is information.  Information provides the government the ability to determine terrorist intentions, identify terror actors, assess target vulnerabilities, and implement countermeasures.  Information drives the government’s decision cycle. The greater the depth and breadth of information at the government’s disposal, the greater the range of options are available to the government.

This Article serves to highlight some considerations the government faces every time a criminal prosecution implicates classified information.  The paper briefly examines the nature of classification, what can make information classified, and how the classification and declassification systems work.  It then turns to the courtroom to examine the constitutional and pragmatic considerations involved in mounting a prosecution.  

U.S. Circuit Courts & the Application of the Terrorism Enhancement Provision

Pinky Wassenberg........................................................................ 85

The U.S. Sentencing Commission created the U.S. Federal Sentencing Guidelines (hereinafter referred to as the Guidelines) pursuant to their statutory mandate to provide guidance to federal courts to rationalize federal criminal sentencing practices and “further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation.”  Congress created the Sentencing Commission and authorized it to establish the Guidelines to reduce perceived disparities in the sentencing behaviors of federal judges by limiting and systematizing the factors that went into arriving at a sentence for an individual defendant.  The goal was to have defendants receive comparable sentences when convicted of comparable crimes if the defendants had similar criminal histories and their crimes shared similar aggravating or mitigating factors.  The Guidelines operate by categorizing crimes, based on their characteristics, into base offense levels.  After identifying the base offense level under the Guidelines, a trial judge determines a defendant’s sentence taking into consideration the defendant’s criminal history and individual factors that may justify either an upward or downward departure from the basic level.

This Article will focus on a simple empirical task of examining recent cases in which U.S. Circuit Courts of Appeals have explicitly reviewed U.S. district courts’ sentencing decisions involving the applicability of the terrorism enhancement.  The goal is to determine exactly what appellate courts are really doing when they review trial judges’ decisions in terrorism enhancement cases. The purpose of this task is to find out whether the pattern of actual review across circuits seems to indicate that Circuit Courts of Appeals are aggressively pursuing the nation’s fight against terrorism or if they are treating the cases as another routine category of sentencing cases.