The Intelligence Reform and Terrorism Prevention Act of 2004 (the “Act”) effected one of the most significant changes since 1947 in the organization of the intelligence community. Title III of the Act reorganized the entire national security clearance system, although the subject received practically no attention in public discussion during the 9/11 Commission hearings. Because this change was not fully explored in either the House or Senate hearings or during floor debate, Title III includes contradictory provisions concerning the assignment of responsibilities for security clearance policies and procedures.
New periodicals and law journals, if not commonplace, are still far from unknown. The arrival of this inaugural issue of the Journal of National Security Law & Policy is particularly noteworthy, however, because of the circumstances that have produced it and the need it seeks to address: bringing national security practitioners, lawyers, and scholars into conversation about the evolving relationship between law and national security. It is worth reflecting on the circumstances that make the arrival of this new journal so timely and important.
Two innovative federal crimes, 18 U.S.C. §2339A and §2339B, have been frequently charged in prosecutions since September 11, 2001, becoming key elements in the government’s anti-terrorism efforts. Section 2339A makes it a federal crime knowingly to provide material support or resources in preparation for or in carrying out specified crimes of terrorism. Section 2339B prohibits knowingly providing material support to a foreign terrorist organization. These statutes bear some resemblance to criminal liability for complicity, but they are being used like a new kind of conspiracy charge, the familiar “prosecutor’s darling.” Unlike conspiracy, they are framed with a mens rea of knowledge rather than of purpose, and because they are substantive offenses, they can be combined with traditional conspiracy charges. These provisions can be used to impose punishment for conduct remote from the commission of criminal harms, often conduct involving minimal and outwardly non-criminal acts.
Reviewing Terrorism, Freedom, and Security: Winning Without War, by Philip B. Heymann
On the afternoon of September 11, 2001, shortly after Air Force One touched down at Offutt Air Force Base, President Bush began a teleconference with senior national security officials by proclaiming, “We’re at war.” The war, the President elaborated, would be “global in nature.” During a meeting of the National Security Council the next day, the principals labored to flesh out the parameters of the conflict. In particular, they discussed a proposal to frame America’s objective not merely as the destruction of al Qaeda but as the “‘elimination of terrorism as a threat to our way of life,’ an aim that would include pursuing other international terrorist organizations in the Middle East.”
Breakthrough science can lead both to great good and to great evil. The September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon and the anthrax letter attacks that followed highlight the fact that our enemies may use our own advanced science and technology against us. When the dissemination of scientific information might jeopardize national security, the federal government’s primary response has always been to try to control the spread of that information. In a variety of ways, the government has long restricted public access to scientific information in the government’s possession. Since September 11, the government has further tightened access to its own information, withholding from public view not just classified data but also so-called “sensitive” information, the release of which it says could pose a danger to national security.