 Hello, I'm John Cook. The terrorist attacks on September 11th changed the American legal landscape in significant ways. Two developments were the enactment of the USA Patriot Act on October 26th, 2001, and President Bush's military order of November 13, authorizing the trial of alleged terrorists by military commissions. We'll look at some important elements of both during this program. The USA Patriot Act, the title is an acronym for the Uniting and Strengthening America by providing appropriate tools required to intercept and obstruct terrorism. The Act contains 10 titles addressing a wide range of subjects. We'll address some key provisions in titles 2, 3, and 4, and mention a couple of other sections in the Act. Title 2 deals with surveillance and information collection. Title 3 deals with money laundering, and Title 4 deals with immigration. We've chosen these provisions to discuss based on the likelihood that they will arise in litigation, and will try to identify likely sources of dispute over interpretation. I should note that except for one section, we won't discuss Title 8, which adds some new crimes or enhances penalties for existing crimes that relate to terrorism. Others may see some of these offenses, but for now, they don't seem likely to present any difficult or unusual questions. After we look at the USA Patriot Act, we'll talk about the President's Order on Military Commissions in the last segment of the program. Now let's turn to our first topic, Title 2 of the USA Patriot Act, which deals with surveillance and information gathering. To introduce it, here's a brief overview by the Center's Paul Vamvas. The sections of the law that expand government's power to gather and share information are among the most noteworthy. Two sections, for example, make significant changes in search warrant procedure. Section 219 allows for single-jurisdiction search warrants for terrorism. Under the old law, investigators had to obtain a new search warrant in each district in which they sought to execute a warrant. Under the new law, a warrant obtained in any district where the alleged terrorist activity may have occurred may be executed anywhere in the country. Even more importantly, Section 213 of the law allows a search warrant to be executed without notifying its target that it has been issued. This is the so-called sneak and peek provision. There are limitations on this authority, and the government does have to give notice within a reasonable amount of time after the execution of the search. Several sections seek to update the government's powers concerning modern electronic communications. Similar to Section 219, Section 220 allows for nationwide service of search warrants for electronic surveillance. Section 206 grants roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978. That is, surveillance can follow the person who uses multiple communications devices or locations. And sections 214 and 216 expand the government's powers to gather information through pen registers and trap and trace devices. Pen registers capture phone numbers dialed on outgoing telephone calls, and trap and trace devices capture numbers identifying incoming calls. Finally, in one of the most discussed changes in the new law, Section 203 allows the government to disclose foreign intelligence information gathered in grand jury proceedings to a broad group of federal law enforcement and national security officials in the performance of their official duties. With us now to discuss these issues further are Beryl Howell, Chief General Counsel to the Senate Judiciary Committee, and Robert Litt, a partner at Arnold and Porter and former Deputy Assistant Attorney General in the Criminal Division of the U.S. Department of Justice during the Clinton administration. Thank you both for being here. Beryl, Congress moved pretty fast to enact what's a very wide-ranging piece of legislation. Would you tell us a little bit about the process and what that may mean for judges who have to interpret it? Well, I'm happy to talk a little bit about the legislative process. It was not the paradigm that we're all accustomed to reading about in our social studies books, with bills introduced, debated, committee reports, hearings, debate on the floor, conference to resolve differences between House and Senate, and so on. This was a process that, in short, I think left a very sparse legislative record for judges to turn to in evaluating and trying to figure out what the congressional intent was for some of the provisions. And so let me just tell you very briefly about how that process was short-circuited. First, the administration and Chairman Leahy of the Judiciary Committee exchanged drafts of legislative, anti-terrorism legislative proposals. Those drafts were never introduced. We negotiated from those drafts and then introduced a bill, which in fairly short order was then passed by the Senate. The House Judiciary Committee process was a little bit more formal with hearings after introduction of a bill, committee referral and vote, unlike in the Senate, where there was no referral of the bill to the Judiciary Committee, and so no Senate Judiciary Committee report on the bill. But then once the House Judiciary Committee unanimously reported a bill with a committee report, the House leadership essentially ignored that process and took up a totally separate bill, which the House then passed. So we then, when there are two different bills that have been adopted by the different bodies, usually have a formal conference where there is a record kept and a formal conference report explaining how the members resolve the differences and why. There was no formal conference for this piece of legislation. Instead there were informal meetings, which resulted in a legislative product that was first taken up by the House and passed and then by the Senate and passed and sent to the President for a signature, all within seven weeks of September 11th. So the legislative record is essentially the statements of the leading sponsors of the legislation on the floor of the Senate, which does not carry the weight that a formal conference report or committee report would, but that's the situation. And there are a number, as you said in your opening remarks, there are a number of areas in this legislation where Congress could have been clear about the meaning of the terms, but the legislative process is such, particularly with the time pressures that Congress, the Congress was put under to, for obvious reasons, to consider the legislative package, that we are going to look to the courts to define the full permissible scope of some of the provisions. So I'm really glad to have the opportunity to talk and highlight for the judges some of the areas that many of us who were involved in the negotiations, and I was one of the chief negotiators for the Senate on the bill, that we were aware of, but did not resolve. Okay, thanks. Let's dive into some of the provisions. Sure. I guess initially one has to do with grand juries and sharing information there. Did you talk about that? The information sharing provisions in the bill, section 203, were hotly debated. And I would just like to, I mean they're fairly, you know, intelligible. I mean clearly, you know, and, you know, or easy to understand. So I, but I just want to highlight three different parts in questions that arise from the provisions that we put in the bill. The most hotly debated part of the, of the information sharing provision was whether or not and to what extent there would be judicial supervision of the information sharing of both grand jury information, wiretap information, or other criminal justice information. And I will sort of highlight this one issue is that no one really knows what that other criminal justice information is. And the administration was quite insistent that they wanted unfettered, unfettered ability to share this information, which we defined to be foreign intelligence information relating to U.S. persons as well as non-U.S. persons. So it's a fairly broad category of information that is allowed to be shared with six different categories of executive branch officials. Law enforcement, intelligence, protective services, immigration services, national defense, and national security. So it's the entire, you know, intelligence community from DOD to the NSA to the CIA to the immigration service to the National Security Council at the White House. This, you know, sensitive criminal justice information is now going to be fairly widely disseminated. One of the things that we were able to achieve is that to put a limitation on the unfettered authority that the administration was seeking was that when it came to grand jury information, the government is required to give to the courts post-dissemination notice that the information has been shared with different departments. No longer will that notice be on an individual named basis, but just fairly broad notification of which departments got the access to the information. The one thing I want to point out about the grand jury sharing information is that in the amendments to Rule 6e, there is nothing that bars a court for either being proactive or in response to a motion by a target or subject of the investigation to impose some limits on the time, manner of the dissemination of that information. Now, no one may know that the information is being disseminated in order for the court to know when and how to act. But I would say in those cases where leaks have been a problem, courts should be aware that there is nothing in the statute that bars them from imposing some limitations. Another point that I want to highlight about Section 203 is that there is a disconnect that we unsuccessfully tried to fix with law. And I think it's going to be a challenge for the courts to figure out how to deal with that. And that is there is a new Section 203D, which is a fairly broad information sharing provision for all criminal justice information. As I said at the outset, no one really knows what that information is. The Department of Justice was unable to explain, as we were negotiating the bill, what other information than grand jury or wiretap information they would be interested in sharing. But they were insistent that this provision be put in the law. And it starts with a notwithstanding any other law clause. Right after, it's 203D, right after subsections 203A, B and C, which deal with grand jury and wiretap information with some special limitations. So I think that the judges will have to be aware that it is certainly not the congressional intent that 203D should swallow the other provisions. Should the Department of Justice try to argue that. Now, not all information may be shared under Section 203. As I said, it's only foreign intelligence and counterintelligence information that applies to non US persons as well as foreign intelligence information concerning US persons. There are definitions for those provisions, but in despite the fact that they're very broad, we certainly are envisioning that there will be disputes over whether those provisions were appropriately limited and whether information was shared when it turns out to have been relating to a homegrown terrorist as opposed to one sponsored by a foreign power. So I think that those are going to be issues that courts are going to have to deal with. Let's talk, there's another provision that's gotten a fair amount of attention. It's got a kind of a catchy label, sneak and peak. I think that's Section 213. Would you talk about that for a minute? Then we'll turn to Bob and ask him to comment on these. The administration's original proposal for sneak and peak authority was really sneak peak, steal, take, seize, search authority for up to 90 days. It was a very over broad proposal and so controversial that in fact the House Judiciary Committee eliminated that proposal from its Judiciary Committee reported bill. What we were able to do in the Senate was to, and it was our intent to essentially codify Second Circuit and Ninth Circuit law on sneak and peak authority with the limitations that judges have thought were reasonable limitations on sneak and peak authority. And so we expect, first of all, that this authority is going to be used very infrequently and even the Department of Justice and its field guidance to prosecutors around the country has cautioned that this is authority that should only be used infrequently. Just to be clear, this is a provision that allows delay in the execution of a search warrant. Yes, it allows a delay for a reasonable period of time which judges are going to have to figure out what that means. In the notice that a search warrant has been executed, now in terms of the reasonable period, I know that the members of the Senate in following Second Circuit law in particular on what a reasonable period means were expecting it to be no more than seven days. The Department of Justice was quite resistant to putting a seven day limitation in the statute and I can see from their field guidance where they are citing cases of up to 45 to 90 day delays that that is certainly going to be an issue, you know, toughly litigated in the courts over what a reasonable period says. Senator Leahy was quite clear in his statement that he was looking to the Second Circuit guidance that a seven day period was reasonable and not much more. The other limitations that we put on this provision is that to ensure that it was a sneak and peek warrant is that the seizure of any items is limited to where there is a reasonable necessity shown, another undefined term that I know the courts are going to have to grapple with. When does the government show a reasonable necessity for having to actually not just peek but also seize items during the search and these are, these are, this is going to be, I know, a highly litigated, highly litigated provision. Beryl, that's not limited to terrorism or national security cases, is it? No, it is not. I think that's a significant point to it. This is just a general change to the, to Rule 41 and the provisions for search warrants in any kind of case. Also, on the information sharing point, in the years I spent at the Department of Justice it was a great source of frustration that there were significant barriers to the sharing of information between the intelligence side and the criminal side going in both directions. I think it's basically a good and important thing as these kind of cases become a greater and greater part of our criminal investigative load. What needs to be worked out is exactly the rules and in particular, Beryl, you can correct me if I'm wrong on this, but I think that there are not good rules set forth in the statute as to what use can be made of the information by the agency that receives it. There are lots of restrictions on when it can be transferred, but once criminal investigation gets to the intelligence side, there's not a lot of limits on what they can do with it, is that right? What we tried to do, the administration's original proposal had to absolutely no limit on what could be done with it and what we tried to do is in Section 203 say that to the extent that there were confidentiality protections that attach to the information, those protections followed through with the information and we are leaving it and we directed the Attorney General to promulgate regulations which we have not yet seen that will explain how they're going to do that. It's all grand jury information going to have to be stamped grand jury so that when it's given to an intelligence agency they know that it's got to continue to be stamped grand jury. It may be a bit of a cumbersome process, but we didn't want to ensure that there was wholesale dissemination of the information. Bob, let's turn to FISA. That's an acronym that's known to many people, but not much more is known. Could you give us a little background on FISA and what some of the key provisions addressing FISA in Title II are? Yeah, I think a lot of people have a general idea that there is something called the Foreign Intelligence Surveillance Act, but then unless a judge has actually sat on the special FISA quarter, had occasion to try an espionage case, probably hasn't had direct contact with it. I think that as we get more and more terrorism cases and with the broader scope of FISA, people are going to be encountering this more in the context of motions to suppress evidence. FISA was originally passed in 1978, codified as part of Title 50 in the National Security Title of the U.S. Code. It was essentially a compromise between the people who on the one hand felt that the executive branch had unfettered authority to conduct national security surveillance free of the Fourth Amendment and people on the other hand who felt that the full rigors of the Fourth Amendment applied to that kind of surveillance and FISA sort of cuts down the middle there. There are basically four different kinds of evidence gathering that fall within FISA and all of them in some sense or other were amended by the USA Patriot Act. FISA authorizes the connection of foreign intelligence information, which is a term defined in the statute, and it's basically information relating to protecting the U.S. or relating to espionage or terrorism. And you can gather evidence by electronic surveillance, by physical searches, by pen register and trap and trace devices and by court orders for the production of evidence or documents and records. And all the orders under this are issued by the special court, which it consists of judges appointed to it and it sits in a secure facility at the Department of Justice. The most significant provisions in the USA Patriot Act are those that relate to electronic surveillance and physical searches. And the structure of the act as it sets up is that in order to get that kind of evidence, you have to be directing the search at either a foreign power or an agent of a foreign power. Those are defined terms in the statute, they're complicated. The most important fact is that a U.S. citizen or a U.S. person can be an agent of a foreign power against whom a FISA search can be directed. The standards necessary to get warrants under FISA are much lower than those under either Title III, the normal wiretap provision or the standard search warrant. The government does not have to show probable cause to believe that a crime has been committed and that you're going to get evidence of the crime by the search or surveillance. You only have to show, for example, in the case of electronic surveillance, probable cause to believe that the communication facility is being used by a foreign power or an agent of a foreign power, period. In addition, the minimization requirements for electronic surveillance are very different than those under Title III. They relate to how the evidence is disseminated after it's collected, not what conversations you can actually intercept. The duration of scope is broader and so on. In the physical search side, one significant difference is whereas a standard search warrant authorizes you to go in on one occasion and see specific evidence, a FISA search warrant allows repeated entries within a defined period of time to inspect and seize evidence. Finally, the procedural protections under FISA are much lesser from when you get to litigation. Unlike a Title III, the government does not have to give notice to everyone whose conversations have been intercepted. They don't leave notice of a warrant of a search under any circumstances. And if the government wants to use a FISA surveillance in a criminal case, all it turns over to the defendant is just the evidence that it wishes to use, not the entire warrant and affidavit and so on. And if the defendant wants to move to suppress this, as long as the government makes a showing to the judge that national security would be affected, everything is done on an ex-party basis. So it's a much, there's a concern therefore that FISA can be used to weaken the protections of the Fourth Amendment, particularly in light of the increased information sharing that Beryl talked about. In order to limit this, FISA had a requirement which some people argue was founded in the Constitution that says that the FISA warrant can issue only when the primary purpose is the collection of foreign intelligence. A secondary purpose could be criminal, but the primary purpose had to be foreign intelligence. And now getting to the USA Patriot Act with that background, what the act did in Section 218 is change that requirement which is in the statute as the purpose and has been interpreted as the primary purpose, to mean that you can get a FISA warrant when a significant purpose is the collection of foreign intelligence. That's a higher standard than the government wanted because the original government proposal was just as long as a purpose. But I'm not sure that from the point of view of the statute, there's a difference between a significant purpose and a purpose. I think that the government is going to be able to meet that standard in virtually any case where there is a national security implication. And I think it's going to be up to the courts to determine whether that standard meets the constitutional requirements for conducting surveillance. Before you move on to the other FISA provisions, if I can just interject that when the administration made its proposal to change the purpose to a purpose, it caused enormous consternation and concern on the part of members of the Senate Intelligence Committee and Judiciary Committee. And when we asked the department for a constitutional justification and analysis of their proposal, we went day after day after day without receiving it. And when we finally resolved that we should only go to a significant purpose, we then got the constitutional analysis that the Justice Department didn't even bother trying to justify a purpose, they then just supported a change to a significant purpose. It is a view of many members that whether we changed it from the purpose to a significant purpose to a purpose, that the fact that judges have said that constitutionally they require it to be a primary purpose will continue to be the law and that it doesn't matter what we changed the word to. But ultimately this is going to be something the courts will have to determine. Yeah, there's some other changes that are significant in FISA. I'll try to address them a little more briefly. Section 206 of the Act was intended to permit roving wiretaps under FISA. This addresses the situation which is already addressed under Title III of somebody who for example acquires a pay phone, uses the pay phone for a week then either throws it out or clones a new number into it and is therefore constantly changing the communications facility and thus you can't specifically identify as you're required to to get a warrant the particular communication facility that you're intercepting. As I said Title III has for about 15 years permitted roving wiretaps in this situation and the intent of Section 206 was to authorize that under FISA. This may have been a problem with the legislative process. I'm not sure that the statute that they passed actually did that because instead of conforming to what they did in Title III they amended a section that has to do with who can be ordered to provide assistance to assist in the installation of a wiretap. And they didn't change the requirements that a FISA order still has to specifically identify the communications facility to be targeted and so on. I think the courts are going to have to work out whether in fact this does authorize roving wiretaps or whether they've got to go back and start all over again. I think that's one of the artifacts of the legislative process that Beryl was talking about. You're absolutely correct and despite my urging that we follow and model the roving wiretap authority on what we did in Title III so that we had a we required the government to clearly outline their need for roving wiretap and the reasons for it in the application that would give the judge a reason for issuing an order and do it in a way that made sense the administration for whatever reason was insistent on doing it the way they did and I agree with you it made little sense and it was bad drafting. There are two other significant changes to FISA that I'll briefly mention. One changes the rules for getting pen register and trap and trace orders under FISA. For some reason FISA was set up in such a way that it was much harder to get a pen register or a trap and trace under FISA than it was for an ordinary criminal investigation. And those rules have now been changed to make it easier to get a pen register and a trap and trace much more similar to what you can get a pen register a trap and trace order in an ordinary criminal investigation. In this section as well as a couple of other sections there is a requirement that the investigation if to the extent that the underlying foreign intelligence investigation is of a U.S. person that investigation cannot be based solely on activities that are protected by the First Amendment. Congress presumably put that in because it's aware of instances in which the FBI in the past has gone too far in its invocation of national security for surveillance. The FBI guidelines already contain those restrictions but again this is something that the courts are going to have to try to find a way to enforce. And then section 2 that was section 214 section 215 of the act substantially expands the power of the FBI to get records in a FISA investigation. The present law allows the FBI to go to the FISA court and on a certification that there are specific and articulable facts giving rise to believe that the person to whom the particular records pertain is an agent of a foreign power it allows them to get records from certain categories of businesses it's common carriers car rentals a couple of other specific defined categories of business hotel owners. What they've done is they first eliminated the category of business you can get any kind of record pursuant to this and secondly it has eliminated the requirement about the person to whom the records relate being an agent of a foreign power. All that's necessary now is that the FBI certify that the records are relate to a foreign intelligence investigation again with this requirement that if it's of the US person it not be based on first amendment activities. So what this means is that they now have the authority to get from the FISA court records relating not only the target of the investigation but anyone else whom they think is relevant to the investigation and I think this is a really substantial broadening of a secret power to get records and I say secret because the statute also requires that the recipient of such an order is forbidden to disclose it. And I will say that this was a this was a very hotly debated provision and it's a classic case of legislative compromise because the administration initially wanted mere administrative subpoena power with no court supervision whatsoever of their very wide wide ranging ability and authority to get to access records and the compromise was to require continued court supervision and court order in order to get the records. Let's move on we've got a few other sections we want to get to in the time remaining and Bob just mentioned pen registers and trap and trace in the FISA setting but there's also section 216 which deals with those in different context would you discuss that? Right there are you know pen registers are one of the more common surveillance tools that law enforcement agents get in so many criminal investigations and I think that judges are going to have to be confronting some possibly difficult situations and make some difficult decisions in the pen register context. There are two significant changes that were made in the pen register statute one to allow nationwide service of pen register orders and the only point on this that I want to highlight is that because we are allowing nationwide service of the pen register orders we have imposed in the definitional section of the authorizing court the court that's authorized to issue such orders that there must be a nexus between the issuing between the issuing the jurisdiction from which the pen register order is being issued and the offense under investigation so this is going to be a matter that judges are going to have to decide whether or not they have to get more facts from prosecutors that establish that the criminal offense under investigation really has a nexus to the court's jurisdiction and a certification of that fact may not be enough the court has to determine based on sufficient facts that there is a nexus with the crime under investigation and the issuing court so I think that this is going to be an issue that courts are going to have to look very carefully before they issue these nationwide pen register orders second of all the pen register statute has two new undefined terms added to it routing and addressing this is going to be these were very controversial terms long standing controversy it's been going on for at least four or five years within congress about whether or not to add these new terms to the pen register statute in an undefined fashion with because although the department has resisted for years defining those terms saying that well it is apparent to everybody what routing and addressing means that is that is not correct in the internet context the department's field guidance says that routing and addressing information does cover IP addresses port numbers and port numbers are those numbers that identify the kind of internet traffic that's being intercepted as an FTP you know FTP file that's being downloaded as an email traffic port numbers in an email it would include the to and from line but not the subject line nor the content of emails that's in simple on its face but there are huge areas of dispute over what's covered in the pen register statute now and can be collected by the government on pen register authority for example URLs the specific pages in a website that a person accesses is a URL content which is now clearly and expressly prohibited in the pen register statute from being collected on this authority or is it addressing a routing information or search terms that are used to browse a website or other header information for example when a user says I want this message to be urgent is the functionality of putting an urgent header on a message is that content or is that is that not and can it be collected on a pen register authority. Speaking of urgent we're going to be running out of time here so let's if you give a brief description of section two seventeen and then I want to give the last minute or two to Bob to describe a couple. And I'll talk very quickly the computer trespass provision was designed and intended to address an anomaly in the wiretap law and it will I know probably be the basis of enormous amounts of litigation on what it does is it allows consensual consensual wire tapping of on of those internet users who have unauthorized access to a computer computer system on the question is what's an unauthorized user. There is a defined term of in the statute for what that means but it's not particularly useful. It it also excludes from the scope of who an unauthorized person with unauthorized access is those with contractual or other subscriber relationships with the computer provider on and so I think that this is going to raise litigation over whether or not elapsed subscriber had an expectation of privacy or not. What about universities and libraries do users of university and library computers have an expectation of privacy and with in terms of contractual relationship of some kind either implied or express with the computer operator. Those are all going to be questions that essentially we have punted to the courts to figure out. Bob we've got about two minutes left and there's lots more to cover but tell us a couple of things that you think are most significant. I'll only have time obviously to basically mention a few other sections. There were several amendments to the Stored Communications Act which governs the government's ability to get access to stored electronic communications such as email messages stored on your ISP server. Section 209 brings voicemail messages which had previously been considered electronic communications subject or wire communications subject to the title three wire tap provisions brings them under the Stored Communications Act so that the government can now get voicemail messages off a voicemail system simply by a warrant rather than by a title three. Section 210 broadens the scope of information that the government is entitled to get by a request from internet service providers and others. It allows among other things for the government to get not only the name of the subscriber and so on but also the means of payment such as credit card and bank information as well as in addition to the present law authorizes you to get a telephone number now it can get something like the temporary IP address that you get every time you sign on to your internet service provider. This again is a broadening of the government's scope to get information independently. Section 220 permits nationwide service of warrants under this statute like Beryl talked about the Penn Register warrants and finally there is the sunset provision which applies to many of the provisions of the USA Patriot Act and as we're sunsetting I just want to highlight that many of these provisions expire at the end of 2005 the effect of this sunset provision is very unclear hopefully Congress will clear it up before then. Thank you, thank you both and what we didn't get to there are written materials associated with this program that people can refer to and will hopefully find helpful. Another section of the USA Patriot Act is raising some new issues that's title four dealing with immigration law before we turn to a discussion of those issues here's Paul Vampus with a look at two of the most important sections of the law dealing with immigrants. Section 411 expands the definition of engaging in terrorist activity by clarifying that an alien who solicits funds or members for or provides material support to a certified terrorist organization is an admissible or removable. The section also creates a new definition of a terrorist organization as one that is designated by the secretary of state as a terrorist organization under the process supplied by current law or for immigration purposes or as a group of two or more individuals that commits terrorist activities or plans or prepares to commit terrorist activities. Section 412 grants the attorney general the authority to certify an alien as a terrorist on the grounds of the Immigration and Nationality Act or because he is engaged in other activity that endangers U.S. national security. The attorney general must satisfy a reasonable grounds to believe standard in order to make that certification. The AG will review his certification of an alien every six months. Having met the reasonable grounds to believe standard such aliens can be taken into custody. The attorney general must then begin removal proceedings against the alien or bring criminal charges within seven days or release them. An alien charge but not found removable is released from custody. If the alien is found removable but cannot be removed in the reasonable future, the alien can be detained if the AG can demonstrate the release will adversely affect national security or the safety of the community. Judicial review of actions taken under this section is available only by habeas corpus with all appeals going to the DC circuit. With me now to discuss these sections are Owen Bo Cooper who is general counsel to the Immigration and Naturalization Service and David Cole who is a professor at Georgetown University Law School who both teaches and litigates in the immigration law field. Thank you both for being here. As the lead piece mentioned sections 411 and 412 are the key parts of Title IV section 411 deals with substantive changes and admissibility and deportability and 412 with some procedural changes. Let's look at the substantive provisions first. David would you elaborate on what some of the key changes there are? Sure, I think there are really three key changes in section 411 and they all deal with terrorism in some form. The first is and I think the most significant is that the law essentially enacts the principle of guilt by association for immigrants. Under prior law immigrants could be deported if they supported an organization in conducting terrorist activity or if they supported an individual in conducting a terrorist activity or if they themselves engaged in terrorist activity but there always had to be that nexus. It had to show some nexus between the aliens conduct and terrorist activity. Under this provision the government no longer has to show any nexus whatsoever between the aliens activity and terrorist activity. So for example if the alien provides support to a group that's been designated as a terrorist organization that is a strict liability deportable offense there is no defense even if the alien can show that his support did not in fact further any terrorist activity even if he can show that his support was in fact intended to and did reduce this group's engaging in terrorist activity he is deportable for having supported a group that has been designated a terrorist organization. So that's the first change and I think a very significant one and one that raises very serious constitutional concerns that I hope will be able to talk about a little bit later. The second change is that it expands the definition of terrorism and the definition of terrorism for immigration purposes is really one that I think people would be quite surprised about if they actually paid attention to the law because it includes things that people ordinarily think of as terrorism like hijacking a plane, assassination, et cetera, attacking civilians but it also includes any use of a firearm, weapon or other dangerous device with intent to endanger a person or property, essentially. And there's an exception for those uses that are for mere personal monetary gain. So an armed robbery would not constitute terrorism. But a bar room brawl in which an immigrant, a permanent resident immigrant picks up a bottle and threatens another person with it, he would be considered a terrorist. So it's a very, very broad definition of terrorism. Now no one is defending bar room brawls, but the question is do the draconian consequences that flow from the term terrorism are they justified when you're talking about domestic disputes, bar room brawls and the like? The third change in the Patriot Act concerns the grounds upon which we can keep people out of the country. Grounds, they're called grounds of inadmissibility. And what it does is it resurrects a concept which was in the law from 1950 to 1990 but which we repealed in 1990 which is ideological exclusion. The notion that you can keep people out for their ideas and only for their ideas. The provision provides that the Secretary of State can deny admission to any alien who endorses terrorist activity or terrorist organization in a way that the Secretary determines, undermines our ability to fight terrorism. So this is what we're talking about is keeping people out not for engaging any kind of conduct, not for threatening to engage in any kind of conduct but for pure speech. And the speech can include endorsing a terrorist organization but then you have to think, well, how is a terrorist organization defined? It's defined as any group of two or more people who engage in terrorism and remember how terrorism is defined, basically any use of force. So any person who endorses any organization involved in any kind of civil war is potentially barred simply for making that statement if the Secretary of State decides we don't like that statement. So those are the three. It seems to me the guilt by association as a grounds for deportation, expanding the definition of terrorism. It was already very, very broad but expanding it still further and allowing the Secretary of State to keep people out of the country solely for their ideas. Bo, I suspect you may not agree 100% with David's characterization of some of these but are those the major, areas of major change and how would you describe them? Yeah, I agree that those are the areas of major change and I don't agree entirely obviously with all the characterizations or all the predictions about what will, about how they'll be used or about how they'll be evaluated once they reach the administrative and Article I courts. But yeah, I agree that those are the basic areas in which the law affected prior law, the grounds for inadmissibility to the United States, the definitions of terrorist activity and engaging in terrorist activity and then the definition of a terrorist organization which has a lot of the sorts of consequences that David was describing. Here's a couple of ways I would differ a bit with how those are characterized. First, I think it would be a bit misleading to regard the issue as one of guilt by association and focusing first on the word guilt, I think it's critical to identify the legal question that's getting asked. This is not an inquiry into whether someone is, of course, guilty of a crime. The question that is before administrative adjudicators and that can go before courts is whether or not a person who's not a citizen of the U.S. ought to be entitled to remain and of course there are a great number of protections that apply to the asking and answering of that question. It's a very different one for constitutional and other purposes from the question of whether someone is guilty. Second, with respect to the definition of terrorism, before the Patriot Act, terrorist activity was defined to include an unlawful activity involving the use of an explosive or a firearm. And what Congress did was to, as David said, expand that definition to include unlawful activity that involves the use of any other dangerous weapon. I don't think the goal is nearly so much to help stamp out Barbrain Brawl so much as to ensure that if an activity, if an unlawful activity is carried out with something that's dangerous but that's not an explosive or a firearm in a way that does support, in a way that is involved in terrorist activity, then that can be included as well. For example, a box cutter or a jet plane that's loaded with fuel, both devices that would not have been included under the previous definition of terrorist activity. And so I think that's the sort of aim that Congress was after in that. And then with respect to the question of attaching consequences just to someone's ideas, I think Congress was trying to do something a bit more precise there and suggest that people's affiliations with terrorist organizations in ways that involve leadership in the organization or that involve material support to the organization ought to be given immigration consequences under certain circumstances. And here, it's not simply the association that's at issue, it's the role in the organization. Or it's the material support or activity combined with the effect that is relevant. And in particular, the Secretary of State's got to find that the material support, for example, to a terrorist organization is undertaken in a way that undermines the U.S. efforts to eliminate terrorism. There also were some changes that Congress made to how you decide when you're dealing with a terrorist organization. Prior law had a provision, Section 219 of the Immigration and Nationality Act, that permitted the designation of a foreign terrorist organization. And that designation has a number of consequences, not just immigration consequences. And that process remains intact. But that designation process is a fairly complicated one. It involves extensive consultations among the Secretary of State, the Attorney General, and the Secretary of the Treasury, the compilation of a fairly extensive administrative record and a determination that it's a foreign organization that engages in terrorist activity, as defined by the Immigration and Nationality Act, and that the activity, the terrorist activity, threatens the security of U.S. nationals or the security of the United States. And as I've said, that process is one that remains intact, but it's one that has some limitations, including the fact that it's a fairly lengthy process, and therefore it's useful for particular purposes, but it's not necessarily the most useful, I think was Congress's view, in dealing with emerging or new organizations. And so Congress added a couple of other ways to figure out when you're dealing with a terrorist organization. And one is that the Secretary of State has the authority to designate for immigration purposes only an organization as a terrorist organization in consultation with the Attorney General, not involving the Secretary of the Treasury. Another is that, and both of those designations have continuing consequences. The other possibility is that it is possible now for the government to demonstrate, in the context of a particular case, an absent, elasting designation by the Secretary that any group of two or more persons who's engaged in the activity, that the engaged in terrorist activity can be regarded as a terrorist organization. And that, if I may, that sort of moves us into the procedural pieces of the Act, Section 412. Can I just respond briefly, because I think some of the issues on the substance probably would affect one's understanding of the procedure. I think we shouldn't just leave it if we can. Do we have a second? Go ahead, I was gonna come back to it, but. Well, I mean, I think that the both says, well, this isn't really guilt by association because we're not holding people guilty, we're simply deporting them. But I don't think that really is a sufficient response because when you look at the Supreme Court's guilt by association jurisprudence, the Supreme Court has held that you cannot hold someone responsible for the acts of others in the group. Absent are showing a specific intent to further the illegal ends of the group. You can't use that association to hold them criminally responsible, but you also can't use that association to deny them a job. You can't use that association to deny them access to a meeting room in a public university, in Healy versus James. You can't use that association to impose a civil tort remedy in NAACP versus Claybourne Hardware. You can't use that association to deny them a passport. There's a whole range of wholly civil things that the court has said, the imposition of even a civil, you know, a minor civil negative consequence on the basis of association violates the First Amendment principle of freedom of association and the Fifth Amendment principle that you are supposed to be held responsible for your own acts and not for the acts of others. And this law, I think, runs roughshod over that principle. It's not enough to say it's not criminal, it's civil. Secondly, as to the designation point, which Beau raised, which is an important point, that they've expanded greatly the power to designate groups as terrorist organizations. There's no requirement that this would be a group that engages primarily in terrorist activity. All that the Secretary of State has to find is that the group has engaged in the use or threat of the use of weapon against a person or property. So any organization around the world that has ever engaged in that kind of activity, any organization that's engaged in a civil war, the National, the Northern Alliance in Afghanistan is potentially a terrorist organization, the Contras in Nicaragua, a terrorist organization. Now you can say, well, we're not gonna designate the Northern Alliance, the Contras. Well, you can just go back to the 1980s. Every year in the 1980s, before the African National Congress came to power in South Africa, the Secretary of State designated it as a terrorist organization. Why? Because one of the things it did to fight for equal rights and to fight against apartheid was engage in military activity, which was some of it, which was aimed at civilians, terrorists or activity. But most of what it did, the majority of what it did was lawful anti-apartheid work. Thousands of Americans supported that. Nelson Mandela came here and spoke in Yankee Stadium, passed the hat, thousands of people gave money. And now we're saying the Secretary of State can simply designate a group like that as a terrorist group, as the Secretary of State did. And then all of those people are, if they're non-citizens, are presumptively deportable. To me, that's guilt by association. It doesn't mitigate it to say, well, we're not actually throwing them in jail. We're just kicking them out of a country that they may well be permanent residents in and have lived here for 20 years. Let's move to the procedures because I suspect there'll be some controversy over those as well. Beau, would you outline for us some of the changes there? Yeah, the procedural changes are principally contained in section 412 of the Patriot Act and those concern detention. I think here Congress was trying to ensure that it would remain within the executive authority to keep in detention during proceedings and in some circumstances, even after proceedings, persons who are believed to be threats to the national security. The basic process is one called certification. And as the introductory materials pointed out, the Attorney General can certify an alien where there are reasonable grounds to believe that the alien is described in one of these inadmissibility categories for having engaged in terrorist activities or described in one of the deportability categories for engaging in terrorist activities or is engaged in any other activity that threatens the national security of the United States. And the effect of this certification is to make custody mandatory throughout the course of the proceedings or at least so long as the Attorney General certifies that the alien continues to be in one of these categories. Now, there is a detention authority that attaches to executive branch immigration proceedings generally. But typically, with some exceptions that we may talk about later on, typically that's a decision that's left to executive decision-making, whether or not to keep a particular person in custody. What this certification process would do would be to add this category of aliens to a group that already under the statute is subject as a mandatory matter to custody during the course of their immigration proceedings. And one key difference, one key distinction about Section 412 is that there's a particular provision for judicial review. An alien who is certified by the Attorney General in the terms I've described can go into the District Court and ask for review through a writ of habeas corpus of his or her detention, including the merits of the Attorney General's certification. And then the Congress provided for appellate review of any negative District Court decisions but only into the District of Columbia Circuit. But again, that review does include the merits of the Attorney General's certification. The person doesn't have to have been placed in proceedings for the reasons that underlie the Attorney General's certification. If someone, for example, is here as an overstay of a non-immigrant or temporary visa, then that alone is a basis to put them in proceedings. And that would be the basis for the court, for the executive going forward and trying to remove the person or could be. They could, however, the Attorney General could certify the alien under this provision and that would deal with the person's custody over the course of proceedings. And so in effect, because of the judicial review process, while the government needn't charge a person with the activities that were the basis for the certification, the evidence of the reason regarding the person's security threat are subject to review in the courts through habeas. One of the issues that the courts will have to consider, I think, is what the standard means, what is reasonable grounds to believe mean. But those are the basic features of Section 412. There also is a provision that authorizes the Attorney General under certain circumstances to keep in custody even after an order of removal, a person who cannot be returned to, who cannot be removed from the United States. And that's true whether or not the person is eligible for relief from removal or has been granted relief from removal. The extent to which the government could keep someone in custody for lengthy periods of time post-order have been the subject of litigation, including Supreme Court decision of the last summer. This is a somewhat different context because here Congress gave the Attorney General a specific statutory authority to continue that custody under certain circumstances. There's a review half yearly, the opportunity for the alien to present evidence on his own behalf and so forth. But I think those are the basic features of Section 412. David, comments? Well, yeah, those are certainly the basic features. I think the real question here is why do we need this provision? And if you look at what authority the INS had prior to this, I think it raises very serious questions about the ultimate constitutional validity of this provision. Before the Patriot Act, the INS had the authority to detain any alien who was in deportation proceedings if they could show that he or she presented a danger or a flight risk. That's all they had to show, same as in a denying bail if the person's a danger or a flight risk. It's a form of preventive detention because these are aliens for the most part who are in proceedings. We haven't yet determined whether they're gonna be able to stay here or whether they should go. But while they're in proceedings, if we can show that they're a threat or a danger, we can keep them locked up. But the INS had to make that showing, had to make it on the record. The alien had an opportunity to confront the evidence and immigration judge would assess the evidence. There was an appeal, you could go to the courts, et cetera. So they already had the authority to lock up any alien that they could show posed a threat or a flight risk. Under this law, it gives the Attorney General the power to lock up an alien without showing that he poses either a threat to anybody or a flight risk. All he has to do is say, I have reasonable grounds to believe that you fall within these very broad terrorism grounds of the immigration act. Well, you might think, well, anyone who falls within the terrorism grounds of the immigration act must pose a threat to national security. Well, not necessarily given the breadth of the definition of terrorism that we just talked about. Someone, a woman who picks up a knife and threatens her husband in a domestic dispute is potentially subject to mandatory detention pursuant to certification by the Attorney General because he would have reasonable grounds to believe that she was described in the provisions. And he doesn't have to show that in fact she poses a threat to anybody. Similarly, someone who simply made a donation to an organization which the government contends has some subpart that is engaged in a civil war, even if that donation was for holy law selectivity. Now that person might or might not be deportable, but does that person need to be locked up? Does that person only needs to be locked up if they either pose a threat to the community or national security? Let me ask, since that alien has this habeas option or opportunity, are judges going to be asked to interpret how broad this is and what the standard should be? Well, they're gonna, I mean that's a good question, very good question. They left it, what they said was there's habeas review. They didn't, and they said there's habeas review of the merits of the Attorney General's determination. So the question will be what do the courts have to determine? And on the face of the statute, it says the Attorney General can keep a person in if he has reasonable grounds to believe that she fits within the terms of the statute. So, and a woman who got involved in the domestic dispute would fit within the terms of the statute. So the question then is, can a judge say, well, yes, she fits within the terms of the statute, but she doesn't pose a danger to the community, she doesn't pose a flight risk, why are you preventively detaining her? And I think I should note that immigration proceedings typically or very often can last years. We're not talking about a kind of denial of bail for 30 days or six months before a trial. We're talking about detention for, in many cases, four or five years at a time, while we go through the process to decide whether this person should be deported or not. So I do think judges will have to foresquare address the question, is this in fact constitutional? Because the Supreme Court has said, preventive detention is only permissible where you either have a danger to the community or a risk of flight. Let me ask Bo, if you have any closing comment on that, as far as what judges are gonna have to look at. Yeah, I think it's clearly gonna be an issue for judges what the standard means, reasonable grounds to believe. That's a question that's been regarded by the courts in other contexts. And certainly one that is gonna be resolved and best resolved in the context of an actual controversy with full briefing. I think it's sensible to predict that the government's position, and based on what I understand of the case law, to be that that's going to equate roughly to the probable cause standard for warrantless arrests. And there's some authority to that effect. There are also some authority that it's a slightly lesser or qualitatively different standard. But that's something that the courts are gonna have to look at. That, by the way, is not an unusual standard to exist in the Immigration and Nationality Act. Persons who are, persons for whom there's a reasonable ground to consider that they pose a threat to the national security are right now ineligible, for example, for asylum, ineligible for withholding of removal. Persons who are ineligible for admission based on terrorist activity are ineligible for a remedy called cancellation of removal. So this is a standard, particularly when dealing with national security threats that is already laced through the Immigration and Nationality Act. But yeah, that's certainly one of the things that courts will need to have a look at. And I note that courts will have an opportunity to look at that as a practical matter. In most instances, I think more rapidly in the context of a particular person's case, then they would have, if the detention decision were made under the existing rules for detention, where those decisions are, in most cases, subject to review by an administrative immigration judge, an administrative appellate tribunal, and then in certain circumstances in the courts. And so it will be incumbent, whatever the standard for reasonable grounds is, for the government to lay bare its reasons for thinking that there are such grounds, I would imagine fairly early in the process. Well, I wanna thank both of you, Bo, and David for your quick overview of what are gonna be difficult issues for the judges in our courts to wrestle with. We're gonna move on and let me say that international terrorism is a global phenomenon, as we all know, and as we've seen in recent months. But regardless of what the terrorist organization is called or where it's based, what all terrorists have in common is the need for money. And Title III of the new law is aimed at denying terrorists those funds and prosecuting those who help them obtain the money. Here's a description of some of its key provisions. The law aims to staunch the flow of money coming through both legal and illegal channels. Section 317 gives U.S. courts long-arm jurisdiction over foreign banks opening U.S. bank accounts and foreign persons committing money laundering offenses in the U.S., among others. Section 318 and 319 go after money laundering schemes using foreign banks. 318 expands the definition of financial institution to include banks operating outside the United States. And 319 allows money deposited by foreign banks in interbank accounts in the U.S. to be treated as if it were deposited in the U.S. for purposes of the forfeiture rules. Attempting to deal more directly with the financing of terrorist activities, Section 320 allows the U.S. to institute forfeiture proceedings against the proceeds of foreign criminal offenses found in the United States. And Section 371 creates a new offense involving the bulk smuggling of more than $10,000 in currency either into or out of the United States. With us to explore and explain these changes are John Roth, head of the asset forfeiture and money laundering section of the U.S. Department of Justice, and Bruce Zageris, a partner at Berliner, Corcoran and Rowe, and an internationally recognized expert in money laundering law. Money laundering is perhaps the most extensive title in the act. John, can you sum up what the main purpose was? Sure. Unlike many of the other provisions within the Patriot Act, it wasn't necessarily devoted exclusively to terrorist financing or terrorist money laundering. Rather, what it tries to do is amend the money laundering laws, which have not had a major fix since 1986. It's got two purposes. Essentially, it's to prevent criminals who make money overseas from using the very powerful U.S. banking system as a haven for their ill-gotten gains. And secondly, it prevents U.S. criminals who derive proceeds here in the U.S. through various crimes from using overseas or offshore banks to hide their money from a lawful forfeiture or a money laundering prosecution. Okay. There are a lot of different sections in the act. Several deal with forfeitures, and that's an area that, of course, courts get involved in. Bruce, would you describe some of those sections? Sure. One of them is section 319, which enables, treats interbank accounts or correspondent bank accounts in the United States as being U.S. property. So that will enable prosecutors to more easily forfeit that property. And it also imposes a lot of record keeping requirements. For instance, U.S. banks now have to maintain very detailed records on the owners of correspondent banks and the correspondent banks must appoint a person in the United States to accept service. When a U.S. bank with the, or financial institution that has one of these correspondent bank accounts receives a request from the government to turn over information, they must within 120 hours turn over that information or face various draconian penalties, including they've got to terminate the account within 10 days. Or if they don't do that, they face other penalties. There's also a safe harbor for U.S. banks that do terminate the accounts. 319 also provides for substitute forfeiture so that if one of these correspondent bank accounts, the money is gone, that enables the prosecutor to reach out or the court to also restrain proceeds even before trial or to order that a person must bring back assets appending a trial. So 319 is quite broad. Let's clarify just what is a correspondent account. Okay, yes, that's a good question. The legislation actually uses the term interbank account. That's basically where a foreign bank will establish an account with a U.S. bank and that account is on behalf of all of its depositors. So one correspondent bank account may have hundreds or even thousands of depositors that are actually benefiting from that correspondent bank account. In the past it's been used basically to move money without the U.S. authorities being able to actually determine all the beneficial owners of that one bank account. So this is now will penetrate that difficulty and it will give U.S. prosecutors and U.S. courts an opportunity now to determine who the owners are to get the information and to prevent the money from leaving the United States. Because as John said, one of the purposes of this legislation is to prevent the U.S. from being a haven for money laundering. So the U.S. bank would be required under a court order than to freeze that money in effect, is that? That's correct. And if I could just expand on that and give some context to how this happened. This actually derives from Senator Levin's extensive hearings on interbank or correspondent bank accounts and the abuses that have occurred by offshore banks who are using very large commercial U.S. banks essentially to launder money. And time and again what happens is prosecutors are stymied because the interbank or correspondent account is actually in the name of the foreign bank as opposed to the name of the individual who we're investigating. So for example, if we attempted to freeze or seize the assets contained within the interbank account, we would be stymied because the foreign bank would technically be the owner of that account even though it's holding it on behalf of the criminal. So it's an extremely powerful provision that we have been able to use or that we've just received for a number of different kinds of money laundering crimes. The second provision that I think is extremely powerful is the record keeping provision. These banks are now required to accept service of an administrative subpoena by the attorney general or the secretary of the treasury for bank records and not only bank records that they maintain within the United States, but also bank records that they maintain in their host country. So for example, if we were investigating money laundering involving a Swiss bank, instead of using the mutual legal assistance treaty a very long and cumbersome process, oftentimes inappropriate and a fast moving criminal investigation, we could simply or the attorney general could simply issue an administrative subpoena and require at essentially the risk of that bank losing its inner bank account in the U.S., require that bank to turn over records that it maintains, not in the United States, but in a foreign country. Extremely powerful tool, I think, very useful for prosecutors, but not without controversy. And there is one provision in 319 that allows the attorney general with the consent of the secretary of the treasury to suspend one of these forfeiture proceedings or to terminate it, if there's a conflict of law with a country where the foreign bank is located and if the attorney general believes that it is in the interest of justice to suspend or terminate and in the national interest of the United States. So it will be interesting to see how the attorney general exercises this discretion because there will be some controversy. There are several other forfeiture provisions in the act. Let's run through just a few of those, if we could. Yes, one is Section 320, Proceeds of Foreign Crime. What this does is it amends 18 USC 981 and allows the United States to now forfeit the proceeds of certain foreign offenses. And that is, it's very broadly stated, proceeds that are derived from traceable to or that are used to facilitate offenses. And the foreign offenses are those that are derived from narcotics or any offense that's punishable by a term of imprisonment for life or one year. And if that crime is punishable in the United States by imprisonment for one year. So that's very broad. There's a companion provision in 315, which also expands the foreign predicate offenses for money laundering, which is 18 USC 1956. So this is going to mean that now it will be much easier for prosecutors to either bring money laundering or forfeiture actions against property in the United States that are the result of these proceeds of crime. John mentioned, for instance, that there have been these transnational corruption cases where it's been found that US banks have been catered. They have these private banking arms that reach out to public figures. And then when US prosecutors have tried to either prosecute or to forfeit those funds, the law sometimes isn't as clear as it could be. So this clarifies it. One other section that I'll briefly mention is section 322, which provides for extending the Fugitive Disentitlement Act. This is the act that prohibits fugitives from participating in forfeiture actions in the United States. So now this has been extended to corporations where a fugitive is a majority shareholder. The only potential problem that I see with this is that some courts now, for instance, recently an Austrian court refused to extradite an American national charge with a massive fraud because the Austrian court didn't like the Fugitive Disentitlement and said that that law precluded the fugitive from getting due process in the United States. So this is, I think, a potential limitation on extending this law. Let me ask, on the forfeiture of proceeds of foreign crimes, walk me through that. How is that gonna show up in a court here in the United States, and what is the prosecution going to have to show in order to have the court approve the forfeiture? Sure, I think the best example would be a public corruption case, for example, if there is evidence, for example, that a significant foreign figure ahead of state or someone that's associated with the head of state has siphoned money out of the public till in a foreign country and has deposited that money in the United States. Previous to the enactment of the Patriot Act, we were essentially unable to recover that money and then the idea being that we'd share it back with the victim nation to try to make them whole, essentially the United States banking system was a refuge for these kinds of activities. So the goal here was to establish a dual criminality element, in other words, that it is, for example, a public corruption defense that's a crime in that foreign country, as well as a crime within the United States, had it been committed here. And then it's a straight money laundering or forfeiture case, the kinds of things that we'd normally have to prove, and the kinds of defenses that would be available to the owner of the money as far as an innocent owner and those kinds of things. So really the only thing it changes is the fact that the mere fact that it is derived in a foreign country does not prohibit us from going after the money. The politics of this are that, for instance, right now, there are a number of Central Asian countries that are saying, look, we're helping you now with your counter-terrorism war, and we find that there's a lot of our money that has been stolen by corrupt former officials, and it's in the United States. We want you to help us get that money back. And so these provisions facilitate the U.S. government helping other governments locate and freeze and repatriate that money. And that's an interesting segue because there are a couple of provisions that could bring us into conflict with foreign governments and or foreign courts. John, would you describe what those are? Well, certainly I think that Bruce has highlighted probably the main conflict, which is under section 319. The fact that, for example, we require a foreign bank, and I pick on the Swiss not because that's ever an issue, but for example, under Swiss domestic law, it might be illegal for the Swiss to turn over those records independent of a mutual legal assistance treaty. So there is an inherent conflict there between the two laws. Additionally, in the forfeiture side of 319, where we are able to forfeit money in a corresponding account that was actually deposited in the foreign bank in a foreign country that would otherwise have been untouchable. Certainly you can envision a scenario in which the account holder chooses to sue the bank in the foreign country and say, we do not recognize the section 319 of the Patriot Act and the bank essentially is on the hook for not only the money that they gave the United States, but also in a lawsuit in their country. So I mean, these are our significant tensions and there's a significant controversy. I think we're gonna be using this judiciously though to try to avoid that. And what about some long-arm jurisdiction over money launderers? Sure, I mean, there's a couple of things. We've fixed an issue that we believed was a long-standing irritant. It's not a major provision, but it's one which we believe needed to be fixed. And that's contained in section 317, the long-arm jurisdiction over foreign money launderers. And it essentially amends 1956 B, which is the civil money laundering, not the criminal, but the civil money laundering provision. And it provides for jurisdiction for civil cases where a transaction, a financial transaction was committed in a whole or in part in the United States or that the person converts U.S. money or if it's a financial institution they maintain a correspondent account in the United States. And this really stems from a case, United States versus Swiss American Bank in which prosecutors in the District of Massachusetts were able to obtain a final order of forfeiture for about $5 million in an Antigua Bank. Essentially Antigua, the Antigua Bank chose not to recognize that forfeiture. We had the ability either to sue in Antigua and we weren't optimistic about our chances there, or attempt to sue in the United States. The ultimate judicial finding was that we did not have jurisdiction to sue an Antigua Bank for actions that occurred in Antigua and this fixes that problem. The second is contained within section 323 which is enforcement of foreign judgments. And again this segues on what Bruce was talking about. Last year the Civil Asset Forfeiture Reform Act was enacted which for the first time allowed us to enforce foreign judgments. So for example, if the Swiss again had a forfeiture judgment against money that was contained within the United States or resided within the United States, for the first time last year we had the ability now to forfeit that money and again share it back to the host nation. We were one of the few countries that did not have that so this sort of brought us into the modern era. What this Patriot Act amendment does is it allows us to have a pre-judgment restraint on that property now just like we have pre-judgment restraint within the United States because we found that by the time you get the final order of forfeiture in the foreign country many of those assets are simply dissipated. And secondly it fixes a problem within the statute that required actual notice to the defendant or to the property holder of the property instead of constructive notice which is the US standard. So it simply harmonized the US and the foreign sides of that. Bruce, any comments on those provisions? I think some of them will be controversial with foreign courts, especially where there are powerful stakeholders. I think also some of these provisions could be also accomplished by participating in some of the multilateral conventions such as especially the 1990 Council of Europe anti-money laundering convention. But I think the United States is looking to do that. But certainly the international standard is to help foreign governments in restraining and also in recognizing foreign judgment. So I don't think, I think these are part of the trend. All right, there's a few other provisions that maybe aren't quite as wide sweeping but are significant, I suspect. John, 316, 373. Sure, actually before we get to that there is one provision within the financial portion of the Patriot Act that I think Bear has mentioned because it is actually directed towards terrorist financing and that's a section 806 for whatever reasons it's not contained within Title III. I think that evidence is some of the confusion that during the passage of the Act. But essentially this is addressed as a problem that we had after September 11th, the nightmare scenario. What if we found a bank account within the United States in the name of Osama bin Laden? But we were unable to trace the money that was in the account to actual crimes committed by Osama bin Laden, what would we do? So the fix is to allow forfeiture of any assets of any organization that's involved in the planning or execution of terrorist acts. So essentially it tracks the RICO forfeiture statute which says you have an enterprise here, it's an illegitimate enterprise, we believe that we can forfeit any assets of that illegal enterprise without showing that it was used as proceeds or to facilitate specific criminal acts. It's a very, very powerful statute. I don't think it's gonna be used much given the way terrorist organizations work but it's out there and there is an opportunity for it to be used. A similar standard of proof in terms of demonstrating that that is a terrorist organization? Correct, correct, under civil forfeiture it would of course be a preponderance in criminal as well. It would be a preponderance of the evidence. The companion to that is section 316 which you mentioned which essentially gives an individual who has assets seized by the United States the ability to challenge that. And it's essentially designed to inject due process not so much into the judicial, civil, or criminal forfeiture that we're familiar with but rather into the presidential declarations that are executed by the Office of Foreign Asset Control of the Department of Treasury. And that's what you've seen in the headlines recently where Treasury will go and freeze and seize assets. It's simply done by a presidential declaration as opposed to a judicial order. And this was Congress's attempt to inject some due process. There's an innocent owner defense as well as the ability for an owner of property to come in and say, one, it's not me or two, it was done in error. Well thank you. Bruce, we've got a few minutes left. There are a couple of other provisions that we talked about before we went on the air that may be worth mentioning, 371, 372 perhaps. Exactly, 371 for instance is the bulk cash smuggling. 372 is a companion that provides for a forfeiture of the same. This provision was enacted basically to criminalize persons who bring in more than $10,000 in currency or monetary instruments knowingly with the intent to violate the Currency Reporting Act. What was found in the aftermath of 9-11 is that a lot of the terrorists smuggled in bulk their cash. And this also will help fix the 1998 Supreme Court decision in Bajacajan because 372 requires courts to forfeit all the property that is used in this cash bulk smuggling or is traceable to it. The problem with Bajacajan was that Supreme Court said it would be a violation of the Eighth Amendment to freeze all of property in just a reporting case. But now Congress has explicitly said that's the way they want it to work. And so unless a court finds that this still violates the Eighth Amendment, the prosecutor is now more easily going to both be able to prosecute and now it's made punishable by imprisonment for five years or more and they're going to be able to reach out and now forfeit the proceeds of cash bulk smuggling. So Congress has characterized this not just as a reporting case now in effect to get around or to avoid the Bajacajan. Exactly and I should point out too that it is very broad in the sense that it's anybody who not only has the money on them but uses luggage or merchandise or even attempts some other way to send it through the mail. Any of those are going to be now a much harsher criminal offense not just a little reporting matter. We've got about a minute left and I've got a very complex topic and I'll just throw this up and see if anybody has a sound bite they wanna offer. Donations to charities and First Amendment issues and how the act may play there. Comment, either one of you? I think that there's gonna be a lot of litigation both in this country and overseas. I mean, because there are a lot of substantial and even smaller charities and there is a question about whether Americans should be able to contribute to charities of their choice or what the standard should be in prohibiting those contributions and there's also a political problem in that many of the charities are helping countries that are potentially vulnerable to terrorist activities and without this charity, without foreign assistance they're going to be more vulnerable to the calls of the terrorists which we wanna prevent. So there's not only a constitutional but there's also some interesting political issues. I think it's gonna be a case by case basis. It's not so much the laws, it's just the investigation, the execution of the laws that's going to really tell how serious of a problem it'll be. It's also interesting that some countries including some of our EU allies have chosen to designate only certain terrorist organizations and not others or they've only designated the arm of Hamas, the foreign arm and not some of the rest of it and so these are interesting diplomatic issues as well. Thank you, Bruce and thank you, John. Finally today we're gonna shift our focus from the USA Patriot Act to another issue that's raised a lot of concerns and discussion since the tragic events of September 11th. That's the president's military order authorizing the use of military commissions to try some suspected terrorists. As of January 17th, the date we're taping this program, no cases have been referred to a military commission nor have the procedures been announced. Before we explore the issues raised by the president's order, Paul Vambus has this brief look at the history of military commissions. Military commissions are older than the republic. During the American Revolution, George Washington authorized trials by a board of officers, a military commission in all but name. The term military commission came into use in the Mexican war and by the civil war was the accepted description. This was also the period when the US Supreme Court ruled in ex parte milligan that civilians could not be tried by military commissions if the civil courts were open and functioning properly. Military commissions have the authority to try persons not otherwise subject to military law, for violations of the law of war and for offenses committed in territory under military occupation. The best known modern use of military commissions was during and after World War II when they were used to try a group of Nazi saboteurs who had infiltrated the US and later Japanese general Yamashita for war crimes committed by his troops in the Philippines. In both cases, the US Supreme Court upheld the jurisdiction of the commissions to try the accused. Here to discuss some of the issues surrounding the use of military commissions to try suspected terrorists are John Yu, Deputy Assistant Attorney General in the Office of Legal Counsel at the Department of Justice and Peter Raven Hansen, Professor of Law at the George Washington University. John and Peter, the president's order authorizes military commissions to try persons for violations of the law of war or other applicable laws. And the order makes subject to military commissions, potentially at least, persons who, and I'm paraphrasing, are not US citizens whom the president determines are or were members of Al-Qaeda who engaged in or aided and abetted acts of international terrorism that caused or were aimed to cause harm to the United States and persons who have knowingly harbored such persons. And the president's order also states that military commissions, quote, shall have exclusive jurisdiction, unquote, in cases referred to them and that the individual defendant, quote, shall not be privileged to seek any remedy or maintain any proceeding directly or indirectly and then goes on in any court of the United States or any court of any foreign nation or any international tribunal. Now, the order raises a number of questions and we're not gonna have time to get to all of them today, but let's start with a basic one. The video piece mentioned several Supreme Court cases that have addressed military commissions most recently during and following World War II. Did those cases settle the issue, John? Thanks, Sean. We think they do. It's not just the Supreme Court cases. In fact, we think all three branches have approved the constitutionality of the military commission. As you mentioned, also as the video piece mentioned, there's a long practice of executive branch use of the military commissions in almost every major war. The presence of authorized use include General Washington, General Jackson, President Lincoln, President Roosevelt. They've been, as I said, used in conditions of declared war and undeclared wars. Second, Congress has explicitly authorized their use in section 821 of Title X when the predecessors to the UCMJ were being enacted by Congress. There's a specific provision inserted that said that nothing in this act will be construed in any way to infringe upon the use of military commissions that they've been used by the president. And then third, as the video piece made clear, there are several Supreme Court decisions. The two key ones, Ex parte Kirin and then the trial of General Yamashita. Ex parte Kirin was a case where German and Nazi saboteurs were made onto the United States. One of them claimed to be a citizen. And the Supreme Court made clear that you could use military commissions to try people for violations of the laws of the war, even if one of them had been a citizen for acts within the United States and the trial was held within the United States. So the constitutionality of the commissions we think is rather settled and because of these sort of definitive announcements of all three branches of government. Now, Peter, of course, Ex parte Milligan is another case that comes into play here. How does it fit into this constitutional question equation? Well, I'd agree with John that it's long established that you can use military commissions in the field when it's necessary to do so because the courts are closed or because they're untrustworthy in occupied territory. But Milligan said that when the courts are open in the United States, you shouldn't use a military commission. And the Kirin case was an exception to that open court and it's an exception that I think should be narrowly drawn because military commissions are an extraordinary departure from the constitutional preference for trial in an open court. The exception was for enemy soldiers, members of the enemy armed forces of a nation with which we were at war. That's how queer and distinguished Milligan. And it's a distinction that limits the use of military commissions in two ways. It means that we only will have them, this extraordinary departure from the norm for the length and breadth of a declared war, which has an end point, which is the proclamation of peace. And it also means that we'll know who is subject to them because they are members of the armed forces of the enemy. The problem is that neither of those limitations works if we use military commissions under the Bush order in the United States. There's no end to the war and terrorism. And the group that you described who are subject to the military order is a motley collection of card carrying members of Al Qaeda or how do you identify them? People who aided international terrorists, people who harbored them. It's not even limited to the people on whom Congress effectively declared war on September 18th who are only the perpetrators of the September 11th attack. So I would limit queer into its facts, which is use them against identifiable enemy belligerents during a declared war, which means that you could use military commissions abroad and for people apprehended abroad in the field of combat, but you would stop at the water's edge. One depends which case you think is more prevalent, Kieran or Milligan. Kieran is the one that's later in time and Kieran the Supreme Court read Milligan to its facts and you would like to do the same to Kieran. But as the law stands now, Kieran is the sort of definitive word on military commissions and they make clear that you can use them within the United States and even if there were a citizen involved. I think the way to distinguish the two cases that Kieran made clear that you can use them so long as they were enemy belligerents, as they were people who were actually partaking in hostilities against the United States. Milligan, the facts were not so clear, at least as the Kieran court portrayed it, that the defendant in that case was actually taking up arms and joining the forces of the enemy. So I think that's how you could harmonize the two cases rather than trying to read one or the other strictly to its facts. The second thing is in this war, it's not yet contemplated that the order will apply to individuals that Peter's worried about that he feels ought not to come under there so far. You know, as you look at the practice as they're going to put into effect to Masawi and the shoe bomber in Boston have not been subjected to military commissions. And most of the individuals we have detained in Afghanistan are being taken right now to Guantanamo Bay. And most of those individuals were people that are captured in the course of military operations. I'd like to come back to what we've touched on here and that is to whom or who is gonna or might be actually subject to military commissions but an issue of more immediate significance perhaps to our audience, the federal courts is how the federal courts might play a role in this. The president's order by its terms says military commissions have exclusive jurisdiction and at least arguably purports to cut off any other type of judicial review. Peter, how do you see that? I think the order tried to suspend the writ of habeas corpus and it failed ignominiously. It says and it's sweeping language that no one shall be privileged. That's a quote from the order to seek a remedy directly or indirectly or maintain any proceeding in any court. And they took that language verbatim from Roosevelt's order establishing the German Saboteurs Military Commission in World War II. The reason that language was in his order was he instructed Attorney General Biddle that he didn't want some U.S. Marshal coming in with a writ of habeas corpus on behalf of the saboteurs. So it was intended to suspend the writ of habeas corpus and the word privilege in fact is taken right out of the suspension clause. It doesn't appear in any judicial preclusion statute of which I'm aware. Well the court just brushed that aside in querin. They went ahead and decided the constitutional and statutory challenges without regard to that proclamation as they did later in Yamashita as they had done earlier in Milligan. The fact is that it's even doubtful whether the president could unilaterally suspend the writ of habeas corpus. Chief Justice Cheney or Taney. Taney. We're working on that. Well you may be but you'd have to deal with the Merriman case. If the order had been written as it should have been they could have said that a person's captured abroad for offenses conducted abroad who are unconnected with the United States would have no right to seek the writ. Johnson versus Eismtrager establishes that. And they could also have said that no one even in the United States could challenge the sufficiency of the evidence. But to cut off a challenge to the constitutional and statutory authority for the military commission by someone in the United States or substantially connected with the United States is a dead on arrival. John. I'd agree with that bottom line. I mean it wasn't the intention of the administration and including that language to cut off habeas. I think what happened is that when you look at what the Kiran and Yamashita courts said about that provision of Roosevelt's executive order it was construed not to cut off habeas for people within the United States, within the territory or sovereignty of the United States. And so the language was retained so as not to upset whatever the status quo ante was as to habeas corpus. I also do agree with Peter that under Johnson versus Eisen Trager the individuals who were being taken to Guantanamo Bay who are not American citizens that are not in any way connected with the United States would not have the right of habeas to have their military commissions judgments reviewed. If there is a habeas challenge of course in the Kiran case and Yamashita the court looked really only at whether the military commission had jurisdiction to try the case. It didn't look behind that at all. Our habeas general habeas review process has expanded quite a bit since World War II. What would courts look at in the current circumstances? Yeah, I mean that's an open question. I mean, as you say, at the time Yamashita and Kiran were decided we didn't have the kind of habeas review we had to have today but we did have some review of the sort of procedures that state courts were using at the time but nothing like the full-blown procedures. It's very difficult to predict. I mean, one of the first federal district judges that gets the habeas petition will have to make that decision. One thing that might counsel against that and it's not really made clear in Kiran and Yamashita because they didn't have to face that. You know, it's the fact that this involved foreign affairs it's not the kind of habeas review that most federal judges engage in when they're reviewing the decisions of a state court. This is where they're reviewing the decisions of a coordinate branch of government rather than the federal state relationship. This is a separation of powers kind of review and habeas and that's, it's not clear exactly what courts should do there. You know, in other foreign affairs areas involving separation of powers courts are usually very deferential to the exercise of the commander in chief power and in Kiran and Yamashita the court made clear that the use of military commissions is an exercise of the commander in chief power. In the DC circuit and other circuit courts the exercise of the war power has been held to be a political question. So, you know, we would suspect that federal courts may not be as willing to impose a sort of full blown substantive review as they do in the federal state kind of habeas. Peter, any comment on that? Well, I'm hearing Curtis right, I'm right again here which worries me a bit as long as the order applies to people captured in the United States. I mean, these are people who are being tried for war crimes which also are felonies under the criminal code based on evidence of the routine sort. It's not clear why any court should defer if it were appropriate to look at the efficiency of the evidence. Beyond that, I would caveat what I said about Johnson vs. Eisenrager. I think that a court might grant limited review to determine if you've been properly categorized. That is if you are properly categorized as someone who has never entered the United States who acted entirely outside the United States and has no connection with it. Because otherwise the administration could call you one of those persons and block you off from any form of judicial review without your opportunity to say no, that's not true. So I think a predicate for even that restriction on review is that there's a colorable evidentiary case that you fall in that proper category. And I think that the Supreme Court cases would support that. I agree with that. I mean, and Eisenrager itself is not a one-line decision. There is some discussion, examination of the facts that led to them led them to determine that they were enemy aliens outside the U.S. So I agree, at least to the predicate of which way you go in the system. I think the court at least reviewed that. Well, and the court in Eisenrager also pointed out that not only did the defendants have no connection with the United States, but the offenses had no connection with the United States. Here the original offenses did have that connection. So that could be another issue that courts would have to look at. We've already mentioned, John, you've mentioned that a couple of cases that are at least arguably associated with the terrorist attacks of September 11th have been subject to indictment in federal court here in the United States. Let's talk about what other fora are available for these alleged terrorists and what some of the reasons for and against the different fora might be. John, would you... Oh, well, there's a number of different fora. You know, there's international tribunals. There's federal courts, conceivably state courts. There are international military tribunals as in the country that was in Nuremberg. You might have foreign, you know, we might hand over a transfer people to the judicial processes of foreign courts. And of course, you have the federal court at the end and using the kind of statutes that Peter referred to, the terrorism statutes. The one, I think one factor that's important to keep in mind is that I think our political leadership would like to have the death penalty as an option, not necessarily to use it or impose it, but at least an option that's on the table. The use of many of the different foreign court systems in the international tribunals, death penalty is just not an option. The UN tribunals for Rwanda and Yugoslavia, you cannot have the death penalty. Most of the European countries don't have the death penalty either. That said, another area of difference would be the procedures. Some of the procedures that are used by some of these international tribunals probably don't comport with what the United States thinks do processes. It may very well be the case that the rules for these military commissions, which haven't been articulated yet by the Defense Department, might actually be superior in protection than what defendants would commonly get in the UN tribunals for Yugoslavia and Rwanda. So I think really the main choice is between US Federal Court or Military Commission. And there I think it's more of a logistics and safety issue. Do you want to bring back, and we're talking about now, it looks like hundreds if not thousands of possible defendants into the United States to try them in a federal court with all the attendant security problems that would arise, the potential media circus that would be created. Military commissions on their hand are relatively swift and you won't take five or six years to appeal all the way to the Supreme Court, hopefully. So you might be able to exercise justice not just in a just manner, but swiftly too. Peter? Well, it's true that if we insist on the death penalty, we essentially forfeit the opportunity to bring these people to trial in any international forum or even in foreign courts. But we also forfeit the opportunity to have them extradited to us. We've already seen Spain refusing to send a very bad guy from what we've read to the United States because we won't waive the death penalty. So there's a trade-off there. The other thing we forfeit is the message that we would send to the world and the credibility that would obtain if a multi-judge and multinational judicial panel indicted and convicted these people. I mean, what better way to signal that terrorism is an international problem and an international crime? So I think the advantages that we lose by insisting on the death penalty and by hostility to international forums are considerable. That leaves us with the Military Commission or civilian courts. And I think the best answer to your argument that there are security concerns and speed concerns with the district courts is what they've done for two decades. Every single prosecution of a terrorist international and domestic has succeeded. From Eunice back in the late 80s to the embassy bombers last year, the prosecutions have been long and deliberate, but they have been successful. And the security problems have proven tractable. I mean, federal judges are familiar with security problems in drug cases and gang cases. And nobody proposes not using civilian courts for those purposes because of those threats to juries or in judges. They're not swift, but it's worth remembering here what Justice Murphy said when he agreed that no military commission should be used in Hawaii during World War II. Swift trial and punishment is precisely what the Bill of Rights outlaws. I mean, deliberate justice here is better justice. And finally, the problem of security of classified information is a real one, but the prosecutor controls what he or she wishes to put in to prove the case. And the Classified Information Procedures Act regulates what the defendant can access. So that's another problem that it seems to me we have put under control. So I would opt for the civilian courts. As I said, I think you could make a strong constitutional claim that we must opt for them in the United States. And therefore, I don't think there's as much of a choice as you say. Another issue, this gets back to sort of the scope of who's subject to military commissions and what offenses may be subject to military commissions. Is it military commission's jurisdiction is limited to violations of the law of war or such other statutes as Congress has provided? And there aren't a whole lot of those. What did the law of war apply to the September 11th attacks and what war crimes have been committed here? Either one of you want to take a crack at that. Well, there's a sharp debate in the community of international lawyers about whether it applied because there's a debate about whether the attacks constituted armed attacks or ordinary criminal events and whether you have to have a state versus a state to create the state of war that would qualify for these to be violations of the laws of war. There I think I probably agree with John. It seems to me using common sense of looking at the scale of the attacks and what preceded them and what was likely and is likely to follow them unfortunately and the NATO reaction and the OAS reaction and the security council reaction. I'm satisfied personally at least that they are armed attacks and that violations of the laws of war. But that doesn't mean that the order is tailored to fit laws of war. For one thing, the group that it targets includes a lot of people who I have hard to see how they could violate the laws of war. Those who harbor terrorists, the mother who normally takes her child in after he's committed a terrorist act is she a war criminal. People who give financial support to Hamas which spends a large portion of its resources for social services. Is that a war criminal? I mean these may be guilty of felony statutes but it's not at all clear to me that the laws of war have been violated by that kind of conduct. And so I think the order sweeps far beyond what anybody would agree in the international community is a violation of the law of war. That brings up an important point which is that under the executive order the scope of who can be detained is much, I would say much, was broader than who can actually be convicted and subjected to trial for war crimes. And it may be the case that there are gonna be people who might be detained and then taken out of the system again and the order provides for that kind of procedure. But I think it's quite right. The other hard thing though to nail down is that there is no statute that lays out all the war crimes there are. As you know, war crimes are acknowledged both in treaties like the Geneva Conventions and the Hague Convention of 1907. But also there's this, it really is a common law of war where there's this idea that you can have a developing, evolving sense of what war crimes are. But some of the basic ones we could, I think, probably agree on is attacking purely civilian targets, taking hostages, not operating according to regular military, in regular military units, not wearing uniforms, not carrying your arms openly. And there, I think, most people agree many members, if not all of Al-Qaeda, who engage in hostilities violate those concern codes. And many members of the Taliban also did not follow those laws of war, and yet they then conducted hostilities in this fashion. And the laws of war operate, but once you're triggered by a sufficient event, like the attacks on the World Trade Center and the Pentagon, and then it's possible once you're in that universe to commit acts, which themselves violate the laws of war. So, and Peter referred to people who say, well, you couldn't have a law of armed conflict applied to a non-state actor. And I think that would actually defeat the very purpose of the laws of war, which is try to control conflict in a humane, so at least it's humane in certain respects. I'm gonna put you on the spot a little bit here, John, and if you wanna get off the spot, you can just say so, because we're almost out of time anyway, but the September 11th attacks themselves, Peter has indicated, although there's some dispute, may well be acts of war, and because they were attacks on innocent civilians, therefore war crimes. But as we move away from those and involve other people who were involved in the fighting in Afghanistan, who may not have had any direct complicity in the September 11th attacks, those people might still be subject to trial by military commissions for other war crimes in the course of the fighting. Is that a fair statement? Yes, I think that's right, that they say your ground level Taliban fellow, maybe like a John Walker, although he wouldn't be subjected to the war because he's a citizen, but someone like that may not have any knowledge of the September 11th attacks, but that still doesn't give you immunity from the order, because if he has committed other kinds of war crimes in Afghanistan in the course of our conflict there, then they could still be subjected to the military order, I think that's right. Any comment on that? Yeah, my concern with that is that Congress authorized the use of armed force into September 18th, but it was against the perpetrators of the 9-11 attacks. The president now is describing a war that apparently has boundaries that change from time to time as he sees fit, and it's a recurring problem with this military order. You began by noting that it might not be applied to some people in the United States, and you said you didn't mean to spend the writ of habeas corpus and some judicial review be allowed. There's a difference between the order as written and as now promised, and I think that violates a fundamental principle of the rule of law, which is that we trust the rules, not the rulers. It's not enough to promise how it'll be applied. It should have been written that way to begin with. Well, we're gonna watch how all this shakes out, I guess, over the coming weeks and months, and probably some more issues be generated if indeed military commissions are used with respect to individuals. That's really about all the time we have for today's program. I wanna thank Peter and John and all of our faculty for joining us today to help explain these important issues, and I wanna remind those watching the program that there are written materials at the Federal Judicial Center website along with our one-page evaluation form. Please fill out this form and fax it back to us at the number at the bottom of the form. It's the only way for us to know if you found this program useful. I'm John Cook, thank you for watching.