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TERRORISM AND THE LAW
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The Legal Basis for Counterterrorism Activities in the United States Raphael F. Perl Congressional Research Service I thank you for the opportunity to be here in this great country and to speak before this distinguished group. It seems somewhat of an irony, on reflection, that the end of what we in the West referred to as the Cold War may have made the world somewhat safer for terrorists and criminals. The very peace we sought has brought with it new challenges for combating terrorism within the legal context of an open society. My presentation today will address the threat posed by the convergence of terrorism and technology and the current status of the U.S. legal response. I will begin by discussing trends in terrorism and technology and the present U.S. legal framework. I will then discuss the role of the U.S. Congress in antiterrorism legislation and the role of the executive branch in implementing such legislation. My remarks will conclude with observations on specific U.S. laws that seem effective and new legislation that could be proposed. In their desire to combat terrorism in a modern political context, nations often face conflicting goals and courses of action: (1) providing security from terrorist acts (i.e., limiting the freedom of individual terrorists, terrorist groups, and support networks to operate effectively in a relatively unregulated environ- ment) versus (2) maximizing individual freedoms, democracy, and human rights. The constitutional limits within which democratic societies must operate are sometimes seen as conflicting directly with a desire to protect citizens against terrorist activity. Technology has the potential to help terrorists establish networks, commu- nicate, and avoid detection. Technology also provides terrorists with the means to commit acts that can increasingly damage societies. The greater the damage s
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6 HIGH-IMPACT TERRORISM caused by a terrorist act, the greater is the potential for government responses that may help ensure security, but can conflict with the civil liberties of all individuals. Efforts to combat terrorism are complicated by a global trend toward dereg- ulation, open borders, and expanded commerce enhanced movements of peo- ple, money, goods, information, and services. Such developments pose complex challenges to law makers and policy makers on how best to use law, treaties, and other mechanisms to promote international cooperation in this new environment. In a world that knows no borders, law must become increasingly transnational if it is to be effective. The world is changing and terrorism is changing as well. Terrorism is be- coming more violent, more the product of loosely affiliated private groups, and more reliant on information technology. Terrorism today is often focused on inflicting damage on the enemy, with little need for restraint or public credit for the acts committed. In an age of asymmetric power, there can be an increased blurring between peace and war, between terrorism and war, between law en- forcement and national security, and between terrorism and crime. In November 2000, Polish authorities arrested two Russian organized crime members, who they suspect are connected to the August 8, 2000, bombing under Moscow's Pushkin Square, which killed eight persons. I understand that recently prosecu- tors have come to believe that the bombings were meant to settle economic scores. If such suspicions prove correct, what could more clearly demonstrate a blurring between terrorism and organized crime? In the area of cybercrime or cyberterrorism in particular, the distinctions between terrorism and crime are becoming difficult to discern. Moreover, it is widely believed that moral constraints concerning the use of weapons of mass destruction in terrorism have declined. In such an environment, the potential use of biotechnology and genetic engineering to attack humans, livestock, and the food chain in general warrants increased attention. Informa- tion technology is seen as aiding terrorists to network, operate undetected, and attack national infrastructures. The ability to damage computer systems and oth- er electronic devices by electromagnetic pulses, high-power microwaves, and high-energy radio-frequency devices is a capability that is becoming increasing- ly available to terrorists. Increasingly, terrorism is becoming anonymous. Often, terrorists do not claim credit for their acts, and technology provides a means to "mask" these acts. In the twenty-first century, an increasing challenge to societies will be not only to detect and find terrorists, but also to recognize that damage to particular sys- tems may in fact have been caused by terrorist acts. When speaking of the United States and its legal system, it is important to keep two points in mind. Under the U.S. Constitution, all authority not specifi- cally granted to the federal government is reserved for the states and the individ- ual. So we begin with the premise that authority rests with the individual or the 50 states. The right of the federal government to act does not exist unless it is
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TERRORISM AND THE LAW 7 authorized by law. Secondly, but also very important, the United States does not have a parliamentary form of government. A significant difference from the parliamentary system is that in the United States, our legislature the Congress- exercises the major role in shaping the federal budget the so-called power of the purse. Because the United States is a federal system, laws are passed at the federal (national) level and also at the state level. Ordinances (locally passed laws) may also be passed and enforced at the county and city levels. My remarks today will focus on the federal or national legal response to combat terrorism. U.S. laws that respond to terrorism can be divided into four categories: (1) laws that empower the government to combat crime in general, such as murder or kidnapping; (2) laws that specifically apply to terrorism, such as fundraising for terrorist organizations; (3) laws and constitutional guarantees that, by protecting civil liberties such as the U.S. constitutional right to privacy or the constitutional right against self-incrimination, may limit the power of government to investigate or prosecute terrorists in the interests of protecting civil liberties; and (4) laws that apply to government control in emergency situa- tions during or after a major catastrophic terrorist event. Public health regula- tions governing quarantine procedures over persons or livestock exposed to or infected by disease are examples of the latter category. Regulations governing government use of communications airwaves during and after a mass casualty terrorist attack provide another example (see also the National Emergencies Act, 50 USC 1601ff, and the Robert T. Stafford Disaster Relief and Emergency Act, 42 USC 5121ff and 5193ff). U.S. policy against terrorism was shaped, in large part, by the reaction to the murders of Israeli athletes at the 1972 Munich Olympics. Much of the policy remains unchanged, but the thrust became increasingly assertive as terrorist at- tacks against U.S. citizens abroad became increasingly frequent and deadlier in the 1980s. Congress passed a series of laws to clearly identify terrorism as a crime, to set up procedures for gaining jurisdiction over persons who commit terrorist acts against U.S. persons or property outside the territory of the United States, and to require or permit sanctions on countries supporting terrorism. In the United States, no all-encompassing federal law explicitly addresses domestic terrorism. For example, a terrorist act may be an actual or attempted bombing, armed robbery, arson, assassination, assault, hijacking, kidnapping, or foreign embassy takeover. All of these activities are violations of federal or state laws and, depending on the motive, may be acts of terrorism. The Federal Bu- reau of Investigation (FBI) defines terrorism as "the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives." In the current federal statutory structure, terrorism is addressed in a variety of ways. Extraterritorial acts of hostage taking or terrorism aimed at U.S. nation- als or actions intended to coerce the United States are federal offenses. Under the
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8 HIGH-IMPACT TERRORISM 1996 Omnibus Antiterrorism Act, P.L. 104-132, certain acts of terrorism tran- scending national boundaries are federal offenses, as are conspiracies within U.S. jurisdiction to kill, kidnap, maim, or injure persons or damage property in a foreign country. Foreign murders of U.S. nationals by U.S. nationals are also subject to federal criminal penalties, as are crimes committed by or against U.S. nationals on certain foreign vessels. Other federal offenses include acts of vio- lence against maritime navigation, on maritime platforms, or at international airports. Within the United States, federal law prohibits material support to ter- rorists, as well as certain financial transactions involving terrorist states (see 18 USC 2331ff). In addition, many federal laws target offenses that may be terror- ism related, such as use of weapons of mass destruction; torture; genocide; de- struction of aircraft, trains, or motor vehicles or related facilities; threats or crimes of violence against diplomats, members of Congress, Cabinet officers, members of the Supreme Court, the President, or the Vice President; firearms offenses in federal facilities; malicious mischief against federal property or property within the special maritime or territorial jurisdiction of the United States; alien smug- gling; air piracy; mailing injurious articles; chemical weapons offenses; and ex- plosives offenses, among others. In addition to violations of federal law, terrorist acts may also be subject to prosecution under state law, depending upon the specific circumstances involved. Current immigration law permits exclusion of aliens who have engaged in terrorist activity or aliens who a consular officer or the Attorney General knows, or has reasonable grounds to believe, are likely to engage in terrorist activity after entry. Under U.S. law, sensitivity to constitutional protections is necessary when responding to the risk of terrorist activity at home and abroad. For example, during investigations of allegations of possible terrorist activity, the prohibition against unreasonable searches and seizures in the Fourth Amendment, the pro- tection of the freedoms of speech and association in the First Amendment, the protection of the right to bear arms in the Second Amendment, and the due process rights under the Fifth and Fourteenth Amendments may be implicated. The constitutional framework sets the outside limits within which any official investigations must operate. In addition to these constitutional parameters, the tools to be used in such investigations are dictated in part by statutory provisions addressing wire, oral, and electronic surveillance in the context of criminal investigations, and foreign intelli- gence surveillance and physical searches relating to foreign intelligence activity. Access to stored electronic data is also statutorily limited. The division of labor among federal departments and agencies for criminal and foreign intelligence in- vestigations is governed by statute and executive order. The Attorney General's guidelines on domestic security and terrorism provide guidance as to the initiation, methodology, and scope of Justice Department investigations in this area.
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TERRORISM AND THE LAW 9 Congress exercises its authority by enacting laws (its legislative function) and by holding investigations and hearings to ensure that the laws are being properly implemented (its oversight function). Increasingly, funding drives gov- ernment policy, and Congress authorizes and appropriates funding for antiterror- ism programs. Strong areas of congressional interest include (1) reforming the structure of government to enhance responses to terrorism; (2) mandating home- land defense initiatives to respond to catastrophic terrorism, (3) possible consol- idation and coordination of the federal antiterrorism budget; (4) sanctioning state sponsors of terrorism; and (5) protecting the homeland against bioterrorism. Among the topics of special congressional interest are those discussed below: Reforming the Structure of Government to Enhance Responses to Ter- rorism. A topic of intense congressional focus is how best to structure the feder- al government to create and implement a national strategy to respond to terror- ism. Congress has created a series of commissions dealing with proliferation, homeland defense, and terrorism. All agree on the need for a national strategy and policy reform. On June 5, 2000, the National Commission on Terrorism, a congressionally mandated bipartisan body, issued its report, which included a blueprint for U.S. counterterrorism policy with both policy and legislative rec- ommendations. The chairman of this commission, Mr. L. Paul (Jerry) Bremer, is with us today and will address the findings of his group. Mandating Homeland Defense Initiatives to Respond to Catastrophic Terrorism. A number of bills have been introduced in Congress to enhance the nation's ability to respond to catastrophic terrorism. In addressing these initia- tives, President Bush announced on May 8, 2001, that he would order the federal agency charged with domestic disaster relief, the Federal Emergency Manage- ment Agency, to establish an Office of National Preparedness to coordinate a response to attacks involving biological, chemical, or nuclear weapons. The ex- ecutive order establishing the office is being prepared by the White House. Pres- ident Bush also announced that U.S. Vice President Richard Cheney would lead a new task force on terrorist threats to determine how best to respond to cata- strophic disasters. Consolidating the Federal Antiterrorism Budget. Forty-six federal agen- cies have varying aspects of counterterrorism responsibilities. An issue of concern is that the budgets of these agencies should reflect and be integrated into a coordinated interagency threat assessment and consolidated federal antiterrorism budget. Sanctioning State Sponsors of Terrorism. An important area of congres- sional legislative focus is sanctioning state sponsors of terrorism. The Export Administration Act (Section 6 tj]) allows the President to regulate export of dual-use technology and to prohibit or curtail the export of critical technology or other technological data. U.S. sales of technology, particularly high-technology processes, have been considerable, and sales restrictions or prohibitions are
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10 HIGH-IMPACT TERRORISM known to have put pressure on states reluctant to control terrorism. Under this act, exports of various sensitive articles to the seven terrorist countries on the U.S. terrorist list (Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria) and Af- ghanistan are strictly controlled or prohibited. The Omnibus Antiterrorism Act of 1996 (P.L. 104-132) prohibits the sale of arms to any country that the Presi- dent certifies is not cooperating fully with U.S. antiterrorism efforts. Sections 325 and 326 of this law also require that aid be withheld from any country providing lethal military aid to countries on the terrorist list. The Arms Export Control Act authorizes the President to restrict the sale of defense articles and restrict or suspend defense services to states fostering terrorism. Specific author- ity for the Libyan trade embargo is in Section 503 of the International Trade and Security Act of 1985, while Section 505 of the act authorizes the banning of imports of goods and services from any country supporting terrorism. Protecting Against Bioterrorism. By Executive Order 12375 of November 16, 1990, former President George Bush made a finding that chemical and bio- logical weapons proliferation is a threat to U.S. national security and declared a national emergency to deal with the threat. This finding was refined, amended, and updated to include proliferation of nuclear weapons by Executive Order 123998 of November 14, 1994, and it continues to be updated yearly. In the Biological Weapons Antiterrorism Act (P.L. 101-298, Section 3[aj), as amended by the 1996 Omnibus Antiterrorism Act (Section 511), Congress made it a federal crime to threaten, attempt, or conspire to use a biological weapon (including biotechnologically engineered products) and directed the Sec- retary of Health and Human Services to issue regulations identifying potential biological agents and governing their transfer. The National Defense Authorization Act of 1997 (Section 1414) directs the Secretary of Defense to develop and maintain at least one rapid response team capable of assisting officials to detect and deal with chemical, biological, and related weapons of mass destruction. Recurring policy issues arising before Congress clude the following: il n the terrorism arena in- 1. What level of resources should be committed when responding to low probability but potentially high casualty threats? 2. To what degree should terrorism be treated as a national security threat and to what degree as a law enforcement threat? 3. How can civil liberties be best protected while still allowing for the con- trolled use of wiretaps and the possible recruitment of "shady" informants? 4. How can the intelligence community protect sources and methods and, at the same time, share information? 5. How can economic interests be protected while restricting the export of commercial products and technology that terrorists might use?
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TERRORISM AND THE LAW 11 The executive branch often drafts and recommends new legislation or chang- es in existing legislation to Congress. Presidential decision directives often pro- vide broad policy direction on issues of national security. Executive orders may implement legislation or presidential authority by setting federal guidelines. In addition, individual agencies may issue their own internal guidelines. For example, on May 22, 1998, President Bill Clinton issued Presidential Decision Directive 63 ("Critical Infrastructure Protection"), which established within the National Security Council a National Coordinator for Security, Infra- structure Protection, and Counterterrorism, who also provides advice regarding the counterterrorism budget. On August 20,1998, President Clinton signed Executive Order 13099, freez- ing assets owned by Saudi-born Islamic terrorist leader Osama bin Laden, spe- cific associates, and their self-proclaimed Islamic Army Organization, and pro- hibiting U.S. individuals and firms from doing business with them. Previously, the Clinton administration had frozen the assets of 12 alleged Middle East terror- ist organizations and 18 individuals associated with those organizations. Execu- tive Orders 12957 and 12959 prohibit U.S. development of Iran's oil industry and U.S. exports to and imports from Iran, as well as third-country reexport of U.S. products to Iran. Federal agencies may also issue documents with legal consequences pursu- ant to the need for detailed information required by specific laws. For example, on October 8, 1997, the State Department (pursuant to Section 219 of the Immi- gration and Nationality Act) released a list of 30 foreign terrorist organizations. As of January 2001, the number of organizations on this list stood at 29. The 1996 Antiterrorism and Effective Death Penalty Act makes it a crime to provide support to these organizations, and their members shall be denied entry visas into the United States. An example of federal agency internal guidelines is found in the U.S. Justice Department's domestic terrorism investigations guidelines. Investigations per- taining to acts of terrorism occurring in the United States are conducted in accor- dance with the Attorney General' s Guidelines for General Crimes, Racketeering Enterprises, and Domestic Security/Terrorism Investigations. The guidelines were required by the Privacy Act of 1974 (5 USC 5222a Em. First issued in 1976 by then-Attorney General Edward Levi, the original guidelines were super- seded by those issued by Attorney General William French Smith in 1983, Attorney General Richard Thornburgh in 1989, and Attorney General Janet Reno in 1995. Under the guidelines, the FBI may open a domestic terrorism investiga- tion if, after carefully checking out initial leads, it is determined that the credibil- ity of the initiating source and the compelling and serious nature of the potential charges warrant that the matter be further investigated. A number of U.S. laws and practices merit specific mention when discuss- ing the U.S. legal response to counterterrorism. These laws and the concepts underlying them may have broader applicability in a global environment. They
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12 include (1) racketeering-influenced corrupt organ HIGH-IMPACT TERRORISM . izations (RICO) legislation, (2) conspiracy legislation, (3) wiretap authority legislation, (4) foreign intelli- gence surveillance legislation, (5) rewards and witness protection provisions, (6) passport and visa forgery legislation, (7) cyberterrorism and cybercrime leg- islation, and (8) the U.S. plea bargaining system. Racketeering-Influenced Corrupt Organization (RICO) Legislation. Ti- tle 18 USC 1961ff (part of the Organized Crime Control Act of 1970) is de- signed for combating organized crime but can have a broader reach. RICO was designed to address types of activities that Congress perceived to be characteris- tic of organized crime regardless of who committed those acts. Consequently, application of RICO is triggered by the commission of underlying offenses, including specified violent crimes, extortion, and drug trafficking. RICO applies to any person or entity who invests in, acquires, maintains, conducts, or participates in the affairs of an entity that engages in the patterned commission of various state and federal crimes or who conspires to do so. Patterned activity constitutes two or more offenses that suggest a pattern of continued activity or threat. Unlike the general federal conspiracy statute, a RICO conspiracy does not require an overt act by the parties to complete the offense. It is enough that two parties agree to invest in, acquire, or conduct the affairs of an enterprise engaged in interstate or foreign commerce in a manner that violates 18 USC 1962(a), (b), or (c). Penalties include fines, forfeiture, and imprisonment. Conspiring to carry out such activity is an offense as well. A person wrongfully injured by RICO can collect treble damages through a civil suit against the person or entity who en- gaged in the RICO offense. RICO does not prohibit any conduct not otherwise illegal under state or federal law. Rather, it expands the civil and criminal penal- ties for certain state and federal crimes. RICO is aimed primarily at the commission of crimes that provide profit; it targets groups that profit from crime. However, RICO has been used to prose- cute bombers of abortion clinics in the United States and to address mail bomb- ings by Croats against political rivals. From the perspective of a prosecutor, RICO has seven advantages: 1. It provides for stronger penalties (e.g., felonies that may result in only 5- to 10-year jail terms under state or federal law may have 25-year sentences under RICO). 2. RICO brings state crimes into the purview of federal prosecution. 3. RICO provides for forfeiture of property used in the illegal activity and of proceeds generated by the misconduct, remedies not always available under underlying state and federal laws. 4. Because RICO activity is a continuing crime, statutes of limitations that bar prosecution for the underlying offenses may be avoided. 5. RICO encourages plea bargaining by defendants because of its higher
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TERRORISM AND THE LAW 13 penalties and because common criminals often do not want to be convicted "rack- eteers." 6. Victims of RICO can initiate civil suits for treble damages. 7. Under RICO, the government can obtain injunctive relief, such as the reorganization of a corporate entity. Conspiracy Legislation. Under 18 USC 371, it is a crime for two or more people to conspire to commit a federal offense when one of those people com- mits an overt act in furtherance of that criminal purpose. Conspiracy to commit a series of specified terrorist acts is explicitly covered by 18 USC 2331-2332. Wiretap Authority Legislation. Generally, interception of wire, oral, or electronic communications is prohibited by federal law (18 USC 2510 ff) unless the interception fits into a specific exception to the general rule. Usually, before authority is granted to wiretap, a judge must find that there is probable cause to believe that a specified offense has been committed, is currently under way, or is about to be committed and that information from the wiretap will provide evi- dence of the crime. Normal investigative techniques must have been tried and failed, or the court must find that normal investigative techniques reasonably appear unlikely to succeed or are too dangerous to use. Criminal penalties exist for misuse of the information by law enforcement. Wiretaps are not permitted to be used in investigating all federal offenses. Rather, wiretaps can only be used to investigate certain specified crimes such as bribery, unlawful use of explosives, obstruction of a criminal investigation, kidnapping, violent crimes connected to racketeering, assassination of government officials, destruction of certain air- craft or aircraft facilities, money laundering, sabotage of nuclear facilities, and chemical and biological weapons offenses. Similar judicial standards apply to pen registers (which record phone numbers of outgoing calls) and trap and trace devices (which record phone numbers of incoming calls) (18 USC 3121ff). Foreign Intelligence Surveillance Legislation. Among other things, the Foreign Intelligence Surveillance Act (50 USC 1801ff) provides a statutory framework for electronic surveillance and physical searches of foreign "pow- ers," which is defined to include, among others, groups or agents of groups engaged in international terrorism or engaged in preparation of international terrorism. Under such circumstances, the President, through the Attorney Gener- al, may order surveillance for up to one year to collect foreign intelligence data without a court order. Rewards and Witness Protection Provisions. Money can be a powerful motivator. Rewards for information have played a role in Italy's efforts to weak- en the Red Brigades and in Colombia in apprehending drug cartel leaders. A State Department program is in place, supplemented by the aviation industry, offering rewards of up to $5 million to anyone providing information that would prevent or resolve an act of international terrorism against U.S. citizens or U.S. property or that leads to the arrest or conviction of terrorist criminals involved in
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4 HIGH-IMPACT TERRORISM such acts. This program was at least partly responsible for the arrest of Ramzi Ahmed Yousef, the man accused of masterminding the 1993 World Trade Cen- ter bombing, and of Mir Amal Kansi, the murderer of Central Intelligence Agen- cy personnel. The program was established by the 1984 Act to Combat Interna- tional Terrorism (P.L. 98-533) and is administered by the State Department's Diplomatic Security Service. Rewards greater than $250,000 must be approved by the Secretary of State. The program can pay to relocate informants and imme- diate family members who fear for their safety. The 1994 crime bill (P.L. 103- 322) helps relocate aliens and immediate family members in the United States who are reward recipients. Some observers have suggested expanded participa- tion by the private sector in funding and publicizing such reward programs. In addition, 18 USC 1513 also provides criminal penalties for retaliation against a witness, victim, or informant; and Section 1512 provides penalties for tampering with a witness or informant (see also P.L. 84-885, Section 36 [h], and 18 USC 3071, 3072, and 3077~. Passport and Visa Forgery and Violations. Under 18 USC 1541-1544, it is a criminal offense to forge or knowingly misuse passports or visas or to make false statements when applying for passports or visas. Cyberterrorism and Cybercrime. The provisions of 18 USC 2701 make it unlawful to intentionally access stored wire and electronic communications and transactions without proper authorization. Authority for government access is provided in some circumstances, with civil penalties stipulated for those who violate statutory procedures. Under 18 USC 2709, the director of the FBI, with- out court order, can request telephone, toll, and transactional records from a service provider upon certification that such records are needed for counterintel- ligence purposes and that there are specific facts giving reason to believe that these channels have been used to communicate with persons engaged in interna- tional terrorism or clandestine intelligence activities that may violate federal criminal laws. Service providers are prohibited from disclosing that the FBI has sought or obtained access to such records. Plea Bargaining. This practice is useful to prosecutors in obtaining cooper- ation from criminal defendants. Under the practice, prosecutors have the discre- tion of reducing charges against a defendant in return for cooperation. The charg- es dropped, however, must have been supported by the evidence (see Rule 11 of the Federal Rules of Criminal Procedure). I will conclude my remarks today with some observations on areas for legis- lative focus. A growing area of debate in the counterterrorism policy, national security, and law enforcement communities is whether new or revised laws are required to combat the changing nature of terrorist threats and organized crimi- nal activity or whether existing laws are adequate. One option intended to strengthen laws would be to create a continuing criminal enterprise (RICO-type) statute that targets the types of activities terrorists and their organizations engage
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TERRORISM AND THE LAW 15 in, may engage in, or may conspire to engage in. These would include commit- ting crimes of violence, smuggling or acquiring weapons of mass destruction and components thereof, forging documents, or crossing borders illegally. To the degree that new legislation is needed to combat terrorism, it will likely be in areas where new and innovative technologies provide terrorists with both shields and swords not anticipated by lawmakers. One option is to build flexibility into legislation by allowing regulations to specify, amend, or fine-tune prohibited acts that fall into broadly established guidelines. However, granting such administrative authority to the executive branch could to some degree be seen as diminishing the authority or role of parliaments in formulating counter- terrorism legislation and policy. Establishing national, bilateral, or multinational commissions or study groups composed of experts on emerging technologies, law, terrorism, and perhaps also organized crime may be another option for legislators to consider. Such groups could evaluate the adequacy of law in light of changing technology and current and potential patterns of terrorist and crimi- nal behavior. Areas of focus of such terrorism-oriented groups would undoubtedly in- clude cyberterrorism or cybercrime and the growing potential in the field of bioterrorism. Moreover, the ability to damage computer systems and other elec- tronic devices by electromagnetic pulses, high-power microwaves, and high- energy radio-frequency devices is a capability potentially available to terrorists. Such technology is increasingly available in the marketplace available to both criminal and terrorist groups with no international controls currently regulating sale and export. Technology spreads quickly, and technology can be a double-edged sword. The challenge to policymakers is to minimize the advantage technology offers to the terrorist and criminals who seek to employ it, while maximizing the advan- tage it offers the state all without unduly compromising the freedoms that dem- ocratic institutions are pledged to protect. It is no easy challenge. But it is clear that law is an important and essential component of a successful counterterror- ism response. Given the rapid pace of technological development, the law may no longer want to sit still, wait for events to happen, and then be revised to cover new circumstances. There may be merit in suggestions that legislators and the laws they enact need to be increasingly proactive and forward-looking, especial- ly in areas where technology has a major impact on society.
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