A. Background

The authors of this appendix are both law professors and members of the committee. They were included in this study to identify and analyze the many legal issues that surround the technologies and regulatory alternatives currently within the committee's consideration. In addition to drafting the "Legal Issues" sections for Chapters 2 through 5 and preparing this appendix, the authors attended committee meetings, participated in all aspects of committee fact finding and decision making, and provided advice concerning the legal consequences of the committee's proposals. Contained within this appendix is a discussion of the legal questions that helped to shape the committee's recommendations and that ultimately must be considered by government policymakers before these proposals are implemented.

B. Scope and Organization

The legal issues raised by the broad statement of task for the Committee on Marking, Rendering Inert, and Licensing of Explosive Materials are numerous, complex, and far-reaching. These issues span a diverse array of legal fields, including criminal law, constitutional law, constitutional criminal procedure, tort law, evidence law, and administrative or regulatory law. The purpose of this legal appendix is to identify, organize, refine, explain, and analyze these issues so as to make clear their role in the viability, feasibility, and practicability assessments offered by the committee in the main text of this report.

All of the legal issues addressed in this section are framed, however broadly, by the terms of the Terrorism Prevention Act. In accordance with the act, the committee was asked to examine (1) the viability of adding tracer elements to explosives for the purpose of detection, (2) the viability of adding tracer elements to explosives for the purpose of identification, (3) the feasibility and practicability of rendering inert common chemicals used to manufacture explosive materials, and (4) the feasibility and practicability of imposing controls on certain precursor chemicals used to manufacture explosive materials. In short, the committee's charge was to consider the wisdom of either physically altering explosive materials or regulating their manufacture, distribution, and sale as a means of preventing illegal bombing incidents and/or aiding in the detection, capture, and prosecution of criminals who create and detonate illegal explosive devices.

These alternative approaches to curbing the terrorist bombing threat create three general types of legal problems. These categories of legal analysis, in turn, provide a useful taxonomy for addressing the issues raised in this appendix. First, because a central purpose of these approaches is to catch and prosecute bombers,

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