The Sleeper Scenario: Terrorism-Support Laws and the Demands of Prevention
University of Texas School of Law
Harvard Journal on Legislation Vol. 42, No. 1, 2005
What choices are available when government agents believe they have identified a sleeper cell within the United States in circumstances that would not support a traditional inchoate crime prosecution for conspiracy or attempt, but senior policymakers nonetheless insist upon incapacitating the suspects rather than engaging in continued surveillance? More to the point, is there a plausible criminal justice alternative to the type of military detention illustrated by the case of Jose Padilla?
In this article, I address this question in three stages. First, I argue that the Justice Department has responded to the demands of prevention and the related emergence of institutional competition from the military by quietly establishing the ability to prosecute suspected sleepers under 18 U.S.C. 2339B, the law banning the provision of material support or resources to designated foreign terrorist organizations. In particular, I argue that the government since 9/11 has adopted interpretations of that statute enabling it to prosecute persons who have received training from such groups or who have provided themselves as personnel to them - acts which serve as a proxy for future dangerousness in the sleeper scenario.
Having identified this development, I next examine whether we ought to be concerned about it from either a civil liberty or a national security perspective. The answer is yes on both counts. On one hand, interpreting the material support law in this manner generates serious (but curable) constitutional problems (including vagueness and mens rea-related due process concerns). On the other hand, even in the absence of these problems the material support law is at best an incomplete solution to the threat posed by persons who travel overseas to receive training in the use of weapons and explosives.
Building on these criticisms, I conclude the article by identifying the legislative reforms needed both to preserve the constitutionality (and thus the dependability) of the material support law and to close its coverage gaps. As an example of the latter, I argue that Congress should make it a crime for any U.S. person to obtain firearms or explosives training outside the United States without an ex ante license. As an example of the former, I propose that Congress either replace the material support law framework with an ex ante licensing scheme or calibrate the level of punishment under the existing framework to the level of the defendant's mens rea.
Along the way to these proposals, the article provides a few other items that may be of more general interest. Most notably, I include as an appendix a survey of the charging decisions that federal prosecutors have made in terrorism-related cases in the three-year period since 9/11 (I include in my set only those cases in which at least one charge overtly relates to terrorism). Also, I provide a comprehensive legislative history of the material support law and related terrorism-support legislation, something previously unavailable in the literature. Additionally, I embed my discussion of how the material support law has been used within a broad overview of the Justice Department's multi-tiered strategy for prevention (comparing and contrasting the role of material support charges, for example, with the use of the material witness detention statute and with the use of prosecutorial discretion to prosecute suspects on unrelated grounds). Finally, I review legislative proposals currently pending in Congress which relate to the sleeper scenario, finding that they answer some but by no means all of the concerns outlined above.
I invite any criticisms or suggestions readers may have at email@example.com or (336) 758-5723. Note that this article builds on a working paper I previously posted to SSRN (Antiterrorism Prosecutions and the Demands of Prevention in Post-9/11 America).
Number of Pages in PDF File: 91
Keywords: terrorism, sleepers, material support, prevention, detention, institutional competition
Date posted: September 7, 2004