When the FBI Comes Calling…®
CLASSIFICATION OF SUSPECTS
Though the options available to the government are frequently not mutually exclusive, it is helpful to divide them into categories. Below those categories are delineated into degrees of severity.
Witness
The General Witness is one who is being used as a source for further investigations. This should not be confused as one held under the Material Witness Statute, explained below. In criminal investigations a General Witness qualifies as any individual who might provide information to law enforcement to further their investigation. Likewise, witnesses are used for information sources in intelligence gathering operations. A witness in a criminal investigation may have more opportunities to consult a lawyer prior to providing information than in an intelligence operation, but it would be very helpful for that witness to hire counsel to effectively mediate the process, particularly in the realm of national security. Keeping in mind that federal law enforcement agents have the right and authority to lie, trick, and in virtually any way deceive any witness, subject, asset, target, or detainee, a person's status may unwittingly escalate, making the necessity of experienced defense counsel increasingly crucial.
Subject
A Subject is one who is currently being investigated by the law enforcement community, intelligence community, or military community, with the intention of taking further action. This action may result in an arrest with the intention of charging the individual with a crime through the civilian, military, or enemy combatant (military tribunal) judicial system, or may come in the form of indefinite detention by way of the material witness statute or enemy combatant detention.
Asset
An Asset is one who acts on the behalf of the government to penetrate organizations, communities, cells, and the like. Frequently, a witness who desires to assist a criminal investigation or intelligence operation may be turned as an asset to seek out information about various persons and entities of interest. A Subject or Target of a criminal investigation may also be turned to work as an asset in return for a lesser sentence, by qualifying for a sentencing departure and a prosecutor's support for providing substantial assistance to the government. Assets provide the crucial human intelligence (HUMINT) component to the intelligence community, primarily controlled by the CIA and the FBI. It is always helpful to retain very experienced counsel within the national security arena to assist in assuring that any assistance provided to the government does not go without fiduciary and/or sentencing compensation, to ensure that no fundamental civil liberty or law is violated by the government in so doing, and to diminish the possibility that one's status does not escalate to that of being a target, or worse.
Target
In order for one to be a Target, he must either have been indicted by a federal grand jury for having committed a crime and will be arrested, or he must be considered a person that the military or intelligence communities might wish to either render for detention purposes or may wish to kill by way of assassination or legitimate military force.
Detained
There are three primary ways in which an individual may be detained by the federal government within the realm of national security: (a) to be arrested pursuant to federal criminal charges, (b) to be held as a material witness, or (c) to be as an enemy combatant.
- Arrested
An individual may only be Arrested by the federal government in accordance with rules of federal criminal procedure. These rules dictate, does the Constitution, that no person may be arrested for having committed a crime without being advised both of their rights (Miranda) and being told why they have been arrested (Habeas Corpus).
Material Witness
Because there are those individuals who may be crucial witnesses for a governmental criminal investigation or intelligence gathering operation but are considered a flight risk, or in any other way may not be available when absolutely necessary, the government has the authority to detain an individual for an indefinite period of time. This statute has been frequently misused however to allow the immediate detention of individuals who have not yet be classified as combatants nor have been charged with any specific crime. What is most troubling about this broad statute is that it effectively allows the government to bypass all Constitutional, statutory, and judicial provisions which ensure that no individual may be punished without due process of law. For more, see the Material Witness page within the Practice Area section of this site.
Enemy Combatant Detention
As was recognized by the U.S. Supreme Court in United States v. Hamdi, the federal government has the authority, in times of national crisis, to detain any individual in military camps that the executive may deem to be an enemy combatant. This may include a U.S. citizen, as in Jose Padilla and Yasser Hamdi's cases, who act on behalf of an enemy foreign power, whether it be a government in time of war or a terrorist organization. It is unclear to date however, what precisely those qualifications may be. For more, see the Combatant Detention page within the Practice Area section of this site.
There are two primary ways in which the federal government may kill a Target: (a) by way of assassination or (b) by the use of legitimate military force.
- Assassination
It is a commonly held belief that the federal government lacks the legal authority to commit assassination, but this intuition is not entirely accurate. Though President Ford signed Executive Order 11905 banning "political assassination," and both Presidents Carter and Reagan signed Executive Orders (E.O. 12036 and then E.O. 12336 which dropped the term "political" from the ban on assassination), to say nothing of the whole host of international laws prohibiting the assassination of political leaders, aside from the Universal Declaration of Human Rights, it is nonetheless a tool that has been and continues to be used.
So, how could the United States ever legally justify assassination? Well, it falls within the definition of what constitutes assassination itself. There is a widely held and historically practiced doctrine that assassination inherently applies only to politically motivated action, while most forms of assassination that might be used are more apt to be considered targeted killings used as a matter of self-defense. The principle of national self-defense has been a long recognized one, effectively allowing the government to bypass legal ramifications, particularly when in a time of imminent or ongoing hostilities.
Because assassination is a covert action executed by CIA paramilitary teams, it must first be authorized in writing through a Presidential Finding (noting an explicit need for national security purposes), which is then sent as notification to members of the two Congressional intelligence committees (per the Intelligence Oversight Act of 1980). Congress, having been briefed in writing by the President, does have legal authority to halt any such action, though is unlikely to do so. To bypass this restriction, the President might use the military and decliare it an extension of his war power. Additionally, if related to the "War on Terrorism," he may defer to the September 14th Congressional Resolution authorizing him to use "all necessary means."
One significant limit to assassination is its use domestically in times of peace, particularly against American citizens. Any "shoot-to-kill" rule of engagement, as was unlawfully used by the FBI at Ruby Ridge, is flatly in violation of the Due Process Clause. Its use abroad is less certain however. And of course, in times of war, these lines begin to blur all the more significantly.
Military Force
Naturally, legitimate military force has always been the primary method used to kill an individual perceived to be a combatant. This may be executed either by covert operations, with notification of Congress, or through the overt military action.