Published online by Cambridge University Press: 24 April 2015
1. This symposium includes first-hand accounts of the searches from some who were present. See pp. 105, supra. For news accounts, see Jackman, Tom, N. Va. Sites Raided in Probe of Terrorism; Federal Agencies Seek Information on Funds, Wash. Post Bl (03 21, 2002)Google Scholar; and Miller, Judith, A Nation Challenged: The Money Trail; U.S. Raids Continue, Prompting Protests, N.Y. Times A13 (03 22, 2002)Google Scholar.
2. Mintz, John & Jackman, Tom, Finances Prompted Raids on Muslims; U.S. Suspected Terrorism Ties to N. Va. For Years, Wash. Post A1 (03 24, 2002)Google Scholar; and Dunne, Nancy, U.S. Muslims See their American Dreams Die, Fin. Times (London) 10 (03 28, 2002)Google Scholar. (“respected Islamic institutions”).
3. The Washington Post quoted United States Attorney, Paul McNulty, as saying, “A search warrant is issued only after a magistrate judge ascertains that probable cause exists that a crime was committed. This case followed that procedure.” See Masters, Brooke A., Va. Muslim Groups Want Property Back, Wash. Post A9 (05 3, 2002)Google Scholar.
4. Aff. (Redacted) in Support of Application for Search Warrant (October 2003), In the Matter of Searches Involving 555 Grove Street, Herndon, Virginia, and Related Locations, Misc. No. 02-114-MG (E.D. Va.). The affidavit supporting the search warrants was sealed at the government's request. See id. at 8, ¶ 10. After eighteen months, a redacted version was unsealed. Despite its unusual length—almost one hundred pages—the redacted affidavit fails to draw any clear connection between the Northern Virginia institutions and any terrorist organization. Indeed, the affidavit candidly admits that the trail of funds disbursed outside the United States “cannot practically be followed.” Id. Instead, much of the affidavit aims to show that the targeted institutions may have violated IRS reporting requirements for tax-exempt charitable institutions.
5. See Jackman, supra n. 1, at B1. Over the months after the raids, the press reported a wide range of details about the investigation, attributing most of them to government sources. According to those reports, the probe had begun in 1996 as an investigation of anti-Israeli activists in Florida. The government had traced contributions from a Northern Virginia group, identified as the SAAR Foundation, to the World and Islam Studies Enterprise (WISE), a now defunct research group led by University of South Florida professor Sami Al-Arian. See Mintz & Jackman, supra n. 2, at Al. WISE was closed down when the State Department designated it as a funding organization for militant Palestinian groups, including Hamas. See Seper, Jerry, Revived Probe Eyes 80 Charities' Ties to Terrorism, The Wash. Times A3 (04 9, 2002)Google Scholar. Al Arian was indicted in February 2003 for alleged support of Palestinian terrorists. See Silvestrini, Elaine, Al-Arian Won't Be Set Free on Bail, Tampa Trib. (04 11, 2003)Google Scholar.
6. Shortly after the Northern Virginia raids, Customs officials stated that Operation Green Quest was responsible for twenty-one searches, twelve arrests and four indictments. See Dunne, supra n. 2, at 10. The March 14, 2002 searches therefore accounted for about two-thirds of Green Quest search activity as of that time. In October 2002, government officials called the Northern Virginia investigation “one of the highest priorities of Operation Green Quest.” Farah, Douglas & Mintz, John, U.S. Trails Va. Muslim Money, Ties, Wash. Post A1 (10 7, 2002)Google Scholar.
7. See Br. Amicus Curiae of the Am. Civ. Liberties Union of Va. Inc., In Support of Mot. for Return of Prop, and to Unseal the Search Warrant Aff. at 3, In the Matter of the Search of: 750 A Miller Drive, et al. No. 02-MG-122 (E.D. Va.) [hereinafter ACLU Brief].
9. See Masters, Brooke A., U.S. Magistrate Denies Muslim Groups' Request, Wash. Post A13 (05 4, 2002)Google Scholar.
10. ACLU Brief, supra n. 7, at 3; and Masters, supra n. 3, at A9.
11. ACLU Brief, supra n. 7, at 3.
12. Dunne, supra n. 2, at 10.
13. See Masters, supra n. 3, at A9.
14. See Bradley, Paul, Muslims Feel Targeted; Raids, Other Actions Cited at Fairfax Meeting, Richmond Times-Dispatch B5 (09 29, 2002)Google Scholar.
15. See Jackman, supra n. 1, at B1.
16. See Farah & Mintz, supra n. 6, at Al; and Kurata, Phillip, U.S. Islamic Leaders Issue Fatwa on US. Muslim Soldiers Fighting Terrorists (U.S. Dept. St. Info. Programs Oct. 16, 2001) <http://usinfo.state.gov/topical/pol/terror/01101611.htm> (accessed Jan. 20, 2004)+(accessed+Jan.+20,+2004)>Google Scholar.
17. In protesting the raids, the Council on American-Islamic Relations said that targeting “respected Islamic institutions sends a hostile and chilling message to the American Muslim community and contradicts President Bush's repeated assertions that the war against terrorism is not a conflict with Islam.” Dunne, supra n. 2, at 10.
18. In describing these investigative techniques, I write primarily from personal experience as a federal prosecutor. For a detailed analysis of the roles of federal prosecutors and agents during complex investigations, see Richman, Daniel, Federal Prosecutors and Their Agents, Agents and their Prosecutors, 103 Colum. L. Rev. 749 (2002)CrossRefGoogle Scholar.
19. These substantial differences between subpoenas and other more coercive forms of government investigation are accounted for in constitutional law. There is an immense body of law regulating searches and arrests under the Fourth Amendment. By contrast, the Court has held that a subpoena for testimony is not even a “seizure” within the meaning of the Fourth Amendment, see U.S. v. Dionisio, 410 U.S. 1, 9–10 (1973), and Fourth Amendment regulation of subpoenas is minimal, see U.S. v. R Enterprises, Inc., 498 U.S. 292, 301 (1991) (holding that subpoena does not violate 4th Amendment where there is any reasonable possibility that subpoenaed materials will be relevant to investigation).
20. This difference may have been more pronounced a decade ago than it is today. While subpoenas remain the tool of choice in financial investigations, prosecutors are employing search warrants with increasing frequency in white-collar investigations. See O'Sullivan, Julie R., Federal White Collar Crime: Cases and Materials 10 (West Group 2001)Google Scholar.
21. “The dramatic character of a sudden search may cause an entirely unjustified injury to the reputation of the persons searched.” Zurcher v. Stanford Daily, 436 U.S. 547, 580 (1978) (Stevens, J., dissenting).
22. In a particularly odd twist, a principal “confidential” source for the sealed affidavit may well have thrust herself and her information into the public eye. About a year after the raids, a book was published by an “anonymous” author who claimed to have worked extensively with Green Quest agents to develop probable cause for the warrants. Anonymous, , The Terrorist Hunter 301–330 (Ecco 2003)Google Scholar. The “anonymous” author appeared on the CBS News show, Sixty Minutes, on May 4, 2003, without using her name or showing her face. Predictably, her name—Rita Katz—was quickly and widely disclosed. In short order, she was sued for libel by some of those targeted in the March 2002 raids. Just before Katz' appearance on Sixty Minutes, the government reversed its position and asked that portions of the affidavit be unsealed.
23. See supra nn. 5 & 6.
24. “It's a smearing,” commented Washington D.C. attorney Nancy Luque, who represents many of the targeted institutions. Farah & Mintz, supra n. 6, at Al.
25. See supra n. 3, and accompanying text.
26. In the post-9/11 environment, it is simply implausible that the government officials who planned the March 2002 raids failed to recognize in advance that the event would be highly publicized and highly damaging to the business and reputation of the targeted institutions. Indeed, the rapidity and number of statements to the press from “government sources” after the raids suggest a calculated government effort to publicize the alleged connection between those institutions and terrorists. It is hard to escape the conclusion that one purpose of the massive, well-publicized searches was simply to disrupt the operations of the targeted groups. In a moment of—perhaps excessive—candor, one government source told a reporter that, even if the searches did not lead to prosecutions, they would serve the purpose of disrupting the flow of money to terrorists. See Mintz & Jackman, supra n. 2, at Al.
27. There are few reported cases from lower federal courts addressing searches of religious institutions. See e.g. Presbyterian Church v. U.S., 870 F.2d 518 (9th Cir. 1989) (discussing standing of a church to raise First and Fourth Amendment claims). The government's investigation of the “church” of Scientology produced a few. See e.g. U.S. v. Heldt, 668 F.2d 1238 (D.C. Cir. 1981).
28. 436 U.S. 547 (1978).
29. See id. at 550.
30. See id. at 551.
31. See id. at 552.
32. See id. at 553–554.
33. U.S. Const. amend. IV.
34. Zurcher, 436 U.S. at 556.
35. Id. at 555.
36. See id. at 560–561.
37. Id. at 561.
38. Id. at 563.
39. See id. at 563–564.
40. In Marcus v. Search Warrants, 367 U.S. 717, 724–728 (1961), the Supreme Court detailed the historical genesis of the Fourth Amendment in struggles between the press and the British crown.
41. Zurcher, 436 U.S. at 563–564.
42. Id. at 565.
43. In 1980, Congress passed the Privacy Protection Act, 42 U.S.C. § 2000aa, in response to Zurcher. The Senate Judiciary Committee Report states, “The Committee believes that the search warrant procedure in itself does not sufficiently protect the press and other innocent third parries…. “Sen. Judiciary Comm. Rep. No. 874, 96th Cong., 2d Sess. 1980, at 3951.
44. Zurcher, 436 U.S. at 564 (quoting Stanford v. Texas, 379 U.S. 476, 482 (1965) and Marcus v. Search Warrant, 367 U.S. 717, 729 (1961)).
45. Id. at 564 (quoting Stanford v. Texas, 379 U.S. 476,485 (1965)).
46. U.S. Const, amend. IV.
47. See Marcus v. Search Warrant, 367 U.S. 717, 726 (1961).
48. For cases detailing the limits imposed on police searches by the “particularity” requirement, see generally Thirty-First Annual Review of Criminal Procedure, 90 Geo. L.J. 1117–1124 (2002)Google Scholar [hereinafter Criminal Procedure Project].
49. See Stanford v. Texas, 379 U.S. 476, 485–486 (1965); and see Criminal Procedure Project, supra n. 48, at 1120–1121.
50. A federal statute makes it a felony “knowingly” to provide “material support or resources to a foreign terrorist organization.” 18 U.S.C. § 2339B(a)(l) (2000). “Material support” includes any form of financial support as well as personnel or equipment. Id. § 2339A(b). The definition of “material support” was expanded by the U.S.A. PATRIOT Act, Pub. L. No. 107–156, § 805(a)(2), 115 Stat. 272, 377 (Oct. 26, 2001), to include intangibles such as “expert advice or assistance” along with the “training” that was already considered “material support” in 18 U.S.C. § 2339A(b). Significantly, the statute explicitly excludes “religious materials” as a form of material support. Id.
51. “[I]n order to find a particular document, no matter how specifically it is identified in the warrant, the police will have to search every place where it may be—including, presumably, every file in the office—and to examine each document they find to see if it is the correct one.” Zurcher v. Stanford Daily, 436 U.S. at 573 n. 7 (Stewart, J., dissenting).
52. 18 U.S.C. § 2339B(a)(l).
53. See ACLU Brief, supra n. 7, at 3.
54. See Masters, supra n. 9, at A13.
55. Zurcher, 436 U.S. at 564.
56. Ft. Wayne Books, Inc. v. Ind., 489 U.S. 46, 62 (1989); and see Lo-Ji Sales, Inc. v. N.Y., 442 U.S. 319, 326 n.5 (1979) (noting that First Amendment imposes special constraints on searches and seizures directed at materials intended for publication).
57. See A Quantity of Copies of Books v. Kan., 378 U.S. 205 (1964).
58. Id. at 210 (quoting Marcus v. Search Warrant, 367 U.S. 717, 732 (1961)).
59. Courts administer discovery disputes in major civil cases on a daily basis. Much the same kind of process would be involved in separating genuinely useful evidence from protected expressive materials with little or no value to an investigation.
60. See supra, text accompanying nn. 37–38.
61. Zurcher, 436 U.S. at 562–563.
62. Soon after September 11, Attorney General John Ashcroft asserted the he would employ all lawful means to target and detain suspected terrorists in order to prevent another attack. See Ashcroft, John, Prepared Remarks for the U.S. Mayors Conference (10 25, 2001), available at <http://www.usdoj.gov/ag/speeches/2001/agcrisisremarksl0_25.htm> (accessed Jan. 5, 2004)Google Scholar (cited in Cole, David, The New McCarthyism: Repeating History in the War on Terrorism, 38 Harv. Civ. Rights-Civ. Libs. L. Rev. 1, 24 n. 98 (2003)Google Scholar); and see Worldwide Threats to Intelligence Community: Hearings Before the Senate Select Committee on Intelligence, Feb. 11, 2003, at 1 (statement of Robert S. Mueller, Director of the F.B.I.) [hereinafter Mueller Statement] (“The prevention of another terrorist attack remains the FBI's top priority.”).
63. The impact of that change of tactics on American Muslims has been pronounced. Muslims are by far the most typical targets of “preventive” detentions and searches. For critiques of those tactics and further discussion of their impact on American Muslims, see generally Cole, David, In Aid of Removal: Due Process Limits on Immigration Detention, 51 Emory L. J. 1003 (2002)Google Scholar; Muller, Eric L., 12/7 and 9/11: War, Liberties, and the Lessons of History, 104 W. Va. L. Rev. 571 (2002)Google Scholar; and Alexander, Scott, Inalienable Rights Question: Muslims in the U.S. Since September 11th, 7 J. Islamic L. & Culture 103 (2002)Google Scholar.
64. Mintz & Jackman, supra n. 2, at Al; and cf. Mueller Statement, supra n. 63, at 2 (“Our investigations have also made it more difficult for suspicious NGOs to raise money and continue their operations.”).
65. The March 2002 searches obviously had approvals from the highest levels of federal law enforcement. They involved the coordination of numerous federal agencies and the participation of 150 federal agents. See Dunne, supra n. 2, at 10.
66. Before issuing an order authorizing a Title HI wiretap, a federal judge must find that other investigative measures have been tried and have failed or that such measures appear unlikely to succeed. 18 U.S.C. § 2518(l)(c) (2000)). In executing a Title III order, agents must demonstrate reasonable efforts to minimize intrusion on conversations not germane to the investigation. 18 U.S.C. § 2518(5) (2000).
67. See Bradley, supra n. 14, at B5.
68. See Wilson v. Layne, 526 U.S. 603, 604 (1999) (finding that officers violate the Fourth Amendment by inviting members of news media to accompany them as they execute warrants in a private home).
69. Zurcher, 436 U.S. at 564 (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)).