Class themes:1) Security v. Liberty2) Who decides the issues? Who oversees them and how?3) Ebb and flow of Exec. Claims of Extraordinary Power.

I. Constitutional Allocation of National Security (NS) Powers

1. Separation of Powers

Youngstown (1952, p. 25) (“steel seizure case”) Black Majority: All power must come from Const or statute; no made-up aggregate power, no

exec doing legislative function (seizure), and no historical gloss: just because congress has acquiesced before doesn’t mean it loses its power permanently.

Frankfurter Con.: examples cited for historical gloss don’t apply here Douglas Conc.: only congress can seize (and have power to reimburse); danger in emergencies is

just an inherent risk in our system. Vinson Dissent: this is an emergency, based in “take care” clause; Exec tried to be deferential Jackson Conc.: 3 categories of decreasing exec latitude: 1) acting pursuant to express or

implied Cong. authorization, 2) absence of cong. grant or denial of power, 3) acting incompatible w/ express or implied will of congress. Jackson would say this 3), but other justices’ arguments would seem to disagree. CnC doesn’t have a monopoly on const. war powers.

Burton Conc.: seizure wasn’t military in nature; not a big emergency, and Exec ignored legal seizure path.

Clark Conc.:- Takeaways: All 3 branches being involved in NS., there are limits on Exec war power, and introduction of historical gloss idea.

- In the longer view, might be good for exec because most justices admitted some exec power in the absence of congressional action, w/ outward-oriented actions, and in great emergencies.- General idea: further from the battlefield, the less discretion Exec gets (Jackson Conc.).

Non-delegation Principle: idea that Congress can’t delegate its power to Exec, but in practice that happens all the time without being struck down. (see Curtiss-wright)

Declare War issues:1) Congress’s declare war power doesn’t have to be limited to official declarations2) Early understandings: CnC didn’t need congress for purely defensive actions3) Early understandings: Actions against non-state actors weren’t war

2. Exec’s NS powers (foreign affairs, war, emergency, historical gloss)

U.S. v. Curtiss-Wright Export Co. (1936, p. 53) foreign relations power, historical glossD sold weapons to Bolivia in violation of exec order made pursuant to joint resolution of congress.Ct: Non-delegation doctrine doesn’t bar congress from delegating a lot to Exec in foreign affairs. Pres is sole rep of US in foreign relations & better placed to make judgments. No need to delve more deeply into N-D doctrine here.

Dames & More v. Regan (1981, p.60) foreign relations power, historical glossIssue: whether Pres’s acts nullifying attachments and ordering transfer of frozen Iran assets are specifically authorized by congress and whether he had authority to suspend claims in US courts.Ct: Where congress has a history of acquiescence, as here w/ claims settlements, it thereby implicitly approves of Pres’s actions regarding specific matter about which congress was silent.Pres’s actions nullification actions were pursuant to congressional authorization [cat 1], and his claims suspensions were broadly supported by past congressional acceptance for broad exec action in similar situations.-Case drew distinction again between latitude of exec power in foreign v. domestic arenas.

Commander in Chief (CnC) Powers:- Early on, was more of purely exec role, w/ les of making biggest decisions- Defensive v. Offensive: defensive “repel attacks”- According to historical gloss, POTUS can be offensive at least where there are no ground troops

and a limited mission/risk.- There is some core const. CnC power that Congress can’t touch

Prize cases (1864, p. 68) CnC powers, official declarations of war.Civil War blockade Case.Ct: Congress has power to declare war, but Pres can take action when attacked, including the blockade of southern ports. (Country typically needs to be at war to blockade, but only congress can declare war; solution? In defensive situations, pres can do war-like actions.)Key: War doesn’t have to be officially named or against another state for there to be a state of war necessitating Exec war action.Also: Congress explicitly authorized after the fact

Little v. Barreme (1804, p. 78) Ship captured according to Executive order, but against congressional limit on capture.Ct: Held captain liable; executive order attempting to make law can’t override act of congress. Also, he’s liable rather than president because officers are liable for carrying out illegal commands.

In re Neagle (1890, p. 83) Emergency powers, quoted today for rescue of citizens abroad, which everyone agrees is fine; could be example of pres using force at home to protect faithful execution of the lawBodyguard/ U.S. Marshal of CA S.Ct. Justice charged w/ murder after killing assaulter of the justice. Sought Habeas, saying he must be freed because he was working according to US laws.Ct: “Take care” clause means Exec can protect integrity of legal system by appointing marshal for justices, even without congressional authorization. Ct also relied on statutory authority giving marshals similar executory powers as state sheriffs.

3. Congress’s NS powers

Formal declarations of War are obsolete (since WWII).2002 Iraq AUMF: Same legal impact as a statute; very specific on reasons for authorization, but short on limitations or action specifics; US is still using this AUMF as part of its exec power against ISIS today.

Bas v. Tingy (1800 p 93) official declarations of warTingy recaptured boat from French, which statute applies determines the value he’s entitled to. ’98 statute authorized seizing French boats, ’99 authorized seizing that of the enemy and allowed higher gain for seizing. Was France an “enemy”Ct: Even without formal declaration of war, there was cong authorization for hostilities against france by ’99 statute, and that’s enough to mean a de facto state of war and making france the enemy, and the seizure valid according to the more favorable ’99 law.

Jus belli- the laws of war, which govern armed conflict during undefined war/conflicts. (Bas v. Tingy)

Takeaway on Congressional War Powers: Congress can control the breadth of war, if not the short-term smaller decisions.

4. Case Study: Vietnam

Gulf of Tonkin Resolution, (1964, p. 274)- Resolution drafted by Exec, approved by congress.- Action within based on an attack that never happened and the attack before that was provoked

by the U.S. Johnson basically misled congress completely in order to expand the war.- “Congress approves…all necessary measures to repel armed attack against the forces of the US

ant to prevent further aggression.”- In form w/ Const and IL, and under collective self defense w/ SE Asia, US is prepared to take all

necessary steps, including the use of armed force, to assist any [regional ally] requesting assistance.”

- Expires when president determines peace and security are assured, unless Congress terminates first.

Meeker (DOS legal adviser) on Legality of War, (1966, p. 276)Const arg: CnC powers. A smaller world means greater implications at home for foreign dangers (plus historical gloss.Statutory arg: Gulf of Tonkin Res. put Exec in Category 1, also there were appropriations (but the Tonkin resolution was under false pretenses…)Treaty arg: Obligations to our allies—however, treaty can’t override const problems if there are any.

Takeaway: Exec may claim const authority, but still wants to have congressional approval a la Jackson category 1.

Orlando v. Laird (1971, p.286) congressional authorization, Political question-Kids trying to avoid draft by saying war was w/out congressional approval; (they did have standing)-Straitjacket argument: When Pres takes action first, it’s then hard for congress to say no.-Ct: There was congressional approval, through Tonkin Resolution, appropriations, and draft bill. How Congress gives authorization is a matter of policy not up to judiciary-Not a Political Question because there was a “discoverable and manageable standard” in const delegation of war declaring power. See Baker v. Carr

Limitations on the Vietnam War: Statutes limiting Exec from spreading war to Cambodia and Laos (secret bombings still

happended) Repeal of Tonkin Resolution : Da Costa I plaintiffs’ argument that this ended cong approval failed,

because draft bill/appropriations pass later in time with no mention of repeal/limitations. Mansfield amendment : “policy of US is to terminate at earliest date possible all operations in

Indochina” –Nixon signed but said he’d ignore.

Political Question Doctrine: Why does SCOTUS never get directly involved? (Douglas says it’s an “abdication of duty”-A big burden for court w/ no democratic source or enforcement to say war was unconst-avoid making precedent

Hotzman v. Schlesinger (1973, p. 303)Ct. begs political question doctrine over bombing in Cambodia.Why? Judiciary can’t determine if bombing is tactically a move in compliance w/ cong directive.

5. War Powers Resolution and Libya debate

War Powers Resolution (1973, p. 307)- Passed to override DaCosta cases, to keep Exec from relying on Appropriations as cong

approval.- Meant to correct impression of branch imbalance (part of which was Cong’s fault for not

protecting it’s own prerogatives- Sec. 2(c): tries to outline specific situations where Pres can introduce armed forces:

- Declaration of war- Specific statute authorization- National emergency after attack- BUT doesn’t cover everything, e.g. hostages, pirates, hot pursuit, UN peacekeeping

- Sec. 4: Reporting Requirements: Whenever Exec expands or introduces armed forces, he must submit to Cong leaders written report w/in 48 hours, setting forth reasons for force, authority, estimated scope and duration, and anything else Congress requests. Must also report periodically as long as hostilities last, at least every 6 months.

- Sec. 5: Pres must terminate use of armed forces at 60 days after report unless congress has specifically authorized the conflict or extended it. Pres can get 30 more days if he certifies need. Congress can always halt hostilities early by specific action.

- Exec reaction: All Pres’s since have said some of it’s unconstitutional, 1980 OLC opinion accepted Sec. 50 time limits. Nixon vetoed the WPR as unconstitutional and dangerous.

Libya Case Study- Exec says it doesn’t count as hostilities, so doesn’t have to follow 60-day limit.- Anyway, congress tends to agree.- Exec Agency heads divided over hostilities question.- Efforts to either limit or further authorize Libya actions both fail.

Lowry (p. 315, 1987)Ct. used Political Question doctrine to avoid answering whether Exec needed to report to congress about hostilities. Again, no judicially manageable standards.Koohi (p.316, 1992Ct. did reach whether there were hostilities, and said there practically was a “time of war,” but only did so in a tort context.

II. IL and the Use of Force Abroad1. Jus ad bellum Basics and Kosovo

Jus ad bellum- rules of right to war, justificationsJus in bellum- rules of wartime conduct

Kosovo Case Study:- First time NATO attacked a sovereign country- Clinton’s justifications: potential for future conflict to NATO allies, avoiding a wider war,

humanitarian, and noncompliance w/ Intl law by Serbia.- No strictly legal justifications, relied on the limitations above to avoid setting precedent.- Didn’t come before UNSC because Russia would have vetoed. That would have been legally

enough on grounds of preserving peace/security.UNSC, Charter Chap VIIUNSC may approve use of force when there’s a threat to or breach of the peace or act of aggression, and members agree to accept and carry out USC decisions.

Article 51 right to self defense; meant as fallback for quick response when UNSC can’t act. Relies on response to armed attack. ICJ says armed attack =/= force in 2(4) sense, but US disagrees (see Nicaragua case).Limitations: Proportionality, immediacy (response must be temporally related), not purely a reprisal.

Article 2(4) prohibition on use of force applies to states and their territory, not non-state actors. Force means real armed force, not just, for example, economic duress.What happens for self-defense against non-state actors? Charter technically silent.

Nicaragua v. US (p223)Relies on CIL since ICJ doesn’t have jurisdiction on US following charter force rule.-Providing guns counts as “force.” But, You can’t just on force to respond with force; there must be an armed attack.Collective self defense doesn’t need a treaty, but does need a request from the other state and consent. IN this case, that only happened afterward rreally.

2. Case Study: 1st Gulf WarGulf War: First time since Korea that there was UNSCR force authorization, and w/ stronger language.Iraq’s Justifications: reclaiming its territory, Kuwait’s slant drilling, Kuwaiti debts, consent from rebelsAllies went through UNSC rather than Coll. Self-defense because UNSC is more legit and won’t be subject to the same rules of proportional response.UNSCRs:

660: Flags actions as breach of peace, condemns Iraq as aggressor. 661: Authorizes/calls for sanctions/blockade/data gathering, and state compliance committee 678: Calls for “all necessary means,” noting Iraqi noncompliance w/ previous UNSCRs, but gives

Iraq a last-chance grace period. 687: after hostilities, sets requirements for Iraq to give reparations, submit to inspections,

renounce support for terrorism.

Domestic law issues w/ Gulf war:Desert Shield: Sending many troops to the border in Saudi Arabia (rationale? CnC, protection of US nationals in Kuwait).Authorization: No explicit authorization, but some general appropriations, approval after the fact, and Bush complies w/ WPR reporting. Bush did seek support from congress, esp. before actual use of forces

3. Case Study: Iraq War & Anticipatory self-defense

Precursors- 1986 Libya: Berlin Disco bombing, was US bombing just a reprisal or an act of self-defense to avoid future attacks? SD arg was good but undermined by Pres’s words.

2003 Iraq War was framed as pre-emptive action. Where is the line on what IL says counts under self defense? Plain-text of UN charter says after, but this is not realistic.

IL legal justification: UNSCR 678 from gulf war (but so old!); UnSCR 1441 (but this gave no specifics on actions to be taken, just warnings should Iraq not take action).

Justification for pre-emptive action in Iraq based on bad intel on WMDs. (including 2002 AUMF, p. 358)Doesn’t seem to matter as a legal issue.

2014 use of force in Iraq: Justifications:-humanitarian, to protect Yazidis and other minorities-2002 AUMF continuing authorization.

Takeaways on Anticipatory SD: shifting meaning of “imminence”

4. Defense of nationals; Intervention w/ consent

Rescue is usually uncontroversial. Why?- Usually defensive in nature- Usually short, limited in goal and time-

Neagle redux, p. 83. (Domestic authority for rescue)

Durand v. Hollins, (1860, p.368) Domestic authority for rescueNicaraguan case, Navy Captain shelled/burned a town in Nicaragua, was that within Pres’s duty/authority to authorize?Ct: begs political question doctrine, but says that it was firmly within the authority and discretion of the president to decide to rescue abroad. He alone has the power abroad for protection of citizens.

Hostage act (2006), p 369Gives Exec some powers to get hostages captured under foreign states’ authority, beyond basic article II powers which other presidents had already used.

Iran Hostage MissionCarter didn’t comply w/ WPr, but it was because he felt he had independent Article II power for defense of nationals. It’s also not clear that hostage situations even count as “hostilities.” Secrecy precluded notification to congress, in Carter’s eyes.

Other points:Territorial state has duty to protect foreign diplomats and threat foreign nationals like your own.

Intervention w/ consent:Problems w/ consent: Does the granting unit have the authority to do so? (legitimate state)Deeks’s rules:

1. You can intervene w/ clear consent from legit gov against moderate-sized rebel grop2. But NOT in full scale civil war (unless other states violate this rule)3. Consent by rebel groups not enough

“Unwilling and Unable” test for going after enemy in 3rd party territory.1. Is it necessary to respond forcibly to this attack?2. Is it necessary to do so on other state’s territory?3. Is that state willing and able to go after the attackers on their soil?

Alternative rules: Can only do this where the territorial state has some guilt.Realpolitik: States will only carry this out on the territory of weaker states.

III. Intelligence Community (IC)1. IC’s Nature and Origins; Covert Action

IC’s two main functions:1. Intelligence gathering/analysis

a. HUMINT (human intel)b. SIGINT (signal, electronic)c. OSINT (open source)

2. Covert action

Covert= Unacknowledged. Activities of USG to influence conditions abroad. U.S. can or will deny.(doesn’t include intelligence collecting but refers to traditional diplomatic and military means.

Historical CIA: Had few oversight statutes until 70s and 80s; was rooted in Pres’s const authority as CnC, Chief exec in foreign relations.

Why need to regulate/oversee?- Need to protect own system of values- Encourage other states to do the same- Hold exec accountable

National Security Act of ‘47 - created CIA (?)Oversight Act of ’89- exec agrees to provide more info, but can limit number of congresspersons notified, and determine level of classified.

Statutory requirements:- Presidential “finding” in writing (to avoid plausible deniability like in Iran-Contra) (need initial

finding, notification of changes (Memo of notification), and keep congress informed fully.- Specifying rationale as necessary to policy- Specifying all US agencies involved and 3rd parties.- Important to national security of the US

Limits:- No action may violate const or any U.S. statute (and appropriations of money absolutely don’t

count as authority to activities which would violate them)- No action intended to influence the US- Assassination is prohibited: intentional killing of a targeted figure for political purpose (e.g.

Osama was not political but military).- Only CIA can do covert action, except for Defense during wartime and other agencies if Pres says

so

2. Case Study: Iran Contra AffairHughes-Ryan Amendment of 74 and Intel Oversight Act of ’80 (p.486)Though these statutes look like reform/limits, CIA interpreted as an official ok for some covert action.HR report finding means a finding for covert action (analogue of WPR report?)WPR report means for military action

Iran ContraThere were reporting reqs in place like those in HR amendment intended to eliminate Pres. Plausible deniability.There were also statutes in place against helping Contras, against weapons sales to Iran, and reporting reqs on arms deals.

Relevant lawConst: Does Pres have authority? Probably for Hostage powers, historical glossStatutory (that Reagan doesn’t rely on): Hostage act help BUT clear violations of Arms Control Act.

Boland AmendmentsDesigned to limit assistance to Nicaraguan rebels by limiting appropriations.-No funds to go toward overthrowing Nicaraguan government.-I and I.5 were loopholey, but Boland II was the most restrictive (but still w/ loopholes, e.g. only specified intel agencies (Ag department was used as a conduit), left funds unclear)

CIA Budget SecrecyConst requires Exec account for expenditures

- BUT 1947 act limited disclosures to what CIA director says and allows them to get money from other agencies basically under the table.

- Reconciliation of this element of the statute w/ constitution has never gotten to the merits in ct.- Someone sued on the issue, but no standing as a mere taxpayer.

US v. North (1988, p. 499)North got in trouble for helping orchestrate Iran ContraIs it valuable/legal to hold public servants like North legally responsible for their illegal actions?Yes, think back to Little v. Barreme. Logically, especially the higher up the chain of command.

3. Case Study: SSCI Torture Report

- “Top secret” – only that which reasonably could cause identifiable grave damage to NatSec. Pres, VP, agency heads and their delegates can determine this.

- Separation of Powers: Conflict between Exec privilege and Congressional oversight—Courts reluctant to get involved.

- SSCI’s self-redaction and removal of Panetta report: Problematic because redaction is executive authority and not within SSCI’s purview.

- Executive privilege: When can exec invoke Exec privilege?o state secretso deliberative intra-agency communicationo attorney work product, attorney-client producto confidence of presidential communication

- CIA OIG referral of improper CIA access to Senate files: He’s required by executive order to refer to AG any possible violation by CIA agents. In this case, he refers criminal offenses of interception of e-messages and unauthorized computer access. DOJ declines to prosecute CIA agents, tho. But then Senate sets up accountability board, finds that CIA access in this case wasn’t necessarily unauthorized, recommends clearer agreements on what can be accessed.

Public Interest Declassification Board: role is to advocate for the fullest possible public access.- Wasn’t used in such a political affair like the SSCI investigation.

4. Judicial Involvement in intelligence Activities

Justiciability1. Political Question

a. Baker v. Carr factors (they’re not very useful, according to many, and hard to apply.2. Standing: direct and personal link to the case, including injury in fact, causation, and

remediability. Courts have let congress sue when exec flouts its express votes3. Ripeness: Not ready to be decided now 4. State secrets: Maybe not really justiciability, but used to forclose trial or use of some evidence.

Privileges mean that a head of agency must attest in a writing.

Al Aulaqi v. Obama (Supp) - Leaks are vital to this case; that’s how the dad even knows his son’s on the kill list.- Case Turns on justiciability doctrines of standing and political question.- -U.S. justification for killing aulaqi? We’re in an armed conflict w/ al quaeda, of which he is a

leader, and we only would kill him extraterritorially w/ consent of Yemen, who is unwilling and unable. US laws of murder and assassination don’t apply to military targets.

- Standing: Dad can’t do it because son could come himself (though he’d be arrested, he wouldn’t be killed on sight, so no excuse). He’s also incommunicado of his own will.

- Political question: A function of separation of powers. Baker v. Carr factors are hard to apply, but cases involving NatSec and foreign relations powers are a good category to stick under political questions, because courts are ill-equipped to assess the relevant issues. This case is clearly among them because battlefield decisions can’t be second-guessed by courts that have no way to determine them.

Mohamed v. Jeppesen Datplan (Supp)Sued a private CIA contractor. Why not sue USGov? Sovereign immunity.Ct. here does look at underlying facts, but in camera.Ct. does make the gov pay costs. Why, if they won? A peek at court’s unease.

IV. Surveillance1. Fourth amendment and National security4th amendment-search and seizure protections, no warrants without probably cause and with particularity about what is to be searched.

- -Katz : reasonable expectaction of privacy is key to 4th amendment protections.- -Warrantless searches per se unreasonable BUT many exceptions, including for reasons of public

safety, like airplanes and train stops, and accident prevention, like to prevent railroad accidents.- -Probably doesn’t apply to electronic surveillance on foreigners outside US.- With surveillance, the purpose of the surveillance (crim v. terrorism) can change limits.

Keith p. 559, 1972You still need a warrant, even if it’s a domestic security threat. (applies only to domestic issues).

Jones (Supp)What constitutes “a search” w/ GPS technology? Yes, putting it on a car is trespass w/ intent to get info

Riley (supp)Cell phone search. Need a warrant? Yes, unanimous decision. Getting records from 3rd party ok, though.

2. Congressional authorization for Foreign Intelligence Surveillance

FISA, 1978- Background: Significant abuse by investigative bodies, lack of existing framework, back and forth

in lower courts. All this comes out in the 70’s threats to 1st amendment rights and the democratic process. FISA was a culmination f grand bargain: legal constraints on exec but behind a veil of secrecy.

- Intended to target foreigners/spys/terrorists.- Cant’ use FISA if only goal is crim prosecution, but eventual use in crim case is ok. They must get

AG approval and disclose it to D, though.- FISA restrictions don’t touch spying efforts actually taking place abroad.- Focus: Our focus is on electronic surveillance, but there are other categories.- Basics:

o Only foreign powers/agents can be targeted (foreign power doesn’t have to be agent of a foreign state necessarily).

o Probable cause that someone is an agent of foreign power AND that the surveilled means will be used by them

o 3 circumstances for electronic surveillance: After FISC order By AG, in an emergency, but then apply to FISC w/in 7 days Targeting foreign embassies, since AG alone can authorize, once notifying Ct.

and Congress. - FISA 1803 Judges: 11 us district judges (FISC), and 3 district appls judges for FISA review, then

Supreme Court- FISA 1804: What’s in the applications? Made by fed officer after AG office approval, must list

o Identity of targeto Reasons for thinking they’re a foreign agent

o Reasons why you think they’ll use the surveilled meanso Type of information sought (pretty broad)o That you can’t get through other means.

- Wire communications (physical wire, like landline) and Radio communication (anything wireless). The point of interception matters for the different rules. (see handout chart).

3. Terrorist Surveillance Program and the FISA Amendments act of 2008TSP: First Story broke in 2005, was first purported to get communication in and out of US w/o a court order by targeting “those w/ links to al Qaeda.” Could collect contents of calls/emails and also metadata.

White paper defending TSP (from Exec to Senate Committee), p. 609: (Caused one FISC judge to resign in protest of these justifications).Const Arg: CnC authority, defensive war powerStatutory Arg: under AUMF, surveillance is fundamental aspect of war. Also, we must interpret statutory difference in favor of Pres authority.Problem w/ this: Looks like FISA contemplated the emergency need and specifically prescribed 15 days not several years.

FISA Amendments, 2008 (p.619) otherwise known as “702” or “1881” Target must be outside of US, and non USC Cant target one person just to get to get backdoor to an untargetable person Goal must be to collect foreign intelligence information Actual collection happens in US (ISPs) –doesn’t address purely foregn collection AG/DNI authorizes categories of collection, court blesses USG issues directives to ISP containing selectors

How to compare to FISA original? w/ 702 don’t need probably cause, but still must minimize and follow 4th amendment. 702 gives AG and DNI a more special role to “certify” that targeting meets FISA reqs and that it will require assistance of telecom cos. They must submit the cert to FISC.4th amendment challenges to 702: fails reasonable test, and US people get caught up in the surveillance and their communications retained on purpose and inadvertently. (Args haven’t been very successful)

FISC decision (redacted title, 2011, Supp p. 130)NSA couldn’t reasonably do better on collection, but could do much better on retention.

PRISM: not include telephone calls and can’t attach specific names. (retained 5 yrs)Upstream Collection: data collected from undersea cables before it hits the ISPs, includes emails and phone calls. Can do searches to/from/about the target (but just the email itself, not the target’s name.). (retained 2 yrs only.)

4. Contemporary Surveillance Controversies and the Snowden EffectPatriot Act Sec. 215Was an amendment to FISA made after 9/11.

- Let FISA issue orders to turn over “any tangible thing” from “any person or entity,” lowered standard further for factual support. Only started using this in 2004.- NatSec apparatus uses this to get FISC to give them access to metadata.- FISC gives 2 orders: one to USG on orders to limit etc, and one to the telecoms to give all metadata to USG, and update it daily.- USG takes and can retain data on servers for 5 years- Limits on USG use: can only search when they have a reasonable suspicion (lower standard than probable cause) that they will find a particular member of terrorist org on a phone #; and they can go 3 hops from the identifier’s number-Controversial because so much stored data, primarily of USCs, and all this stuff isn’t “relevant to an authorized investigation” like Sec. 215 requires.-Government argues that they’re not looking at content, that maybe all this has been disclosed to 3 rd parties so no expectation of privacy.

District court Reactions: 1) klayman (DC circuit) this is Orwellian, unreasonable, 2) 2nd Cir, it’s a blunt tool, but is not unconst and follows the statutes.

POTUS reaction to Snowden leaks: Forced to address problems and declassify some things, defend the program. Changes: just two “hops” now, contemplating changes in who holds data, FISC evaluation of reasonable suspicion, and look for alternatives to metadata. USA Freedom act?

5. Guest Speaker Sally Moyer

FBI has law enforcement but also primary resp. for counterintel in the US.

Foreign intel must be significant but not necessarily primary reason for search, since 9/11 and PATRIOT act helped bring down wall between criminal and intel community.

Process:FBI agent FBI field office supervisors FBI headquarters lawyers DOJ FBI certification Field agent affidavidit/documentation headquarters lawyers FISC Finally FBI can do the surveillance.

Is FISC just a rubber stamp? No, the lawyers take it seriously.

USA Freedom act makes Ct. appoint amicus t argue when important cases come up. Is rare so far, but may produce chilling effect (really just making them think more carefully about what they bring to court).

V. Combating Terrorism/ Policies1. Wartime Detention and the Geneva Conventions

International Humanitarian Law (jus in bello)

Geneva Convention III and IV (p.236-39- Common article 3: refers to armed conflict not of an international character- Vast majority of articles of both refer to interstate conflict.- Gen III Art 4: who is a POW- Gen III Art 17: Limits on treatment of POWs- Non interstate conflict (like civil wars) may not create the same worries of states for reciprocal

treatment.

Different types of Conflict: Interstate, non interstate, but is there a 3rd type, transnational (occurring in many states, but not involving purely state actors)? After all, looking at GenCon only would seem to be a black hole. However, SCOTUS in Hamdan said it was an international conflict under CG III.

Al quaeda/Taliban in GenCon detention context:Bush determines Taliban not entitled to POW status because don’t fit Gen III Art 4, don’t carry arms openly or conduct operations in accordance w/ law of war. Didn’t have to give them same protections like payment for work, high residence standards, etc.Should there have been a distinction between AQ and Taliban?

Hamdi p. 831, 2004Ct: Hamdi was an enemy combatant. However, as USC he needed more process than he got. There are lawful and unlawful combatants and we can detain either. Case reclaims power of judicial review.

2. Who is Detainable?

2 of USG’s biggest challenges in figuring who they can detain:- What are the categories?- Who fits in those categories?

USC Status doesn’t factor into whether you can be an enemy combatant, but can affect your procedural rights (see hamdi).

Al Marri p. 857 4 th circuit 2008 He was an LPR. Bare majority upheld his detention, But another bare majority also held he hadn’t had proper DP to challenge his detentionTraxler concurrence (p. 867) made both majorities, remanding to district court to see if he was actually a combatant subject to detention.

Al Bihani p. 877, 2010Bihani’s arg: anyone who’s not a state soldier must be treated like a civilian, and also 2001 AUMF ended w/ Taliban’s defeat.Ct: When conflict ends is a political determination, and there’s no indication congress intended AUMF to be limited by IL of war (though this conflicts with presumption of always assuming that is the case where possible).

Government’s “March 14th” Brief: Authority to detain at Guantanamo Bay:- Arg 1: AUMF gives exc power to detain and is consistent w/ law of armed conflict. AQ etc don’t

follow rules of war, aren’t state actors, but historically that doesn’t matter.- AQ and others can’t be treated as civilians. That they hide among civilians doesn’t make them

one, treating them as such puts real civilians in danger in conflict w/ purpose of IL rules.

Who is detainable =/= Who is targetable (using force to kill)

ICRC Report:1) Those continuously engaging in direct participation in hostilities (DPH) are always targetable

and detainable.2) Others are targetable for such time as they take part in DPH

To count as DPH, must have 1) serious threshold of harm, 2) causal link btw acts and harm, and 3)belligerent nexus of intent and support.

3. Judicial Review of Military Detentions

Courts typically don’t want to wade into detention decisions, or don’t have the statutory jurisdiction, since they may be tactical or political decisions.

Boumedienne v. Bush (p. 787, 2008Qs: Do Ds have habeas rights? Has congress successfully withdrawn writ? If not, have they provided an effective substituteON extraterritoriality precedent generally said fundamental const rights apply in US unorganized territories, but Kennedy says Gitmo functionally is that. Ct’s factors on determining habeas petition:

1) status of detainee2) process by which they were captured 3) is there an adequate substitute for habeas

Kennedy says in this case they weren’t satisfied; Congress didn’t formally suspend habeas, and the statutory alternative was inadequate. Limited Eisentrager precedent that fed cts can’t review detention of alien at Gitmo.

Al MaqalehDetainees at air force base tried Boumedienne tactic and failed (not entitled to habeas). Ct drew territorial line; gitmo counted and Afghanistan base didn’t.

Congress has through appropriations forbid DOD from spending money to transfer dangerous Gitmo detainees to the US; could be a constitutional showdown over infringement on CnC powers. Congress also set very high bar on release of non-combatant detainees.

4. Rendition

1) extradition: made pursuant to treaty which contemplates justice issues and courts, and subject to exceptions. Endgame is criminal prosecution. Depends on consent from territorial state (unlike the categories below)

2) Renditions to justice: go in and remove someone from foreign country to bring to justice here3) Renditions: pick up someone overseas for detention but not to istreat or be able to harshly

interrogate4) Extraordinary rendition: Pick up and transfer to a state where they can be mistreated and

interrogated.

Purposes of rendition: to get to trieal, to be able to move to a place where you can get information more effectively; to get off the street.

Legal/ethical issues:- Illegal under CAT? 3(1)- no deporting where substantial grounds for believing he’ll be tortured.

U.S interprets this as a more likely than not standard.- Mere fact of rendition might be violation of human rights and rule of law.- ICCPR article 9(4)—entitlement to proceedings before a court.

Diplomatic assurances: US uses them, but not consistently, to avoid CAT problems or even where it doesn’t believe CAT applies, like Guantanamo.Problems/alternatives: Maybe should just transfer to other countries covertly since we shouldn’t be worried about them, maybe we should stop DAs because they’re unreliable and send a bad signal internationally that a rubber stamp is all you need.

General role of US courts:Rule of non-inquiry: will defer to exec on whether extradition is proper.Cts like to use political question doctrine.

Arar v. Ashcroft p. 953, 2009, 2 nd cir Seeking damages for his torture, to extend “Bivens” action-Ct. here refuses to do, it would force court to condemn exec rendition policy.- It’s up to congress to create a remedy process for similarly situated people if it wishes. It’s competent to figure that out and only then can the courts jump in.

5. Interrogation and the Torture Memos

Glenn court martial, 1902, p.896 You can’t say to justify water torture that 1) it was habitually used and 2) it was a special military necessity.

OLC on Interrogation (2005, p. 900)Enhanced interrogation

- Nudity- Restricted diet- Sleep deprivation

Coercive techniques- Walling- Waterboarding- Water dousing- Stress positions- Wall standing- Cramped confinement.

OLC takes CIA’s word for it on biological effect of techniques.SSCI report suggests it’s not realistically accurate that only these techniques were followed, or followed perfectly all the time.

CAT definitions of torture:-severe pain or suffering, whether physical or mental, intentional w/ some discriminatory reason and done by/with consent of public official.-No exceptional circumstances; states must try to prevent others on its territory from doing so too.

US Statutory torture law-definition similar to CAT, including threats to death and death of others.-is criminal for an official to do so, jurisdiction over any torturer in the US, or over US torturers abroad.

Torture opinion/memos Controversy: Said only the most extreme suffering would count as torture.Criticized after for John Yu relying on own ideology, sloppy and ignoring precedent.Yu should have made clear that legal opinion is not the same as policy opinion.

After memo leaks, Bush tries to redefine common article 3 of GenCon’s “outrages against personal dignity” but Obama reverses course and buys in to Common article 3 wholesale.No more secret sites, ICRC gets access to detainees.

SSCI reports:- We forget lessons of history- Program was not necessary or critical to stopping terrorism- CIA mislead on efficacy- Conditions were brutal- Management of program was bad.

6. Targeting and Drones

Targeting- Principle of Distinction (CIL): in armed conflict, must distinguish btw civilians and here stuff and

military objectives.- Jus in Bello Proportionality: Cant attack if expected civilian loss is excessive relative to contcrete

and direct military advantage anticipated (hard to apply w/o great intelligence, hard to quantify advantage). This is also (CIL, but codified in Additional protocol 1). Can affect what weapons you use, may create need to warn. (different from jus ad bellum proportionality, which is about choosing overall response level toward opposing side in armed conflict).

- Precautions in attack: try to avoid or minimize loss of civilian life; can put greater burden on countries with capability for expensive, advanced targeting abilities. Even if other side uses human shields, we still must follow the rules.

Drones- Idea is to hit more accurately while also keeping your side more safe and further from harm.- Issue: collateral damages to civilians- Issue: CIA angle: they’re in charge of some strikes along w/ DOD. Might be advantages like more

accuracy, but also problems of covertness, deniability, may not follow laws of war as well as DOD.

- Issue: Transparency- not much info released on who’s using drones where - Issue: may make consent easier, and thus ramp up number of conflicts, since states may be

more likely to allow drone strikes in remote areas than soldiers.