Spring 16 National Security Law Alexandra Fulcher P r o f. B o b b y C h e s n e y
Table of Contents Attack Outlines... 4 System for evaluating system of punishment:... 4 1. Collecting Communications Content... 5 2. Targeting and Detention, Overall Decision Tree: What bodies of law are applicable? Conflicts of law?... 6 3. International Law Detention Analysis... 8 4. Domestic Law Detention Analysis... 9 5. Targeting Decision Tree... 10 6. Domestic War Powers Analysis... 11 7. War Powers Resolution ( hostilities )... 12 Legal Regulation of Intelligence Collection... 13 Introduction... 13 Statutory and Constitutional Foundations... 14 Title III of the Omnibus Crime Control and Safe Streets Act of 1968... 16 Foreign Intelligence v. Domestic Intelligence... 16 Foreign Intelligence Surveillance Act of 1978... 18 The Wall... 21 In re Sealed (FISCOR 2002)... 21 Collection Outside of FISA: Executive Order 12,333... 22 Post-9/11: Terrorist Surveillance Program (TSP)... 23 702 of FISA Amendments Act of 2008 ( FAA )... 24 In re Directives (FISCOR 2008)... 27 Acquisition Process: How 702 actually works... 28 Collecting Data Stored by a 3rd Party... 29 United States v. Miller (SCOTUS 1976): Third Party Doctrine... 30 Smith v. Maryland (SCOTUS 1979)... 31 ECPA Title III: The Pen Register Act... 34 Collection of Third-Party Data: Foreign Intelligence and National Security Investigations... 34 Bulk Collection of Third-Party Data... 36 Klayman v. Obama (D.D.C. 2013)... 38 ACLU v. Clapper (S.D.N.Y. 2013)... 39 Privacy and Civil Liberties Oversight Board (PCLOB) Analysis of 215... 39 PCLOB Analysis of 702... 40 President Obama s Response... 42 Regulating the Powers to Detain, Kill, Interrogate, and Prosecute... 44 Introduction... 44 The Laws of Armed Conflict... 44 Military Detention... 45 In re Territo (9th Cir. 1946)... 45 GC III Rules on POW Detention... 46 Protected Persons: GC IV... 47 Protections Afforded to Protected Persons... 48 Detention in a NIAC... 49 Additional Protocol I of 1977 (AP I)... 50 Developing Detention Policy Post-9/11... 50 Judicial Review of Military Detention... 54 2
Johnson v. Eisentrager (SCOTUS 1950)... 54 Rasul v. Bush (SCOTUS 2004)... 55 Hamdi v. Rumsfeld (SCOTUS 2004)... 55 Boumediene v. Bush (SCOTUS 2008)... 56 Principle of Proportionality... 58 International Human Rights Law and Lethal Force... 58 Integrating LOAC and IHRL: The Israeli PCATI Decision... 60 Domestic Law in the US: Executive Order 12,333 s Ban on Assassinations... 60 Targeting of US Persons... 63 Tennessee v. Garner (SCOTUS, 1985)... 63 Anwar al-awlaki case:... 63 Interrogation... 64 Introduction... 64 LOAC Rules on Interrogation... 64 Federal Criminal Law: The War Crimes Act... 65 IHRL Rules on Interrogation: The Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment ( CAT )... 65 Federal Criminal Law: The Torture Act... 66 Post 9/11 Interrogation Policy and Law... 67 OLC Analysis of the Torture Act (August 2002)... 67 OLC Memo on EITs and CAT Article 16 (May 2005):... 68 Hamdan v. Rumsfeld (SCOTUS, 2006)... 69 National Defense Authorization Act for Fiscal Year for 2016... 69 War Powers and Foreign Affairs... 70 War Powers Debate at the Constitutional Convention... 70 Congressional Authorization of War without a Declaration of War... 70 Bas v. Tingy... 70 Little Barreme (1799)... 71 The Power to Authorize the Use of Force... 71 Durand v. Hollins (Defense of Citizens Abroad)... 71 The Prize Cases (1863) (Defense of the nation)... 71 In re Neagle (Protection/Defense of Government Officials)... 72 The Power to Control Foreign Policy... 73 United States v. Curtiss-Wright Export Corp. (SCOTUS 1936)... 73 Youngstown Sheet & Tube Co. v. Sawyer (SCOTUS 1952) Steel Seizure Case... 75 3
Attack Outlines System for evaluating system of punishment: Permissive Strict Substantive Permissive Procedural safeguards Strict UN charter Use of force WPR hostiles GC armed conflict Constitution war? (Obama Libya) Be on top of this calibration and object stuff 4
1. Collecting Communications Content Variables Complicating the Law of Investigative Power: a) What is the government s investigative purpose? i) Develop evidence for criminal prosecution? ii) Foreign Intelligence (1) The distinction is not about location or where the person/target is, but rather is about who they are working for or on behalf of (2) 4 th A: No warrant required (but FISA may) iii) Domestic Intelligence (1) 4 th A: Keith special warrant required b) Seeking Content or metadata? c) What method is being used? d) Where is the communication being intercepted? e) What legal rights does the target have? i) Citizen? ii) Physical location? 5
2. Targeting and Detention, Overall Decision Tree: What bodies of law are applicable? Conflicts of law? Step 1. Determination of Applicable Law: One or more applicable bodies of law, then think about which each creates as a rule set followed by Step 2. *Conflicts of Law Analysis*: Take bodies of law that do apply identify and isolate what rule they seem to provide for that gov t action. There may be competing rules that proscribe different behavior. o International Law: LOAC Is this actually armed conflict? Is it: o 1. Two states and o 2. Armed conflict (some force + belligerent intent)? If yes, IAC If not, then is there a: o 1. State + Non-state actor o 2. Level of force beyond ordinary LE (length + frequency) and o 3. Degree of organization of ostensible non-state entity (organized + objectively identifiable) Note: other factors: Level of destruction (deaths & property) Are parties using uniforms Loss of territorial control If yes, NIAC If IAC or NIAC UN Charter applies and requires use of force be authorized by: Self-defense article 51 (individual or collective) o Requires armed attack (though perhaps can be stretched) UNSC Resolution for the use of force Article 42 Article 2(4) Waiver theories: disputed track based on waiver, not authorized by charter but perhaps consistent with it o Consent (well-settled) Complications: Who gave consent? Governments are not monolithic o Host state is unwilling or unable to protect against threat within its borders or o Responsibility to protect (legitimate, but not legal, i.e. Kosovo) Note: UN Participation Act (domestic law) comes into play If IAC or NIAC LOAC/IHL applies and requires *See Targeting*: Geneva Conventions o Covered by CA2 (IAC)? GPW III or GPP IV o Covered by CA3 (NIAC)? 4 Principles of LOAC o Necessity (some military advantage, i.e. not arbitrary) o Proportionality (to any collateral civilian harm) o Distinction (directed against combatants) o Humanity (minimize any unnecessary suffering) Does IHRL apply? *See Targeting*: IHRL requires: 6
o o o o Color of law: is there a domestic law foundation for the state to use lethal force? o Purpose: did the state use lethal force to protect the lives of others? o Timing: Was that threat to life actually imminent? o Necessity: Was this the only realistic alternative? Note: strong elements of necessity and exigency with lives at stake. Very analogous to local LE using lethal force very different from status-based targeting of combatants. Discuss that US position that ICCPR does not apply extraterritorially. And, that if LOAC only IHL applies not IHRL b/c of lex specialis. Whereas allies position is both apply. o *Perform Conflicts of Law Analysis*: What result under US contention no extraterritorially and no IHRL in LOAC? (can reference above analysis) What result under allies position? If IAC or NIAC (mostly NIAC) is there any geographic scope of conflict issue? US will contend no. LOAC follows the other party wherever it goes and only IHL applies. o Still UN Charter problem with sovereignty though If the LOAC infringes on sovereignty of non-party to the conflict *Perform Domestic Law: Statutory? Conflicts of Law Analysis*: o Does IHL follow the other party (usually non-state actor) all over the globe? Or does IHRL apply in places outside of the combat zone? Explain why each might apply + what they would require. Compare what each would entail. Constitutional? Does what is authorized domestically (especially by statute) conflict with international law (broader or narrower)? o If yes *Perform Conflicts of Law Analysis*: Compare what is authorized domestically to int l law and explain what happens when both apply. Ex: Dec. of war may limit what president is authorized to do though LOAC may be broader. If Dec. doesn t specific LOAC applies. (Territo) Ex: Lethal force International Law: US will say LOAC/IHL. Red Cross and Most law profs will say IHRL ICCPR, CAT etc. (deprivation of life)? US narrow interpretation of no applicability extraterritorially. Domestic Law: 5 th amendment and 4 th amendment, executive order 12,333. 12,333 includes prohibition on assassination. Was the IAC or NIAC compatible with IHRL including: ICCPR, CAT (US denies applies extraterritorially) o Note: US denies ICCPR applies extraterritorially. US also contends that if LOAC only IHL applies not IHRL. Ex: Turkey shot down Syrian jet in its air space. LOAC not applicable. Low intensity one time event State vs. state = not enough IAC rules. (but if state vs. non-state maybe enough) Turkey part of NATO so collective self-defense obligation 7
3. International Law Detention Analysis Int l Law: Is the situation an armed conflict? If yes: o Is there declared war or armed conflict b/w 2+ High Contracting Parties (i.e. IAC)? If yes CA2 applies meaning so do the other conventions. Are they a POW? o If Yes GPW III applies Are they a PP? o If Yes GPP IV applies If not, what is there status? o Baseline customary international law? (Many think CA3 is CIL baseline for everything) Something else? o Or is there NIAC + taking place in territory of contracting party? If yes CA3 applies. Requires: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed out of combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any discrimination (religion, race etc.) For these persons absolutely o No kangaroo courts o No torture, cruel degrading treatment infringing on dignity (CID) o Or is the armed conflict against colonial domination and alien occupation and against racist regimes in exercise of their right of self-determination? If yes did the Party sign on to API? If yes API applies. API requires CA2 (and thus GPW) unless: You don t distinguish yourself from civilians while engaged in attack or in military ops preparing for one. If you simply can t distinguish yourself, must at least carry arms openly during attacks or when visible to the enemy right before. o If you fail this you get CA3. (if you make it then CA2 and GPW still applies). If not, is there a joint coalition? This could raise issues. o If none of the above is he a PP? (need CA2) This includes everyone BUT Detainees covered by the other conventions such as POWS Nationals of states that are not party to the Conventions Nationals of neutrals or co-belligerents that maintain diplomatic relations with the detaining state... if you are on the territory of a belligerent state. o US claims doesn t apply to unlawful enemy combatants b/c they shouldn t get treated as civilians just b/c they broke the laws of war and so were unable to be POWs. o Is he something else? 8
4. Domestic Law Detention Analysis o Is the detainee o Part of, or (membership test approved broadly) o Provide substantial support to (independent support test approved in dicta) Note: this is controversial on int l law. One of the following: o Al Qaeda (undisputed) o The Taliban, or (undisputed) Associated forces (if engaged in hostilities with US or its coalition partners) (accepted in principle but only applied in Afghanistan) o If yes enemy combatant + detention lawful under US law (judicial, executive, and legislative branches have all accepted this) 9
5. Targeting Decision Tree Does LOAC apply? o Is it: 1. Two states and 2. Armed conflict (some force + belligerent intent)? If yes, IAC o If not, then is there a: 1. State + Non-state actor 2. Level of force beyond ordinary LE (length + frequency) and 3. Degree of organization of ostensible non-state entity (organized + objectively identifiable) If yes, NIAC If IAC or NIAC LOAC/IHL applies and requires: o Geneva Conventions If US only I-IV CA2 (IAC)? III or IV CA3 (NIAC)? o Note: gap rejected in Hamdan o Also, CIL baseline If Allies API & II Covered by CA3 (NIAC)? o 4 Principles of LOAC Necessity (some military advantage, i.e. not arbitrary) Proportionality (to any collateral civilian harm) Distinction (directed against combatants) Humanity (minimize any unnecessary suffering) Does IHRL apply (does not require IAC or NIAC)? *See Targeting* o If yes IHRL requires: Color of law: is there a domestic law foundation for the state to use lethal force? Purpose: did the state use lethal force to protect the lives of others? Timing: Was that threat to life actually imminent? Necessity: Was this the only realistic alternative? Note: strong elements of necessity and exigency with lives at stake. Conflicts of Law: o Discuss US position that ICCPR do not apply extraterritorially. And, that if LOAC only IHL applies not IHRL b/c of lex specialis. Whereas allies position is both apply. o *Perform Conflicts of Law Analysis*: What result under US contention no extraterritorially and no IHRL in LOAC? What result under allies position? 10
6. Domestic War Powers Analysis 1. Affirmative Authority There are two possible founts of authority: authorization from congress or Article II. a. Congressional authorization i. Declaration of War ii. Some other express authorization (AUMF) iii. implicit congressional approval 1. E.g., a supplemental authorization, something tantamount to AUMF (thus POTUS can say congresses separation of powers obligation have been fulfilled) b. Article II i. War Authorities 1. Authority to Use Force in National Self Defense (Prize Cases) ii. Authority to Use Force Below Threshold of War (lesser in scale and intensity) 1. Defense of Citizens Abroad (Durand, Kostza Affair often a question of scale sometimes) 2. Force Protection/Defense of Government Officials (Neagle) 3. Armed Diplomacy (Durand) 4. Foreign Policy (Curtiss-Wright) 5. Deployment Power (routine non-combat, Anticipated combat, Combat-advising?) 6. Covert action 11