THE POWERS OF THE PRESIDENTS

LEGAL FRAMEWORK OF NATIONAL SECURITY POLICY

PRESIDENT’S NATIONAL SECURITY POWER
- Sources of power include the Constitution (both specific clauses and bulk grants) and
Congressional delegation (done by statute)
- T.R. theory of POTUS power is he is steward of people and bound to do all he can for them,
but Taft contends that POTUS can only exercise power which came from specific grant of
power
PRESIDENT’S CONSTITUTIONAL POWERS
- Vestiture Clause; Take Care Clause; Commander in Chief Clause; Foreign Relations;
Emergency Powers
DELEGATION AND NONDELEGATION
- Notable cases: The Brig Aurora (1813), Field v. Clark (1892), and JW Hampton Jr & Co v.
US (1928(
- Field: Legislature cannot constitutionally delegate legislative power to the executive, but
SCOTUS upheld statute
- JW Hampton: birthed the intelligible principle test which notes that if there are intelligible
principles for how POTUS is supposed to act, then legislative authority isn’t actually being
delegated
- Four Factors for NDD: Congress may delegate specific authority; statute contains standards
for the exercise of the delegated discretion; executive follows standards; exercise of
delegation otherwise violates constitution
CUSTOMARY WAR POWER
- Arguments are based on history and past actions by political branches and despite war only
being formally declared 11 times there have been 300 instances of use of force up until the
21st century. 125 of those acts were done without explicit authorization
- History may indicate that the President may use armed force whenever he thinks its
necessary for national security
- POTUS may have acquired a customary power for protective intervention for the limited
purpose of protecting Americans abroad from violence
PRESIDENTIAL WAR POWER AND STATUTORY LIMITS AND EMERGENCY
POWERS
- Limits on CINC Clause
o Past Cases: Seizing still ills in Youngstown; Ordering blockade in Prize Cases;
Ordering seizure of vessel in Little v. Barreme
CINC Clause and Core Powers Debate
- The first General and Tactical Command Authority (Fleming); Preclusive Authority and
Core Powers (Ex Parte Milligan)
HIERARCHY OF PRESIDENTIAL WAR POWERS
- Zenith is in the event of a declared war where POTUS can repel attack General Insurrection
Undeclared but Congressionally Authorized Limited War (Little)à If silent, CIC has power
EMERGENCY POWERS
- Standby statutes are acts that have certain powers related to them when emergency is
declared
- 120 standby statutes exist because it might be difficult to bring Congress back in the event of
an emergency and want POTUS to have ability to act
- In response to Nixon using Feed and Forage Act of 1862 as authority for actions in
Cambodia, Congress cancels all outstanding emergences
National Emergency Act
 - Sought to set out a standard process; process is POTUS declaring an emergency indicating
which statute POTUS has authority notifying Congress
- Declaring An Emergency
o NEA does not define emergency so commentators believe the test is completely
subjective
o One theory is that emergency has four aspects: Temporal Character (sudden,
unforeseen, and unknown duration; Potential Gravity (emergency is dangerous and
threatening to life and well being); Discerning phenomenon; Element of Response
(emergency requires immediate action but cannot always be dealt with according to
the rule)
o Example: Presidential Proclamation 9844 declaring national emergency at the border
o Procedural Safeguards
 Must publicly declare (NEA 1621a and 1631
 Must specifically invoke which standby authorities
 Congress then has notice to pass laws and restrict or withdraw emergency
authority
Information Tech Executive Order 13873
- Securing the Info and Communications Technology and Services Supply Chain
- ARGUMENT FROM TEXT
o Forerein adversaries...exploiting...vulnerabilities in information and communications
technology and services
o In order to commit malicious cyber enabled actions including economic and
industrial espionage against the US and its people
o Permitting ownership of certain devises creates “an unusual and extraordinary threat”
o For both individual acquisitions' and when acquisitions are a class
o Such openness (regarding trade) must be balanced by the need to protect our country
against critical natl security threats
o
- Criticism of using the IEEPA to declare emergency as it was not an arising national
emergency but an ongoing trade dispute
Presidential Proclamation 9844
- National Emergency concerning the southern border of the US
- Order diverted billions of dollars in funds appropriated to DOD for milcon
- Originally stopped by a District Court in Sierra club v. Trump, but SCOTUS overturned
lower court because the Sierra Club likely lacked standing
- Other case brought by the Border Network for Human Rights was successful in stopping the
diversion pf only 3.6 billion in milcon funding for the construction of a wall
- Terminated by Biden
Emergency Powers Inherent in Constitution
- Suspension clause: The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require it.
- Calling forth clause: To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions;
- State Response to Invasion- No State shall, without the Consent of Congress, lay any Duty
of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or
Compact with another State, or with a foreign Power, or engage in War, unless actually
invaded, or in such imminent Danger as will not admit of delay.
- Protection of States against Domestic Violence : The United States shall guarantee to every
State in this Union a Republican Form of Government, and shall protect each of them
 against Invasion; and on Application of the Legislature, or of the Executive (when the
Legislature cannot be convened) against domestic Violence.
- Take Care Clause: he shall receive Ambassadors and other public Ministers; he shall take
Care that the Laws be faithfully executed, and shall Commission all the Officers of the
United States.
- Vesting Clause: The executive Power shall be vested in a President of the United States of
America. He shall hold his Office during the Term of four Years, and, together with the Vice
President, chosen for the same Term, be elected, as follows
- Ex: In Re Neagle
o Question was whether POTUS had the legal authority to send a US Marshall to
protect a SCOTUS Justice
o Court decides that POTUS was not acting beyond his power as the Take Care Clause
finds that POTUS is obligated to ensure faithful execution of laws for which a Justice
is crucial
o Notes Executive Vesting Clause
- Ex: In Re Debs
o POTUS enjoins a strike of Pullman workers
o Despite lack of statutory authorization court upholds injunction under broad reading
of take care clause and executive vesting clause
Inherent Powers
- Domestic Emergencies: Take Care/Emergency, Neagle but not Steel Seizure
- Foreign Relations: Curtiss Wright, Zivotofsky II
- Repel Attack: CINC, Take Care, Emergency (Prize Cases)
- Hostages: Take Care, Emergency, Koszta, Dames & Moore
PRESIDENTIAL POWERS CASES
Youngstown Sheets
Rule of Law: The President of the United States may not engage in lawmaking activity absent an
express authorization from Congress or the text of the Constitution.
Background:
- Disagreements over terms of CBAs
- Unsuccessful negotiations and steel mill workers gave notice of intention to strike
- Truman believed such reduction in steel would threaten war effort in Korea
- POTUS issued EO directing Sec of Commerce to take over steel mill, which order was
carried out
- Steel mills brought claim arguing that the order amounted to an exercise of lawmaking
- DC granted injunction COA stayed njunction
Issue:
- May the President of the United States, under his constitutional executive powers, issue a
lawmaking order directing the Secretary of Commerce to take possession of and operate most
of the nation’s steel mills?
Holding (Black)
- POTUS power to issue EO must come from either an act of Congress or Constitution
- Notes that Congress rejected the use of seizure when drafting Taft-Hartley
- POTUS did not rely on any statutory authority
- Since Congress has not acted to grant seizure powers POTUS authority must come from
constitution
o Was conceded by admin that there is no express authority
- Rejects Admin argument that implied powers from Art II are enough to claim right of seizure
- Con charges exec with faithfully executing the laws, not making laws themselves
Frankfurter:
- POTUS has been given such powers sixteen times but at all these occureences Congress
granted the temporary powers
- Such powers were granted only for a specific limited time frame
- Deems that POTUS was acting to remedy only an industrial problem and not connected with a
wartime or national emergency
- In Passing Taft Hartley Congress withheld such seizure powers from the President
- Congress could have given the power but chose to withhold it
Jackson
- POTUS and Congress have distinct powers that sometimes overlap
- POTUS may act pursuant to exec powers, congressionally cgranted powers, or a combination
of both
- POTUS acting under express/implied grant of power he relies on both his and Congress’s
power
- POTUS acting without express grant or denial of Congress’s powers, POTUS acts under the
aggregate of his own indy powers
- POTUS acting in a way that is incompatible with the express/implied will of Congress, may
rely on powers expressly granted to him by the Con
- POTUS is checked by the 5th Amendments prohibition on depriving citizens of life liberty
property without due process of law
- 1. President acts pursuant to delegated authority • Zenith
- 2. President acts in a “zone of twilight” • Question of congressional acquiescence
- 3. President takes measures incompatible with express or implied will of Congress • Lowest
ebb
United States v. Curtiss-Wright Export Corp
Rule of Law: An otherwise unconstitutional delegation of legislative power to the executive may
nevertheless be sustained on the ground that its exclusive goal is to provide relief in a foreign conflict.
Background
- Congress passed res authorizing POTU to stop sale of arms to countries involved in Chaco
Border Dispute
- POTUS issed EO prohibiting munitions sales to warring countries involved in dispute
- Indictment issued alleging D sold arms to Bolivia and violated EO
Issue
- Whether an otherwise unconstitutional delegation of legislative power to the executive may
nevertheless be sustained on the ground that its exclusive goal is to provide relief in a foreign
conflict.
Holding
- Significant decisions in fed govt power to regulate internal versus foreign affairs
- Powers given to fed govt over internal affairs carved from enumerated provisions in the Con from
powers reserved to the states
- Powers given to fed govt over foreign affairs are not carved from state power because states never
had such power
- Fed govt power is vested from the crown
- POTUS is sole organ of the fed govt in the field of intl relations
- Any exercise of power by POTUS must be exercised within CON parameters granted to him but
scope of power in foreign affairs is broad
o Afford POTUS degree of discretion and freedom from statutory restriction
- Domestic power under Constitution was carved out from powers of the states under Articles of
Confederation
 - External sovereignty was not… it passed directly from UK to US (“sovereignty is never held in
suspense”) •
- The Union was prior to the Constitution •
- External powers passed to the Federal government •
- The Executive has an especially strong role (“sole organ”)

Dames & Moore v. Regan, Sec. of the Treasury

Rule of Law: The President of the United States has authority to settle judicial claims through an
executive order if the settlement of claims is necessary for the resolution of a major foreign-policy dispute
with another country and if Congress acquiesces in the president’s action.
Background:
- In wake of Iran Hostage Crisis , Carter declared national emergency and issued an EO freezing all
Iranian assets under IEEPA
- Carter also ordered that lawsuits against Iran interests could not proceed with admin approval
- Admin granted license for lawsuits against Iran intersts which allowd prejudgment attachment of
property but not final judgments
- P sued D based on failing to pay for Ps work on Iran nuclear power plant
- Hostaes released pursuant ot US/Iran agreement
o US govt would end all pending litigation gaisnt Iran by referring said cses to a particular
tribunal established ot facilitate settlements
- Reagan issued EO requiring all such cases moved to tribunal and ordered transfer of Iran assets to
Treasury for settlements
- After EO, DC stayed final judgment in case for AEO
Issue
- Does the President of the United States have the authority to settle judicial claims through an
executive order as part of a resolution of a major foreign-policy dispute with another country?
Holding
- Accepts IEEPA claim as legislation does not forbid nullification of attachments but rejects
it terms of suspension of claims
- Notes that Hostage Act was passed in response to Americans being detained due to
country’s refusal to recognize citizenship while in this case Americans are being detained
due to their citizenship
- Looks to enactment of Intl Claims Settlement Act of 1949 which implicitly approved
practice of claim settlement by exec agreement which it interprets as having implicitly
approved practice of claim settlement by exec agreement
- Notes Haig v. Agee: Such failure of congress specifically to delegate authority does not
especially in the areas of foreign policy and national security imply congressional
disapproval of action taken by Exec
- Notes Youngstown which found that enactment of legislation closely related may invite
POTUS responsibility
- US v. Pink; Scotus upheld validity of Litvinov Assignment where USSR assigned to the US
amounts owed to it by American nationals because it was heavily connected with
normalizing of relations
- Notes lack of Congressional disapproval of POTUS actions
- Upholds both nullifications and claims as exec power in foreign relations is extensive
- US has historically exercised right to settle the clais of its nationals against foreign govts for the
purpose of keeping peace with those govts
- POTUS has historically used Eos without consent of the Senate to settle claims
- Congress has approved practice implicitly through the enactment of the Intl Claims Settlemnt Act
of 1949
 o Provided for a tribunal to settle disputes between US and Yugo
o Act has frequently been amended evidenced Congress’s continued approval of POTUS’s
claim-settlement authority
Zivotofsky v. Kerry
Rule of Law: Article II of the Constitution grants the U.S. president the exclusive authority to formally
recognize a foreign sovereign through executive power that Congress may not contradict via statute.
Background
- P born to US citizens living in Jerusalem
- Ps mother requested a passport and report of birth abroad for her son listing place as Jerusalem
Israel
- Request was denied pursuant to State policy put forth by POTUS which found that passport could
only list Jerusalem
- P claimed a section of the Foreign Relations Authorization Act permitted citizens born In
Jerusalem to list POB as Israel
- COA affirmed PQ determination of lower court but reversed DCs standing issue
- SCOTUS granted certiorari to review, vacated, and remanded to COA to detemrinr whether Ps
interpretation of 214 was correct and whether the statute was constitutional rather than the
question of whether Jerusalem was in fact part of Israel
Issue
- Does Article II of the Constitution grant the U.S. president the exclusive authority to formally
recognize a foreign sovereign through executive power that Congress may not contradict via
statute?
Holding
- Art II of Con grants POTUS exclusive authority to formally recognize a forein soverign which is
exec power that Congress cannot contradict via statue
- Recognition is formal acknowledgment that particular entity posessess the qualifcations for
statehood
o Such status confers benefits
- Pursuant to Reception Clause Congress has deferred to POTUS in matters related to recognition
and making treaties
- Congress has no similar Con power that would enable it to initiate diplomatic relations with
foreign nation
- Congess may estsblish uniform Rule of Naturalization but may not contradict POTUS’s exclusive
authority to recognize legitimacy of foreign states and govts
- Arguments for Exec Power
o Textual
 Receive Ambassadors Art II Sec 3
 Inferred from Treaty Clause Art II sec 2 cl.2
 Appoint Ambassadors Clause Art II Sec 2 cl. 2
 Foreign Affairs (as interpreted in Curtiss Wright)
o Functional
 Speak with single voice
 Complext and interdependent world therefore need. Congressional input
o Historical
 Not unbounded authority as described in Curtiss Wright
 Curtiss Wright did not hold that President is free from Congress
 Recognition is a power exercised solely by the President
Roberts Dissent
- Have never seen POTUS directly defying an act of Congress and notes that the act is not
recognition as it merely gives constituents an opportunity to select city/country
Scalia Dissent
- Notes that founding fathers did not believe POTUS should have foreign relations power
similar to King
- Uniform rule of naturalization enables Congress to grant US citizenship to someone born
abroad which means that if Congress can grant passport it should be allowed holder to
record appropriate place of birth
- Identification does not equal recognition
Prize Cases
Rule of Law: The president may use force against belligerent states during civil war in the absence of a
congressional declaration of war.
Background
- Congress is not in session at beginning of war and POTUS issued EO commanding blockade of
Confed state ports based on laws of natl authority
- Warning if attempted ot leave blockade and if ignored would be captured as a prize
- After POTUS action Cognress enacted statutue authorizing blockade
- Owners of ships captured brought action challenging legality
Issue
- May the president use force against belligerent states during civil war in the absence of a
congressional declaration of war?
Holding
- Based off exec powers POTUS may use force against rebelling states during a civil war w/o
formal Congressional declaration of war
- Art II Sec 2 finds POTUS is CINC and has power to direct the Army and Navy of the US
- When at war with foreign nation POTUS is obligated to use force against any such threats
o Obligation does not wait for legislative approval
- War was abrupt and unexpected
- Decision of whether Civil War is sufficient is POTUS decision and within POTUS discretion
- Order of blockade proves that a state of war existed which justifies POTUS decision to use force
- Notes that Congress did pass a series of statutes that made POTUS actions valid
Dissent
- POTUS had no power set a blockade and Civil War can only exist by congressional act since
power to declare such a war is granted to Congress explicitly

Little v. Barreme- POTUS POWER AND STATUTORY LIMITS

Background
- Quasi war where war was neither declared by either party and fought in Atlantic Ocean by
navies
- Flying fish was seized as US navy captain believed the ship was flying a false Danish Flag
- Congressional authorization was for seizure of ships going to a French port but order given
to Navy officers stated Navy could stop shipping going to or from French ports
Decision
- Court decides the act was a trespass and finds Captain responsible despite him merely
following orders
- POTUS may not override the Congress’s instructions
o Congressional instructions were only to seize American ships and only those vessels
sailing to France

CONGRESSIONAL AUTHORIZATIONS FOR ARMED CONFLICT

Declaration of War
- Congress declares war, but POTUS is typically first to move forces into combat situations
 - Why a Declaration?
o Put nations full resources into opposition; notifies who belligerents are; sets out who
is not belligerent; various rights and obligations to neutral parties; marks clear
beginning to the conflict; sets out legal mechanisms that may exist
2001 AUTHORIZATION FOR USE OF MILITARY FORCE
- Question is whether under the AUMF has US military activities in Afghanistan, Syria, or
elsewhere been authorized?
o Arguments for include senior leadership of ISIS used to be in Al Qaeda; Purposive
Interpretation which is focused on general purpose of AUMF was to counter
terrorism focused on US; conflict involves orgs that are going more or less in
direction of org carried out 9/11
o Arguments against include Al Qaeda and ISIS are not same organization
- Concern that narrow interpretation of AUMF does not appreciate complexity of war with
terror orgs and fact that it is sometimes unclear who has carried out action
- Broad interpretation of AUMF is problematic because enables POTUS to send troops into
battle in a broad variety of circumstances on issues Congress may not have considered and
hands decision making power to exec
WAR POWERS RESOLUTION
- Frames divide of power between Congress and the Executive
- Was an attempt to deal with questions dealing with divide of power between Congress and
Executive
Consultation Requirement (Section 3)
- POTUS in every possible instance must consult with Congress before involving US forces in
hostilities or situations where involvement in imminent hostilities is indicated or moving
forces into a foreign nation equipped for foreign combat
- Definition of consultation is unclear
Reporting Requirement (Section 4)
- If one of the three things detailed in Section 3, POTUS shall submit a written report to
Speaker and President of the Senate detailing certain factors within 48 hours
Hostilities Requirement
- After 60 days of a report being submitted or is required to be submitted by the legislation,
POTUS must terminate the use of military
- Can be continued if: Congress has declared war/enacted specific authorization for such use;
Congress extension of 60 day period; Congress unable to meet due to attack on US
- Can be extended by 30 days if POTUS certifies in writing that continued use of force is
required
- Exec argument against 60 day clock: CINC clause, Exec Vesting Clause (Art II, Clause 1),
POTUS ability to command in situation of armed conflict, 60 day clock limits use of
POTUS power, goes into tactical authority
WAR POWERS RESOLUTION
 Section 3: “The President in every possible instance shall consult with Congress before
introducing United States Armed Forces into hostilities or into situation where imminent
involvement in hostilities is clearly indicated by the circumstances, and after every
such introduction shall consult regularly with the Congress until United States Armed
Forces are no longer engaged in hostilities or have been removed from such situations.”
o President “in every possible instance shall consult” and after every such
introduction “shall consult”
 Does not use parallel terms, giving room for interpretation.
  Compare to executive/legislative vesting clauses in which parallel
terms are also not used.
o WPR fails to specifically address when consultation is required and who needs to
be consulted.
 Section 4(a): “In the absence of a declaration of war, in any case in which the United
States Armed Forces are introduced-(1) into hostilities or into situations where
imminent involvement in hostilities is clearly indicated by the circumstances; (3) in
numbers which substantially enlarge United States Armed Forces equipped for combat
already located in a foreign nation; the president shall submit within 48 hours to the
Speaker of the House of Representatives and to the President pro tempore of the Senate a
report, in writing, setting forth-- (A) the circumstances necessitating the introduction of
United States Armed Forces; (B) the constitutional and legislative authority under which
such introduction took place; and (C) the estimated scope and duration of the hostilities or
involvement.”
 Reporting requirement: President shall submit within 48 hours to the Speaker of the House
and to the Senate pro temp a report in writing:
o The circumstances necessitating the introduction of armed forces;
o The constitutional and legislative authority under which such introduction took
place; and
o Estimated scope and duration of the hostilities.
 Legal Issues: What constitutes consultation?
o Speaker and pro temp?
o Committees?
o Do you really want to announce an attack?
o Practical concerns?
 Gang of 8: Leaders of each of the two parties from both the Senate and the House, and the
chairs and ranking minority members of both the Senate Committee and House
Committees for Intelligence.
 Argument for consultation requirement:
o Either the President or Congress can have bad judgment sometimes so it is check on
the groupthink mentality.
 Argument against consultation requirement:
o To advise and consult with Congress is next to impossible.
o Congress members are uninformed; informing them is a waste of time.
o Separation of powers concerns.
 Section 5(b): Within sixty calendar days after a report is submitted or is required to be
submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate
any use of United States Armed Forces with respect to which such report was submitted
(or required to be submitted), unless the Congress (1) has declared war or has enacted a
specific authorization for such use of United States Armed Forces, (2) has extended by law
such sixty- day period, or (3) is physically unable to meet as a result of an armed attack
upon the United States. Such sixty-day period shall be extended for not more than an
additional thirty days if the President determines and certifies to the Congress in writing
that unavoidable military necessity respecting the safety of United States Armed Forces
requires the continued use of such
 armed forces in the course of bringing about a prompt removal of such forces.
 President must stop using armed forces within 60 days unless Congress:
o Has declared war or has enacted a specific authorization for such use of US armed
forces;
 o Has extended by law such 60 day period; or
o Is physically unable to meet as a result of an armed attack upon the U.S.
 No overt congressional action would be required to cut off powers; they would disappear
automatically unless Congress extended them.
Arguments against the War Powers Resolution (Nixon Veto Letter)
 Unconstitutional: President has explicit constitutional authority to act and War Powers
resolution violates that. Article VI Supremacy clause explicitly states that the Constitution
trumps a statute passed by Congress.
 Undermines Foreign Policy: Seriously undermine the U.S.’s ability to act decisively and
convincingly in times. Allies’ confidence diminished because of requirements under WPR.
Adversaries would no longer negotiate but just wait 60 days so troops would have to be
removed. "A permanent and substantial element of unpredictability would be injected into
the world's assessment of American behavior, further increasing the likelihood of
miscalculation and war."
 Failure to Require Positive Congressional Action: Give Congress the ability to impair the
President’s power by doing nothing. Instead, should require Congress to make its will
known through positive action.
CONGRESSIONAL AUTHORIZATIONS FOR ARMED CONFLICT CASES
Bas v. Tingy
Rule of Law: Congress may statutorily authorize the use of military force without formally declaring war
against a nation.
Background
- Conflict between the US and France
- Congress passed number of statutes permitting American naval action against France on the high
seas
o 1798 act allowed for recapture of US owned vessels from the French and for the return to
their former owners for payment of 1/8 value
o 1799 act found that if ships were recaptured from enermy more than 96 hrs later owners
were entitled to one half the full value
- Tingy recaptured a ship belonging to Bas that had been captured by a French vessel
- Tingry returned ship to Bas and brought an action for salage value arguing he was entitled to ½
half of the value as provided by 1799 Aact
- Bas argued he was only entitled to 1/8 the value as provided by 1798 act
Issue
May Congress statutorily authorize the use of military force without formally declaring war against a
nation?
Holding
- In times of hostility between nations use of force might be authorized even when official state of
war does not exist between them
- It was a time of imperfect war in which war has not been formally declared and the authorization
of hostile acts is limited to certain people time and places
- Did not explicitly label France enemy but Congress did take other actions making apparent
France was an enemy
- Therefore 1799 act governs
Patterson
- The ruling of the circuit court should be affirmed. A public state of war does exist between the
United States and France, limited by the authorizations issued by Congress. In such a state, it is
clear that the term “enemy” applies.
Chase
 - State of relationship between the US and France at time of passage of the 1799 act can best be
described as a limited war
- Congress might have been wary of taking such a step but does not change the fact that a hostile
state of afairs did exist between the nations

CONGRESSIONAL DELEGATIONS
- Congress may not delegate legislative power but it is highly contested
- Appropriations power
TYPES OF ARGUMENTS
- Textual; Text + Historical Gloss (text says this and we can look at history where Congress
has not pushed back); Functional (understand the powers to mean this because the functions
of the various branches; Purposive ( look at overall purpose of text and the general intent
that Congress or the framers had in drafting a particular a text
DELEGATION OF NATIONAL SECURITY AUTHORITY
Reconciling Lichter and Greene
- Greene never said that Congress cannot delegate, it just forbade it in the specific case
- Appropriation at issue in Greene was not specific enough to constitute a delegation
- Lichter had Congress writing specific text directing exec as to what it can do to get war
profits
- Delegations must be made explicitly to ensure individuals re not deprived of rights but also
because explicit action in areas of doubtful consideration require clear statements
o The clearer the statement is the better the change the delegation will be upheld
IMPLIED AUTHORIZATION BY APPROPRIATION
- Authorization is a statute that delegates authority to executive while appropriation is a
statute to fund delegated authority
- When executive claims ability to do something due to appropriation and Congress does not
push back, the idea of Congressional acquiescence is enlivened
LUMP SUM APPROPRIATIONS
- Due to these being very broad, there is trouble distinguishing between authorization and
appropriations
- Courts have said it is not permissible to infer acquiescence from lump sum appropriations
when an agency has multiple objectives
APPROPRIATIONS POWER
- Arti Sec 9 Cl 3, Approps Clause
o No bill of attainder or ex post facto Law shall be passed.
- Art I Sec 8 Cl 1, Provide for the Common Defense
o The Congress shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and general Welfare
of the United States; but all Duties, Imposts and Excises shall be uniform throughout
the United States;
- Art I Sec 8 Cl 12-13, Raise Armies, Support and Maintain a Navy
o To raise and support Armies, but no Appropriation of Money to that Use shall be for
a longer Term than two Years;
- Art I Sec 8 Cl 18, Necessary and Proper Clause
o To make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof.
- Negative Limitation: You cannot do X with this money
- Affirmative Limitation: You can only use funds for Y and Z
 - Limitations can be unrelated to program being appropriated to
- Limitations avoid authorization by appropriation
- US House of Reps v. Mnuchin
o The Sword and the Purpose
o “Approps clause provides one foundational element of the separation of the sword of
the executive and the purse of the legislative”
o Separation of sword and purse was the federalist strongest rejoinder to antifederalist
fearful of a powerful president
- Reprogramming: is the shifting of funds within an appropriations account "to use them for
purposes other than those contemplated at the time of appropriation; it is the shifting of
funds from one object class to another within an appropriation or from one program activity
to another.
- Budget Transfer: Move things across appropriations, prohibited without statutory authority
- Post Iran Contra Limitations: In wake of incident, Congress limited reprogramming and
transfers to higher priority items based on unforeseen military requirements
LIMITATIONS ON CONGRESSIONAL WAR POWERS
Nondelegation Principle
- While there is an understanding that in foreign affairs POTUS needs leeway, discretion may
be changing
- In Gundy the CJ, Gorsuch, Alito, and Thomas noted they are willing to reconsider
nondelegation
- In WV v. EPA SCOTUS did not focus on nondel doctrine but imposed a new test that would
sit next to nondelegation- MAJOR QUESTIONS
 If an agency is taking an action, one of the first things that needs to be
looked on is whether the agency is taking on a major question
 Then it must be asked if Congress delegated such authority to the
Agency to deal with the major question
o IF NO IT MUST BE CONGRESS THAT HANDLES IT
Lovett Principle
- It is a substantive principle/limitation that states Congress cannot use approps power in a
manner that would lead to unconstitutional result
Chadha Principle
- Procedural limitation that establishes Congress must follow constitutional procedure

CONGRESSIONAL DELEGATIONS CASES

Lichter v. US
Rule of Law: Congress may delegate the authority to carry out laws necessary and proper for the
execution of its constitutional war powers.
Background
- In ’42 Congress passed Renegotiation Act to respond to need for wartime equipment stemming
from WWII hostilities
- Legislation authorized govt to determinr and collect back excessive profits made by private
contractors
- Constitutionality of act was challeneged under notion that it was an attempt to delegate leg power
to admin officials
o Standards to determine excessive profits was unclear
Issue
- May Congress delegate the authority to carry out laws necessary and proper for the execution of
its constitutional war powers?
Holding
- Implication that any expressly granted Con power may be delegated to another branch by
Congress in order to fulfill that power’s purposes
- Congress must specify the necessary policies and standards that must be followed so delegation
can be considered lawfully granted
- In times of war poer to delegate is important to COngresss ability to give effect to its war powers
and wage a successful war
- Necessary and Proper clause grants Congress the power to make all laws which shall be
necessary and proper, a power which included draft of men to physically fight in the war as well
as power to support men with equipment and supplies
- In times of war/crisis it is expecially important to give effect to the language of the constitution in
a way that will support the defense of natl security not hinder it
- Act is constitutional
Greene v. McElroy
Rule of Law: Congressional or executive acquiescence or implied ratification is not enough to show an
effective delegation of authority to take actions that are potentially contradictory to long-accepted
constitutional requirements.
Background
- DOD creaed by NSA Act of 1947 and as a result the DOD implemented a clearance program
which wasn’t explicitly authorized
- P was engineer employed by a private manufacturer that produced goods for armed services
- Nature of job required security clearence for which Green was discharged based on DOD finding
that it should be revoked; process did not afford him the rights to confrontation and cross
examination
- P argued the actions taken by DOD were not auhtroized by POTUS and violated 5th Amendment
Due Process
- Fed govt argued that authorization from Congress could be inferred from a number of other
contract and crim status showed Congress’s recognition of importance of Keeping military
secrets secure
Issue
- Is congressional or executive acquiescence or implied ratification enough to show an effective
delegation of authority to take actions that are potentially contradictory to long-accepted
constitutional requirements?
Holding
- Decision to authorize questionable CON actions by POTUS/Congress must be stated explicitly
- Unambiguous statement of intent is necessary to ensure protection of impt rights and ensure
rights are not denied to individuals
- Notes that P lost his job and cannot secure another one due to the matter of his firing
- DOD action was not authorized
Frankfurter
- Without even touching on the validity of the procedures involved, the lower court’s judgment
should be reversed, because it has not been shown that either Congress or the president authorized
the procedures through which Greene’s security clearance was revoked.
Sierra Club v. Trump
Rule of Law: The Appropriations Clause prevents the Executive from reallocating and spending
additional funding on a program that Congress has already denied.
Background
- POTUS requested funds to biod border wall; Congress allocated a certain amount and rejected
numerous requests for more
 - Trump signed approps for amount less than desired and then declared natl emergency to
reprogram 8.1 billion pulled from elsewhere
- DOD authorized transferring 1 billion from Army personnel funds to DHS for construction on
drug smuggling corridors
Issue
- Does the Appropriations Clause prevent the Executive from reallocating and spending
additional funding on a program that Congress has already denied?
Holding
- SCOTUS precedent establishes 4 part test to issue a stay
o Movant must show likely success on the merits and irrepable injury absent a stay
o Then msut consider whether the stay will irreparably injure others or serves bublic
interest
- The Appropriations Clause states that “No Money shall be withdrawn from the Treasury, but in
consequence of Appropriation made by Law.”
o Key function is to ensure exec branch does not have unlimited power over public funds
- DOD Approps Act allows SecDef to reprogram military funding to higher priotiryt iterms
based on unforeseen military requirements
o Explictiy forbids moving of funds for things Congress already denied
- Baance of hardships and public interest do not warrant a stay
- Sierra Club could challenge the spending either in an equitable action or under the
Administrative Procedure Act and has demonstrated a likelihood of success on the merits.

THE COURTS NATIONAL SECURITY POWERS

JUSTICIABILITY
- Standing
- Political Question
- Ripeness
SUBSTANTIVE HURDLES
- Cause of Action and
- Qualified Immunity
EVIDENTIARY HURDLES
- State Secrets
Constitutional Sources of Judicial Power
- Arising under laws of US con and treaties
- Cases affecting ambassadors and other public officials
- Diversity jurisdiction with foreign states
IN FAVOR OF JUDIICAL INVOLVEMENT
- Issues involving interpretations of texts/con rights/civil liberties are central to judicial
practices
- Textual arguments
- Historic examples
AGAINST JUDICIAL INVOLVEMENT
- Political branches are better suited than the courts, preferable for CINC to respond
- Military strategy is not area of expertise for the courts
- Textual arguments re con and CINC clause
- Arc of history and acquiescence
ISSUES CONCERING INJURY
- Clapper- Illegally Tapped Conversations (2013(
 o Court finds that there is no standing as the claim was too speculative as surveillance
that occurred may have included claimants but that was not definite
o Too Speculative- imminence should be understood as certainly impending- no
actual knowledge as to whether phones were tapped
o Possibility that other techniques were used for surveillance than the ones at issue
o Unknown if there were authorizations down by FISA- cannot have standing simply
out of a fear of a harm
- Zaidan (DDC 2018)
o Imminence of injury is a fact intensive inquiry
o Claimed admin had included him on Skynet which is a classified list of potential
terrorists which means he was likely on a kill list- two lists, SKYNET and KILL
LIST
o Court notes while there may be correlation no evidence that raises about mere
speculation that Zaidan has failed to prove plausible injury
o Unlike Kareem, who had 5 near miss drone attacks, cannot survive standing claim
QUALIFIED IMMUNITY
- The legality question: was conduct actually unlawful
- The liability question: was illegality clearly established at time of act
REYNOLDS TEST
- Procedural Requirements- need to have for govt to claim that there is a state secret
- If reqs are met court undertakes an analysis of whether this should be viewed as a state
secret- if it is its privileged
- Effects if Privileged
o If case can still be fairly litigated including defense w/o the information the case may
continue
o If the info is central to subject matter including defense , then the court should
dismiss
- Three part analysis for state secrets
o Court must ascertain that the procedural requirements for invoking state secrets have
been satisfied
o Court must decide whether info sought to be protected qualifies as privileged under
the state secrets doctrine
o Ultimate question to be resolved is how the matter should proceed in light of the
successful privilege claim

THE COURTS’ NATIONAL SECURITY POWERS CASES

Smith v. Obama
Rule of Law: (1) A belief that a military campaign is unauthorized or unconstitutional does not
provide a servicemember with standing to challenge the campaign in court. (2) Inherently political
questions involving foreign policy and national security are nonjusticiable, especially when Congress
and the president agree on military action.
Background
- Response to 9/11 Congress passed two AUMFs against those responsible
- 1st aurhroized POTUS to use all necessary force against the terrorists or anyone who harored
them in order to prevent future attacks
- 2nd authorized POTUS to use military as necessary and appropriate to defend natl security
against htreat posed by Iraq
- Intended both to supply specific statutory authority for POTUS to act under War Powers Act
- In ’14 Obama announced plans t odestory terrorist htreat posed by ISIS citing AUMFs
 - Smith sued, asking the court to declare the campaign unlawful because Congress had not
authorized it. President Obama (defendant) moved to dismiss on two grounds: (1) that Smith
lacked standing and (2) that his claims raised nonjusticiable political questions.
Issue
- (1) Does a belief that a military campaign is unauthorized or unconstitutional provide a
servicemember with standing to challenge the campaign in court? (2) Are inherently political
questions involving foreign policy and national security nonjusticiable, especially when
Congress and the president agree on military action?
Holding
- Standing requirement is stringent if resolving dispute requires deciding whether leg or exec
action is unconstitutional
o Smith has not asserted any kind of harm or threat of harm associated with deployment
or that he objects to fighting ISIS
o Soldiers do not have a right to disobey orders on grounds they lack military
authoriszation
o  Smith asserted a novel injury that is not an injury in fact sufficient to support standing.
Therefore, Smith lacks standing to proceed. (
- Both issues in resolving the AUMF are political in nature
- Court lacks judicially manageable standards and are otherwise unequipped to resolve them
- Con clearly intended ot leave foreign policy and natl security decisions to the political branches
- Court is not suited ot investigate the foreign policy nuances of what Smith is seeking
Egbert v. Boule
Background
- Boule is owner of bed and breakfast near Canada/US Border
- Portion of property extended into Canada allowing for illegal crossings and route for
contraband
- Boule worked with Border Patrol and notified them when persons of interest may be staying
at hotel
- In 2014 BP became aware of Turking person of interest staying at hotel
o Once guest arrived BP agent approached but Boule asked him to leave
- Boule alleged that BP Agent Egbert used a show of force and unlawfully harassed him
leading to him being reported to the IRS
District Court
- Ruled for Egbert
- Found that under Bivens, causes of action that would allow citizens to sue fed agents for
violation of their rights could not be extended to 1st Amendment retaliation claims or 4th
Amendment claims touching on immigration issues
COA
- Reversed
SCOTUS
- Emphasizes that recognizing a cause of action under Bivens is a disfavored judicia lactivity
o When asked to imply a bivens action our watchword is caution
- If there is rational reason t odecide remedy should be Congress no Bevins action may lie-
Congress will most likely be the reasonable place
- Procceding is Two Steps- New Bivens context
o Is it meaningfully different from the three cases in which the Court has implied
damages action- Does the case present a new Bevins context
 o If claim arises in new context Bivens remedy is unavailable if there are are special
factors indivdicatign that the Judiciarly is at least arguabley less equipped than
Congress to weigh the costs and benefits of allowing a damage action to succedd
o Two steps really become one:
 Whether there is any reason to think that Congress might be better equipped
ot create a damages remedy
- Finds that Boules actions related to matters intimately related to foreign policy and national
security,which are rarely proper subjects for judicial intervention
- Reaffirm that a Bivens cause of action may not lie where as here natl security is. At
issue
- Bivens alternatmive does not need to afford right to participatrion or appeal
- Issue wth 1st Amendment claim is that recognizing any new Bivens action entails substantial
social costs including the risk that fear of personal montetary liability and harassing litiation
will unduly inhibit officials in the discharge of their duties
- Ziglar: A Plaintiff canot justify a Bivens extension based on parallel circumstances with
Bivens Passman or Carlson unless he also satisfies the analytic framerwork prescribed by
the last four decades of intervening case law
Gorsuch
- Asks “when might a court ever be better equipped than the peoples elected representatives to
weifght the costs and benefits of creating a cause of action
o Funds that creating a new cause of action is an act of legislating
- Get rid of Bivens claims and lt the power belong to Congress
Sotomayor
- Fourth Amendment claim is not a new context as Bivens involed a US citizen bringing a 4th
Amendment claim against individual rank and file law enforcement officers who violated his
con rights by entering property w/o warrant and exercise of force
o Only possible distinction was that thouse officers were with the Fed Bureau of
Narcots while in tis case he was with the CBP
 Such a distinction is not meaningful
- Case has no similarities with Hernandez
o Occurred exclusively on US soil and injury was ot US citizen
- Egbert was not involed in attempting to prevent illegal entry or something wot a strong
connection to natl securityas the foreiegner had already cleared customs
- Accepts 1st Amendment caim as new context not covered
- Nonethelss seeks to reassert Ziglar’s two step test
-
- Reversed COA on 1st Amendment retaliation claim unanimously
- Reversed COA 6-3 on 4th Amendment claim
- Thomas wrote the majority
o Under Bivens only Congress could authorize the ability to permit a damage remedy
for either asserted First or Fourth Amendment violations for cases against fed agents
and cautioned any expansion

El-Masri v. United States

Rule of Law: Pursuant to the state-secrets doctrine, a United States official or agency may prevent the
disclosure of sensitive information in a judicial proceeding if there is a reasonable danger of exposing
military matters that should not be divulged in the interest of national security.
Background
- P was clanedtinely abducted by operates of CIA in Macedonia and taken to US facility in AFG
 - Held and questioned about belief he was liked to terrorism
- Released after capture was determined that capture was a case of mistaken identiy
- Asserted a Bivens claim arguging that his 5th Amednemnt right to due process had been violated
and raised claims under ATS
- Ds claimed State Secrets
o Submitted unclasisifed doc stating why privilege was invoked
o Classified doc providing specifc info sought to be protected from disclosure
Issue
- Pursuant to the state-secrets doctrine, may a United States official or agency prevent the
disclosure of sensitive information in a judicial proceeding if there is a reasonable danger of
exposing military matters that should not be divulged in the interest of national security?
Holding
- Purusuant to state secrets doctrine US official or agency may prevent disclosure of sensitive
info in a judicial procedding if reasonable danger that disclosure would expose military matters
that should not be divulged in interest of natl security (REYNOLDS)
- To determine exemption, court must examine 3 factors:
o First, the court must ascertain that the procedural requirements for invoking the doctrine
have been satisfied, namely that a formal claim for privilege has been asserted by the
head of a federal agency with control over the issue. 
o Next, the court must determine whether the information qualifies as privileged. To do
so, the court may review the information sought to be protected. However, the court
must not force a disclosure by demanding more information than is necessary.
o Finally, if the information is privileged, the court must determine how best to resolve
the action. If the circumstances clearly indicate that the privileged information goes to
the heart of the matter, dismissal is the proper remedy. 
- CIA properly made claim for privilege under doctrine and submitted two declarations providing
unclassified and classified info
- Found that P would not be able ot make a prima facie case without disclosing sensitive info
- Even if P would be able ot make such a case Ds would be unable to maintain na defense
without use of the evidence

INTERNATIONAL LAW
PRE MODERN
Jean Bodin
- Kings and their stats should enjou their sovereignty as legal equals and act independently
POST WWII- THE COLD WAR
Bipolar Intl System
- Us and USSR
The UN Order
- Global org to both resolve disputes and help with intl disputes
- Sought coordination in areas of interest to groups of states
- Seeks to diffuse tensions before things develop into war
- Create certain mechanisms to restrain use of force
ICJ
- Disputes between states
- Do not need to be UN members
- Advisory opinions where organ of the UN asks the ICJ to answer a legal question
- Provisional measures
- CASES
 o Territorial disputes: Chad/Libya
o Use of Force: Nicaragua/US
o Law of the Sea: North Sea Continental Shelf
o UN: Various advisory opinions
20 -21 Century Intl Law
th st

- State concerns (including sovereignty and maintaining international peace and security) side
by side with the principles of protecting and extending the dignity of individual human
beings
- Intl community recognizes values separate and apart from State Sovereignty
Sources of Law: Article 38 of ICJ Statutes
- Conventions
- Custom as evidence of a general practice accepted as law
- General Principles
- Subsidiary means
o Domestic judicial opinions
o Internaitonal tribunal judgments
o The writings of major publicists
- Jus Cogens (NOT LISTED IN ART 38 of ICJ STATUTE)
o Peremptory norms
o Binding on all states
o Agree on existence dispute over content
o Examples:
 Pacta sunt servanda
 Prohibitons of genocide and slavery
CONVENTIONS
- Treaties/Agreements with bilat/multilat distinction
- VCLT
o In writing
o Between two or more states
o VCLT art 2
 “treaty” means an international agreement concluded between States in
written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments andwhatever its particular
designation;
- Signatories are bound by treaty
- Treaties are made by states
CIL
- Custom as evidence of a general practice accepted as law
- State Practice (Objective)
- Time
- Opinio Juris (Subjective)
- Often times inferred
o Looking to see if a state seems to be acting consistently but it may seem against their
short term interest
o Infer it is being done by a sense of legal obligation
- Only state that is not bound by CIL is persistent objector
SOURCES OF LAW: ART 38
- Gen Principles:
 o Old terminology of civilized nations
o Most commonly used as procedural gap fillers
- Subsidiary Means
o Domestic judicial opinions
o Intl tribunal judgments
o Writings of major publicists
JUS COGENS
- Non-derogable norms
- Not equal with CIL as everyone is bound by it
- Pacta Sunt Servanda: Agreements must be kept
- Prohibitions of genocide and slavery
SOFT LAW
- Norms that are not legally binding but can be considered non legally enforceable norms
- EX: Industry standards, non state actors
- States may enter into agreements that are not meant to be legally binding but might have
political effects
UN ACTIONS
- UN GA resolutions are not legally binding, while some UNSC resolutions can be legally
binding
ENFORCING INTERNATIONAL LAW
- Courts and Tribunals (Going to ICJ or ICC to enforce relevant laws)
- Security Council
o States can ask UNSC to authorize enforcement measures against breaching state
(power restricted by veto power_
- Counter Measures
o Self help: Allowed responses under Intl law in which State B will say State A is
violating law and causing negative effects to me. State B can then claim ability to use
countermeasures
HOW TO ASSESS STATE RESPONSIBILITY?
- Questions to Ask
o Was there an obligation
o Was there a breach
 Assessing the application of the rule to the facts
 Treaty interpretation
o Is it attributable to the state
o Are there circumstances precluding wrongfulness
o If no must the state provide a remedy
- Can consult with DASR, which is viewed as CIL
- Questions to ask: Was there an obligation/was there a breach/ is it attributable to the state/are
there circumstances precluding wrongfulness?
- Assessing breach through various options
o Treaty interpretation which can use VCLT
- Interpreting treaties includes good faith, accepting the ordinary meaning or consulting Art 31
of the VCLT
- Article 32 VCLT Interpretation
o Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine the
 meaning when the interpretation according to article 31: (a) leaves the meaning
ambiguous or obscure; or (b) leads to a result which is manifestly absurd or
unreasonable
- Question of Attributability
o Consult with DARS for Internationally Wrongful Acts
o States regard parts of ARSIWA as being a restatement of CIL
o Ch1 of ARSIWA discusses general principles ( act by organ of the state/non state
actor over which state has control)
o Art 2 of ARSIWA- Elements of intentionally wrongful act of a state
 There is an internationally wrongful act of a state when Conduct consisting of
an action or omission
 A: is attributable to the state under intl law; and
 B: Constitutes a breach of an intl obligation to the state
o Art 4 of ARSIWA
 Conduct of organs of a state
 The conduct of any State organ shall be considered an act of that State
under international law, whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it holds
in the organization of the State, and whatever its character as an organ
of the central Government or of a territorial unit of the State.
 An organ includes any person or entity which has that status in
accordance with the internal law of the State.
o Art 5 of ARSIWA
 Circumstances Precluding Wrongfulness
 Consent
 Self defense
 Necessity
 Countermeasures
 Compliance with peremptory norms
REMEDIES
- Cessation and nonrepetition
- Restitution, compensation, satisfaction
VCLT
- Drafted by ILC and adopted in 1969
- As of 2014 114 states are a party; US is not a party but follows it as authoritative CIL
- Purpose: Restate and codify the customary law of treaties
- VCLT as a higher level of cooperation/coordination
EXECUTIVE AND OTHER AGREEMENTS
Interchangeability
- Question of whether action can be undertaken under a treaty or an agreement
EX: JCPOA
- Senate Argument: IF this does not come to the House or Senate it is a sole executive
agreement it is essentially a political declaration/commitment
- Iran Argument: An agreement between two heads of state can be legally binding
EX: Dames & Moore v. Regan
DOMESTIC EFFECTS OF TREATIES
- The Supremacy Clause- treaties shall be law of the land
- Missouri v. Holland: Too heavy a right on too slender a read
 - Canons of Construction
o Charming Betsy: IF there are two ways to interpret a statute, one which would
violate intl law and one which would not, choose the interpretation which would not
violate intl law
o Later in Time
 If you have a statute that is later in time then a previous treaty, later in time
statute governs
INTERNATIONAL LAW CASES
Committee of U.S. Citizens Living in Nicaragua v. Reagan
Rule of Law: The executive and legislative branches may take actions that are contrary to international
law.
Background
- ICJ issued an opinion holding that the US govt support of te Contras violated CIL and an
existing treaty
o Ruled that the US was required to cease financial support
- Prior to issuance of decision US withdrew from ICJ
- Reagan cooperated with Congress to allow for acontinued aid to Contras after ICJ judgment
- Plaintiffs are seeking to put a stop to the support
o Argued that it violated Art 94 of UN charter, CIL, Jus Cogens and 5th Amednment Due
Process rights
Issue
- May the executive and legislative branches take actions that are contrary to international law?
Holding
- Both POTUS and Congress ma take steps that potentially violate intl law depending on type of
violation
- US is dualist
o Views intl law as separate legal system operating outside US legal system
 Means treaties and CIL have the same force as domestic statutes
- When there are contradictions among these forms of laws, the doctrine of lex posterior governs
and thus the one enacted later
- Notes Jus Cogens do not operate domestically as if it were part of US constitution
- Violations of intl law will not necessarily be converted into 5th Amendment violation claims
- Ps have failed to establish that the UN Charter preempts subsequent statute relating to continued
funding of the contras
- Notes that ICJ judgments are not jus cogens
Al-Bihani v. Obama
Rule of Law: The president may (1) lawfully detain any person subject to military commission trial,
and (2) afford lesser habeas corpus review procedures than those provided in civil courts.
Background
- Passed AUMF authorized POTUS to use all necessary and appropriate force against orgs and
persons determined involved in 9/11
- In 08/09 Congress implemented Military Commission Acts addressing who could be detained
under the AUMF providing defnitions of unlawfull enemy combatants and unprivileged enemy
belligernts
- Was a Yemeni citizen who defended Taliban against Northern Alliance in Afh and served as a
cook and carried a weapon for Taliban
- ALB was handed over to US
Issue
May the president (1) lawfully detain any person subject to military commission trial and (2) afford
lesser habeas corpus review procedures than those provided in civil courts?
Holding
- Exec has power granted by Congress to detain unlawful enemy combatants
- Since Congress has not implemented intl laws of war domestically thus court has limited
authority to rely on such sources
- In Hamdi v. Rumsfeld, 542 U.S. 507(2004), the Court ruled that “necessary and appropriate
force,” as contemplated by the AUMF, included the power to detain combatants subject to such
force. 
- According to Boumediene v. Bush,  553 U.S. 723 (2008), once these individuals are detained,
the procedure due to them in bringing a habeas corpus challenge need not mirror the procedures
developed by Congress for habeas corpus challenges to ordinary criminal convictions. 
- The government’s military operations would be dangerously burdened if it were required to
engage in the evidentiary procedures required for habeas challenges by U.S. citizens seized
within the United States. 
- Wen govt is defending a wartime detention lower burden is justified
- ALB fits within definitions of enemy combatant or belligerent under AUMF and MCA
Williams
- The court did not have to address the role international law principles play in the grant of
authority here, nor did it have to address the adequacy of the district court’s habeas review
procedures.
Brown
- Though the Supreme Court has charged this court with developing rules to review whether
certain military actions are appropriate during wartime, this task may be better suited for
Congress.
Kavanaugh Opinion
- Notes difference between self executing non self executing treaties
- Intl law norms are not domestic US law in the absence of action by the political branches to
codify norms
o REVERSES THE PAQUETE HABANA
- Embraces Dualism
Brown Opinion
- Opposes notion that there is a default rule that statues should be interpreted in conformity
with intl law
- Idea that national norms hang over domestic law” is alien to case law and an aggrandizement
to the judicial role beyond the Constitutions conception of the separation of powers”
Williams Opinion
- Not an issue of something being legally binding
- Courts use a wide range of information outside the words of a statute to find those words’
meaning.”
- Does not state that CIL should bind Congress, but absence of some type of showing that
there was an intent to violate law interpret something as being consistent with intl law

EXTRATERRITORALITY
Boumediene Factors
- Citizenship or status of detainee
- Nature of the sites of apprehension and detention
- Practical obstacles
Extraterritorial Effects of US Statutes
- The Alien Tort Statue
o Judiciary Act of 1789
 “the district courts shall have original jurisdiction of any civil action by an alien
for tort only, committed in violation of the law of nations or of a treaty of
theUnited States”

EXTRATERRITORALITY CASES
Boumediene v. Bush
Rule of Law; Courts must provide detainees held as unlawful alien enemy combatants a writ of habeas
corpus to challenge their detention, or, if a writ of habeas corpus is not available, provide an adequate
substitute process to detainees that includes the same procedural protections and opportunities that
would be provided in a writ of habeas corpus.
Facts
- Congress passed DTA to provide certain procedures for Guantanamo Bay detianees ot
challenge classification as unlawful enemy combatants
- Later passed the MCA which included a section preventing detainees classified as unlawful
alien enmy combatants from challegnign the conditions of their confinement and
detentionsthrough a writ of habeas corupus
Issue
- May non-citizen detainees captured abroad and held at the Guantanamo Bay military facility
challenge their detention through a writ of habeas corpus?
Court
- Suspension Clause states that writ of HC may be suspended only in cases of rebellion or invasion
when public safety requires it
- Eisentrager
o Denied writ to enemy aliens caputured outside US terrtirory who were tried and
convicted by military tribunal for offenses committed against the US and who were at al
ltimes improsioned outside the US
o The United States Constitution does not give alien enemy combatants a
right of personal security or immunity from military trial and punishment.
- From Eisentrager there are three relevant factors to determine rights
o Citizenship or status of detainee
o Nature of the sites of apprehension and detention
o Practical obstacles
- Detainees are foreign but still open dispute as to whether there are enemy conbatants
- GB is under US control and there is a low burden on extending them the full rights of HC
- MCA §7 is unconstitutional
Souter
- Rasul held that statutory claims of HC extend to foreign nationals improsioned by US at GB
- While writ may no longer be allowed by statute Court is not required to disallow the right of
foreign nations o bring a writ of HC under Cons
Roberts- Dissent
- Eliminating the section of the MCA eliminates the most generous set of procedural protectios
ever afforded to fioreign citiens
- Claims that CSRT hearing done proides ame procedural protections as a writ of HC
Scalia
- Writ of HC has never been applod to foreign persons outside jurisdiction of the US
- Suspension clause does not apply to GB detainees
Reid v. Covert
Rule of Law: (1) The protections of the Bill of Rights apply to civilian U.S. citizens who are
criminally prosecuted by the United States military abroad. (2) A treaty or executive agreement
between the United States and a foreign nation allowing military prosecutions of civilians abroad
violates the protections of the Bill of Rights.
Background
- Exec agmts between US/GB and US/JAP permitted US mil courts to exercise exclusive
jurisdiction over offenses committed in those countries by American servicemen or their
defendendts
- Two defendents arrested for killing husbands and tried/convicted without a jury trial or
traditional protections of BOR
Issue
- (1) Do the protections of the Bill of Rights apply to civilian U.S. citizens who are criminally
prosecuted by the United States military abroad?
- (2) Does a treaty or executive agreement between the United States and a foreign nation
allowing military prosecutions of civilians abroad violate the protections of the Bill of Rights?
Holding
- BOR applies to civilian US citizens who are criminally prosecuted by US military abroad
- Govt can act only pursuant to Con limits
o Applies regardless of whether Govt is acting in US or abroad
- Treaty/exec agreement btwn US and foreign nation allowing military prosections of civilians
abroad violates the protections of the BOR
- Supremacy Clause does not suggest that treaties and laws enacted to execute them do not hae to
comply with Con provisions
o Would be contrary to Supremacy Clasue as allowing the US to exercise power under an
intl agreement that would be otherwise constitutionally prohibited
- If intl agreements idd not have to comply with Con it would permit exec to improperly bypass
strict Con-amendment procedures
Harlan
- Civiloan family membr of US serice member cannot be prosecuted before a military tribunal
for a capital offense
o For lesser offenses it may occur before a military tribunal
Clark
- It is constitutional for the military to prosecute the family members of service members
stationed abroad at U.S. military installations for crimes committed abroad. The prosecutions
fall within the power of Congress to regulate the armed forces.
Al-Shimari v CACI Premier Tech
Background
- Detained at Abu Gharib following invasion of Iraq
- Sued govt contractor under ATS claiming CACI subjected detainees to inhumane torture and
committed war crimes
- CACI filed 3rd party complaint against the US alleging that US military personally
ultimately directed interrogations/torture
- US moved to dismiss under sovereign immunity barring all CACI claims
- CACI claimed such defense is waived due to violations of jus cogens norms
Issue
- Does the United States government have sovereign immunity for jus cogens violations?
Court
 - Under VC and prior intl law decisions JC norms are peremptory nonderogable norms
accorded higher status under intl law
- Once JC it trumps all other intl norms and voids any treaty or other agreement that conflicts
with it
- Torture widely recognized as violating JC norms
- Hierarchy of norms placing JC norms above all other and voiding conflicting agreements
means they trump sovereign immunity as conflicting
- DECISION
o Focusing on where there is a right there must be a remedy
o Govt has waived its right to sovereign immunity with respect to jus cogens violations
o Cites to Charming Betsy Canon and quotes from Paquete Habana
Agency for Intl Development v. Alliance for Open Society International
- Majority Framework (Kav)
o Foreign citizen outside U.S. → No Const. Rights
o Foreign citizen inside U.S. → Certain Const. Rights
o Foreign citizen/juris. control → Certain Const. Rights
- Breyer Critique
Boumediene rejected formalism
NOTE: INTERACTION BETWEEN INTL LAW AND DOMESTIC LAW
- First- try to apply the Charming Betsy canon
- • If there is still a conflict:
o LIT statute supersedes earlier treaty or customary international law
o LIT treaty should supersede earlier statute, depending on view of self-executing vs
non-self-executing o
o In theory, LIT customary international law should supersede earlier statute but (to
my knowledge) this has never happened in practice
US v. VERDUGO URQUIDEZ
Background
- Search of foreign nationals approved by local govt but done without a US warrant
Issue
- Does the Fourth Amendment apply to the search and seizure by US agents of property that is
owned by a nonresident alien and located in a foreign country?
Court
- Notes the definition of the people in the constitution and make apparent that the clauses of
constitution imply that of the people relates to people who are part of the nation
- Infers that the Founders meant for the 4th Amendment to apply to US persons
- Notes that drafters had no intention of provisions applying to anything but domestic manners
o Use of Scale of Rights: Non citizens are afforded a sliding scale of rights that
increase as they increase their connection with the country
Brennan- DISSENT
- Govt agents cannot be able to exercise their authority abroad and not have the 4th
Amendment travel with them
- Cannot tell people we abide by our laws and then not expect our police to abide by them
- Majority argues that the constitution allows us to enforce our laws abroad that means our
agents should also be regulated by those laws
Blackmun- DISSENT
 - Dissents because when a foreign national is held accountable for purported violations of US
criminal laws he is being treated as one of the governed and therefore is entitle d to 4th
amendment protections
Hernandez v. US (HERNANDEZ 1)
Background
- Father of boy killed by USCBP officer while on Mexican side filed sued n dc against the
agent and others
- Alleged violations of 4th Amendment right against unreasonable seizures and 5th
Amendment right to due process
- DC agreed with Agent on qualified immunity regarding 5th Amendment claim and
dismissed charge
o Dismissed because plaintiff had no substantial connection to the US and had no
clearly established constitutional rights to assert
Issue
- May a foreign citizen with no significant voluntary connection to the United States and who
is on foreign soil at the time of the complained-of incident assert claims under the Fourth
and Fifth Amendments?
Jones Opinion
- To determine if QI is a valid defense Court must first decide whether facts alleged violate a
constitutional right and if so, was the right clearly established at the time of the misconduct
- Finds that the child had no connections to US thus con rights do not extend to him
- Rejects Boumediene reliance as that case addressed function of suspension clause
- Argument rooted in Eisentrager
- Do not have extraterritoriality application of law
Prado Opinion
- Responding to Jones notes that extraterritoriality has changed since SCOTUS decisions in
Boumediene
o Case deals with detainees in Guantanamo deciding whether they could file habeas
petitions
o US govt argued case was extraterritorial so habeas could not be sought
o SCOTUS disagreed and said there is possibility of making habeas petition from
Guantanamo
 Cannot be formalistic like Eisentrager
o Three Factors
 Citizenship/Status of Detainee
 Site of Apprehension/detention
 Contrast to Eisentrager- territorial sovereignty
- Rejects Jones’s opinion that precedent only applies to Habeas
Filartiga
Background
- Paraguayan nationals filed wrongful death case in Fed DC in retaliate for defendant’s
kidnapping and murdering of son in Paraguay
- Defendant was served in US
- DC granted dismissal
Issue
- Is the law of nations determined by examining the practice of nations, judicial decisions,
and the works of jurists?
Court
- Law of nations is significant for determining whether a Fed DC has jurisdiction
 - ATS gives such courts original jurisdiction
- Conduct violates law of nations when there is intl consensus that such conduct should be
prohibited
o Determined by analyzing practice of other nations
- UN declarations play important role
Sosa
Background
- Plaintiff was Dr who participated in torture of DEA agent
- Kidnapped by certain peoples and brought to the US for trial
- Acquitted and then sued US under Fed Tort Claims Act
- Also brought claims against Sosa under Alien Tort Statute
- Alleged that Sosa violated certain intl conventions by arbitrarily detaining him
- DC and App Court supported ATS claim, while App Court reversed lower court’s
dismissal of FTCA claim
Issue
- (1) Must a claim under the Alien Tort Statute be based on a universally recognized,
specifically defined international law that is capable of imposing obligations on
international parties? (2) May a plaintiff sue the United States under the Federal Tort
Claims Act for tortious conduct allegedly planned and directed in the United States but
carried out in a foreign country?
Court
- Claim under ATS must be based on universally recognized specifically defined intl law
capable of imposing obligations on intl parties
- For a claim to be recognized the violation must be of the kind accepted and defined as
specifically as those in 18th Century when ATS was enacted
o There is no binding CIL prohibiting arbitrary arrest and the relevant Covenant is
not binding on the US
- For FTCA, the US may not be sued for tortious conduct planned/directed in the US but
carried out in a foreign country
Kiobel
Background
- Nigerian natls residing in US filed suit against intl petroleum corps for violation of ATS
- Ps moved to US after atrocities and were granted political asylum
- DC granted in part and denied in part the oil companies' MTD and certified interlocutory
appeal
- US COA 2nd Circ dismissed entire complaint holding that law of nations does not apply to
corps
Issue
- May federal courts in the United States recognize a cause of action under the Alien Tort
Statute for violations of the law of nations occurring within the territory of a sovereign
other than the United States?
Court
- US law does not apply extraterritoriality unless the law clearly provides for such
application
- Presumption against extraterritoriality applies to claims under ATS due to foreign policy
concerns of trying to enforce intl law over a foreign territory
- To rebut there must be a clear indication that ATS is meant to apply to actions abroad and
the language gives no such indication
- Since atrocities occurred in Nigeria the claims cannot be maintained
Kennedy
 - Congress has addressed such claims as the Torture victim Prevention Act of 1991 but
future violations of such laws require further analysis
Alito
- Domestic conduct violates an intl norm that is definite and accepted among civilized
nations as required by Sosa
Breyer
- ATS should provide jurisdiction to uphold the law of nations against becoming a safe
harbor for pirates torturers or their equivalents
- Court should focus more on foreign relations law and find jurisdiction under ATS only if:
o Tort occurs in US territory; D is a US national; alleged conduct adversely affects
an impt US interest
NESTLE USA V. DOLE
Key Finding
- Two Step Framework for Extraterritoriality
o Whether statute gives clear affirmative indication that rebuts the presumption
o If not clear that is extraterritorial, Ps must show conduct relevant to the state’s
focus occurred in US
USE OF FORCE
Jus Ad Bellum/Jus Ad Belo
- Use of Force
- Intl Humanitarian Law/ Law of Armed Conduct
JUS AD BELLUM
- When may a state use force under UN charter?
o Authorized by UNSC (Art 42)
o Self Defense (Art 51)
o Regional Self Defense (Art 53)
JUS AD BELLUM AND U NCHARTER
- Art 25
o Agree to carry out decisions of UNSC
- Chapter VII
o Some rules in which UNSC may authorize use of force
- Art 41
o Measures not involving armed forces
- Art 42
o Measures including armed forces
SOURCES OF STATE POWER
- MIDFIELD
o Military
o Intelligence
o Diplomatic
o Financial
o Informational
o Economic
o Law
o Development
Jus ad bellum (the right to wage war) v. Jus in bello (laws of war once it has begun- international
humanitarian laws)
- Main source of law: UN Charter
o Article 2(4): “All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United Nations.”
 Forbids the threat or use of force against the territorial integrity or political
independence of any state.
o Three Exceptions under the UN Charter:
 Article 42: “Should the Security Council consider that measures provided
for in Article 41 would be inadequate or have proved to be inadequate, it
may take such action by air, sea, or land forces as may be necessary to
maintain or restore international peace and security. Such action may
include demonstrations, blockade, and other operations by air, sea, or land
forces of Members of the United Nations.”
 Authorization by Security Council if Article 41 measures
(sanctions, etc.) fail.
o Security Council: 15 members total, 10 non-permanent
members.
o REMEMBER: Cannot have any veto by the permanent 5
(Russia, US, France, China, United Kingdom).
 Article 51: “Nothing in the present Charter shall impair the inherent right
of individual or collective self-defense if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security. Measures
taken by Members in the exercise of this right of self-defense shall be
immediately reported to the Security Council and shall not in any way
affect the authority and responsibility of the Security Council under the
present Charter to take at any time such action as it deems necessary in
order to maintain or restore international peace and security.”
 Self-Defense: Military force to undertake a reasonable defense if
they have been attacked by another state.
 Self-defense allowed up until the Security Council acts.
 Does not exclude other CIL norms of self-defense
  Bush Doctrine: anticipatory self-defense
o Is this where we are in the current state of international
affairs?
 Article 53(1): “The Security Council shall, where appropriate, utilize
such regional arrangements or agencies for enforcement action under its
authority. But no enforcement action shall be taken under regional
arrangements or by regional agencies without the authorization of the
Security Council, with the exception of measures against any enemy
state, as defined in paragraph 2 of this Article, provided for pursuant to
Article 107 or in regional arrangements directed against renewal of
aggressive policy on the part of any such state, until such time as the
Organization may, on request of the Governments concerned, be
charged with the responsibility for preventing further aggression by such
a state.
 Regional self-defense initiatives can be taken up until the point
of Security Council acts.

Nicaragua - After fall of president debayle in Nicaragua in July 79, a junta led by the Frentte
Sandinista de Liberacion Nacional (the Sandinistas) took over the govt - Opponents of the new
regime, mainly former supporters of Somoza, inparticular ex-members of the National Guard,
formed themselves inito irregular military forces known as the Contras and began an armed
opposition - In 81, partly in response to reports that the Sandinistas were supplying arms and
other logistical support to guerillas in El Salvadorr, Reagan administration began covert aid to
the Contras. - This aid was later publicly acknowledged in official statements by POTUS and
high US officials and in a 1983 budget resolution CCCongeress provided funds for US
intelligence agencies tot support militiarry or paramilitaryr operations in Nicaragua - 84
Nicaraggua filed an application with ICJ assertinig that the US was engaged in aggression
against it in violation of article 2(4) of the UN Charter, other treaty obliigations, and customaray
IL norms - Specifically it alleged US carried out direct armed attacks against Nicaragua by air,
land and sea and that thtr US recruited, trained, armed, equipped, financed, and directed
paramilitary actions in and against Nicaragua by the Contrras - Nicaragua sought an order rom
the court to stop thte agression and pay compensation - Bc the US had expressly withheld
consent to the Court’s jurisdiction over disputes arising under a multilateral treaty like the charter
absent conditions not met in the principal case, the court relied on customary IL instead of the
charter in the opinion U.S. Direct Attacks - US govt agency lay mines in NA ports by persons in
the pay and acting on the instructions of that agency, under the supervision and with the logistic
support of the US agents - Court must determine is whether the relationship of the Contras t the
US was so much one of dependence on the one side and control on the other that it would be
right ot equate tthte contas, for legal purposes, with an organ of the US govtt, orr acting on
behalf of the US govt Applicable Law UN Charter v. CIL - In order to deduce the existence of
customary rules, the Court deems it suff that the conduct of States should, in general, be
consistent with such rules and that instances of State conduct inconsistent with a given rule
should generally have been treated as breaches of that rule, not as indications of the recognition
of a new rule - Parties both accept a treaty law obligation, pursuant to art 2, par 4, to refrain in
their international relations from the tthreat or use of force against the territorial integrity or
political indepndence of any statet, or in any other rmanner inconsistent with the purposes of the
UN - The courrtr has however to be satisfied that there exists in CIL an opinio juris as to the
binding character of such abstention P241-263, sp 34-42 - Thetis may be deduced form the
attitude of the parties and their attitude of states towards certain general assembly resolutions
Exception to the prohibition for self-defense - Gen rule prohibiting force allows for certain
exceptions - in language of art 51, UN charter, inherent right which any state possess in the event
of an armed attack, covers both collective and individual self-defense - Thus the charter itself
testifies to the existence oof the right of collective self-defense in IL - Parties agree in holding
that whether the r response to the attack is lawful depends on observance of the criteria of the
necessity and proportionality of the measures takin in self-defence - Appears now to be general
agreement on the nature of the acts which can be treated as constituting armed attacks: - In CIL,
the prohibition of armed attacks may apply to the sending by a state of armed bands to the
territory of another state, if such an attack, because of its scale and effects, would have been
classified as an armed attack rather than a a mere frontier incident had it been carried out by
regular armed forces - But the cout does not believe that the concept of armed attack includes
assistance to rebels in the form of the provision of weapons or logistical or other support - Such
assistance may be regarded as a “threat or use of force, or amount to intervention in the internal
or external affairs of other states.” - It is also clear that it is the state which is the victim of an
armed attack, which must form and declare the view that it has been so attacked - There is no
rule in CIL permitting another state to exercise the right of collective self defence on the basis of
its own assessment of the situation - Art 51 lays out measures states must take to exercise right of
self-defense bottom of 253 Intervention - Principle of non-intervention forbids all states or
groups of staters to intervene directly or indirectly in internal or external affairs of other states -
Court finds that no such right of general intervention, in support of an opposition within another
State, exists in contemporary international law. The court concludes that acts constituting a
breach of the customary principle of non-intervention will also, if they directly or indirectly
involve the use of force, constitute a breach of the principle of noon use of force in international
relations - For one state to use force against another, on hte ground that htat state has committed
a wrongful act of force against a third state, is regarded as lawful, by way of exception, only
when the wrongful act provoking the response was an armed attack - thus the lawfulnesss of the
use of force by a state in response to a wrongful attack of which it has nott ittself been the victim
is not admitted when this wrongful act is not an armed attack.
COORDINATED RESPONSE: Sanctions
- Sanctions against individuals and institutions
- SWIFT: Society for Worldwide Interbank Financial Telecommunication
- Central Bank Sanctions
o Freezing assets
o Forbidding transactions
- Ending access t ofinancial markets for Russian companies
- Export bans
- Closing airspace
-
INTERNATIONAL HUMANITARIAN LAW
Core Principles
- Distinction- API art. 48
o In order to ensure respect for and protection of the civilian population and civilian
objects, the Parties to the conflict shall at all times distinguish between the
 civilian population and combatants and between civilian objects and military
objectives and accordingly shall direct their operations only against military
objectives.
- Necessity
- Proportionality- AP I art 51(5)(b);57 (2)(b)
o Among others, the following types of attacks are to be considered as
indiscriminate:
 an attack which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects, or a combination thereof,
which would be excessive in relation to the concrete and direct military
advantage anticipated.
o  With respect to attacks, the following precautions shall be taken:
 an attack shall be cancelled or suspended if it becomes apparent that the
objective is not a military one or is subject to special protection or that the
attack may be expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian objects, or a combination thereof, which
would be excessive in relation to the concrete and direct military
advantage anticipated;
- Humanity – AP I, art. 35
o 1. In any armed conflict, the right of the Parties to the conflict to choose methods
or means of warfare is not unlimited.

2. It is prohibited to employ weapons, projectiles and material and methods of

warfare of a nature to cause superfluous injury or unnecessary suffering.

3. It is prohibited to employ methods or means of warfare which are intended, or

may be expected, to cause widespread, long-term and severe damage to the
natural environment.
Sources of IHL
- Hague Laws: means and methods of warfare
- Geneva Conventions
o Geneva I: Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field
o Geneva II: Amelioration of the Condition of the Wounded, Sick, and Shipwrecked
Members of the Armed Forces at Sea
o Geneva III: Relative to Treatment of Prisoners of War
o Geneva IV: Relative to Treatment of Civilian Persons in Times of War
The Additional Protcols
- 1977:
o AP I: International Armed Conflicts
o AP II: Non International Armed Conflicts
- NIACs
o Organized Armed Group characteristics
o Minimum threshold of intensity of violence and duration of conflict
o Territorality: either within a State or cross-border
When does IHL Apply?
- IACFull Corpus of LOAC
- NIACCA3 Substance; AP II;Limited Customary Rules; AP I in Anti Colonial NIACs
o Common Article 3
 In the case of armed conflict not of an international character occurring in
the territory of one of the High Contracting Parties, each Party to the
conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of

armed forces who have laid down their arms and those placed ' hors de
combat ' by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction
founded on race, colour, religion or faith, sex, birth or wealth, or any other
similar criteria.
To this end, the following acts are and shall remain prohibited at any time
and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds,

mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading

treatment;

(d) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording
all the judicial guarantees which are recognized as indispensable by
civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of

 the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by
means of special agreements, all or part of the other provisions of the
present Convention.
The application of the preceding provisions shall not affect the legal status
of the Parties to the conflict.
Distinction: Combatant or Civilin
- Combatant immunity/Combatant privilege
- AP I, art 44(3)
o  In order to promote the protection of the civilian population from the effects of
hostilities, combatants are obliged to distinguish themselves from the civilian
population while they are engaged in an attack or in a military operation
preparatory to an attack. Recognizing, however, that there are situations in armed
conflicts where, owing to the nature of the hostilities an
armed combatant cannot so distinguish himself, he shall retain his status as a
combatant, provided that, in such situations, he carries his arms openly:

(a) during each military engagement, and

(b) during such time as he is visible to the adversary while he is engaged in a

military deployment preceding the launching of an attack in which he is to
participate.

Acts which comply with the requirements of this paragraph shall not be
considered as perfidious within the meaning of Article 37, paragraph 1
(c [ Link ] .
- Direct Paritcipation in Hostilies- AP I art 51 (3)
o  Civilians shall enjoy the protection afforded by this Section, unless and for such
time as they take a direct part in hostilities.
o Taking part in hostilities
o Direct v. Indirect
o For such time
INTERNATIONAL HUMANITARIAN LAW CASES
United States v. Haimdullin
Rule of Law: The classification of armed conflicts as international or non-international determines
whether captured combatants qualify as prisoners of war immune from prosecution.
Background
- Afg War shifted to a civil war between Afg govt and Taliban insurgents
- Former Russian intel officer H led group of insurgents in attack against Afg Border Police
- Was captured and detained
- H was indicted for acts during the attack and sentenced to multiple life sentences
- Claimed he was entitled to ombat immunity under Third Geneva Convention
Issue
- Does the classification of armed conflicts as international or non-international determine
whether captured combatants qualify as prisoners of war immune from prosecution?
Holding
 - Combatant immunity deries from CIL of War
o Prohibits prosecuting solderis for lawful actions against legit mil targets during
armed conflicts
- Only unlawful combatants may be tried and punished by military tribunals
- Art 2 of Third GC protects combatants captured in intl rmed conflicts as POWS entitled to
full combatant immunity- only applies in intl conflcits between two countries
o Art 3 applies to non intl conflcits and protects people not actively involved but
allows a country to capture and try combatants in a regularly constituted court
affording all judicia guarantees recognized as indispensable by civilized peoples
 Country engaged in internal conflict may capture and try insrugents in its
regular courts
 By the time Hamidullin led the attack against a border police post in 2009,
the conflict was no longer international. Therefore, Hamidullin could be tried
and sentenced in a regular US court under the convention.

VIETNAM WAR
Background: French Colony before and after WWII. Geneva Accords separated N. and S.
temporarily. Was going to be reunified through elections in 1956.
- SEATO: South East Asian Treaty Organization
o S. Vietnam was not a member
- Viet Cong Insurgency
As of 1959, N. Vietnam began coordinating with the Viet Cong
- US Concern of whether Communism would take root either through elections or force.
o Kennan’s Policy of Containment: Set out concerns of USSR becoming long-term
competitor.’
 “X Article:” Expanded upon these concerns in Journal of Foreign Affairs.
- Domino Theory
o If Vietnam falls, Laos, Cambodia, S.Korea, Japan, etc. would all fall.
o Sense that Communism was on the rise in Asia after Chin.
- Kennedy sends military advisors in 1961
o Started escalation of troops on the ground
- Gulf of Tonkin Resolution 1964
o In response to “attack” on US naval vessels.
o Authorization for the Use of Military Force for the President:
 To repel any armed attack; and
 To take all necessary measures to repel any armed attack against the forces
of the US.
Arguments of Legality: Domestic Law Issues
- Argument for Vietnam War:
o Commander in chief power: Article II, Section II: “The President shall be
Commander in Chief of the Army and Navy of the United States…”
o Korea & SEATO (argument in favor of Pres. action w/o express Congressional
Authorization)
 Supremacy Clause: Article VI, Section II: “This Constitution, and the
Laws of the United States which shall be made in pursuance thereof; and
 all treaties made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land…”
 Treaty Power of President: Article II, Section II: “He shall have power,
by and with the advice and consent of the Senate, to make treaties,
provided two thirds of the Senators present concur…”
 Repel Attack/Defensive War Power
o Congressional Authorization
 Gulf of Tonkin Resolution 1964
 Congressional appropriations in 1965($700M) and 1966($4.8B)
- Against:
o o Gulf of Tonkin not enough because it allowed to repel armed attack against
forces of
o U.S. ONLY.
- Argument weakened by Congressional appropriations but STILL issue of Congressional
knowledge at the time of these appropriations.
Arguments of Legality: International Law Issues
 Argument for Vietnam War:
 SEATO
 Article 4(1): Each party recognizes that aggression by means of armed
attack in the treaty area against any of the parties or against any state or
territory which the parties by unanimous agreement may hereafter
designate, would endanger its own peace and safety, and agrees that it
will in that event act to meet the common danger in accordance with its
constitutional processes. Measures taken under this paragraph shall be
immediately reported to the Security Council of the United Nations.
 Act to meet a common danger
 UN Charter
 Article 51: Self-Defense (see text above)
 Article 53: Collective Self Defense (see text above)
 S. Vietnam seeking assistance
 Against:
o Failure to Notify Security Council as required by Articles 51 and 53 for self-
defense.
o Proportionality: threat could have been addressed in less drastic means
o Necessity: ideological difference does not equate to necessity
o UN Charter: Article 2(4): “All Members shall refrain in their international
relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.”
 Peaceful resolutions of disputes

General Problems of Historical Analysis

 Very important to understand history in a very precise sense.
 Must understand the specific context to advise clients properly and make truly
informed decisions.
  Legal Question: If the nature of war is changing from wars between great powers to
brushfire wars, should that give the President more leeway in terms of committing
troops or less?
o Argument for extending Presidential power:
 Closer to tactical decisions than broad strategic decisions.
 Using a little force now to prevent big force later.
o Argument against extending Presidential power:
 These “brushfire wars” are how big wars start, once is starts what
happens? No end in sight.
 Analyzing a Legal Issue: Ways to Look at this Moving Forward
o Which way is better strategically?
o What does the law actually say?
 What do we have in domestic law?
 What do we have in international law?
o May make some strategic recommendations.
LIMITING THE WAR
- Cambodia and Laos: Issues of facilities that were being used within each country to assist
the North Vietnamese and Viet Cong.
o Cambodia: an ally, but some areas were used for training Viet Cong
 U.S. bombed the territory of one of allies in order to stop the Viet Cong
from using the areas to fight against US interests.
 Largest attack since WWII, yet the President did not notify Congress.
 SOS Kissinger even admitted that kept two different files for
everything- one to show Congress and one with real facts.
o Laos: Instead of large scale bombings, CIA went in to train Hmong to fight
against Pathet Lao.
 “Secret war”
 Wanted to cut off flow of troops and weapons down the Ho Chi Minh
Trail, which allowed North Vietnamese to cut through instead of
traveling south in Vietnam.
 Congress attempting to restrict funding for activities in Cambodia and Laos.
o Constitutional?
 President would argue:
 Commander in chief power: Article II, Section II: “The President
shall be Commander in Chief of the Army and Navy of the
United States…”
o Tactical decision to engage in conflict in Cambodia and
Laos: Not starting a new war, decision during the course
of an armed conflict already commenced as to how that
conflict would be conducted.
 Gulf of Tonkin Resolution 1964: congressional authorization,
granted the President the power to act to protect troops.
 Congress has two weapons:
 Cut funding: Troops are already there, cannot leave them with no
resources so must be done carefully.
  Repeal Gulf of Tonkin Resolution
o Congress did this in 1970.

VIETNAM WAR CASES

Orlando v. Laird
Rule of Law: Courts may consider whether congressional authorization for war is sufficient.
Background
- Two PS were enlistees who received orders to report for transfer to Vietnam
- Commenced actions to prevent SecDef, Army Sec, and commanding officers from
enforcing trasfers
- Ps argued that the exec officers had exceeded their Con authority by ordering htem to
participte in war not properly authorized
Issue
- May courts consider whether congressional authorization for war is sufficient?
Holding
- Courtsm ay consider sufificency of congressional authorization for a war but whether
Congress is correct in how it chooses ot declare war is a nonjusticiable question
- Berk v. Laird
o Congress con power to declare war contains guideliens that require Congress to jointly
partake with the exec branch in prosecuriton of war and judicial scrutity of that
doctrine is not barred by PQ doctrine
- The test is whether there is any action by Congress sufficient to authorize or ratify the military
activity here (with respect to the transfer of enlistees to Vietnam). 
- On the other hand, Congress’ discretion to choose whether it wants to declare war through
explicit declaration or instead through a resolution and war-implementing legislation is one
that involves an important area of decision-making best relegated to the political branches. It
therefore presents a nonjusticiable political question that the judicial branch is not competent
to assess, because there are no clear or practical standards that a court can apply to judge those
types of decisions.
Holtzman v. Schlesinger
- Congress had voted to discontinue funding all combat activities in Cambodia. Can
Congress go to Court and enjoin further bombing of Cambodia?
o “There is no existing Congressional authority to order military forces into combat
in Cambodia or to release bombs.”
o Court rules that there is a political question: Whether this is a tactical decision in
an ongoing operation or whether this is a new conflict?
o Does not have the authority to say whether this is a new conflict or not.
UNILATERAL SELF DEFENSE AND RESCUE
Anticipatory
- Ability to use force even if you have not yet been struct but if use of force against you is
imminent
- Protection of human life
- Flexible definition and can be used to initiate war when there is no threat
Preemptive
- Attempts to open up the time frame as to what counts as imminent
 - Argument made by Bush admin prior to US invasion of Iraq
- Not accepted in intl law
- Concerns that its use makes it easy for states to undertake self defense and turns on issues
of suspicion
US OPERATIONS IN SYRIA
UN Authorization
- UNSC Res 2249 stated that ISIS presented a global and unprecedented threat; called
upon member states to take all necessary measures in compliance with intl law to
eradicate ISIS
- What state is unwilling or unable to confront threat emanating from its lands, other states
may deal with threat
STRUCTURING LEGAL ARGUMENT FOR QUESTION OF VIOLATION OF INTL
LAW
- Was there an obligation?
- Was there a breach?
- Is it attributable to the state?
- Are there circumstances precluding wrongfulness?
- If no, must the state provide a particular remedy?
POSSIBLE SOURCES OF PRESIDENTIAL AUTHORITY
- Constitutional
o Vesting Clause
o Sole Organ Reasoning
o Defensive war power
- Congressional Authorization
o Hostage Act
o War Powers Resolution
UNILATERAL SELF DEFENSE AND RESCUE CASES
Durand v. Hollins
DURAND v. HOLLINS
Background
- One group seeking to control transportation in Cental America established greytown
- US sponsored competing transporting company partl owned by Nicaraguans
- Greytown Mob threatened American Diplomat and injured him with a bottle
- Navy Sec sent Capt ollins to Greytown to collect compensation for damages done to to
the property of the US usupported company and an apology for harm to diplomat
- Greytown did not comply and Hollins bombed and burned the city down
- American owner of property Sued Hollins
Issue
Is the manner in which the president exercises discretion to protect citizens abroad a
nonjusticiable political question best left to the executive branch?
Court
- POTUS has power over US foreign policy gleaned from Art II of the US constitution
- POTUS is cinc of the army and the navy: Has the duty to take care that the laws be
faithfull executed
 - US citizens must look to POTUS for protection and the faithful execution of the laws
intended to protect them
- In the exercise of exec powers POTUS and designated officers are authorized to use their
own discretion and can only be held accountable for their discretionary decisions by the
political rpocess
- Question of intervention is a PQ for the exec to decide

TARGETED KILLING
International Covenant on Civil and Political Rights, art 6: inherent right to life

- 1. Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
- 2. In countries which have not abolished the death penalty, sentence of
death may be imposed only for the most serious crimes in accordance
with the law in force at the time of the commission of the crime and not
contrary to the provisions of the present Covenant and to the
Convention on the Prevention and Punishment of the Crime of
Genocide. This penalty can only be carried out pursuant to a final
judgement rendered by a competent court.
- 3. When deprivation of life constitutes the crime of genocide, it is
understood that nothing in this article shall authorize any State Party to
the present Covenant to derogate in any way from any obligation
assumed under the provisions of the Convention on the Prevention and
Punishment of the Crime of Genocide.
- 4. Anyone sentenced to death shall have the right to seek pardon or
commutation of the sentence. Amnesty, pardon or commutation of the
sentence of death may be granted in all cases.
- 5. Sentence of death shall not be imposed for crimes committed by
persons below eighteen years of age and shall not be carried out on
pregnant women.
- 6. Nothing in this article shall be invoked to delay or to prevent the
abolition of capital punishment by any State Party to the present
Covenant.
-
European Convention for the Protection of Human Rights and Fundamental Freedoms, art 2: Right to
Life
- 1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a
crime for which this penalty is provided by law.
 - 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article
when it results from the use of force which is no more than absolutely necessary:
- (a) in defence of any person from unlawful violence; (
- b) in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
- (c) in action lawfully taken for the purpose of quelling a riot or insurrection.
ROLES OF HUMAN RIGHTS LAW AND INTL HUMANITARIAN LAW
- US View: IHL during wartime (lex specialis)
o It is the specific law that applies in a particular situation
o If there is a general rule and specific rule for a situation, the specific rule applies
- European View: Human Rights law always applies
US POLICY STANDARDS
- Preference for capture
- Standards for use of lethal force
o Need to have a legal basis for what is being done
o Need to be ongoing armed conflict
o Imminent threat
o Assessment that capture is not feasible
o No reasonable alternatives exist to effectively address the threat to US persons
- Intl legal principles impose important constraints on the US acting unilaterally
- Will be key to argue either its armed conflict or being done in self defense
TARGETING BASED ON STATUS OR CONDUCT
- US View: Status based
- ICRC View: Conduct
o Complicated by continuous combat function
 In non-intl combat civilians who partake directly in hostilies and
participate in armed combat as members of groups may be targeted at all
times and all places
o DPH for All Other Civilians
 Threshold of harm
 Must cause expected harm directly
 Belligerent nexus
US POLICY FRAMEWORK
- Legal basis for using force
- Continuing, imminent threat
- US criteria
- Intl Law Constraints
US LAW AND TARGETING US CITIZENS
- EO 12,333
o Assassination vs. Targeted Killing
 Targeted Killing
 Self Defense
 During an armed conflict
 Assassination is a term that is used when killing someone because of
their political beliefs
- DOJ White Paper on Targeting US Citizen
 o Balance of interests
o Three factor test
- AL AULAQI MEMO
o Possible related statute only covers unlawful killings and the contemplated
operation falls within category of the lawful conduct of war
o Argument that the ADAP forces of wich Al Aulaqi is a leader are associated
with Al Qaeda forces for purpose of AUMF
o AA enganedi n coundct that brings him within scope of the AUMF
o Connects Hamdi permitting detention of US citizen under AUMF to permit use
of lethal force against a US citizen who is a part of a force of enemy org
 Does not matter that it would take place in Yemen and not on a
traditional battlefield
o DOD commits to conducting operation in fashion conistnet with the laws od
war
o AAs us citizenship does not impose constitutitional limitations that would
precliude the contemplated lethal action
o Embraces Matthews v. Elbrdige balancing test
GOVT ARGUMENT FOR TARGETED KILLINGS
- Matthews V. Eldridge Due Process Test
o Weighing interest between US need for national security and the persons value
of their life
o Three Factors
 High level official causing imminent threat
 Capture is infeasible
 Operation undertaken must be consistent with law of armed conflict
TARGETED KILLING CASES
Public Cmte Against Torture in Israel v. Israel
Rule of Law: Collateral damage to innocent civilians does not necessarily make preventive strikes to
kill terrorists unlawful.
Background
- Pal groups launched terror attacks against Israel civ targets killing and wounding thousands
over next five years
- ISR responded with preventive strikes targeting terrorists suspected of involvement
- Killed 300 terror org members but also 150 civilians
- P is seeking to petition High Court of Justice to declare Israel’s preventive strike policy
unlawful
Issue
- Does collateral damage to innocent civilians necessarily make preventive strikes to kill
terrorists unlawful?
Holding
- 3rd GC distinguishes between unlawful combatants and combatants alone which implies
lawful combatans
- Terrorists do not qualify as lawful combatants
- United States Supreme Court precedent agrees that lawful combatants may be captured and
detained, but enjoy POW status and cannot be tried like unlawful combatants. 
 - CIL protects civilians from harm during conflicts which creates a duty to minimize civilian
collateral damage as much as possible
- GC RC and Mil Manuals of multiple Convention signatories likewise allow attacks against
civilians taking a direct part in hostilities
- Civilians participate in armed conflict when using weapons, gathering intelligence, or
preparing for hostilities.
- Direct participation should include performing combatant functions such as collecting
intelligence, providing weapons, and transporting or providing services to combatants. It
should exclude indirect support like selling medicine or food or providing monetary support
- Collatral damage to civilians must be proportionate to mil objecties using a values based test
-  Israel is fighting severe terrorism within the area with limited means, found killing terrorists
necessary, and conducted its struggle according to customary international law.
Gibraltar Killings
P CONCERNS
- Was the killing actually necessary?
- Might something have been done short of violence that would have prevented the
pursued violence and stopped the killing?
- Was the choice of the use of SAS proper?
o Should law enforcement have been used?
o SAS soldiers may not have been properly trained for mission
COURT
- Side with petitioner
- European Court of Human Rights found Article 2 had been breached as adequate
precaution was not taken.
o Note: Human rights law applied!
- Relevant factors:
o Decision not to prevent the suspects from travelling into Gibraltar.
 Had intelligence of the bombing but let them in anyway
o Failure of authorities to make sufficient allowances for the possibility
that their intelligence might be erroneous.
o Soldiers sent in: automatic recourse to lethal force when the soldiers opened fire.
 Soldiers sent in- shoot until dead and “lack degree of caution found
in law enforcement personnel.”
 Police officers shot until down
CYBER OPERATIONS
Decision Points
- Proportionality
- Military advantage
- Attribution
Questions to Consider when Deciding to Respond
- Whether the operation that was against the country is a use of force
o This may be a key determinant
Issues for Use of Force
- Question of whether it is a use of force
- Armed Attack
- Attribution
 - Self-Defense
- Necessity
- Proportionality
Laws of Armed Conflict Issues
- Necessity
- Distinction
- Proportionality
- Humanity
- Weapons Review
o States have an obligation to review new weapon systems and make sure they do
not violate intl law
Domestic Authority to Respond
- Defending Forward Exec Order
o 2019 NDAA
- Portion of US defense plan is to go on offensive
o Zero Day Exploits
 Finding gaps in comp programs that will allow a hacket to get in
INTELLIGENCE OPERATIONS
Purposes of Intel Agencies
- Gathering intel
- Law enforcement
- Counter Intel
- Covert Action
- Etc...
Intelligence Cycle
- Planning Direction Needs Requirements-->Collection-->Processing-->Exploitation--
>Analysis-->Dissemination
INTS
- HUMINT/SIGINT/IMINT (imagery intelligence)/MASINT (MEASURES AND
SIGNATURES)/TECHINT/GEOINT (geospatial)/OSINT(open source)
National Security Council
- Not an intelligence agency but a consumer
National Security Agency
- SIGINT
- Lrgest Intelligence Agency
- Largest concentration of computer power and mathematicials on the planet
- FISA: regulates surveillance in US to obtain foreign intelligence
Intel Agencies
- ODNI
o Established by Intel Reform and Terrorism Prevention Act of 04, which
established DNI as head of IC
o Sec 3024 of Act plays key role in determining budget and restrictions and
setting other priorities
- CIA
o Directorate of Intel provides analysis
o Clandestine service provides case officers and collection management officers
 o Science and Tech
- DIA
o Service Intel Unity as it focuses on intel related to mil ops
- NSA
o Largest intel agency focused on SIGINT and responsible for FISA
- FBI
o Criminal investigations; Counter Intel; Counter terrorism; Law Enforcement
Agency (not a domestic intel agency)
National Security Act of 1947
- Creates CIA/NSC/NSA/SECDEF/ Natl Security Resources Board
- A 1949 Amendment created the Joint Chiefs of Staff
SUMMARY OF REGULATION OF INTEL ACTIVITIES
- 1947 Natl Security Act Context
o APA passed in 1946 and births the modern admin state
o Truman Doctrine announced on March 12, 1947 before a joint session
o Marshall Plan announced in 1948
o NSC 68 issued April 1 1950 and calls for immediate and large scale build up of
military to right a power imbalance
Regulating Intel Ops: Rogue Operations and Responses
- Light oversight by Congress up through the 1960s
- Operation Chaos
o CIA operation concerning alleged foreign influence on domestic anti-war
movement
o Used issue of security of CIA itself as a way to have operations targeting
domestic groups- which is an exception to allowing CIA activity on US soil
- COINTEL PRO
o FBI disruptive counter intel program against KKK, black nationalist, and new
left- used intel techniques against groups in the US
- Church Committee
o Risks to civil liberties and need for greater oversight
Executive Order 12,333 (1981)
- Major setting out of exec policy in regard to intel agencies and more broadly; set oout
the contrast of targeted killing vs assassination
- Provided for key definitions
o Counterintel
 Info gathered and activities conducted to identify deceive exploit disrupt
or protect against espionage other intel activities
o Covert Action
 Activity or activities of US govt to influence political economic or
military conditions abroad where role of US got will not be known
publicly
o Foreign Intelligence
 Information relating to the capabilities intentions or activities of foreign
govts or elements there of
o Intel Community
o US Person
  Broader definition than just us citizens
- Sets out executive conception of regulation of intel operations
o Legal Compliance
 AG review of guidelines for usage and sharing of info by IC (1.3a2
 Domestic activities reviewed by AG 1.3(20)c
 AG approval of techniques where warrants required 2.5
 Heads of Elements report to AG possible violations 1.6b
 Report to Intel Oversight board 1.6c
- Collection Techniques
o CIA=COVERT, Overseas
o FBI=Domestic
o NSA=SIGINT
o DNI=Open Source
- Prohibited Activities
o CIA electronic surveillance with US
o Unconsented searches in the US by any IC but for FBI except for
 Of Military Personnel
 Searches by CIA of non US person
o Physical surveillance of US person is US other than by FBI, except
 Of present or former intel employees or contractors
 Members of Military
o Physical surveillance of US person abroad except to obtain significant info that
cannot acquire by other means
The Issue of Covert Action
Covert Action
- Influence people and events without revealing the source
- Propaganda
- Paramilitary
o Different types of support for military activities overseas
- Political Action
- With the original founding of the CIA it is not clear if it was authorized to undertake
covert actions
o Truman was of the belief that they were not authorized
o Original intention was the CIA iagined as bringing together information and
providing daily briefs helping POTUS make better decisions
- Clandestine Action
o Done secretly but if discovered publicly it will be acknowledged as having been
done by the US
COVERT ACTION: EXEC BRANCH IMPLICATIONS
NSA 4/A- DEC 1947
- SecState to coordinate info activities to counter communism
- Covert psyops to counter Soviet actions
NSC 10/2- June 1948
- Drafted by Kennan
- Mechanism for POTUS to approve and manage
 - One definiton of covert operations
o Econ warfare, sabotage, subversion against hostile states including aid to guerillas
CONGRESSIONAL OVERSIGHT OF COVERT ACTION
The 1970’s
- The War Powers Resolution
o Does not apply to CIA activities
- Hughes-Ryan Amendment
o No funds appropriated by this act may be spent on behalf of the CIA for
operations in foreign countries other than activities intended solely for obtaining
necessary intelligence and until POTUS finds that such operation is important to
national security
Intel Oversight Act of 1980
- Relatively modest reforms made up of mostly measures from Carter executive orders
- Increased notice to Congress
- Created Select Cmte on Intel
- Fully and Currently informed
- Responsibility to Report any illegal activities
- Notice to Gang of 8
Approps and Intel Oversight
- CIA ACT of 1949
- Appropriated funds may be expended without regard to the provision of law and
regulation
- May transfer and receive funds from other got agencies as may be approved by OB
- Result: Inflated budgets for other agencies then secretly transferred via OB
- Intel budget is debated within Congress Intelligence and Defense Approps Committee
then the amounts are hidden within the OMB
- General members of Congress do not know which numbers are inflated
- 2007: disclosure to public of aggregate amount
- 2021: Approx $85 billiosn budget
Intel Authorization Act of 1991- Post Iran Contra
- Provided a definition of covert action
o Activity or activities of the US govt to influence political, conomic, or military
conditions abroad where it is intended tht the role of the us govt will not be
apparent or acknowledged publicly
 EXCEPTIONS
 Activities that the primary purpose of which is to acquire
intelligence (and other traditional activities -3093e1
o No congressional prior approval required- 3093(1)(2)
o Reporting of activities other than covert action: 3092
- Covert Action- 3093
o Authorization: 3093A
 Done by the president in writing
 Specify which agency
 Within 48 hrs
 May not violate constitution or the law of the US
 - Ongoing reporting to congress- 3093B
- Keep the Congressional committees fully and currently informed but there are caveats
with regards to timelines
o Caveats are found in section B & C of 3093
- Congressional notification of Presidential Finding- 3093C2
o Gang of 8
o Modified in 2010 to include general description to other members of intel
committees
o Response to post 9/11 overreaching
- In the wake of Iran-Contra, seeking to ensure POTUS knows what is occurring and
can address the risk of rogue operations
Intel Reform and Terrorism Prevention Act of 2004
- Studies and Reports from 91-01
o Found that there were issues having to do with lack of coordination and info
sharing
- Both the 9/11 Commission and the Senate Select Committee Intel report on Pre War intel
found similarly
Inter-Agency Competition
- Continuing issues in sharing information amongst agencies like the FBI and CIA and
between the military and the CIA
- Titles 10/50 debate as 10 deals with military operations and 50 deals with intel
operations
ODNI- HEAD OF IC
- Description of responsibilities noted in sec 3024
o Develop and determine budget
o Sets objective priorities and guidance for intel community
o Ensures compliance with constitution
o Priorities for foreign intel to be collected under FISA • May not undertake
electronic of physical search operations without an Executive Order • f(8): “shall
perform such other functions as the President may direct..” • This had previously
been called “the fifth function” in relation to the DCI • Produces national
intelligence estimates
Break Down of Members of IC
- 9 Members of IC within DOD
o NSA
o NRO
o DIA
o NGIA
o 5 Service branches (no Coast Guard)
- 9 Members of IC not within DOD
o 2 agencies report directly to president: ODNI and CIA
 FBI
 DEA
 State Dept INR
  Treasury Dept
 Energy Dept
 DHS
 Coast Guard
FOREIGN INTELLIGENCE SURVEILLANCE
Exceitions to Warrant Requirmeent of 4th Amendment
- Incident to arrest •Auto searches •“Stop and frisk” •Searches of persons and things
entering or leaving the US •Boats on navigable waters •Airplanes •Prevent railway
accidents that may cause hgreat human loss •Prevent spread of disease
4 Amednment and Law Enforcement
th

- Katz (1967) •
o 4 th Amendment applies to electronic surveillance
o • Declined to extend to cases involving national security
- Title III of the Omnibus Crime Control and Safe Streets Act (1968)
o • Prohibited wiretapping without prior judicial approval
o • But by its terms did not apply to national security
There is no national security exception
Foreign Intelligence Exception
A variety of cases through the Cold War and after have had mixed results regarding whether
there is a warrant requirement in intelligence activities
• Reinforces the domestic versus international split
• Intelligence is different from Law Enforcement
• Not necessarily need warrant but must be reasonable
• From “primary purpose” to significant purpose
• Statutory schemes: FISA, Protect America Act
Purpose of FISA
- Removes any doubt as to lawfulness of foreign intel surveillance
- Framework by which exec can undertake foreign intel surveillance and rights are
protected
- Foreign intel surveillance not domestic security surveillance (left to title III)
- Geographic scope’ primarily in the US (until amended for programmatic surveillance)
o As originally defined it was about foreign observation within the US
 Did not have to go to FIS A court if operating in a foreign station and
attempting to get info out of foreign embassy
Difference from Title III
- Different probable cause standard: Not criminal activity but probability of foreign agent
- Different court: FISC
FISA PROCEDURES
- FISA judge finds probable cause that target is a foreign power or an agent of a foreign
power
- Application must meet requirements of FISA
o Certify that it is for foreign intelligence
- IF meet requirements then not need Rule 41 probable cue finding only FISA probable
cause finding see p 615
 - IF target is a US person, must also find that not clearly erroneous and will minimize
intrusion
- Process flowchart on p 626
- Foreign Power or Agent Target
- Foreign Power or Agent Locus
o Roving wiretaps
- Minimization
o Masking and unmasking
o Acquisition
o Retention
o Dissemination

IF plan to use in a prosecution

- Got must first notify the aggrieved person
o Aggrieved person may seek to suppress on grounds that:
 The evidence was unlawfully acquired
 The surveillance or search was not one in conformity with the order
- IFf AG states under oath that disclosure would hurt national security court may then
undertake an ex parte and in camera review

SURVEILLANCE OF US CITIZENS ABROAD

- No warrant requirement
- 4th Amendment reasonable is standard
- Totality of Circumstances balancing intrusion on individual with legitimate govt interest
- El Hage (2nd Cir 2008) shows difficulty of argument by individual
o Search of House
 Not covert therefore minimized intrusion
 Govt interest in counterterrorism- this was higher than the individual
because the search was minimized and made obvious (individual knew
there was a search
o Surveillance on phone
 Yearlong: Significant intrusion into privacy
 Govt interest: threat to national security
 Interest outweighs
o Hose was searched, house was in Kenya
o Court said that you do not need a warrant to search the American citizens ouse in
another country
 A judge will not have command over the country where search is
occurring
 Instead, the standard is the general 4th Amendment standard- search cannot
be unreasonable
- IF actions by foreign agency and info passed to uS:
o US is able to use info under silver platter rule but there are exceptions
 JOINT VENTURE EXCEPTION
 If foreign agency is doing something that would not meet us
standards and is 0peraitng within the US and in that situation the
info cannot be used
 SHOCKS THE CONSCIENCE ESCEPTION
 If what was done to obtain info shocked the conscience it canot
be shard

United States v. United States District Court for the Eastern District of Michigan

- Rule of Law
- The President must have prior judicial approval to engage in electronic eavesdropping for
domestic security purposes.
- Facts
- Criminal charges of conspiracy to destroy government property in violation of 18 U.S.C. §
371 and bombing a Central Intelligence Agency office were brought against Plamondon and
two other defendants (defendants) in the United States District Court for the Eastern District of
Michigan. The defendants filed a motion to compel the United States Government
(Government) to produce information gathered through electronic surveillance and hold a
hearing to ascertain whether the Government’s evidence was tainted by it. The Government
provided an affidavit from the Attorney General that agents had eavesdropped Plamondon’s
conversations and claimed the Attorney General was acting under the President’s national
security authority. The district court concluded that the Fourth Amendment was violated and
ordered the Government to produce all overheard conversations.
- Issue
- Does the President have the power to authorize warrantless electronic eavesdropping for
domestic security purposes?
- Holding and Reasoning (Powell, J.)
- No. The President does not have authority to authorize electronic eavesdropping for domestic
security purposes without prior judicial approval. Title III of the Omnibus Crime Control and
Safe Streets Act, 18 U.S.C. § 2510, et seq. (the Act) governs electronic surveillance. The Act
requires prior judicial approval of such surveillance for law enforcement purposes. Congress
specifically stated in Section 2511(3) that the Act did not limit the President’s constitutional
authority to guard against attack by foreign powers, handle foreign intelligence activities, or
prevent the overthrow of the government. Essentially, the Act has no effect on presidential
power. Taken together with the rest of the Act, Section 2511(3) makes clear that Congress did
not intend to regulate the use of electronic surveillance for national security purposes. This
case is strictly limited to whether the President may authorize warrantless electronic
eavesdropping for domestic purposes. The President may need touse electronic surveillance
techniques to carry out his duty to protect the nation against internal threats. Nevertheless, the
Fourth Amendment protects individual privacy interests, especially when government
intrusion may impede free speech. The Fourth Amendment requires balancing those
individual privacy interests against the legitimate governmental interest in domestic security.
The warrant requirement of the Fourth Amendment remains in force and serves as a check on
the discretion of the Executive Branch. The Government’s actions may have been reasonable
in this case, but the Fourth Amendment requires prior review and approval by a neutral
magistrate. The Government’s arguments that (1) the complexities of domestic security
surveillance necessitate an exception to the warrant requirement, (2) that courts are not
competent to address such issues, and (3) that judicial review would create the risk of
information leaks all ultimately fail. Governmental surveillance threatens constitutional rights
to privacy and speech. The President’s domestic security powers must be employed within the
confines of the Fourth Amendment. Courts routinely deal with complex and sensitive issues,
and steps can be taken to guard against information leaks. Thus, the President must have prior
judicial approval to engage in electronic surveillance for domestic security purposes. This
ruling is limited to domestic security issues and does not address foreign security or require
the rules set forth in the Act be applied to domestic security issues. Congress should consider
future legislation to create standards to be applied to domestic security surveillance that
comply with the Fourth Amendment.