Part I: Basic Issues of Constitutional and International Law 1

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1 Contents Introduction xi Part I: Basic Issues of Constitutional and International Law 1 1 Separation of Powers and National Security 3 By Vijay M. Padmanabhan The Reality 4 Experts 11 Resources 12 2 The First Amendment and National Security 13 By Julia Atcherley and Lee Levine Setting the Stage: The Sedition Act and the Pentagon Papers 14 Criminal Prosecution of Journalists 16 Sources and Subpoenas: The Reporter s Privilege 18 Conclusion 21 Experts 21 Resources 22 3 U.S. Government Secrecy and Classification 25 By John R. Tunheim and Andrew M. Borene Classification in U.S. History 25 Executive Orders 27 The Current Executive Order Governing Classification 27 Modern Classification Categories 28 Sensitive Compartmented Information 29 Special Access Programs 30 v

2 CONTENTS Ban on Use of Classification to Hide Embarrassing Information 31 Access to Classified Information 33 Unclassified but Protected For Official Use Only 34 Sanctions: Legal Consequences for Violating Classification Rules 35 Experts 36 Resources 36 Appendix to Chapter The Role of International Law in Domestic Courts 67 By Deborah Pearlstein What Is International Law? 68 Treaties 68 Customary International Law 69 When Questions of International Law Arise before U.S. Courts 71 Conclusion 75 Experts 75 Resources 76 5 Defining Terrorism under International Law 79 By David Scharia Introduction 79 Defining Terrorism at the United Nations 80 Resolutions Requiring Member States to Take Measures against Terrorism 86 Terrorism as an International Crime 88 Terrorism as a Crime under International Customary Law 90 Conclusion 91 Experts 92 Resources 92 Part II: The Laws of War and Military Operations 95 6 The Laws of War: Regulating the Use of Force 97 By Geoffrey S. Corn and Laurie R. Blank The Jus ad Bellum: The International Legal Basis for the Use of Force 98 The Jus in Bello: Regulating the Conduct of Hostilities 105 Conclusion 118 Experts 119 Resources Secret Operations: Covert Action and Military Activities 123 By Benjamin Powell Military Activities under Title 10 of the U.S. Code 125 Covert Action under Title 50 of the U.S. Code 126 Traditional Military Activities and Covert Action 129 vi

3 Contents Experts 132 Resources Piracy 135 By Eugene Kontorovich Background 135 Causes of Somali Piracy 137 Private Military Contractors and Rules of Engagement 138 Difficulties in Prosecution 140 Transfers for Trial 141 Experts 142 Resources The United Nations Convention on the Law of the Sea 145 By Glenn M. Sulmasy and Chris Tribolet Introduction 145 Early Development of the Law of the Sea 146 Jurisdiction Creep Begins 147 The 1958 Conventions on the Law of the Sea 148 The Push for a Comprehensive Law of the Sea Treaty 148 The United Nations Convention on the Law of the Sea (UNCLOS III) 149 The Status of UNCLOS III in U.S. Law 158 Experts 159 Resources Targeted Killings and the Law 161 By Amos N. Guiora Historical Background of Self-Defense 163 Differentiating Extrajudicial Killing from Targeted Killing 166 The Decision-Making Process 166 Conclusion 170 Experts 170 Resources Military Commissions 173 By David W. Glazier Military Commission History 174 Bush Administration Military Commissions 177 Guantanamo Trials under the Military Commissions Act of Guantanamo Military Commission Issues 179 Conclusion 181 Experts 182 Resources 182 vii

4 CONTENTS 12 Courts-Martial and Other Military Legal Proceedings 183 By Jim McPherson Administrative Personnel Proceedings 183 Court-Martial Proceedings 186 Posttrial Proceedings 192 Experts 193 Resources 193 Part III: Domestic Law Enforcement and Counterterrorism U.S.-Based Intelligence: The Law and Organizational Structure 197 By W. Renn Gade and Harvey Rishikof U.S.-Based Intelligence Defined 200 Post-9/11 Changes and the Structure of the U.S.-Based Intelligence Enterprise 201 Department of Homeland Security 202 Director of National Intelligence 203 Department of Justice and the FBI 204 Department of Defense 207 Future Challenges with U.S.-Based Intelligence 208 Experts 210 Resources National Security Investigations 215 By Todd Hinnen The Historical Foundations of Modern National Security Investigations 216 The Emergence of a Legal Framework 218 Oversight of National Security Investigations 224 Conclusion 225 Experts 226 Resources Electronic Surveillance and Cybersecurity 227 By James X. Dempsey Constitutional Origins 227 Statutes Regulating Electronic Surveillance and Related Activities 231 Cybersecurity 241 Experts 242 Resources Material Support of Terrorism: Tool for Public Safety or Recipe for Overreaching? 243 By Peter Margulies A (Very) Short History of Conspiracy 245 History of the Material Support Laws 246 Prosecutions for Aiding Terrorist Activity under Section 2339A 247 Use of Informants 250 viii

5 Contents Material Support of Designated Organizations 250 Criticisms of the Material Support Law 256 Material Support beyond Criminal Law 257 Military Commissions 258 Immigration Impact 260 Experts 261 Resources Extraterritorial Issues: Investigation and Prosecution of National Security Cases 263 By Jennifer C. Daskal Introduction 263 Jurisdiction for Extraterritorial Offenses 264 Investigations Abroad 268 Obtaining the Defendant 272 Posttrial 274 Conclusion 275 Experts 275 Resources Data Mining: A Primer 279 By Adam Isles What Is Data Mining? 281 Historical Context 285 Understanding the Relationship of Technology to Policy 290 In the News 293 Experts 297 Resources Exports of Surveillance Technology to Repressive Regimes 299 By Michael T. Gershberg Substantive Law A Patchwork of Rules 301 Procedure Vastly Differing Time Horizons between News and Investigation Cycles 306 Conclusion 308 Experts 308 Resources 309 Part IV: Homeland Security Issues The Use of the Military in the Homeland 313 By Kurt Johnson Military Roles in the Homeland 314 Civilian Control of the Military 315 Federal versus State Powers and the Tenth Amendment to the U.S. Constitution 315 ix

6 CONTENTS The Military 316 Unity of Command versus Unity of Effort and the Dual Status Commander 317 Who Is in Charge? The Civil Support/Homeland Defense Continuum 318 The Posse Comitatus Act and the Insurrection Act 320 Immediate Response Authority 323 Intelligence Oversight 323 Conclusion 325 Experts 326 Resources Border Security and the Law 329 By Susan Ginsburg Background 330 Border Security Intelligence Authorities 331 Use of Immigration Law in Counterterrorism 334 Traveler Screening and the Visa Process 340 Illegal Immigration and Border Security 342 Allocation of Federal, State, and Local Immigration Authority 345 Military Homeland Defense 347 Conclusion 348 Experts 349 Resources Airport Screening and Scanning 351 By J. Bennet Waters and Paul Rosenzweig Introduction 351 The Legal Environment 352 Advanced Imaging Technology: Understanding the Technology 354 Limitations and Concerns 355 Necessity and Justification: The Administrative Procedures Act 357 Experts 358 Resources Responding to Biological Attacks 361 By Barry Kellman Detection and Diagnosis 362 Medical Countermeasures 365 Response and Restoration of Order 368 Conclusion 371 Experts 371 Resources 372 About the Editors 375 About the Contributors 379 Index 389 x