CONFERENCE MATERIAL DAY ONE 19TH ANNUAL REVIEW OF THE FIELD OF NATIONAL SECURITY LAW

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1 19TH ANNUAL REVIEW OF THE FIELD OF NATIONAL SECURITY LAW CONFERENCE MATERIAL DAY ONE SPONSORED BY: AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON LAW AND NATIONAL SECURITY CENTER FOR NATIONAL SECURITY LAW UNIVERSITY OF VIRGINIA SCHOOL OF LAW CENTER FOR LAW, ETHICS AND NATIONAL SECURITY DUKE UNIVERSITY SCHOOL OF LAW NOVEMBER 12 NOVEMBER 13, 2009 RENAISSANCE WASHINGTON DC HOTEL RENAISSANCE BALLROOM TH STREET, NW WASHINGTON, DC

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3 19th Annual Review of the Field of National Security Law November 12-13, 2009 Washington, DC Conference Material: Day One Panel I Title and Author Page Executive Update on Executive Order 12333: United States Intelligence Activities 1 Developments in Detention Policy Task Force Preliminary Report 17 National Security Law Protocol Governing Determination of Guantanamo Cases Referred for Prosecution 23 Trying Terrorists in Article III Courts: Challenges and Lessons Learned, ABA Standing Committee on Law and National Security 25 Exploring Counterterrorism Detention Alternatives, ABA Standing Committee on Law and National Security 35 Closing the Guantanamo Detention Center: Legal Issues, Congressional Research Service 45 The Detainee Interrogation Debate and the Legal-Policy Process, by Lisa L. Turner 91 Panel II Legislative Update on National Security Act of 1947 Title V - Accountability for Intelligence Activities 99 Developments in National Defense Authorization Act for FY 2010 Section National Security Law Department of Homeland Security Appropriations Act for FY 2010 Section USA PATRIOT Act Sections 206 and S USA PATRIOT Act Sunset Extension Act of H.R USA PATRIOT Amendments Act of Hearing on the USA PATRIOT Act, Testimony of Suzanne E. Spaulding before the Senate Judiciary Committee on September 23, 2009 Reauthorizing the USA PATRIOT Act: Ensuring Liberty and Security, Testimony of David Kris before the Senate Judiciary Committee on September 23, 2009 The USA PATRIOT Act Sections 206 and 215 and the "Lone Wolf" Provision of the Intelligence Reform and Terrorism Prevention Act of 2004, Testimony of Kenneth L. Wainstein before the Senate Judiciary Committee on September 23, 2009 Lawmakers Join Forces on Cybersecurity Legislation, by Gautham Nagesh 159 Panel III Emerging Issues in U.S. Southwest Border Security Initiatives, by Miguel Salazar 161 National Security Law: National Security Issues with Mexico: A Tale of a Troubled State, by Luz E. Nagle 171 Narco-Violence Transnational Drug Enterprises: Threats to Global Stability and U.S. National Security from along the Border Southwest Asia, Latin America, and West Africa, Testimony of Eric L. Olson 197 Six Key Issues in U.S.-Mexico Security Cooperation, by Eric L. Olson 205 Strengthening U.S.-Mexico Cooperation against Drug Trafficking: What Can State Attorney Generals Do? by Andrew D. Selee 219 U.S. Mexico National Security Cooperation against Organized Crime: The Road Ahead, by Sigrid Arzt

4 PANEL I: EXECUTIVE UPDATE ON DEVELOPMENTS IN NATIONAL SECURITY LAW MODERATOR: HARVEY RISHIKOF

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6 Executive Order United States Intelligence Activities (As amended by Executive Orders (2003), (2004) and (2008)) PREAMBLE Timely, accurate, and insightful information about the activities, capabilities, plans, and intentions of foreign powers, organizations, and persons, and their agents, is essential to the national security of the United States. All reasonable and lawful means must be used to ensure that the United States will receive the best intelligence possible. For that purpose, by virtue of the authority vested in me by the Constitution and the laws of the United States of America, including the National Security Act of 1947, as amended, (Act) and as President of the United States of America, in order to provide for the effective conduct of United States intelligence activities and the protection of constitutional rights, it is hereby ordered as follows: PART 1 Goals, Directions, Duties, and Responsibilities with Respect to United States Intelligence Efforts 1.1 Goals. The United States intelligence effort shall provide the President, the National Security Council, and the Homeland Security Council with the necessary information on which to base decisions concerning the development and conduct of foreign, defense, and economic policies, and the protection of United States national interests from foreign security threats. All departments and agencies shall cooperate fully to fulfill this goal. (a) All means, consistent with applicable Federal law and this order, and with full consideration of the rights of United States persons, shall be used to obtain reliable intelligence information to protect the United States and its interests. (b) The United States Government has a solemn obligation, and shall continue in the conduct of intelligence activities under this order, to protect fully the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law. (c) Intelligence collection under this order should be guided by the need for information to respond to intelligence priorities set by the President. (d) Special emphasis should be given to detecting and countering: (1) Espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests; (2) Threats to the United States and its interests from terrorism; and (3) Threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction. (e) Special emphasis shall be given to the production of timely, accurate, and insightful reports, responsive to decisionmakers in the executive branch, that draw on all appropriate sources of information, including open source information, meet rigorous analytic standards, consider diverse analytic viewpoints, and accurately represent appropriate alternative views. (f) State, local, and tribal governments are critical partners in securing and defending the United States from terrorism and other threats to the United States and its interests. Our national intelligence effort should take into account the responsibilities and requirements of State, local, and tribal governments and, as appropriate, private sector entities, when undertaking the collection and dissemination of information and intelligence to protect the United States. (g) All departments and agencies have a responsibility to prepare and to provide intelligence in a manner that allows the full and free exchange of information, consistent with applicable law and presidential guidance. 1.2 The National Security Council. (a) Purpose. The National Security Council (NSC) shall act as the highest ranking executive branch entity that provides support to the President for review of, guidance for, and direction to the conduct of all foreign intelligence,

7 counterintelligence, and covert action, and attendant policies and programs. (b) Covert Action and Other Sensitive Intelligence Operations. The NSC shall consider and submit to the President a policy recommendation, including all dissents, on each proposed covert action and conduct a periodic review of ongoing covert action activities, including an evaluation of the effectiveness and consistency with current national policy of such activities and consistency with applicable legal requirements. The NSC shall perform such other functions related to covert action as the President may direct, but shall not undertake the conduct of covert actions. The NSC shall also review proposals for other sensitive intelligence operations. 1.3 Director of National Intelligence. Subject to the authority, direction, and control of the President, the Director of National Intelligence (Director) shall serve as the head of the Intelligence Community, act as the principal adviser to the President, to the NSC, and to the Homeland Security Council for intelligence matters related to national security, and shall oversee and direct the implementation of the National Intelligence Program and execution of the National Intelligence Program budget. The Director will lead a unified, coordinated, and effective intelligence effort. In addition, the Director shall, in carrying out the duties and responsibilities under this section, take into account the views of the heads of departments containing an element of the Intelligence Community and of the Director of the Central Intelligence Agency. (a) Except as otherwise directed by the President or prohibited by law, the Director shall have access to all information and intelligence described in section 1.5(a) of this order. For the purpose of access to and sharing of information and intelligence, the Director: (1) Is hereby assigned the function under section 3(5) of the Act, to determine that intelligence, regardless of the source from which derived and including information gathered within or outside the United States, pertains to more than one United States Government agency; and (2) Shall develop guidelines for how information or intelligence is provided to or accessed by the Intelligence Community in accordance with section 1.5(a) of this order, and for how the information or intelligence may be used and shared by the Intelligence Community. All guidelines developed in accordance with this section shall be approved by the Attorney General and, where applicable, shall be consistent with guidelines issued pursuant to section 1016 of the Intelligence Reform and Terrorism Protection Act of 2004 (Public Law ) (IRTPA). (b) In addition to fulfilling the obligations and responsibilities prescribed by the Act, the Director: (1) Shall establish objectives, priorities, and guidance for the Intelligence Community to ensure timely and effective collection, processing, analysis, and dissemination of intelligence, of whatever nature and from whatever source derived; (2) May designate, in consultation with affected heads of departments or Intelligence Community elements, one or more Intelligence Community elements to develop and to maintain services of common concern on behalf of the Intelligence Community if the Director determines such services can be more efficiently or effectively accomplished in a consolidated manner; (3) Shall oversee and provide advice to the President and the NSC with respect to all ongoing and proposed covert action programs; (4) In regard to the establishment and conduct of intelligence arrangements and agreements with foreign governments and international organizations: (A) May enter into intelligence and counterintelligence arrangements and agreements with foreign governments and international organizations; (B) Shall formulate policies concerning intelligence and counterintelligence arrangements and agreements with foreign governments and international organizations; and (C) Shall align and synchronize intelligence and counterintelligence foreign relationships among the elements of the Intelligence Community to further United States national security, policy, and intelligence objectives; (5) Shall participate in the development of procedures approved by the Attorney General governing criminal drug intelligence activities abroad to ensure that these activities are consistent with foreign intelligence

8 programs; (6) Shall establish common security and access standards for managing and handling intelligence systems, information, and products, with special emphasis on facilitating: (A) The fullest and most prompt access to and dissemination of information and intelligence practicable, assigning the highest priority to detecting, preventing, preempting, and disrupting terrorist threats and activities against the United States, its interests, and allies; and (B) The establishment of standards for an interoperable information sharing enterprise that facilitates the sharing of intelligence information among elements of the Intelligence Community; (7) Shall ensure that appropriate departments and agencies have access to intelligence and receive the support needed to perform independent analysis; (8) Shall protect, and ensure that programs are developed to protect, intelligence sources, methods, and activities from unauthorized disclosure; (9) Shall, after consultation with the heads of affected departments and agencies, establish guidelines for Intelligence Community elements for: (A) Classification and declassification of all intelligence and intelligence-related information classified under the authority of the Director or the authority of the head of a department or Intelligence Community element; and (B) Access to and dissemination of all intelligence and intelligence-related information, both in its final form and in the form when initially gathered, to include intelligence originally classified by the head of a department or Intelligence Community element, except that access to and dissemination of information concerning United States persons shall be governed by procedures developed in accordance with Part 2 of this order; (10) May, only with respect to Intelligence Community elements, and after consultation with the head of the originating Intelligence Community element or the head of the originating department, declassify, or direct the declassification of, information or intelligence relating to intelligence sources, methods, and activities. The Director may only delegate this authority to the Principal Deputy Director of National Intelligence; (11) May establish, operate, and direct one or more national intelligence centers to address intelligence priorities; (12) May establish Functional Managers and Mission Managers, and designate officers or employees of the United States to serve in these positions. (A) Functional Managers shall report to the Director concerning the execution of their duties as Functional Managers, and may be charged with developing and implementing strategic guidance, policies, and procedures for activities related to a specific intelligence discipline or set of intelligence activities; set training and tradecraft standards; and ensure coordination within and across intelligence disciplines and Intelligence Community elements and with related nonintelligence activities. Functional Managers may also advise the Director on: the management of resources; policies and procedures; collection capabilities and gaps; processing and dissemination of intelligence; technical architectures; and other issues or activities determined by the Director. (i) The Director of the National Security Agency is designated the Functional Manager for signals intelligence; (ii) The Director of the Central Intelligence Agency is designated the Functional Manager for human intelligence; and (iii) The Director of the National Geospatial-Intelligence Agency is designated the Functional Manager for geospatial intelligence. (B) Mission Managers shall serve as principal substantive advisors on all or specified aspects of intelligence related to designated countries, regions, topics, or functional issues;

9 (13) Shall establish uniform criteria for the determination of relative priorities for the transmission of critical foreign intelligence, and advise the Secretary of Defense concerning the communications requirements of the Intelligence Community for the transmission of such communications; (14) Shall have ultimate responsibility for production and dissemination of intelligence produced by the Intelligence Community and authority to levy analytic tasks on intelligence production organizations within the Intelligence Community, in consultation with the heads of the Intelligence Community elements concerned; (15) May establish advisory groups for the purpose of obtaining advice from within the Intelligence Community to carry out the Director's responsibilities, to include Intelligence Community executive management committees composed of senior Intelligence Community leaders. Advisory groups shall consist of representatives from elements of the Intelligence Community, as designated by the Director, or other executive branch departments, agencies, and offices, as appropriate; (16) Shall ensure the timely exploitation and dissemination of data gathered by national intelligence collection means, and ensure that the resulting intelligence is disseminated immediately to appropriate government elements, including military commands; (17) Shall determine requirements and priorities for, and manage and direct the tasking, collection, analysis, production, and dissemination of, national intelligence by elements of the Intelligence Community, including approving requirements for collection and analysis and resolving conflicts in collection requirements and in the tasking of national collection assets of Intelligence Community elements (except when otherwise directed by the President or when the Secretary of Defense exercises collection tasking authority under plans and arrangements approved by the Secretary of Defense and the Director); (18) May provide advisory tasking concerning collection and analysis of information or intelligence relevant to national intelligence or national security to departments, agencies, and establishments of the United States Government that are not elements of the Intelligence Community; and shall establish procedures, in consultation with affected heads of departments or agencies and subject to approval by the Attorney General, to implement this authority and to monitor or evaluate the responsiveness of United States Government departments, agencies, and other establishments; (19) Shall fulfill the responsibilities in section 1.3(b)(17) and (18) of this order, consistent with applicable law and with full consideration of the rights of United States persons, whether information is to be collected inside or outside the United States; (20) Shall ensure, through appropriate policies and procedures, the deconfliction, coordination, and integration of all intelligence activities conducted by an Intelligence Community element or funded by the National Intelligence Program. In accordance with these policies and procedures: (A) The Director of the Federal Bureau of Investigation shall coordinate the clandestine collection of foreign intelligence collected through human sources or through human-enabled means and counterintelligence activities inside the United States; (B) The Director of the Central Intelligence Agency shall coordinate the clandestine collection of foreign intelligence collected through human sources or through human-enabled means and counterintelligence activities outside the United States; (C) All policies and procedures for the coordination of counterintelligence activities and the clandestine collection of foreign intelligence inside the United States shall be subject to the approval of the Attorney General; and (D) All policies and procedures developed under this section shall be coordinated with the heads of affected departments and Intelligence Community elements; (21) Shall, with the concurrence of the heads of affected departments and agencies, establish joint procedures to deconflict, coordinate, and synchronize intelligence activities conducted by an Intelligence Community element or funded by the National Intelligence Program, with intelligence activities, activities that involve foreign intelligence and security services, or activities that involve the use of clandestine methods, conducted by other United States Government departments, agencies, and establishments;

10 (22) Shall, in coordination with the heads of departments containing elements of the Intelligence Community, develop procedures to govern major system acquisitions funded in whole or in majority part by the National Intelligence Program; (23) Shall seek advice from the Secretary of State to ensure that the foreign policy implications of proposed intelligence activities are considered, and shall ensure, through appropriate policies and procedures, that intelligence activities are conducted in a manner consistent with the responsibilities pursuant to law and presidential direction of Chiefs of United States Missions; and (24) Shall facilitate the use of Intelligence Community products by the Congress in a secure manner. (c) The Director's exercise of authorities in the Act and this order shall not abrogate the statutory or other responsibilities of the heads of departments of the United States Government or the Director of the Central Intelligence Agency. Directives issued and actions taken by the Director in the exercise of the Director's authorities and responsibilities to integrate, coordinate, and make the Intelligence Community more effective in providing intelligence related to national security shall be implemented by the elements of the Intelligence Community, provided that any department head whose department contains an element of the Intelligence Community and who believes that a directive or action of the Director violates the requirements of section 1018 of the IRTPA or this subsection shall bring the issue to the attention of the Director, the NSC, or the President for resolution in a manner that respects and does not abrogate the statutory responsibilities of the heads of the departments. (d) Appointments to certain positions. (1) The relevant department or bureau head shall provide recommendations and obtain the concurrence of the Director for the selection of: the Director of the National Security Agency, the Director of the National Reconnaissance Office, the Director of the National Geospatial-Intelligence Agency, the Under Secretary of Homeland Security for Intelligence and Analysis, the Assistant Secretary of State for Intelligence and Research, the Director of the Office of Intelligence and Counterintelligence of the Department of Energy, the Assistant Secretary for Intelligence and Analysis of the Department of the Treasury, and the Executive Assistant Director for the National Security Branch of the Federal Bureau of Investigation. If the Director does not concur in the recommendation, the department head may not fill the vacancy or make the recommendation to the President, as the case may be. If the department head and the Director do not reach an agreement on the selection or recommendation, the Director and the department head concerned may advise the President directly of the Director's intention to withhold concurrence. (2) The relevant department head shall consult with the Director before appointing an individual to fill a vacancy or recommending to the President an individual be nominated to fill a vacancy in any of the following positions: the Under Secretary of Defense for Intelligence; the Director of the Defense Intelligence Agency; uniformed heads of the intelligence elements of the Army, the Navy, the Air Force, and the Marine Corps above the rank of Major General or Rear Admiral; the Assistant Commandant of the Coast Guard for Intelligence; and the Assistant Attorney General for National Security. (e) Removal from certain positions. (1) Except for the Director of the Central Intelligence Agency, whose removal the Director may recommend to the President, the Director and the relevant department head shall consult on the removal, or recommendation to the President for removal, as the case may be, of: the Director of the National Security Agency, the Director of the National Geospatial-Intelligence Agency, the Director of the Defense Intelligence Agency, the Under Secretary of Homeland Security for Intelligence and Analysis, the Assistant Secretary of State for Intelligence and Research, and the Assistant Secretary for Intelligence and Analysis of the Department of the Treasury. If the Director and the department head do not agree on removal, or recommendation for removal, either may make a recommendation to the President for the removal of the individual. (2) The Director and the relevant department or bureau head shall consult on the removal of: the Executive Assistant Director for the National Security Branch of the Federal Bureau of Investigation, the Director of the Office of Intelligence and Counterintelligence of the Department of Energy, the Director of the National Reconnaissance Office, the Assistant Commandant of the Coast Guard for Intelligence, and the Under Secretary of Defense for Intelligence. With respect to an individual appointed by a department head, the department head may remove the individual upon the request of the Director; if the department head

11 chooses not to remove the individual, either the Director or the department head may advise the President of the department head's intention to retain the individual. In the case of the Under Secretary of Defense for Intelligence, the Secretary of Defense may recommend to the President either the removal or the retention of the individual. For uniformed heads of the intelligence elements of the Army, the Navy, the Air Force, and the Marine Corps, the Director may make a recommendation for removal to the Secretary of Defense. (3) Nothing in this subsection shall be construed to limit or otherwise affect the authority of the President to nominate, appoint, assign, or terminate the appointment or assignment of any individual, with or without a consultation, recommendation, or concurrence. 1.4 The Intelligence Community. Consistent with applicable Federal law and with the other provisions of this order, and under the leadership of the Director, as specified in such law and this order, the Intelligence Community shall: (a) Collect and provide information needed by the President and, in the performance of executive functions, the Vice President, the NSC, the Homeland Security Council, the Chairman of the Joint Chiefs of Staff, senior military commanders, and other executive branch officials and, as appropriate, the Congress of the United States; (b) In accordance with priorities set by the President, collect information concerning, and conduct activities to protect against, international terrorism, proliferation of weapons of mass destruction, intelligence activities directed against the United States, international criminal drug activities, and other hostile activities directed against the United States by foreign powers, organizations, persons, and their agents; (c) Analyze, produce, and disseminate intelligence; (d) Conduct administrative, technical, and other support activities within the United States and abroad necessary for the performance of authorized activities, to include providing services of common concern for the Intelligence Community as designated by the Director in accordance with this order; (e) Conduct research, development, and procurement of technical systems and devices relating to authorized functions and missions or the provision of services of common concern for the Intelligence Community; (f) Protect the security of intelligence related activities, information, installations, property, and employees by appropriate means, including such investigations of applicants, employees, contractors, and other persons with similar associations with the Intelligence Community elements as are necessary; (g) Take into account State, local, and tribal governments' and, as appropriate, private sector entities' information needs relating to national and homeland security; (h) Deconflict, coordinate, and integrate all intelligence activities and other information gathering in accordance with section 1.3(b)(20) of this order; and (i) Perform such other functions and duties related to intelligence activities as the President may direct. 1.5 Duties and Responsibilities of the Heads of Executive Branch Departments and Agencies. The heads of all departments and agencies shall: (a) Provide the Director access to all information and intelligence relevant to the national security or that otherwise is required for the performance of the Director's duties, to include administrative and other appropriate management information, except such information excluded by law, by the President, or by the Attorney General acting under this order at the direction of the President; (b) Provide all programmatic and budgetary information necessary to support the Director in developing the National Intelligence Program; (c) Coordinate development and implementation of intelligence systems and architectures and, as appropriate, operational systems and architectures of their departments, agencies, and other elements with the Director to respond to national intelligence requirements and all applicable information sharing and security guidelines, information privacy, and other legal requirements; (d) Provide, to the maximum extent permitted by law, subject to the availability of appropriations and not inconsistent with the mission of the department or agency, such further support to the Director as the Director may request, after consultation with the head of the department or agency, for the performance of the Director's functions;

12 (e) Respond to advisory tasking from the Director under section 1.3(b)(18) of this order to the greatest extent possible, in accordance with applicable policies established by the head of the responding department or agency; (f) Ensure that all elements within the department or agency comply with the provisions of Part 2 of this order, regardless of Intelligence Community affiliation, when performing foreign intelligence and counterintelligence functions; (g) Deconflict, coordinate, and integrate all intelligence activities in accordance with section 1.3(b)(20), and intelligence and other activities in accordance with section 1.3(b)(21) of this order; (h) Inform the Attorney General, either directly or through the Federal Bureau of Investigation, and the Director of clandestine collection of foreign intelligence and counterintelligence activities inside the United States not coordinated with the Federal Bureau of Investigation; (i) Pursuant to arrangements developed by the head of the department or agency and the Director of the Central Intelligence Agency and approved by the Director, inform the Director and the Director of the Central Intelligence Agency, either directly or through his designee serving outside the United States, as appropriate, of clandestine collection of foreign intelligence collected through human sources or through human-enabled means outside the United States that has not been coordinated with the Central Intelligence Agency; and (j) Inform the Secretary of Defense, either directly or through his designee, as appropriate, of clandestine collection of foreign intelligence outside the United States in a region of combat or contingency military operations designated by the Secretary of Defense, for purposes of this paragraph, after consultation with the Director of National Intelligence. 1.6 Heads of Elements of the Intelligence Community. The heads of elements of the Intelligence Community shall: (a) Provide the Director access to all information and intelligence relevant to the national security or that otherwise is required for the performance of the Director's duties, to include administrative and other appropriate management information, except such information excluded by law, by the President, or by the Attorney General acting under this order at the direction of the President; (b) Report to the Attorney General possible violations of Federal criminal laws by employees and of specified Federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department, agency, or establishment concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures; (c) Report to the Intelligence Oversight Board, consistent with Executive Order of February 29, 2008, and provide copies of all such reports to the Director, concerning any intelligence activities of their elements that they have reason to believe may be unlawful or contrary to executive order or presidential directive; (d) Protect intelligence and intelligence sources, methods, and activities from unauthorized disclosure in accordance with guidance from the Director; (e) Facilitate, as appropriate, the sharing of information or intelligence, as directed by law or the President, to State, local, tribal, and private sector entities; (f) Disseminate information or intelligence to foreign governments and international organizations under intelligence or counterintelligence arrangements or agreements established in accordance with section 1.3(b)(4) of this order; (g) Participate in the development of procedures approved by the Attorney General governing production and dissemination of information or intelligence resulting from criminal drug intelligence activities abroad if they have intelligence responsibilities for foreign or domestic criminal drug production and trafficking; and (h) Ensure that the inspectors general, general counsels, and agency officials responsible for privacy or civil liberties protection for their respective organizations have access to any information or intelligence necessary to perform their official duties. 1.7 Intelligence Community Elements. Each element of the Intelligence Community shall have the duties and responsibilities specified below, in addition to those specified by law or elsewhere in this order. Intelligence Community elements within executive departments shall serve the information and intelligence needs of their respective heads of departments and also shall operate as part of an integrated Intelligence Community, as provided in law or this order.

13 (a) THE CENTRAL INTELLIGENCE AGENCY. The Director of the Central Intelligence Agency shall: (1) Collect (including through clandestine means), analyze, produce, and disseminate foreign intelligence and counterintelligence; (2) Conduct counterintelligence activities without assuming or performing any internal security functions within the United States; (3) Conduct administrative and technical support activities within and outside the United States as necessary for cover and proprietary arrangements; (4) Conduct covert action activities approved by the President. No agency except the Central Intelligence Agency (or the Armed Forces of the United States in time of war declared by the Congress or during any period covered by a report from the President to the Congress consistent with the War Powers Resolution, Public Law ) may conduct any covert action activity unless the President determines that another agency is more likely to achieve a particular objective; (5) Conduct foreign intelligence liaison relationships with intelligence or security services of foreign governments or international organizations consistent with section 1.3(b)(4) of this order; (6) Under the direction and guidance of the Director, and in accordance with section 1.3(b)(4) of this order, coordinate the implementation of intelligence and counterintelligence relationships between elements of the Intelligence Community and the intelligence or security services of foreign governments or international organizations; and (7) Perform such other functions and duties related to intelligence as the Director may direct. (b) THE DEFENSE INTELLIGENCE AGENCY. The Director of the Defense Intelligence Agency shall: (1) Collect (including through clandestine means), analyze, produce, and disseminate foreign intelligence and counterintelligence to support national and departmental missions; (2) Collect, analyze, produce, or, through tasking and coordination, provide defense and defense-related intelligence for the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, combatant commanders, other Defense components, and non-defense agencies;(3) Conduct counterintelligence activities; (4) Conduct administrative and technical support activities within and outside the United States as necessary for cover and proprietary arrangements; (5) Conduct foreign defense intelligence liaison relationships and defense intelligence exchange programs with foreign defense establishments, intelligence or security services of foreign governments, and international organizations in accordance with sections 1.3(b)(4), 1.7(a)(6), and 1.10(i) of this order; (6) Manage and coordinate all matters related to the Defense Attaché system; and (7) Provide foreign intelligence and counterintelligence staff support as directed by the Secretary of Defense. (c) THE NATIONAL SECURITY AGENCY. The Director of the National Security Agency shall: (1) Collect (including through clandestine means), process, analyze, produce, and disseminate signals intelligence information and data for foreign intelligence and counterintelligence purposes to support national and departmental missions; (2) Establish and operate an effective unified organization for signals intelligence activities, except for the delegation of operational control over certain operations that are conducted through other elements of the Intelligence Community. No other department or agency may engage in signals intelligence activities except pursuant to a delegation by the Secretary of Defense, after coordination with the Director; (3) Control signals intelligence collection and processing activities, including assignment of resources to an appropriate agent for such periods and tasks as required for the direct support of military commanders; (4) Conduct administrative and technical support activities within and outside the United States as necessary for cover arrangements;

14 (5) Provide signals intelligence support for national and departmental requirements and for the conduct of military operations; (6) Act as the National Manager for National Security Systems as established in law and policy, and in this capacity be responsible to the Secretary of Defense and to the Director; (7) Prescribe, consistent with section 102A(g) of the Act, within its field of authorized operations, security regulations covering operating practices, including the transmission, handling, and distribution of signals intelligence and communications security material within and among the elements under control of the Director of the National Security Agency, and exercise the necessary supervisory control to ensure compliance with the regulations; and (8) Conduct foreign cryptologic liaison relationships in accordance with sections 1.3(b)(4), 1.7(a)(6), and 1.10(i) of this order. (d) THE NATIONAL RECONNAISSANCE OFFICE. The Director of the National Reconnaissance Office shall: (1) Be responsible for research and development, acquisition, launch, deployment, and operation of overhead systems and related data processing facilities to collect intelligence and information to support national and departmental missions and other United States Government needs; and (2) Conduct foreign liaison relationships relating to the above missions, in accordance with sections 1.3(b)(4), 1.7(a)(6), and 1.10(i) of this order. (e) THE NATIONAL GEOSPATIAL-INTELLIGENCE AGENCY. The Director of the National Geospatial-Intelligence Agency shall: (1) Collect, process, analyze, produce, and disseminate geospatial intelligence information and data for foreign intelligence and counterintelligence purposes to support national and departmental missions; (2) Provide geospatial intelligence support for national and departmental requirements and for the conduct of military operations; (3) Conduct administrative and technical support activities within and outside the United States as necessary for cover arrangements; and (4) Conduct foreign geospatial intelligence liaison relationships, in accordance with sections 1.3(b)(4), 1.7(a)(6), and 1.10(i) of this order. (f) THE INTELLIGENCE AND COUNTERINTELLIGENCE ELEMENTS OF THE ARMY, NAVY, AIR FORCE, AND MARINE CORPS. The Commanders and heads of the intelligence and counterintelligence elements of the Army, Navy, Air Force, and Marine Corps shall: (1) Collect (including through clandestine means), produce, analyze, and disseminate defense and defense-related intelligence and counterintelligence to support departmental requirements, and, as appropriate, national requirements; (2) Conduct counterintelligence activities; (3) Monitor the development, procurement, and management of tactical intelligence systems and equipment and conduct related research, development, and test and evaluation activities; and (4) Conduct military intelligence liaison relationships and military intelligence exchange programs with selected cooperative foreign defense establishments and international organizations in accordance with sections 1.3(b)(4), 1.7(a)(6), and 1.10(i) of this order. (g) INTELLIGENCE ELEMENTS OF THE FEDERAL BUREAU OF INVESTIGATION. Under the supervision of the Attorney General and pursuant to such regulations as the Attorney General may establish, the intelligence elements of the Federal Bureau of Investigation shall: (1) Collect (including through clandestine means), analyze, produce, and disseminate foreign intelligence and counterintelligence to support national and departmental missions, in accordance with procedural guidelines approved by the Attorney General, after consultation with the Director; (2) Conduct counterintelligence activities; and

15 (3) Conduct foreign intelligence and counterintelligence liaison relationships with intelligence, security, and law enforcement services of foreign governments or international organizations in accordance with sections 1.3(b)(4) and 1.7(a)(6) of this order. (h) THE INTELLIGENCE AND COUNTERINTELLIGENCE ELEMENTS OF THE COAST GUARD. The Commandant of the Coast Guard shall: (1) Collect (including through clandestine means), analyze, produce, and disseminate foreign intelligence and counterintelligence including defense and defense-related information and intelligence to support national and departmental missions; (2) Conduct counterintelligence activities; (3) Monitor the development, procurement, and management of tactical intelligence systems and equipment and conduct related research, development, and test and evaluation activities; and (4) Conduct foreign intelligence liaison relationships and intelligence exchange programs with foreign intelligence services, security services or international organizations in accordance with sections 1.3(b)(4), 1.7(a)(6), and, when operating as part of the Department of Defense, 1.10(i) of this order. (i) THE BUREAU OF INTELLIGENCE AND RESEARCH, DEPARTMENT OF STATE; THE OFFICE OF INTELLIGENCE AND ANALYSIS, DEPARTMENT OF THE TREASURY; THE OFFICE OF NATIONAL SECURITY INTELLIGENCE, DRUG ENFORCEMENT ADMINISTRATION; THE OFFICE OF INTELLIGENCE AND ANALYSIS, DEPARTMENT OF HOMELAND SECURITY; AND THE OFFICE OF INTELLIGENCE AND COUNTERINTELLIGENCE, DEPARTMENT OF ENERGY. The heads of the Bureau of Intelligence and Research, Department of State; the Office of Intelligence and Analysis, Department of the Treasury; the Office of National Security Intelligence, Drug Enforcement Administration; the Office of Intelligence and Analysis, Department of Homeland Security; and the Office of Intelligence and Counterintelligence, Department of Energy shall: (1) Collect (overtly or through publicly available sources), analyze, produce, and disseminate information, intelligence, and counterintelligence to support national and departmental missions; and (2) Conduct and participate in analytic or information exchanges with foreign partners and international organizations in accordance with sections 1.3(b)(4) and 1.7(a)(6) of this order. (j) THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. The Director shall collect (overtly or through publicly available sources), analyze, produce, and disseminate information, intelligence, and counterintelligence to support the missions of the Office of the Director of National Intelligence, including the National Counterterrorism Center, and to support other national missions. 1.8 The Department of State. In addition to the authorities exercised by the Bureau of Intelligence and Research under sections 1.4 and 1.7(i) of this order, the Secretary of State shall: (a) Collect (overtly or through publicly available sources) information relevant to United States foreign policy and national security concerns; (b) Disseminate, to the maximum extent possible, reports received from United States diplomatic and consular posts; (c) Transmit reporting requirements and advisory taskings of the Intelligence Community to the Chiefs of United States Missions abroad; and (d) Support Chiefs of United States Missions in discharging their responsibilities pursuant to law and presidential direction. 1.9 The Department of the Treasury. In addition to the authorities exercised by the Office of Intelligence and Analysis of the Department of the Treasury under sections 1.4 and 1.7(i) of this order the Secretary of the Treasury shall collect (overtly or through publicly available sources) foreign financial information and, in consultation with the Department of State, foreign economic information The Department of Defense. The Secretary of Defense shall: (a) Collect (including through clandestine means), analyze, produce, and disseminate information and intelligence and be responsive to collection tasking and advisory tasking by the Director;

16 (b) Collect (including through clandestine means), analyze, produce, and disseminate defense and defense-related intelligence and counterintelligence, as required for execution of the Secretary's responsibilities; (c) Conduct programs and missions necessary to fulfill national, departmental, and tactical intelligence requirements; (d) Conduct counterintelligence activities in support of Department of Defense components and coordinate counterintelligence activities in accordance with section 1.3(b)(20) and (21) of this order; (e) Act, in coordination with the Director, as the executive agent of the United States Government for signals intelligence activities; (f) Provide for the timely transmission of critical intelligence, as defined by the Director, within the United States Government; (g) Carry out or contract for research, development, and procurement of technical systems and devices relating to authorized intelligence functions; (h) Protect the security of Department of Defense installations, activities, information, property, and employees by appropriate means, including such investigations of applicants, employees, contractors, and other persons with similar associations with the Department of Defense as are necessary; (i) Establish and maintain defense intelligence relationships and defense intelligence exchange programs with selected cooperative foreign defense establishments, intelligence or security services of foreign governments, and international organizations, and ensure that such relationships and programs are in accordance with sections 1.3(b)(4), 1.3(b)(21) and 1.7(a)(6) of this order; (j) Conduct such administrative and technical support activities within and outside the United States as are necessary to provide for cover and proprietary arrangements, to perform the functions described in sections (a) though (i) above, and to support the Intelligence Community elements of the Department of Defense; and (k) Use the Intelligence Community elements within the Department of Defense identified in section 1.7(b) through (f) and, when the Coast Guard is operating as part of the Department of Defense, (h) above to carry out the Secretary of Defense's responsibilities assigned in this section or other departments, agencies, or offices within the Department of Defense, as appropriate, to conduct the intelligence missions and responsibilities assigned to the Secretary of Defense The Department of Homeland Security. In addition to the authorities exercised by the Office of Intelligence and Analysis of the Department of Homeland Security under sections 1.4 and 1.7(i) of this order, the Secretary of Homeland Security shall conduct, through the United States Secret Service, activities to determine the existence and capability of surveillance equipment being used against the President or the Vice President of the United States, the Executive Office of the President, and, as authorized by the Secretary of Homeland Security or the President, other Secret Service protectees and United States officials. No information shall be acquired intentionally through such activities except to protect against use of such surveillance equipment, and those activities shall be conducted pursuant to procedures agreed upon by the Secretary of Homeland Security and the Attorney General The Department of Energy. In addition to the authorities exercised by the Office of Intelligence and Counterintelligence of the Department of Energy under sections 1.4 and 1.7(i) of this order, the Secretary of Energy shall: (a) Provide expert scientific, technical, analytic, and research capabilities to other agencies within the Intelligence Community, as appropriate; (b) Participate in formulating intelligence collection and analysis requirements where the special expert capability of the Department can contribute; and (c) Participate with the Department of State in overtly collecting information with respect to foreign energy matters.

17 1.13 The Federal Bureau of Investigation. In addition to the authorities exercised by the intelligence elements of the Federal Bureau of Investigation of the Department of Justice under sections 1.4 and 1.7(g) of this order and under the supervision of the Attorney General and pursuant to such regulations as the Attorney General may establish, the Director of the Federal Bureau of Investigation shall provide technical assistance, within or outside the United States, to foreign intelligence and law enforcement services, consistent with section 1.3(b)(20) and (21) of this order, as may be necessary to support national or departmental missions. PART 2 Conduct of Intelligence Activities 2.1 Need. Timely, accurate, and insightful information about the activities, capabilities, plans, and intentions of foreign powers, organizations, and persons, and their agents, is essential to informed decisionmaking in the areas of national security, national defense, and foreign relations. Collection of such information is a priority objective and will be pursued in a vigorous, innovative, and responsible manner that is consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded. 2.2 Purpose. This Order is intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities, the spread of weapons of mass destruction, and espionage conducted by foreign powers. Set forth below are certain general principles that, in addition to and consistent with applicable laws, are intended to achieve the proper balance between the acquisition of essential information and protection of individual interests. Nothing in this Order shall be construed to apply to or interfere with any authorized civil or criminal law enforcement responsibility of any department or agency. 2.3 Collection of information. Elements of the Intelligence Community are authorized to collect, retain, or disseminate information concerning United States persons only in accordance with procedures established by the head of the Intelligence Community element concerned or by the head of a department containing such element and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order, after consultation with the Director. Those procedures shall permit collection, retention, and dissemination of the following types of information: (a) Information that is publicly available or collected with the consent of the person concerned; (b) Information constituting foreign intelligence or counterintelligence, including such information concerning corporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the Federal Bureau of Investigation (FBI) or, when significant foreign intelligence is sought, by other authorized elements of the Intelligence Community, provided that no foreign intelligence collection by such elements may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons; (c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international drug or international terrorism investigation; (d) Information needed to protect the safety of any persons or organizations, including those who are targets, victims, or hostages of international terrorist organizations; (e) Information needed to protect foreign intelligence or counterintelligence sources, methods, and activities from unauthorized disclosure. Collection within the United States shall be undertaken by the FBI except that other elements of the Intelligence Community may also collect such information concerning present or former employees, present or former intelligence element contractors or their present or former employees, or applicants for such employment or contracting; (f) Information concerning persons who are reasonably believed to be potential sources or contacts for the purpose of determining their suitability or credibility; (g) Information arising out of a lawful personnel, physical, or communications security investigation; (h) Information acquired by overhead reconnaissance not directed at specific United States persons; (i) Incidentally obtained information that may indicate involvement in activities that may violate Federal, state, local, or foreign laws; and (j) Information necessary for administrative purposes.

18 In addition, elements of the Intelligence Community may disseminate information to each appropriate element within the Intelligence Community for purposes of allowing the recipient element to determine whether the information is relevant to its responsibilities and can be retained by it, except that information derived from signals intelligence may only be disseminated or made available to Intelligence Community elements in accordance with procedures established by the Director in coordination with the Secretary of Defense and approved by the Attorney General. 2.4 Collection Techniques. Elements of the Intelligence Community shall use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad. Elements of the Intelligence Community are not authorized to use such techniques as electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the Intelligence Community element concerned or the head of a department containing such element and approved by the Attorney General, after consultation with the Director. Such procedures shall protect constitutional and other legal rights and limit use of such information to lawful governmental purposes. These procedures shall not authorize: (a) The Central Intelligence Agency (CIA) to engage in electronic surveillance within the United States except for the purpose of training, testing, or conducting countermeasures to hostile electronic surveillance; (b) Unconsented physical searches in the United States by elements of the Intelligence Community other than the FBI, except for: (1) Searches by counterintelligence elements of the military services directed against military personnel within the United States or abroad for intelligence purposes, when authorized by a military commander empowered to approve physical searches for law enforcement purposes, based upon a finding of probable cause to believe that such persons are acting as agents of foreign powers; and (2) Searches by CIA of personal property of non-united States persons lawfully in its possession; (c) Physical surveillance of a United States person in the United States by elements of the Intelligence Community other than the FBI, except for: (1) Physical surveillance of present or former employees, present or former intelligence element contractors or their present or former employees, or applicants for any such employment or contracting; and (2) Physical surveillance of a military person employed by a non-intelligence element of a military service; and (d) Physical surveillance of a United States person abroad to collect foreign intelligence, except to obtain significant information that cannot reasonably be acquired by other means. 2.5 Attorney General Approval. The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. The authority delegated pursuant to this paragraph, including the authority to approve the use of electronic surveillance as defined in the Foreign Intelligence Surveillance Act of 1978, as amended, shall be exercised in accordance with that Act. 2.6 Assistance to Law Enforcement and other Civil Authorities. Elements of the Intelligence Community are authorized to: (a) Cooperate with appropriate law enforcement agencies for the purpose of protecting the employees, information, property, and facilities of any element of the Intelligence Community; (b) Unless otherwise precluded by law or this Order, participate in law enforcement activities to investigate or prevent clandestine intelligence activities by foreign powers, or international terrorist or narcotics activities;

19 (c) Provide specialized equipment, technical knowledge, or assistance of expert personnel for use by any department or agency, or when lives are endangered, to support local law enforcement agencies. Provision of assistance by expert personnel shall be approved in each case by the general counsel of the providing element or department; and (d) Render any other assistance and cooperation to law enforcement or other civil authorities not precluded by applicable law. 2.7 Contracting. Elements of the Intelligence Community are authorized to enter into contracts or arrangements for the provision of goods or services with private companies or institutions in the United States and need not reveal the sponsorship of such contracts or arrangements for authorized intelligence purposes. Contracts or arrangements with academic institutions may be undertaken only with the consent of appropriate officials of the institution. 2.8 Consistency With Other Laws. Nothing in this Order shall be construed to authorize any activity in violation of the Constitution or statutes of the United States. 2.9 Undisclosed Participation in Organizations Within the United States. No one acting on behalf of elements of the Intelligence Community may join or otherwise participate in any organization in the United States on behalf of any element of the Intelligence Community without disclosing such person s intelligence affiliation to appropriate officials of the organization, except in accordance with procedures established by the head of the Intelligence Community element concerned or the head of a department containing such element and approved by the Attorney General, after consultation with the Director. Such participation shall be authorized only if it is essential to achieving lawful purposes as determined by the Intelligence Community element head or designee. No such participation may be undertaken for the purpose of influencing the activity of the organization or its members except in cases where: (a) The participation is undertaken on behalf of the FBI in the course of a lawful investigation; or (b) The organization concerned is composed primarily of individuals who are not United States persons and is reasonably believed to be acting on behalf of a foreign power Human Experimentation. No element of the Intelligence Community shall sponsor, contract for, or conduct research on human subjects except in accordance with guidelines issued by the Department of Health and Human Services. The subject's informed consent shall be documented as required by those guidelines Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination Indirect Participation. No element of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order Limitation on Covert Action. No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media. PART 3 General Provisions 3.1 Congressional Oversight. The duties and responsibilities of the Director and the heads of other departments, agencies, elements, and entities engaged in intelligence activities to cooperate with the Congress in the conduct of its responsibilities for oversight of intelligence activities shall be implemented in accordance with applicable law, including title V of the Act. The requirements of applicable law, including title V of the Act, shall apply to all covert action activities as defined in this Order. 3.2 Implementation. The President, supported by the NSC, and the Director shall issue such appropriate directives, procedures, and guidance as are necessary to implement this order. Heads of elements within the Intelligence Community shall issue appropriate procedures and supplementary directives consistent with this order. No procedures to implement Part 2 of this order shall be issued without the Attorney General's approval, after consultation with the Director. The Attorney General shall provide a statement of reasons for not approving any procedures established by the head of an element in the Intelligence Community (or the head of the department containing such element) other than the FBI. In instances where the element head or department head and the Attorney General are unable to reach agreements on other than constitutional or other legal grounds, the Attorney General, the head of department concerned, or the Director shall refer the matter to the NSC.

20 3.3 Procedures. The activities herein authorized that require procedures shall be conducted in accordance with existing procedures or requirements established under Executive Order New procedures, as required by Executive Order 12333, as further amended, shall be established as expeditiously as possible. All new procedures promulgated pursuant to Executive Order 12333, as amended, shall be made available to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives. 3.4 References and Transition. References to "Senior Officials of the Intelligence Community" or "SOICs" in executive orders or other Presidential guidance, shall be deemed references to the heads of elements in the Intelligence Community, unless the President otherwise directs; references in Intelligence Community or Intelligence Community element policies or guidance, shall be deemed to be references to the heads of elements of the Intelligence Community, unless the President or the Director otherwise directs. 3.5 Definitions. For the purposes of this Order, the following terms shall have these meanings: (a) Counterintelligence means information gathered and activities conducted to identify, deceive, exploit, disrupt, or protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or persons, or their agents, or international terrorist organizations or activities. (b) Covert action means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include: (1) Activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities; (2) Traditional diplomatic or military activities or routine support to such activities; (3) Traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or (4) Activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad. (c) Electronic surveillance means acquisition of a nonpublic communication by electronic means without the consent of a person who is a party to an electronic communication or, in the case of a nonelectronic communication, without the consent of a person who is visibly present at the place of communication, but not including the use of radio direction-finding equipment solely to determine the location of a transmitter. (d) Employee means a person employed by, assigned or detailed to, or acting for an element within the Intelligence Community. (e) Foreign intelligence means information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists. (f) Intelligence includes foreign intelligence and counterintelligence. (g) Intelligence activities means all activities that elements of the Intelligence Community are authorized to conduct pursuant to this order. (h) Intelligence Community and elements of the Intelligence Community refers to: (1) The Office of the Director of National Intelligence; (2) The Central Intelligence Agency; (3) The National Security Agency; (4) The Defense Intelligence Agency; (5) The National Geospatial-Intelligence Agency; (6) The National Reconnaissance Office;

21 (7) The other offices within the Department of Defense for the collection of specialized national foreign intelligence through reconnaissance programs; (8) The intelligence and counterintelligence elements of the Army, the Navy, the Air Force, and the Marine Corps; (9) The intelligence elements of the Federal Bureau of Investigation; (10) The Office of National Security Intelligence of the Drug Enforcement Administration; (11) The Office of Intelligence and Counterintelligence of the Department of Energy; (12) The Bureau of Intelligence and Research of the Department of State; (13) The Office of Intelligence and Analysis of the Department of the Treasury; (14) The Office of Intelligence and Analysis of the Department of Homeland Security; (15) The intelligence and counterintelligence elements of the Coast Guard; and (16) Such other elements of any department or agency as may be designated by the President, or designated jointly by the Director and the head of the department or agency concerned, as an element of the Intelligence Community. (i) National Intelligence and Intelligence Related to National Security means all intelligence, regardless of the source from which derived and including information gathered within or outside the United States, that pertains, as determined consistent with any guidance issued by the President, or that is determined for the purpose of access to information by the Director in accordance with section 1.3(a)(1) of this order, to pertain to more than one United States Government agency; and that involves threats to the United States, its people, property, or interests; the development, proliferation, or use of weapons of mass destruction; or any other matter bearing on United States national or homeland security. (j) The National Intelligence Program means all programs, projects, and activities of the Intelligence Community, as well as any other programs of the Intelligence Community designated jointly by the Director and the head of a United States department or agency or by the President. Such term does not include programs, projects, or activities of the military departments to acquire intelligence solely for the planning and conduct of tactical military operations by United States Armed Forces. (k) United States person means a United States citizen, an alien known by the intelligence element concerned to be a permanent resident alien, an unincorporated association substantially composed of United States citizens or permanent resident aliens, or a corporation incorporated in the United States, except for a corporation directed and controlled by a foreign government or governments. 3.6 Revocation. Executive Orders and of August 27, 2004, are revoked; and paragraphs 1.3(b)(9) and (10) of Part 1 supersede provisions within Executive Order 12958, as amended, to the extent such provisions in Executive Order 12958, as amended, are inconsistent with this Order. 3.7 General Provisions. (a) Consistent with section 1.3(c) of this order, nothing in this order shall be construed to impair or otherwise affect: (1) Authority granted by law to a department or agency, or the head thereof; or (2) Functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.

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30 Due Process and Terrorism Series s Trying Terrorists in Article III Courts Challenges and Lessons Learned s A Post-Workshop Report July 2009 American Bar Association Standing Committee on Law and National Security National Strategy Forum McCormick Foundation

31 American Bar Association Standing Committee on Law and National Security The Standing Committee on Law and National Security, since 1962, has sustained an unwavering commitment to educating the Bar and the public on the importance of the rule of law in preserving the freedoms of democracy and our national security. Founded by five farsighted individuals, among them were Chicago lawyer Morris I. Leibman and then-aba President and later Supreme Court Justice Lewis J. Powell, the Standing Committee focuses on legal aspects of national security with particular attention in recent years to the issues raised by legal responses to terrorist events. The Committee conducts studies, sponsors programs and conferences, and administers working groups on law and national security-related issues. Activities assist policymakers, educate lawyers, the media and the public, and enable the Committee to make recommendations to the ABA. It is assisted by an Advisory Committee, Counselors to the Committee, and liaisons from ABA entities. For more information, visit The National Strategy Forum Since 1983, the National Strategy Forum, a non-profit, non-partisan think tank in Chicago, Illinois, has focused on the issues and trends affecting US national security strategy. The NSF s principal mission is to enhance the public s understanding of national security-related topics through a monthly lecture series and the National Strategy Forum Review, a thematic quarterly journal. In addition to its public education programs, the NSF also conducts conferences on various subjects related to national security, including homeland defense, counterterrorism, nuclear non-proliferation, catastrophe preparedness and response, and international relations. Post-conference reports, issues of the National Strategy Forum Review, and more are available at Workshop Underwritten By McCormick Foundation The McCormick Foundation is a nonprofit organization committed to making life better for our children, communities and country. Through its charitable grantmaking programs, Cantigny Park and Golf, Cantigny First Division Foundation and the McCormick Freedom Museum, the Foundation positively impacts people s lives and stays true to its mission of advancing the ideals of a free, democratic society. The Foundation is an independent nonprofit. For more information, please visit Report written by Ashley Inderfurth and Wayne Massey, Third-Year Students, The George Washington University Law School The Trying Terrorists in Article III Courts Workshop was not for attribution. The materials contained herein represent the opinions of the discussants and do not reflect the official policy of their respective agencies, private sector organizations, or the United States Government. The materials should not be construed to be those of either the American Bar Association or the Standing Committee on Law and National Security, unless adopted pursuant to the bylaws of the Association. These materials and any forms and agreements herein are intended for educational and informational purposes only.

32 Trying Terrorists in Article III Courts: Challenges and Lessons Learned Post-Workshop Report July 2009 Table of Contents I. FOREWORD 4 II. REPORTERS NOTE 6 III. OVERVIEW 7 IV. CLASSIFIED AND SENSITIVE EVIDENCE 11 V. ADDITIONAL EVIDENTIARY CONCERNS 18 VI. TRIAL MANAGEMENT 27 VII. CONCLUSION 36 Appendix I: -List of Workshop Participants 37 Appendix II: -Recommended Readings 42 3

33 I. Foreword As the new Administration works to develop a sustainable approach to counterterrorism detention policy, at least one conclusion is already apparent: the criminal justice system will remain a critical means for the foreseeable future for detaining individuals who have engaged in terrorist conduct. The use of the federal courts for prosecuting suspected terrorists is hardly new. According to the Department of Justice, U.S. federal prisons today house more than 200 inmates with a connection to international terrorism. The terrorism chapter of the federal criminal code now identifies some dozen different offenses, many criminalizing conduct occurring outside the United States. The number of other federal crimes that are charged in terrorism prosecutions is much larger still. And the American bar, given the number of criminal terrorism trials during the past two decades, has a growing community of prosecutors, defense attorneys, and federal judges with deep experience in handling terrorism trials. Yet while terrorism cases may not be new to the federal courts, neither are they conducted without challenges. Criminal defendants have a constitutional right not only to confront the evidence against them, but also to discover from the government any material information that may tend to prove their innocence. When information has been properly classified by the government in accord with national security interests, will a summary of the information suffice to protect the rights of the accused? Likewise, an individual taken into custody on suspicion of criminal activity is typically entitled to be advised promptly, of his rights, including his right to remain silent and to be represented by counsel rights that help ensure due process. Nevertheless, when military or intelligence officials seize a suspect overseas, and for purposes other than domestic law enforcement, such warnings may seem irrelevant at best. If it later becomes clear that criminal prosecution might be an appropriate course, is it possible to cure the initial failure to warn? And even in the most practical terms, where cases involve large volumes of classified information, how can Article III judges, their clerks and staff, function to protect the security of that information? Whether or not the law already has prescribed uniform answers to these questions, the lawyers and judges who have faced them have accumulated a range of practical insights worth sharing. The workshop notes that follow reflect the wisdom of those experienced professionals, and highlight many of the issues that go to the heart of debates about what aspects of the fight against terrorism the criminal law is capable of addressing. The participants unsurprisingly did not agree in every respect on the limits of the criminal law in countering terrorism; their differences as well as their points of agreement are recorded in the report. The report is most valuable, not for its conclusions, but for its description of the Trying Terrorists in Article III Courts 4 July 2009

34 Foreword nuanced workshop discussions. The goal was to illuminate the issues rather than derive agreed-upon recommendations. The report presents the insights and views of the relevant experts, informed by their respective experiences, knowledge, and interactions at the workshop itself. Hopefully, these reports will in turn inform the discussions of policymakers and the public on these vital issues. Differences among the group nothwithstanding, one of the most oft-repeated observations of the workshop was one on which there was broad consensus: the challenges that may surround terrorism prosecutions vary enormously case by case. Some cases can be handled readily within existing rules; others may require painstaking negotiations between law enforcement and intelligence professionals, and novel solutions by judges, to proceed to conclusion. As in other complex criminal settings, the federal courts have stretched to meet these varied tests with enormous institutional skill, creativity and flexibility characteristics that are among the courts greatest assets. Approaches to handling terrorism cases going forward would do well to build on the strengths of our judicial system. Working Group Members: Albert C. Harvey Chair Standing Committee on Law and National Security American Bar Association Suzanne E. Spaulding Advisory Committee Chair Standing Committee on Law and National Security American Bar Association Richard E. Friedman President and Chair National Strategy Forum M.E. Spike Bowman Distinguished Fellow University of Virginia School of Law Peter Raven-Hansen Professor of Law George Washington University Law School Deborah Pearlstein Visiting Scholar Program in Law and Public Affairs Princeton University Harvey Rishikof Professor of Law and National Security Studies National War College Research support provided by Matt Owens. July Trying Terrorists in Article III Courts

35 II. Reporters Note The following report was prepared by Ashley Inderfurth and Wayne Massey ( the reporters ) based on their notes of the workshop discussion and the editorial comments of the workshop discussants. The reporters attempted in good faith to set forth an accurate record of the discussion, including its more nuanced details and general tenor. The report distinguishes between points of consensus, substantial agreement, some agreement, and disagreement or contrast. However, even points characterized as consensus or substantial agreement are not generally points on which there was complete or uniform agreement. In order to report the discussion accurately and to ensure that the report is factually accurate, the reporters added background and introductory information, primarily in footnotes or at the beginning of report sections. The reporters intended that the additional information would help to clarify the discussion for the reader. Trying Terrorists in Article III Courts 6 July 2009

36 III. Overview On April 24, 2009, a group of thirty-three legal experts, scholars, and practitioners in the field of national security law gathered at Bingham McCutchen, LLP in Washington, D.C. for a day-long workshop entitled Trying Terrorists in Article III Courts. The participants were drawn from the government, the judiciary, the private sector, and academia, and were encouraged to express their diverse interests and viewpoints during the discussion. The participants spoke under Chatham House Rule, meaning that their remarks were recorded without attribution. Sixteen observers, including members of the Obama Administration Task Force on Detention Policy, also were present for the discussion. The workshop, the second in a series on related topics, 1 focused on major challenges associated with prosecuting, defending, and managing terrorism cases in the Article III criminal court system. The discussion points of the workshop were somewhat foreshadowed by the Standing Committee s previous report, Due Process and Terrorism. 2 The discussants were asked to consider two questions: what are the challenges to trying terrorist suspects in Article III courts, and is it possible to address those challenges within existing legal constraints? The participants were asked to consider in particular: (1) issues concerning classified and sensitive evidence, (2) challenges arising from the application of constitutional procedural and federal evidentiary rules to terrorism trials, and (3) problems of trial management and security. These topics will be addressed in detail in the following report. In framing the day s discussion, the moderators requested that the discussants consider only the relative merits and demerits of the Article III court system, and refrain from debating other potential forums for terrorist prosecutions. The discussants generally stayed within the articulated framework; it was anticipated that the workshop discussion would provide a baseline for broader debates regarding the appropriate forum for terrorism trials. 1 The first workshop in the series was entitled Due Process and Terrorism. See American Bar Association (ABA) Standing Committee on Law and National Security et al., Due Process and Terrorism (2007) (discussing, primarily, cases pending at that time in which the Supreme Court considered what, if any, process was due to terrorist suspects detained by the U.S. Government), available at [hereinafter Standing Committee Report on Due Process & Terrorism]. 2 See id. at (discussing, briefly, some of the problems associated with trying terrorists in regularly-constituted Article III courts). July Trying Terrorists in Article III Courts

37 Overview The goal of the workshop was not to reach definitive solutions to the problems confronting the Article III system in trying suspected terrorists, but rather, to determine where the real challenges lie and which issues have been exaggerated or already resolved. However, throughout the workshop discussion, a few conclusions and principles emerged. The following list of conclusions and principles, while accurate, necessarily glosses over some of the more nuanced points in the discussion that are accounted for in more detail in the following sections. Thus, the following points should be considered in the context of the report as a whole because the context is vital to understanding the issues surrounding each point. Some of the problems that exist in terrorism trials are substantially similar to those presented in other criminal contexts, such as trials of mob-related crimes. Some of the procedures and practices developed for trying such cases are adaptable to terrorism trials. Many of the ad hoc procedures developed by the courts to manage terrorism trials have been effective. There is, however, a steep learning curve for judges and courthouses when it comes to trying terrorist suspects. In addition and as pointed out in more detail to follow, several discussants were concerned with the cases never pursued in Article III courts and the potential problems that will arise if those types of cases are pursued in regular Article III courts in the future. Pro se defendants in terrorism trials have posed challenges to the Article III courts in both time and resources. There are mechanisms already available to address this issue, including the revocation of the pro se right for consistently disruptive defendants. Some of the challenges associated with terrorism trials are posed by constitutionally mandated safeguards, and thus, the use of an alternative forum to the regular Article III courts (such as a national security court) may not alleviate some of the challenges. Not all of the issues facing Article III courts in terrorism trials can or should be solved by Congress, because some issues are constitutional in nature and others are too particular and technical to be remedied by statute. The death penalty increases the government s discovery burden in some Trying Terrorists in Article III Courts 8 July 2009

38 Overview terrorism cases. Thus, the government would mitigate some practical and foreign relations challenges by not seeking the death penalty. Generally, however, the discussants did not assert that the government should forgo the death penalty in terrorism cases as a matter of policy. Despite the fact that the wall between the intelligence and law enforcement communities ostensibly has come down, there remains some distrust between these groups with regard to both reliable evidence collection and protection of classified and sensitive information. Active participation by the Department of Justice s court security officers is imperative to the effective management of terrorism trials, and the government should allocate additional resources to assist them in their work. The Law of Armed Conflict governs the treatment of terrorist suspects captured on the battlefield. However, the discussants did not consider a precise definition for the nature and scope of the battlefield in the context of the present conflict. Several participants cautioned that most of these points are based only on those terrorism cases that have been tried in Article III courts to date, and that such cases do not afford a complete database for assessing the sufficiency of the Article III system. They noted that the success of the Article III criminal system may be overstated because there is no record of the terrorism prosecutions that the government never pursued as a result of challenges associated with the Article III courts. Several discussants suggested that the government, for reasons they felt they could not publicly disclose, came very close to withdrawing past terrorism cases because of challenges associated with the Article III system, and may have made compromises to pursue those cases in the Article III courts. Partly as a consequence of this reasoning, some of the discussants suggested that while it is generally desirable to prosecute terrorism cases in Article III criminal courts, there may be some class of cases that require a backstop to the Article III framework to deal with terrorist suspects who may pose a threat to national security but who cannot be prosecuted successfully. The dearth of empirical information on terrorism cases never pursued led several discussants to the following conclusion: It should be possible, and would be helpful for future debate and decision-making regarding the sufficiency of Article III terrorism trials, to gather empirical information to characterize the subset of terrorism cases not prosecuted due to challenges in the Article III system. July Trying Terrorists in Article III Courts

39 Overview While the workshop participants did not reach substantial agreement that the Article III system is capable of handling all terrorism trials, they did note generally that the courts have resolved past cases in a satisfactory manner. Some discussants remarked that many of the challenges facing the courts have been considered and managed in other contexts, implying that the courts need not create an entirely new procedural framework for most terrorism trials. Looking ahead, the discussants noted that legislation may not be appropriate to resolve all of the known issues and that the Article III courts may be better suited to resolve some of the issues without legislative intervention. Trying Terrorists in Article III Courts 10 July 2009

40 Due Process and Terrorism Series s Exploring Counterterrorism Detention Alternatives s A Post-Workshop Report September 2009 American Bar Association Standing Committee on Law and National Security National Strategy Forum McCormick Foundation

41 American Bar Association Standing Committee on Law and National Security The Standing Committee on Law and National Security, since 1962, has sustained an unwavering commitment to educating the Bar and the public on the importance of the rule of law in preserving the freedoms of democracy and our national security. Founded by five farsighted individuals, among them were Chicago lawyer Morris I. Leibman and then-aba President and later Supreme Court Justice Lewis J. Powell, the Standing Committee focuses on legal aspects of national security with particular attention in recent years to the issues raised by legal responses to terrorist events. The Committee conducts studies, sponsors programs and conferences, and administers working groups on law and national security-related issues. Activities assist policymakers, educate lawyers, the media and the public, and enable the Committee to make recommendations to the ABA. It is assisted by an Advisory Committee, Counselors to the Committee, and liaisons from ABA entities. For more information, visit The National Strategy Forum Since 1983, the National Strategy Forum, a non-profit, non-partisan think tank in Chicago, Illinois, has focused on the issues and trends affecting US national security strategy. The NSF s principal mission is to enhance the public s understanding of national security-related topics through a monthly lecture series and the National Strategy Forum Review, a thematic quarterly journal. In addition to its public education programs, the NSF also conducts conferences on various subjects related to national security, including homeland defense, counterterrorism, nuclear non-proliferation, catastrophe preparedness and response, and international relations. Post-conference reports, issues of the National Strategy Forum Review, and more are available at Workshop Underwritten By McCormick Foundation The McCormick Foundation is a nonprofit organization committed to making life better for our children, communities and country. Through its charitable grantmaking programs, Cantigny Park and Golf, Cantigny First Division Foundation and the McCormick Freedom Museum, the Foundation positively impacts people s lives and stays true to its mission of advancing the ideals of a free, democratic society. The Foundation is an independent nonprofit. For more information, please visit Report written by Wayne Massey. Research and editing support provided by Matt Owens The Exploring Counterterrorism Detention Alternatives Workshop was not for attribution. The materials contained herein represent the opinions of the discussants and do not reflect the official policy of their respective agencies, private sector organizations, or the United States Government. The materials should not be construed to be those of either the American Bar Association or the Standing Committee on Law and National Security, unless adopted pursuant to the bylaws of the Association. These materials and any forms and agreements herein are intended for educational and informational purposes only.

42 Exploring Counterterrorism Detention Alternatives June 2, 2009 Washington, D.C. Table of Contents I. FOREWORD 1 II. REPORTER S NOTE 3 III. OVERVIEW 4 IV. Who Needs to be Detained and Why 7 A. Introduction B. Rationales for Detention C. Distinguishing between Potential Detainees V. Detention Powers 12 A. Permissible Detention Under IHL B. The Israeli Model for Administrative Detention VI. Gaps in Current U.S. Detention Authority 18 VII. Moving Forward 22 A. Broadening the Battlefield or Otherwise Remodeling the IHL Framework B. An Alternative Counterterrorism Detention Model, Loosely Defined C. Concerns About a New Administrative Model VIII. Conclusion 27

43 Appendix I: List of Workshop Participants 28 Appendix II: Recommended Readings 30 Stella J. Burch, Rethinking Preventive Detention from a Comparative Perspective: Three Frameworks for Detaining Terrorist Suspects (2009). Student Scholarship Papers. Feikert, Clare, Pre-Charge Detention for Terrorist Suspects: United Kingdom (2008). Amos N. Guiora, A Proposal for an Administrative Detention Model for the United States (2009). Joint Committee on Human Rights, Parliament of the United Kingdom, Counter-Terrorism Policy and Human Rights (Fifteenth Report): Annual Review of 28 Days (2009). McLoughlin, et al., Security Detention, Terrorism, and the Prevention Imperative, 40 CASE WESTERN RES. J. INT L L. 463, (2009). Dan. E. Stigall, Counterterrorism and the Comparative Law of Investigative Detention (2009). Lisa White, Terrorism Laws on Control Orders: Australia (2008). Lisa White, Terrorism Laws on Preventative Detention & Prohibited Contact Orders: Australia (2008).

44 I. Foreword In the intensive national debate over the U.S. approach to counterterrorism detention, it has at times proven tempting to oversimplify the issues involved. Those who oppose broadening U.S. detention authority too often gloss over the reality that detention has long been part of military operations in armed conflict, and that, if lawfully conducted, detention operations in such settings can function to reduce violence and help establish order. Whatever the appropriate resolution of the unique situation of the legacy detainees now at Guantanamo Bay, charge or release has never been the only option in situations of actual armed conflict. All of humanity shares an interest in ensuring that armed conflict detention is carried out in a way that ensures justice and minimizes errors. At the same time, many who support some new form of preventive or administrative detention incorrectly believe that advocates of judicial process are insisting that criminal law can provide a complete answer to the threat of terrorism. Yet it is now widely recognized that effective counterterrorism policy must use all instruments of national power diplomatic, economic, cultural, military, and, where lawful and appropriate, criminal processes. The false notion that there is a black and white choice to be made in counterterrorism policy generally between a criminal approach or a military approach wrongly assumes that we cannot, under appropriate circumstances, do both. It also obscures the fundamental questions at issue in the detention debate who should be detained, under what circumstances, and why. To explore this vexing set of questions, the ABA Standing Committee on Law and National Security convened this third in a series of workshops on Due Process and Terrorism. This workshop focused on whether new or different detention authority is necessary and wise for effective counterterrorism policy. While there was no expectation that participants would reach consensus indeed, participants were chosen to ensure that a diverse range of views would be represented participants were able to move past the rhetorical debate and move forward with some shared understandings. There was no dispute that some detention authority was necessary for the United States to be effective at countering terrorism. There was likewise no dispute that too much detention mistaken detention, overly broad sweeps, or programs that mandate the prolonged detention of any who may pose even the smallest threat to U.S. interests without taking account of the range of likely consequences poses a strategic risk to U.S. national security. And there was no dispute that all three branches of U.S. government should be active participants in authorizing and policing any kind of detention regime going forward. September Counterterrorism Detention Alternatives

45 Foreword As with the previous reports in this series, the summary of discussion that follows is most valuable not for its conclusions, but for its description of the insights and experiences of the expert practitioners and scholars who participated. As the new Administration continues its works to develop a sustainable approach to counterterrorism detention policy, we are hopeful that this report, like its predecessors, will be useful in informing the discussions of policymakers and the public. Working Group Members: Albert C. Harvey Chair Standing Committee on Law and National Security American Bar Association Suzanne E. Spaulding Advisory Committee Chair Standing Committee on Law and National Security American Bar Association Richard E. Friedman President and Chair National Strategy Forum M.E. Spike Bowman Distinguished Fellow University of Virginia School of Law Deborah Pearlstein Visiting Scholar Program in Law and Public Affairs Princeton University Harvey Rishikof Professor of Law and National Security Studies National War College Counterterrorism Detention Alternatives 2 September 2009

46 II. Reporter s Note This report was prepared by Wayne Massey ( the reporter ) based on his notes of the workshop and the editorial comments of the workshop discussants. The reporter attempted in good faith to set forth an accurate record of the discussion, including the discussion s more nuanced details and its general tenor. The report distinguishes between points of consensus, substantial agreement, some agreement, and disagreement or contrast. However, even points characterized as consensus or substantial agreement are not generally points on which there was complete or uniform agreement amongst the discussants. In order to accurately report the discussion and ensure a factually accurate report, the reporter added background and introductory information, primarily by using footnotes. The reporter intended that the additional information would help to clarify the discussion for the reader. Finally, it is worth noting that the report does not follow the workshop discussion temporally. For the benefit of the reader and for the sake of clarity, the reporter attempted to organize points made throughout the day into a logical framework as defined by the workshop organizers in the agenda. September Counterterrorism Detention Alternatives

47 III. Overview In one of the first acts of his new administration, President Obama established an interagency task force to develop policies for the detention and trial of suspects captured in connection with armed conflicts and counterterrorism operations. 1 As the administration task force continues working to develop long-term policy in the field, the ABA Standing Committee on Law and National Security perceived a pressing need to ensure that the debate over detention is informed by experts with first-hand experience in current U.S. detention law and policy, as well as potential alternatives. To that end, on June 2, 2009, a group of legal and policy experts, experienced practitioners, and scholars gathered at Bingham McCutchen, LLP in Washington, D.C. for a day-long workshop entitled Exploring Counterterrorism Detention Alternatives. The workshop participants were drawn from the military, intelligence and law enforcement communities, private and non-profit sectors, government, and academia, and were encouraged to express their diverse viewpoints. The discussants spoke under Chatham House Rule, meaning that their remarks were recorded without attribution. In addition, the workshop hosted expert presenters and a number of observers. The workshop, the third in a series on related topics, 2 explored current U.S. detention powers under the criminal and military models and considered potential alternative models for the administrative detention of future terrorist suspects. The discussants considered and attempted to define, to the extent possible: (1) the classes or categories of individuals the United States has a strong national 1 See Exec. Order No. 13,493, 74 Fed. Reg. 4,901, 4,901 (Jan. 22, 2009) (establishing a Special [Interagency] Task Force on Detainee Disposition (Special Task Force) in order to develop policies for the detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations that are consistent with the national security and foreign policy interests of the United States and the interests of justice. 2 The first workshop in the series was entitled Due Process and Terrorism. See AMERICAN BAR ASSOCIATION (ABA) STANDING COMMITTEE ON LAW AND NATIONAL SECURITY ET AL., DUE PROCESS AND TERRORISM (2007) (discussing, primarily, cases pending at that time in which the Supreme Court considered what, if any, process was due to terrorist suspects detained by the U.S. Government), available at: [hereinafter REPORT ON DUE PROCESS & TERRORISM]. The second workshop in the series was entitled Trying Terrorists in Article III Courts. See ABA STANDING COMMITTEE ON LAW AND NATIONAL SECURITY ET AL., TRYING TERRORISTS IN ARTICLE III COURTS: CHALLENGES AND LESSONS LEARNED (2009) (discussing, primarily, some of the most difficult challenges associated with trying terrorist suspects in the regularly-constituted Article III courts), available at [hereinafter REPORT ON ARTICLE III TERRORISM TRIALS]. Counterterrorism Detention Alternatives 4 September 2009

48 Overview security interest in detaining; (2) the nature and scope of existing U.S. detention powers; (3) any present gaps in existing U.S. detention powers, focusing on classes of individuals identified at step (1) for which the United States currently has no lawful power to detain; and (4) the potential benefits and costs of instituting alternative detention models for suspects captured in the future. Finally, the discussants briefly considered what procedural features should characterize any such administrative detention model. The moderators intended for the discussion to be prospective, and requested that the thrust of the discussion focus on future detainees and detention law and policy rather than legacy detainees held at Guantanamo Bay or elsewhere. While the objective of the workshop was not to reach uniform conclusions on any particular issue, the discussants reached substantial, though not unanimous, agreement on a few broad conclusions and principles. The following list of points of agreement, while accurate, necessarily glosses over many of the nuances of the discussion that the report fully accounts for in the following sections. Thus, the following points should be considered in the context of the report as a whole because the context is vital to understanding the issues surrounding each point of agreement. The 2001 Authorization for the Use of Military Force, as informed by International Humanitarian Law (IHL), authorized the U.S. military to detain individuals lawfully who were under the command of enemy armed forces or who participated, directly or indirectly, in the international armed conflict in Afghanistan. Current IHL as accepted by the United States does not prohibit the detention of individuals in non-international armed conflict. 3 In order to avoid the negative and potentially severe drawbacks of a sweeping counterterrorism detention policy, the United States should define narrowly the classes of individuals that are subject to its detention authority. In determining who to detain, the United States should focus its detention efforts on (i) non-fungible terrorist personnel and (ii) terrorist personnel who pose an imminent threat to the safety or security of the United States, its citizens, or interests. A suspect s membership in a known terrorist organization or intelligence value may be im- 3 There exist widely accepted international safeguards to protect civilians in non-international armed conflicts, but the United States is currently not a party to the relevant treaties. See, e.g., Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 75, Dec. 7, 1978, 1125 U.N.T.S. 3, 37 (outlining a procedural framework for the treatment of any individual detained in relation to an armed conflict, whether of international or non-international character). September Counterterrorism Detention Alternatives

49 Overview portant factors in determining whether to detain, but neither of these factors on its own is necessary or sufficient to prove that an individual is a threat to the security of the United States justifying detention. There was no agreement as to the necessity for or benefits of an administrative detention regime for terrorist suspects beyond that authorized by the AUMF. However, the discussants did agree that the following principles should characterize any contemplated administrative detention regime. Any contemplated administrative detention regime for terrorist suspects should include articulable criteria describing who may be detained and specifying under what circumstances and conditions a detainee will be released. Furthermore, the government should bear the burden of proving that each detention is necessary, meaning that there is no other lawful means available for achieving the government s asserted detention interest. Ideally, any administrative detention model for terrorist suspects should feature cooperation between the three branches of the U.S. government. An independent judicial body should review the detention of individual suspects actively and frequently. In addition, many discussants agreed that the government should have a rising burden of proof to justify detention as the length of detention increases over time. Counterterrorism Detention Alternatives 6 September 2009

50 Closing the Guantanamo Detention Center: Legal Issues Michael John Garcia Legislative Attorney Elizabeth B. Bazan Legislative Attorney R. Chuck Mason Legislative Attorney Edward C. Liu Legislative Attorney Anna C. Henning Legislative Attorney September 14, 2009 Congressional Research Service CRS Report for Congress Prepared for Members and Committees of Congress R40139

51 Closing the Guantanamo Detention Center: Legal Issues Summary Following the terrorist attacks of 9/11, Congress passed the Authorization to Use Military Force (AUMF), which granted the President the authority to use all necessary and appropriate force against those... [who] planned, authorized, committed, or aided the terrorist attacks against the United States. Many persons subsequently captured during military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba for detention and possible prosecution before military tribunals. Although nearly 800 persons have been transferred to Guantanamo since early 2002, the substantial majority of Guantanamo detainees have ultimately been transferred to another country for continued detention or release. The 226 detainees who remain fall into three categories: (1) persons placed in non-penal, preventive detention to stop them from rejoining hostilities; (2) persons who have faced or are expected to face criminal charges; and (3) persons who have been cleared for transfer or release, whom the United States continues to detain pending transfer. Although the Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees may seek habeas corpus review of the legality of their detention, several legal issues remain unsettled, including the extent to which other constitutional provisions extend to noncitizens held at Guantanamo. On January 22, 2009, President Obama issued an Executive Order requiring the Guantanamo detention facility to be closed as soon as practicable, and no later than a year from the date of the Order. Several legislative proposals have been introduced in the 111 th Congress concerning the potential closure of the Guantanamo facility. The Supplemental Appropriations Act, 2009 (P.L ), bars any funds from being used to release any individual detained at Guantanamo into the continental United States, Hawaii, or Alaska, and also requires the President to submit reports to Congress regarding the handling of persons held at Guantanamo. Legislative proposals to modify military commissions, including the Senate-passed version of the National Defense Authorization Act, S. 1390, may also have implications for Guantanamo detainees. For more information, see CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the 111 th Congress, by Anna C. Henning, and CRS Report R40752, The Military Commissions Act of 2006: Background and Proposed Amendments, by Jennifer K. Elsea. The closure of the Guantanamo detention facility may raise a number of legal issues with respect to the individuals formerly interned there, particularly if those detainees are transferred to the United States for continued detention, prosecution, or release. The nature and scope of constitutional protections owed to detainees within the United States may be different from the protections owed to persons held outside the U.S. This may have implications for the continued detention or prosecution of persons who are transferred to the United States. The transfer of detainees to the United States may also have immigration consequences. Notably, some detainees might qualify for asylum or other protections under immigration law. This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought into the country. The report also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions). Issues discussed include detainees right to a speedy trial, the prohibition against prosecution under ex post facto laws, and limitations upon the admissibility of hearsay and secret evidence in criminal cases. Congressional Research Service

52 Closing the Guantanamo Detention Center: Legal Issues Contents Introduction...1 Detainee Transfer or Release from Guantanamo...4 Transfer/Release of Guantanamo Detainees to a Country other than the United States...5 Transfer of Detainees into the United States...7 Detention and Treatment of Persons Transferred to the United States...9 Authority to Detain within the United States...9 Treatment of Detained Persons Legal Challenges to Nature of Detention...12 Removal of Detainees from the United States...13 Detainees Rights in a Criminal Prosecution...14 Right to Assistance of Counsel...17 Right Against Use of Coerced Confessions...19 Right Against Prosecution Under Ex Post Facto Laws...23 Rules Against Hearsay Evidence...28 Evidentiary Issues...29 Constitutional Issues...30 Right to a Speedy Trial...32 Right to Confront Secret Evidence...35 Withholding Classified Information During Discovery...36 The Use of Secret Evidence At Trial...39 Conclusion...41 Contacts Author Contact Information...42 Congressional Research Service

53 Closing the Guantanamo Detention Center: Legal Issues Introduction Following the terrorist attacks of 9/11, Congress passed the Authorization to Use Military Force (AUMF), which granted the President the authority to use all necessary and appropriate force against those... [who] planned, authorized, committed, or aided the terrorist attacks against the United States. 1 As part of the subsequent war on terror, many persons captured during military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba for detention and possible prosecution before military tribunals. Although nearly 800 persons have been transferred to Guantanamo since early 2002, the substantial majority of Guantanamo detainees have ultimately been transferred to a third country for continued detention or release. 2 The 226 detainees who remain fall into three categories: Persons who have been placed in preventive detention to stop them from returning to the battlefield (formerly labeled enemy combatants by the Bush Administration 3 ). Preventive detention of captured belligerents is non-penal in nature, and must be ended upon the cessation of hostilities. Persons who, besides being subject to preventive detention, have been brought or are expected to be brought before a military or other tribunal to face criminal charges, including for alleged violations of the law of war. If convicted, such persons may be subject to criminal penalty, which in the case of the most severe offenses may include life imprisonment or death. Persons who have been cleared for transfer or release to a foreign country, either because (1) they are not believed to have been engaged in hostilities, or (2) although they were found to have been enemy belligerents, they are no longer considered a threat to U.S. security. Such persons remain detained at Guantanamo until their transfer may be effectuated. 1 P.L Department of Defense, Detainee Transfer Announced, press release, December 16, 2008, available at For a detailed description of the Guantanamo detainee population, see Benjamin Wittes and Zaahira Wyne, The Current Detainee Population of Guantánamo: An Empirical Study, Brookings Institute, December 16, 2008 [hereinafter Brookings Report ] and Andrei Scheinkman et al., The Guantanamo Docket, New York Times, Updates to the Brookings Report that track developments in the Guantanamo detainee population are available at reports/2008/1216_detainees_wittes.aspx. 3 In March 2009, the Obama Administration announced a new definitional standard for the government s authority to detain terrorist suspects, which does not use the phrase enemy combatant to refer to persons who may be properly detained. The new standard is similar in scope to the enemy combatant standard used by the Bush Administration to detain terrorist suspects. Like the former standard, the new standard would permit the detention of members of the Taliban, Al Qaeda, and associated forces, along with persons who provide support to such groups, regardless of whether such persons were captured away from the battlefield in Afghanistan. However, in contrast to the former standard, the new definition specifies that persons may be detained on account of support provided to Al Qaeda, the Taliban, or associated forces only if such support is substantial. Department of Justice, Department of Justice Withdraws Enemy Combatant Definition for Guantanamo Detainees, press release, March 13, 2009, In re Guantanamo Bay Detainee Litigation, Respondents Memorandum Regarding the Government s Detention Authority Relative to Detainees Held At Guantanamo Bay, No , filed March 13, 2009 (D.D.C.). Congressional Research Service 1

54 Closing the Guantanamo Detention Center: Legal Issues The decision by the Bush Administration to detain suspected belligerents at Guantanamo was based upon both policy and legal considerations. From a policy standpoint, the U.S. facility at Guantanamo offered a safe and secure location away from the battlefield where captured persons could be interrogated and potentially tried by military tribunals for any war crimes they may have committed. From a legal standpoint, the Bush Administration sought to avoid the possibility that suspected enemy combatants could pursue legal challenges regarding their detention or other wartime actions taken by the Executive. The Bush Administration initially believed that Guantanamo was largely beyond the jurisdiction of the federal courts, and noncitizens held there would not have access to the same substantive and procedural protections that would be required if they were detained in the United States. 4 The legal support for this policy was significantly eroded by a series of Supreme Court rulings permitting Guantanamo detainees to seek judicial review of the circumstances of their detention. Although Congress attempted to limit federal courts jurisdiction over detainees through the enactment of the Detainee Treatment Act of 2005 (DTA, P.L , Title X) and the Military Commissions Act of 2006 (MCA, P.L ), these efforts were subject to judicial challenge. In 2008, the Supreme Court ruled in Boumediene v. Bush that the constitutional writ of habeas corpus extends to noncitizens held at Guantanamo, and found that provisions of the DTA and MCA eliminating federal habeas jurisdiction over Guantanamo detainees acted as an unconstitutional suspension of the writ. 5 As a result, Guantanamo detainees may seek habeas review of the legality of their detention. Nonetheless, several legal issues remain unsettled, including the scope of habeas review available to Guantanamo detainees, the remedy available for those persons found to be unlawfully held by the United States, and the extent to which other constitutional provisions extend to noncitizens held at Guantanamo. 6 On January 22, 2009, President Barack Obama issued an Executive Order requiring that the Guantanamo detention facility be closed as soon as practicable, and no later than a year from the date of the Order. 7 Any persons who continue to be held at Guantanamo at the time of closure are to be either transferred to a third country for continued detention or release, or transferred to another U.S. detention facility. The Order further requires specified officials to review all Guantanamo detentions to assess whether the detainee should continue to be held by the United States, transferred or released to a third country, or be prosecuted by the United States for criminal offenses. 8 Reviewing authorities are required to identify and consider the legal, logistical, and security issues that would arise in the event that some detainees are transferred to the United States. The Order also requires reviewing authorities to assess the feasibility of 4 Memorandum from the Office of Legal Counsel, Department of Justice, for William J. Haynes, General Counsel, Department of Defense, Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba, December 28, Boumediene v. Bush, 128 S.Ct (2008). 6 For background, see CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea, Kenneth R. Thomas, and Michael John Garcia; and CRS Report RL34536, Boumediene v. Bush: Guantanamo Detainees Right to Habeas Corpus, by Michael John Garcia. 7 Executive Order 13492, Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, 74 Federal Register 4897, January 22, 2009 [hereinafter Executive Order ]. 8 Id. at 4. The Order specifies that the review shall be conducted by the Attorney General (who shall also coordinate the review process), the Secretary of Defense, the Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, the Chairman of the Joint Chiefs of Staff, as well as other officers or full- or part-time employees of the U.S. government (as determined by the Attorney General, with the concurrence of the relevant department head) with intelligence, counterterrorism, military, or legal expertise. Congressional Research Service 2

55 Closing the Guantanamo Detention Center: Legal Issues prosecuting detainees in an Article III court. During this review period, the Secretary of Defense is required to take steps to ensure that all proceedings before military commissions and the United States Court of Military Commission Review are halted. On the same day that the Executive Order to close the Guantanamo detention facility was issued, President Obama issued two other Executive Orders which created separate task forces the Special Task Force on Detainee Disposition and the Special Task Force on Interrogation and Transfer Policies charged with reviewing aspects of U.S. detention policy, including the options available for the detention, trial, or transfer of wartime detainees, whether held at Guantanamo or elsewhere. 9 Although these task forces are distinct from the task force responsible for reviewing Guantanamo detentions, their work and recommendations may have implications on U.S. policy with respect to Guantanamo. The possible closure of the Guantanamo detention facility raises a number of legal issues with respect to the individuals presently interned there, particularly if those detainees are transferred to the United States. The nature and scope of constitutional protections owed to detainees within the United States may be different from those available to persons held at Guantanamo or elsewhere. This may have implications for the continued detention or prosecution of persons transferred to the United States. The transfer of detainees to the United States may have additional consequences, as some detainees might qualify for asylum or other protections under immigration law. The Executive Order issued by President Obama also contemplates that the Administration work with Congress on any legislation that may be appropriate relating to the transfer of detainees to the United States. 10 Legislative proposals introduced during the 111 th Congress offer dramatically different approaches to the transfer, detention, and prosecution of Guantanamo detainees. Whereas some bills effectuate goals articulated in Executive Orders or codify presidential policies into statute, others reverse or adjust the approach taken by the Executive. Various proposals provide options for disposition of detainees subsequent to closure of the detention facility, clarify the immigration status of detainees transferred into the United States, require criminal prosecutions of detainees to occur in a specified forum (i.e., in federal civilian court, in courts-martial proceedings, or before military commissions), amend procedural rules governing detainee prosecutions, limit the use of U.S. funds for transferring detainees, or pursue other measures. The Supplemental Appropriations Act, 2009 (P.L ), enacted on June 24, 2009, bars any funds from being used to release any individual detained at Guantanamo into the continental United States, Hawaii, or Alaska. It further requires the President to submit regular reports to specified members and committees of Congress regarding the Guantanamo detainee population. The act also bars funds from being 9 Executive Order 13491, Ensuring Lawful Interrogations, 74 Federal Register 4893, January 22, 2009; Executive Order 13493, Review of Detention Policy Options, 74 Federal Register 4901, January 22, On July 20, 2009, the Special Task Force on Detainee Disposition, which was required to issue a final report by July 21, 2009, unless the Co-Chairs determine that an extension is necessary, extended by six months the period in which the Task Force will conduct its work and submit a final report. The Task Force has, however, issued a preliminary report on the use of military commissions to try wartime detainees (including those held at Guantanamo) and the process for determining the appropriate forum for trials of suspected terrorists. Special Task Force on Detainee Disposition (Detention Policy Task Force), Preliminary Report, July 20, 2009, available at /07/law-of-war-prosecution-prelim-report pdf. The Special Task Force on Interrogation and Transfer Policies established by Executive Order 13491, which also was required to issue a final report by July 21, 2009, unless the Task Force determined an extension was appropriate, extended the deadline for its final report by two months. The Task Force issued recommendations to the President on U.S. interrogation and transfer policies. Department of Justice, Special Task Force on Interrogations and Transfer Policies Issues Its Recommendations to the President, press release, August 24, 2009, 10 Executive Order, supra footnote 7, at 4(c)(5). Congressional Research Service 3

56 Closing the Guantanamo Detention Center: Legal Issues made available to effectuate the transfer of a detainee into the continental United States, Hawaii, or Alaska for continued detention or prosecution unless the President first submits a plan to Congress, in classified form, concerning the proposed disposition of the individual to be transferred. It further limits the availability of funds for the transfer or release of a Guantanamo detainee to a foreign State unless the President submits a classified report to Congress which contains specified information regarding the proposed transfer. Legislative proposals to modify military commissions, including the Senate-passed version of the National Defense Authorization Act, S. 1390, may also have implications for Guantanamo detainees. The scope and effect of all legislative proposals concerning Guantanamo detainees may be shaped by constitutional constraints. For further discussion of the legislation introduced in the 111 th Congress concerning Guantanamo detainees and military commissions, see CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the 111th Congress, by Anna C. Henning; and CRS Report R40752, The Military Commissions Act of 2006: Background and Proposed Amendments, by Jennifer K. Elsea. This report provides an overview of major legal issues that are likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer or release of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought to the United States. It considers selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that exist in different adjudicatory forums. Issues discussed include detainees right to a speedy trial, the prohibition against prosecution under ex post facto laws, and limitations upon the admissibility of hearsay and secret evidence in criminal cases. These issues are likely to be relevant not only to the treatment of Guantanamo detainees, but also to other terrorist suspects and/or enemy combatants apprehended by the United States in the future. Detainee Transfer or Release from Guantanamo Any proposal to close the Guantanamo detention facility must necessarily address the transfer of persons currently detained there. While some detainees may be transferred to other countries for continued detention or release, some proposals to close the Guantanamo detention facility have contemplated transferring at least some detainees to the United States, either for continued detention or, in the case of some detainees who are not considered a threat to U.S. security, possible release At least prior to the enactment of the Supplemental Appropriations Act, 2009 (P.L ), the Executive considered the possibility of releasing at least some detainees who are not considered a threat into the United States. See Director of National Intelligence Dennis Blair, Media Roundtable Discussion, March 26, 2009, available at The Supplemental Appropriations Act bars funds from being used to release detainees into the continental United States, Hawaii, or Alaska (though the release of detainees to U.S. territories is not expressly prohibited). Accordingly, absent further legislation, it would appear that the Executive could not use funds to transfer detainees into the United States for the purpose of release. Congressional Research Service 4

57 Closing the Guantanamo Detention Center: Legal Issues Transfer/Release of Guantanamo Detainees to a Country other than the United States The vast majority of persons initially transferred to Guantanamo for preventive detention have been transferred to other countries, either for continued detention by the receiving country or for release. 12 Decisions to transfer a detainee to another country have been based upon a determination by U.S. officials that (1) the detainee is not an enemy combatant or (2) while the detainee was properly designated as an enemy combatant, his continued detention by the United States is no longer warranted. 13 A decision by military authorities that the continued detention of an enemy combatant is no longer appropriate is based on a number of factors, including a determination that the detainee no longer poses a threat to the United States and its allies. Generally, if continued detention is no longer deemed necessary, the detainee is transferred to the control of another government for his release. 14 The DOD also transfers enemy belligerents to other countries for continued detention, investigation, and/or prosecution when those governments are willing to accept responsibility for ensuring that the transferred person will not pose a continuing threat to the United States and its allies. 15 Domestic and international legal requirements may constrain the ability of the United States to transfer persons to foreign countries if they might face torture or other forms of persecution. Most notably, Article 3 of the U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) and its implementing legislation prohibit the transfer of persons to countries where there are substantial grounds for believing (i.e., it would be more likely than not ) that they would be subjected to torture. 16 The Bush Administration took the position that CAT Article 3 and its implementing legislation did not cover the transfer of foreign persons held outside the United States in the war on terror. 17 Nonetheless, the DOD has stated that it is the policy of the United States, consistent with the approach taken by the United States in implementing... [CAT], not to repatriate or transfer... [Guantanamo detainees] to other countries where it believes it is more likely than not that they will be tortured. 18 When the transfer of a Guantanamo detainee is deemed appropriate, the United States seeks diplomatic assurances that the person will be treated humanely by the foreign government accepting the transfer. If such assurances are not deemed sufficiently reliable, the transfer will not be executed until the concerns of U.S. officials are satisfactorily resolved. 19 The 12 See DOD Press Release, supra footnote Declaration of Joseph Benkert, Principal Deputy Assistant Secretary of Defense for Global Security Affairs, DOD, executed on June 8, 2007, at para. 3, In re Guantanamo Bay Detainee Litigation, Case No. 1:05-cv (D.D.C. 2007). 14 Id. 15 Id. 16 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984). CAT Article 3 requirements were implemented by the United States pursuant to the Foreign Affairs Reform and Restructuring Act of 1998, P.L [hereinafter FARRA ]. For further background, see CRS Report RL32276, The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens, by Michael John Garcia. 17 United States Written Response to Questions Asked by the Committee Against Torture, April 28, 2006, available at 18 Benkert Declaration, supra footnote 13, at para Id. at para. 7. Congressional Research Service 5

58 Closing the Guantanamo Detention Center: Legal Issues use of diplomatic assurances in Guantanamo transfer decisions is similar to the practice sometimes employed by U.S. authorities when determining whether the extradition of a person or the removal of an alien by immigration authorities would comply with CAT requirements. In April 2009, a D.C. Circuit panel held that a government determination that a detainee would not be tortured if transferred to a particular country is not subject to district court review in habeas proceedings challenging the proposed transfer. 20 Of the persons held at Guantanamo who have been cleared for transfer or release, several dozen reportedly remain at Guantanamo either because no country will accept the detainee, or because human rights concerns have caused the United States to refrain from transferring the detainee to a country willing to accept him. A significant number of detainees could also potentially be transferred to other countries for continued detention if the United States was assured that the receiving country could manage the threat they pose. 21 Whether future diplomatic efforts will effectuate the transfer of some or all of these persons to third countries remains to be seen. In recent years, legislative proposals have been introduced that would impose more stringent requirements upon the transfer of military detainees to foreign countries, particularly when the transfer might raise human rights concerns. These proposals have generally sought to establish standards for the acceptance of diplomatic assurances by transfer authorities, and require subsequent monitoring of the treatment of a transferred detainee. 22 In January 2009, President Obama issued an Executive Order creating a special task force to review U.S. transfer policies to ensure compliance with applicable legal requirements. 23 In August, the task force issued recommendations to ensure that U.S. transfer practices comply with applicable standards and do not result in the transfer of persons to face torture. 24 These recommendations include strengthening procedures used to obtain assurances from a country that a person will not face torture if transferred there, including through the establishment of mechanisms to monitor the treatment of transferred persons. If implemented, such measures might impede the transfer of some Guantanamo detainees to third countries. Pursuant to the Supplemental Appropriations Act, 2009, no funds may be used to effectuate the transfer of a Guantanamo detainee to a foreign State unless, 15 days prior to such transfer, the President submits a classified report to Congress concerning the identity of the detainee, the risk the transfer poses to U.S. security, and the terms of any agreement with the receiving country concerning the acceptance of the individual, including any financial assistance related to the agreement Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) ( Kiyemba II ), rehearing en banc denied (July 27, 2009). 21 For example, the United States has had negotiations with Yemen to transfer a significant number of Guantanamo detainees who are Yemeni nationals to that country. These negotiations have reportedly proven unsuccessful in part because of U.S. concerns regarding the sufficiency of Yemeni measures to minimize the threat posed by some detainees. Brookings Report, supra footnote 2, at 22-23; Matt Apuzzo, No Progress on Mass Guantanamo Prisoner Transfer, USA Today, July 7, See, e.g., H.R. 1352, 110 th Cong. (2007). 23 Executive Order No , Ensuring Lawful Interrogations, 74 Federal Register 4893, January 22, Department of Justice, Special Task Force on Interrogations and Transfer Policies Issues Its Recommendations to the President, press release, August 24, 2009, The Task Force considered seven types of transfers: extradition, immigration removal proceedings, transfers pursuant to the Geneva Conventions, transfers from Guantanamo Bay, military transfers within or from Afghanistan, military transfers within or from Iraq, and transfers pursuant to intelligence authorities. 25 P.L , Title XIV, Congressional Research Service 6

59 Closing the Guantanamo Detention Center: Legal Issues Transfer of Detainees into the United States Most proposals to end the detention of foreign belligerents at Guantanamo contemplate the transfer of at least some detainees into the United States, either for continued preventive detention, prosecution before a military or civilian court, or in the case of detainees who are not deemed a threat to U.S. security, possible release. As mentioned earlier, under the Supplemental Appropriations Act, 2009, Congress has barred funds from being used to effectuate the release of Guantanamo detainees into the continental United States, Hawaii, or Alaska. The act does not bar the transfer of detainees into the United States for continued detention or criminal prosecution (though the President must submit certain information to Congress prior to any such transfer occurring). The transfer of detainees into the United States may have implications under immigration law. The Immigration and Nationality Act (INA) establishes rules and requirements for the entry and presence of aliens in the United States, and provides grounds for the exclusion or removal of aliens on account of certain activities. The INA generally bars the entry into the United States or continued presence of aliens involved in terrorism-related activity. 26 Under current law, most persons currently detained at Guantanamo would generally be barred from admission into the United States on terrorism- and other security-related grounds under normal circumstances. Even if a detainee is not inadmissible or removable ( deportable ) on such grounds, he may still be inadmissible or removable under other INA provisions. 27 Accordingly, even in the absence of the Supplemental Appropriations Act, 2009, the INA would generally preclude most Guantanamo detainees from being released into the United States, as such aliens would be subject to removal under immigration law. The INA s restrictions upon the entry of certain categories of aliens do not appear to necessarily bar executive authorities from transferring wartime detainees into the United States for continued detention or prosecution. During World War II, reviewing courts did not consider an alien prisoner of war s involuntary transfer to the United States for purposes of military detention to constitute an entry under immigration laws. 28 Although immigration laws have been amended since that time to expressly apply to certain categories of aliens involuntarily brought to the United States (e.g., those individuals apprehended in U.S. or international waters), 29 these 26 8 U.S.C. 1182(a)(3); 8 U.S.C. 1227(a)(4). For background, see CRS Report RL32564, Immigration: Terrorist Grounds for Exclusion and Removal of Aliens, by Michael John Garcia and Ruth Ellen Wasem. 27 See 8 U.S.C (grounds for alien inadmissibility); 8 U.S.C (grounds for deportation). 28 See United States ex rel. Bradley v. Watkins, 163 F.2d 328 (2 nd Cir. 1947) (alien involuntarily brought to the United States by U.S. warship for detention had not departed a foreign port within the meaning of Immigration Act of 1924 provision defining an immigrant ); In re Territo, 156 F.2d 142, (9 th Cir. 1946) ( It is proper to note that petitioner was brought to this country under a war measure by orders of the military authorities as a prisoner of war and not in accord with nor under the immigration laws limiting and regulating entries of residents or nationals of another nation. ). Subsequent developments in immigration law, including with respect to alien eligibility for asylum and deferral of removal under CAT-implementing regulations, may nonetheless have implications for the transfer of alien detainees into the United States, particularly if they must be released from military custody. See infra at Transfer of Detainees into the United States and Removal of Detainees from the United States. 29 As amended in 1996, the INA now provides that An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this Act an applicant for admission. 8 U.S.C. 1225(a)(1) (emphasis added). In an unpublished opinion, the Board of Immigration Appeals (BIA), the highest administrative body responsible for interpreting and applying immigration laws, interpreted the 1996 amendment to the INA as overruling earlier circuit court jurisprudence (including WWII-era cases concerning the applicability of immigration laws to military detainees brought to the United States) to the extent (continued...) Congressional Research Service 7

60 Closing the Guantanamo Detention Center: Legal Issues modifications do not directly address the ability of the United States to intern alien enemy belligerents in the United States. Additionally, it could be argued that the 2001 AUMF, which grants the President authority to use all necessary and appropriate force against those responsible for the 9/11 attacks, impliedly authorizes the President to detain captured belligerents in the United States, even though such persons would generally be barred from entry under the INA. 30 Even assuming that the INA s restrictions on alien admissibility are applicable to military detainees, the executive branch could still effectuate their transfer into the United States pursuant to its parole authority. In the immigration context, parole is a discretionary authority that may be exercised on a case-by-case basis to permit inadmissible aliens to physically enter the United States, including when the alien s entry or stay serves a significant public benefit. 31 The entry of a paroled alien does not constitute admission into the United States for immigration purposes. Despite physical entry into the country, the alien is still in theory of law at the boundary line and had gained no foothold in the United State[s]. 32 The executive branch may opt to use its parole authority with respect to transferred detainees in order to clarify their immigration status in case they are required to be released from U.S. custody. As discussed later, an alien s physical presence in the United States, even in cases where the alien has been paroled into the country, may result in the alien becoming eligible for asylum or other forms of immigration-related relief from removal. Several bills introduced during the 111 th Congress address the application of federal immigration laws to the transfer of detainees to the United States and clarify the immigration status of detainees transferred into the country. 33 (...continued) that such jurisprudence recognized that any alien who is involuntarily brought to the United States by agents of the United States is not considered to be an immigrant within the meaning of the immigration laws. In Re Alexander Navarro-Fierro, 2004 WL (BIA Jan. 16, 2004) (per curium) (ruling that an alien interdicted in international waters and brought to the United States to face criminal prosecution for drug smuggling was considered an applicant for admission under the INA). 30 In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), a majority of the Supreme Court found that Congress had authorized the President, pursuant to the 2001 AUMF, to detain U.S. citizens properly designated as enemy combatants who were captured in the conflict in Afghanistan. Id. at 518 (O Connor, J., plurality opinion), (Thomas, J., dissenting). A plurality of the Court held that even assuming that the Non-Detention Act, 18 U.S.C. 4001(a), which limits detention of U.S. citizens except pursuant to an act of Congress, was applicable to the detention of U.S. citizens held as enemy combatants, the AUMF satisfied the act s requirement that any detention of U.S. citizens be authorized by Congress. Id. at (O Connor, J., plurality opinion). It could be argued that the Hamdi plurality s reasoning supports the argument that the AUMF authorizes the President to transfer noncitizens into the United States for detention, even though the entry of such persons might otherwise be prohibited under the INA. On the other hand, it could be argued that the situation is not analogous to the facts at issue in Hamdi. Whereas the Non-Detention Act generally barred the detention of U.S. citizens except pursuant to an act of Congress, similar language is not found in the INA with respect to alien inadmissibility U.S.C. 1182(d)(5)(A). For example, fugitives extradited to the United States whose U.S. citizenship cannot be confirmed are paroled into the United States by immigration authorities. 7 F.A.M Leng May Ma v. Barber, 357 U.S. 185, 189 (1958). 33 See, e.g., S. 108, S. 147, H.R. 374, 111 th Cong. (2009). Congressional Research Service 8

61 Closing the Guantanamo Detention Center: Legal Issues Detention and Treatment of Persons Transferred to the United States Many of the rules and standards governing the detention and treatment of persons at Guantanamo would remain applicable to detainees transferred into the United States. However, non-citizens held in the United States may be entitled to more protections under the Constitution than those detained abroad. Authority to Detain within the United States Guantanamo detainees properly determined to be enemy belligerents may be held in preventive detention by military authorities even if transferred to the United States. In the 2004 case of Hamdi v. Rumsfeld, a majority of the Supreme Court recognized that, as a necessary incident to the 2001 AUMF, the President is authorized to detain persons captured while fighting U.S. forces in Afghanistan for the duration of the conflict. 34 A divided Supreme Court also declared that a state of war is not a blank check for the president, and ruled that persons who had been deemed enemy combatants by the Bush Administration had the right to challenge their detention before a judge or other neutral decision-maker. 35 While the preventive detention of enemy belligerents is constitutionally acceptable, the scope of persons potentially falling under this category remains uncertain. The Hamdi plurality was limited to an understanding that the phrase enemy combatant includes an individual who... was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there. 36 Left unresolved is the extent to which the 2001 AUMF permits the detention of persons captured away from the zone of combat, or whether the President has the independent authority to detain such persons in the exercise of his Commander-in-Chief power. The Court also did not define what constitutes support for hostile forces necessary to acquire enemy belligerent status, or describe the activities which constitute engage[ment] in an armed conflict. In December 2008, the Supreme Court agreed to hear an appeal of an en banc ruling by the Fourth Circuit in the case of al-marri v. Pucciarelli, in which a majority of the Court of Appeals found that the 2001 AUMF permits the detention as an enemy combatant of a resident alien alleged to have planned to engage in hostile activities within the United States on behalf of Al Qaeda, but who had not been part of the conflict in Afghanistan. 37 However, prior to the Supreme Court considering the merits of the case, al-marri was indicted by a federal grand jury for providing material support to Al Qaeda and conspiring with others to provide such support. The government immediately requested that the Supreme Court dismiss al-marri s pending case and authorize his transfer from military to civilian custody for criminal trial. On March 6, 2009, the Supreme Court granted the government s application concerning the transfer of al-marri, vacated the Fourth Circuit s judgment, and remanded the case back to the appellate court with instructions 34 Hamdi, 542 U. S. at 518 (O Connor, J., plurality opinion), (Thomas, J., dissenting). 35 Id. at (O Connor, J., plurality opinion). 36 Id. at Al-Marri v. Pucciarelli,534 F.3d 213 (4 th Cir. 2008), cert. granted by 129 S.Ct. 680 (2008), vacated and remanded by Al-Marri v. Spagone, 129 S.Ct (2009). See also Al-Marri v. Wright, 487 F. 3d 160 (4 th Circ. 2007). Congressional Research Service 9

62 Closing the Guantanamo Detention Center: Legal Issues to dismiss the case as moot. 38 As a result, the scope of the Executive s authority to militarily detain persons captured away from the battlefield, including alleged members or associates of Al Qaeda or the Taliban who did not directly engage in hostilities against the United States or its coalition partners, will likely remain a matter of continuing dispute. Federal district court judges considering habeas claims by Guantanamo detainees have differed in their assessment of the scope of the President s authority to detain persons under the AUMF. 39 In the absence of legal authority to militarily detain a terrorist suspect, U.S. military authorities must generally release the person from custody. However, there may be grounds for the person s continued detention by U.S. law enforcement or immigration authorities. If a former detainee brought to the United States is charged with a federal crime, a judicial officer may order his pretrial detention following a hearing in which it is determined that no other conditions would reasonably assure the individual s appearance for trial or the safety of the community or another individual. 40 A former detainee may also potentially be held in detention as a material witness to a criminal proceeding, including a grand jury proceeding, if a judicial officer orders his arrest and detention after determining that it may become impracticable to secure the presence of the person by subpoena. 41 If the military lacks authority to hold a detainee brought to the United States and is unable to effectuate his transfer to another country, the detainee might nonetheless be placed in immigration removal proceedings and continue being detained pending removal. Detention pending removal is generally required for aliens inadmissible on criminal or terrorism-related grounds. 42 Following a final order of removal, 43 an alien is typically required to be removed within 90 days. During this period, an alien is usually required to be detained, and in no circumstance may an alien inadmissible or deportable on any terrorism-related ground or most crime-related grounds be 38 Al-Marri v. Spagone, 129 S.Ct (2009). 39 See, e.g., Mattan v. Obama, 618 F.Supp.2d 24 (D.D.C., May 21, 2009) (Lamberth, C.J.).(while AUMF and laws of war granted the Executive the authority to detain persons who were part of the Taliban, Al Qaeda, or associated forces, this authority did not extend to non-members who provided support to such forces, though support for such groups would be considered when determining whether a detainee was part of them); Hamlily v. Obama, 616 F.Supp.2d 63 (D.D.C. 2009) (Bates, J.) (same); Gherebi v. Obama, 609 F.Supp.2d 43 (D.D.C.,2009) (Walton, J.) (President has authority to detain persons who were part of or substantially supported Al Qaeda or the Taliban, so long as those terms are understood to include only those persons who were members of the enemy forces armed forces at the time of capture); Al-Adahi v. Obama, 2009 WL (D.D.C., August 21, 2009) (Kessler, J.) (same);.boumediene v. Bush, 583 F.Supp.2d 133 (D.D.C.,2008) (applying enemy combatant definition employed by DOD in 2004 for use in Combatant Status Review Tribunal proceedings, which covered persons who were part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners [including] any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces ) U.S.C Subject to rebuttal by the person, it is presumed that a person shall be subject to pretrial detention if the judicial officer finds there is probable cause to believe he has committed a federal crime of terrorism for which a maximum sentence of 10 or more years imprisonment is prescribed. Id. at 3142(e) U.S.C U.S.C Immigration law also permits an alien to be detained for up to seven days prior to the initiation of removal proceedings or the charging of the alien with a criminal offense, if the Attorney General certifies that there are reasonable grounds to believe the alien is inadmissible or deportable on terrorism-related grounds or the alien is engaged in any other activity that endangers the national security of the United States. 8 U.S.C. 1226a. 43 The removal period begins on the latest of the following: (1) the date that the order of removal becomes administratively final; (2) if a reviewing court orders a stay of the removal of the alien, the date of the court s final order; or (3) if the alien is detained or confined for non-immigration purposes, the date of the alien s release. 8 U.S.C. 1231(a)(1)(B). Congressional Research Service 10

63 Closing the Guantanamo Detention Center: Legal Issues released from detention. 44 If the alien is unable to be removed during the 90-day period provided by statute, his continued detention for a period beyond six months may be statutorily and constitutionally prohibited. 45 However, those aliens who are specially dangerous to the community may be subject to continued detention, subject to periodic review. Immigration regulations permit the continued detention of certain categories of aliens due to special circumstances, including, inter alia, any alien who is detained on account of (1) serious adverse foreign policy consequences of release; (2) security or terrorism concerns; or (3) being considered specially dangerous due to having committed one or more crimes of violence and having a mental condition making it likely that the alien will commit acts of violence in the future. 46 Some proposals in the 111 th Congress would clarify executive authority to detain certain wartime detainees. 47 Proposals have also been made to require any alien detainee released from military custody into the United States to be taken into custody by immigration authorities pending removal. Although in prior conflicts the United States interned enemy aliens and U.S. citizens who did not participate in hostilities against the United States, 48 the scope and effect of proposals requiring the detention of specified categories of persons other than enemy combatants may be subject to constitutional challenges. Treatment of Detained Persons The rules governing the treatment of Guantanamo detainees would largely remain unchanged if detainees were transferred to the United States. The DTA provides that no person in the custody or effective control of the DOD or detained in a DOD facility shall be subject to any interrogation 44 8 U.S.C. 1231(a)(2). 45 In Zadvydas v. Davis, the Supreme Court concluded that the indefinite detention of deportable aliens (i.e., aliens admitted into the United States who were subsequently ordered removed) would raise significant due process concerns. The Court interpreted an applicable immigration statute governing the removal of deportable and inadmissible aliens as only permitting the detention of aliens following an order of removal for so long as is reasonably necessary to bring about that alien s removal from the United States. It does not permit indefinite detention. Zadyvydas v. Davis, 533 U.S. 678, 689 (2001). The Court found that the presumptively reasonable limit for the post-removal-period detention is six months, but indicated that continued detention may be warranted when the policy is limited to specially dangerous individuals and strong procedural protections are in place. Id. at 690, 701. Subsequently, the Supreme Court ruled that aliens who have been paroled into the United States also could not be indefinitely detained, but the Court s holding was based on statutory construction of the applicable immigration law, and it did not consider whether such aliens were owed the same due process protections as aliens who had been legally admitted into the United States. Clark v. Martinez, 543 U.S. 371 (2005) C.F.R See, e.g., Enemy Combatant Detention Review Act of 2009, H.R. 630, 111 th Cong. (2009) (authorizing detention of persons who have engaged in hostilities or purposefully supported Al Qaeda, the Taliban, or associated organizations). 48 The Alien Enemy Act, which was originally enacted in 1798 as part of the Alien and Sedition Act, grants the President broad authority, during a declared war or presidentially proclaimed predatory invasion, to institute restrictions affecting alien enemies, including possible detention and deportation. 50 U.S.C In its current form, the act applies to aliens within the United States who are fourteen years or older, and who are natives, citizens, denizens, or subjects of the hostile nation or government at war with the United States. 50 U.S.C. 21. This authority was used frequently during World War I and World War II, and reviewing courts viewed such measures as constitutionally permissible. See generally CRS Report RL31724, Detention of American Citizens as Enemy Combatants, by Jennifer K. Elsea. See also Johnson v. Eisentrager, 339 U.S. 763, 775(1950) ( The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a declared war exists. ); Ludecke v. Watkins, 335 U.S. 160 (1948) (upholding President s authority to detain and remove a German citizen pursuant to the Alien Enemy Act). Whether more recent legal developments concerning the due process protections owed to noncitizens have come to limit this authority remains to be seen. Congressional Research Service 11

64 Closing the Guantanamo Detention Center: Legal Issues treatment or technique that is not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation, unless the person is being held pursuant to U.S. criminal or immigration laws (in which case the detainee s interrogation would be governed by applicable criminal or immigration law enforcement standards). 49 The Field Manual requires all detainees to be treated in a manner consistent with the Geneva Conventions, and prohibits the use of torture or cruel, inhuman, and degrading treatment in any circumstance. In the 2006 case of Hamdan v. Rumsfeld, the Supreme Court found that, at a minimum, Common Article 3 of the Geneva Conventions applied to persons captured in the conflict with Al Qaeda. 50 Common Article 3 requires persons to be treated humanely and protected from violence to life and person, cruel treatment and torture, and outrages upon personal dignity, in particular, humiliating and degrading treatment. All of these requirements would remain applicable to detainees transferred into the United States, at least so long as they remained in military custody. Noncitizen detainees transferred to the United States may also receive greater constitutional protections than those detained outside the United States. It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. 51 Although the Supreme Court in Boumediene held that the constitutional writ of habeas corpus extends to Guantanamo, it did not elaborate as to the extent to which other constitutional provisions apply to noncitizens held at Guantanamo. 52 In February 2009, a D.C. Circuit panel held in the case of Kiyemba v. Obama that the Constitution s due process protections do not extend to Guantanamo detainees. 53 However, the DTA and MCA prohibit any person in U.S. custody or control (including those located at Guantanamo or elsewhere outside U.S. territory) from being subjected to cruel, inhuman, or degrading treatment of the kind prohibited by the Fifth, Eighth, and Fourteenth Amendments. 54 Legal Challenges to Nature of Detention If transferred to the United States, detainees may be able to seek judicial review over a broader range of actions taken against them. Besides eliminating detainees access to habeas corpus review, the DTA and MCA stripped federal courts of jurisdiction to hear most claims by noncitizen detainees. Specifically, federal courts are denied jurisdiction over: any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by 49 P.L , Title X, 1002 (2005); P.L , Title XIV, 1402 (2006). 50 Hamdan v. Rumsfeld, 548 U.S. 557 (2006). 51 Zadvydas, 533 U.S. at The application of constitutional provisions other than the Suspension Clause to noncitizens held at Guantanamo is the subject of ongoing litigation. See Rasul v. Myers, 129 S.Ct. 763 (2008) (vacating pre-boumediene lower court judgment that aliens held at Guantanamo lacked constitutional rights under the Fifth and Eighth Amendments, and remanding the case for further consideration in light of Boumediene decision); Kiyemba v. Obama, 555 F.3d 1022, (D.C.Cir.2009) ( Kiyemba I ) (finding that detainees at Guantanamo lacked rights under the Due Process Clause). 53 Kiyemba I, 555 F.3d at (citing Supreme Court and D.C. Circuit cases recognizing that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States ). In a separate opinion concurring with the judgment of the Kiyemba majority, Judge Judith Rogers disagreed with the majority s interpretation of the territorial application of the Constitution s Due Process Clause, claiming that it was inconsistent with the Supreme Court s reasoning in Boumediene. Id. at 1038 (Rogers, J., concurring). 54 P.L , Title X, 1003; P.L , Title XIV, 1402; P.L , 6(c). Congressional Research Service 12

65 Closing the Guantanamo Detention Center: Legal Issues the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. 55 Although the Boumediene Court held that the constitutional writ of habeas permitted Guantanamo detainees to challenge the legality of their detention, the Court declined to discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement. 56 Because the Boumediene Court left these questions unresolved, the viability of measures stripping courts of jurisdiction to hear claims regarding the conditions of detention may depend upon a reviewing court s interpretation of the constitutional protections owed to detainees. While measures that eliminate detainees ability to pursue statute- or treaty-based challenges to aspects of their detention may be deemed permissible by a reviewing court, 57 measures that seek to eliminate (rather than merely circumscribe) detainees ability to bring constitutional challenges regarding the circumstances of their detention would likely be subject to serious legal challenge. Although the scope of constitutional protections owed to Guantanamo detainees remains a matter of legal dispute, it is clear that the procedural and substantive due process protections of the Constitution apply to all persons within the United States, regardless of their citizenship. 58 Accordingly, detainees transferred to the United States might be able to more successfully pursue legal challenges against aspects of their detention that allegedly infringe upon constitutional protections owed to them. Removal of Detainees from the United States If there are no longer grounds to hold a detainee, the United States must terminate custody either through transfer or release. Persons held in the United States may have greater legal redress against their unwilling transfer to another country than those held abroad, and may potentially seek judicial review of transfer decisions through habeas proceedings. CAT Article 3 and its implementing legislation prohibit the transfer of detainees from the United States to countries where they would more likely than not face torture. This prohibition is absolute and without regard to whether an individual has been involved in terrorist or criminal activity. While the Bush Administration took the position that CAT Article 3 and its implementing legislation do not govern the transfer of detainees held outside the United States, there appears to be little if any dispute regarding CAT s application to transfers from the United States P.L , 7(a). While the DTA initially stripped federal courts of jurisdiction only over claims raised by aliens held at Guantanamo, the MCA s restriction upon federal court jurisdiction applies to claims by any alien in U.S. custody who is properly detained as an enemy combatant or awaiting such a determination, regardless of the alien s location. 56 Boumediene, 128 S.Ct. at See Noriega v. Pastrana, 564 F.3d 1290 (11 th Cir. 2009) (MCA precluded petitioner, a designated prisoner of war under the Geneva Conventions, from invoking Conventions in challenge to his proposed extradition to France). 58 Zadvydas, 533 U.S. at 693 ( the Due Process Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent ). 59 U.S. law implementing CAT generally specifies that no judicial appeal or review is available for any action, decision or claim raised under CAT, except as part of a review of a final immigration removal order. FARRA, 2242(d). The ability of a person to raise a CAT-based claim in non-removal proceedings (e.g., in the case of extradition or military transfers), is the subject of debate and conflicting jurisprudence. Compare Mironescu v. Costner, 480 F.3d 664 (4 th Cir. 2007), cert. dismissed, 128 S.Ct. 976 (U.S. Jan. 9, 2008) (finding that CAT-implementing legislation precludes review of CAT-based habeas petition in extradition proceedings); O.K. v. Bush 377 F.Supp.2d 102, n. 17 (D.D.C. 2005) (continued...) Congressional Research Service 13

66 Closing the Guantanamo Detention Center: Legal Issues Detainees transferred to the United States who may no longer be held by military authorities might potentially seek relief from removal under U.S. immigration laws. An alien who is physically present or arrives in the United States, regardless of immigration status, may apply for asylum, a discretionary form of relief from removal available to aliens who have a well-founded fear of persecution if transferred to another country. Persons granted asylum may thereafter apply for adjustment of status to that of a legal permanent resident. Certain potentially over-lapping categories of aliens are disqualified from asylum eligibility, including those involved in terrorismrelated activity (including members of the Taliban and Al Qaeda) and those who are reasonably believed to pose a danger to U.S. security. 60 Nonetheless, it is possible that some detainees who have been found not to have fought on behalf of the Taliban or Al Qaeda may qualify for asylum or other forms of relief from removal if transferred to the United States. Further, if a detainee is declared ineligible for asylum or another form of relief from removal and is thereafter ordered removed by immigration officials, immigration authorities may be required to provide evidence forming the basis of this determination in the face of a legal challenge by the detainee. 61 It is important to note that asylum only constitutes relief from removal under immigration laws. It would not bar the transfer of a detainee pursuant to some other legal authority (e.g., extradition). As discussed, proposals may be considered that would clarify the application of immigration laws to Guantanamo detainees transferred to the United States. Secretary of Defense Gates has stated that the Obama Administration will seek legislation from Congress addressing detainees immigration status, possibly including barring them from asylum eligibility. 62 Detainees Rights in a Criminal Prosecution While many persons currently held at Guantanamo are only being detained as a preventive measure to stop them from returning to battle, the United States has brought or intends to pursue criminal charges against some detainees. Various constitutional provisions, most notably those arising from the Fifth and Sixth Amendments to the U.S. Constitution, apply to defendants throughout the process of criminal prosecutions. Prosecuting the Guantanamo detainees inside the United States would raise at least two major legal questions. First, does a detainee s status as an enemy belligerent reduce the degree of constitutional protections to which he is entitled? Secondly, would the choice of judicial forum i.e., civilian court, military commission, or courtmartial affect interpretations of constitutional rights implicated in detainee prosecutions? (...continued) (finding that CAT-based claims were not cognizable in Guantanamo transfer decisions); with Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9 th Cir. 2000) (finding that an individual subject to an extradition order may appeal under the Administrative Procedures Act (APA), when his surrender would be contrary to U.S. laws and regulations implementing CAT), disapproved in later appeal, 379 F.3d 1075 (9 th Cir. 2004), opinion of later appeal vacated on rehearing by 389 F.3d 1307 (9 th Cir. 2004). It should also be noted that although U.S. legislation implementing CAT required all relevant agencies to adopt regulations implementing CAT Article 3 requirements, the DOD has yet to implement such measures. It could be argued that the DOD could not transfer a detainee from the United States to a third country until CAT-implementing regulations were promulgated. See Robert M. Chesney, Leaving Guantánamo: The Law of International Detainee Transfers, 40 U. Rich. L. Rev. 657 (2006) (arguing that detainees may have a right to compel the DOD to promulgate CAT-implementing regulations) U.S.C. 1158(b)(2). Members of terrorist organizations are inadmissible and ineligible for asylum. U.S. law specifies that the Taliban is a terrorist organization for INA purposes. P.L , Div. J, 691(d) (2007) U.S.C Yochi J. Dreazen, Gates Seeks Congress s Help in Closing Guantanamo, Wall Street Journal, December 3, Congressional Research Service 14

67 Closing the Guantanamo Detention Center: Legal Issues As previously discussed, the nature and extent to which the Constitution applies to noncitizens detained at Guantanamo is a matter of continuing legal dispute. Although the Supreme Court held in Boumediene that the constitutional writ of habeas extends to detainees held at Guantanamo, it left open the nature and degree to which other constitutional protections, including those relating to substantive and procedural due process, may also apply. The Boumediene Court noted that the Constitution s application to noncitizens in places like Guantanamo located outside the United States turns on objective factors and practical concerns. 63 The Court has also repeatedly recognized that at least some constitutional protections are unavailable to aliens outside our geographic borders. 64 The application of constitutional principles to the prosecution of aliens located at Guantanamo remains unsettled. On the other hand, it is clear that if Guantanamo detainees are subject to criminal prosecution in United States, the constitutional provisions related to such proceedings would apply. 65 However, the application of these constitutional requirements might differ depending upon the forum in which charges are brought. The Fifth Amendment s requirement that no person be held to answer for a capital or infamous crime unless on a presentment or indictment of a grand jury, and the Sixth Amendment s requirements concerning trial by jury, have been found to be inapplicable to trials by military commissions or courts-martial. 66 The application of due process protections in military court proceedings may also differ from civilian court proceedings, in part because the Constitution contemplates that Congress has plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, procedures, and remedies related to military discipline. 67 In the past, courts have been more accepting of security measures taken against enemy aliens than U.S. citizens, particularly as they relate to authority to detain or restrict movement on grounds of wartime security. 68 It is possible that the rights owed to enemy combatants in criminal prosecutions would be interpreted more narrowly by a reviewing court than those owed to defendants in other, more routine cases, particularly when the constitutional right at issue is subject to a balancing test. There are several forums in which detainees could potentially be prosecuted for alleged criminal activity, including in federal civilian court, in general courts-martial proceedings, or before military commissions. The procedural protections afforded to the accused in each of these forums may differ, along with the types of offenses for which the accused may be prosecuted. The MCA 63 Boumediene, 128 S.Ct. at Zadyvdas, 533 U.S. at 693. See also Verdugo-Urquidez v. United States, 494 U.S. 259, (1990) ( aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with the country ). 65 See Ex Parte Quirin, 317 U.S. 1, 25 (1942) (denying motion for leave to file writ of habeas corpus by eight German saboteurs tried by military commission in the United States, but noting that Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty ). 66 See, e.g., Whelchel v. McDonald, 340 U.S. 122 (1950) ( The right to trial by jury guaranteed by the Sixth Amendment is not applicable to trials by courts-martial or military commissions. ); Quirin, 317 U.S. at 40 ( we must conclude that 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts ). See also U.S. Const., amend. V ( No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces )(italics added). 67 Weiss v. United States, 510 U.S. 163, 177 (1994) (upholding a narrowed interpretation of Fifth Amendment due process rights for the context of military courts)(quoting Chappell v. Wallace, 462 U.S. 296, 301 (1983). 68 See supra footnote 48 and accompanying citations. Congressional Research Service 15

68 Closing the Guantanamo Detention Center: Legal Issues authorized the establishment of military commissions with jurisdiction to try alien unlawful enemy combatants for offenses made punishable by the MCA or the law of war, and affords the accused fewer procedural protections than would be available to defendants in military courtsmartial or federal civilian court proceedings. 69 Criminal charges against approximately 20 detainees at Guantanamo have been referred to military commissions (though proceedings have been halted following President Obama s Executive Order). Critics have raised questions regarding the constitutionality of the system established by the MCA. 70 The MCA does not restrict military commissions from exercising jurisdiction within the United States, and the Supreme Court has previously upheld the use of military commissions against enemy belligerents tried in the United States. 71 In May 2009, the DOD announced modifications to the procedures for military commissions, to be employed if and when military commission proceedings recommence. 72 Legislative proposals have also been introduced to modify military commission rules, including the Senate-passed National Defense Authorization Act for FY 2010 (S. 1390). The modifications proposed by the National Defense Authorization Act, along with further legislative changes proposed by the Obama Administration, are discussed in detail in CRS Report R40752, The Military Commissions Act of 2006: Background and Proposed Amendments, by Jennifer K. Elsea. Although they have yet to be used for this purpose, military courts-martial could also be employed to try detainees by exercising jurisdiction under the Uniform Code of Military Justice (UCMJ) over persons subject to military tribunals under the law of war. 73 Detainees brought before military-courts martial could be charged with offenses under the UCMJ and the law of war, though courts-martial rules concerning the accused s right to a speedy trial, as well as statute of limitations issues, may pose an obstacle to prosecution. 74 Detainees could also potentially be prosecuted in federal civilian court for offenses under federal criminal statutes. Provisions in the U.S. Criminal Code relating to war crimes and terrorist activity apply extraterritorially and may be applicable to some detainees, though ex post facto and statute of limitation concerns may limit their application to certain offenses. 75 Presently, the Executive has discretion in deciding the appropriate forum in which to prosecute detainees. As previously discussed, President Obama has issued an Executive Order that (at least temporarily) effectively halts military commission trials, and also requires designated officials to assess the feasibility of prosecuting some detainees in federal civilian court. It is possible that legislative proposals may be introduced which require that prosecution occur in a particular 69 See generally CRS Report RL33688, The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice, by Jennifer K. Elsea. The MCA defines unlawful enemy combatant as a person who: (1) has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant, or (2) has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal by a certain date. 10 U.S.C. 948a(1). Courts have yet to rule on the constitutional legitimacy of many procedures used by military commissions. 70 See Brookings Report, supra footnote 2, at p. 8. Information regarding ongoing and completed cases can be viewed at 71 See Quirin, 317 U.S. at 31 (upholding military commissions used to try eight German saboteurs in the United States). 72 A copy of a DOD memo describing these changes can be viewed at %20DoD%20MMC%20Changes.pdf U.S.C Id. 75 See 18 U.S.C. chapter 113B (terrorism-related offenses); 18 U.S.C Congressional Research Service 16

69 Closing the Guantanamo Detention Center: Legal Issues forum or modify the procedural rules applicable to the prosecution of detainees. Pursuant to existing statutory authorization, the Executive could also potentially modify military commission procedural rules to some degree, including by amending existing procedures so that they more closely resemble those employed by courts-martial. 76 In May 2009, the DOD announced certain modifications to commission procedures which, in some cases, make them more similar to the procedures employed in courts-martial, though significant differences between the two systems remain. Proposals may also be considered to create an entirely new forum for the prosecution of detainees, such as a national security court. 77 The scope and effect of such proposals may be shaped by constitutional constraints, including with respect to the rights owed to the accused in criminal proceedings. The following sections discuss selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums. Right to Assistance of Counsel Detainees brought to the United States would have a constitutional right to assistance of counsel in any criminal prosecution. The procedural rules for federal civilian courts, courts-martial, and military commissions under the MCA all provide a defendant with the right to assistance of counsel. Depending upon the forum in which the detainee is tried, the particular procedural rules concerning a defendant s exercise of this right may differ. The Sixth Amendment guarantees a criminal defendant the right to have the Assistance of Counsel for his defence. This constitutional protection affords a defendant the right to retain counsel of his or her choosing and an opportunity to consult with that counsel. 78 Where a criminal defendant cannot afford to retain a lawyer to assist in his or her defense, such counsel will be appointed by the court. 79 The court must advise a criminal defendant of his or her right to counsel and must ask the defendant whether he or she wishes to waive that right. 80 A defendant can waive a right to assistance of counsel only if that waiver is knowing, voluntary, and intelligent. 81 However, the defendant need not fully and completely comprehend all of the consequences of that waiver. 82 This right also encompasses the right of a defendant to represent himself or herself, if the defendant intelligently and knowingly chooses to do so. 83 The Sixth Amendment right to 76 The MCA provides that the Secretary of Defense may prescribe rules of evidence and procedure for military commissions not inconsistent with the MCA. Rules applicable to courts-martial under the UCMJ are to apply except as otherwise specified. 10 U.S.C. 949a(a). Pursuant to this authority, the Secretary of Defense published the Manual for Military Commissions, including the Rules for Military Commissions and the Military Commission Rules of Evidence. 77 See, e.g., Jack L. Goldsmith and Neal Katyal, op-ed, The Terrorists Court, New York Times, July 11, 2007; Stuart Taylor, Jr., The Case for a National Security Court, The Atlantic, February 27, Chandler v. Freytag, 348 U.S. 3, 10 (1954). 79 See, e.g., Gideon v. Wainwright, 372 U.S. 335, 344 (1963); Johnson v. Zerbst, 304 U.S. 458, 462, 463 (1938). 80 Walker v. Johnston, 312 U.S. 275 (1941). 81 Iowa v. Tovar, 541 U.S. 77 (2004). 82 Id. 83 Faretta v. California, 422 U.S. 806 (1975). However, under some circumstances the trial judge may deny the authority to exercise it, as when the defendant simply lacks the competence to make a knowing or intelligent waiver of counsel or when his self-representation is so disruptive of orderly procedures that the judge may curtail it. UNITED STATES CONSTITUTION: ANALYSIS AND INTERPRETATION (Constitution Annotated), (continued...) Congressional Research Service 17

70 Closing the Guantanamo Detention Center: Legal Issues counsel is the right to the effective assistance of counsel. 84 The standard for determining whether a defendant has received ineffective assistance of counsel is two-fold. The attorney s performance must have been deficient, and the prejudice to the defense resulting from the attorney s deficient performance must be so serious as to bring into question the outcome of the proceeding. 85 If there is an actual breakdown in the adversarial process, such as a case involving circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified, the Sixth Amendment is violated. 86 In the federal civilian courts, the right to counsel is implemented under Rule 44 of the Federal Rules of Criminal Procedure. In part, this rule affords a criminal defendant who is unable to obtain counsel the right to have counsel appointed to represent him at every stage of the proceedings from initial appearance through appeal, unless the defendant waives this right. 87 In courts-martial, the right to counsel is implemented under Rule 506 of the Rules for Courts- Martial (R.C.M.). Rule 506 provides that a defendant has the right to be represented at a general or special court-martial by civilian counsel, if provided at no expense to the Government, and either by military counsel detailed under Article 27 of the UCMJ 88 or military counsel of the defendant s own selection. As in a civilian court, the defendant may also waive the right to be represented by counsel and may conduct the defense personally. 89 A detainee subject to a military commission has the right to represented by counsel. The right is implemented by Rule 506 of the Rules for Military Commissions (R.M.C.). Rule 506 provides a detainee with a detailed defense counsel. The detainee also has the right to be represented by civilian counsel, if retained at no cost to the Government. Civilian counsel must fulfill certain qualifications, including being a U.S. citizen and having security clearance of Secret or higher. 90 Much like under the Rules for Courts-Martial, a defendant in a military commission proceeding may waive his right to counsel and may conduct the defense personally. 91 However, in a departure from the rules governing courts-martial, the detainee initially did not have the right to be granted specific individual military counsel upon request. Pursuant to modifications to commission procedures announced in May 2009, the accused would now be able to select a military defense counsel of his choosing, in the event that military commission proceedings go forward. (...continued) Amendment06/topic_8_1_7.html. See Indiana v. Edwards, 128 S. Ct (2008). The right to self-representation applies only in preparation for trial and at trial. The Constitution does not guarantee a right to self-representation on direct appeal from a criminal conviction. Martinez v. Court of App. of Cal., Fourth App. Dist., 528 U.S. 152, 160 (2000); cf., Abney v. United States, 431 U.S. 651, 656 (1977) (finding that the right to appeal, as we now know it, in criminal cases arises from statutory rather than constitutional authority. The Martinez Court found that it necessarily followed from this that the Sixth Amendment did not provide a basis for self-representation on appeal. 528 U.S. at 160.). 84 McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Powell v. Alabama, 287 U.S. 45, (1932); Glasser v. United States, 315 U.S. 60, 70 (1942). 85 Strickland v. Washington, 466 U.S. 668 (1984). 86 United States v. Cronic, 466 U.S. 648, 658 (1984). See also, id. at FED. R. CRIM. P. 44(a) U.S.C R.C.M. 506(d). 90 R.M.C. 502(d). 91 R.M.C. 506(c). Congressional Research Service 18

71 Closing the Guantanamo Detention Center: Legal Issues Right Against Use of Coerced Confessions One issue that could arise in the prosecution of certain detainees involves the admissibility of statements obtained during interrogation by U.S. or foreign military and intelligence agencies. Some detainees currently held at Guantanamo were subjected to interrogation techniques that, if performed in the United States, would almost certainly be deemed unconstitutionally harsh. 92 The use of any such evidence in the criminal trial of a detainee would likely be subject to legal challenge under the Fifth Amendment on the ground that the statement was gained through undue coercion. As a general rule, statements made in response to coercive interrogation methods are inadmissible in U.S. courts. Fifth Amendment protections concerning the right against selfincrimination and due process serve as dual bases for exclusion of such evidence. 93 Under the leading Supreme Court case, Miranda v. Arizona, courts will not admit defendants statements at trial unless law enforcement officers issued the well-known Miranda warnings, which typically begin with You have the right to remain silent, before the statements were made. 94 As a general rule, Miranda applies any time police question a defendant who is in custody, broadly defined. 95 In the context of terrorist suspects statements, at least one court has held that Miranda applies in Article III courts even if the questioning took place outside of the United States See, e.g., U.S. Congress, Senate Select Committee on Intelligence, Current and Projected National Security Threats, (testimony by CIA Director Michael Hayden, discussing the use of waterboarding upon three detainees currently held at Guantanamo), 110 th Cong., February 5, 2008; Bob Woodward, Detainee Tortured, Says U.S. Official, Washington Post, January 14, 2009, at p. A1 (quoting Susan J. Crawford, convening authority of military commissions, as stating that case of a Guantanamo detainee was not referred for prosecution because [h]is treatment met the legal definition of torture ). 93 U.S. Const. amend. V ( No person... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ); U.S. Const. amend. XIV ( nor shall any state deprive any person of life, liberty, or property, without due process of law ). See also Malloy v. Hogan, 378 U.S. 1, 7 (1964) (incorporating the Fifth Amendment self-incrimination clause to the states). Throughout the nineteenth century, courts excluded coerced statements under a common-law rule, which arose from a judicial concern that such statements were unreliable evidence. In Bram v. United States, the Supreme Court first introduced the self-incrimination clause rationale for excluding such statements. 168 U.S. 532, 542 (1887). Other twentieth century cases articulated a dueprocess rationale to exclude coerced statements. See, e.g., Brown v. Mississippi, 297 U.S. 278, (1936) (holding that statements obtained by torturing an accused must be excluded under the Fourteenth Amendment due process clause, which forbids states to offend fundamental principles of liberty and justice ). In Miranda v. Arizona, the Court affirmed the prominence of the Baum self-incrimination rationale for excluding coerced statements. 384 U.S. 436, (1966). The Court has reiterated the due-process rationale in more recent cases. See, e.g., Dickerson v. United States, 530 U.S. 428, 434 (2000) ( We have never abandoned [the] due process jurisprudence ). For information on more cases interpreting the Fifth Amendment right against self incrimination, see CRS Report , Repealing Miranda?: Background of the Controversy over Pretrial Interrogation and Self-Incrimination, by Paul Starett Wallace Jr U.S. 436, 479 (1966). 95 Id. at 444. (defining questioning during custodial interrogation as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way ). 96 United States v. Bin Laden, 132 F.Supp.2d 168, (S.D.N.Y. 2001) (in a case involving a non-citizen defendant who had been detained and interrogated in Kenya, holding that as a general rule, Miranda applies when U.S. law enforcement officials questioned the defendant outside of the United States). This outcome seems to comport with the self-incrimination clause rationale, espoused by the Miranda court, for excluding coerced statements; if the concern is compelled incrimination in a current legal proceeding, the location of the interrogation seems to be irrelevant under the constitutional standard. Congressional Research Service 19

72 Closing the Guantanamo Detention Center: Legal Issues However, the Court s recent jurisprudence has weakened Miranda s effect by making clear that despite the holding s constitutional status, 97 there are cases in which it is appropriate to depart from strict adherence to Miranda warnings. 98 The Miranda exception possibly relevant to the Guantanamo detainees is the public safety exception, which the Court introduced in New York v. Quarles. 99 In Quarles, police officers inquired Where is the gun? to a suspect who had fled into a supermarket after a shooting. 100 The Court held that the suspect s incriminating response, The gun is over there, was admissible in court, despite a lack of Miranda warnings, because the question had been necessary to secure the public s safety in that moment. 101 Despite the Court s emphasis in Quarles on the time-sensitive nature of the safety risk in that case, 102 some commentators have argued that the Quarles public safety exception should be extended to reach interrogations of captured terrorist suspects. 103 A second Miranda exception possibly applicable to some detainees is an exception for statements made in response to questioning by foreign officials. In United States v. Yosef, the U.S. Court of Appeals for the Second Circuit held that statements taken by foreign police in the absence of Miranda warnings are admissible if voluntary. 104 The Yosef court identified two situations in which this exception does not apply: (1) situations where U.S. interrogators are working with foreign interrogators as part of a joint venture ; and (2) situations that shock the judicial conscience. 105 If the Quarles public safety exception, the foreign-interrogator exception, or another Miranda exception applied to statements made during questioning of a Guantanamo detainee, prosecutors would need to show only that the detainees statements were made voluntarily before a court would admit them at trial. 106 For example, in United States v. Abu Ali, a case involving a defendant who had been arrested and questioned by the Saudi government for allegedly assisting terrorists in an attack, the U.S. Court of Appeals for the Fourth Circuit upheld statements made to the Saudi interrogators, despite a lack of Miranda warnings, because the court found that the statements were voluntary In Dickerson v. United States, the Supreme Court held that the Miranda warnings have the status of constitutional interpretation; thus, Congress cannot eliminate the Miranda warnings requirement by statute. 530 U.S. 428, (2000). 98 See, e.g., Michigan v. Tucker, 417 U.S. 433, 444 (1974) (declining to strictly enforce the Miranda warnings where police conduct did not deprive respondent of his privilege against compulsory self-incrimination as such, but rather failed to make available to him the full measure of procedural safeguards associated with that right since Miranda ) U.S. 649 (1984). 100 Id. at Id. 102 Id. at (reasoning that requiring police to determine whether to take the time to give Miranda warnings in a matter of seconds was impracticable under the circumstances). 103 See, e.g., Jeffrey S. Becker, Legal War on Terrorism: Extending New York v. Quarles and the Departure from Enemy Combatant Designations, 53 DePaul L. Rev. 831, 869 ( ) F.3d 56, 145 (2d Cir. 2003), cert. denied, 540 U.S. 933 (2003). 105 Id. at The Fourth Circuit articulated slightly different exceptions to this general rule in Abu Ali, holding that Miranda will apply to interrogations by foreign governments when the foreign interrogators are: (1) engaged in a joint venture with, or (2) acting as agents of, United States law enforcement officers. Abu Ali, 528 F.3d at See Abu Ali, 528 F.3d at 232 ( When Miranda warnings are unnecessary, as in the case of an interrogation by foreign officials, we assess the voluntariness of a defendant s statements by asking whether the confession is the product of an essentially free and unconstrained choice by its maker. ) (citing Culombe, 367 U.S. at 602) F.3d 210, 234 (4 th Cir. 2008) ( [W]e conclude that Abu Ali s statements were voluntary. Abu Ali was (continued...) Congressional Research Service 20

73 Closing the Guantanamo Detention Center: Legal Issues The constitutional standard of voluntariness is recognized as the ultimate safeguard against coerced confessions. 108 The definition for voluntary in this context matches the definition employed in other due-process cases; specifically, the test for voluntariness is whether the confession was extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence. 109 The voluntariness test is a totality-of-the-circumstances inquiry, in which courts examine factors such as the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep. 110 The failure to provide Miranda warnings can serve as one factor in the totality-ofcircumstances evaluation. 111 Under Article 31 of the UCMJ, individuals subject to the code who are brought before a courtmartial are protected from the use of statements obtained through the use of coercion, unlawful influence, or unlawful inducement. 112 Additionally, an individual may not be forced to incriminate himself or to answer a question before any military tribunal that is not material to the issue and may tend to degrade him. 113 A suspect is also generally entitled to Miranda type warnings, commonly referred to as 31 bravo rights, which require that a suspect be informed of the nature of the accusation against him; be advised that he does not have to make a statement regarding the offense; and be informed that any statement may be used as evidence in a trial by court-martial. The protections of Article 31 are broader than Miranda warnings in that a suspect must receive the warnings even if he is not in custody. 114 While a strict reading of the UCMJ might support the proposition that a captured insurgent suspected of engaging in unlawful hostilities could not be questioned by military personnel about such activities without first receiving a warning and possibly the opportunity to consult an attorney, developments in military case law cast that conclusion in doubt. 115 A review of Army regulations pertaining to the treatment of war-time (...continued) intelligent, articulate, and comfortable with the language and culture of the country in which he was detained and questioned. The district court found, based upon copious record evidence, that he was not tortured, abused, threatened, held in cruel conditions, or subjected to coercive interrogations. On the basis of the totality of these circumstances, we conclude that Abu Ali s statements were the product of an essentially free and unconstrained choice. (citing Culombe v. Connecticut, 367 U.S. 568, 602 (1961))). 108 See Dickerson, 530 U.S. at 434 (noting that although Miranda and its progeny changed the focus of the inquiry regarding coerced statements, the Court continue[s] to exclude confessions that were obtained involuntarily in cases in which Miranda does not apply). 109 Hutto v. Ross, 429 U.S. 28, 30 (1976) (citing Bram, 168 U.S. at ). 110 Abu Ali, 528 F.3d at Id. at U.S.C. 831(d). See also MIL. R. EVID U.S.C. 831(a),(c). 114 United States v. Baird, 271 U.S. App. D.C. 121 (D.C. Cir. 1988). 115 Not long after the passage of the UCMJ, the Court of Military Appeals (CMA) began to interpret Article 31(b) in light of congressional intent, wherein it discerned the aim on Congress s part to counteract the presumptively coercive effect created whenever a service member is questioned by a superior. United States v. Franklin, 8 C.M.R. 513 (C.M.A. 1952). Subsequently, the CMA determined that person subject to the code was not meant to be read as broadly in Article 31 as that phrase is used elsewhere in the UCMJ. See United States v. Gibson, 14 C.M.R. 164, 170 (C.M.A. 1954) (questioning of prisoner by fellow inmate who was cooperating with investigators did not require art. 31 warning). It has also been held that interrogation for counter- espionage purposes conducted by civilian agents of the U.S. Navy did not require an Article 31 rights warning, in a case where the suspect was found not to be in military custody at the time of the questioning. United States v. Lonetree, 35 M.J. 396 (C.M.A. 1992). Congressional Research Service 21

74 Closing the Guantanamo Detention Center: Legal Issues captives suggests that military authorities do not regard Article 31 as applicable to captured belligerents suspected of violating the law of war, regardless of their prisoner-of-war status. 116 Military courts have also recognized a public safety exception to Miranda requirements similar to the rule applied in federal courts. 117 Persons subject to a military commission also have a statutory privilege against selfincrimination, though this standard is less robust than that applicable in courts-martial proceedings. 118 Statements obtained by the use of torture are statutorily prohibited. 119 However, the MCA authorized military commissions to permit the admission of statements obtained in the course of harsh interrogation not rising to the level of torture, if certain criteria are met. Statements made on or after December 30, 2005 may not be admitted if the interrogation methods used to obtain them amounted to cruel, inhuman, or degrading treatment prohibited by the DTA. 120 This prohibition applies to statements obtained through methods that, if they had occurred within the United States, would be considered unconstitutionally harsh. 121 This requirement does not apply with respect to the admission of statements made prior to December 30, In either case, if the degree of coercion used to obtain the statement is disputed, the military judge may only permit its admission if the totality of circumstances renders that statement reliable and the interests of justice are served by its admission. 123 The standards for admission of evidence in military commissions may be subject to legal challenge, particularly by those defendants who seek to bar the admission of statements as involuntary, when the incriminating statements were made prior to the enactment of the DTA and were purportedly obtained through cruel, inhuman, or degrading treatment. Issues may also arise regarding the admissibility of any incriminating statements made after a detainee has been subjected to harsh interrogation. In November 2008, a military commission judge ruled that statements made by a detainee to U.S. authorities were tainted by his earlier confession to Afghan police hours before, which had purportedly been made under threat of death. 124 The judge concluded that the coercive effects of the death threats producing the detainee s first confession had not dissipated by the time of the second. Subsequently, a federal habeas court ruled that every statement made by the detainee since his arrest [was] a product of torture, and could not be used by the government to support his detention. 125 The detainee was thereafter ordered released by the habeas court 126 and subsequently transferred to Afghanistan. 116 See Department of the Army, AR 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (1997), at para. 2-1(d). (permitting interrogation of detainees in combat zones and barring use of torture or other coercion against them, but not requiring such persons to be informed of rights under Article 31). 117 See David A. Schleuter, Military Criminal Justice 5-4(B) (5 th ed. 1999) U.S.C. 948r(a) U.S.C. 948r(b) U.S.C. 948r(d). 121 For further discussion, see CRS Report RL33655, Interrogation of Detainees: Requirements of the Detainee Treatment Act, by Michael John Garcia U.S.C. 948r(c) U.S.C. 948r(c)-(d). 124 United States v. Jawad, D-021 (November 19, 2008). The government has appealed the commission s ruling to the Court of Military Commission Review. 125 Bacha v. Obama, 2009 WL (D.D.C., July 17, 2009) (Huvelle, J.). 126 Bacha v. Obama, 2009 WL (D.D.C., July 30, 2009) (Huvelle, J.). Congressional Research Service 22

75 Closing the Guantanamo Detention Center: Legal Issues In May 2009, the DOD announced a modification to military commission rules so that in all instances where the degree of coercion used to obtain a statement is disputed, the statement shall not be admitted if it was obtained through cruel, inhuman, or degrading treatment, regardless of whether the treatment occurred before or after the enactment of the DTA. Right Against Prosecution Under Ex Post Facto Laws The ability to seek penal sanction against some detainees may be limited by ex post facto rules. Art. I, 9, cl. 3, of the U.S. Constitution provides, No Bill of Attainder or ex post facto Law shall be passed. The Ex Post Facto Clause 127 protects liberty by preventing the government from enacting statutes with manifestly unjust and oppressive retroactive effects. 128 This limitation may impede the ability of U.S. authorities to pursue criminal charges against some detainees, or alternatively inform decisions as to whether to pursue criminal charges in a military or civilian court, as offenses punishable under the jurisdiction of one forum may not be cognizable under the laws of another. While laws having retroactive effect may potentially be challenged on due process grounds, 129 the Ex Post Facto Clause acts as an independent limitation on congressional power, going to the very root of Congress s ability to act at all, irrespective of time or place. 130 Accordingly, the Ex Post Facto Clause may be pertinent to the prosecution of detainees regardless of whether they are brought to the United States or held for trial at Guantanamo. It appears that some detainees could be prosecuted for activities in federal civilian court without running afoul of the Ex Post Facto Clause, including for offenses related to or preceding the 9/11 terrorist attacks. While the number of laws criminalizing terrorism-related activity expanded in the aftermath of the 9/11 terrorist attacks, some criminal statutes concerning terrorist activity and having extraterritorial application were in effect in the years preceding, including laws relating to acts of terrorism within the United States that transcend national boundaries; killing or causing serious bodily injury to an American overseas for terrorist purposes; and money laundering in support of certain terrorism-related activity. 131 However, it may be more difficult to prosecute 127 U.S. Const., Art. I, 10, cl. 1, prohibits the states from enacting ex post facto laws. 128 Stogner v. California, 539 U.S. 607, 612 (2003), citing Calder v. Bull, 3 U.S. 386, (1798). In Calder, Justice Chase described the Ex Post Facto Clause as four categories of laws: [1.] Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action... [2.] Every law that aggravates a crime, or makes it greater than it was, when committed... [3.] Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed... [and 4.] Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. Calder, 3 U.S. at See Weaver v. Graham, 450 U.S. 24, 28 n. 10 (1981) (noting that in addition to giving protection to individuals, the Ex Post Facto Clause upholds the separation of powers by confining the legislature to penal decisions with prospective effect and the judiciary and executive to applications of existing penal law ). 130 Downes v. Bidwell, 182 U.S. 244, 277 (1901). See also United States v. Hamdan, D012 and D050, slip op. at 2 (June 14, 2008) [hereinafter Hamdan Military Commission Ruling ] (ruling by military commission citing Downes and finding that the Ex Post Facto Clause applies to congressional actions directed at aliens at Guantanamo) U.S.C. 2332b (acts of terrorism within the United States that transcend national boundaries), 2332 (killing or severely injuring a U.S. national overseas), 1956 (criminalizing money laundering activities by a foreign person when a transaction at least partially occurs within the United States) (2000). For further discussion on the use of terrorism statutes in criminal prosecutions, including with respect to activities taking place outside the United States, see Richard B. Zabel and James J. Benjamin, Jr., In Pursuit of Justice: Prosecuting Terrorism Cases in Federal Courts, Human (continued...) Congressional Research Service 23

76 Closing the Guantanamo Detention Center: Legal Issues some detainees on account of other types of terrorist activity or material support which occurred abroad. In the early days of the conflict with the Taliban and Al Qaeda, many terrorism-related statutes did not apply to wholly extraterritorial acts committed by foreign nationals which did not injure U.S. persons. For instance, prior to 2004, federal criminal law generally did not extend to non-citizens with no ties to the United States who provided material support to a terrorist organization. 132 Some persons could also be charged with offenses under the War Crimes Act, which imposes criminal penalties for specified offenses under the law of war, including grave breaches of the Geneva Conventions. 133 It should be noted, however, that statute of limitations concerns may affect the ability of U.S. authorities to prosecute persons for some of these offenses. While the statute of limitations for most non-capital federal offenses is five years, 134 the period for terrorism-related offenses is typically eight years unless the offense raises a foreseeable risk of death or serious bodily injury. If such a risk is foreseeable, then, like capital offenses, 135 there is no limitation to the time within which an indictment may be found. 136 The constitutional prohibition against ex post facto laws may also have implications in courtsmartial or military commission proceedings, limiting the offenses with which detainees may be charged. 137 The UCMJ provides that general courts-martial have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war. 138 The UCMJ does not enumerate the offenses punishable under the law of war, instead relying on the common law of war to define the subject-matter jurisdiction in general courts-martial. In Hamdan v. Rumsfeld, a plurality of the Supreme Court recognized that for an act to be triable under the common law of war the precedent for it being treated as an offense must be plain and unambiguous. 139 After examining the history of military commission practice in the United States and internationally, the plurality further concluded that conspiracy to violate the law of war was not in itself a crime under the common law of war or the UCMJ. 140 (...continued) Rights First, May See 18 U.S.C. 2339B (amended in 2004 to cover extraterritorial acts of material support by persons with no ties to the United States who were thereafter brought to the United States) U.S.C U.S.C U.S.C For background, see CRS Report RL31253, Statutes of Limitation in Federal Criminal Cases: An Overview, by Charles Doyle U.S.C. 3286(b). 137 See United States v. Gorski, 47 M.J. 370 (1997) (ruling that the Ex Post Facto Clause applies to courts-martial proceedings); Hamdan Military Commission Ruling, supra footnote 130 (finding that Ex Post Facto Clause applies to military commission proceedings at Guantanamo) U.S.C Hamdan, 548 U.S. at 602 (Stevens, J., plurality opinion). 140 Id. at (Stevens, J., plurality opinion). Although the petitioner in Hamdan had been brought before a military tribunal established by a 2001 presidential order rather than a court-martial, the Court held that UCMJ procedural requirements were generally applicable to these tribunals. While a majority of the Court found that the military commissions established by the President did not comply with these requirements, Justice Kennedy declined to join the part of the opinion considering whether conspiracy was a cognizable offense under the law of war, finding the discussion unnecessary in light of the Court s determination that the military commissions did not conform to the UCMJ. Congressional Research Service 24

77 Closing the Guantanamo Detention Center: Legal Issues Following the Hamdan ruling, Congress enacted the MCA, which authorized the establishment of military commissions to try certain detainees and exempted the commissions from many UCMJ requirements applicable to courts-martial proceedings. While military commissions differ from the general courts-martial system in that their personal jurisdiction is limited to unlawful enemy combatants (in contrast to the jurisdiction of general courts-martial, which may extend to lawful and unlawful combatants 141 ), military commissions share subject-matter jurisdiction with the general courts-martial system over violations of the law of war. However, the systems differ in that Congress also lists several specific offenses punishable by military commissions, including, inter alia, murder of protected persons; murder in violation of the law of war; attacking civilians, civilian objects, or protected property; denying quarter; terrorism; providing material support for terrorism; and conspiracy to commit an offense punishable by military commission. 142 The MCA provides that such acts by an alien unlawful enemy combatant are punishable by military commissions regardless of whether they were committed before, on, or after September 11, In enacting the MCA, Congress asserted that it did not establish new crimes that did not exist before its enactment, but rather codified offenses that have traditionally been triable by military commissions. 144 While many of the offenses listed in the MCA can be considered well-established offenses against the law of war, a court might conclude that some of the listed crimes are new, and that a detainee could not be prosecuted for such an offense on account of prior conduct. As previously mentioned, a plurality of the Hamdan Court found that conspiracy to commit a violation of the law of war is not itself a war crime. 145 The crime of murder in violation of the law of war, which punishes persons who, as unprivileged belligerents, commit hostile acts that result in the death of any persons, including lawful combatants, in the context of an armed conflict, may also be new. 146 Similarly, there appears to be no precedent for defining material support for U.S.C. 948d(b). The military commissions established by the MCA do not have jurisdiction over lawful enemy combatants. A lawful enemy combatant is defined to refer to (1) a member of the regular forces of a State party engaged in hostilities against the United States; (2) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or (3) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States. 10 U.S.C. 948a U.S.C. 950v U.S.C. 948d(a) U.S.C. 950p. 145 Hamdan, 548 U.S. at 612 (Stevens, J., plurality opinion). 146 Civilians (sometimes characterized as unprivileged belligerents or unlawful combatants ) have been tried by military tribunals for killing combatants in past wars, but the offense has been characterized as ordinary murder for which combatant immunity is unavailable as a defense rather than a violation of the law of war. The International Criminal Tribunal for the former Yugoslavia (ICTY) has found that war crimes in the context of non-international armed conflict include murder of civilians, but have implied that the killing of a combatant is not a war crime. Prosecutor v. Kvocka et al., Case No. IT-98-30/1 (Trial Chamber), November 2, 2001, para. 124: ( An additional requirement for Common Article 3 crimes under Article 3 of the Statute is that the violations must be committed against persons taking no active part in the hostilities. ); Prosecutor v. Jelisic, Case No. IT (Trial Chamber), December 14, 1999, para. 34 ( Common Article 3 protects [p]ersons taking no active part in the hostilities including persons placed hors de combat by sickness, wounds, detention, or any other cause. ); Prosecutor v. Blaskic, Case No. IT (Trial Chamber), March 3, 2000, para. 180 ( Civilians within the meaning of Article 3 are persons who are not, or no longer, members of the armed forces. Civilian property covers any property that could not be legitimately considered a military objective. ). For further discussion, see CRS Report RL33688, The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice, by Jennifer K. Elsea. Congressional Research Service 25

78 Closing the Guantanamo Detention Center: Legal Issues terrorism as a war crime, though such conduct arguably could be analogized to other types of conduct that have been punishable by military commissions in the past. 147 Whether a reviewing court would deem some of the punishable offenses listed by the MCA as constitutionally impermissible, at least when applied to activities occurring prior to the MCA s enactment, may turn on the degree of deference given to Congress in defining violations of the law of war. The Constitution expressly grants Congress the power to define and punish Offences... against the Law of Nations. 148 While the Supreme Court has applied stringent criteria when determining whether an act is punishable under the law of war in the absence of a congressional declaration, 149 the standard may be more lenient when Congress acts pursuant to its constitutional authority to define war crime offenses. 150 Accordingly, it is possible that a reviewing court may defer to Congress s finding the specified offenses under the MCA are not new offenses, and find that prosecution of those offenses under military commissions (or possibly under the general courts-martial system, if the court relies on the MCA to inform its judgment of activities punishable under the common law of war) does not run afoul of the Ex Post Facto Clause. On the other hand, a reviewing court might find that any deference owed to congressional determinations is insufficient to permit the prosecution of some offenses to go forward. Although federal courts have not yet had the opportunity to rule on ex post facto claims concerning military commissions, the issue has arisen at the commission level. During military commission proceedings in the case of United States v. Hamdan, the commission considered a defense motion to dismiss charges of conspiracy and providing material support for terrorism on the grounds that they violated the prohibition against ex post facto laws in the U.S. Constitution, Common Article 3 of the Geneva Conventions, and the law of nations. The Government opposed the motion on the grounds that the Constitution did not protect aliens held outside the United States, and that, even if the Constitution did apply, there was precedent for trial of these offenses by military commissions as violations of the Law of Armed Conflict Compare Hamdan Military Commission Ruling, supra footnote 130 (analogizing material support for terrorism to guerilla activities subject to trial by military commission in the U.S. Civil War); with Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (citizen of Indiana accused of conspiring to commit hostile acts against the Union during Civil War, including conspiring to seize munitions stored in Union armory and liberating prisoners of war, was nevertheless a civilian who was not amenable to military jurisdiction in area where civil courts were open). Many military commissions that operated during the Civil War did not exercise jurisdiction solely over war crimes. Commissions were also used to try persons for other criminal offenses in occupied territory or in locations under conditions of martial law. The Obama Administration has expressed serious concern as to whether material support for terrorism has traditionally been recognized as a war crime, and has recommended that any legislation modifying military commissions not include material support for terrorism as an enumerated offense over which commissions have subject-matter jurisdiction. U.S. Congress, Hearing before the Senate Committee on Armed Services, Military Commissions, 111 th Cong., 1 st sess., July 7, 2009 (Submitted statement of David Kris, Assistant Attorney General) (stating that the Obama Administration believes that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense ). 148 U.S. Const., Art. I, 10, cl Hamdan, 548 U.S. at 602 (Stevens, J., plurality opinion). See Quirin, 317 U.S. at 30 ( universal agreement and practice recognized offense as violation of the law of war). 150 See United States v. Bin Laden, 92 F. Supp. 2d 189, 220 (S.D.N.Y. 2000) ( provided that the acts in question are recognized by at least some members of the international community as being offenses against the law of nations, Congress arguably has the power to criminalize these acts pursuant to its power to define offenses against the law of nations ); Hamdan Military Commission Ruling, supra footnote Hamdan Military Commission Ruling, supra footnote 130, slip. op. at 1. Congressional Research Service 26

79 Closing the Guantanamo Detention Center: Legal Issues After determining that the Ex Post Facto Clause extends to congressional statutes applicable to Guantanamo, the commission turned to an examination of whether the MCA s prohibitions against conspiracy and material support for terrorism were ex post facto laws. The commission examined countervailing arguments as to whether these two offenses were violations of the law of war before enactment of the MCA and whether similar offenses had been tried by military commission in the past. After exploring conflicting evidence with respect to each of these crimes, 152 the commission deferred to the Congress determination that these were not new offenses, finding that there was adequate historical basis for this determination. 153 In so doing, the commission distinguished instances where the Congress has been silent from those where Congress has enacted legislation, stating:... Absent Congressional action under the define and punish clause to identify offenses as violations of the Law of War, the Supreme Court has looked for clear and unequivocal evidence that an offense violates the common law of war... or that there is universal agreement and practice for the proposition. But where Congress has acted under its Constitutional authority to define and punish offenses against the law of nations, a greater level of deference to that determination is appropriate The commission s ruling in Hamdan was not appealed to the federal courts, and therefore it is unclear whether a reviewing court would reach a similar conclusion regarding whether certain offenses under the MCA raised ex post facto concerns. In addition to the constitutional question explored by the military commission in Hamdan, ex post facto concerns could potentially be raised in other situations. Statute of limitations concerns may also arise in war crimes prosecutions under the UCMJ, 155 though these limitations would not 152 Id., slip op at 2-3 (conspiracy) and 3-5 (material support for terrorism). 153 Id., slip op. at 6 (quoting MCA language states that it did not establish new crimes... [but] are declarative of existing law, 10 U.S.C. 950p). 154 Id., slip. op. at 5. Hamdan was subsequently convicted by the commission on the material support charge and acquited of the charge of conspiracy, and sentenced to 66 months with credit for serving all but five months. He was subsequently transferred to his native country of Yemen in November 2008 to serve out the remainder of his sentence, and his conviction was not reviewed by a federal court. See Department of Defense, Detainee Treatment Announced, press release, November 25, 2008, available at Article 43 of the UCMJ provides that the statute of limitations for most non-capital offenses that may be tried by court-martial is five years. The extent to which this Article might preclude prosecution of war crimes by a general courts-martial may be an issue in assessing the appropriate forum for the prosecution of detainees, as there does not appear to be a case which squarely addresses the Article s application to war crimes prosecutions. Assuming that Article 43 is applicable, the statute of limitations could potentially be suspended during time of war if the President certifies that the limitation would be detrimental to the war effort or harmful to national security. Specifically, Article 43(e) provides that: For an offense the trial of which in time of war is certified to the President by the Secretary [of Defense] concerned to be detrimental to the prosecution of the war or inimical to the national security, the period of limitation prescribed in this article is extended to six months after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress. 10 U.S.C. 843(e). Military courts have previously interpreted the phrase in time of war, as used in Article 43 and applied to U.S. servicemen, to be applicable to both declared wars and other military conflicts. See, e.g., United States v. Castillo, 34 M.J (1992) (Persian Gulf conflict was a time of war for purposes of UCMJ); United States v. Anderson, 38 C.M.R. 389 (1968) (unauthorized absence during Vietnam conflict was in time of war for purposes of Article 43 provision allowing suspension of statute of limitations); United States v. Taylor, 15 C.M.R. 232 (1954) (Korean conflict was in time of war within meaning of UCMJ Article 43). In United States v. Averette, 41 C.M.R. 363 (1970), a UCMJ provision giving military courts jurisdiction over civilians accompanying armed forces in time of war was interpreted as applying only to declared wars, so as to avoid constitutional issues that might be implicated by (continued...) Congressional Research Service 27

80 Closing the Guantanamo Detention Center: Legal Issues apply with respect to prosecutions before military commissions. These considerations may inform decisions by U.S. authorities as to whether to pursue criminal charges against detainees in civilian court, under the general courts-martial system, or via the military commissions established by the MCA. They may also be relevant in the crafting of any new legislative proposals concerning the prosecution of detainees. If a statute increasing the penalty for an existing crime were to be given retroactive effect, it would raise ex post facto concerns. Additionally, in the event that a statute of limitations on a particular offense expired, a detainee would no longer face the possibility of prosecution for that offense. If that statute of limitations were then extended and that extension given retroactive effect, this would also be deemed an ex post facto law. 156 A further ex post facto issue could arise if the rules of evidence applicable at the time of prosecution for an offense set a lower evidentiary bar for conviction than those applicable at the time of the commission of the offense. 157 Rules Against Hearsay Evidence Hearsay is a prior out-of-court statement of a person, offered at trial either orally by another person or in written form, in order to prove the truth of the matter asserted. In a trial before either a civilian or military court, the admissibility of hearsay may raise both procedural and constitutional issues. Civilian and military courts each have procedural rules limiting the admission of hearsay evidence. Further, the Sixth Amendment s Confrontation Clause states that the accused in any criminal prosecution retains the right to be confronted with the witnesses against him. (...continued) the military trial of civilians. This provision was subsequently amended to give courts-martial jurisdiction over civilians accompanying the military in contingency operations as well. Presuming that the UCMJ s statute of limitations is applicable to war crimes, it could be argued that the conflict with Al Qaeda and the Taliban, authorized by Congress pursuant to the AUMF, is a time of war, and that the statute of limitations for the prosecution of war crimes committed by enemy belligerents may be suspended under Article 43(e). 156 Stogner, 539 U.S. at Carmell v. Texas, 529 U.S. 513, , 552; 120 S. Ct. 1620; 146 L. Ed. 2d 577 (2000); cf., Stogner, 539 U.S. at (dicta). In Carmell, the Supreme Court considered an amendment to a statute concerning certain sexual offenses which authorized conviction for such offenses based on a victim s testimony alone, in contrast to the earlier version of the statute which required the victim s testimony plus other corroborating evidence to permit conviction. The Court held that application of the amendment to conduct that occurred before the amendment s effective date violated the constitutional prohibition against ex post facto laws. In Stogner, the Court found that the statute at issue was an ex post facto law, because it inflicted punishment where the defendant, by law, was not liable to any punishment. However, the Court noted in dicta, that... a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict. See United States v. Marion, 404 U.S. 307, 322, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). And that judgment typically rests, in large part, upon evidentiary concerns for example, concern that the passage of time has eroded memories or made witnesses or other evidence unavailable.... Consequently, to resurrect a prosecution after the relevant statute of limitations has expired is to eliminate a currently existing conclusive presumption forbidding prosecution, and thereby to permit conviction on a quantum of evidence where that quantum, at the time the new law is enacted, would have been legally insufficient. And, in that sense, the new law would violate previous evidence-related legal rules by authorizing the courts to receiv[e] evidence... which the courts of justice would not [previously have] admit[ted] as sufficient proof of a crime... Nonetheless, given Justice Chase s description of the second category, we need not explore the fourth category, or other categories, further. Id. at Congressional Research Service 28

81 Closing the Guantanamo Detention Center: Legal Issues As a practical matter, hearsay issues may arise in any prosecution of persons captured in the war on terror for reasons peculiar to that context. For example, witnesses detained by foreign governments may be unavailable to come to the United States to testify in a federal court, 158 or the government may be unwilling to make military and intelligence assets and personnel available for testimony. 159 Procedural rules and constitutional requirements may limit the use of hearsay evidence in the prosecution of some detainees, though exceptions may permit the introduction of certain types of hearsay evidence. Evidentiary Issues Federal civilian courts, courts-martial, and military commissions all possess procedural rules governing the admission of hearsay evidence. Procedural rules applicable to federal courts under the Federal Rules of Evidence (FED. R. EVID.) and courts-martial proceedings under the Military Rules of Evidence (MIL. R. EVID.) impose largely similar restrictions on the usage of hearsay evidence. Under the FED. R. EVID. and the MIL. R. EVID., hearsay is generally inadmissible unless it qualifies under an exception to the hearsay rule. 160 For the most part, these exceptions require the hearsay evidence to be of a particular nature or context that gives them a greater degree of reliability than other out-of court statements. Examples of exceptions to the hearsay rule include excited utterances made in relation to a startling event, which were made while the declarant was under the stress of excitement caused by the event; records of regularly-conducted activity; and statements of a self-incriminating nature. 161 The FED. R. EVID. and the MIL. R. EVID. also recognize a residual exception for statements which have equivalent circumstantial guarantees of trustworthiness. 162 Examples of statements that have been held to qualify under the residual exception include interviews of child abuse victims by specially trained FBI agents 163 and statements contained within the files of a foreign intelligence agency. 164 One important aspect of the definition of hearsay is that statements made by co-conspirators in furtherance of a conspiracy are not considered hearsay. 165 For example, in prosecutions alleging material support to terrorist organizations, evidence of statements by co-conspirators may be introduced against a defendant at trial even if those statements would not have qualified under a hearsay exception. Before these statements may be admitted, it is necessary to establish that the conspiracy exists. The co-conspirators statements being offered may be considered when making this initial determination, but are not sufficient standing alone to establish the existence of a conspiracy E.g. Abu Ali, 528 F.3d at E.g. United States v. Moussaoui, 382 F.3d 453, 459 (4 th Cir. 2004) (noting that the government informed the court that it would not comply with the court s deposition order in case involving person accused of involvement in terrorist attacks of September 11, 2001). 160 FED. R. EVID. 802; MIL. R. EVID FED. R. EVID. 801(D), 803; MIL. R. EVID. 801(d), Certain hearsay exceptions also require that the declarant be unavailable to testify, for example, due to death or an asserted privilege. 162 FED. R. EVID. 807; MIL. R. EVID United States v. Rouse, 111 F.3d 561 (8 th Cir. 1997). 164 United States v. Dumeisi, 424 F.3d 566 (7 th Cir. 2005). 165 FED. R. EVID. 801(D)(2)(E); MIL. R. EVID. 801(d)(2)(E). 166 FED. R. EVID. 801(D)(2); MIL. R. EVID. 801(d)(2). Congressional Research Service 29

82 Closing the Guantanamo Detention Center: Legal Issues In comparison with the FED. R. EVID. or the MIL. R. EVID., the procedural rules for military commissions under the Military Commission Rules of Evidence (MIL. COMM. R. EVID.) are much more permissive regarding the admissibility of hearsay evidence. Initially, hearsay evidence could be admitted in commission proceedings if either (1) it would be admitted under rules of evidence applicable in trial by general courts-martial; or (2) more broadly, if the proponent of the evidence makes known to the adverse party the intention to offer such evidence, and as well as the particulars of the evidence. 167 In the latter case, the accused would only have such evidence excluded if he could demonstrate by a preponderance of evidence that the hearsay evidence was unreliable under the totality of the circumstances. 168 The DOD announced a modification to the hearsay rules for military commissions in May 2009, so that it is no longer the burden of the opponent of hearsay evidence to disprove its reliability in order to block its admission. Instead, the burden is on the proponent of the hearsay evidence to prove the evidence s reliability for it to be admitted, as is the case in court-martial and civilian court proceedings. Despite this modification, hearsay evidence that is inadmissible under the FED. R. EVID. or MIL. R. EVID. might be admitted under the MIL. COMM. R. EVID. As a result, prosecutors may have a broader ranger of inculpatory evidence at their disposal. On the other hand, the MIL. COMM. R. EVID. permits a broader scope of hearsay for both parties. In some cases, a defendant may be able to introduce more exculpatory evidence under the MIL. COMM. R. EVID. than in a federal court or court martial. Because prosecutors generally choose the forum in which to prosecute a case, U.S. authorities may have the option of choosing among the different hearsay rules to their advantage, depending upon the particular facts of a case. Constitutional Issues The Constitution imposes its own limitations on the admission of hearsay evidence in criminal cases. The protections afforded under the Confrontation Clause apply to both civilian and military proceedings. 169 While courts have yet to rule as to whether the Confrontation Clause s protections against hearsay extend to noncitizens brought before military commissions held at Guantanamo, 170 it would certainly appear to restrict the use of hearsay evidence in cases brought against detainees transferred to the United States. 167 MIL. COMM. R. EVID The proponent of the evidence may satisfy the notification requirement by providing written notice of the statement and its circumstances 30 days in advance of trial or hearing and by providing the opposing party with any materials regarding the time, place, and conditions under which the statement was produced that are in its possession. 168 Id. at 803(c). 169 See, e.g., United States v. Coulter, 62 M.J. 520 (2005) (applying Sixth Amendment hearsay restrictions to courtmartial proceedings, including requirements of Crawford v. Washington, 541 U.S. 36 (2004)). 170 In the case of In re Yamashita, 327 U.S. 1 (1946), the Supreme Court denied application of the writ of habeas corpus to a Japanese general who had been tried and convicted before a military commission in the Philippines. Having found that the Court lacked jurisdiction to review the proceedings, the Court declined to consider whether the procedures employed by the commission, which permitted significant use of hearsay evidence, violated constitutional requirements. While the Supreme Court has not definitively addressed the question of whether the Confrontation Clause applies to noncitizens at Guantanamo, the reliance on hearsay evidence in administrative determinations as to whether a detainee was an enemy combatant informed the Court s ruling in Boumediene that detainees could seek habeas review of the legality of their detention. 128 S.Ct. at See also Hamdan, 548 U.S. at 638 n. 67 (Stevens, J., plurality opinion) (finding 2001 presidential order establishing military commissions violated statutory requirements concerning commission procedures, and stating that the Government suggests no circumstances in which it would be fair to convict the accused based on evidence he has not seen or heard. )(citing cf. Crawford, 541 U.S. at 49). Congressional Research Service 30

83 Closing the Guantanamo Detention Center: Legal Issues In Crawford v. Washington, the Supreme Court held that even where a hearsay exception may apply under applicable forum rules, the Confrontation Clause prohibits the admission of hearsay against a criminal defendant if the character of the statement is testimonial and the defendant has not had a prior opportunity for cross-examination. 171 Although the definition of testimonial statements has not been thoroughly explicated, lower courts have interpreted the proper inquiry to be whether a reasonable person in the declarant s position would have expected his statements to be used at trial. 172 In the traditional law enforcement context, the Court has expressly held that statements taken by police officers in the course of either investigations of past criminal activity or formal interrogation would qualify as testimonial under any reasonable definition of the term. 173 In contrast, the Supreme Court has held that statements made to enable police assistance to meet an ongoing emergency 174 were not testimonial, because, objectively determined, the purpose of the statements was to request assistance and not to act as a witness. 175 Many of the individuals detained at the naval base at Guantanamo Bay were apprehended on the battlefield in Afghanistan or other locations, as a consequence of their alleged actions there. Evidence against these potential defendants may include statements regarding their activities by persons also engaged in that conflict and subsequently captured. Sixth Amendment concerns may be raised if prosecutory authorities attempt to introduce statements made by other persons or detainees without presenting those declarants to personally testify in court. In these situations, the admissibility of the statements against the defendants would appear to turn on whether the character of the statements made is testimonial or not. 176 In light of the Supreme Court s rulings in the domestic law enforcement context, it seems reasonable to conclude that the statements of enemy combatant witnesses obtained during formal interrogation by law enforcement would be considered testimonial. Similarly, incriminating statements made to U.S. or foreign military personnel by enemy combatants on the battlefield might also be considered testimonial. Insofar as these statements are determined to be testimonial, the Sixth Amendment would not appear to permit their use against a defendant without an opportunity for the defendant to cross-examine the declarant. This constitutional requirement is not affected by less stringent rules regarding the admission, or even the definition, of hearsay that may be used in different forums. While the reach of the 171 Crawford v. Washington, 541 U.S. 36 (2004). This constitutional prohibition on certain types of hearsay only prohibits the admission of statements to be used against the defendant. For example, in the Moussaoui case, involving the prosecution of an individual for involvement in the 9/11 terrorist attacks, the Fourth Circuit applied Crawford and prohibited the government from using statements in the substitutions for testimony from certain witnesses to show the defendant s guilt. Moussaoui, 382 F.3d at Exculpatory statements in the deposition substitutions, which were clearly testimonial, would have been admissible. 172 United States v. Udeozor, 515 F.3d 260 (4 th Cir. 2008) (citing decisions by the First, Second, Third, Fourth, Seventh, and Tenth Circuits). 173 See Davis v. Washington, 547 U.S. 813, 821, 830 (2006). The Supreme Court also recently held that affidavits from forensic analysts are also testimonial. Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 557 U.S. (2009) (prosecution cannot prove that substance was cocaine using ex parte out-of-court affidavits). While this case dealt solely with narcotics, the Confrontation Clause would likely impose a similar requirement upon affidavits describing other types of chemical analysis, such as the identification of materials used for bombs or other explosive devices. 174 Id. at Id. at The statements in this case were made during a 911 call describing a contemporaneous physical assault. 176 The character of the questioning may be relevant but does not appear to be determinative. For example, open ended questioning may still give rise to testimonial statements that would require confrontation. Davis, 547 U.S. at n.1. Congressional Research Service 31

84 Closing the Guantanamo Detention Center: Legal Issues Confrontation Clause to noncitizens held at Guantanamo has not been definitively resolved, that clause would clearly apply to military commissions held within the United States. Therefore, although the FED. R. EVID., MIL. R. EVID., and MIL. COMM. R. EVID. may permit different amounts of hearsay initially, prosecutors in each forum would be subject to the requirements of the Confrontation Clause regarding testimonial hearsay against the defendant, at least with respect to proceedings occurring within the United States. Lastly, non-testimonial hearsay against the defendant, including statements which a reasonable person would not expect to be used at trial, are unaffected by the Crawford decision, and even testimonial hearsay may be admitted if the defense has had a prior opportunity to cross-examine the declarant. Right to a Speedy Trial In early 2008, the DOD announced that approximately 80 detainees being held at Guantanamo were expected to face trial before military commissions. 177 The Sixth Amendment guarantees a right to a speedy trial for the accused in all criminal prosecutions. 178 The protection is triggered when a criminal prosecution has begun. 179 The invocation of the right may occur prior to indictment or formal charge, when the actual restraints imposed by arrest and holding are made. 180 The right has been found to extend to civilian and military courts, 181 though the nature of the right s application to military courts may differ from its application in the civilian context. 182 Statutory requirements and forum rules may also impose speedy trial requirements on applicable proceedings. Detainees transferred to the United States may argue that they are constitutionally entitled to a speedy trial, 183 and that denial of this right compels a reviewing court to dismiss the charges against them Department of Defense, Charges Referred on Detainee al Bahlul, press release, February 26, 2008, available at Prior to the halting of military commission proceedings, 18 persons were facing charges before a military commission, and seven other detainees had charges brought against them that were subsequently dropped on account of evidentiary or other difficulties. Brookings Report, supra footnote 2, at U.S. Const. amend. VI. The right applies to prosecutions in both federal and state courts, as the Supreme Court has found the right to be one of the fundamental constitutional rights that the Fourteenth Amendment incorporated to the states. Klopfer v. North Carolina, 386 U.S. 213, 226 (1967). Justifications for the right to a speedy trial include not only a concern regarding lengthy incarceration but also societal interests in resolving crimes in a timely and effective manner. See Barker v. Wingo, Warden 407 U.S. 514, 519 (1972) ( there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the rights of the accused ). 179 United States v. Marion, 404 U.S. 307, 313 (1971). 180 Id. at See, e.g, United States v. Becker, 53 M.J. 229 (2000). 182 In his concurring opinion in the case of Reid v. Covert, in which the Supreme Court held that court-martial jurisdiction could not be constitutionally applied to civilian dependents of members of the armed forces overseas during peacetime, Justice Frankfurter wrote that: Trial by court-martial is constitutionally permissible only for persons who can, on a fair appraisal, be regarded as falling within the authority given to Congress under Article I to regulate the land and naval Forces, and who therefore are not protected by specific provisions of Article III and the Fifth and Sixth Amendments. It is of course true that, at least regarding the right to a grand jury indictment, the Fifth Amendment is not unmindful of the demands of military discipline. Within the scope of appropriate construction, the phrase except in cases arising in the land or naval Forces has been assumed also to modify the guaranties of speedy and public trial by jury. 354 U.S. 1, (1957) (Frankfurter, J., concurring). 183 The Sixth Amendment provides that In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial... The constitutional right to a speedy trial has been interpreted as generally applying to courts-martial (continued...) Congressional Research Service 32

85 Closing the Guantanamo Detention Center: Legal Issues A reviewing court s assessment of any speedy trial claim raised by a detainee is likely to balance any prejudice suffered by the accused with the public s interest in delaying prosecution. Courts have employed a multi-factor balancing test to assess whether a defendant s right to a speedy trial has been violated, taking into account the length of the delay, the reason for the delay, the defendant s assertion of the right, and the prejudice to the defendant. 185 Because the remedy for the government s violation of the speedy trial right dismissal is relatively severe, courts have often hesitated to find violations of the right. However, the Supreme Court has indicated that extremely long delays violate a person s Sixth Amendment right to a speedy trial even in the absence of affirmative proof of particularized prejudice. 186 It is possible that a court could find that some Guantanamo detainees have been prejudiced in any future prosecution by their long periods of detention, since a defendant confined to jail prior to trial is obviously disadvantaged by delay. 187 If so, a key question in cases involving Guantanamo detainees might be whether the prejudice suffered by detainees outweighs the public s interest in delaying prosecution. However, it is possible that a court would find that non-citizen detainees were not entitled to a speedy trial right prior to their transfer to the United States, 188 which may affect a reviewing court s consideration of any speedy trial claims. In addition to these constitutional requirements, statutes and forum rules may impose speedy trial requirements of their own. The Federal Speedy Trial Act of 1974 delineates specific speedy trial rules in the context of federal courts. 189 As a general rule, the Speedy Trial Act requires that the government bring an indictment against a person within 30 days of arrest, and that trial commences within 70 days of indictment. 190 However, the act provides several specific exceptions, under which the determination regarding speed of prosecution becomes nearly as much a balancing act as under the Supreme Court s interpretation of the constitutional right. (...continued) proceedings. 184 See Strunk, 412 U.S. at See Barker, 407 U.S. at 530. Courts have recognized at least three types of prejudice, including oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the [accused s] defense will be impaired by dimming memories and loss of exculpatory evidence. See Doggett v. United States, 505 U.S. 647, 654 (1992) (citing Barker, 407 U.S. at 532; Smith v. Hooey, 393 U.S. 374, (1969); United States v. Ewell, 383 U.S. 116, 120 (1966). 186 Doggett v. United States, 505 U.S. 647, 657 (1992) (holding that the government s egregious persistence in failing to prosecute the defendant for more than eight years after an initial indictment was clearly sufficient to constitute a violation of the defendant s speedy trial right, despite a lack of proof that the defendant was specifically harmed by the delay). 187 Barker, 407 U.S. at See Verdugo-Urquidez v. United States, 494 U.S. 259, at 268, (1990) (stating that not every constitutional provision applies to governmental activity even where the United States has sovereign power and that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with the country ), Balzac v. Porto Rico, 258 U.S. 298 (1922) (Sixth Amendment right to jury trial inapplicable to Puerto Rico, an unincorporated U.S. territory) U.S.C Congress passed the Speedy Trial Act shortly after the Supreme Court, in Baker v. Wingo, rejected a specific, judicially imposed time period. 407 U.S. at 523. The Baker court held that such a specific timeframe would invade the province of the legislature. Id. The Speedy Trial Act is just the primary statute implementing the constitutional right for defendants in federal courts. If detainees were located in another country s jurisdiction, then the government would have to comply with both the Speedy Trial Act and the Interstate Agreement on Detainers. See 18 U.S.C. Appendix 2, 2, Articles III-VI U.S.C. 3161(b),(c). Congressional Research Service 33

86 Closing the Guantanamo Detention Center: Legal Issues Potentially relevant exceptions to the prosecution of detainees permit a trial judge to grant a socalled ends of justice continuance if he or she determines that the continuance serves ends of justice that outweigh the interests of the public and defendant in a speedy trial, and also permit the granting of a continuance when the facts at issue are unusual or complex. 191 Presumably, many of the same factors that are important in considering constitutional issues relating to a right to a speedy trial are also relevant when interpreting the statutory requirements of the Speedy Trial Act. 192 In United States v. al-arian, the United States charged four men with having provided material support to terrorists, among other charges. 193 The primary evidence in the case included more than 250 taped telephone conversations, which the U.S. government had collected pursuant to the Foreign Intelligence Surveillance Act. 194 A federal district court granted co-defendants motion for a continuance in the case over the objection of one defendant, al-arian, who claimed that the continuance violated his constitutional right to a speedy trial. 195 The court determined that the ends of justice would be served by granting the continuance because factors such as the complexity of the case, the voluminous discovery involved, and the novel questions of fact and law outweighed the defendant s interest in a speedy trial. 196 In addition, the al-arian court found that the defendant had failed to prove that he would suffer any specific prejudice as a result of the continuance, because the period of the continuance would in any case be consumed with discovery proceedings. 197 There are no statutory or procedural rule requirements governing military commissions concerning enemy combatant s right to a speedy trial. While many UCMJ requirements apply to military commission proceedings, those relating to the right to a speedy trial do not. 198 Whatever rights owed to the accused in this context are only those provided by the Sixth Amendment. In contrast, statutory requirements and forum rules afford significant speedy trial rights to individuals subject to courts-martial. Article 10 of the UCMJ requires the government, when a person is placed in arrest or confinement prior to trial, to take immediate steps to inform of the accusations and to try the case or dismiss the charges and release. 199 The R.C.M. implements this requirement in Rule 707(a) with a requirement that an individual be brought to trial within 120 days of the preferral of charges or the imposition of restraint, whichever date is earliest. 200 Rule 707 provides for certain circumstances when time periods of delay are excluded from the 120 day U.S.C. 3161(h)(8)(A) U.S.C. 3161(h)(8)(B)(ii) F. Supp.2d 1258, 1264 (M.D. Fla. 2003). 194 Id. at Id. at Id. at Id. at 1264 n U.S.C. 948b(d) (other provisions of the UCMJ specifically excluded include those related to compulsory selfincrimination and the requirement for pretrial investigation) U.S.C R.C.M. 707(a) (Preferral occurs when an individual, with personal knowledge of or has investigated the matters set forth in the charges and specifications, signs the charges and specifications under oath asserting that they are true in fact to the best of that person s knowledge and belief. See R.C.M. 307). Congressional Research Service 34

87 Closing the Guantanamo Detention Center: Legal Issues requirement, as well as allows the military judge or the convening authority to exclude other periods of time. 201 On their face, the statutory and procedural rules concerning speedy trial rights in courts-martial proceedings may pose a significant obstacle for their usage in prosecuting persons held at Guantanamo. While enemy combatants may be tried by a general court-martial for war crimes under the UCMJ, 202 statutory and procedural rules governing a defendant s right to a speedy trial may be implicated. Arguably, the speedy trial requirement may have started to run when the enemy combatants were placed in confinement by the United States military. 203 And while it is possible to exclude time from the speedy trial requirement for those periods when the accused was in the custody of civilian authorities or foreign countries, 204 it may be difficult to argue that the speedy trial period did not start when the U.S. military commenced detention of the person at Guantanamo. The government is not precluded from preferring charges to a general court-martial in this scenario, but the defense has the right to object to the trial on the basis of the speedy trial requirement. 205 Prosecution of detainees before a general courts-martial may require modification of applicable statutes and forum rules relating to a defendant s right to a speedy trial. Finally, even if the government complied with time constraints imposed by applicable statutes and forum rules and did not violate detainees constitutional rights to a speedy trial under the Sixth Amendment, it is possible that a court could hold that the government violated a defendant s constitutional right to a fair trial under the Fifth Amendment Due Process Clause by caus[ing] substantial prejudice to [the detainee s] right to a fair trial, typically by intentionally stalling prosecution in a case. 206 Right to Confront Secret Evidence The Sixth Amendment requires that [i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him. 207 However, in the context of prosecuting persons seized in the war on terror, a public trial could risk disclosure of classified information. In these cases, the government is arguably placed in a difficult position, forced to choose between waiving prosecution and potentially causing damage to national security or foreign relations. This dilemma was one factor leading to the enactment of the Classified Information Procedures Act (CIPA), which formalized the procedures to be used by federal courts 201 R.C.M. 707(c) (allowing for the exclusion of time when appellate courts have issued stays in the proceedings, the accused is absent without authority, the accused is hospitalized due to incompetence, or is otherwise in custody of the Attorney General). 202 Id. at 201(f)(1)(B) U.S.C See United States v. Cummings, 21 M.J. 987, 988 (N.M.C.M.R. 1986) (after being notified that the accused is available for the immediate pickup from civilian custody, the Government has a reasonable time to arrange for transportation of the accused before the speedy trial period begins to run), United States v. Reed, 2 M.J. 64, 67 (C.M.A. 1976) (holding the military is not accountable for periods an accused is retained in civil confinement as a result of civil offenses irrespective of whether his initial confinement was by civil or military authority ), United States v. Stubbs, 3 M.J. 630, 636 (N.M.C.M.R. 1977) (confinement by the U.S. military pursuant to a Status of Forces Agreement, in order to ensure the presence of the accused at a judicial proceeding in a foreign jurisdiction, is not attributable to the Government). 205 R.C.M. 707(c)(2). 206 Marion, 404 U.S. at U.S. CONST. amend. VI (emphasis added). Congressional Research Service 35

88 Closing the Guantanamo Detention Center: Legal Issues when faced with the potential disclosure of classified information during criminal litigation. 208 Courts-martial and military commissions also have procedures concerning a defendant s right to confront secret evidence. 209 Prosecutions implicating classified information can be factually varied, but an important distinction that may be made among them is from whom information is being kept. In some situations, the defendant seeks to introduce classified information he already has as part of his defense, and the interests of national security require sequestration of that information from the general public. 210 However, in the case of terrorism prosecutions, the more typical situation is likely to be the introduction of classified information as part of the prosecution s case against the defendant. In these cases, preventing disclosure to the defendant, as well as to the public, may be required. To that end, both CIPA and the Federal Rules of Criminal Procedure (FED. R. CRIM. P.) authorize federal courts to issue protective orders preventing disclosure of classified information to various parties, including the defendant, in cases where nondisclosure would not unduly prejudice the rights of the accused. 211 Legal issues related to withholding classified information from a defendant are likely to arise during two distinct phases of criminal litigation. First, issues may arise during the discovery phase when the defendant requests and is entitled to classified information in the possession of the prosecution. Secondly, issues may arise during the trial phase, when classified information is sought to be presented to the trier-of-fact as evidence of the defendant s guilt. The issues implicated during both of these phases are discussed below. Withholding Classified Information During Discovery The mechanics of discovery in federal criminal litigation are governed primarily by the FED. R. CRIM. P. These rules provide the means by which defendants may request information and evidence in the possession of the prosecution, in many cases prior to trial. There are two important classes of information that the prosecution must provide, if requested by the defendant: specifically Brady material and Jencks material. Brady material, named after the seminal Supreme Court case Brady v. Maryland, 212 refers to information in the prosecution s possession which is exculpatory, or tends to prove the innocence of the defendant. For example, statements by witnesses that contradict or are inconsistent with the prosecution s theory of the case must be provided to the defense, even if the prosecution does not intend to call those witnesses. Prosecutors are considered to have possession of information that is in the control of agencies that are closely aligned with the prosecution, 213 but, whether 208 P.L , codified at 18 U.S.C. app MIL. R. EVID. 505, MIL. COMM. R. EVID This situation has traditionally been called graymail to suggest that the defendant may be seeking to introduce classified information to force the prosecution to dismiss the charges. See S. REP. NO at U.S.C. app. 3 3; FED. R. CRIM. P. 16(d)(1). 212 Brady v. Maryland, 373 U.S. 83 (1963) (holding that due process requires prosecution to turn over exculpatory evidence in its possession). 213 United States v. Brooks, 966 F.2d 1500, 1503 (1992). Congressional Research Service 36

89 Closing the Guantanamo Detention Center: Legal Issues information held exclusively by elements of the intelligence community could fall within this category does not appear to have been addressed. 214 Jencks material refers to written statements made by a prosecution witness that has testified or may testify. For example, this would include a report made by a witness called against the defendant. In the Supreme Court s opinion in Jencks v. United States, 215 the Court noted the high impeachment value a witness prior statements can have, both to show inconsistency or incompleteness of the in court testimony. Subsequently, this requirement was codified by the Jencks Act. 216 The operation of Jencks and Brady may differ significantly in the context of classified information. Under 4 of CIPA, which deals with disclosure of discoverable classified information, the prosecution may request to submit either a redacted version or a substitute of the classified information in order to prevent harm to national security. 217 While the court may reject the redacted version or substitute as an insufficient proxy for the original, this decision is made ex parte without defense counsels input or knowledge. Classified information that is also Jencks or Brady material is still subject to CIPA. 218 In some cases, the issue may not be the disclosure of a document or statement, but whether to grant the defendant pre-trial access to government witnesses. In United States v. Moussaoui, one issue was the ability of the defendant to depose enemy combatant witnesses that were, at the time the deposition was ordered, considered intelligence assets by the United States. 219 Under the FED. R. CRIM. P., a defendant may request a deposition in order to preserve testimony at trial. 220 In Moussaoui, the court had determined that a deposition of the witnesses by the defendant was warranted because the witnesses had information that could have been exculpatory or could have disqualified the defendant for the death penalty. 221 However, the government refused to produce the deponents citing national security concerns. 222 In light of this refusal, the Fourth Circuit, noting the conflict between the government s duty to comply with the court s discovery orders and the need to protect national security, considered 214 But see United States v.libby, 429 F. Supp. 2d 1 (D.D.C. March 10, 2006) (holding that, on the facts of this case, the CIA was closely aligned with special prosecutor for purposes of Brady). 215 Jencks v. U.S., 353 U.S. 657 (1957) (holding that, in a criminal prosecution, the government may not withhold documents relied upon by government witnesses, even where disclosure of those documents might damage national security interests). 216 Codified at 18 U.S.C The Jencks Act provides definitions for so-called Jencks material and requires disclosure of such material to the defense, but only after the witness has testified U.S.C. app. 3, See United States v. O Hara, 301 F.3d 563, 569 (7 th Cir. 2002) (holding that in camera examination and redaction of purported Brady material by trial court was proper). 219 United States v. Moussaoui, 382 F.3d 453 (4 th Cir. 2004). Moussaoui was prosecuted for his involvement in the conspiracy to commit the terrorist attacks of September 11, While the U.S. Court of Appeals for the Fourth Circuit held that CIPA did not apply to question of whether Moussaoui and his standby counsel would be allowed to depose to enemy combatant witnesses, United States v. Moussaoui, 333 F.3d 509, (4 th Cir. 2003), both the district court and the Fourth Circuit looked to CIPA for guidance when considering the question, see Moussaoui, supra, 382 F.3d at 471 n. 20 and accompanying text 220 FED. R. CRIM. P. 15(a). The court should permit the deposition if there are exceptional circumstances and it is in the interest of justice. 221 Moussaoui, 382 F.3d at 458, Id. at 459. Congressional Research Service 37

90 Closing the Guantanamo Detention Center: Legal Issues whether the defendant could be provided with an adequate substitute for the depositions. The court also noted that substitutes would necessarily be different from depositions, and that these differences should not automatically render the substitutes inadequate. 223 Instead, the appropriate standard was whether the substitutes put the defendant in substantially the same position he would have been absent the government s national security concerns. 224 Here, the Fourth Circuit seemed to indicate that government-produced summaries of the witnesses statements, with some procedural modifications, could be adequate substitutes for depositions. 225 Within the courts-martial framework, the use of and potential disclosure of classified information is addressed in MIL. R. EVID The Rule applies at all stages of proceedings, including during discovery. 226 Under the Rule, the convening authority may (1) delete specified items of classified information from documents made available to the accused; (2) substitute a portion or summary of the information; (3) substitute a statement admitting relevant facts that the classified materials would tend to prove; (4) provide the document subject to conditions that will guard against the compromise of the information disclosed to the accused; or (5) withhold disclosure if actions under (1) through (4) cannot be taken without causing identifiable damage to the national security. 227 Prior to arraignment, any party may move for a pretrial session to consider matters related to classified information that may arise in connection with the trial. 228 The military judge is required, upon request of either party or sua sponte, to hold a pretrial session in order to address issues related to classified information, as well as any other matters that may promote a fair and expeditious trial. 229 Disclosure of classified information during a military commission is governed by the MIL. COMM. R. EVID. 505, which implements restrictions on the release of information to protect the national security found in the MCA. 230 Much like in courts-martial, any party may move for a pretrial session to consider matters related to classified information that may arise during the military commission proceeding. 231 However, in a departure from the rules governing courtsmartial, the convening authority is replaced by the military judge with respect to the modification or substitution of classified information. The military judge, upon motion of the government, has the authority to modify and/or substitute classified evidence during discovery, and ultimately may dismiss the charges or specifications with or without prejudice if he feels that the fairness of the proceeding will be compromised. 232 Additionally, when classified information is provided to the defense, modified or not, the military judge may issue a protective order to guard against the compromise of the information Id. at Id. 225 Id. at The precise form of the deposition substitutes is unclear as significant portions of the Fourth Circuit s opinion dealing with the substitute were redacted. 226 MIL. R. EVID. 505(d). 227 Id. 228 MIL. R. EVID. 505(e). 229 Id. 230 See 10 U.S.C. 949d(f), 949j(c). 231 MIL. COMM. R. EVID. 505(d). 232 MIL. COMM. R. EVID. 505(e)(3), (4). 233 MIL. COMM. R. EVID. 505(e)(1). Congressional Research Service 38

91 Closing the Guantanamo Detention Center: Legal Issues The Use of Secret Evidence At Trial The use of secret evidence at trial also implicates constitutional concerns. As described above, there may be instances where disclosure of classified information to the defendant would be damaging to the national security. In these instances, the prosecution may seek to present evidence at trial in a manner that does not result in disclosure to the defendant. One proposed scenario might be the physical exclusion of the defendant from those portions of the trial, while allowing the defendant s counsel to remain present. 234 However, such proceedings could be viewed as unconstitutionally infringing upon the defendant s Sixth Amendment right to confrontation. 235 Historically, defendants have had the right to be present during the presentation of evidence against them, and to participate in their defense. 236 But other courts have approved of procedures which do not go so far as to require the defendant s physical presence. In United States v. Abu Ali, the Fourth Circuit permitted video conferences to allow the defendant to observe, and be observed by, witnesses that were being deposed in Riyadh, Saudi Arabia. 237 The Fourth Circuit stated that these procedures satisfied the Confrontation Clause if the denial of face-to-face confrontation [was] necessary to further an important public policy, and sufficient procedural protections were in place to assure the reliability of the testimony. 238 Here, the Fourth Circuit cited the protection of national security as satisfying the important public policy requirement. The cited procedural safeguards were the presence of mutual observation, the fact that testimony was given under oath in the Saudi criminal justice system, and the ability of defense counsel to cross examine the witnesses. 239 Arguments alleging that protective orders violate the Confrontation Clause because they do not allow the participation of the defendant may also be undercut in the classified information context because, in some cases, the excluded defendant is not believed to have knowledge of the information being presented. 240 Therefore, his ability to provide his counsel with rebuttal information for cross examination purposes may be reduced. CIPA does not have any provisions which authorize the exclusion of defendants from any portion of trial, based upon national security considerations. But as noted earlier, CIPA 3 authorizes the court to issue protective orders preventing disclosure of classified information to the defendant by defense counsel. 234 See Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 168 (D.D.C. 2004) (describing potential procedures under military commissions established by Presidential order). 235 See Hamdan v. Rumsfeld, 548 U.S. 557, 634 (2006) (Stevens, J., plurality opinion) (stating that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him ). 236 See, e.g., id; Crawford, 541 U.S. at 49, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ( It is a rule of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine ) (internal citations omitted). 237 United States v. Abu Ali, 528 F.3d 210, (4 th Cir. 2008)(quoting Maryland v. Craig, 497 U.S. 836, 850 (1990)). In this case the defendant, while located in the Federal courthouse in Alexandria, Va., was able to communicate with his counsel in Riyadh via telephone during breaks in the deposition or upon the request of defense counsel. 238 Id. at (citing Maryland v. Craig, 497 U.S. 836 (1990), in which one-way video testimony procedures were used in a prosecution for alleged child abuse). 239 Id. See, also, United States v. Bell, 464 F.2d 667 (2 nd Cir. 1972) (holding that exclusion of the public and the defendant from proceedings in which testimony regarding a hijacker profile was presented was consistent with the Confrontation Clause). 240 Arguably, if the defendant is already aware of the information, the need to prevent disclosure to him is lessened. Congressional Research Service 39

92 Closing the Guantanamo Detention Center: Legal Issues Under CIPA, the admissibility of classified information at trial is determined at a pretrial hearing. As with the case in discovery, the government may seek to replace classified information with redacted versions or substitutions. However, in this context, the adequacy of a substitute or redacted version is determined in an adversarial proceeding in which both prosecutors and defense counsel have full access to the substitute and may argue whether it provides the defendant with substantially the same ability to make his defense as the underlying classified information would provide. 241 In the courts-martial context, MIL. R. EVID. 505 governs the use of classified information during trial. When classified material is relevant and necessary to an element of the offense or a legally cognizable defense, the convening authority may obtain the information for use by the military judge in determining how to proceed with the trial, or may dismiss the charges against the accused rather than disclose the information in the interest of protecting the national security. 242 If the classified information is provided to the judge, an in camera proceeding may be ordered allowing for an adversarial proceeding on the admissibility of the potential evidence. 243 Additionally, the military judge has the authority to order a protective order to prevent the disclosure of classified evidence that has been disclosed by the government to the accused. 244 In a case where classified information has not been provided to the military judge, and proceeding with the case without the information would materially prejudice a substantial right of the accused, the military judge shall dismiss the charges or specifications or both to which the classified information relates. 245 In another departure from the rules governing courts-martial, the military judge in a military commission shall permit, upon motion of the government, the introduction of otherwise admissible evidence while protecting from disclosure the sources, methods, or activities by which the United States obtained the evidence. 246 An in camera presentation of classified information is also available as part of the military commission proceeding, however, the detainee may be excluded from the presentation in order to maintain the classified nature of the material and thereby protect the national security. 247 In this scenario, the detainee will not have access to the information, but his defense counsel will be able to argue the release of the information on behalf of the detainee. 248 The MCA does not explicitly provide an opportunity for the accused to contest the admissibility of substitute evidence proffered under these procedures. It does not appear to permit the accused or his counsel to examine the evidence or a proffered substitute prior to its presentation to the military commission. If constitutional standards required by the Sixth Amendment are applicable to military commissions, the MCA may be open to challenge for affording the accused an insufficient opportunity to contest evidence. An issue may arise as to whether, where the military judge is permitted to assess the reliability of evidence based on ex parte communication with the U.S.C. app. 3 6(c)(2). For a discussion of the substantially the same standard, see United States v. Collins, 603 F. Supp. 301, 304 (S.D. Fla. 1985). 242 MIL. R. EVID. 505(f). 243 MIL. R. EVID. 505(I). 244 MIL. R. EVID. 505(G). 245 MIL. R. EVID. 5050(F). 246 MIL. COMM. R. EVID. 505(E)(6). 247 MIL. COMM. R. EVID. 505(h)(3). 248 Id. Congressional Research Service 40

93 Closing the Guantanamo Detention Center: Legal Issues prosecution, adversarial testing of the reliability of evidence before the panel members meets constitutional requirements. If the military judge s determination as to the reliability of ex parte evidence is conclusive, precluding entirely the opportunity of the accused to contest its reliability, the use of such evidence may serve as grounds to challenge the verdict. 249 On the other hand, if evidence resulting from classified intelligence sources and methods contains particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything, to [its] reliability, it may be admissible and survive challenge. 250 Conclusion Since its inception, the policy of detaining suspected belligerents at Guantanamo has been the subject of controversy. In particular, there has been significant international and domestic criticism of the treatment of detainees held there, as well as detainees limited access to federal courts to challenge aspects of their detention. Defenders of the policy argue that Guantanamo offers a safe and secure location away from the battlefield where suspected belligerents can be detained, and prosecuted for war crimes when appropriate. They contend that enemy belligerents should not receive the same access to federal courts as civilians within the United States. The closure of the Guantanamo detention facility may raise complex legal issues, particularly if detainees are transferred to the United States. The nature and scope of constitutional protections owed to detainees within the United States may be different from the protections owed to those held elsewhere. The transfer of detainees into the country may also have immigration consequences. Criminal charges could also be brought against detainees in one of several forums i.e., federal civilian courts, the courts-martial system, or military commissions. The procedural protections afforded to the accused in each of these forums may differ, along with the types of offenses for which persons may be charged. This may affect the ability of U.S. authorities to pursue criminal charges against some detainees. Whether the military commissions established to try detainees for war crimes fulfill constitutional requirements concerning a defendant s right to a fair trial is likely to become a matter of debate, if not litigation. Legislative proposals have been introduced in the 111 th Congress which address some of these issues. The ultimate effect of any measure will be shaped by constitutional constraints. The issues raised by the closure of the Guantanamo detention facility have broad implications. Executive policies, legislative enactments, and judicial rulings concerning the rights and privileges owed to enemy belligerents may have long-term consequences for U.S. detention policy, both in the conflict with Al Qaeda and the Taliban and in future armed conflicts. 249 Cf. Crane v. Kentucky, 476 U.S. 683 (1986)(evidence concerning the manner in which a confession was obtained should have been admitted as relevant to its reliability and credibility, despite court s determination that the confession was voluntary and need not be suppressed). 250 Cf. Ohio v. Roberts, 448 U.S. 56, 66 (1980)(admissibility of hearsay evidence), but cf. Crawford v. Washington, 541 U.S. 36 (2004)( Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation... [The Confrontation Clause] commands... that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. ). Congressional Research Service 41

94 Closing the Guantanamo Detention Center: Legal Issues Author Contact Information Michael John Garcia Legislative Attorney Elizabeth B. Bazan Legislative Attorney R. Chuck Mason Legislative Attorney Edward C. Liu Legislative Attorney Anna C. Henning Legislative Attorney Congressional Research Service 42

95

96 [N]ever in the history of the United States had lawyers had such extraordinary influence over war policy as they did after 9/11. 1 The role of the judge advocate is to provide commanders with the best and most complete legal inputs possible, free from both self-promotion (careerism) and the fear of the reaction of command to advice that may at times be unpopular, restrictive, or, in extreme cases, prohibitive. 2 Detainees relax in exercise yard in communal living facility, Guantanamo Bay Detention Facility U.S. Army The Detainee Interrogation Debate and the Legal-Policy Process By Lisa L. Turner Near the start of Donald Rumsfeld s service as Secretary of Defense in the first term of President George W. Bush, he asked why there were so many lawyers in the Pentagon. He apparently believed the number of military and civilian lawyers could be streamlined or consolidated. Meanwhile, national security practitioners expressed increasing concern about lawfare the strategy of using or misusing law and legal processes as a substitute for traditional instruments of power to achieve either strategic or operational effects. Detainee treatment was a principal area of disagreement between the most senior administration civilian lawyers and The Judge Advocates General (TJAGs), the most senior military lawyers in each Service. Despite Secretary Rumsfeld s remarks, Department of Defense (DOD) lawyers increased in number during his tenure, the administration suffered repeated strategic legal attacks related to detainee treatment, and Congress legislated independence of military lawyers (judge advocates, or JAGs) from civilian DOD attorneys. Recently, the Convening Authority for the Military Commissions declined to prosecute at least one detainee, finding that the application of some of the Secretary of Defense authorized techniques was torture. 3 Detainee interrogation policy provides a case study into deviations from the national security legal-policymaking process. After identifying key administration lawyers and TJAG roles in legal-policy formation, this article explores legal ethical requirements to serve as advisor during policy development. It briefly examines civil-military relations issues relevant to the legal-policy process and concludes with discussion of legal-policy formation abnormalities during the detainee interrogation debate. The case study can inform process decisions during future national security debates. Legal Structure and Process Many newcomers to DOD are surprised to find what appear competing and overlapping Pentagon legal establishments. Most soon understand that TJAGs, Military Department General Counsel (GC), and DOD General Counsel (DOD/GC) generally serve complementary and necessary roles. Each has an important function in the legalpolicy process. The Army TJAG position was created on July 29, Most GC positions and the DOD/GC position were statutorily created after World War II. DOD does not have a TJAG. A legal team has served the Chairman of the Joint Chiefs of Staff (CJCS) since General Omar Bradley appointed a lawyer to his staff in Colonel Lisa L. Turner, USAF, is a Judge Advocate and graduate of the National War College (NWC). The original version of this article won the 2008 NWC Commandant s Award. 40 JFQ / issue 54, 3 d quarter 2009 ndupress.ndu.edu

97 TURNER The Office of the Chairman of the Joint Chiefs of Staff Legal Counsel (OCJCS/LC) is a JAG. CJCS does not have a GC. DOD/GC is statutorily the DOD chief legal officer (CLO). Department regulation assigns primacy to the DOD/GC opinions when there is a conflict with another DOD attorney. Statute does not define chief legal officer, but congressional actions since 1992 clarify that the designation does not include executive authority over or supervisory control of TJAGs, Judge Advocate General s Corps (JAG Corps), or OCJCS/LC. DOD/GC does not exercise control over the JAGs in terms of civilian control of the military. GCs and TJAGs assist DOD and Military Department civilian leadership exercise control of the military. Together, they support the constitutional framework that assigns responsibilities to both the President and Congress. GCs are political appointees with significant political experience and connections but no military experience requirement. William J. Haynes II, the DOD/GC during the detainee debates, was an honors clerk captain on the Army GC staff ( ), then the Army GC ( ). He returned to the Pentagon in 2001 as DOD/GC. Haynes had a longstanding, close relationship with David Addington, a former DOD/GC, counsel to Vice President Richard Cheney and later his chief of staff. Addington and Haynes worked for then Secretary of Defense Cheney. By contrast, the Air Force GC, Mary Walker, was new to the Pentagon but apparently had political connections to the administration. TJAGs are general and flag officers who have served for decades in uniform as judge advocates at many levels of command. Most have Master of Laws degrees or have attended in-residence senior professional military education long programs. When identifying the roles of key national security lawyers, a former National Security Council attorney explained: The judge advocates general of the military services, for example, are central players in the development of military law and legal-policy as well as the application of the law of armed conflict. 4 TJAGs involved in the detainee discussions spent their early careers working to mitigate the harm done to the Armed Forces as a result of Vietnam-era perceived law of war violations. 5 They helped rebuild military credibility, morale, and professionalism. As Servicemembers, they are subject to and protected by military justice rules and the Geneva Conventions. Congress has long recognized the need of commanders and policymakers to receive both civilian GC and independent military legal advice. While reorganizing and streamlining DOD in 1986, Congress expressly considered but rejected combining the GCs and JAG Corps. 6 In the early 1990s, while Cheney was Secretary of Defense and Haynes the Army GC, and during Addington s nomination process to be DOD/GC, Congress halted executive branch consolidation of legal services under GCs. 7 During the detainee debate, the executive branch again attempted to subordinate TJAGs to Military Department GCs and to transfer JAG Corps manpower to GC offices. As a direct result, Congress enacted statutory changes to prevent any officer or employee of the Department of Defense [from interfering] with the ability of the Judge Advocate General to give independent legal advice to their respective Service secretary or chief of staff; or the ability of officers of the [Service] who are designated as judge advocates who are assigned or attached to, or performing duty with, military units to give independent legal advice to commanders. 8 Similarly, Chairmen of the Joint Chiefs of Staff have resisted recent attempts to bring OCJCS/LC under the control and direction of DOD/GC or to exclude OCJCS/LC from key meetings. 9 Congress emphasized the value of independent military legal advice for CJCS through recent legislation. 10 The Judge Advocates General are general and flag officers who have served for decades in uniform as judge advocates at many levels of command Even when tensions exist between a GC and TJAG, staffs productively cooperate and have strong relationships. Many GC staff were or are JAGs (for example, retired and/or Reserve Component). Significant issues are staffed up to TJAGs and GCs who advise decisionmakers. Occasionally, Service legal reviews are forwarded to DOD/GC for guidance. Operational issues typically come up from combatant command legal offices to OCJCS/LC, which often works the issues with DOD/GC. For some legal issues, combatant command JAGs coordinate directly with DOD/GC. OCJCS/LC coordinates many issues with the Services. Typically, GCs and TJAGs agree on legalpolicy issues. Disagreements usually reflect the different perspectives the lawyers bring with their roles rather than differences in legal opinions. Traditionally, the legal-policymaking process brings out these complementary perspectives. Most policymakers want to know about GC/TJAG differences to inform decisionmaking. 11 Some have questioned the TJAG role in the detainee interrogation debate, given that the operational chain raised the issue (combatant command to CJCS). The answer partially lies in unique TJAG statutory responsibilities. TJAGs are statutorily charged with overseeing appointment of a lawyer as a judge advocate and with direct[ing] the officers of [their Service] designated as judge advocates in the performance of their duties. 12 Additionally, the staff judge advocate or legal officer of any command is entitled to communicate directly with the staff judge advocate or legal officer of a superior or subordinate command, or with the Judge Advocate General. 13 While most judge advocates serve in a commander s chain, TJAGs exercise professional legal supervision over all in their respective JAG Corps. TJAGs also have unique statutory operational and military justice roles. They are the primary legal advisor to their Service chiefs in the latter s roles as Joint Chiefs. They supervise the administration of military justice and have statutory responsibilities related to military commissions. 14 Activities that could result in prosecution of military interrogators and plans to try detainees in military commissions are squarely in the TJAG purview. OCJCS/LC also consults with TJAGs in their Service capacity. TJAG Service equities on detainee issues are significant. For example, they perform legal reviews on regulations such as then-governing Army Field Manual (FM) 34 52, Intelligence Interrogation. They oversee training of Servicemembers and others on a range of directly relevant issues. On behalf of the Attorney General, the Office of Legal Counsel (OLC) issues legal advice on which the President and heads of executive departments rely in forming, executing, and supporting policy decisions. 15 The OLC was heavily involved in detainee interrogation issues. Many former OLC lawyers are among the most well known in the United States. Few, if any, have military experience. DOD/GC, as a matter of practice, requests legal opinions from the OLC on a range of matters. Federal regulation assigns the OLC the ndupress.ndu.edu issue 54, 3 d quarter 2009 / JFQ 41

98 SPECIAL FEATURE Detainee Interrogation Debate responsibility of advising with respect to the legal aspects of treaties and other international agreements. 16 History and regulation ascribe OLC opinions the weight of binding legal authority over the executive branch unless overruled by the courts, Attorney General, or the President. Legal Roles and Responsibilities Lawyers have a variety of professional ethical roles and responsibilities. Although not uniformly described, they generally fall within the following categories: advisor, advocate, negotiator, intermediary, and evaluator. Lawyers can craft plausible legal-policy arguments to support most desired endstates. Proper context is the key to the advocate role. This valuable skill is appropriate after a policy decision has been made and the lawyer is using his legal skills to support that decision. Better policy is developed when a lawyer serves as a balanced advisor. Commanders and policymakers generally expect their lawyers to answer four questions on any proposed action: Is it legal? Is it advisable? If it is not legal or if it is ill advised, what are the alternatives? What is the recommended course of action? The legal advisor should discern the desired endstate, provide right and left boundaries established by law, and ensure he does not present his opinion on policy as legal fact. Instead, his goal is to enable the decisionmaker to consider the strengths, weaknesses, and legal consequences of a proposed course of action in order to make a well-reasoned and deliberative decision. Similarly, when an operations planner is supporting a commander s mission statement, the planner provides the commander with various proposed courses of action, identifies pros and cons of each, and recommends a way ahead. Codes of professional conduct establish legal professional ethics standards. TJAGs issue JAG Corps rules. 17 Failure to comply with Service credentialing and ethics rules may result in disciplinary or administrative action, to include court-martial. Ethics rules require lawyers to provide their client with candid advice based on their independent professional judgment. 18 The Services teach that candid means not holding back. It means being frank ; free from prejudice or bias; fair; impartial; free from guile; straightforward; very honest. It means judge advocates are not to be Yes Men and Women. 19 In 2001, a JAG later involved in the detainee debates as TJAG wrote: The [judge advocate] must effectively explain the rules, provide the right advice always, and preclude problems by telling commanders what they need to know even when it s difficult. 20 Civilian commentators concur that lawyers are obligated to provide the client with straightforward advice, regardless of how unpleasant that advice may be. 21 Leaders expect judge advocates to discuss nonlegal factors along with technical legal advice. 22 Narrowly focused legal advice may be of little value to a client, particularly the Office of Legal Counsel was heavily involved in detainee interrogation issues to senior leaders who have policy, political, and other practical considerations to weigh when making decisions. 23 Ethics rules instruct lawyers to refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client s situation. 24 They are to discuss the legal and moral consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. 25 They are also to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 26 Some jurisdictions mandate this broadscope advice. 27 Judge advocates have a longstanding reputation for candor. Senior leaders describe most judge advocates, in their advisory role, as the red light on the commander s desk, the honest broker willing to speak the truth to power, and the conscience of the Service. 28 Most GCs recognize the importance of the JAG candid advisor role. The Honorable Jeh Johnson, a former Secretary of the Air Force GC and the new DOD/GC, recently reminded judge advocates, You must live by one simple rule: you wear the uniform of a JAG to help policymakers and commanders shape the policy to fit the law, not to shape the law to fit the policy. 29 OLC lawyers also have a long tradition of serving as forthright advisors. The Attorney General statute uses the word advise in describing his role in relation to other executive branches. The advisory role is also in statute with respect to the OLC role on international legal issues. OLC opinions are sometimes called quasi-judicial because they set forth the final executive position on a matter of law when the courts have not spoken to the issue. Balanced opinions are critical because these opinions are seldom reviewed by the courts. Advocacy is seldom appropriate for an OLC opinion. 30 Lawyers are also guided by their oath to the Constitution. Civilian control of the military is a key constitutional principle. As discussed, TJAGs are not under the control of GC or OLC. Another constitutional issue is the tension among the three branches of government. Most policymakers understand that officers have as much of a duty to the legislative branch as well as to the executive branch. 31 Samuel Huntington explained, If Congress was to play its part in determining national military policy, it required the same independent professional advice which the President received. 32 Reaffirming this obligation, prior to confirmation, Congress requires TJAGs and three- and four-star nominees to take an oath swearing to provide Congress their personal opinions on military matters when asked, even those opposing administration policy. A third civil-military relations issue in the detainee debate is the degree to which civilians seek out military advice prior to making policy decisions. Some argue that civilians must consider military advice even though they do not have to adopt uniformed recommendations. The Constitution does not impose such a duty, but common sense and a long tradition of respect for the profession of arms usually lead civilian leaders to consult. The post-vietnam military is sensitive to the duty to candidly advise civilian leaders. Similarly, policymakers may normally use their JAGs as often or as seldom as deemed appropriate. Some statutes or executive orders mandate TJAG review, but the detainee matters were not in that class of issues. Most policymakers value and desire judge advocate advice and build legal reviews into all manner of issue development. Detainee Interrogation Debate 33 Beginning in late 2001, a small group of the most senior administration lawyers became extraordinarily influential on national security matters. The self-described War Council included then White House Counsel Judge Alberto Gonzales, Addington, Haynes, and 42 JFQ / issue 54, 3 d quarter 2009 ndupress.ndu.edu

99 TURNER John Yoo, then-olc counsel. The group met privately every few weeks to: plot legal strategy in the war on terrorism, sometimes as a prelude to dealing with lawyers from the State Department, the National Security Council, and the Joint Chiefs of Staff who would ordinarily be involved in war-related interagency legal decisions, and sometimes to the exclusion of the interagency process altogether. 34 U.S. Air Force (Jim Varhegyi) It is worth noting that Addington once stated, Don t bring the TJAGs into the process. They aren t reliable. 35 This group crafted the administration legal-policy positions on war and intelligence issues, among others. They dominated many national security discussions and were intimately involved in detainee issues. In mid-september 2001, the first of many OLC memoranda was drafted to maximize the President s legal authority and to minimize constraints on his freedom of action. Operation Enduring Freedom began in October. In December, Mohamed al-kahtani, the 20 th hijacker, was detained. That month, the DOD/ GC staff requested information on interrogations from the DOD agency that trains U.S. military personnel in survival, evasion, resistance, and escape (SERE) to resist interrogation techniques, including those illegal under the Geneva Conventions. A Senate inquiry later found this request unusual and unprecedented. 36 On December 28, OLC sent a memo to Haynes opining that there would be no U.S. habeas corpus jurisdiction for Guantanamo detainees. The first detainees, including al- Kahtani, arrived at Guantanamo on January 11, On January 15, Haynes, Addington, Judge Gonzalez, Yoo, and others visited Guantanamo, toured the facility, and discussed detainee issues. A week earlier the U.S. Southern Command (USSOUTHCOM) staff judge advocate (SJA), with approval from the USSOUTHCOM commander but without coordination with Washington, DC, lawyers, invited the International Committee of the Red Cross (ICRC) to Guantanamo. Once they discovered the invitation, War Council lawyers expressed serious displeasure with it. ICRC representatives arrived at Guantanamo on January 17 to conduct activities. Also that month, War Council members debated the applicability of the Geneva Conventions to Guantanamo detainees with lawyers and decisionmakers from the State Department, National Security Council, and JCS. 37 On February 7, the President determined that Enduring Freedom detainees were not entitled to Geneva Convention protections, but to a lesser, undefined standard of humane treatment. 38 In February 2002, Major General (MG) Michael Dunlavey, USA, was selected to command Task Force 170 at Guantanamo. 39 Secretary Rumsfeld instructed him to maximize the intelligence production. MG Dunlavey was told to report directly to the Secretary. When the issue of reporting up through the USSOUTHCOM chain was raised, Secretary Rumsfeld responded, I don t care who he is under. He works for me. 40 MG Dunlavey thereafter had regular, direct contact with the Office of the Secretary of Defense (OSD). MG Dunlavey arrived at Guantanamo in March By summer, al-kahtani was recognized as a possible key information source. MG Dunlavey met with the Secretary and, separately, DOD/GC every month or two. Discussions between GC and the commander often focused on concern that the interrogations were not as effective as desired and that another approach was needed. 41 On July 25, the DOD/GC office received SERE documents on exploitation techniques including waterboarding, stress positions, and sensory deprivations as requested by Haynes. The National Security Council discussed interrogation techniques, to include those used in SERE training. On August 1, the now-famous OLC torture memo was signed. It asserted that to constitute senior leaders describe most judge advocates, in their advisory role, as the red light on the commander s desk, the honest broker willing to speak the truth to power Air Force General Counsel Mary L. Walker speaks during Pentagon press briefing a violation of the Federal law, detainee interrogations conducted outside of the United States would have to rise to the level of inflicting pain associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions. 42 The opinion built on prior OLC opinions and the Presidential Geneva Conventions finding. That same day, OLC issued a more specific opinion approving Central Intelligence Agency (CIA) use of interrogation techniques, including some adapted from SERE training. The legal door for use of interrogation techniques far beyond any previously authorized for use by the U.S. military was now open. In isolation, al-kahtani continued to resist standard techniques. On September 26, 2002, Haynes, Addington, two OLC lawyers, the number two CIA ndupress.ndu.edu issue 54, 3 d quarter 2009 / JFQ 43

100 SPECIAL FEATURE Detainee Interrogation Debate lawyer, and other Pentagon civilian lawyers flew to Guantanamo. They toured the detention facility, watched an interrogation, discussed potential new interrogation techniques, and met with MG Dunlavey and his lawyer, Lieutenant Colonel Diane Beaver, USA. On October 2, the chief lawyer for the CIA Counterterrorist Center went to Guantanamo and discussed aggressive interrogation techniques with the staff, to include LTC Beaver. During late September and early October, MG Dunlavey s staff, with CIA and Defense Intelligence Agency operators, brainstormed nonstandard interrogation techniques they might apply. Under significant pressure to support the techniques, LTC Beaver and her team drafted a legal review. When her staff raised moral and policy concerns, she told them to address only domestic law. The JAGs did not have the OLC memos, but simply conducted their own legal research. In line with standard processes, LTC Beaver and her staff reasonably believed theirs was the first of what would be a long line of legal reviews. On October 11, MG Dunlavey sent a memo and LTC Beaver s legal review to the USSOUTHCOM commander requesting approval to use new interrogation techniques. While the USSOUTHCOM legal review was pending, Haynes called the command s operational staff to advise that the request be approved and implemented as submitted. The officer declined to follow Haynes instructions. The USSOUTHCOM SJA had several discussions with LTC Beaver in which the command expressed grave concerns with the joint task force (JTF) request. USSOUTH- COM and JCS lawyers then discussed serious concerns about the request. The USSOUTH- COM commander routed the request to General Richard Myers, USAF, then-cjcs, recommending that the Department of Justice lawyers review the [four most controversial proposed] techniques. JAGs were still not aware of the OLC memos. On November 4, MG Geoffrey Miller assumed command from MG Dunlavey. the President determined that Enduring Freedom detainees were not entitled to Geneva Convention protections OCJCS/LC, then-captain Jane Dalton, USN, initiated a legal and policy review that she believed the nature of the issues required. Given the various TJAG equities in the issue, she requested TJAGs comment. During the first week of November 2002, TJAGs staffs responded in writing to the JCS package with significant legal and policy concerns. They strongly recommended further detailed legal analysis of the proposal. DOD Associate Deputy Counsel for Former Defense Secretary Rumsfeld greets William J. Haynes II, DOD General Counsel, July 2001 DOD (Robert D. Ward) International Affairs also advised DOD/GC that further review was needed. After meeting with Haynes, General Myers instructed Captain Dalton to stop the broad review because Haynes [did] not want this process to proceed. General Myers and Haynes expressed concern about leaks and speed of analysis. Although the stand-down was unprecedented, Captain Dalton believed that she was not prohibited from conducting her own legal analysis or review. She spoke with Haynes and General Myers about legal and policy concerns, but neither DOD/GC nor LC produced any written legal review or summary of the written TJAG concerns. On November 23, an unidentified person in OSD telephoned MG Miller and stated that all requested techniques were approved. Beginning that day, Guantanamo interrogators began to use expanded techniques on al-kahtani. On November 27, Haynes personally typed a short cover-type memo to the Secretary of Defense recommending approval of 15 of the 18 requested techniques. 43 Written legal review beyond LTC Beaver s and any mention of TJAG concerns were absent. On December 2, Secretary Rumsfeld approved the expanded techniques but without any guidance on administration of the techniques. 44 TJAGs were unaware of the Secretary s approval until the Navy GC, Alberto Mora, learned about the matter through an operator associated with interrogations. The Navy GC notified the Navy TJAG, and then led a series of meetings where he and the Navy TJAG lodged objections with DOD/GC, the special assistant to the Secretary of Defense, and the Deputy Secretary. The other TJAGs attended at least one meeting with DOD/GC where they vigorously joined the objection. After Mora told Hayes that he would put his objections in writing, Secretary Rumsfeld suspended use of the expanded techniques and instructed DOD/GC to have a broad group of lawyers examine the legal and policy issues when he learned of [the] concern. 45 DOD/ GC appointed the Air Force General Counsel, Mary Walker, to head the working group. The working group lawyers included staffs of TJAGs, GCs, and LC. 46 The group s report states that it was informed by a Department of Justice opinion. 47 OLC influence was much more significant. Despite being specifically chartered by Secretary Rumsfeld to provide legal analysis in addition to policy advice, efforts to form and apply independent analysis were quickly terminated. Yoo attended 44 JFQ / issue 54, 3 d quarter 2009 ndupress.ndu.edu

101 TURNER an early working group meeting where he instructed the group on his views. Upon Haynes request, Yoo provided another opinion upon which the working group legal review was based. 48 The report used significant portions of the OLC opinion verbatim and OLC edited the draft. 49 Working group members were shown, but were not allowed to copy, an unsigned, undated version of the Torture Memo and were directed by Walker to apply the OLC legal analysis. Comments and contributions that departed from the OLC opinion were dismissed. TJAGs and Mora lodged their deep concerns about the working group legal analysis and absence of balanced policy considerations orally and by to Walker. When that approach failed, TJAGs followed up with memos to Walker. 50 They then met with DOD/ GC to express their concerns. TJAGs and/or their staffs then met with their Service chiefs. The Joint Chiefs met on the issue in a Pentagon conference room called the Tank. Around this time, DOD/GC met with Secretary Rumsfeld and provided him with the final working group report. On April 16, 2003, the Secretary authorized some of the interrogation techniques and instructed that further requests for expansion should come to him. TJAGs were not given the final working group report or an opportunity to formally concur or nonconcur. Haynes told at least one TJAG that Secretary Rumsfeld had seen TJAG comments, the report would go no further, and DOD would return to standard techniques. Until the report became public 14 months later, TJAGs and Navy GC believed the working group report had never been finalized. TJAGs did not know about later Secretary-approved requests for expanded techniques. Eight months later, a new OLC chief determined that the Yoo-drafted OLC opinions upon which the working group report was based were so flawed that they had to be withdrawn and replaced. OLC immediately informed DOD/GC of the withdrawal. When TJAGs learned of this repudiation months later, they unanimously recommended the working group report be rescinded and the issues be reexamined with independent legal analysis. They met with senior policymakers and lawyers in an attempt to have the DOD controlling regulation revised to clarify and require compliance with the Geneva Conventions. In April 2004, criminal detainee abuse at Abu Ghraib, Iraq, became public and Congress immediately became involved. Over the next several years, at least a dozen military and congressional investigations examined interrogation issues. During this time, TJAGs spoke to Members of Congress and staffers, both publicly in testimony and in private, to provide their independent legal-policy opinions on various aspects of detainee treatment. Some investigations assert that the Guantanamo extraordinary interrogation techniques migrated to Iraq. Not all agree with the migration theory. Recently, Susan Crawford, the former judge now in charge of the military commissions, stated that she was shocked, embarrassed, and upset by the interrogation of al-kahtani. She declined to charge him in court because he had been tortured. The techniques objected to by TJAGs and Navy GC but authorized by Secretary Rumsfeld were applied in an overly aggressive and too persistent manner. She further stated: You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge. 51 Process Analysis The detainee interrogation legal-policy process was extraordinary. Several actions were unprecedented: DOD/GC solicitation of information on SERE training initial lack of a legal review for the Secretary of Defense written by anyone more senior than LTC Beaver for such a complex and strategic national security issue DOD/GC direct contact with the USSOUTHCOM operations staff without coordination with OCJCS/LC or the command s SJA DOD/GC verbal direction to USSOUTHCOM to implement the proposed techniques short-circuiting of legal reviews failure to forward the Service legalpolicy concerns prohibition of working group lawyers to apply independent legal analysis level of resistance to consideration of TJAG legal-policy concerns lack of opportunity to nonconcur on the final working group report or to know the report was finalized discussion with DOD/GC and at least one TJAG regarding Secretary Rumsfeld s decision to return to Army FM techniques apparent senior administration lawyer direct involvement in operations at the joint task force level (discussions during visits to Guantanamo). Role and Responsibility Analysis Advocacy versus Advisory. The later OLC-repudiated, Yoo-drafted detainee interrogation controlling legal opinions have been soundly criticized in the legal community as cursory and one sided legal arguments. 52 The opinions were apparently based on the drafter s view that his job was that of policyadvocate, rather than advisor. Several former OLC lawyers insist the advocate role was inappropriate. TJAGs acted in accordance with their ethical responsibility to provide candid legal advice and policy considerations. Based on the historic and statutory role of TJAGs, Secretary Rumsfeld suspended use of the expanded techniques and instructed DOD/General Counsel to have a broad group of lawyers examine the legal and policy issues War Council members should not have been surprised that judge advocates had a voice in legal-policy formation. Civilian Control of the Military. Congress has repeatedly acted to ensure leaders are given the benefit of independent military legal advice. Each time a study or independent review panel has examined the primacy and control relationships between civilian and uniformed lawyers, the reviewers recognize that TJAGs (and LC) work with, not for, civilian lawyers. Together, they support constitutional civilian leadership over the military. The existence and independence of each must be maintained. The relationship between TJAG independence and DOD/GC and OLC primacy remains nuanced. Law now prohibits DOD/GC from interfering with TJAG ability to provide ndupress.ndu.edu issue 54, 3 d quarter 2009 / JFQ 45

102 SPECIAL FEATURE Detainee Interrogation Debate independent counsel. 53 It does not mention the Attorney General. The Presidential signing statement on the independence legislation instructs the executive branch to give primacy to the Attorney General and DOD/GC. 54 Policymakers are entitled to ask their military lawyers for legal-policy considerations such as missing Servicemember perspectives. 55 Yoo alleges that TJAGs have no place in legal-policy formation and that they undermined civilian leadership through their actions, including testimony to Congress on their personal legal and policy analysis. 56 However, when asked, TJAGs constitutional duty and oath to Congress require them to provide Congress their legal and policy opinions, even when those opinions conflict with executive branch positions. They complied with those duties. Since the rise of professional military forces, there has been tension between civilian control and military efficacy. 57 Policymakers may task their staffs (including lawyers) to act as their agents and circumvent standard processes. Reasons for such action include the need for speed, secrecy, desire to accomplish an action before objections are lodged, or lack of respect for the opinions of certain parties. When a policymaker declines to use the normal processes, he increases the chance his decision will not be sufficiently informed. Cutting offices out of the process can also harm morale and increase destructive behaviors such as leaks to the media. In this case, as a result of the altered processes, executive department leaders were not provided the full range of relevant, fully staffed legal-policy considerations. Only the principal policymakers can say whether they would have wanted more or if members of the War Council were acting in accordance with their direction. Lawfare attacks will not diminish in frequency or intensity; legal-policy issues will not get easier; and there will not be fewer lawyers. Governmental processes lend order to the chaotic array of challenges. They ensure that policymakers receive vetted, well rounded advice. Leaders should hesitate to exclude key advisors from policymaking processes. GC and TJAG skills must be used in the intended complementary fashion. And judge advocates must continue to serve as independent advisors who provide candid legal-policy advice from the military perspective. JFQ Notes 1 Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: Norton, 2007), Harlan G. Wilder, Independent Counsel by Design, Wright Stuff 2, no. 12 (2007). 3 Susan Crawford, quoted by Bob Woodward, Detainee Tortured, Says U.S. Official: Trial Overseer Cites Abusive Methods Against 9/11 Suspect, The Washington Post, January 14, 2009, A1. 4 James E. Baker, In the Common Defense: National Security Law for Perilous Times (Cambridge: Cambridge University Press, 2007), Kevin M. Sandkuhler, Memorandum for General Counsel of the Air Force, Subject: Working Group Recommendations on Detainee Interrogations, February 27, Kurt A. Johnson, Military Department General Counsel as Chief Legal Officers : Impact on Delivery of Impartial Legal Advice at Headquarters and in the Field, Military Law Review 139, no. 1 (1993), Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (New York: Little, Brown, 2007), U.S.C (Army), 5046 (Marine Corps), 5148 (Navy), 8037 (Air Force); U.S. Congress, Conference Report Regarding H.R. 4200, Ronald Reagan National Defense Authorization Act for FY 2005 (Washington, DC, 2004). 9 After one review of the possibility of consolidating OCJCS/LC and DOD/GC, General Henry H. Shelton wrote to Secretary Rumsfeld: While you and I usually agree on issues, there may be times when my military advice, and that of the Joint Chiefs of Staff, may differ from your position. Likewise, the separation of functions and responsibilities of the officers that has heretofore existed allows the examination of issues from the military perspective independent of that of the OSD organizations. While their advice is frequently in accord, there are occasions when they diverge. Henry H. Shelton, Memorandum for Secretary of Defense, Subject: Consolidation of Offices, August 22, This memo was signed shortly before Secretary Rumsfeld s remarks about the large numbers of legal offices in the Pentagon. 10 National Defense Authorization Act for Fiscal Year 2008, Pub. L. no , 543, 122 Stat. 115, January 28, Independent Review Panel to Study the Relationships between Military Departments General Counsels and Judge Advocates General, Legal Services in the Department of Defense: Advancing Productive Relationships, Washington, DC, September 15, U.S.C (Army), 5148 (Navy), 5046 (Marine Corps), 8037 (Air Force) U.S.C U.S.C. 801, et seq.; 10 U.S.C (Army), 5148 (Navy), 5046 (Marine Corps), 8037 (Air Force) U.S.C. 510, 511, 512; 28 C.F.R C.F.R. 0.25(e). 17 See U.S. Army, Army Rules of Professional Conduct For Lawyers, Army Regulation (AR) 27 26, Legal Services (Washington DC, 1992), preamble. 18 U.S. Air Force, Air Force Rules of Professional Conduct and Standards for Civility, Attachment 1, TJS 2, Rule 2.1, Advisor (Washington DC, 2005); AR 27 26, Rule 2.1, Advisor; U.S. Navy, Navy Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of The Judge Advocate General, JAG C (Washington DC, 2004), Rule 2.1, Advisor. The Service rules are modeled after the American Bar Association Model Rules of Professional Conduct. 19 Edward F. Rodriguez, unpublished remarks to Air Force Reserve Forces Judge Advocate Course 99 A, The Air Force Judge Advocate General s School, January 7, Jack L. Rives, Expeditionary Law: Remarks on How to Succeed in the Deployed Environment, Air Force Law Review 51 (2001), 349. Lieutenant General Rives was involved in the issue first as then Major General Rives, Deputy Judge Advocate General, and later as TJAG. 21 Larry O. Natt Gantt II, More Than Lawyers: The Legal and Ethical Implications of Counseling Clients on Nonlegal Considerations, The Georgetown Journal of Legal Ethics 18, no. 2 (2005); Richard B. Bilder and Detlev F. Vagts, Editorial Comment: Speaking Law to Power: Lawyers and Torture, The American Society of International Law American Journal of International Law 98, no. 4 (2004). 22 Gantt. 23 American Bar Association, Rule 2.1, Comment: Scope of Advice, Model Rules of Professional Conduct (1983, as amended). 24 The Air Force and Army rules state that the lawyer may refer to these additional matters. The Navy/Marine Corps rules state the lawyer should so refer. TJS 2, Rule 2.1, Advisor; AR 27 26, Rule 2.1, Advisor; JAG C, Rule 2.1, Advisor. 25 The Army rule is quoted. The Air Force rule omits the word moral, thereby neither advocating for, nor prohibiting, such discussions. Army and Navy rules include the word moral. AR 27 26, Rule 1.2; JAG C, Rule 1.2, which is substantially similar to the quoted rule; TJS 2, Rule 1.2(d). 26 TJS 2, Rule 1.4; AR 27 26, Rule 1.4; JAG C, Rule State Bar of Arizona, Committee on Rules of Professional Conduct, Opinion (1997). 28 Air Force general and senior officer commanders and vice commanders responses to 46 JFQ / issue 54, 3 d quarter 2009 ndupress.ndu.edu

103 TURNER proposed reduction of legal office staffs, 2006 (on file at Air Force TJAG Action Group); Secretary of the Air Force Michael W. Wynne, unpublished comments to Air Force JAG Corps senior judge advocate meeting, 2005 (on file at Air Force TJAG Action Group). 29 Jeh C. Johnson, unpublished remarks to The Air Force Judge Advocate General s Keystone Leadership Summit, October Dawn E. Johnsen, Guidelines for the President s Legal Advisors, Indiana Law Journal 81 (Fall 2006); Dawn E. Johnsen, All the President s Lawyers: How to Avoid Another Torture Opinion Debacle, American Constitution Society for Law and Policy (July 2007), available at <www. acslaw.org/files/dawn%20johnsen%20july% pdf>. 31 Yoo and others who support the unitary executive theory apparently do not agree that members of the Armed Forces should testify to Congress contrary to the administration. Instead, they emphasize the officer s duty to the Commander in Chief. 32 Samuel P. Huntington, The Soldier and the State: The Theory and Politics of Civil-Military Relations (Cambridge: President and Fellows of Harvard College, 1957), Facts not previously reported in the various congressional hearings, testimony, reports, articles, and books on detainees were gleaned by the author s interviews of lawyers and others personally involved in the process. Organizations in which they served include JCS, military Services, U.S. Southern Command, and JTF Goldsmith, Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008), Senate Armed Forces Committee Inquiry into the Treatment of Detainees in U.S. Custody (2008). 37 Douglas J. Feith, War and Decision: Inside the Pentagon at the Dawn of the War on Terrorism (New York: HarperCollins, 2008), George W. Bush, Memorandum for the Vice President et al., Subject: Humane Treatment of al-qaeda and Taliban Detainees, February 7, The JTF 170 mission involved DOD detainee interrogation operations and interagency coordination of Guantanamo detainee interrogations. 4 0 Philippe Sands, The Green Light, Vanity Fair (May 2008). 41 Richard Shriffrin, testimony to Senate Armed Forces Committee Inquiry into the Treatment of Detainees in U.S. Custody, June 17, Jay S. Bybee, Memorandum for White House Counsel, Subject: Standards of Conduct for Interrogation Under 18 U.S.C A, August 1, William J. Haynes II, Memorandum for Secretary of Defense, Subject: Counter-Resistance Techniques, November 27, Donald H. Rumsfeld, Memorandum for Commander USSOUTHCOM, Subject: Counter- Resistance Techniques, December 2, Department of Defense, DoD Provides Details on Interrogation Process, June 22, 2004, available at < release.aspx?releaseid=7487>: On Jan. 15, 2003, the secretary of defense rescinded the Dec. 2 guidance when he learned of concern about the implementation of the techniques. See also Donald H. Rumsfeld, Memorandum for Department of Defense General Counsel, Subject: Detainee Interrogations, January 15, Department of Defense, Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy and Operational Considerations (Washington, DC: Department of Defense, April 14, 2003). 47 Ibid., John Yoo, Memorandum for Department of Defense General Counsel, Subject: Military Interrogation of Alien Unlawful Combatants Held Outside the United States, March 12, As with the Torture Memo, this memo was classified as secret, and the JAGs did not see the signed opinion until it was declassified in Michael F. Lohr, Memorandum for the Air Force General Counsel, Subject: Comments on the 6 March 2003 Detainee Interrogation Working Group Report, March 13, 2003; Vivia Chen, Interrogation Memo Puts Air Force Counsel in Hot Seat, The American Lawyer (August 6, 2004), available at < jsp/article.jsp?id= >. Of note, the working group report and both of the relevant OLC legal opinions remained classified until after the disclosure of the criminal abuses at Abu Ghraib. 50 Jack L. Rives, Memorandum for Secretary of the Air Force (SAF) GC, Subject: Final Report and Recommendations of the Working Group to Assess the Legal, Policy and Operational Issues Relating to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism, February 5, 2003; Jack L. Rives, Memorandum for SAF/GC, February 6, 2003; Kevin M. Sandkuhler, Memorandum for General Counsel of the Air Force, February 27, 2003; Thomas J. Romig, Memorandum for General Counsel of the Air Force, Subject: Draft Report and Recommendations of the Working Group to Access the Legal, Policy and Operational Issues Related to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism, March 3, 2003; Michael F. Lohr, Memorandum for the Air Force General Counsel, Subject: Working Group Recommendations Relating to Interrogation of Detainees, February 6, 2003; Michael F. Lohr, Memorandum for the Air Force General Counsel, March 13, Woodward. 52 Goldsmith, The statute reads: No officer or employee of the Department of Defense may interfere with the ability of the Judge Advocate General to give independent legal advice to the Secretary of the [Service] or the [Chief of Staff of the Service or Chief of Naval Operations]. See 10 U.S.C (Army), 5148 (Navy), 5046 (Marine Corps), 8037 (Air Force). 54 The signing statement instructs the executive branch to construe the statute in a manner consistent with... the exercise of statutory authority by the Attorney General (28 U.S.C. 512 and 513) and the general counsel of the Department of Defense as its chief legal officer (10 U.S.C. 140) to render legal opinions that bind all civilian and military attorneys within the Department of Defense. George W. Bush, Statement on Signing the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Weekly Compilation of Presidential Documents (Washington, DC: The White House, October 28, 2004). 55 As the Senior Marine Corps lawyer wrote in his objection to the Walker working report, OLC does not represent the services; thus, understandably, concern for servicemembers is not reflected in their opinion. See Kevin M. Sandkuhler, Memorandum for General Counsel of the Air Force, February 27, Glenn Sulmasy and John Yoo, Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror, UCLA Law Review 54 (2007), 1,834; Michael L. Kramer and Michael N. Schmitt, Lawyers on Horseback? Thoughts on Judge Advocates and Civil-Military Relations, University of California Law Review 55 (June 2008); Victor Hansen, Understanding the Role of Military Lawyers in the War on Terror: A Response to the Perceived Crisis in Civil-Military Relations (forthcoming, 2009). 57 Eliot A. Cohen, Supreme Command: Soldiers, Statesmen and Leadership in Wartime (New York: The Free Press, 2002). ndupress.ndu.edu issue 54, 3 d quarter 2009 / JFQ 47

104 PANEL II: LEGISLATIVE UPDATE ON DEVELOPMENTS IN NATIONAL SECURITY LAW MODERATOR: SUZANNE E. SPAULDING

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106 National Security Act of 1947 TITLE V - ACCOUNTABILITY FOR INTELLIGENCE ACTIVITIES GENERAL CONGRESSIONAL OVERSIGHT PROVISIONS SEC [50 U.S.C. 413] (a)(1) The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity as required by this title. (2) Nothing in this title shall be construed as requiring the approval of the congressional intelligence committees as a condition precedent to the initiation of any significant anticipated intelligence activity. (b) The President shall ensure that any illegal intelligence activity is reported promptly to the congressional intelligence committees, as well as any corrective action that has been taken or is planned in connection with such illegal activity. (c) The President and the congressional intelligence committees shall each establish such procedures as may be necessary to carry out the provisions of this title. (d) The House of Representatives and the Senate shall each establish, by rule or resolution of such House, procedures to protect from unauthorized disclosure all classified information, and all information relating to intelligence sources and methods, that is furnished to the congressional intelligence committees or to Members of Congress under this title. Such procedures shall be established in consultation with the Director of Central Intelligence. In accordance with such procedures, each of the congressional intelligence committees shall promptly call to the attention of its respective House, or to any appropriate committee or committees of its respective House, any matter relating to intelligence activities requiring the attention of such House or such committee or committees. (e) Nothing in this Act shall be construed as authority to withhold information from the congressional intelligence committees on the grounds that providing the information to the congressional intelligence committees would constitute the unauthorized disclosure of classified information or information relating to intelligence sources and methods. (f) As used in this section, the term "intelligence activities" includes covert actions as defined in section 503(e), and includes financial intelligence activities. REPORTING OF INTELLIGENCE ACTIVITIES OTHER THAN COVERT ACTIONS SEC [50 U.S.C. 413a] To the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters, the Director of Central Intelligence and the heads of all departments, agencies, and other entities of the United States Government involved in intelligence activities shall - (1) keep the congressional intelligence committees fully and currently informed of all intelligence activities, other than a covert action (as defined in section 503(e)), which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department, agency, or entity of the United States Government, including any significant anticipated intelligence activity and any significant intelligence failure; and (2) furnish the congressional intelligence committees any information or material concerning intelligence activities, other than covert actions, which is within their custody or control, and which is requested by either of the congressional intelligence committees in order to carry out its authorized responsibilities. PRESIDENTIAL APPROVAL AND REPORTING OF COVERT ACTIONS

107 SEC [50 U.S.C. 413b] (a) The President may not authorize the conduct of a covert action by departments, agencies, or entities of the United States Government unless the President determines such an action is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States, which determination shall be set forth in a finding that shall meet each of the following conditions: (1) Each finding shall be in writing, unless immediate action by the United States is required and time does not permit the preparation of a written finding, in which case a written record of the President's decision shall be contemporaneously made and shall be reduced to a written finding as soon as possible but in no event more than 48 hours after the decision is made. (2) Except as permitted by paragraph (1), a finding may not authorize or sanction a covert action, or any aspect of any such action, which already has occurred. (3) Each finding shall specify each department, agency, or entity of the United States Government authorized to fund or otherwise participate in any significant way in such action. Any employee, contractor, or contract agent of a department, agency, or entity of the United States Government other than the Central Intelligence Agency directed to participate in any way in a covert action shall be subject either to the policies and regulations of the Central Intelligence Agency, or to written policies or regulations adopted by such department, agency, or entity, to govern such participation.. (4) Each finding shall specify whether it is contemplated that any third party which is not an element of, or a contractor or contract agent of, the United States Government, or is not otherwise subject to United States Government policies and regulations, will be used to fund or otherwise participate in any significant way in the covert action concerned, or be used to undertake the covert action concerned on behalf of the United States. (5) A finding may not authorize any action that would violate the Constitution or any statute of the United States. (b) To the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters, the Director of Central Intelligence and the heads of all departments, agencies, and entities of the United States Government involved in a covert action - (1) shall keep the congressional intelligence committees fully and currently informed of all covert actions which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department, agency, or entity of the United States Government, including significant failures; and (2) shall furnish to the congressional intelligence committees any information or material concerning covert actions which is in the possession custody, or control of any department, agency, or entity of the United States Government and which is requested by either of the congressional intelligence committees in order to carry out its authorized responsibilities. (c)(1) The President shall ensure that any finding approved pursuant to subsection (a) shall be reported to the congressional intelligence committees as soon as possible after such approval and before the initiation of the covert action authorized by the finding, except as otherwise provided in paragraph (2) and paragraph (3). (2) if the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.

108 (3) Whenever a finding is not reported pursuant to paragraph (1) or (2) of this section, the President shall fully inform the congressional intelligence committees in a timely fashion and shall provide a statement of the reasons for not giving prior notice. (4) In a case under paragraph (1), (2), or (3), a copy of the finding, signed by the President, shall be provided to the chairman of each congressional intelligence committee. When access to a finding is limited to the Members of Congress specified in paragraph (2), a statement of the reasons for limiting such access shall also be provided. (d) The President shall ensure that the congressional intelligence committees, or, if applicable, the Members of Congress specified in subsection (c)(2), are notified of any significant change in a previously approved covert action, or any significant undertaking pursuant to a previously approved finding, in the same manner as findings are reported pursuant to subsection (c). (e) As used in this title, the term "covert action" means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include - (1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities; (2) traditional diplomatic or military activities or routine support to such activities; (3) traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or (4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad. (f) No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media. FUNDING OF INTELLIGENCE ACTIVITIES SEC [50 U.S.C. 414] (a) Appropriated funds available to an intelligence agency may be obligated or expended for an intelligence or intelligence-related activity only if - (1) those funds were specifically authorized by the Congress for use for such activities; or (2) in the case of funds from the Reserve for Contingencies of the Central Intelligence Agency and consistent with the provisions of section 503 of this Act concerning any significant anticipated intelligence activity, the Director of Central Intelligence has notified the appropriate congressional committees of the intent to make such funds available for such activity; or (3) in the case of funds specifically authorized by the Congress for a different activity - (A) the activity to be funded is a higher priority intelligence or intelligence-related activity; (B) the need for funds for such activity is based on unforeseen requirements; and (C) the Director of Central Intelligence, the Secretary of Defense, or the Attorney General, as appropriate, has notified the appropriate congressional committees of the intent to make such funds available for such activity;

109 (4) nothing in this subsection prohibits obligation or expenditure of funds available to an intelligence agency in accordance with sections 1535 and 1536 of title 31, United States Code. (b) Funds available to an intelligence agency may not be made available for any intelligence or intelligencerelated activity for which funds were denied by the Congress. (c) No funds appropriated for, or otherwise available to, any department agency, or entity of the United States Government may be expended, or may be directed to be expended, for any covert action, as defined in section 503(e), unless and until a Presidential finding required by subsection (a) of section 503 has been signed or otherwise issued in accordance with that subsection. (d)(1) Except as otherwise specifically provided by law, funds available to an intelligence agency that are not appropriated funds may be obligated or expended for an intelligence or intelligence-related activity only if those funds are used for activities reported to the appropriate congressional committees pursuant to procedures which identify - (A) the types of activities for which nonappropriated funds may be expended; and (B) the circumstances under which an activity must be reported as a significant anticipated intelligence activity before such funds can be expended. (2) Procedures for purposes of paragraph (1) shall be jointly agreed upon by the congressional intelligence committees and, as appropriate, the Director of Central Intelligence or the Secretary of Defense. (e) As used in this section - (1) the term "intelligence agency" means any department, agency, or other entity of the United States involved in intelligence or intelligence-related activities; (2) the term "appropriate congressional committees" means the Permanent Select Committee on Intelligence and the Committee on Appropriations of the House of Representatives and the Select Committee on Intelligence and the Committee on Appropriations of the Senate; and (3) the term "specifically authorized by the Congress" means that - (A) the activity and the amount of funds proposed to be used for that activity were identified in a formal budget request to the Congress, but funds shall be deemed to be specifically authorized for that activity only to the extent. that the Congress both authorized the funds to be appropriated for that activity and appropriated the funds for that activity; or (B) although the funds were not formally requested, the Congress both specifically authorized the appropriation of the funds for the activity and appropriated the funds for the activity. NOTICE TO CONGRESS OF CERTAIN TRANSFERS OF DEFENSE ARTICLES AND DEFENSE SERVICES SEC [50 U.S.C. 415] (a)(1) The transfer of a defense article or defense service, or the anticipated transfer in any fiscal year of any aggregation of defense articles or defense services, exceeding $1,000,000 in value by an intelligence agency to a recipient outside that agency shall be considered a significant anticipated intelligence activity for the purpose of this title. (2) Paragraph (1) does not apply if -

110 (A) the transfer is being made to a department, agency, or other entity of the United States (so long as there will not be a subsequent retransfer of the defense articles or defense services outside the United States Government in conjunction with an intelligence or intelligence-related activity); or (B) the transfer - (i) is being made pursuant to authorities contained in part II of the Foreign Assistance Act of 1961, the Arms Export Control Act, title 10 of the United States Code (including a law enacted pursuant to section 7307(a) of that title), or the Federal Property and Administrative Services Act of 1949, and (ii) is not being made in conjunction with an intelligence or intelligence-related activity. (3) An intelligence agency may not transfer any defense articles or defense services outside the agency in conjunction with any intelligence or intelligence-related activity for which funds were denied by the Congress. (b) As used in this section - (1) the term "intelligence agency" means any department, agency, or other entity of the United States involved in intelligence or intelligence-related activities; (2) the terms "defense articles" and "defense services" mean the items on the United States Munitions List pursuant to section 38 of the Arms Export Control Act (22 CFR part 121); (3) the term "transfer" means - (A) in the case of defense articles, the transfer of possession of those articles; and (B) in the case of defense services, the provision of those services; and (4) the term "value" means - (A) in the case of defense articles, the greater of - (i) the original acquisition cost to the United States Government, plus the cost of improvements or other modifications made by or on behalf of the Government; or (ii) the replacement cost; and (B) in the case of defense services, the full cost to the Government of providing the services. SPECIFICITY OF NATIONAL FOREIGN INTELLIGENCE PROGRAM BUDGET AMOUNTS FOR COUNTERTERRORISM, COUNTERPROLIFERATION, COUNTERNARCOTICS, AND COUNTERINTELLIGENCE SEC (a) IN GENERAL- The budget justification materials submitted to Congress in support of the budget of the President for a fiscal year that is submitted to Congress under section 1105(a) of title 31, United States Code, shall set forth separately the aggregate amount requested for that fiscal year for the National Foreign Intelligence Program for each of the following: (1) Counterterrorism.

111 (2) Counterproliferation. (3) Counternarcotics. (4) Counterintelligence. (b) ELECTION OF CLASSIFIED OR UNCLASSIFIED FORM- Amounts set forth under subsection (a) may be set forth in unclassified form or classified form, at the election of the Director of Central Intelligence. DATES FOR SUBMITTAL OF VARIOUS ANNUAL AND SEMIANNUAL REPORTS TO THE CONGRESSIONAL INTELLIGENCE COMMITTEES SEC (a) ANNUAL REPORTS- (1) The date for the submittal to the congressional intelligence committees of the following annual reports shall be the date each year provided in subsection (c)(1)(a): (A) The annual evaluation of the performance and responsiveness of certain elements of the intelligence community required by section 105(d). (B) The annual report on intelligence required by section 109. (C) The annual report on intelligence community cooperation with Federal law enforcement agencies required by section 114(a)(2). (D) The annual report on the protection of the identities of covert agents required by section 603. (E) The annual report of the Inspectors Generals of the intelligence community on proposed resources and activities of their offices required by section 8H(g) of the Inspector General Act of (F) The annual report on commercial activities as security for intelligence collection required by section 437(c) of title 10, United States Code. (G) The annual report on expenditures for postemployment assistance for terminated intelligence employees required by section 1611(e)(2) of title 10, United States Code. (H) The annual update on foreign industrial espionage required by section 809(b) of the Counterintelligence and Security Enhancements Act of 1994 (title VIII of Public Law ; 50 U.S.C. App. 2170b(b)). (I) The annual report on coordination of counterintelligence matters with the Federal Bureau of Investigation required by section 811(c)(6) of the Counterintelligence and Security Enhancements Act of 1994 (50 U.S.C. 402a(c)(6)). (J) The annual report on foreign companies involved in the proliferation of weapons of mass destruction that raise funds in the United States capital markets required by section 827 of the Intelligence Authorization Act for Fiscal Year (K) The annual report on certifications for immunity in interdiction of aircraft engaged in illicit drug trafficking required by section 1012(c)(2) of the National Defense Authorization Act for Fiscal Year 1995 (22 U.S.C (c)(2)). (L) The annual report on exceptions to consumer disclosure requirements for national security investigations under section 604(b)(4)(E) of the Fair Credit Reporting Act (15 U.S.C. 1681b(b)(4)(E)).

112 (M) The annual report on activities under the David L. Boren National Security Education Act of 1991 (title VIII of Public Law ; 50 U.S.C et seq.) required by section 806(a) of that Act (50 U.S.C. 1906(a)). (N) The annual report on hiring and retention of minority employees in the intelligence community required by section 114(c). (2) The date for the submittal to the congressional intelligence committees of the following annual reports shall be the date each year provided in subsection (c)(1)(b): (A) The annual report on the safety and security of Russian nuclear facilities and nuclear military forces required by section 114(b). (B) The annual report on the threat of attack on the United States from weapons of mass destruction required by section 114(d). (C) The annual report on covert leases required by section 114(e). (D) The annual report on improvements of the financial statements of the intelligence community for auditing purposes required by section 114A. (E) The annual report on activities of personnel of the Federal Bureau of Investigation outside the United States required by section 540C(c)(2) of title 28, United States Code. (F) The annual report on intelligence activities of the People's Republic of China required by section 308(c) of the Intelligence Authorization Act for Fiscal Year 1998 (Public Law ; 50 U.S.C. 402a note). (G) The annual report on counterdrug intelligence matters required by section 826 of the Intelligence Authorization Act for Fiscal Year (b) SEMIANNUAL REPORTS- The dates for the submittal to the congressional intelligence committees of the following semiannual reports shall be the dates each year provided in subsection (c)(2): (1) The periodic reports on intelligence provided to the United Nations required by section 112(b). (2) The semiannual reports on the Office of the Inspector General of the Central Intelligence Agency required by section 17(d)(1) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q(d)(1)). (3) The semiannual reports on decisions not to prosecute certain violations of law under the Classified Information Procedures Act (18 U.S.C. App.) as required by section 13 of that Act. (4) The semiannual reports on the acquisition of technology relating to weapons of mass destruction and advanced conventional munitions required by section 721(b) of the Combatting Proliferation of Weapons of Mass Destruction Act of 1996 (title VII of Public Law ; 50 U.S.C. 2366(b)). (5) The semiannual reports on the activities of the Diplomatic Telecommunications Service Program Office (DTS-PO) required by section 322(a)(6)(D)(ii) of the Intelligence Authorization Act for Fiscal Year 2001 (22 U.S.C. 7302(a)(6)(D)(ii)). (6) The semiannual reports on the disclosure of information and consumer reports to the Federal Bureau of Investigation for counterintelligence purposes required by section 624(h)(2) of the Fair Credit Reporting Act (15 U.S.C. 1681u(h)(2)).

113 (7) The semiannual provision of information on requests for financial information for foreign counterintelligence purposes required by section 1114(a)(5)(C) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(C)). (8) The semiannual report on financial intelligence on terrorist assets required by section 118. (c) SUBMITTAL DATES FOR REPORTS- (1)(A) Except as provided in subsection (d), each annual report listed in subsection (a)(1) shall be submitted not later than February 1. (B) Except as provided in subsection (d), each annual report listed in subsection (a)(2) shall be submitted not later than December 1. (2) Except as provided in subsection (d), each semiannual report listed in subsection (b) shall be submitted not later than February 1 and August 1. (d) POSTPONEMENT OF SUBMITTAL- (1) Subject to paragraph (3), the date for the submittal of-- (A) an annual report listed in subsection (a)(1) may be postponed until March 1; (B) an annual report listed in subsection (a)(2) may be postponed until January 1; and (C) a semiannual report listed in subsection (b) may be postponed until March 1 or September 1, as the case may be, if the official required to submit such report submits to the congressional intelligence committees a written notification of such postponement. (2)(A) Notwithstanding any other provision of law and subject to paragraph (3), the date for the submittal to the congressional intelligence committees of any report described in subparagraph (B) may be postponed by not more than 30 days from the date otherwise specified in the provision of law for the submittal of such report if the official required to submit such report submits to the congressional intelligence committees a written notification of such postponement. (B) A report described in this subparagraph is any report on intelligence or intelligence-related activities of the United States Government that is submitted under a provision of law requiring the submittal of only a single report. (3)(A) The date for the submittal of a report whose submittal is postponed under paragraph (1) or (2) may be postponed beyond the time provided for the submittal of such report under such paragraph if the official required to submit such report submits to the congressional intelligence committees a written certification that preparation and submittal of such report at such time will impede the work of officers or employees of the intelligence community in a manner that will be detrimental to the national security of the United States. (B) A certification with respect to a report under subparagraph (A) shall include a proposed submittal date for such report, and such report shall be submitted not later than that date.

114 H.R.2647 One Hundred Eleventh Congress of the United States of America AT THE FIRST SESSION Begun and held at the City of Washington on Tuesday, the sixth day of January, two thousand and nine An Act To authorize appropriations for fiscal year 2010 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the `National Defense Authorization Act for Fiscal Year 2010'. SEC LIMITATION ON USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA. (a) Release Prohibition- During the period beginning on October 1, 2009, and ending on December 31, 2010, the Secretary of Defense may not use any of the amounts authorized to be appropriated in this Act or otherwise available to the Department of Defense to release into the United States, its territories, or possessions, any individual described in subsection (e). (b) Transfer Limitation- During the period beginning on October 1, 2009, and ending on December 31, 2010, the Secretary of Defense may not use any of the amounts authorized to be appropriated in this Act or otherwise available to the Department of Defense to transfer any individual described in subsection (e) to the United States, its territories, or possessions, until 45 days after the President has submitted to the congressional defense committees the plan described in subsection (c). (c) Comprehensive Plan Required- The President shall submit to the congressional defense committees a plan for the disposition of each individual described in subsection (e) who is proposed to be transferred to

115 the United States, its territories, or possessions. Such plan for each individual shall include, at a minimum-- (1) an assessment of the risk that the individual described in subsection (e) poses to the national security of the United States, its territories, or possessions; (2) a proposal for the disposition of each such individual; (3) the measures to be taken to mitigate any risks described in paragraph (1); (4) the location or locations at which the individual will be held under the proposal for disposition required by paragraph (2); (5) the costs associated with executing the plan, including technical and financial assistance required to be provided to State and local law enforcement agencies, if necessary, to carry out the plan; (6) a summary of the consultation required in subsection (d); and (7) a certification by the Attorney General that under the plan the individual poses little or no security risk to the United States, its territories, or possessions. (d) Consultation Required- The President shall consult with the chief executive of the State, the District of Columbia, or the territory or possession of the United States to which the disposition in subsection (c)(2) includes transfer to that State, District of Columbia, or territory or possession. (e) Detainees Described- An individual described in this subsection is any individual who is located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who-- (1) is not a citizen of the United States; and (2) is-- (A) in the custody or under the effective control of the Department of Defense; or (B) otherwise under detention at the United States Naval Station, Guantanamo Bay, Cuba.

116 HR 2892 One Hundred Eleventh Congress of the United States of America AT THE FIRST SESSION Begun and held at the City of Washington on Tuesday, the sixth day of January, two thousand and nine An Act Making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2010, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the following sums are appropriated, out of any money in the Treasury not otherwise appropriated, for the Department of Homeland Security for the fiscal year ending September 30, 2010, and for other purposes, namely: Sec (a) None of the funds made available in this or any other Act may be used to release an individual who is detained, as of June 24, 2009, at Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, or the District of Columbia, into any of the United States territories of Guam, American Samoa (AS), the United States Virgin Islands (USVI), the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands (CNMI). (b) None of the funds made available in this or any other Act may be used to transfer an individual who is detained, as of June 24, 2009, at Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, or the District of Columbia, into any of the United States territories of Guam, American Samoa (AS), the United States Virgin Islands (USVI), the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands (CNMI), for the purpose of detention, except as provided in subsection (c). (c) None of the funds made available in this or any other Act may be used to transfer an individual who is detained, as of June 24, 2009, at Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, or the District of Columbia, into any of the United States territories of Guam, American Samoa (AS), the United States Virgin Islands (USVI), the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands (CNMI), for the purposes of prosecuting such individual, or detaining such individual during legal proceedings, until 45 days after the plan described in subsection (d) is received.

117 (d) The President shall submit to Congress, in classified form, a plan regarding the proposed disposition of any individual covered by subsection (c) who is detained as of June 24, Such plan shall include, at a minimum, each of the following for each such individual: (1) A determination of the risk that the individual might instigate an act of terrorism within the continental United States, Alaska, Hawaii, the District of Columbia, or the United States territories if the individual were so transferred. (2) A determination of the risk that the individual might advocate, coerce, or incite violent extremism, ideologically motivated criminal activity, or acts of terrorism, among inmate populations at incarceration facilities within the continental United States, Alaska, Hawaii, the District of Columbia, or the United States territories if the individual were transferred to such a facility. (3) The costs associated with transferring the individual in question. (4) The legal rationale and associated court demands for transfer. (5) A plan for mitigation of any risks described in paragraphs (1), (2), and (7). (6) A copy of a notification to the Governor of the State to which the individual will be transferred, to the Mayor of the District of Columbia if the individual will be transferred to the District of Columbia, or to any United States territories with a certification by the Attorney General of the United States in classified form at least 14 days prior to such transfer (together with supporting documentation and justification) that the individual poses little or no security risk to the United States. (7) An assessment of any risk to the national security of the United States or its citizens, including members of the Armed Services of the United States, that is posed by such transfer and the actions taken to mitigate such risk. (e) None of the funds made available in this or any other Act may be used to transfer or release an individual detained at Naval Station, Guantanamo Bay, Cuba, as of June 24, 2009, to the country of such individual's nationality or last habitual residence or to any other country other than the United States or to a freely associated State, unless the President submits to the Congress, in classified form, at least 15 days prior to such transfer or release, the following information:

118 (1) The name of any individual to be transferred or released and the country or the freely associated State to which such individual is to be transferred or released. (2) An assessment of any risk to the national security of the United States or its citizens, including members of the Armed Services of the United States, that is posed by such transfer or release and the actions taken to mitigate such risk. (3) The terms of any agreement with the country or the freely associated State for the acceptance of such individual, including the amount of any financial assistance related to such agreement. (f) None of the funds made available in this Act may be used to provide any immigration benefit (including a visa, admission into the United States or any of the United States territories, parole into the United States or any of the United States territories (other than parole for the purposes of prosecution and related detention), or classification as a refugee or applicant for asylum) to any individual who is detained, as of June 24, 2009, at Naval Station, Guantanamo Bay, Cuba. (g) In this section, the term `freely associated States' means the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), and the Republic of Palau. (h) Prior to the termination of detention operations at Naval Station, Guantanamo Bay, Cuba, the President shall submit to the Congress a report in classified form describing the disposition or legal status of each individual detained at the facility as of the date of enactment of this Act. Sec Section 44903(j)(2)(C) of title 49, United States Code, is amended by adding at the end the following new clause: `(v) INCLUSION OF DETAINEES ON NO FLY LIST- The Assistant Secretary, in coordination with the Terrorist Screening Center, shall include on the No Fly List any individual who was a detainee held at the Naval Station, Guantanamo Bay, Cuba, unless the President certifies in writing to Congress that the detainee poses no threat to the United States, its citizens, or its allies. For purposes of this clause, the term `detainee' means an individual in the custody or under the physical control of the United States as a result of armed conflict.'.

119

120 HR 3162 RDS 107th CONGRESS 1st Session H. R IN THE SENATE OF THE UNITED STATES October 24, 2001 SEC ROVING SURVEILLANCE AUTHORITY UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by inserting `, or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons,' after `specified person'. SEC ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT. Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C et seq.) is amended by striking sections 501 through 503 and inserting the following: `SEC ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS. `(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution. `(2) An investigation conducted under this section shall-- `(A) be conducted under guidelines approved by the Attorney General under Executive Order (or a successor order); and `(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States. `(b) Each application under this section--

121 `(1) shall be made to-- `(A) a judge of the court established by section 103(a); or `(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and `(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities. `(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section. `(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a). `(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section. `(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context. `SEC CONGRESSIONAL OVERSIGHT. `(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things under section 402. `(b) On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period-- `(1) the total number of applications made for orders approving requests for the production of tangible things under section 402; and `(2) the total number of such orders either granted, modified, or denied.'.

122 S 1692 RS Calendar No th CONGRESS 1st Session S To extend the sunset of certain provisions of the USA PATRIOT Act and the authority to issue national security letters, and for other purposes. SECTION 1. SHORT TITLE. IN THE SENATE OF THE UNITED STATES October 13, 2009 This Act may be cited as the `USA PATRIOT Act Sunset Extension Act of 2009'. SEC. 2. SUNSETS. (a) Sections 206 and 215 Sunset- (1) IN GENERAL- Section 102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law ; 50 U.S.C note, 50 U.S.C note, and 50 U.S.C note) is amended by striking `2009' and inserting `2013'. (2) CONFORMING AMENDMENTS- (A) IN GENERAL- The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C et seq.), as amended by section 3 of this Act, is amended-- (i) in the table of contents in the first section, by striking the items relating to title V and sections 501, 502, and 503 and inserting the following: TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE PURPOSES `Sec Definitions. `Sec Access to certain business records for foreign intelligence and international terrorism investigations.'; (ii) in title V (50 U.S.C et seq.)-- (I) in the title heading, by striking `AND OTHER TANGIBLE THINGS'; and (II) by striking section 503; and (iii) in section 601(a)(1)(D) (50 U.S.C. 1871(a)(1)(D)), by striking `section 501;' and inserting `section 502 or under section 501 pursuant to section 102(b)(2) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law ; 50 U.S.C note);'. (B) APPLICATION UNDER SECTION 404 OF THE FISA AMENDMENTS ACT OF Section 404(b)(4)(A) of the FISA Amendments Act of 2008 (Public Law ; 122 Stat. 2477) is amended by striking the period at the end and inserting `, except that paragraph (1)(D) of such section 601(a) shall be applied as if it read as follows:

123 `(D) access to records under section 502 or under section 501 pursuant to section 102(b)(2) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law ; 50 U.S.C note);'.'. (C) EFFECTIVE DATE- The amendments made by this paragraph shall take effect on December 31, (b) Extension of Sunset Relating to Individual Terrorists as Agents of Foreign Powers- `(b) Sunset- (1) IN GENERAL- Section 6001(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law ; 50 U.S.C note) is amended to read as follows: `(1) REPEAL- Subparagraph (C) of section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)), as added by subsection (a), is repealed effective December 31, `(2) TRANSITION PROVISION- Notwithstanding paragraph (1), subparagraph (C) of section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)) shall continue to apply on and after December 31, 2013, with respect to any particular foreign intelligence investigation or with respect to any particular offense or potential offense that began or occurred before December 31, 2013.'. (2) CONFORMING AMENDMENT- (A) IN GENERAL- Section 601(a)(2) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(2)) is amended by striking the semicolon at the end and inserting `pursuant to subsection (b)(2) of section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law ; 50 U.S.C note);'. (c) National Security Letters- (B) EFFECTIVE DATE- The amendment made by subparagraph (A) shall take effect on December 31, (1) REPEAL- Effective on December 31, (A) section 2709 of title 18, United States Code, is amended to read as such provision read on October 25, 2001; (B) section 1114(a)(5) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)) is amended to read as such provision read on October 25, 2001; (C) subsections (a) and (b) of section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) are amended to read as subsections (a) and (b), respectively, of section 624 of such Act read on October 25, 2001; (D) section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) is repealed; and (E) section 802 of the National Security Act of 1947 (50 U.S.C. 436) is amended to read as such provision read on October 25, (2) TRANSITION PROVISION- Notwithstanding paragraph (1), the provisions of law referred to in paragraph (1), as in effect on December 30, 2013, shall continue to apply on and after December 31, 2013, with respect to any particular foreign intelligence investigation or with

124 respect to any particular offense or potential offense that began or occurred before December 31, (3) TECHNICAL AND CONFORMING AMENDMENTS- Effective December 31, (A) section 3511 of title 18, United States Code, is amended-- (i) in subsections (a), (c), and (d), by striking `or 627(a)' each place it appears; and (ii) in subsection (b)(1)(a), as amended by section 6(b) of this Act, by striking `section 626 or 627 of the Fair Credit Reporting Act (15 U.S.C. 1681u and 1681v)' and inserting `section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u)'; (B) section 118(c) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (18 U.S.C note) is amended-- (i) in subparagraph (C), by adding `and' at the end; (ii) in subparagraph (D), by striking `; and' and inserting a period; and (iii) by striking subparagraph (E); and (C) the table of sections for the Fair Credit Reporting Act (15 U.S.C et seq.) is amended by striking the item relating to section 627. SEC. 3. ORDERS FOR ACCESS TO CERTAIN BUSINESS RECORDS AND TANGIBLE THINGS. (a) In General- Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended-- (1) in the section heading, by inserting `and other tangible things' after `certain business records'; (2) in subsection (b)(2)-- (A) in subparagraph (A)-- (i) by striking `a statement of facts showing' and inserting `a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant'; and (ii) by striking `clandestine intelligence activities,' and all that follows and inserting `clandestine intelligence activities;'; and (B) by striking subparagraph (B) and inserting the following: `(B) if the records sought are the circulation records or patron lists of a library (as defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1))), a statement of facts showing that there are reasonable grounds to believe that the records sought-- `(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence

125 activities; and `(ii)(i) pertain to a foreign power or an agent of a foreign power; `(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or `(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power; and `(C) a statement of proposed minimization procedures.'; and (3) in subsection (c)-- (A) in paragraph (1)-- (i) by inserting `and that the proposed minimization procedures meet the definition of minimization procedures under subsection (g)' after `subsections (a) and (b)'; and (ii) by striking the second sentence; and (B) in paragraph (2)-- (i) in subparagraph (D), by striking `and' at the end; (ii) in subparagraph (E), by striking the period at the end and inserting `; and'; and (iii) by adding at the end the following: `(F) shall direct that the minimization procedures be followed.'. (b) Technical and Conforming Amendments- `SEC DEFINITIONS. (1) DEFINITIONS- Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C et seq.) is amended by adding at the end the following: `In this title, the terms `Attorney General', `foreign intelligence information', `international terrorism', `person', `United States', and `United States person' have the meanings given such terms in section 101.'. (2) TITLE HEADING- Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C et seq.) is amended in the title heading by inserting `AND OTHER TANGIBLE THINGS' after `CERTAIN BUSINESS RECORDS'. (3) TABLE OF CONTENTS- The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C et seq.) is amended-- (A) by striking the items relating to title V and section 501 and inserting the following: `TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS AND OTHER TANGIBLE THINGS FOR FOREIGN INTELLIGENCE PURPOSES `Sec Access to certain business records and other tangible things for foreign intelligence purposes and international terrorism investigations.'; and (B) by inserting after the item relating to section 502 the following: `Sec Definitions.'.

126 111th CONGRESS 1st Session H. R To extend and modify authorities needed to combat terrorism and protect civil liberties, and for other purposes. IN THE HOUSE OF REPRESENTATIVES October 20, 2009 Mr. CONYERS (for himself, Mr. NADLER of New York, Mr. SCOTT of Virginia, Mr. COHEN, Ms. HARMAN, Ms. JACKSON-LEE of Texas, and Mr. JOHNSON of Georgia) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Permanent Select Committee on Intelligence and Committee on Financial Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To extend and modify authorities needed to combat terrorism and protect civil liberties, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) Short Title- This Act may be cited as the `USA PATRIOT Amendments Act of 2009'. (b) Table of Contents- The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I--USA PATRIOT ACT RELATED AMENDMENTS Sec Roving wiretaps. Sec Extension of sunset of sections 206 and 215 of USA PATRIOT Act. Sec Access to certain tangible things under section 501 of the Foreign Intelligence Surveillance Act of Sec Sunset relating to individual terrorists as agents of foreign powers. Sec Audits. Sec Criminal `sneak and peak' searches. Sec Use of pen registers and trap and trace devices under title 18, United States Code. Sec Orders for pen registers and trap and trace devices for foreign intelligence purposes. Sec Public reporting on the Foreign Intelligence Surveillance Act of Sec Challenges to nationwide orders for electronic evidence.

127 SEC ROVING WIRETAPS. TITLE I--USA PATRIOT ACT RELATED AMENDMENTS The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C et seq.) is amended-- (1) in section 104(a)(2), by striking `electronic surveillance' and inserting `electronic surveillance sufficient to allow a judge to determine that the target is a single individual'; and (2) in section 105(a)-- (A) in paragraph (3), by striking `and'; (B) in paragraph (4), by striking the period and inserting `; and'; and (C) by adding at the end the following new paragraph: `(5) the identity or description of the specific target of electronic surveillance included in the application pursuant to section 104(a)(2) is sufficient to allow the judge to determine that the target is a single individual.'. SEC EXTENSION OF SUNSET OF SECTIONS 206 AND 215 OF USA PATRIOT ACT. Section 102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (18 U.S.C note) is amended by striking `December 31, 2009' and inserting `December 31, 2013'. SEC ACCESS TO CERTAIN TANGIBLE THINGS UNDER SECTION 501 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF (a) Factual Basis for and Issuance of Orders- (1) IN GENERAL- Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended-- (A) in the section heading, by striking `certain business records' and inserting `tangible things'; and (B) in subsection (b)(2)(a), by striking `a statement of facts' and inserting `a statement of specific and articulable facts'. (2) TECHNICAL AND CONFORMING AMENDMENTS- (A) TITLE HEADING- Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C et seq.) is amended in the title heading by striking `CERTAIN BUSINESS RECORDS' and inserting `TANGIBLE THINGS'. (B) TABLE OF CONTENTS- The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C et seq.) is amended by striking the items relating to title V and section 501 and inserting the following: `TITLE V--ACCESS TO TANGIBLE THINGS FOR FOREIGN INTELLIGENCE PURPOSES `Sec Access to tangible things for foreign intelligence purposes and international terrorism investigations.'. (b) Judicial Review of FISA Orders- Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended-- (1) in subsection (c)(2)-- (A) in subparagraph (D) by striking `things; and' and inserting `things;'; (B) in subparagraph (E), by striking `subsection (a).' and inserting `subsection (a); and'; and (C) by adding at the end the following new subparagraph: `(F) shall direct the applicant to provide notice to each person receiving such order of-- `(i) the right to challenge the legality of a production order or nondisclosure order by filing a petition in accordance with subsection (f); and

128 `(ii) the procedures to follow to file such petition in accordance with such subsection.'; and (2) in subsection (f)(2)-- (A) in subparagraph (A)-- (i) in clause (i)-- (I) by striking `a production order' and inserting `a production order or nondisclosure order'; and (II) by striking `Not less than 1 year' and all that follows; (ii) in clause (ii), by striking `production order or nondisclosure'; and (B) in subparagraph (C)-- (i) by striking clause (ii); and (ii) by redesignating clause (iii) as clause (ii). (c) Minimization Procedures- Section 501(g) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861(g)) is amended-- (1) by redesignating paragraph (2) as paragraph (3); and (2) by inserting after paragraph (1) the following new paragraph: `(2) COMPLIANCE ASSESSMENT- At or before the end of the period of time for the production of tangible things under an order approved under this section or at any time after the production of tangible things under such order, a judge may assess compliance with the minimization procedures required to be followed under such order by reviewing the circumstances under which information concerning United States persons was retained or disseminated.'. (d) Exemption of Bookstores and Libraries From Orders Requiring the Production of Any Tangible Things for Certain Foreign Intelligence Investigations- Section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) is amended-- (1) in subsection (a)(3)-- (A) by striking `library patron lists,'; and (B) by striking `book customer lists,'; and (2) by adding at the end the following new subsection: `(i) Prohibition on Application for Certain Information From Booksellers and Libraries- `(1) IN GENERAL- No application may be made under this section with either the purpose or effect of searching for, or seizing from, a bookseller or library documentary materials that contain personally identifiable information concerning a patron of a bookseller or library. `(2) DEFINITIONS- In this subsection: `(A) The term `bookseller' means any person or entity engaged in the sale, rental or delivery of books, journals, magazines or other similar forms of communication in print or digitally. `(B) The term `library' has the meaning given that term under section 213(2) of the Library Services and Technology Act (20 U.S.C. 9122(2)) whose services include access to the Internet, books, journals, magazines, newspapers, or other similar forms of communication in print or digitally to patrons for their use, review, examination, or circulation. `(C) The term `patron' means any purchaser, renter, borrower, user, or subscriber of goods or services from a library or bookseller. `(D) The term `documentary materials' means any document, tape, or other communication created by a bookseller or library in connection with print or digital dissemination of a book, journal, magazine, newspaper, or other similar form of communication, including access to the Internet. `(E) The term `personally identifiable information' includes information that identifies a person as having used, requested, or obtained specific reading materials or services from a bookseller or library.'.

129 SEC SUNSET RELATING TO INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN POWERS. Section 6001(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C note; Public Law ) is amended-- (1) in paragraph (1)-- (A) by striking `the amendment made by subsection (a) shall cease to have effect' and inserting `effective'; and (B) by striking the period and inserting `-- `(A) subparagraph (C) of section 101(b)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)) is repealed; `(B) subparagraphs (D) and (E) of such section are redesignated as subparagraphs (C) and (D), respectively; `(C) paragraph (2) of section 601(a) of such Act (50 U.S.C. 1871(a)) is repealed; and `(D) paragraphs (3), (4), and (5) of such section are redesignated as paragraphs (2), (3), and (4), respectively.'; and (2) in paragraph (2)-- (A) by striking `EXCEPTION- With respect to' and inserting `EXCEPTION- `(A) EXISTING INVESTIGATIONS- With respect to'; and (B) by adding at the end the following new subparagraph: `(B) REPORTS- Notwithstanding the repeals made by paragraph (1), the first report required under section 601(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)) that is submitted after the effective date of such repeals shall include the number of individuals covered by an order issued pursuant to section 101(b)(1)(C) of such Act (as in effect on the day before such effective date).'. SEC AUDITS. (a) Tangible Things- Section 106A of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law ; 120 Stat. 200) is amended-- (1) in subsection (b)-- (A) in paragraph (1), by striking `2006' and inserting `2013'; and (B) in paragraph (5)(C), by striking `calendar year 2006' and inserting `each of calendar years 2006 through 2013'; (2) in subsection (c), by adding at the end the following: `(3) CALENDAR YEARS 2007 THROUGH Not later than December 31, 2010, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for calendar years 2007 through `(4) CALENDAR YEARS 2010 THROUGH Not later than December 31, 2011, and annually thereafter until December 31, 2014, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for the preceding calendar year.'; (3) in subsection (d)-- (A) in paragraph (1), by striking `or (c)(2)' and inserting `(c)(2), (c)(3), or (c)(4)'; and (B) in paragraph (2), by striking `and (c)(2)' and inserting `(c)(2), (c)(3), or (c)(4)'; and (4) in subsection (e), by striking `and (c)(2)' and inserting `(c)(2), (c)(3), or (c)(4)'. (b) National Security Letters- Section 119 of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law ; 120 Stat. 219) is amended-- (1) in subsection (b)(1), by striking `2006' and inserting `2013';

130 (2) in subsection (c), by adding at the end the following: `(3) CALENDAR YEARS 2007 THROUGH Not later than December 31, 2010, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for calendar years 2007 through `(4) CALENDAR YEARS 2010 THROUGH Not later than December 31, 2011, and annually thereafter until December 31, 2014, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for the previous calendar year.'; (3) in subsection (d)-- (A) in paragraph (1), by striking `or (c)(2)' and inserting `(c)(2), (c)(3), or (c)(4)'; and (B) in paragraph (2), by striking `or (c)(2)' and inserting `(c)(2), (c)(3), or (c)(4)'; and (4) in subsection (e), by striking `or (c)(2)' and inserting `(c)(2), (c)(3), or (c)(4)'. (c) Pen Registers and Trap and Trace Devices- (1) AUDITS- The Inspector General of the Department of Justice shall perform comprehensive audits of the effectiveness and use, including any improper or illegal use, of pen registers and trap and trace devices under title IV of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C et seq.) during the period beginning on January 1, 2007 and ending on December 31, (2) REQUIREMENTS- The audits required under paragraph (1) shall include-- (A) an examination of each instance in which the Attorney General or any other attorney for the Government submitted an application for an order or extension of an order under title IV of the Foreign Intelligence Surveillance Act of 1978, including whether the court granted, modified, or denied the application (including an examination of the basis for any modification or denial); (B) an examination of each instance in which the Attorney General authorized the installation and use of a pen register or trap and trace device on an emergency basis under section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843); (C) whether the Federal Bureau of Investigation requested that the Department of Justice submit an application for an order or extension of an order under title IV of the Foreign Intelligence Surveillance Act of 1978 and the request was not submitted to the court (including an examination of the basis for not submitting the application); (D) whether bureaucratic or procedural impediments to the use of pen registers and trap and trace devices under title IV of the Foreign Intelligence Surveillance Act of 1978 prevent the Federal Bureau of Investigation from taking full advantage of the authorities provided under that title; (E) any noteworthy facts or circumstances relating to the use of a pen register or trap and trace device under title IV of the Foreign Intelligence Surveillance Act of 1978, including any improper or illegal use of the authority provided under that title; and (F) an examination of the effectiveness of the authority under title IV of the Foreign Intelligence Surveillance Act of 1978 as an investigative tool, including-- (i) the importance of the information acquired to the intelligence activities of the Federal Bureau of Investigation or any other department or agency of the Federal Government; (ii) the manner in which the information is collected, retained, analyzed, and disseminated by the Federal Bureau of Investigation, including any direct access to the information provided to any other department, agency, or instrumentality of Federal, State, local, or tribal governments or any private sector entity;

131 (iii) with respect to calendar years 2010 through 2012, an examination of the minimization procedures used in relation to pen registers and trap and trace devices under title IV of the Foreign Intelligence Surveillance Act of 1978 and whether the minimization procedures protect the constitutional rights of United States persons; (iv) whether, and how often, the Federal Bureau of Investigation used information acquired under a pen register or trap and trace device under title IV of the Foreign Intelligence Surveillance Act of 1978 to produce an analytical intelligence product for distribution within the Federal Bureau of Investigation, to the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))), or to other Federal, State, local, or tribal government departments, agencies, or instrumentalities; and (v) whether, and how often, the Federal Bureau of Investigation provided information acquired under a pen register or trap and trace device under title IV of the Foreign Intelligence Surveillance Act of 1978 to law enforcement authorities for use in criminal proceedings. (3) SUBMISSION DATES- (A) PRIOR YEARS- Not later than December 31, 2010, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the audit conducted under this section for calendar years 2007 thorough (B) CALENDAR YEARS 2010 THROUGH Not later than December 31, 2011, and annually thereafter until December 31, 2014, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the audit conducted under this section for the previous calendar year. (4) PRIOR NOTICE TO ATTORNEY GENERAL AND DIRECTOR OF NATIONAL INTELLIGENCE; COMMENTS- (A) NOTICE- Not less than 30 days before the submission of a report under subparagraph (A) or (B) of paragraph (3), the Inspector General of the Department of Justice shall provide the report to the Attorney General and the Director of National Intelligence. (B) COMMENTS- The Attorney General or the Director of National Intelligence may provide such comments to be included in a report submitted under subparagraph (A) or (B) of paragraph (3) as the Attorney General or the Director of National Intelligence may consider necessary. (5) UNCLASSIFIED FORM- A report submitted under subparagraph (A) or (B) of paragraph (3) and any comments included under paragraph (4)(B) shall be in unclassified form, but may include a classified annex. SEC CRIMINAL `SNEAK AND PEAK' SEARCHES. Section 3103a of title 18, United States Code, is amended-- (1) in subsection (b)-- (A) in paragraph (1), by striking `may have an adverse result (as defined in section 2705, except if the adverse results consist only of unduly delaying a trial)' and inserting `will endanger the life or physical safety of an individual, result in flight from prosecution, result in the destruction of or tampering with the evidence sought under the warrant, or result in intimidation of potential witnesses'; and

132 (B) in paragraph (3), by striking `30 days' and all that follows and inserting `7 days after the date of its execution.'; and (2) in subsection (c), by striking `for good cause shown' and all that follows and inserting `upon application of the United States Attorney for the district seeking the delay, for additional periods of not more than 21 days for each application, if the court finds, for each application, reasonable cause to believe that notice of the execution of the warrant will endanger the life or physical safety of an individual, result in flight from prosecution, result in the destruction of or tampering with the evidence sought under the warrant, or result in intimidation of potential witnesses.'. SEC USE OF PEN REGISTERS AND TRAP AND TRACE DEVICES UNDER TITLE 18, UNITED STATES CODE. Section 3122(b)(2) of title 18, United States Code, is amended to read as follows: `(2) a statement of specific and articulable facts by the applicant to justify the belief of the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.'. SEC ORDERS FOR PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN INTELLIGENCE PURPOSES. (a) Application- Section 402(c) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842(c)) is amended-- (1) in paragraph (1), by striking `and' at the end; (2) in paragraph (2)-- (A) by striking `a certification by the applicant' and inserting `a statement of the specific and articulable facts relied upon by the applicant to justify the belief of the applicant'; and (B) by striking the period at the end and inserting `; and'; and (3) by adding at the end the following: `(3) a statement of proposed minimization procedures.'. (b) Minimization Procedures- (1) DEFINITION- Section 401 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841) is amended by adding at the end the following: `(4) The term `minimization procedures' means-- `(A) specific procedures that are reasonably designed in light of the purpose and technique of an order for the installation and use of a pen register or trap and trace device, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; `(B) procedures that require that nonpublicly available information, which is not foreign intelligence information shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; and `(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.'. (2) PEN REGISTERS AND TRAP AND TRACE DEVICES- Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842) is amended-- (A) in subsection (d)-- (i) in paragraph (1)--

133 (I) by striking `finds that the application' and inserting the following: `finds that-- `(A) the application'; (II) in subparagraph (A), as designated by subclause (I) of this clause, by striking `section.' and inserting `section; and'; and (III) by adding at the end the following new subparagraph: `(B) the proposed minimization procedures meet the definition of minimization procedures under this title.'. (ii) in paragraph (2)(B)-- (I) in clause (ii)(ii), by striking `and' after the semicolon; and (II) by adding at the end the following: `(iv) the minimization procedures be followed; and'; and (B) by adding at the end the following: `(h) At or before the end of the period of time for which the installation and use of a pen register or trap and trace device is approved under an order or an extension under this section, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was retained or disseminated.'. (3) EMERGENCIES- Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended-- (A) by redesignating subsection (c) as (d); and (B) by inserting after subsection (b) the following: `(c) If the Attorney General authorizes the emergency installation and use of a pen register or trap and trace device under this section, the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed.'. (4) USE OF INFORMATION- Section 405(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1845(a)(1)) is amended by inserting `and the minimization procedures required to be followed under the order authorizing the acquisition of such information under section 402 or under subsection (c) of section 403 for an emergency acquisition under such section' before the period. SEC PUBLIC REPORTING ON THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF Section 601 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1871) is amended-- (1) by redesignating subsections (b) through (e) as subsections (c) through (f), respectively; (2) by inserting after subsection (a) the following: `(b) Public Report- The Attorney General shall make publicly available the portion of each report under subsection (a) relating to paragraph (1) of such subsection.'; and (3) in subsection (e), as so redesignated, by striking `subsection (c)' and inserting `subsection (d)'. SEC CHALLENGES TO NATIONWIDE ORDERS FOR ELECTRONIC EVIDENCE. Section 2703 of title 18, United States Code, is amended by adding at the end the following: `(h) Judicial Review- A provider of electronic communication service or remote computing service may challenge a subpoena, order, or warrant requiring disclosure of customer communications or records under this section in-- `(1) the United States district court for the district in which the order was issued; or `(2) the United States district court for the district in which the order was served.'.

134 Hearing on the USA PATRIOT Act Committee on the Judiciary United States Senate Wednesday, September 23, 2009 Testimony of Suzanne E. Spaulding, Esq.

135 Subcommittee on the Constitution, Civil Rights, and Civil Liberties Judiciary Committee United States House of Representatives Hearing on the USA PATRIOT Act Wednesday, September 23, 2009 Testimony of Suzanne E. Spaulding, Esq. Chairman Leahy, Ranking Member Sessions, and members of the Committee, thank you for inviting me to participate in today s hearing on the USA PATRIOT Act and related provisions. Four years ago, I testified in Congress regarding the provisions of the PATRIOT Act that were designated to sunset in A number of concerns with the original language in the Act were addressed in the Reauthorization Act of However, some remain, particularly some of the overarching issues, and some were compounded in subsequent legislation. As I attempt to address these issues this morning, I am mindful that we recently marked another anniversary of the attacks of September 11, This indelible manifestation of the terrorist threat continues to fuel our determination to ensure that those in our government who work so tirelessly to protect us from another attack have the tools they need and that we are not undermining their efforts by failing to consider strategic as well as tactical objectives. In the eight years since 9/11, we have learned a great deal about the nature of the terrorist threat and the best ways to combat it. Armed with that wisdom, and with determination rather than fear, it is appropriate--and important for our national security-- that we continue to reexamine our response. 2

136 We have to demonstrate that we still believe what our founders understood; that respect for civil liberties is not a luxury of peace and tranquility. Instead, in a time of great peril, it was seen as the best hope for keeping this nation strong and resilient. The men who signed the Constitution and those who developed the Bill of Rights were not fuzzyheaded idealists but individuals who had fought a war and knew that they faced an uncertain and dangerous time. Respect for the Constitution and careful efforts to ensure that our laws protect the rights enshrined therein are a source of strength and can be a powerful antidote to the twisted lure of the terrorist s narrative. In fact, after spending nearly 20 years working terrorism issues for the government, I am convinced that this approach is essential to defeating the terrorist threat. With this understanding of the national security imperative, I support this committee s intention not to limit its review to those few provisions that are scheduled to sunset. Instead, Congress should use this opportunity to examine ways to improve other domestic intelligence laws as well, such as the various provisions for national security letters. As I have urged before, Congress should undertake a comprehensive review of domestic intelligence activities, and I would encourage the Administration to do the same. The legal framework for domestic intelligence has come to resemble a Rube Goldberg contraption rather than the coherent foundation we expect and need from our laws. The rules that govern domestic intelligence collection are scattered throughout the US Code and in a multitude of internal agency policies, guidelines, and directives, developed piecemeal over time, often adopted quickly in response to scandal or crisis and sometimes in secret. They do not always reflect a firm understanding of why intelligence collection needs to be treated differently than law enforcement investigations, the unique intelligence requirements for homeland security, the impact of dramatic changes in technology, and the degree to which respect for civil liberties, fundamental fairness, and the rule of law is essential to winning the battle for hearts and minds--and, therefore, essential to our homeland security. 3

137 The various authorities for gathering information inside the United States, including the authorities in FISA, need to be considered and understood in relation to each other, not in isolation. For example, Congress needs to understand how FISA surveillance authority relates to current authorities for obtaining or reviewing records, such as national security letters, Section 215, the physical search and pen register/trap and trace authorities in FISA, and the counterparts to these in the criminal context, as well as other law enforcement tools such as grand juries and material witness statutes. 1 Executive Order 12333, echoed in FISA, calls for using the least intrusive collection techniques feasible. The appropriateness of using electronic surveillance or other intrusive techniques to gather the communications of Americans should be considered in light of other, less intrusive techniques that might be available to establish, for example, whether a phone number belongs to a suspected terrorist or the pizza delivery shop. Electronic surveillance is not the all or nothing proposition often portrayed in some of the debates. In addition, President Obama has already committed to asking his Attorney General to conduct a comprehensive review of domestic surveillance. If that review is not already underway, Congress should encourage its initiation. The IG Report on the Terrorist Surveillance Program clearly indicated that there were programs beyond its scope. These need to be examined and a report made to Congress and, to the maximum extent possible, to the public. I understand that today s hearing, however, is particularly focused on the provisions that will sunset at the end of this year, so the balance of my testimony will address those. 1 See, for example, the May 2008 OIG Report on Section 215, which cites concerns about the FBI s use of NSLs to get information after the FISA Court, citing First Amendment concerns, had twice declined to sign Section 215 orders in the same investigation. The IG questioned the appropriateness of this because NSLs have the same First Amendment caveat as Section 215 requests and the FBI issued the NSLs based on the same factual predicate, without further reviewing the underlying investigation to ensure that it was not premised solely on protected First Amendment conduct. OIG Report at 5. 4

138 Distinguishing between domestic intelligence operations and criminal law enforcement investigations Sections 215 and 206 of the PATRIOT Act, like most domestic intelligence authorities, both have corollaries in the criminal context. This was often cited as justification for providing for these authorities in the intelligence context: if we can do these kinds of things when investigating drug dealers, certainly we should have this authority for intelligence operations against terrorists. It s a compelling argument. But sometimes important elements get lost in the translation from the criminal to intelligence realm. Intelligence operations are often wide-ranging rather than specifically focused creating a greater likelihood that they will include information about ordinary, law-abiding citizens; they are conducted in secret, which means abuses and mistakes may never be uncovered; and they lack safeguards against abuse that are present in the criminal context where inappropriate behavior by the government could jeopardize a prosecution. These differences between intelligence and law enforcement help explain this nation s longstanding discomfort with the idea of a domestic intelligence agency. Because the safeguards against overreaching or abuse are weaker in intelligence operations than they are in criminal investigations, powers granted for intelligence investigations should be no broader or more inclusive than is absolutely necessary to meet the national security imperative and should be accompanied by rigorous oversight within the executive branch, by Congress and, where appropriate, in the courts. Unfortunately, this essential caution was often ignored in the FISA amendments contained in the PATRIOT Act. The authority actually became broader as it moved into the intelligence context and oversight was not always accordingly enhanced. 5

139 Section 206: Roving Wiretaps Section 206 was intended to bring the roving wiretap authority that is available in criminal investigations into the realm of intelligence surveillance under FISA. This was an essential update but some important safeguards in the criminal provisions were lost in the transition. In a criminal investigation, under Title III, roving wiretap applications must definitively identify the target of the surveillance. FISA roving wiretaps need only provide a description of the target if the identity is not known. This less rigorous standard increases the prospect that the government may wind up mistakenly intercepting communications of innocent persons. In addition, Title III permits surveillance only when it is reasonable to assume that the suspect is reasonably proximate to the instrument that is being tapped--and only one instrument can be tapped at a time. This requirement, like the requirement to identify the target, was designed to reduce the likelihood that communications of innocent persons would be intercepted. This requirement is not in section 206. Title III also differs from the FISA roving wiretap in requiring that the target be notified of the surveillance, generally 90 days after the surveillance ends. This notice requirement is understandably absent in the intelligence context but so, too, is the safeguard that notice provides as a mechanism to deter and detect mistakes or abuses. Deterrence is also weakened in the intelligence context because prosecution is usually not the goal. In the criminal context, where the focus is on successful prosecution, the exclusionary rule serves an essential function, one that is largely absent in intelligence operations. As the Supreme Court explained in Terry v. Ohio, 392 U.S. 1 (1968): Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging 6

140 lawless police conduct. See Weeks v. United States, 232 U.S. 383, (1914). Thus, its major thrust is a deterrent one, see Linkletter v. Walker, 381 U.S. 618, (1965), and experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that, without it, the constitutional guarantee against unreasonable searches and seizures would be a mere "form of words." Mapp v. Ohio, 367 U.S. 643, 655 (1961). Regardless of how effective the rule may be where obtaining convictions is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal. Combine this with a statutory standard that is less rigorous than the criminal standard, both as regards the identity of the target and the proximity to the instrument, and you compound the risk of mistake or abuse. This highlights the care that must be taken when importing criminal authorities into the intelligence context, and why it may be necessary to include more rigorous standards and/or other safeguards. For example, Congress should consider tightening the language to require the judge to determine that the target has been described with sufficient particularity to distinguish him or her from other potential users of the instrument or facility being surveilled. Similarly, while it is possible that the proximity requirement is somehow included in the minimization procedures that are called for in section 206, Congress may want to consider explicitly including this requirement in the statute, as it is in Title III. Finally, perhaps the FISA judge should have the discretion to impose a time limit on the lack of notice, giving the government an opportunity to argue for an extension if circumstances warrant it. 7

141 Section 215: Tangible Things Orders Section 215 of FISA also imported into the intelligence realm authority similar to that traditionally exercised in criminal investigations, in this case attempting to mimic the use of grand jury or administrative subpoenas. However, the criminal investigative tools require some criminal nexus. Not necessarily that a crime has already been committed, but that the activity that is being investigated would violate a criminal statute. Under our constitution, criminal activity must be well defined so that individuals are clearly on notice with regard to whether their actions may violate the law and thus invite government scrutiny. When the authority moved into the intelligence context, however, the requirement for a criminal nexus was dropped. Instead, section 215 orders require only that the information demanded by the government is relevant to an authorized investigation (other than a threat assessment) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities Consider this language. It does not say an investigation into international terrorism activities which would at least mean there was some specific international terrorism activity being investigated. Instead, it says an investigation to protect against international terrorism. This very broad language may or may not involve criminal activity and provides potentially far greater flexibility than criminal subpoenas. Again, this may be appropriate for the wide-ranging nature of intelligence collection-- but it also provides greater opportunity for abuse and mistakes. Amending the language to read an investigation of international terrorism activities should meet the national security imperative and provide better protection for innocent persons. The Reauthorization Act of 2006 attempted to address this concern by adding a provision that the things being sought are presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to (i) a foreign power or an agent of a foreign power; (ii) the activities of a suspected agent of a 8

142 foreign power who is the subject of such authorized investigation; or (iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation. 2 The impact of this added language is not entirely clear. First, the third category, which includes anyone known to a suspected agent of a foreign power, is extremely broad and clearly could include completely innocent Americans. David Kris and Doug Wilson cite the example of the bank records of a grade-school teacher of the child of a suspected agent of a foreign power. 3 But it could also apply to your daughter s diary if she is in that child s class and known to the parent. Moreover, this provision does not preclude the issuance of orders pursuant to facts that do not fall within any of these three categories. In other words, this language, by creating a presumption rather than a requirement, does not restrict the extremely broad scope of the term relevant to an investigation. The weak safeguard provided by the presumptively relevant language also stems from the context in which Section 215 orders are considered. Creating a presumption generally implies a shift in the burden of proof from one party to another in an adversarial proceeding. Section 215 orders are considered in an ex parte proceeding, not in an adversarial context. Once served, an order can be challenged by the recipient but, if served on a third-party record holder, there is very little incentive for that record holder to challenge the order. In fact, the letter from the Department of Justice concedes that no recipient of a FISA business records order has ever challenged the validity of the order. These record holders cannot be considered as fully representing the interests of the individual whose records are being sought USC 1861(b)(2). 3 National Security Investigations & Prosecutions, David S. Kris and J. Douglas Wilson, Thomson West (2007) at 18:3. 9

143 Congress should consider changing the language to remove the presumption and make it clear that the tangible things being sought must be relevant to an authorized investigation and fall into one of these three categories. The Reauthorization Act also added a requirement that the Section 215 application include a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. (Emphasis added.) The requirement to provide facts to back up the government s assertion was an improvement over the PATRIOT Act language, but pre-patriot Act language in this section required the government to provide specific and articulable facts. This is the standard normally used 4 and should be restored. The specific and articulable language may have been dropped in a mistaken belief that Section 215 does not implicate Fourth Amendment or other constitutional concerns. While this argument may have carried weight before the PATRIOT Act changes, it is certainly not valid today. Section 215 as originally adopted by Congress in 1998 applied only to records from a common carrier, public accommodation facility, physical storage facility or vehicle rental facility. This was properly entitled the Business Records provision. The PATRIOT Act amendments now allow the orders to be issued to obtain any tangible things from any person. This could include your personal notes, your daughter s diary, or your computer. Congress should change the title of this provision to Access to tangible things, to more accurately reflect the broad scope of items now susceptible to such orders. It is certainly not limited to 3rd party records, for example. Thus, even if you accept as still valid the 3rd-party-record rule, a premise that needs serious re-evaluation in light of data aggregation/data mining technology, this section would still include things to which the Fourth Amendment clearly applies. Moreover, as the OIG Report concluded, Section See, e.g., Terry v. Ohio, 392 U.S. 1 (1968). 10

144 orders can also raise issues related to the Fifth and First Amendments. (See IG Report at 81.) Finally, Section 215 also puts the burden on the recipient of order to challenge a gag order before the government even has to certify that there would be any harm from disclosure. Congress should consider requiring the government to set forth in the initial application the grounds upon which it believes disclosure will be harmful. 5 And the oneyear time frame should apply to the duration of all gag orders, perhaps with the FISA judge having discretion to impose a shorter time frame, renewable indefinitely. Lone Wolf Four years ago I urged Congress to let the Lone Wolf provision sunset. I reiterate that plea today. The Foreign Intelligence Surveillance Act (FISA) is an extremely important and extraordinary national security tool whose policy and constitutional justification is needlessly undermined by the Lone Wolf provision. The Administration s admission that they have never once used the authority seems to provide compelling evidence that it was not needed and is not an essential counterterrorism tool. The common wisdom if it ain t broke, don t fix it was ignored when Congress enacted the Lone Wolf amendment to the Foreign Intelligence Surveillance Act (FISA), allowing its use against an individual acting totally alone, with no connection to any foreign power, so long as they are engaged in international terrorism or activities in preparation therefor. Although the Lone Wolf provision is often referred to as the Moussaoui fix, in fact, no fix was needed in the Moussaui case because it was not FISA s requirements that prevented the FBI from gaining access to his computer back in August of The problem was a misunderstanding of FISA. This conclusion is 5 This would be consistent with the federal court decision that found national security letter gag orders that do not require the government to initiate judicial review of the order or provide facts to support its assertions of harm to be an unconstitutional infringement of the First Amendment. Doe v. Muksasey, 549 f3d 861 (2d cir. 2008). 11

145 supported by the findings of the Joint Congressional Intelligence Committee Inquiry into the 9/11 Attacks, an exhaustive Senate Judiciary Committee inquiry, and the 9/11 Commission. In order to obtain a FISA order authorizing access to Moussaoui s computer, the FBI needed to show probable cause to believe that Moussaoui was acting for or on behalf of a foreign power. A foreign power is defined to include a group engaged in international terrorism. There is no requirement that it be a recognized terrorist organization. Two people can be a group engaged in international terrorism. (See FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures, An Interim Report by Senators Patrick Leahy, Charles Grassley, & Arlen Specter (February 2003) at p. 17.) Moreover, the government does not have to prove the target s connection to a terrorist group. They must merely meet the probable cause standard, which, as the Judiciary Committee Report points out, does not mean more likely than not or an over 51% chance, but only the probability and not a prima facie showing. The Report concluded that there appears to have been sufficient evidence in the possession of the FBI which satisfied the FISA requirements for the Moussaoui application (p. 23). Thus, no fix was required to search Moussaoui s computer. Even if the FBI had not been able to meet the relatively low probable cause standard for showing that Moussaoui was working with at least one other person, the FBI could very likely have obtained a criminal warrant to search Moussaoui s computer. They did not pursue that because they were concerned that doing so would preclude them from getting a FISA warrant later if they were turned down for the criminal warrant or ultimately did develop what they thought was sufficient information linking him to a terrorist group. This concern was based on the primary purpose test viewed as precluding the use of FISA if the primary purpose was criminal prosecution rather than intelligence collection which was subsequently changed in the USA PATRIOT Act. Now 12

146 that this primary purpose test has been eliminated, and particularly in light of a subsequent opinion by the Foreign Intelligence Surveillance Court of Review, this would no longer be a concern and the government today could seek a criminal warrant without concern of precluding future use of FISA. The Department of Justice in its letter to the Congress last week stated that this Lone Wolf authority had never been used but argued that we should keep it in FISA just in case. The problem with this reasoning is that it comes at a high cost. In addition to being unnecessary, the Lone Wolf provision by extending FISA s application to an individual acting entirely on their own-- undermines the policy and constitutional justification for the entire FISA statute. When Congress enacted FISA, according to the Senate Report, it carefully limited its application in order to ensure that the procedures established in [FISA] are reasonable in relation to legitimate foreign counterintelligence requirements and the protected rights of individuals. Their reasonableness depends, in part, upon an assessment of the difficulties of investigating activities planned, directed, and supported from abroad by foreign intelligence services and foreign-based terrorist groups. Senate Report , at (emphasis added). The Congressional debate, and the court cases that informed and followed it, clearly reflect the sense that this limited and extraordinary exception from the normal criminal warrant requirements was justified only when dealing with foreign powers or their agents. In 2002, the FISA Court of Review (FISCR) cited the statute s purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, to conclude that FISA searches, while not clearly meeting minimum Fourth Amendment warrant standards, are nevertheless reasonable. 6 In its more recent case upholding the constitutionality of the Protect America Act as applied, the FISC again relied upon the 6 In re Sealed Case, 310 F.3rd 717 (Foreign Intel. Surv. Ct. Rev. 2002). 13

147 government s decision to apply the authority only to foreign powers or agents of foreign powers reasonably believed to be outside the US. 7 Individuals acting entirely on their own simply do not implicate the level of foreign and military affairs that courts have found justify the use of this extraordinary foreign intelligence tool. The FISA exception to the Fourth Amendment warrant standards was not based simply on a foreign nexus; it did not apply to every non-us person whose potentially dangerous activity transcended US borders. It was specifically limited to activities involving foreign powers. The requirement that the Lone Wolf must be engaged in international terrorism or acts in preparation therefore does not solve this problem. Nowhere in FISA s definition of international terrorism is there any requirement for a connection to a foreign government or terrorist group. The definition of international terrorism merely requires a violent act intended to intimidate a civilian population or government that occurs totally outside the United States, or transcends national boundaries in terms of the means by which it is accomplished, the persons it appears intended to coerce or intimidate, or the locale in which the perpetrators operate or seek asylum. This would cover an individual inside the US who buys a gun from Mexico (in what would be an unusual reversal of the normal directional flow of guns) to threaten a teacher in a misguided attempt to get the government to change its policies on mandatory testing in schools. Nor should we rely upon FISA judges to ensure that an overly broad standard is only applied in ways that are sensible, since the law makes clear that they must approve an application if the standards set forth in the statute are met. 7 In re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, No. 08-1, August 22,

148 While the Administration admits to never having used this provision, and concedes that they cannot determine whether any of the targets will so completely lack connections to groups that they cannot be accommodated under other definitions, the letter from the Department of Justice offers a couple of hypotheticals to justify the just in case argument. Keep in mind, however, that even if FISA surveillance and secret search authority were not available, the government can still investigate and, at least in the case of the known terrorist, make an arrest. For example, the government can find out all the people with whom each of those individuals is communicating, get their credit card information to see where they are at various times through the day and what transactions they engage in, and put them under physical surveillance. Finally, if there is an urgent need to conduct electronic surveillance before any indicia can be gathered that the person is working with someone else, Title III is a viable option. If the government can make a compelling case that these investigative tools are inadequate, Congress could consider allowing the government to use authorities in FISA other than the most intrusive authorities of electronic surveillance and physical search to investigate a suspected Lone Wolf. In this way, the government could use Section 215 (and pen register/trap & trace authority, which does not require that the target is an agent of a foreign power), with the attendant secrecy, in order to gather indicia that at least one other person is involved--at which point the electronic surveillance and physical search authorities would be available. Congress should let the terrorism Lone Wolf provision sunset. By defining an individual acting totally alone, with no connection to any other individual, group, or government, as an agent of a foreign power, Congress adopted the logic of Humpty Dumpty, who declared: When I use a word, it means just what I choose it to mean. Unfortunately, this legislative legerdemain stretched the logic of this important statutory tool to a point that threatens its legitimacy. If its use against a true Lone Wolf is ever challenged in court, FISA, too, may have a great fall. 15

149 Expansion of Lone Wolf Unfortunately, instead of repealing or fixing the Lone Wolf provision, Congress expanded it. The FISA Amendments Act enacted last year added to the agent of a foreign power definition a non-us person engaged in the international proliferation of weapons of mass destruction. This not only repeats the error of targeting an individual acting alone, it compounds the concern by removing any requirement that the activity constitute a crime. The definition of international terrorism at least includes a requirement that the activity involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State. As noted in the discussion above regarding Sections 206 and 215, the requirement for a criminal predicate is significant because, in our system, individuals are held to be on notice, through the careful definitions in the criminal code, of when they are engaging in criminal activity and thereby risking government intrusion, such as electronic surveillance of their communications. International proliferation of weapons of mass destruction is not defined in FISA. Instead, the amendments included a definition of weapons of mass destruction. The activity that puts an individual at risk of government surveillance, however, is proliferation of those weapons. The innocent, unwitting sale of dual-use goods to a foreign front company could be considered proliferation. If so, a non-us person working for an American company who is involved in completely legal sales of such dual-use goods could have all of their communications monitored and their home secretly searched by the US government. I served as the Legal Adviser for the intelligence community s Nonproliferation Center and as Executive Director of a Congressionally-created WMD commission, so I fully understand the imperative to stop the spread of these dangerous technologies. 16

150 However, there are many tools available to investigate these activities without permitting the most intrusive technique--listening to phone calls, reading s, and secret physical searches--to be used against people who are unwittingly involved and whose activities are legal. This overly broad extension of FISA raises significant constitutional issues. Congress should add a knowing requirement, just as there is for aiding and abeting clandestine intelligence activities. Alternatively, Congress should define proliferation to include only activity that would constitute a crime. Conclusion Let me close by commending the Committee for its commitment to ensuring that the government has all appropriate and necessary tools at its disposal in this vitally important effort to counter today s threats and that these authorities are crafted and implemented in a way that meet our strategic goals as well as tactical needs. With a new Administration that provokes less fear of the misuse of authority, it may be tempting to be less insistent upon statutory safeguards. On the contrary, this is precisely the time to seize the opportunity to work with the Administration to institutionalize appropriate safeguards in ways that will mitigate the prospect for abuse by future Administrations, or even this Administration in the wake of some event. Thank you. 17

151

152 STATEMENT OF DAVID KRIS ASSISTANT ATTORNEY GENERAL BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ENTITLED REAUTHORIZING THE USA PATRIOT ACT: ENSURING LIBERTY AND SECURITY PRESENTED SEPTEMBER 23, 2009

153 Statement of David Kris Assistant Attorney General Before the Committee on the Judiciary United States Senate For a Hearing Entitled Reauthorizing the USA PATRIOT Act: Ensuring Liberty and Security Presented September 23, 2009 Chairman Leahy, Ranking Member Sessions, and Members of the Senate Judiciary Committee, thank you for inviting me to speak to you today about the Administration s position regarding three Patriot Act Provisions that will, by their terms, expire on December 31, We believe that the best legislation will emerge from a careful and collaborative examination of these matters. As you know, today s hearing has been preceded by extensive discussion and deliberation within the legislative and executive branches, and constructive discussions have recently begun between Administration officials and Congressional staff. I would like to extend the Attorney General s gratitude for providing the Department with this opportunity to present the Administration s views formally to the Members of this Committee today. Before I address each of the three expiring authorities, I would like to address a concern raised often during our discussions with Committee staff. The Department understands that Members of Congress may propose modifications to the legislation governing the three expiring authorities and other related authorities with the goal of providing additional protection for the privacy of law abiding Americans. The protection of privacy and civil liberties is of deep and abiding concern to the Department of Justice, and to the Administration as a whole. We are ready and willing to work with Members on any specific proposals you may have to craft legislation that both provides effective investigative authorities and protects privacy and civil liberties. With respect to the three expiring authorities, we recommend reauthorizing section 206 of the USA PATRIOT Act, which provides for roving surveillance of targets who take measures to thwart FISA surveillance. It has proven to be an important intelligence-gathering tool in a small but significant subset of FISA electronic surveillance orders. This provision states that where the Government sets forth in its application for a surveillance order specific facts indicating that the actions of the target of the order may have the effect of thwarting the identification, at the time of the application, of third parties necessary to accomplish the ordered surveillance, the order shall direct such third parties, when identified, to furnish the Government with all assistance necessary to accomplish surveillance of the target identified in the order. In other words, the roving authority is only available when the Government is able to provide specific information that the target may engage in counter

154 surveillance activity (such as rapidly switching cell phone numbers). The language of the statute does not allow the Government to make a general, boilerplate allegation that the target may engage in such activities; rather, the Government must provide specific facts to support its allegation. There are at least two scenarios in which the Government s ability to obtain a roving wiretap may be critical to effective surveillance of a target. The first is where the surveillance targets a traditional foreign intelligence officer. In these cases, the Government often has years of experience maintaining surveillance of officers of a particular foreign intelligence service who are posted to locations within the United States. The FBI will have extensive information documenting the tactics and tradecraft practiced by officers of the particular intelligence service, and may even have information about the training provided to those officers in their home country. Under these circumstances, the Government can furnish specific facts in its application to the FISA Court that demonstrate that the actions of the individual may have the effect of thwarting the identification of third parties whose assistance is needed to conduct the surveillance. The second scenario in which the ability to obtain a roving wiretap may be critical to effective surveillance is the case of an individual who actually has engaged in countersurveillance activities or in preparations for such activities. In some cases, individuals already subject to FISA surveillance are observed to be engaging in counter-surveillance or instructing associates on how to communicate with them through more secure means. In other cases, non- FISA investigative techniques have revealed counter-surveillance preparations (such as buying throwaway cell phones or multiple calling cards). The Government then offers these specific facts to the FISA court as justification for a grant of roving authority. Since the roving authority was added to FISA in 2001, the Government has sought to use it in a relatively small number of cases (on average, twenty-two applications annually for ). We would be pleased to brief Members or staff regarding specific case examples in a classified setting. The FBI uses the granted authority only when the target actually begins to engage in counter-surveillance activity that thwarts the already-authorized surveillance, and does so in a way that renders the use of roving authority feasible. Roving authority is subject to the same court-approved minimization rules that govern other electronic surveillance under FISA and that protect against the acquisition or retention of non-pertinent information. The statute generally requires the Government to notify the FISA court within 10 days of the date upon which surveillance begins to be directed at any new facility. Over the past seven years, this process has functioned well and has provided effective oversight for this investigative technique. We believe that the basic justification offered to Congress in 2001 for the roving authority remains valid today. Specifically, the ease with which individuals can rapidly shift between communications providers, and the proliferation of both those providers and the services they offer, almost certainly will increase as technology continues to develop

155 International terrorists, foreign intelligence officers, and espionage suspects like ordinary criminals have learned to use these numerous and diverse communications options to their advantage. Any effective surveillance mechanism must incorporate the ability to address rapidly an unanticipated change in the target s communications behavior. The roving electronic surveillance provision has functioned as intended and has addressed an investigative requirement that will continue to be critical to national security operations. Accordingly, we recommend reauthorizing this feature of FISA. We also recommend reauthorizing section 215 of the USA PATRIOT Act, which allows the FISA court to compel the production of business records. The business records provision addressed a gap in intelligence collection authorities that had previously existed and has proven valuable in a number of contexts. The USA PATRIOT Act made the FISA authority relating to business records roughly analogous to that available to FBI agents investigating criminal matters through the use of grand jury subpoenas. The original FISA language, added in 1998, limited the business records authority to four specific types of records, and required the Government to demonstrate specific and articulable facts supporting a reason to believe that the person to whom the requested records pertain was a foreign power or an agent of a foreign power. In the USA PATRIOT Act, the authority was changed to encompass the production of any tangible things and the legal standard was changed to relevance to an authorized investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. The Government first used the USA PATRIOT Act business records authority in 2004 after extensive internal discussions over its proper implementation. The Department s inspector general evaluated the Department s implementation of this new authority at length, in reports that are now publicly available. Other parts of the USA PATRIOT Act, specifically those eliminating the wall separating intelligence operations and criminal investigations, also had an effect on the operational environment. The greater access that intelligence investigators now have to criminal tools (such as grand jury subpoenas) reduces but does not eliminate the need for intelligence tools, such as the business records authority. The operational security requirements of most intelligence investigations still require the secrecy afforded by the FISA authority. For the period , the FISA court has issued about 236 orders to produce business records. Of these, 173 orders were issued in in combination with FISA pen register orders to address an anomaly in the statutory language that prevented the acquisition of subscriber identification information ordinarily associated with pen register information. Congress corrected this deficiency in the pen register provision in 2006 with language in the USA PATRIOT Improvement and Reauthorization Act. Thus, this use of the business records authority became unnecessary. The remaining business records orders issued between 2004 and 2007 were used to obtain transactional information. As many Members are aware, some of these orders were used - 3 -

156 to support important and highly sensitive intelligence collections. The Department can provide additional information to Members or their staff in a classified setting. It is noteworthy that no recipient of a FISA business records order has ever challenged the validity of the order, despite the availability, since 2006, of a clear statutory mechanism to do so. At the time of the USA PATRIOT Act, there was concern that the FBI would exploit the broad scope of the business records authority to collect sensitive personal information on constitutionally protected activities, such as the use of public libraries. This simply has not occurred, even in the environment of heightened terrorist threat activity. The oversight provided by Congress since 2001, the specific oversight provisions added to the statute in 2006, and the requirement that the government make a specific showing to the FISA Court in each application have helped to ensure that the authority is being used as intended. Based upon this operational experience, we believe that the FISA business records authority should be reauthorized. There will continue to be instances in which FBI investigators need to obtain transactional information that does not fall within the scope of authorities relating to national security letters and are operating in an environment that precludes the use of less secure criminal authorities. Moreover, in some instances, such as counterintelligence investigations, the use of criminal authorities may be inappropriate because the investigation is not focused on a violation of criminal law. Many of these instances will be mundane (as they have been in the past), such as the need to obtain driver s license information that is protected by State law. Others will be more complex, such as the need to track the activities of intelligence officers through their use of certain business services. In all these cases, the availability of a generic, court-supervised FISA business records authority is the best option for advancing national security investigations in a manner that protects privacy and civil liberties. The absence of such an authority could force the FBI to sacrifice key intelligence opportunities, to the detriment of the national security. Finally, the Department recommends reauthorizing Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, which defines a lone wolf agent of a foreign power and allows a non-united States person who engages in international terrorism activities to be considered an agent of a foreign power under FISA. Enacted in 2004, this provision arose from discussions inspired by the Zacarias Moussaoui case. The basic idea behind the authority was to cover situations in which information linking the target of an investigation to an international group was absent or insufficient, although the target s engagement in international terrorism was sufficiently established. The definition is quite narrow: it applies only to non-united States persons; the activities of the person must meet the FISA definition of international terrorism ; and the information likely to be obtained must be foreign intelligence information. What this means, in practice, is that the Government must know a great deal about the target, including the target s purpose and plans for terrorist activity (in order to satisfy the definition of international terrorism ), but still be unable to connect the individual to any group that meets the FISA definition of a foreign power

157 To date, the Government has not encountered a case in which this definition was both necessary and available, i.e., the target was a non-united States person. Thus, the definition has never been used in a FISA application. We do not believe, however, that this means the authority is now unnecessary. Subsection 101(b) of FISA provides ten separate definitions for the term agent of a foreign power (five applicable only to non-united States persons, and five applicable to all persons). Some of these definitions cover the most common fact patterns; others describe narrow categories that may be encountered rarely. Although the latter group may be rarely encountered, it includes legitimate targets that cannot be accommodated under the more generic definitions and will escape surveillance but for the more specific definitions. We believe that the lone wolf provision falls squarely within this class. While we cannot predict the frequency with which it may be used, we can foresee situations in which it would be the only avenue to effect surveillance. For example, we could have a case in which a known international terrorist affirmatively severs his connection with his group, perhaps following some internal dispute. Although the target still would be an international terrorist and an appropriate target for intelligence surveillance, the Government could no longer represent to the FISA court that he is currently a member of an international terrorist group or acting on its behalf. In the absence of the lone wolf definition, the Government would have to postpone FISA surveillance unless and until the target could be linked to another group. The absence of a known connection would not, however, necessarily mean that the individual did not pose a real and imminent threat. The lone wolf provision may also be required to conduct surveillance on an individual who self-radicalizes by means of information and training provided via the Internet. Although this target would have adopted the aims and means of international terrorism (and therefore be a legitimate national security target), he would not actually be acting as an agent of a terrorist group. Without the lone wolf definition, the Government might be unable to establish FISA surveillance. These scenarios are not remote hypotheticals; they are based on trends we observe in current intelligence reporting. We cannot determine how common these fact patterns will be in the future or whether any of the targets will so completely lack connections to groups that they cannot be accommodated under other definitions. The continued availability of the lone wolf definition eliminates any gap. The statutory language of the existing provision ensures its narrow application, so the availability of this potentially useful tool carries little risk of overuse. We believe that it is essential to have the tool available for what we believe will be the rare situation in which it is necessary rather than to delay surveillance of a terrorist in the hopes that the necessary links are established or even to forego it entirely because such links cannot be established. In short, the Department and the Administration believe that each of these three provisions provides important and effective investigative authorities. We believe that the current statutory scheme, together with the rules, guidelines, and oversight mechanisms observed by the Executive branch with respect to these authorities, safeguard Americans privacy and civil liberties. We look forward to working with the Committee to reauthorize these important - 5 -

158 authorities in a manner that continues to protect both national security and privacy and civil liberties

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160 STATEMENT OF KENNETH L. WAINSTEIN PARTNER, O MELVENY & MYERS LLP BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE CONCERNING THE USA PATRIOT ACT SECTIONS 206 AND 215 AND THE LONE WOLF PROVISION OF THE INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004 PRESENTED ON SEPTEMBER 23, 2009

161 I. Introduction Chairman Leahy, Ranking Member Sessions and Members of the Committee, thank you for the invitation to appear before you today. Thank you also for holding this important hearing and soliciting our thoughts about the Patriot Act and the three provisions that are scheduled to expire at the end of this year. My name is Ken Wainstein, and I am a partner at the law firm of O Melveny & Myers. Prior to my leaving the government in January of this year, I served in a variety of capacities, including Homeland Security Advisor to the President, Assistant Attorney General for National Security at the Department of Justice, United States Attorney, General Counsel and Chief of Staff of the FBI and career federal prosecutor. I was honored to work for many years alongside the men and women who devote themselves to the protection of our country, and to participate in the policy and legislative response to the terrorist threat that became manifest on September 11, I have also been honored to participate -- along with my co-panelists -- in what has been a very constructive national discussion over the past eight years about the appropriate parameters of the government s investigative capabilities in our country s fight against international terrorism. Today, I will discuss some of the investigative authorities that our government relies upon to protect our national security and, in particular, the three amendments to the Foreign Intelligence Surveillance Act (FISA) that are scheduled to expire at the end of this year absent reauthorization. It is my position that all three authorities -- the roving wiretap authority, the business records order provision and the authority to surveil a lone wolf international terrorist - - are important to our national security and should be reauthorized. II. Background to the Reauthorization Decision Before addressing these three specific provisions, however, it is useful to consider where we find ourselves today in the evolution of our national security authorities since September 11, Immediately after the attacks of that day, Congress took stock of our national security authorities and found them inadequate. They were inadequate for several reasons: (1) they were designed more for the traditional adversaries of the Cold War and less for the asymmetrical terrorist threat we face today; (2) they did not afford sufficient coordination and information sharing between law enforcement and intelligence professionals; and (3) they did not provide to national security professionals many of the basic investigative tools that had long been available to law enforcement investigators. The upshot was that the agents on the front lines of our counterterrorism program lacked the tools they needed to identify, investigate and neutralize plots before they matured into terrorist attacks. With the memory of 9/11 fresh in their minds, Congress drew up an omnibus package of needed authorities and passed the original Patriot Act 45 days after the attacks. While not perfect, the Patriot Act was a strong and a necessary piece of legislation. From my first days at the FBI in 2002, I could see the impact these authorities were having on our counterterrorism operations -- from the newly-permitted coordination between law enforcement and intelligence personnel to the enhanced access to business records that are vitally important to a fast-moving 1

162 threat investigation. The Patriot Act authorities were having the intended effect -- they were strengthening our capacity to prevent the next 9/11 attack. With the approach of the 2005 sunsets that were built into the original Patriot Act, Congress undertook to re-examine these authorities and engage in a vigorous debate over their reauthorization. To its enduring credit, Congress went through a lengthy process of carefully scrutinizing each provision and identifying those where additional limitations or oversight could provide protection against misuse without reducing their operational effectiveness. This process resulted in the 2006 Reauthorization Act that provided significant new safeguards for many of the primary authorities in the original Patriot Act. It also made permanent all but two of the sixteen provisions that were scheduled to sunset that year. With the benefit of that thorough re-examination and eight years of experience with the Patriot Act authorities, we are now at the point of institutionalizing them into the fabric of our counterterrorism operations. Our law enforcement and intelligence communities have adopted the procedures, training and policies to incorporate the new authorities into their operations; they have implemented the additional safeguards imposed by the Reauthorization Act; and they operate subject to substantial oversight by the Foreign Intelligence Surveillance Court (the FISA Court) and by Congress, which receives regular classified reports and briefings on the use of these authorities. And importantly, they are using the Patriot Act tools to significant effect. As FBI Director Mueller has testified, the PATRIOT Act has changed the way the FBI operates, and... many of our operational counterterrorism successes since September 11 are the direct result of the changes incorporated in the PATRIOT Act. Hearing before the Select Committee on Intelligence, April 27, III. The Counterterrorism Authorities Subject to Expiration this Year With the continuing threat from what the President has aptly described as al Qaeda s farreaching network of violence and hatred, it is important that our counterterrorism professionals retain the ability to use all of our Patriot Act authorities. This is particularly true of the three provisions that are subject to reauthorization this year. These provisions were born of the harsh lesson of 9/11; they were carefully reviewed by Congress during the reauthorization process and two were augmented with substantial safeguards; and they have been effectively incorporated into our counterterrorism operations with due regard for privacy and civil liberties and with extensive oversight by the FISA Court and Congress. Given this track record, it is now time to institutionalize these authorities, with the clear understanding that Congress can -- and should -- keep a close eye on their use and propose future amendments if it perceives they are being misapplied. A. Section Roving Surveillance Authority Section 206 of the Patriot Act authorized the government to conduct roving surveillance of a foreign power or agent thereof. Previously, national security investigators who were conducting electronic surveillance of a foreign terrorist or spy were required to go back to the FISA Court for a new order every time that target used a different telephone or other communication device. With this new authority, they could now secure authorization to 2

163 maintain continuous surveillance as a target moves from one communication device to another -- which is standard tradecraft for many surveillance-conscious terrorists and spies. This is a critical investigative tool, especially given the proliferation of inexpensive cell phones, calling cards and other innovations that make it easy to dodge surveillance by rotating communication devices. While law enforcement personnel investigating regular crimes like drug trafficking have been using roving wiretaps since 1986, national security agents trying to prevent terrorist attacks only received this authority with the passage of the Patriot Act in Since then, the FBI has used it on approximately 140 occasions, and its use has been tremendously important and essential, given the technology and growth of technology that we ve had. Testimony of FBI Director Mueller, Hearing before the Senate Judiciary Committee, September 16, While some have raised privacy concerns about this authority, a fair review of Section 206 shows that Congress incorporated a number of safeguards to ensure its judicious and responsible use. First, this new provision did nothing to affect the government s touchstone evidentiary burden; the government must still demonstrate probable cause that the target is a foreign power or an agent of a foreign power. Second, the statute ensures that the FISA Court will closely monitor any roving surveillance; within ten days of conducting roving surveillance on a new communication device, the government is required to give the FISA Court a full report explaining why it believes the target is now using that device and how it will adapt the standard minimization procedures to limit the acquisition, retention and dissemination of communications involving United States persons that might be collected from that surveillance. Finally, the government can use this authority only under limited circumstances; a Section 206 order can issue only if the government provides the FISA Court with specific facts demonstrating that actions of the target -- such as switching cell phones -- may have the effect of thwarting its ability to identify and conduct surveillance on the communication facility he is using. These safeguards and the operational need to surveil terrorists and spies as they rotate their phones and other communication devices make a very strong case for reauthorizing the roving wiretap authority in Section 206. B. Section Business Records Orders under FISA Section 215 authorized the FISA Court to issue orders for the production of the same kind of records and other tangible things that law enforcement officers and prosecutors have historically been authorized to acquire through grand jury subpoenas. As a long-time criminal prosecutor, I can tell you that the authority to compel production of business records is absolutely essential to our law enforcement investigations. Prior to the enactment of Section 215, our national security personnel did not have that authority and they were hamstrung in their effort to obtain business records during international terrorism and espionage investigations. Whereas criminal prosecutors and investigators could issue a subpoena for any record that is relevant to their grand jury investigation, national security personnel could secure a court order only for records that pertain to a person who can be shown by specific and articulable facts to be a foreign power or an agent of a foreign power. In 3

164 addition, they were permitted to request FISA production orders only for those records held by a business that qualified as a common carrier, public accommodation facility, physical storage facility or vehicle rental facility. The latter limitation meant, for example, that an agent investigating whether a terrorist had purchased bulk quantities of fertilizer to produce a bomb could not have used a FISA order to obtain the relevant records because a feed store is not a common carrier, public accommodation facility, physical storage facility or vehicle rental facility. Section 215 addressed these weaknesses by adopting the relevance standard for issuance of an order and by expanding the reach of this authority to any type of entity. With this new latitude, the Section 215 authority has been used by the FBI on approximately 250 occasions, id., and has been exceptionally useful in its national security investigations. Testimony of FBI Director Mueller, Hearing before the House Judiciary Committee, May 20, Like the roving surveillance authority, Congress built into Section 215 a panoply of safeguards to protect against misuse. In fact, it is clear that FISA Court orders under Section 215 are significantly more protective of civil liberties than the grand jury subpoenas that are regularly issued by criminal prosecutors around the country. While both authorities require that the records sought are relevant to an authorized investigation, only the Section 215 order requires court approval; a prosecutor, by contrast, can issue a subpoena without any court review at all. Moreover, unlike the grand jury subpoena authority, Section 215 explicitly disallows the issuance of court orders if the underlying investigation is only looking into conduct -- such as political speech or religious worship -- that is protected by the First Amendment. Finally, Section 215 provides for substantial congressional oversight by requiring the Department of Justice to submit detailed reports to Congress about its use of that authority. In the Reauthorization Act of 2006, Congress added significant new safeguards to this authority. Addressing concerns raised about particularly sensitive records, it imposed the requirement of high-level approval within the FBI before a 215 order could be sought for library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person. It also provided procedures by which the recipient of a 215 order can appeal to the FISA Court to challenge and litigate the validity of the order and the basis for its nondisclosure requirement -- or gag order. With these safeguards in place, there is no reason to return to the days when it was easier for prosecutors to secure records in a simple assault prosecution than for national security investigators to obtain records that may help prevent the next 9/11. Section 215 should be reauthorized. C. The Lone Wolf Provision Section 6001 of the Intelligence Reform and Terrorism Protection Act (IRTPA) allows the government to conduct surveillance on a non-us person who engages in international terrorism or activities in preparation therefor without demonstrating his affiliation to a particular international terrorist organization. When FISA was originally passed in 1978, the contemplated 4

165 terrorist target of FISA surveillance was the agent of an organized terrorist group like the Red Brigades or one of the Palestinian terrorist organizations of that era. Today, we face a terrorist adversary in al Qaeda that is a global network of like-minded terrorists -- a network whose membership fluctuates with the shifting of alliances between regional groups. We also face the specter of self-radicalizing foreign terrorists who may not be part of a particular terrorist group, but who are nonetheless just as dangerous and just as committed to pursuing the violent objectives of international terrorism. Given the increasing fluidity in the organization and membership of our international terrorist adversaries, there is a greater likelihood today that we will encounter a foreign terrorist whose affiliation to an identifiable terrorist organization cannot be ascertained. To ensure that the government can surveil such a person, Congress passed the lone wolf provision permitting his surveillance based simply on the showing that he is involved in international terrorism. Importantly, this authority can only be used when the target of the surveillance is a non-us person. The government recently reported that it has not yet used the lone wolf provision. Nonetheless, given the threat posed by foreign terrorists -- regardless of affiliation -- and the need to keep them under surveillance, it is important that we keep this authority available for the day when the government may need to use it. IV. Conclusion Thank you once again for the opportunity to discuss the sunsetting Patriot Act provisions, their importance to our counterterrorism program, and my reasons for believing they should all be reauthorized this year. I look forward to answering any questions you might have. 5

166 Lawmakers join forces on cybersecurity legislation BY GAUTHAM NAGESH 09/14/2009 Scott Audette/AP Sen. Joe Lieberman said the Homeland Security Department "has not done well." Senators from several committees are working together to craft comprehensive cybersecurity legislation by the end of the year, the head of a key oversight committee said on Monday. Lawmakers are open to a range of legislative options aimed at better protecting Web sites against hackers and improving cooperation between the federal government and private sector, said Sen. Joseph Lieberman, I-Conn., chairman of the Senate Homeland Security and Governmental Affairs Committee. Possibilities include introducing cybersecurity requirements for private sector firms, he said. The Homeland Security Department "has not done well," Lieberman said after a hearing. "They are not doing enough on cybersecurity in my opinion." Movement toward a comprehensive bill comes after Senate Majority Leader Harry Reid, D-Nev., asked lawmakers to combine efforts, according to Lieberman. Several senators --including Sens. Olympia Snowe, R- Maine, and Tom Carper, D-Del. -- have introduced their own cybersecurity bills. The Homeland Security and Governmental Affairs Committee will work with the Armed Services, Commerce, Intelligence and Judiciary panels on the legislation, according to Lieberman. Monday's hearing featured testimony on the growing sophistication of hackers and organized crime elements seeking to commit online theft and fraud. "There's a general movement toward coordinated attacks," said Philip Reitinger, deputy undersecretary for the National Protection and Programs Directorate at DHS. "In the 1990s hackers were doing things that were more annoying than anything else.... That's not the world we're in anymore. Hackers are after information of value and actual money. They are targeting attacks where they can get value." Sen. Susan Collins, R-Maine, ranking member of the committee, expressed concern that businesses targeted by online criminals might not know which federal agency or law enforcement organization to contact because of overlapping jurisdictions, while Reitinger noted there are a number of avenues through which citizens can report online crimes and agreed more education and outreach is necessary to raise awareness of the threat. Witnesses repeatedly asserted that improving authentication is critical to protecting networks and safeguarding citizens' personally identifiable information. "There's little we could do that's more effective than implementing strong authentication mechanisms that are available for people's use with privacy protections built in," Reitinger said. Lieberman asked the witnesses if any additional laws or regulations would assist them in protecting the nation's networks, such as introducing minimum security standards or requiring certification for private sector companies. "Those are big steps to take and we're not going to take them lightly or without adequate consideration," he said. "But we're going to throw ideas out there to show we're considering a wide range of options." Michael Merritt, assistant director of the Secret Service's Office of Investigations, said new laws were unnecessary, and existing statutes provide enough basis for authorities to pursue cyber criminals.

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168 PANEL III: EMERGING ISSUES IN NATIONAL SECURITY LAW: NARCO-VIOLENCE ALONG THE BORDER MODERATOR: ROBERT CHESNEY

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170 AUGUST 2009 M E X I C O I n s t i t u t e U.S. Southwest Border Security Initiatives This report lists some of the various projects, programs, and activities undertaken by the U.S. government to enhance security at the U.S.-Mexico border and to combat transnational contraband trafficking. Since the March 2009 announcement of a Southwest Border Security Initiative by the Department of Homeland Security, the U.S. government has stepped up efforts to strengthen security along its Southwest Border out of concern for increasing drug trafficking violence afflicting northern Mexico. These efforts aimed to halt the flow of drugs, cash, and guns between both countries that is responsible for much of this violence. This report is based entirely on U.S. government documents, and we have made no assessment of these initiatives. This compilation groups such initiatives by agency. 1 The Office of National Drug Control Policy (ONDCP) 2 Compiled by Miguel Salazar Edited by Robert Donnelly Program Associate The ONDCP is charged with overseeing executive-level anti-drug efforts and ensuring proper coordination of these efforts with local, tribal, and state authorities. In June 2009, the ONDCP announced a National Southwest Border Counternarcotics Strategy with the goal of substantially reduc(ing) the flow of illicit drugs, drug proceeds, and associated instruments of violence across the Southwest Border. Several federal agencies are responsible for implementation of the new initiative which has the following objectives: * Enhance intelligence capabilities associated with the Southwest Border * Interdict drugs, drug proceeds and associated instruments of violence at the ports of entry, between the ports of entry, and in the air and maritime domains along the Southwest Border *Ensure the prosecution of all significant drug trafficking, money laundering, bulk currency, and weapons smuggling/trafficking organizations *Disrupt and dismantle drug trafficking organizations *Enhance counterdrug technologies for drug detection and interdiction along the Southwest Border *Enhance U.S.-Mexico cooperation regarding joint counterdrug efforts