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** What constitutional authority is there for military detention of US citizens by Executive
branch w/out judicial review?
 Treason provision – Art.III, §3
o Argument that this is exclusive Congressional domain
o Only crime defined in Constitution, & they also tell you how to prove it
o Reference to open court suggests that Const meant for fed courts to take these
matters, not military courts
 Commander in Chief power – Art.II, §2
o Appears to suggest authority for detaining those captured in the battlefield
 Art.I, §8
o “tribunals inferior to the supreme court” could include military courts
o Are terrorists analogous to pirates? Neither has a homeland…they both seem to be
committing violations of law of nations.
o Congress given deep authority & power over military. Doesn’t this suggest that
detention, military courts are within Congressional authority as well?
 Doesn’t President have some emergency powers? 9/11 – we were under attack.
o Exec authority. Yet does Exec authority include emergency authority?
 Art.IV, §4 – protect states against invasion. This appears to be express emergency authority.
 Habeas corpus – right to contest the denial of liberty. Privilege can be suspended in limited
circumstances – did 9/11 fall under these situations? Argument that it was a kind of
invasion. Art.I, §9 – since it’s in Art.I, it seems that it would be under Congressional
authority. Does this mean that the Pres can’t suspend it?
 Does int’l law play a role? There is some that precludes arbitrary detention.
 Anything in Const about public’s right to get info from gov’t on detainees?
Detention of combatants
 5th Am. – combatants not in our lands or militia can only be indicted by grand jury, doesn’t
fall within the exception of the Am.
 What about gov’t withholding info about detainees? Any constitutional authority here?
o Art.I, §5 – express provision for keeping stuff secret by Congress.
o What about Exec Branch? Art.II, §3 – giving info to Congress. Seems to give Pres
discretion as to what he discloses. But it seems to impose duty to disclose on
Congress, & discretion seems to be more on timing rather than content.
The Steel Seizure Case (p.31)
Truman ordered Sec of Commerce to take possession of steel mills. Wanted to make sure steel
production continued as country was involved in Korean War. Statutes that gave Pres authority to
dictate to industry what the army needed, as well as anti-inflationary measures to keep wages from
exploding.
 Exec order – when made pursuant to a statute, it is effectively equivalent to a statute. Or if it
comes from inherent Constitutional authority, then order doesn’t have to be pursuant to a
statute.
 When made for nat’l security, they are not called exec orders. Given different names. More
likely to fall under Pres’ inherent authority – Commander in Chief, etc. Also not vetted by
DOJ as to its legality, not published in Federal Register.
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



Truman called this an exec order, sent it to Congress to accept/reject it. Congress didn’t act
– fear over impending elections.
Why wasn’t seizure just an exercise of delegated statutory authority? Congress already
refused to grant Pres authority to seize plants in an emergency (debate behind Taft-Hartley
Act) b/c it would interfere w/ private bargaining b/w the parties. Congress held onto its own
authority here. However, the Act was silent on the issue – otherwise it would have been a
category 1 case according to Jackson.
Justice Black = Congress didn’t give Pres authority here. Pres cannot make law. Can’t
combine lawmaking & law execution in 1 person = too much power. Formalistic approach
 Pres can’t make law.
o Yet it is a little overstated, b/c there are situations where a Pres can make law.
3 sources of authority for Truman’s act here: Comm in Chief, emergency powers, exec
power/take care.
Justice
Commander in Chief
Emergency powers
Labor dispute in US not part
of theater of war (34)
Rejects this – Congress
hasn’t legislated, so Pres
can’t act alone.
War was not declared here,
so CiC lacks authority to
seize property at home.
Implication is that if war
was declared, Truman
could’ve (37)
Seemed prepared to allow
for unilateral seizure by
Pres, as long as temporary
+ Congress could step in
early (35)
Jackson
Not convinced that war was
legal itself. Also see bottom
of p.42 – within US, Pres
should not get as much
latitude here (41,2)
Burton
Perhaps there is a diff b/w a
total war & a more regional
war like Korean War. Not
rejecting CiC power
altogether, however (45)
Congress has authority to
delegate this power to
Pres in advance. In those
situations where they
didn’t foresee, then Pres
can act alone. Go through
Congress, have them
deliberate (the check on
Pres), after which we can
allow sweeping
delegation to Pres (43)
If situation is bad enough,
then appears that Burton
would also allow Pres
such emergency authority
(45)
Depends on gravity of
situation confronting
nation – so there are some
situations where Pres can
act on his own. If
Congress acts 1st,
however, then it occupies
Black
Douglas
Frankfurter
Clark
Exec power/take care
Nothing to take care of, b/c
Congress must act (33)
(38)
There was no statute.
There may be situations
where consistent Exec
practice that Congress was
aware becomes custom,
thus allowing Pres to act
legally. Look to see
whether there was
historical acquiescence,
even if Pres has no express
authority (36)
(39)
45
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the field & Pres must
abide by their judgment
(46)
(47)
V, R, +M
[3 or 4 votes?]
2 statutes. Pres is often
faced w/ inconsistent
statutory command –
therefore he might have to
take unusual acts to
compromise b/w the
statutes. That is taking
care that laws are faithfully
executed (47)
[5 or 6 votes]
** We are seeing distinctions by justices b/w where war is fought & how it is declared. All
prepared to give some kind of wartime power under CiC.
Emergency powers  if there was enough of a catastrophe, then we have a majority that would
allow Pres such authority w/out Congress. If Congress has anticipated an emergency, then the Pres
must limit his powers to what Congress specifically gave him – Congress occupies the field.
** Perhaps Truman should’ve gone to Congress first before he acted. He did the opposite.
** Note: customary authority can never override the Constitution.
What helps us determine whether custom exists? Theory of Congressional acquiescence.
 Frequency of act is relevant to whether a custom emerges.
 Collateral legislation by Congress can also signal acquiescence.
 Notice  Congress has to know to actually acquiesce to something!
 Frankfurter is not the only one who believes in this. Jackson’s middle category (“twilight
zone”) also seems to suggest that he supports a theory of Congressional acquiescence.
 For custom to give Pres authority to act, it must first be permitted by Constitution. If he has
statutory authority, he can not rely on custom, b/c he already has authority delegated to him
by statute.
** Principle out of Steel Seizure Case = there is authority for Pres to act w/out specific statutory
approval in an emergency if it’s grave enough.
** Separation of powers
Jackson’s category 1: Pres acts pursuant to express delegation of authority from Congress. This is
where Pres is at his highest power.
Category 2: as long as it’s not prohibited by Const, if Congress lets it go by or facilitates, then Pres
has authority.
Category 3: what if Pres is forbidden to act by Congress? There may be some categories of power
given to Pres directly by Const. In these situations, Pres wins over Congress. How do we resolve
these category 3 conflicts?
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


Look to text of Const. If power is expressly given to one side, then we’ll follow it. Chadha
 Pres was legislating, which is expressly given in Art.I to Congress. Buckley v. Valeo 
Congress tries to appoint someone, but this power is expressly given to Pres, so he wins.
If text doesn’t expressly assign & is silent, how do we resolve dispute?
o Nixon v. GSA  who had control of Nixon’s presidential papers? Here, court
balanced intrusion on Pres that statute would create against the gov’t need to follow
statute  if there isn’t too much intrusion, then uphold statute. Here, court strikes
balance, since Const did not.
o Nixon tapes case  balance need for tapes against Pres need for privilege. Court
favored special counsel in this case.
o Independent counsel legislation. Court balanced need for having special counsel
against Pres need for control of Exec Branch, & sided w/ special counsel in a divided
vote.
If we have a dispute b/w what a Pres wants to do & what Congress wants to do based on its
statute, courts will balance.
President’s foreign relations authority
US v. Curtiss-Wright Export Corp. (p.61)
Pres issues proclamation prohibiting arms sales to Bolivia. He had authority for this based on
Congressional joint res’l (presented to Pres, so it’s essentially a statute) that gave Pres discretion
over this issue – “if you think it’s necessary, do it.”
 What is legal effect of Pres proclamation? It has force & effect of statute, b/c he is
exercising delegated authority from Congress.
 When this case came down, it was a challenge to Congress that it had improperly delegated
authority to Congress b/c it was criminal violation!
 Is statute specific enough to pass delegation doctrine?
 If delegation was invalid domestically, could it be valid b/c it applies internationally?
o To what extent does delegation doctrine apply to foreign affairs?
 Court: YES, this delegation is valid for foreign affairs.
o Foreign affairs are very complex, & we need 1 voice for nation.
o Pres should be that 1 voice b/c he has access to confidential resources.
 But why doesn’t Congress have that access? Pres can respond quicker, he
has deeper contacts abroad (ambassadors, embassy personnel, CIA, etc.). It
is easier for Pres to keep secrets b/c he has top-down authority, while
Congress is ultimate horiz body. Congress can’t see what’s coming in
foreign affairs – thus, Congress has no choice but to delegate to Pres on this
issue.
 Pres has much greater discretion from Congress over int’l affairs.
 Historical argument = dealing in foreign affairs was never power of several states, it was
always the power of the sovereign. This is true all over the world. Const doesn’t give this
power to Pres, he always had it anyway.
o Argument here that Pres has some extraconstitutional authority here, even
notwithstanding the authority given to him by Congress.
o Yet states did have some foreign affairs powers during Articles of Confederation
times. Sovereign power is arguably w/ the people, not w/ Pres.
 This is Category 1 case.
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** Steel Seizure came after Curtiss-Wright. Did it change anything?
 One is domestic, one is foreign.
o Yet SS is aimed at supporting US abroad (while at war), so is the distinction this
clear? Doesn’t seem that this distinction holds up anymore.
o Yet primary purpose of steel seizure is to take steel domestically, so it was domestic!
Could also argue this the other way.
 SS had no delegated authority (b/c Congress chose to not give him authority to seize)  SS
is category 3, CW is category 1 (Pres acting pursuant to authority given to him by
Congress).
 CW places clear emphasis on Pres power over foreign relations – “sole organ.” Therefore,
he could arguably act w/out power from Congress. Yet he is not necessarily the exclusive
organ of foreign relations. Even if Pres has extraconst authority, whatever he does is still
subordinate to Constitution.
President’s war & emergency powers
What core authority does CiC have? Command authority – he commands troops. Generals answer
to him. This power might arguably then be beyond Congressional reach.
Little v. Barreme (p.71)
Undeclared naval war w/ France. Came right after a time when US was grateful to France for
helping in Revolution. However, a trade war developed, so that’s where hostilities started.
Congress passed a number of statutes that steadily escalated what private vessels could do against
the French.
 Statute involved here = allowed US vessels to intercept vessels on the way TO France
 Here, the Flying Fish was seized. Captain was implementing Pres order, rather than
Congressional owner.
 Shipowner sues Little  who gets proceeds? L claims that he is immune, b/c he was just
following orders.
 Court = Pres didn’t have statutory authority. He had authority to seize vessels going TO
France, not FROM.
o Yet, it didn’t expressly prohibit it either. Seems like statute was very specific 
Congress has occupied the field – ‘this is how we can wage these hostilities’.
Therefore, Pres is confined to what Congress prescribed. Pres cannot make law.
 This has implications for Pres command authority  Congress has authorized war, but yet
Pres still does not have unfettered command authority here b/c Congress was so specific.
o Why did Congress limit his power in this way? It might be more offensive to seize
vessels FROM France - & if France wanted to fight a land war, US was not in a
good position. Congress was probably trying to be careful. Also, people might not
support such an all-out war.
 L is thus personally liable for value of vessel. Yet, he was following Pres orders!
o What result after this case? Congress might make a statute immunizing officers for
following orders. What they actually did was much narrower  passed a law
covering L’s liability.
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The Prize Cases (p.73)
Civil War – naval blockade of Confederacy. Int’l law said that existence of law permits blockades
– here, no war was declared.
 Argument that this was war nevertheless b/c it was unilateral war  Pres has authority to
preserve/defend Const, so he must resist the attacks. Therefore, the blockade would be ok.
He can use whatever he thinks is necessary.
o Pres shouldn’t have to wait for Congress in these emergency situations
 Does this mean that if a country fires on our vessels, we can nuke that country? Seems very
disproportionate, especially w/ advent of nukes. However, seems like Pres could allow
defensive measures, like shooting back to defend the ships.
o Therefore, seems to be an inherent proportionality limitation in Pres defensive war
power.
 Seems to be borrowed from int’l law
o However, Pres could probably do more if he got authority from Congress.
 How could Pres be stopped in taking excessive military action? Injunction by a court.
Congress could pass law limiting appropriations. Or just let him suffer in the elections.
** How do we limit holding of this case?
 Only allow such actions when taken on American soil. Civil War threatened to split country
apart, so it was legit emergency.
 Also perhaps could limit emergency war powers by time as well. If you wait too long from
the initial attack, the less power Pres has.
o Lincoln acted w/out Congress b/c they were on recess. Perhaps that might
distinguish Prize Cases from others – if Congress is in session, you might have to get
authority from them.
 Defensive war power used here was not spoken on by Congress. If Congress did legislate
eventually, then this would occupy the field.
o In Prize Cases, Congress did legislate when they came back. This also gave Pres
sufficient authority. If you wanted to limit Pres authority, you could say that this
was Category 1 case b/c Congress legislated before court saw case – therefore, Pres
still needs statutory authority. Could argue that stuff about Const authority was just
dictum.
Dissent = only Congress can declare war, & they did not do so.
 Distinguish b/w actually putting up blockade & seizing violators to sell them.
o Pres might be able to actually put up blockade. However, only Congress can
authorize taking of property. Separating military act from legal act of changing legal
status of property.
o Since Congress hadn’t done so here, then this taking was unlawful.
o Military force vs. juridical consequences of such force
CiC power summary
 Pres has defensive war power – can respond to state of war in which we are plunged by
others
o Can be limited by proportionality, time, etc.
 Pres has power to repel sudden attack – this seems obvious
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
Pres has command authority during any authorized military operation, within limits set by
Congress.
Emergency powers
In re Neagle (p.80)
N, a US Marshal, shot & killed someone who tried to kill Justice Field. N was charged w/ murder.
 N: my order to protect a justice was a law of US, & what I did was pursuant to this law
under writ of habeas corpus.
 Court = there is a statute that says marshals can do what police officers can do. Even if
there wasn’t such a statute, N should get his writ of habeas  necessary & proper to allow
judiciary to function; take care clause.
o This is an emergency case that seems to say where Pres can make his own laws to
protect gov’t function. Seems to be opposite of Steel Seizure case.
 Opposite of Little  in that case, if Congress has legislated, it occupies the field & Pres
must follow what Congress said. This case says that in areas of shared power, if Congress
hasn’t legislated, Pres can do whatever is fairly implied from Constitution. In this way,
Little & this case aren’t mutually exclusive.
 Dissent = Congress has power to make all necessary & proper laws. Pres has no fallback
authority like Congress does – see §8 of Art.I. Just b/c there is emergency, this doesn’t
justify Exec acting alone. Congress must act – necessary & proper clause.
o A very Steel Seizure like view.
o Did dissent intend that N should’ve stood by while the Justice was murdered?!
Maybe they wanted Congress to legislate here retroactively  the point is that
Congress should be on top of these areas.
 N could also still get a pardon.
 2 very different approaches to emergency power
o Within the law approach  stretch the law to authorize emergency action. Inferred
implied authority in Constitution for what N did. Majority approach.
 Downside is that you create a legal precedent that others can follow in the
future.
o Without the law approach  Exec has power, but not authority, to act. N is acting
unlawfully, but he can ask Congress to give him retroactive immunity or to legislate
after the fact to relieve him of the consequences. Dissent approach.
 Action is unlawful b/c Congress didn’t authorize, so there is no legal
precedent created. Congress can relieve actions like N’s which were
necessary at time.
 Or maybe this would just over-deter people in the future. “I’d rather stand by
& not get in trouble instead of doing what’s right & getting in trouble.”
 If Congress has said nothing, then Pres can do what can be fairly inferred from Constitution.
This seems to be principle from this case.
 Anything in Neagle that suggests a limit on Pres authority? You must have some real
factual predicate for N’s protection. Justice must be in imminent danger. This is an
emergency power that only arises when attack is imminent. Otherwise, you should go to
Congress. Limit seems to be in the circumstances.
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CONGRESSIONAL DECLARATION OF WAR POWER
 Even if we are in defensive war, Congress can get in by declaring that we are in a state of
war.
 In a defensive war, Congress must get into the picture b/c of money. Since they control
appropriations, Congress will always enter the picture even in defensive wars.
 Formal declaration of war  joint res’l of Congress
o Does this have to be presented to Pres? Some say YES, b/c it is no different from a
law. Some say NO, b/c Congress declares the wars & we don’t need Pres in
declaration – he just fights the war.
o Legal consequences of formal declaration  sweeping authorization to use every
method of war available.
o As CiC, Pres makes all tactical decisions as to how to use that force.
o Pres can get statutory authority for all statutes that are triggered by formal
declarations of war. Important stand-by authorities that go w/ formal declarations of
war.
o Formal declarations can also trigger rights in int’l law
 Framers seemed to be concerned w/ both legal consequences + bloodshed that would come
from conflict.
o Some say that when framers said ‘declare’, they meant ‘decide upon.’
o Cases also seem to suggest that Congress was always involved, rather than just being
concerned w/ juridical consequences of war.
Bas v. Tingy (p.93)
** Are there any limits on Pres conduct of a formally declared “perfect war”?
 Law of war limits – int’l law
 Congress can place limits on how war is conducted.
o Cases seem to suggest this, & maybe this makes it imperfect war
o Steel Seizure also seems to suggest that theatre of war can be restricted by Congress.
o War on terror doesn’t seem to have any restrictions, b/c theatre is everywhere..!
o Congress can also limit war via appropriations
 How practical is that? Couldn’t Congress infringe on Pres conduct of war &
his CiC power by doing so? This suggests that there must be some limits on
this.
** Should we have declared formal war against terrorism?
 It seems to allow Pres to use force wherever terrorists can be found! This is argument
against this.
 If war was declared, many statutes would be triggered. Do we want to give Pres this much
authority?
 Use of force statute might be a better way to get authority from Congress  this won’t give
Pres as much authority.
o Yet, this kind of statute would probably have to be presented to Pres, so he could
refuse to sign it.
Limits of use of force statute? - Bas v. Tingy
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** What if Congress passes such a statute after Pres has entered armed forces into conflict? Maybe
courts might find that as more tactical, so it would be within CiC power & not for Congress. They
could probably do so from the get-go, but if they do it while war is underway, this becomes more
questionable.
Going to war by:
 Attack (Prize cases – Pres has authority)
 Declaration
 Use of force statute
o Very likely to be narrower than declaration, w/ respect to force & area
o They don’t trigger same range of authorities as declaration – stand-by statutes req
formal declaration of war.
 Appropriations for military operation  by implication, this is approval of that operation
o This can also include selective service statutes, etc – any statutes that support the
operation can imply approval
o Problems w/ inferring authority from this kind of legislation?
 Military budget is huge, so shouldn’t we use something more specific as a
sign of approval? Perhaps we are inferring too much. We can always give
appropriations a specific title if it is meant to support a specific op.
 Some statutes might not be voluntarily enacted by Congress – political
reasons, etc.
 Congress is now accountable, b/c they voted on it! While people might also
blame Pres, they can also blame Congress now.
 Simple resolution / sense of Congress res’l  not a statute, just a majority vote of 1 house.
Or you can have concurrent res’l that is done by both houses, but not sent to Pres.
o Doesn’t follow Art.I process for making law! This is Congress blowing smoke, so
should it have any legal effect?
o Might be circumstantial evid to support interpretation of a vague statute.
o Evidence of acquiescence.
 Treaty  this does have force & effect of law. NATO type of treaty, or collective force
provision  if one of our allies is attacked, we must respond to defend them.
o Supremacy Clause gives this authorization legal effect.
o However, at the same time, this takes power away from Congress  only Senate is
approving a treaty! If we allow a treaty to substitute for declaration of war, we are
removing it from proper Art.I process.
 Silence  acquiescence, though it is a weaker form of it.
** Notice how we are moving from the top where we have express authority to the bottom where
authority is becoming more questionable (w/ exception of treaty).
** Is military detention authorized by the use of force res’l that came after Sep 11th (p.99)? Seems
to be focused on those involved w/ 9/11.
Delegations of National Security Authority
Lichter v. US (p.102)
Seems to say same thing as Curtiss-Wright w/ respect to war powers. Congress can delegate w/ the
end goal of winning the war, so courts will be forgiving in this field.
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Greene v. McElroy (p.106)
P loses his security clearance & job w/out a chance to rebut the info. He said this denied due
process & it was not authorized.
 When we are dealing w/ core const rights – like due process, right to cross ex – the authority
to take it away must be clearly stated.
o What is policy rationale for this? Nothing in CW or Lichter says you need clear
statement. Why do we need clear statements when constitutional rights are being
denied?
 Accountability
 To allow public debate on the issue. We want people in power to think about
denying such rights before they are denied!
o Restriction on delegation doctrine in nat’l security area
 What does court hold on due process right? Court declined to address the constitutional
issue. Court’s holding deals w/ authority of gov’t to do so  must be clearly stated.
 Gov’t cites a number of statutes in its defense. Why aren’t they good enough?
o Didn’t say anything that would suggest that one can be stripped of clearance w/out
right of confrontation
o Appropriation statute insufficient proof…no evid that Congress was aware of how
the money was to be used.
** Diff b/w this case & Lichter is probably specificity of statute  Lichter’s statute was much more
specific.
** This case DOES NOT say that Congress couldn’t do this if they wanted to! Unclear whether
Congress could constitutionally take away confrontation right if a clear statement was made, b/c
court declined to address that issue.
 also doesn’t say whether Pres could have on his own created a procedure to strip people of
confrontation right. Pres has inherent authority to classified info, arguable that security clearance
falls under this.
Dames & Moore v. Regan (p.115)
Pres nullified US attachments of Iranian property & suspending claims in US courts, w/ the goal of
resolving hostage crisis. D&M had a claim against Iran, which was suspended. They sued &
claimed that this was taking of private property w/out compensation.
 To suspend claims, Pres declared an emergency in Fed Register. This is how he asserted his
authority. Series of stand-by statutes triggered by state of emergency.
o IEEPA  if Pres has declared emergency, Pres can seize foreign assets, suspend
claims, etc.
o Hostage Act
 What is nat’l emergency? Pres seems to have discretion over what this is, it isn’t really
defined clearly.
o In these situations, how can Congress contain Pres authority here in ‘emergencies’
where discretion seems so loose & undefined?
 Putting in CFR puts Congress on notice, so they can tailor a statute w/
specific limitations.
 Perhaps a sunset provision on an emergency – time limit, after which you
need to renew authorization from Congress.
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


Judicial review? Problem here is review of what? Substance of emergency
would be difficult for courts to 2nd guess, maybe procedural stuff however.
Are statutes cited above authority for D&M’s claim?
o IEEPA authorized nullification of attachments, but not suspension of claims.
o Hostage Act? Court looks at legis history  act was intended to protect people who
were taken hostage out of refusal to recognize their American citizenship. However,
here hostages were seized precisely b/c of their American citizenship!
 Yet, if we looked at plain language, Pres action seems authorized by Hostage
Act! Court seems to ignore this.
The statutes are not directly on point, but they are relevant authority. Jackson’s zone 2 
inviting Pres to act in these areas.
o Congress didn’t seem to say that Pres could not do what he did, in either statute or
legis history. Didn’t expressly forbid what he did.
o Also, there is history & custom  Congressional acquiescence to these kinds of
presidential actions:
 Longstanding (i.e. frequent!) historical practice of claim settlements by
Executive w/ foreign countries.
 Notice to Congress that Pres is acting. There had been hearings on the
subject, so notice was definitely satisfied.
 Acquiescence here? Congress passed an act that created procedure to support
such claims settlement – collateral legis that evidences that Congress knows
AND approves.
o Congress never said NO! If Congress wanted to stop it, court would’ve sided w/
Congress.
** In emergency areas, Congress largely passes the buck to Pres (except for formal declarations of
war). The way they control such authority is by requiring notice, sunset provisions, appropriations.
This is NOT a Jackson category 3 case! All of these cases are either in twilight zone or in category
1. This is a hint that courts would rule against Pres in Category 3.
 obviously, no custom can come from an exec practice that violates Const. or a statute!
Limitations on Congressional power
 We have already seen that if power is used to strip people of civil liberties, it must be clearly
stated – Greene
 There may also be issues that Congress cannot delegate at all!
Lovett v. US (p.134)
Bill said that Exec can’t pay certain individuals who are listed in bill by name. Appropriations
limitation takes form of rider  amendment to appropriations bill, so it escapes normal hearings –
usually introduced on floor, which means that it escapes much debate; also escapes many hostile
committees. Many times, riders are stuck on bills that deal w/ totally different issues, to force Pres
into signing (‘if he wants bill, he’ll swallow the rider & sign’). Also, these limitations aren’t really
subject to interpretation  numbers are very black & white.
 riders escape normal legis process, committees w/ jurisdiction. They become a favorite of
Congress in nat’l security area.
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Appropriations in nat’l security law generally
 If King wanted to use military, he would need additional funds  he had to ask Parliament.
o Bill of supply = money for use of force abroad. This is method by which House of
Commons gradually took power from King, which he tried to resist. King would
find a different way to get funds, until Commons could shut it down.
o Appropriations clause – Art.I, §9  didn’t want Pres (like King) to take money from
Treasury unless it was appropriated by Congress.
 When Congress uses its money clout, it is a tool that has great historical importance 
colonial legislatures & England’s Parliament also used it.
o This is another reason why Congress favors using power of purse.
 2 forms: positive appropriation (‘can spend on X’) or negative (‘can’t spend on X’) = they
both have same legal effect.
Lovett (contd. from above)
Negative appropriations bill that contained a rider. Certain fed employees could not be paid from
both this appropriation AND any other appropriation! Didn’t want Pres to pay these guys in any
fashion.
 Why is this rider unconstitutional? Inflicts punishment w/out judicial trial – bill of attainder
– Art.I, §9, Cl.3.
o More broadly, Lovett stands for principle that Congress cannot use appropriations
power to violate another provision of the Constitution.
 This also applies to N&P Clause  can’t use that clause to violate another
provision of Constitution.
 Also a separation of powers issue  binding Exec branch in an unlawful way. 2 groups of
SoP from Public Citizen  here, this violates an express provision of Constitution – bill of
attainder; the other category is where courts balance to find separation of powers problems
(not in text, but implied – Chadha).
o Lovett category of separation of powers cases deals w/ express textual provisions of
Constitution that have been intruded upon by one branch against another.
 Jones opinion  Congress could’ve have done this, but they went a step further by saying
‘you can’t pay these people hereafter.’ If they had limited it to that particular appropriations
bill, Jones said it would’ve been ok.
o Riders are approved by bicameralism + presentment, so there is no difference b/w
appropriations & an authorization. However, there is a difference b/w how easy it is
to interpret them  won’t have conference reports, committee reports, etc.
o Appropriations are equally law as is any other product of Congress.
** If Pres can’t veto a bill that contains an appropriations rider, what can he do?
 Sign it into law while also claiming publicly that it is unconstitutional  invite people to
take it to court.
 Might be able to borrow money from 1 account to another so he can pay for something. In
the past, Congress has looked the other way when this has happened.
 Use a ‘rainy day’ fund. It is still money appropriated by law.
 Just use the veto! If it is overridden, then he is stuck unless he himself can go to court. But
this is difficult: “US v. US House of Reps”! Courts wouldn’t want to touch these kinds of
cases, for separation of powers problems.
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
Spending the money anyway, claiming Constitutional right to do so. This would violate
appropriations clause, ‘Anti-Deficiency Act’. Or ask for a gift from foreign nations  but
doesn’t this have to be placed in Treasury? Or have foreign nation donate whatever it is you
want directly – money laundering!
Substantive limitations  Lovett limitation
Procedural limitations on Congress
Chadha  1 house veto of action by Attorney General who suspending deportation of an
individual. Legality of that veto was challenged. Court held veto unconst:
 Veto purported to change legal status of Chadha
 Anytime gov’t wants to change someone’s legal status, they must do it by delegated
authority or by statute – bicameralism + presentment.
 Prior to Chadha, Congress frequently used legis veto. Why do nat’l security authorizations
usually include such a provision? Nat’l security usually gives Pres broad sweeping
authority, so Congress wants to maintain some control over what he does – this is
accomplished by legis veto.
o Chadha seems to strike all those down.
 Yet Chadha deals w/ domestic veto, not w/ use of force abroad, etc. Is case confined to
domestic cases?
o White (dissent) seemed to think that majority was affecting both kinds. Majority
didn’t address this, maybe they agreed w/ him on that point.
o At the same time, it is true that Congress delegates broadly in area of nat’l security
 doesn’t this mean that Congress should be allowed to use such a legis veto as an
additional check on Pres? Domestically, courts act as such a check. But in foreign
relations, war powers areas, courts usually don’t get involved, so the legis veto
should serve as that check.
 No court has ever said this yet. This argument does reflect the interactions
b/w Congress & Pres in nat’l security area, however.
 This doesn’t seem that it would work based on majority’s opinion however
 but it hasn’t been tested. Safe assumption is that legis vetoes won’t work.
** Lichter & CW are similar cases – Congress has broad delegation authority in foreign relations
area. However, if Pres uses this power to violate someone’s civil liberties, we want a clear
statement (Lichter & CW wouldn’t apply thus). Congress can also limit by using riders, as long as
they are not unconstitutional (substantive limitation) AND Congress must use Art.I process –
bicameralism + presentment (i.e. legis vetoes don’t work!).
Role of judiciary
Standing, political question, ripeness will invariably come up in cases involving
Dellums v. Bush (p.147)
Bush sent troops to Persian Gulf to prepare for defending region, & building offensive capacity.
Congressmen brought this suit asking for injunction.
** Political question doctrine arguments
 Marbury v. Madison  courts interpret the law; Pres is invested w/ certain political powers
that are beyond courts’ control (i.e. nominating Marbury) & thus Pres answers only to
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people in these areas. This landmark opinion laid down foundations of nonjusticiability:
absence of standards for courts to apply, embarrassment of court 2nd-guessing Exec.
 Baker v. Carr  lack of textual commitment by Constitution to a specific branch; lack of
standards; possibility of embarrassment
 Shouldn’t foreign affairs cases automatically become non-justiciable? Court said NO, b/c
courts have previously ruled on cases that touch on this field. This alone will not make a
case non-justiciable.
o Issue is what is particular question, & there is no such thing as a non-justiciable case.
o 1st step: what is particular question presented by case? See analysis below…
Ange v. Bush
Lamberth (note 8 on p.167)  question as to whether we should send troops into Kuwait or Iraq.
As seen below, this phrasing by Lamberth would not be justiciable.
 Is there a textual commitment? CiC powers. If we are at war, it seems to be committed to
Congress in declaration of war power.
 Are there standards for deciding that a court could apply? Questions to ask were largely
political, not legal. In these situations, Pres is answerable to public, not to courts.
 Prudential considerations – courts don’t know very much, & we don’t want Pres getting
embarrassed.
** Does Pres have to go to Congress before going to war? This seems to be central question of
Dellums & Ange. This is a very different question from the one that Lamberth posed.
 Text? CiC vs. Congressional power to declare war.
 Standards? Is this a “war”?
o Look to duration & magnitude: prior cases say that these factors are significant.
There is a difference b/w deploying 0 vs deploying 400,000 troops!
o Structural purpose for giving power to declare war to Congress  don’t want to give
such awesome power to 1 man. Congress will have to pay for it, so they should
probably sign off on it – the larger the risk, the more important it is that we have a
broad social consensus.
 Prudential considerations? It would probably be embarrassing if a court told a Pres after
war had started that he needed to ask Congress for declaration. Yet troops hadn’t begun
fighting yet. There was time for Pres to still go to Congress for a declaration.
** Dellums concludes that matter is justiciable, Ange concludes that it is not.
** Standing arguments
Need injury in fact or threatened imminent injury + action has to be traceable to D & court has to
be able to redress injury. These are reqs of Art.III.
 What was Ange’s standing? He was sent over to Gulf, so there was definite chance that he
would sustain injury in fact. The Pres is sending him over there, so it is traceable to D. An
injunction would redress injury.
 What was Dellums’ standing? It is very attenuated, b/c injury is that Congress can’t vote on
declaration of war…this seems to be a generalized grievance. She could simply get relief
through ballot, & courts don’t want to allow standing for these kinds of attenuated claims.
o What if D sues on behalf of his constituents? His constituents would need standing,
so this wouldn’t work.
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o His suit is based on the fact that he was denied opportunity to vote. Individualized
injury based on his role as legislator. In addition, his remedy is to convince
Congress that they are wrong.
o What vote is claimed to be nullified? No vote had been taken yet. However, Pres
seems to be acting in a way that shows that he will not even bother to take a vote 
nullifying opportunity to take vote.
o Dellums was found to have standing.
** Ripeness arguments
 Dellums 
o Legis side = court said they didn’t know what Congress was going to do & they
didn’t care. If Congress chooses to not get involved, then default of Constitution is
no war. Greene appears to have gotten this wrong  claim was that Const requires
that Congress approved use of force, otherwise troops cannot be used as they were
here…
o Exec side of ripeness issue  it is unclear that the Pres will actually go to war. Yet,
there were 400,000 troops in area + talking about offensive capabilities! But this
could’ve been a bluff to intimidate Saddam into standing down. Perhaps Greene was
right here – we need more time to see whether Saddam will fold, or whether Pres is
actually about to go to war.
o After this, Bush went to Congress for approval.
o When this case is declared non-ripe, is this a loss for Dellums? Court said that
Congress had to declare war in these kinds of cases, but here it was ripe.
Iran – Contra affair
North arranged sales of missiles to Iran (illegally). Money made from these sales were diverted to
fund Contras in Nicaragua. After it surfaced, there was a cover-up. North convicted, on appeal it
was reversed  info used in criminal trial that was obtained from Congressional hearings was
violation of immunity granted.
After court throws out Ange’s case based on justiciability, what other options does he have? He can
go to Congress – they still have sufficient checks on Pres.
Domestic effect of int’l law
Exercise for Assignment #10
Exercise was similar to real events in early 1980s w/ gov’t’s pursuit of Noriega. Is conduct in
exercise legal under US law?
 Statute that addresses arrest authority doesn’t expressly say that they can arrest outside US.
“Committed in their presence” seems to have a geographical limit – on the other hand, it
doesn’t tell you where they are present.
 The other clause (any felony cognizable under laws of US) doesn’t say anything about ‘in
their presence’, so that might suggest that there is no geographical limit.
 However, statutes are not usually construed to allow extraterritorial application. Think of
foreign relations disaster that would result  thus, courts will not construe vague statutes to
allow extraterritorial application.
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
If this statute makes int’l terrorism criminal, it follows that it allows for application abroad
b/c most terrorism occurs/starts abroad. Statute should be construed to accomplish its
purpose.
 However, there are extradition treaties.
** What about int’l law?
 Courts will read domestic law so as to not create conflict w/ int’l law.
o Since US statute doesn’t expressly authorize arrest outside of US, courts might read
that parallel to int’l law, so this arrest wouldn’t be allowed
 UN Charter = treaty ratified by the Senate  sounds like kidnapping in a foreign country
seems to be violation of another’s sovereignty, so this seems to be violation of their
territorial integrity. Political independence is unclear, except we seem to ignoring Ilyria’s
decision to not give up this terrorist.
o Could terrorists raise treaty as a defense in a US court? Do private individuals have
standing? It doesn’t appear from language of Charter that they do. However, a court
might allow standing b/c it is used as a shield, rather than a sword.
 Or treaty can be viewed as non self-executing, so you need statute to
authorize application of treaty.
 However, human treaties are usually aimed at indiv level, so these can be
construed as self-executing. Thus, indivs could invoke them.
 Here, it doesn’t appear that UN Charter was self-executing. Very broad
language, doesn’t appear applicable to individuals.
 To determine whether a treaty is self-executing  look to language, intent of parties. Also,
what mechanisms for enforcement does treaty contemplate, if any? For example, if disputes
go to ICJ, then indivs can’t have standing, so that would be non self-executing.
** Could Exec interpret UN Charter to allow extraterritorial arrest in these circumstances?
 Suppose there were secret negotiations on this issue. This is realistic, b/c a gov’t might not
want its public to know about its dealings to give up citizens in this way.
o Would this be fair interpretation of UN Charter? Was Senate aware of these
provisions  this is relevant b/c they have to approve all treaties. If not, it seems
like there are 2 treaties – int’l law as understood by Senate & int’l law that included
the secret provisions.
 This was argument over ABM Treaty in 1980s.
o Logic seems to favor Senate position  surely what they actually consent to is what
is legal.
o If Administration insisted that the other kinds of treaties are ok, what should Senate
do? Put in some kind of language that excludes any secret provision  ‘just this &
nothing else’. Or they can ask to see negotiating record, so they can see what was
agreed to. If these were to happen, this would make it massively burdensome for any
presidential administration to get a treaty passed.
o Does this suggest that Exec can never reinterpret plain language of a treaty w/out
resubmitting it to Senate? No treaty will cover everything, so Exec will have to
interpret gray areas. Presumably, they can’t interpret it contrary to its language.
 Or what if we were dealing w/ a bilateral treaty b/w US & Ilyria that never expressly
allowed these kinds of arrests, but there were secret provisions allowing it.
 If Pres can terminate treaties, why is reinterpretation such a big deal? It is akin to
terminating & then unilaterally binding gov’t to a new treaty.
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
o Should Pres be allowed to terminate w/out going back to Senate? Time or
emergencies seem to favor Pres here. There are also cases that say that where
circumstances totally change, Pres can also terminate.
 These don’t mean that Pres can just rewrite a treaty to completely alter its
terms.
Not much law on these issues, partly b/c courts shy away from seeing these cases.
** If we are looking at a conflict b/w US statute & int’l law, who wins? Last in time rule prevails.
** Suppose that instead of the UN Charter, the int’l law was based on an exec agreement. Is this
any different from a treaty? Exec agreements, at least some, have same status as treaties, so they
have same legal effect.
 Sole exec agreement  seems problematic, b/c it was never submitted to Congress. Do we
want a unilateral deal by Pres to trump a treaty that was approved by Senate?
o Note: CW case was based on sole exec agmt. Congress acquiesced here.
 Congressional exec agreement  submitted to Congress for approval, so this is not as
problematic. Seems much more like a statute.
 Treaty exec agmt  exec agmt made pursuant to a treaty, so it seems fair to give it same
force & effect as a treaty.
Sole exec agmts have dramatically overtaken treaties in current int’l relations.
** Do these have same force & effect as treaties?
 Might be binding if it can be traced to Pres’ inherent powers.
 Becomes more problematic if he is treading on other branch’s powers.
o However, it becomes difficult to decide whether a certain subject matter is entirely
within Pres power or overlaps w/ Congressional powers.
 What about treading on Senate?
o There are so many of these that efficiency gives a reason to not take every single one
to Senate. This is probably why Senate may consent to these agmts, despite not
having voted on them like they do for a treaty.
o Also, some of these agmts might be on more trivial matters, so we shouldn’t have to
go through the entire process.
o Congressional acquiescence  Case Act calls for Pres to show Congress text of the
agmts. This provides acquiescence, as long as they get to see the agreement. They
won’t otherwise complain either.
Can Pres break his own exec agreement? He might be able to make a new one & the law can be
changed, but since it is law, it can’t simply be broken.
** Rest. of Foreign Relations says that sole exec agmts can’t always substitute for treaties. It is a
problematic area, b/c Congress is cut out of its constitutional treaty-making role. For int’l law,
however, there is no difference b/w treaties & exec agmts.
Exercise #11
Does Pres have inherent authority to send FBI abroad to abduct someone?
 He is enforcing laws of US
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




Also protecting American public, perhaps from imminent terrorist attack
o See In re Neagle  any duty inferable from Const is a law of US, & these laws
include protection of officers of US. This could be extended to include US citizens.
 However, Neagle presumed that there was no fed law on point. Here there is
= the treaty that prohibits kidnapping abroad!
Customary int’l law  kidnapping another state’s citizens within their territory
o CIL is simply a practice followed by legal obligation. Created by states following it.
If there was no treaty on this, but this was CIL, what outcome?
o Art.I, §8 (p.1051)  reference to “law of nations.” However, Congress has not
codified this in anyway to include a prohibition on int’l kidnapping
Can Congress pass a statute that supercedes a CIL? Of course they can  the US is a
dualist system. It would be a violation of int’l law, but domestically the statute would
prevail.
o Also, common law is subordinate to statutes! Common law is good only until
Congress decides otherwise.
If Congress doesn’t pass a statute, can US courts modify/change CIL? The courts can’t
change the custom, b/c that is made by practice of states. Can they change the way US
follows it? Doesn’t seem like they can, b/c they just ascertain the meaning of the CIL…
Paquete Habana  both judicial, legis, & exec acts can supersede CIL.
An Admiral violated CIL, despite contrary orders from Secretary of Navy.
Garcia-Mir  exec acts can supersede CIL.
A US court can issue an opinion that would supersede CIL.
** Can Pres violate CIL?
 Under Garcia-Mir, it seems like he can. A controlling exec act can supersede CIL.
 Argument against that? Pres is generally bound by fed common law like everyone else.
Only person who can change this is Congress. Also, think about effect this would have on
our int’l relations. We want people to follow CIL, so we should do the same.
o However, in this case, it might be more important to nab these terrorists rather than
following CIL.
o Also, someone has to lead the way to change CIL. If Pres violates it, maybe he is
taking 1st step to create new CIL. Yet, why wouldn’t Congress do this instead of
Pres?
 Can FBI Director make decision to supersede CIL? Controlling exec acts probably have to
be taken by someone of much higher authority.
o Why should we confine these acts to violate CIL to Pres & his ‘alter ego’? We want
to make sure that this decision is taken carefully. There are consequences for
violating int’l law, so we don’t want to delegate this decision to people who aren’t
high enough in chain of command.
** What if CIL here against kidnapping was jus cogens?
 Nothing in cases that seem to hold out jus cogens as any diff from CIL
 However, as they argued in Nicaragua case, jus cogens transcends all domestic law. In
addition, usually those types of rules will be consistent w/ domestic law.
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
o In that case, this was rejected b/c act in that case wasn’t violation of jus cogens.
Pres can technically violate any CIL at the moment. This doesn’t mean that jus cogens
wouldn’t have an influence, however.
o If we frame issue as a violation of our constitutional rights, for example, then it is
arguable that jus cogens should be consulted as well. This would be a way to make
jus cogens influential & informative on a domestic level.
VIETNAM WAR
Orlando v. Laird (p.266)
Enlistees do have standing. Injury in fact  they would be in imminent danger after they were sent
to Vietnam. Is this a political question? If the question is whether the war lawfully authorized, then
it is not a political question. If the question is whether the war was justified, then it is definitely a
political question.
** Arguments for the Pres authority to conduct Vietnam War:
Art.II
SEATO
Gulf of Tonkin
Resolution
Custom (125 times Pres
has gone to war w/out
declaration from
Congress).
Comm-in-Chief
Repel the attack theory
– nat’l security threat
that puts forces on
defensive. However,
can this theory hold up
if we are fighting for 10
years? Domino Theory.
All treaties are supreme
law of the land (Art.VI).
Senate has approved it,
so it is a valid treaty.
Treaty has 3 musketeers
provision – if one is
attacked, all are
attacked.
Pres must take care that
laws – including treaties
– are faithfully
executed, & that’s what
he did.
Treaty asks US to act in
accordance w/
Constitutional process,
& that is what Pres did.
Pres can take all
necessary measures to
prevent further
aggression. Congress
deliberately gave Pres
sweeping authority.
Other laws
Appropriations - $700
mil, & this was very
specifically drafted to
signal support for war.
Draft legislation.
** Counter-arguments:
 Art.II authority
o Custom? He cited war w/ France as example of where Pres went to war w/out
Congressional approval. Yet Congress actually authorized that war! Meeker simply
got his history wrong here.
o Repelling attack argument? Is an attack on a country so far away from US really an
attack on the US? This might be too broad a definition of a nat’l security threat. Or
maybe it wasn’t an attack, but merely the Vietnamese defending against US
provocation.
 Also, is there really a time urgency here?
 SEATO
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

o Core problem is that House of Reps is excluded. If we allow declaration clause to be
bypassed by a treaty, then the House is excluded.
o “Coming to the common defense” under SEATO was not what Senate intended to
approve. Senate probably did not want to embroil US in large-scale war like this b/c
of a treaty.
 However, plain language says that US should get involved. Is the
Constitutional process referred to just the Pres deciding to get involved?
o Also, if this was a civil war within Vietnam, was this the type of war contemplated
by the treaty?
Tonkin Gulf Res’l
o Isn’t the res’l based on false premises or even lies? If so, is the res’l still valid?
 At the same time, should we allow Congress to back out of the deal? Also,
didn’t they have responsibility to properly investigate before approving?
However, a counter to this is that Congress must deal w/ what info Pres gives
them.
 Also, will a court ever really say that Pres lied to Congress? Courts will
probably just look at plain language of a statute, rather than questioning
facts/motives behind it. However, Congress can impeach the Pres. Or people
can vote him out of office.
o Also, Congress can’t delegate the war power. Can’t just give Pres a blank check to
fight wars.
 Yet, not only is res’l broad, but it is also specific as to where/when force is to
be used. Congress also reserved a veto (although this probably wouldn’t
work after Chadha).
Other laws
o Can’t infer authority from appropriations unless there is clear statement – Greene v.
McElroy. However, the counter is that lives are at stake…also, the appropriations
legis was very specific, so it probably was clear statement.
“Straight jacket” argument = just b/c Congress gave authorization, it doesn’t necessarily mean that
Congress supported the action. It might just have been done out of fear of political damage or to
not abandon troops fighting abroad.
 Yet, Congress could always give money & place an end date on fighting.
o Pres could counter that this infringes on his CiC power, as our troops might have to
fight on longer.
o But does this really infringe on his tactical discretion? It is also relevant that the
enemy would know that the Congress wants to stop fighting by a certain date, so
they could gain an advantage in this way.
 As a legal matter, this argument seems overblown. Congress could come up w/ some device
to show that they want war to end or that they won’t fund indefinitely (even if not
necessarily giving an ‘end date’).
Orlando v. Laird (p.266 – contd.)
Was this nonjusticiable political question? Standard is not, application is.
 There was some mutual participation b/w Congress & Executive. Pres can’t fight war
unilaterally. This is the standard  was there mutual participation?
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
o What form does participation have to take? Declaration, statute, etc.
 Political reasons as to why Congress might choose 1 form or the other  this
is why this would be a political question, rather than the standard to apply
which is not political.
Court rules on the merits.
Vietnam War
Over 1000 crossings into Laos. Heavy bombing of Cambodia, which was secret. These extensions
of war beyond Vietnam raise a number of legal questions.
** By what legal authority were they taken?
 TGR Res’l + CiC power  tactical decision to prevent attacks on troops in South Vietnam.
o What war did TGR authorize? If you look at language, res’l was extremely broad –
‘all necessary measures to stop attack & prevent further aggression’, ‘all necessary
steps to protect protocol states…’
o Could Nixon have ordered bombing of railroad lines from China into North Vietnam
based on this authority? Could he use nuclear weapons as ‘defoliants’ to find
troops? Could he bomb Beijing?
 This seems to be greatly extending war to a whole new level. Yet, the TGR
seems to allow this b/c of its vague language. But would this really be part of
the intent of Congress when they authorized? Obviously it would not have.
** If Congress anticipated this happening, could Congress have limited this in TGR – i.e. area or
use limitations?
 Possible that this would allow enemy to plan accordingly, so politically it’s bad.
 Legally, seems indistinguishable from Bas v. Tingy  Congress had imposed both area &
use limitations. Court upheld the limitations. Good argument that Congress could ex ante
impose these limits, even if they seem to infringe on CiC powers of Pres.
o Yet, this does not seem to infringe on Pres core power to defensively repel an attack.
Perhaps this overrides the statutory authority.
o And if there is time, Pres could go back to Congress & ask for the authority to do so.
This would usually work, if it was really in the needs of troops abroad.
o Note: if Agent Orange was banned by a treaty, there would be a strong argument that
Pres was prohibited from using this, unless Congress overrode treaty. What if int’l
law is jus cogens? In that case, Congress probably could not override the treaty.
** If Congress had not done so in TGR, could it have done so midway through the war?
 This happened w/ appropriations, which had area & use limits on war.
 Congress should have ability to respond to changed circumstances. If these things would be
legal from the beginning, why not also allow them later on when we understand changed
circumstances.
o At the same time, the war is going on. Pres is fighting war, & now Congress is
trying to manage the war – Pres has discretion over tactical decisions.
o Jackson Category 3 – conflict b/w branches = this could become a separation of
powers dispute. Has authority been textually committed to 1 branch? Pres would go
to CiC Clause, Congress would go to Declarations, Raise & Support Clauses. Or
maybe it hasn’t been directly committed by Constitution. Thus, court might have to
balance.
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** Can Congress end war?
 Did repeal of TGR kick legs out of Pres authority?  no, not necessarily, according to
Orlando – still had appropriations & draft legislation.
o But if Congress actually rescinds authorization, why isn’t that dispositive to court in
that case? War was authorized in other ways also. What if they rescinded the only
one that expressly authorized use of force?
o Or Congress could just take everything off the table…
o Yet repeal of TGR was vague – legis history said that res’l was no longer necessary.
This was very unclear. Seems like this is not enough.
 Mansfield Amendment (p.285)  why isn’t this sufficient?
o Terminate at ‘earliest possible date’  this is extremely vague. Pres would decide
this, & no court would 2nd-guess him on that.
o Political problem w/ exit strategy = tells other side that if they can hang on long
enough, they can win.
Holtzman v. Schlesinger (p.286)
Why didn’t court enforce statute to terminate war here? Suit had been brought too soon – deadline
had not come yet. Also, setting such a date implied that Congress wanted to continue until that
date. After deadline, court probably would’ve affirmed the injunction.
 Court finds implied approval in Congressional cut-off date.
** Can Congress cut off the war? There is an argument analogous to Pres treaty termination
powers. However, if peace treaty ends war, & Pres negotiates the treaty, doesn’t that mean that Pres
has complete authority over ending the war?
 If there is no declaration, but merely a use of force authorization, this is more like a statute, so
Congress can override use of force just like they can w/ a statute. However, Pres should have
ability to fight a war to win. Yet, perhaps this is the trouble w/ having 1 man exercise war powers.
Or perhaps Pres only has tactical authority, while Congress has strategic authority – so they can end
it.
** If termination statute takes form of appropriations, they have combined their implied power to
decide when war should end + their traditional power over the purse.
TREATY BASED WAR
UN Charter
 Original plan for use of force  each member state should donate forces for UN ‘umbrella’
force. 1st – Security Council must determine that there is a threat to peace. Then they can
try non-military measures (Art.41), & if these don’t work, they can go to military measures
through collective action by members (Art.42).
 Conditions on special agreements  they must conform to each states’ constitutional
processes.
** If Security Council has approved a military op, it is theoretically a peace operation (not war). By
this argument, it wouldn’t be subject to Declaration Clause, so Congress doesn’t have to approve it
& Pres can do as he pleases.
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


Yet, aren’t we just handing over our war-making power from Congress to a supranational
body?!
o But US still has a veto power, so the risk is lower that US troops will be used in a
way that Congress would not approve.
 This still doesn’t get around the concern that 1 man can send us to war,
however. Seems to go against concept of checks & balances.
However the UN defines war for int’l purposes, this is not the same under our own
constitutional processes  therefore you need to find another argument why Congress
should/shouldn’t approve a war.
Small scale uses of force would fit well within Pres historical custom to go to war. If these
are the kinds of conflicts that US forces are involved in, we could pass these off as police
actions that don’t require Congressional approval.
o Obviously, if it was a large-scale conflict, the Pres would have to go back to
Congress for approval. This is a valid argument  scale of the conflict matters!
THE KOREAN “POLICE ACTION”
Truman sent US troops into Korea almost immediately after UN recommended that the attack
against South Korea be repelled. He did not immediately seek authorization from Congress. Was
that legal?
** Is this a treaty-based war?
 Argument that 2 security council res’ls provide authorization.
o However, the 1st res’l doesn’t require members to contribute force; they simply ask
member states to help UN stop North Korea – it doesn’t say ‘use force’
o 2nd res’l – ‘recommended’ seems vague, but ‘furnish such assistance to repel armed
attack’ seems more likely to authorize use of force.
 Is this request in the res’l consistent w/ UN Charter itself? If not, it would not carry any
legal weight.
o May be exhaustion req under 39, but probably not. Might be too late for that.
o 42 read separately could be a sufficient use of force authorization in itself – as
member armies act individually, rather than under UN umbrella force.
o Custom argument
 Can’t discuss whether this is a treaty-based war unless it is actually consistent w/ treaty!
** Other arguments for Truman’s use of force in Korea?
 Policy argument to protect institution of UN – if we don’t, then UN Charter has no
credibility.
o This is fine, but why does this reason allow us to go to war w/out Congressional
authorization.
 Repel the attack defensive authority of Pres  the troops there are a tripwire!
o If troops are firing, then they have right to fight back. Pres does not even have to
authorize, the field commander can do so! Unilateral defensive war power can at
least authorize Pres to prevent loss of US lives in battle.
 But this is obviously a short-term argument.
 Congress acquiesced, so this is not a big deal.
o They passed supplemental appropriations, expanded army, draft extension, took a
vote of confidence in support of Pres.
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
However, these are still subject to other reqs. Is there a clear statement?
How does this trigger any stand-by authority? Does this give military clear
vision of goals of war?
** 3 main arguments:
 Police action – yet this looks artificial looking at length, casualties. Also, they were
attacked by a huge army.
 Acting w/ authorization of Congress, who gave it when they came back in session.
 Or, it was unlawful & unconstitutional – distinct break in historical practice over use of
force.
PERSIAN GULF WAR
Bush insisted that he did not Congressional authorization for the war – UN res’l can be enforced
even if not authorized by Congress. Even if Bush was voted down, he still insisted he could go to
war.
** Treaty argument
 Korean War as precedent
 Start w/ treaty or obligation itself:
** 3 different ways in which treaty arguments are made:
 If UN approves the use of force, not war;  Cong. has nothing to say about it
o if not war, it’s some sort of int’l obligation the pres. can carry out as the sole organ
for foreign affairs
 Counter: can int’l body, not elected by US citizens, define war for us? No for
constitutional purposes
 It’s a RETAL POLICE ACTION; president can undertake it via CUSTOMARY
AUTHORITY
o Differences b/w this arg and the previous are (1) size of engagement, and (2) custom
 Counter: how do you define the custom in terms of how many times and how
large the actions have been before? Categorically breaking it down, there are
about maybe 2 UN peacekeeping actions pre 1990s (Korean War; expedition
to China [Boxer Rebellion]). 2 not enough to define a custom; in any case
the 2 are very different. Now with Bosnia, Somalia, etc., we may be able to
see a custom of Cong.’l acquiescence... but Cong. often disapproves.
 Arg also consistent w/ why use of special agreement forces could be used w/o
authorization
 Treaty as Declaration
o Since Treaty part of Supreme Law of the Land, treaty obligation to use force is as
well; president has to carry it out
 Depends on what the treaty says; does it impose an obligation?
 What about the constitutional processes in the treaty? Does it remit you to
the declaration of war?
 For UN Charter, are special agmts under Art. 43 exclusive? Still a fair arg.
that if original intent controlled, that was the way to implement and no other
o Even if treaty authority can authorize troops, has the resolution done so?
o Can treaty bypass the declaration of war cl. or were treaties meant to cover
everything but war?
o RH: none of these issues resolved in the courts
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THE PERSIAN GULF WAR
 Bush argues he can use force based on UN Res., w/out Cong. resolution
 What’s the authority of Gulf War I, absent Cong. authorization?
o Treaty arg.; precedent of Korean War
 Did the treaty impose an obligation? No; d/n require member states to use
armed forces; used “Authorizes” and “Requests”; arguable still w/in
discretion of member states,  consistent w/ constitutional process
 “All necessary means” euphemism for armed force
 CAN UN require the use of force? Never passed res’l that says
member states must do anything; ironclad language usually aimed at a
wrongdoer
o Statutory authority before Cong. voted use of force authorization
 House Res.: emphasized diplomatic and non-military means; nothing
authorizes use of military force per se (binary choice)
 Chair of Foreign Rel’ns Committee explicitly says it’s not a Dec. of
War
 Senate Res.: ambiguous, but implication is that they have to come back and
pres. cannot go ahead on his own
 See Orlando v. Laird (detailing sufficient legislation to show
Congressional statutory approval)
 These were One-House, simple resolutions
 If it were acquiescing, you could argue custom; but hard to see any
prior custom for authority via simple resolution
 House only acquiescing to something short of the use of force
 Neither concurrent nor simple resolutions are sent to president; not laws (see
Chadha)
 Supplemental Appropriations; seemed intent was to maintain the troops in the
status quo... arguably not for deploying troops in a military way
 RH: if it was so important for Johnson to state that the appropriations
were earmarked for Vietnam military action, why didn’t Bush do the
same thing?
 Iraq Sanctions Act: talks about a trade embargo; didn’t seem to authorize the
use of force
 Could argue it authorizes LIMITED war; Naval blockade to intercept
ships headed toward Iraq
o Echoes Lincoln’s blockade and quasi-French war
o Bad for president, if Little v. Bareme correct, Cong. has
occupied the field and president is acting unlawfully
What are the general Framers’ intent principles?
 No one man can decide on war
 Decision for war, however you define it, must be shared b/w the 2 political branches
o RH: Orlando and other Vietnam cases have that right
o Policy: helps ensure social consensus for the war
 Mutual participation requirement is WAIVED if war is started by someone else; in other
words, we can repel initial attack + may go beyond the immediate attack (see Prize Cases)
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




Cong. retains the PURSE STRINGS, regardless of how the war was started
Add from defensive war:
o Some concern that president will claim pretext for the use of force,  requires
ACTUAL or IMMINENT attack; some sense of immediacy
o PROPORTIONALITY requirement for defensive war; force fed in Prize Cases; but
logic shows president cannot use nuclear weapons at his discretion
o DURATIONAL LIMIT; the longer it went on, less justified pres is in not going to
Cong. to get authorization
Mutual participation wars:
o Vietnam. Declaration not the only form of participation by Cong; can use a USE OF
FORCE statute like TGR
o May even participate by appropriating money or facilitating draft legislation; implied
consent
 Counter: Greene; Cong. must clearly state purpose when they authorize
programs that impinge on const. rights
o Acquiescence; even more tenuous. Yes Dames & Moore suggest if Cong. aware and
does nothing about it, can imply acquiescence and  consent
Treaty (see fleshed out args above)
o War
o Retail police action
o Treaty as declaration
If Cong. has authorized the war, what’s the president’s CIC authority?
o TACTICAL discretion to achieve strategic objectives of the war; may be exclusive
authority
 Cong.’l micromanagement blatantly unconstitutional
 May have some limits on Cong.’s ability to legislate w/r/t these decisions at
all during the war
 LIMIT: not authorization to start a new war; subject to the limits Cong. sets
(see Little v. Bareme)
 Distinguish tactical from strategic; but not a bright line
o Terminating the war
 Appropriation bill... if Cong. can use appropriations to stop the money, can
they stop the war w/ an approp rider?
 Vietnam cases suggest they can, but it’s not so easy... Pres. has fair
amount of leeway to protect the troops and get them out; may require
some addt’l force
WAR POWERS RESOLUTION
 § 2(c): does this cover everything?
o No, not something like rescue missions abroad
o Arg: customary authority to rescue Americans in a variety of matters; don’t need
Cong.’l approval for these situations
o RH: big hole! If Cong. was trying to make this comprehensive, fact they missed a
major customary authority suggests problems
 Senate version much more comprehensive
o If it’s incomplete, does it mean the whole thing is unconstitutional?
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
 § 9 – severability provision.
 If Const. already recognizes the authority they don’t need to address it
 § 2 just a policy section, didn’t impose obligation, thus didn’t invalidate rest.
o RH: huge problem in Cong.; being too specific means that some new creative force
would not be covered
§ 3: not mandatory consultation b/c there may be some sort of time urgency or when you
don’t want to consult for fear of disclosing you’re contemplating the use of force
o What does “Congress” mean? Probably not all of them; that would be impossible.
Are the leaders sufficient? What if president meets w/ those in his own party?
 RH: Intell. Committee identifies a “gang of 8” that must be notified before
subversive actions are taken; something similar could have been done for
War Powers
 Assumes another problem; that consulting is worthwhile. What can
Congress contribute?
o Democracy; some Intelligence experts... presidents usually not
foreign relations experts
o Staff that serves Cong.; foreign relations permanent staff is
“steeped” with knowledge
o The initial decision is a STRATEGIC decision that’s highly
POLITICAL; good arg. for consulting Cong. here
o If Framers’s intent was to make it hard to go to war, irrelevant
whether they’re experts
o Can Cong. require consultation on those things which the president does not need
Cong. approval?
 Nec. and proper cl.; Cong. can enact anything so long as not interfering w/
president’s authority
What does CONSULT mean?
Hostilities and 60 dd. clock
Don’t overlook § 8
§2 – Scope
Says Pres has implied authority of CiC to introduce troops into hostilities or imminent hostilities
only (1) pursuant to declared war, (2) pursuant to attack, & (3) pursuant to specific statutory
authority.
 Consultation
o What is “consult”? (See note 3, p.312) Perhaps it means getting input from
Congress about what he plans to do & why. Asking for advice. Or it just means that
Pres is keeping Congress informed, although House Report seemed to demand more.
 A 2-way street, give info & get info.
 Doesn’t necessarily mean they can stop him from acting.
o Who does Pres have to keep informed? All of Congress?! Wouldn’t that take a lot
of time, etc.? A joint session just to keep them informed seems overblown.
 So what subgroup of Congress do you consult? Maybe a certain committee –
Armed Services, Foreign Relations, or Intelligence Committees?
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


If you consult a small group, does this violate Chadha? Consultation is not
authorization or legislation, doesn’t change anyone’s legal rights, so don’t
need full Art.I process. Chadha has no effect on this issue.
o Why does Congress need to know? What could they add?
 The staff of Congressmen have plenty of expertise. Also, think of how many
Presidents have no foreign relations experience before they took office!
o Consult about what? Congress has nothing to say about tactical military decisions.
But is it worth risk to military resources & troops to enter into hostilities? This is a
question that seems ideal for Congress, b/c they are speaking for the nation through
their constituents.
Hostilities trigger (p.313)
o “Imminent hostilities” = imminent involvement in hostilities is clearly indicated by
circumstances. “Hostilities” = actual armed conflict or where there is clear &
present danger of armed conflict.
o What situations trigger reporting reqs, 60-day clock?
 Is sending them to Saudi to show Saddam that they won’t let him take Saudi
enough? What about going into Afghanistan?
 If troops are getting shot at, this should be enough. If you put them in a
situation where they might get shot at, this seems like imminent hostilities.
o Lowry v. Reagan  American tankers got shot at, so we shot back, & destroyed
some oil platforms, etc. Court = there is no std set forth in statute that we are
confident to apply. No std supplied b/c Congress didn’t want courts to mess w/ this
issue. Political question.
o Koohi v. US (p.315)  suit under FTCA, does combatant exception apply? This was
time of hostilities. Court wanted to shield gov’t from liability (purpose of act), so
court used broad definition of “time of war.”
o In 1 case, court won’t touch problem of ‘imminent hostilities’, but in the other 1 it
does to protect gov’t. 1 case involves immunity from civil tort claim, the other
would translate to triggering of the 60-day clock, reporting & consulting reqs, etc.
 They involved different consequences.
 Also, each statute had different purposes.
o By & large, war powers cases are usually found nonjusticiable. See Dellums &
Ange.
o Courts usually require a 2nd trigger to clearly indicate that all the reqs of WPR must
start to run, like the 60-day clock, etc.
Reporting requirement – §4(a)(1) (p.304)
o 4(a)(1) report is a crucial event in starting the 60-day clock. Thus, a Pres would
probably delay this report as much as possible, or not report at all. Or submit a
report that is not 4(a)(1), by not specifying provision, etc. This delays or does not
trigger the clock.
o This is not a complete dodge of the clock. Language says ‘when submitted or
required to be submitted’. This takes us back to hostilities trigger. If courts are
unwilling to say when it’s triggered, then it’s up to Congress 2nd stat response.
o Some criticize this as a procedural waste of time, when Congress should go to issue
more directly…
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


60-day clock – §5(b)
o This prevents another Vietnam. Pres has to come back to Congress for authorization
OR stop fighting.
 Yet the flip side seems to suggest that Pres has free reign to do what he wants
for 60 days!
o Constitutional in light of Chadha? No bicameralism + presentment here, so arguably
it is unconstitutional. Might interfere w/ safety of troops, & also interferes w/ Pres
tactical discretion.
 Argument that it’s not covered by Chadha  power given to Pres was
conditional, they are properly defining the emergency.
 All that’s enacted here is a sunset provision  WPR went through full Art.I
process! Thus, it is probably not a violation of Chadha.
o A Pres can give troops huge levels of arms so they can finish up in 60 days. Or, he
do opposite & under arm them, so they are under greater fire & he can keep them in
longer, or say that he had no idea how bad the fighting would be.
Veto by concurrent resolution – §5(c)
o Chadha problem  here, it’s just 2 houses. Lacks presentment. Imposes legal duty
on Pres, & hasn’t gone through full Art.I process. This is probably no longer good
law.
Interpretation rule – §8(a)
o Intended to prevent inferences of authority from “any provision of law” OR any
treaty, UNLESS there is specific authorization by Congress.
 Need express authorization for use of force + magic language – needs to say
that it constitutes specific statutory authorization under WPR! Removes any
vagueness in this way.
o Wanted to prevent inferences like those made in Orlando v. Laird
 Seems like ‘mutual participation’ test is out.
 So we couldn’t assume authorization from SEATO, or any mutual defense
treaty  it makes them non self-executing.
 We also couldn’t assume authorization from any other act by Congress – like
appropriations acts, selective services acts, etc.
o Pres might be able to dodge this by using intelligence, paramilitary, etc., b/c they’re
not exactly “armed” forces. So CIA operates outside WPR, & so would paramilitary
troops that we might hire (i.e. Contras, Afghan warlords, etc.).
o Does this control later statutes that Congress enacts?
 Later in time construction problem, as long as new statute isn’t ambiguous.
 Some say no  WPR is a super-statute that always controls in these areas.
This is an unresolved issue.
** Note: rescue missions are not included in WPR! This is a pretty uncontroversial area that most
members of Congress would acquiesce to anyway.
Doesn’t say what Pres has to do when he sends forces abroad as a gesture – flexing of muscle,
rattling sabers. Does Pres really have to go to Congress everytime he wants to do this?
Historically, this does not happen – Pres can do this on his own!
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Meant to prevent a reoccurrence of what happened during Vietnam. Also meant to give back some
power to Congress that had been gradually taken away over time. Now, we must always ask
whether an action involving armed forces requires adhering to the WPR.
** Has WPR worked? Pres have successfully evaded 60-day clock, & Congress seems to have
allowed that to happen. If Congress can see use of force coming, there will be a debate. Often, this
includes a debate about the merits. This involves Congress more in the process, so this seems
positive. Yet Congress has no political incentive to step up as WPR allows them to do – they can’t
later criticize the Pres if they helped us go to war! Thus, it both benefits & hurts Congress.
Still on the books, so WPR should always be looked at when looking at any use of force.
IMPERFECT WAR
Not declared, not really large-scale, & usually not immediate self-defense. On 1 hand, we have
express delegation of war power to Congress. On the other, we have implied executive power to
repel sudden attacks.
** Authority for this?
 Repel attacks, if it is broadly construed.
 Custom – repeated over history, so argument that Congress has acquiesced.
 Legislation – although can we still infer authority after WPR?
Gulf of Sidra incident (p.351)
Line of death drawn across this Gulf. Reagan sent task force into Line, & they were attacked.
** Was deployment of task force lawful?
 He wasn’t deploying into hostilities, or imminent hostilities, so this should be ok. It was in
peacetime, to implement a foreign policy of US of which Congress was aware & supported.
 Our position was freedom of navigation in high seas. So that’s what we did, we went into
the high seas!
 On the other hand, Pres could still have gone to Congress. If he deployed them across the
Line w/ purpose of initiating an attack, then it seems that he should go to Congress. Was he
provoking them?
o Yet US claimed that they didn’t expect to be attacked.
 Pres is generally allowed to deploy troops to shore up a well established foreign policy, or to
saber rattle to get better negotiating position. This is arguably not war at all. At the very
least, they represent customary uses of force.
o Yet just b/c it was customary, it doesn’t mean that Congress shouldn’t have some
say.
 If this was truly peaceful deployment, then this seems ok.
o However, the law here is unsettled. All we have are arguments on both sides.
Fleet is attacked by fighters & missiles, so it shoots back. Authority for this?
 CiC power, repel the attack power.
o Would Pres have to order it? Seems like captain of the boat have authority to fire
back, rather than waiting for Pres. Shouldn’t have to be constitutional issue.
 Are there limits on what force can be used?
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

o Implied limitation of proportionality. Can’t just go out & bomb the entire country
based on isolated attack on 1 US ship!
After 1 week delay, he orders US planes to attack airfields.
o Anticipatory attack? Retaliatory attack?
o Yet the delay seems to have removed the time emergency.
 However, it was anticipatory self-defense, so arguably it is ok.
 But the time delay seems to suggest that it is no longer an emergency, so why
not just go to Congress? However, if we think attack is imminent, why not
just attack immediately?
 Is it really punishment? It is an isolated attack on their military capabilities,
it’s not like they’re going after Tripoli or civilians!
Repel the attack power has some imminency or immediacy requirement.
o Once this element is removed, does not seem to be an emergency. Then why not go
to Congress?
o There are also other options – econ sanctions, freeze assets, give a warning.
 This is more of a legislative decision (in other words, many factors to
balance), as opposed to immediate attack which seems more executive.
** Did attack on Libya satisfy WPR?
 It didn’t apply. Deployment to Gulf was peaceful, not intended to be use of force.
o Were hostilities imminent? Note that reporting req goes beyond this – so reporting
was probably required, even if consulting & the clock were not.
US raid on Libya
Authorization?
 We were at state of war, b/c they declared ‘holy war’ on US.
o But isn’t there also some requirement of actual hostilities? Yet if you connect them
to terrorist bombings, then this is justifiably a defensive war.
o Rhetoric by Quadaffi + bombing
 Is there a time limit on defensive war?
 Didn’t Declaration Clause establish a structure  if we wanted to attack or engage in
reprisal, we needed Congress involved.
o There might have been other ways to respond.
 Note that State Dept. initially used, then stopped saying ‘reprisal.’
 Was it reprisal? Was it repelling attack  didn’t seem like immediate attack was coming, if
anything, it was anticipatory defense.
US v. Smith  exclusive power of Congress to change a state of peace into a state of war. Going to
war is a policy decision, so Congress must be involved.
** Reasons for raid on Libya:
 Repel – “real time”, in other words, it should be imminent.
o Webster’s view (note 5, p.355)
 Reprisal  arguably this right is given to Congress (i.e. letters of reprisal, etc.)
o Time for deliberation about how to respond
o Maybe also a choice of responses
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
o Legislative choice that takes into account policy, rather than an executive choice that
merely carries out those policy choices already made.
o Characterized as such initially, but then Administration changed its tune
Defensive war?
o Rhetoric: “holy war” against US started by Libya
 Yet a lot of countries run their mouths, so should we attack all of them?
Great Satan rhetoric in Iran, etc.
 This is probably not enough to allow Pres to use force
o Attack – does this coupled w/ rhetoric authorize the use of force?
 There was only a single incident, so it doesn’t seem to authorize all the force
that Pres used.
o Pattern  perhaps rhetoric + some pattern of uses of force would justify a defensive
war
 Attacks on Fort Sumter that preceded Civil War.
o This concept is probably too broad to justify the raids on Libya.
** Are we in a defensive war against terrorism?
 Doesn’t seem like Pres can just go into any country on this basis. Probably needs more
authorization to do so.
 Who is the enemy? If going after a sovereign state, we know who the enemy is. If we are at
war w/ “terrorism,” there is not such a clear enemy.
o If you don’t specify, Pres might get authority to attack anyone who might fit his
description of a ‘terrorist.’ This seems overly broad.
 Also, where do you fight this war? Sovereign states offer a battlefield. Terrorists might not
– what if they operate out of a friendly nation? Do we attack the friendly nation’s territory?
Where is the battlezone?
 When does the war end? Usually use of force authorizations, declarations have a clear end –
when Congress says so, when there is a peace treaty, etc. But when will a war on terror ever
end? Could probably go on forever.
o So if a Pres gets authorization to fight such a defensive war against terror, it seems as
if he gets such auth forever! This is obviously too broad.
Anticipatory defense against terrorists
 Terr attacks are secret & over very quickly. Perpetrators die, so no one really to track down.
This means that they can be almost impossible to repel in real time – you can’t shoot back
when they occur, when they occur it is over.
 Therefore, the only possible defense is to get them 1st. Kill them before they kill us. This is
a more narrow concept of authority aimed at terrorists & specifically foreseeable attacks
(will + means in near future).
** Statutory authority for this concept?
 Antiterrorism & Effective Death Penalty Act of 1996 (AEDPA) (p.365)  plain language
seems to explicitly authorize covert & military action to attack the terrorists.
o Authorized cruise missile attacks on camps in Afganistan in 1998.
o Problem w/ this? This was a finding of fact (part of whereas clause), so these parts
of a statute do not really confer authority. Not codified as such.
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


o Sounds like Congressional acquiescence. What is missing to make this custom?
Tradition of use – we haven’t really attacked terrorists so many times to create any
kind of custom. Not a sufficiently long usage here to create acquiescence to give
Pres authority.
o Also, note that language says “should” rather than “shall.” Perhaps this is just an
acknowledgment of Pres power to attack terrorists.
What if he was sending a team of special ops or CIA to attack a training camp?
o Congress has appropriated money to special ops for covert ops, etc. So they have
impliedly authorized this action. You don’t train these troops to conduct such
missions unless you actually support it.
What about WPR?? Neither of these authorizations cross-reference the WPR 
authorization must explicitly state that it constitutes specific stat auth, as required by WPR.
Can’t infer authority through appropriations, etc.
o If WPR has force & effect over later statutes, then the previous authorizations
mentioned would be null.
After 9/11. Is there any additional argument for this use of force? 9/14 res’l  WPR is
satisfied here.
o Does this authorize military action, or military detention, within the US? Doesn’t
seem like Congress intended this.
o Does this supersede rule against use of military domestically (posse comitatus)?
o Does this authorize Pres to attack an Islamic group not al-Qaeda? Like Hezbollah?
Res’l specifically talks about those groups behind 9/11, & these other groups were
not behind those attacks.
 What if 1 of these orgs helped finance al-Qaeda? Would this be fair game?
Maybe you can now use military force against those financial networks?
 Note that much of these financial networks were in Germany…do we
attack Germany??
 State wanted act “to deter & preempt any attacks…”, but Congress rejected
this language. Wording was deliberate.
o Now that we have this on the books, does it supersede prior authorities?
Assassinations
Some suggestion that CIA was engaged in this business.
** Is this prohibited by int’l law? Depends on whether we are at war or not. If we’re not, then
arguably it is clearly prohibited by CIL. In wartime, certain legit combatant targets are fair game.
So whether we are at war is important question.
** Is it forbidden by domestic statutory law?
 Criminal laws – would they apply extraterritorially? We are talking about murdering
civilians. It is certainly prohibited within US, but unclear whether they apply abroad.
o CIA is prohibited from operating inside US.
o Until the executive order, CIA was allowed to circumvent domestic law when they
operated abroad.
o Unless statute says on its face that it applies abroad, then it is presumed to only apply
domestically.
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Executive Order prohibiting assassinations (p.369)
 Ford preempted a statute that was in the works by making this order. To bring some
restrictions on CIA.
** Does it apply to proposed assassinations mentioned in notes at p.373?
 Qadhafi? Seems like if a military op is underway, he would be fair game as legit military
target (i.e. command & control). Exception for military targets – is this implied by Order?
o Q is a combatant, so the Order couldn’t possibly be saying he can’t be killed.
o Yet had troops been introduced into hostilities pursuant to WPR? Did WPR apply to
Libyan use of force? If you want to have a wartime exception, you need to ask
whether the war itself was authorized. If it wasn’t, maybe the Pres can’t use this
exception.
o Was attack collateral? If someone is incidentally killed, then that seems ok. But can
we really argue that the attack on Q’s compound was an accident or was unintended?
 Saddam in Gulf War I? It was definitely a war – joint res’l by Congress that mentions WPR.
Hussein wears uniform, not a civilian.
o What if we went after him & his family? This seems to violate rules of war. Yet the
sons seem like they might be included as combatants. Not the mistress though.
 In Gulf War II? Again it is an authorized war – joint res’l. Seems same, so Order doesn’t
seem to apply again.
 General Noriega? Would targeting him for assassination have violated Order?
o There was indigenous group planning a coup, they consulted w/ CIA. US troops
were to assist, but otherwise weren’t involved. The group said there was strong
possibility that N would die in op, however.
o Is group acting on behalf of US? Doesn’t seem like they are. So maybe they could
kill N & there would be no violation of Order.
o If we go beyond mere support, & we gave more material support to coup, are we
now participating in coup such that if N is killed, then there would be violation of
Order?
o Coup took place, N was captured. But he basically called his security forces, & they
freed him. N then killed his captors. He was eventually captured by US troops.
o Was invasion of Panama itself authorized? There was no authorization by Congress.
Perhaps Pres had some inherent authority…
o Perhaps argument that we went in to protect Panama Canal zone.
 How about Columbian drug trafficker? Not a political leader. If Order is aimed only at
political leaders, then it seems like this wouldn’t be a violation. Would probably be in
violation of int’l law, however.
 Bin Laden? His financiers? Seems like they are all outside the Order based on language of
Sept. 18th res’l, as they were all part of Sep.11th attacks
 Why is Order still on books? Presidents might fear that if it was gone, Congress would step
in & make it their domain. Also has symbolic issue w/ int’l community – most of the world
fears CIA.
 If it applies, is it law? Must it be followed? Wouldn’t it be easier sometimes to assassinate
1 man than to send in 200,000 troops?
o Courts have said Pres is free to change exec orders in same way it is made.
 Has it been repealed? Maybe secretly to create exceptions for assassinations of certain
leaders? Thus, maybe a Pres can change the Order in this way to allow Pres to act when he
wants to.
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
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What procedure should Admin use for who goes on target list?
o We are killing as opposed to trying them fairly. Therefore, maybe the same
standards ought to apply for adding people to list as would be needed to convict in
crim court – i.e. reasonable doubt.
 Probably have massive evid problems if they proceeded in this way.
o Or maybe analogy is wrong. This is not substitute for capital punishment, but it is a
substitute for military op.
 Yet we are acting before anyone even shoots at us. Preemptive strike?
 But aren’t we at war w/ Al Qaeda? So why can’t we fight back in this way?
Don’t have to require that someone actually shoots at you to authorize hitting
them. This applies in military ops too.
 Efficiency appeal – cheaper, more effective, faster.
 What if US citizens are involved? If they have switched sides, maybe we’re
at war w/ them too. War is war.
o Pres still needs some basis for adding people to list. What is it??
Why is assassination at home different? Due process rights extended to people.
o But then why did US citizen killed in Yemen not have such rights?
Posse Comitatus Act (p.766) – can’t use army to enforce domestic law.
Nat’l Security Act (p.428) – basically statutory charter of CIA.
o (d)(1) – CIA can’t act domestically.
o What about (d)(5) – if we call assassinations as duties related to intelligence
affecting nat’l sec as directed by Pres, this seems to allow it.
Preemptive war
Terrorist attacks are always imminent, so attacking them 1st is ok. Difference b/w that & a more
traditional preemptive war (ala Iraq) is that its more difficult to defend – is attack really imminent?
Not clear that attack from Iraq using WMD was ‘imminent’ or even possible.
** Before Bush sought authorization, could he have sent in troops into Iraq as preemptive strike?
 Could he use 1991 authorization to allow going into Iraq in 2002?
o Iraq violated cease fire agmts, so US is authorized to go in & enforce it. There was
material breach.
o Both Congress & UN passed res’ls saying that Iraq was in material breach.
o Did authorization from 1991 continue all the way up to 2002? Maybe 1st res’l was
tied to Kuwait, it was a different war. We probably need new authorization for this
war!
 Yet note language in 678: “all subsequent relevant Resolutions…” But on
the other hand, this probably could be read as relevant to Kuwait!
o Who had authority to go to war b/c of a ceasefire violation? US? Or was it the UN?
 PL 105-235 (p.4 of supp.) – is this fresh authorization?
o If WPR still applies, this isn’t binding b/c it does not reference it.
o Also, wouldn’t ‘appropriate action’ mean other non-military actions? Shouldn’t we
ask for more specificity if we want to authorize armed force??
9/11 Res’l (p.262)  seems to specifically authorize use of force. Also meets all reqs of WPR.
Unless Congress is required to use a formal declaration (which doesn’t seem historically accurate),
this res’l seems to absolutely authorize force.
** But does it authorize force against Iraq?
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Has there been any evidence connecting Iraq w/ 9/11?! Does not seem like there is, so Iraq
could not have been authorized by this res’l.
Is there any authorization for Pres to prevent future acts of terrorism?
This res’l seems very specific to 9/11 attacks.
Note that Pres asked for language to allow him to fight all terrorists, not just those involved
w/ 9/11, but this broad reach was rejected.
2002 res’l seems to give away a lot of discretion to Pres. Perhaps it is open to delegation
attack, although few courts would hear these claims.
** Does Pres have inherent constitutional authority to engage in preventive war?
 Perhaps we need a requirement that WMD attack is ‘imminent’, not just that some capacity
is there or being developed. “Repel sudden attack” authority seems to support this idea, as
we need some imminence.
 Is there a difference w/ terrorists? Seems to be a pattern of repeated behavior, continuing
hostility, little knowledge of attacks coming. Meanwhile, Iraq did not have such a pattern &
there is some lead time w/ Iraq – enough time to get authorization of Congress.
 If Pres has power to go to war w/ emerging attacks, what would be left for Declaration
Clause? No real role for Congress, but for formal declaration that would trigger standby
statutes.
FIGHTING TERRORISTS AT HOME
Defining the threat
Considered a national security threat since Reagan Administration. Yet it hadn’t received quality of
being considered an enemy of war until after 9/11. Policy used to be to combine law enforcement +
intelligence. Now, we are combining military options w/ those 2.
Now both proactive & preemptive, especially after 9/11. Can’t afford to wait for the attack.
Preemptive = stopping it in planning stages. Go after finan support, other forms of material support.
Highest priority is to prevent terrorists from getting WMD. Administrations haven’t seriously
followed through on this until after 9/11. Another tenet is giving no concessions to terrorists. This
is partly why Iran-Contra was so controversial  we were dealing w/ Iran so they would pressure
terrorists to negotiate. All actions against terrorists were to be taken w/out sacrificing democratic
principles & constitutional ideas, at least domestically.
** How did we implement?
 1st phase = crisis management  law enforcement investigation phase of trying to catch
terrorists & prevent them from completing their acts. FBI continues to be lead federal
agency in this area, b/c it’s mainly investigatory. Abroad, the CIA does the same thing.
 2nd phase = consequence management  after incident/attack occurs. This is where gov’t
response is more confused, less organized. Lead federal agency was FEMA, which has now
been incorporated into Dept of Homeland Security.
Why do we need to define “terrorism”? What are the consequences that would flow from being
designated by Secretary of State as a ‘terrorist’ org?
 Assets can be frozen, & other civil liability
 If al Qaeda or someone who harbors them, you can be attacked – 9/18 res’l
 Barred from US borders
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 Watchlisted under new system at airports. Also FISA surveillance.
 Criminal liability
** These all show why designation as a terrorist is important. Can practically end your status in the
US.
People’s Mojahedin Org of Iran v. Dept of State (p.13 of supp.)
No due process rights for foreigners w/ no property or presence in US. Here we have a foreign org
w/ presence & property in US.
** Reqs for designation on terrorist watchlist:
 Must be a foreign org
 Engaged in terrorist activity
 That activity threatens security of US or its economy
** What process is an org entitled to before designation? Org is entitled to notice that it may be
subject of designation, & entitled to disclosure of unclassified evid against it, & it must have
meaningful opportunity to respond in writing.
 How can right to be heard be meaningful if Secretary is acting on classified info?
o “Pres might have right to classify info, but he doesn’t have right to use it against me
to impose liability.”
o What about in camera review by judge? Still have problem of not being able to rebut
evidence, b/c party hasn’t seen it!
 However, this is better than not seeing it at all – due process doesn’t req best
procedure, just adequate safeguards.
o In this case, the unclassified info was enough for a designation. Easy case. But it
doesn’t mean as a general manner that all cases will be this easy.
 Could gov’t act on secret evidence in criminal prosecution?
** Material support statute converts designation into a felony for anyone who provides aid, support,
training, etc. to those organizations. This makes original designation all the more important. If you
are prosecuted under material support statute, you can’t challenge the designation – the court will
take it as given at that point!
** Why don’t we allow prosecutions for people who think of car bombing for political purposes?
 Need an act, or advocacy. Just thoughts are not enough!
 Evidentiary problems  how do you prove it? We don’t know what people are thinking.
 Also, your innermost thoughts are yours  would be violation of privacy.
** What if you told someone you want to set off bomb?
 Evidentiary problem doesn’t seem to be as much of a concern
 Probably still not a serious danger that you will carry out the act. Might just be heat of
moment. No closer to doing the bad deed. Need something closer to the event.
** What if you tell someone else they should set off a bomb?
 This is Rahman case in effect. Cleric here was not a conspirator, but an advocate.
** What if you tell someone how to set off bomb?
 Clearly you have crossed some threshold. You have made some speech.
** What if you join an org which says that car bombs should be set off?
 Now you have problem that someone else’s advocacy imputed on you. What relationship
should you have w/ org to allow you to become target of crim prosecution?
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** What about sending money to one of these orgs?
** What about giving money to an org that actually commits such acts, but also does social work,
etc.?
US v. Rahman (p.826)
Indicted before material support statute was enacted. So he was charged w/ seditious conspiracy
statute. 2 parts most relevant  levying war against US or to oppose by force the authority of the
gov’t. All the targets were private, however. So it’s pretty hard to say that they were putting down
the gov’t; might have been hindering execution of US laws, etc. None of these itemized acts is a
perfect fit.
 Why isn’t this treason?
o Constitutional req for 2 witnesses.
o Also, D had no duty of allegiance to the US.
o What about John Walker Lindh? He was allowed to plead out, was never charged w/
treason. Meanwhile, Padilla & Hamdi are getting harsher treatment.
 What about 1st Am. violations?
o When can we go after him for his speech? When can advocacy be criminalized?
Brandenburg  speech directed at violent action AND likely to lead to some
imminent unlawful act. Case law is not crystal clear on this.
 Is statute overbroad?
o Statute doesn’t really talk about speech, mostly talks about conduct.
 Is statute vague?
o “Seditious” is pretty vague. However, text of statute is far more precise. Look to
words of statute, not the title.
o But what does “levying war” mean?
 What about relying on his religious speech to prosecute him?
o His beliefs are not criminal. However, can’t use religious speech to commit crimes.
o Any speech that is constitutionally criminalized is fair game, no exception for
religious speech.
o Also, such speech can be used as evidence to prove another pertinent fact.
Humanitarian Law Project v. Reno (p.832)
AEDPA used against people making financial donations to designated terrorist groups. Since
they’ve already been designated, that is no longer an issue. Can contribution be found criminal?
 How is Ds conduct different from Rahman? They claim they are trying to support
humanitarian projects of the groups, rather than terrorist activity. Also, they’re just giving
money. So they are once removed from any terrorist activity.
 1st Am. concerned w/ gov’t’s interference, not w/ purpose of speech.
 We are not dealing w/ criminalization of membership. Problem here is political or financial
contributions. But these can be viewed as a form of expression, so there is a 1st Am. concern
here.
o Is gov’t targeting expressive component of someone’s conduct? If so, strict scrutiny
would apply.
o Yet if they aren’t targeting expression per se, but rather going after helping terrorist
activities, then intermediate scrutiny would apply.
o We can’t ensure that they are earmarked, so we are forced to block all contributions.
 Is it vague?
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
o “Training”  doesn’t say ‘terrorist training’. Could be diplomatic training.
o “Expert advice or assistance”  1st provision in Patriot Act that has been struck
down by a court. Doesn’t really say that it is directed towards terrorism, it could be
anything!
HLP v. Reno (download)  D must know of unlawful purpose & must have intent to further
that purpose. Can’t convict when someone doesn’t know, just b/c they are a member. This
is the standard of liability for advocacy alone.
o Is this standard too high? Punishing mere advocacy is more likely to offend 1st Am.
values than punishing conduct, including giving material support, so it carries a more
protective (e.g., difficult to satisfy) standard of liability.
o Both groups have lawful (humanitarian) & unlawful purposes.
Congress included ‘knowingly’ in the material support statute. It is unclear what you had to
know. Case law helps fill in the gaps  courts have previously said that you have to know
of designation of group OR of their unlawful activities. In other words, to find liability
under material support statute, specific intent to further unlawful activities is not required.
o This standard also solves the allocation problem, which is that some of these
organizations may use only part of their resources for terrorism. If gov’t had to show
that a contribution was allocated by organization to terrorism, prosecutions would
fail, even though resources are fungible. The proof of designation or terrorist
activity standard avoids this problem.
o Thus, you can’t prosecute someone under the material support statute for giving
money unless they know of unlawful activities or of the group’s designation.
o What if listing was in Federal Register? Is that enough notice?
INVESTIGATING TERRORISM
Surveillance
What techniques could gov’t use?
 Email interception
o 2 kinds – reading headers or reading actual text. Reading the headers is arguably
less controversial, as it is similar to reading the front of an envelope.
 Records check (probably most innocuous)
o Used to be arrest records. It could also include financial records, records of
bankruptcy courts. Credit checks. Telephone records. Could be expanded to all
business records.
 Wiretapping
o Pen register – notes all outgoing numbers
o Trap & trace – gives gov’t record of incoming calls
o Wiretap itself – listen to conversations themselves
 Eavesdropping on some physical location
o Used to require some surreptitious entering. This is no longer necessary, as
electronics can be used.
 Following you.
 Black bag job  checking out your place when you’re not there? Supposed to notify them
afterwards, unless it is foreign intelligence work.
 Informants in the organization. Or sending someone in to infiltrate.
o Disruption, disinformation to hurt the organization.
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Personal interview
o Could be accompanied by polygraph.
Aerial photography, infrared imaging.
Body wires – this might go along w/ informants
Mail opening, or coverage (noting who is sending you mail).
** 4th Am. does not apply uniformly to all these techniques. Obvious concern here is privacy.
4th Am. protects against unreasonable searches & seizures. It is not an absolute prohibition, but is
rather one of the balancing provisions of the Constitution.
 Search conducted pursuant to judicial warrant based on probable cause is presumptively
reasonable. Why?
o Decided by a neutral magistrate/judge, rather than the searcher – this is 1 check.
o Probable cause – they had a reasonable suspicion that you were about to commit or
did commit a crime. Crime supplies boundaries on the search.
 Why couldn’t a court retroactively say there was probable cause? Why do we require
warrant before the search?
o After arrest, you’ve presumptively found the evidence – so you could just reason
backwards & doctor your reasons for why you went in.
o If you wait until afterwards, you won’t be able to provide a remedy for people whose
rights were violated. Can’t check searches w/ the independent judiciary if they’ve
already happened!
** How does this body of law take into account national security?
 We could say that nat’l security is itself an exception to 4th Am. Note that the gov’t has
made this argument again & again.
 Or, we could say that it puts a thumb on the scale when we balance. It tilts the scales in
favor of gov’t in these types of cases.
US v. US District Court (Keith) (p.615)
Was the warrantless wiretapping in domestic security investigation lawful?
 Does Title III answer the question? What does it say, if anything about Pres’ power to
authorize such wiretaps?
o Court doesn’t think it adds anything to Pres authority, it left Pres powers where it
found them.
 What 2 categories of measures does Title III acknowledge Pres power?
o Protecting US gov’t from overthrow & clear & present danger to structure –
domestic security
o Protecting nation against actual/potential attack from foreign power – foreign
intelligence collection.
 Congress supplies a standard of admissibility  such information can only be admitted into
evidence if the search was reasonable.
o Thus, it doesn’t completely bypass 4th Am. Just seems to ignore the warrant
requirement of the 4th.
 Constitutional source for Pres ability to collect nat’l security info w/out a warrant?
o Oath to protect/defend Constitution
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
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o Foreign affairs power – this seems relevant only to 2nd category (foreign
intelligence).
o Implied emergency power – In re Neagle.
o If Pres has been doing this all along for domestic security purposes, might be able to
make a customary authority argument. But did Congress have notice that Pres was
conducting black bag jobs? Also, if there was clear violation of Constitution,
Congressional acquiescence wouldn’t matter!
What about Congress? Art.I, §8 – provide for defense of country.
Gov’t argument for why nat’l security surveillance is a ‘special circumstance’? Concern
about secrecy & leaks, so this could explain away why we can’t have a warrant req.
o However, federal judges can get security clearance. And they do this sort of thing all
the time, so they’re used to keeping secrets.
 Informants’ identity is routinely reviewed in camera, for example.
Also, w/ regard to courts, there is argument that courts are not competent to review this kind
of info. They are not experts in foreign affairs. First of all, the info might be in a different
language – if you have to translate for a judge, this will cause a delay! Or maybe the mosaic
of intelligence makes sense together, but not the individual pieces – thus, the agent who has
been working on it for years would understand it better than a judge who is just viewing
some individual pieces.
o Yet, judges deal w/ complex crimes all the time – inchoate, RICO, antitrust, etc.
Another argument? Speed – it is harder to act quickly if you have to be explaining
everything to a judge!
Yet this case is strictly domestic. Many of the previous arguments would probably fall away
if we are not talking about a foreign case.
In this case, court concluded that gov’t did NOT prove that dispensing w/ the warrant was
appropriate in this particular case which was only about domestic security.
Predicate for gathering domestic security info? Detection or prevention, usually. Or simply
preparedness. Thus, the focus is less clear than in the ordinary crim case – where the focus
is gathering evidence for prosecution.
o Thus, there is a difference. Maybe this means that we should lower the probable
cause req for domestic security cases, which the court acknowledged – & they
suggested that Congress come up w/ something different. They suggested a relaxed
standard.
 If you are collecting for preventive purposes, rather than for a prosecution,
maybe that is enough for probable cause…
A national security (foreign intelligence) exception?
US v. Ehrlichman (p.628)
Ellsberg leaked Pentagon Papers, so Admin prosecuted him. In connection w/ building their case,
the gov’t deployed some guys to break into his psychiatrist’s office to check his records that might
help in the prosecution.
 How is this case different from Keith? If you’re the gov’t, how do you distinguish?
o This case has int’l ramifications. Pentagon Papers disclosure could’ve jeopardized
nat’l security. Meanwhile, Keith is purely domestic. That court also reserved
judgment on whether there was a nat’l security exception.
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

o However, is that enough to make it a foreign case? They broke into his doctor’s
office, so that was very domestic. Foreign connection seems somewhat collateral to
the case.
o Difference in surveillance? This was focused on a specific crime – so it might seem
more like Title III, b/c they were arguably breaking in to support a prosecution.
Also, it was a different kind of surveillance – was the phys entry in this case more
intrusive than the electronic surv from Keith? There are arguments on both sides
here.
Did Pres approve this? Judge seemed to find this dispositive here. If a warrantless search
happens, it should be authorized at the top.
If Pres approves a warrantless nat’l security search, then that is ok. There was no evidence
of that here. This is what DC Circuit said decided the case on appeal.
US v. Truong Dinh Hung (p.633)
True foreign intell case. Also, there is specific auth by Pres alter ego – the Attorney General. What
makes it foreign case? Target was foreign citizen. This seems to make it ok ala Keith, & it makes
1st Am. concerns lower.
 Is it lawful? Pres basically ordered this surveillance w/out a warrant, & target was foreign
agent, to collect foreign intell, so this was ok.
o Limited to cases that are primarily foreign intell matters. Can’t just be any foreign
intell connection (which gov’t argued for). D wanted it to be solely foreign intell.
 Target was foreign, & it didn’t seem to be focused on crim prosecution.
** Summary:
 Ordinary crim search – Title III
 Domestic security search – lowered probable cause std, still need warrant (following Title
III) – Keith. SO DID KEITH JUST SAY THAT IN PURE DOMESTIC SECURITY
CASES, IT IS ALWAYS UNREASONABLE TO CONDUCT WARRANTLESS
SEARCH?? YES! Constitutional prerequisite, unless you have special need beyond fact
that it involves nat’l security.
o Congress lowered PC std in FISA, which they were invited to do in part 4 of Keith
case. Court in that case implied that stds would be lowered.
 Foreign intell search – if Pres/Attny General approves, & target is foreign agent, & it is for
foreign intell, you don’t need a warrant
o In US – primary purpose must be foreign intell, must be foreign target, &
Presidential approval or other approval from high.
 Court adopted those stds in Bin Laden case, even though it wasn’t governed
by FISA.
o Abroad – treaty??
FISA was to control foreign intell searches in the US (i.e. 1 foot in the US).
** US has won in FISC 13,000 times, lost 3 times (& 1 was reversed!)
US v. Duggan (p.666)
Attny general has to authorize request for FISA application. 2nd, application is made secretly to
FISC (meets on 6th floor of DOJ – secret), & only gov’t appears. They issue orders in secret. Only
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2 opinions have ever been made public. Application must contain (1) identification of foreign
target (power or group engaged in int’l terr or agent of these 2); (2) a purpose to collect foreign
intell; (3) certificate by NS assistant to Pres that 1 & 2 are true. The court then determines whether
there is probable case  whether PC for 1 & 2.
 (a): “Foreign power” = i.e. Russia, Afghanistan, other foreign gov’ts
o “Int’l terr groups” = also foreign powers (see p.681)
 (b): “Agents of foreign powers” = see p.681.
o (b)(1)  Megahey? He was member of the IRA, which is a foreign power (a)(4).
They should show some facts that he is member of the group.
o What about Moussaui? If statutory std was that you had to be a member of terr
group or an int’l terr. But doesn’t seem to be enough evid that he was actually int’l
terr or member of any of those groups. It seems more like he sympathized w/ them,
on face of the evidence. Holding extremist Islamic beliefs doesn’t mean you’re a
member of 1 of these terr groups.
 Seems like a FISA app for him would get turned down, if you take statute
literally. Nothing in there for ‘lone wolf terrorist.’ What is alternative?
Perhaps an ordinary warrant – but what about probable cause – what crime
has been committed?
 (b)(2) – applies to both US & non-US persons.
o This seems like a harder std to satisfy – knowing requirement.
o (C)  could apply to Moussaui…this is debatable. Is taking flight lessons
preparation in line w/ this provision?
 What about McVeigh? Could you get a FISA order to surveil him? Doesn’t seem to be
acting on behalf of any foreign power, he didn’t really have any connection to foreign
powers. That is what FISA seems to be focused on, & Patriot Act didn’t amend this.
o Yet it says ‘sabotage’, not ‘int’l sabotage’. This could provide argument that we
could get at him using this. However, the entire thrust of the Act is foreign, not
domestic.
 US person gets higher level of protection under FISA. Knowing req is an example.
 Problem is that the evid we need to satisfy for FISA will frequently be found only after
terrorist act. The nature of the evid we are seeking is somewhat preemptive.
 Can be difficult to define the foreign target. Also, what is ‘foreign intell’?
 Findings on US persons can’t rest solely on 1st Am. expression.
 What if you want to criminally prosecute the target? Purpose of authorizing surveillance
must be for obtaining foreign intell info – this suggests that if you are looking to criminally
prosecute, you can’t use FISA! You’d have to get a warrant.
o On the other hand, can you imagine a foreign intell search where a crim prosecution
isn’t on the horizon somewhere down the road, at least for US persons??
o Also, arguable that we can’t construe this to mean only foreign intell is the purpose
to qualify for FISA warrant. So, as courts have interpreted, we take this to mean that
foreign intell must be primary purpose.
 Also, if we tried to get a crim warrant against Moussaui, they couldn’t later get a FISA
warrant – b/c they would’ve basically conceded that they were criminally prosecuting him.
 If it’s a US person, must determine whether app was clearly erroneous. Highly deferential.
Is certificate procedurally regular? This is not a difficult standard to meet.
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** Does FISA properly balance private & gov’t interests to satisfy 4th Am.? What is the tradeoff?
 Neutral Art.III court as some sort of check on Executive, although it’s not as much as some
people would like. Congress supplies standards, the court supplies the review – foreign
target, procedure regular, etc.
 Administration gets a much more lenient standard than a standard criminal court would
allow. Less judicial control. Suggests that there is great incentive for Exec to use FISA.
** Does singling out non-US persons for FISA deny them equal protection?
 Rational to think that non-US persons are more likely to be security threats, etc. Also, many
of them will be here temporarily, so we need quickness. This justifies singling them out.
** Did FISA completely occupy the field, or does Pres have some inherent authority to conduct
warrantless surveillance?
 Exec power clause, oath to defend Constitution, CiC clause…
 Problem is that there doesn’t seem to be any explicit authorization to authorize warrantless
surv AND make it exclusive to Pres.
** FISA doesn’t apply to surv that is entirely extraterritorial! Unless FISA by its own terms does
NOT apply to search, Pres doesn’t really have any strong arguments for inherent authority.
Pen register, trap & trace (neither record the conversation)  USA Patriot Act changed standard for
authorizing these = p.22 of supp. Reduced to a very weak relevancy standard  collecting info to
protect against int’l terrorism.
Can’t be based solely on 1st Am. activity. Also, a lot of the forms of surv are in areas where courts
have said people don’t have a reasonable expectation of privacy.
No constitutional standard that seems applicable, & also the statutory standard shows that there’s no
court that reviews many of these documents. Also, who would challenge, if there was a forum to
bring such a challenge? Hopefully, the FBI has some internal checking process. But few have
incentives to challenge these actions.
In re Sealed Case (p.24 of supp.)
Before this case, primary purpose had to be foreign intell. If not, & if target is US person, this
counts as clearly erroneous if court allows surveillance. Thus, before this case, the criminal
prosecution side is separated from foreign intelligence side – “the wall.” These rules were actually
codified as internal rules in DOJ.
 Theory of 9/11  lack of communication b/w foreign intell side & crim prosecutors
prevented authorities from stopping the attacks
o Movement to tear down the wall b/w foreign intell side & crim prosecution side.
 Congress amended FISA  “the purpose” to “a significant purpose”
 This case was gov’t’s appeal from lower court decision placing conditions on approval of
surveillance.
 Gov’t arguments:
o FISA never had any “primary purpose” requirement. Legis history contemplated use
of surveillance for criminal prosecution. Never said there had to be a complete split.
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
 Court said Truong was wrong…
o Court has no business looking for a purpose…
o Whatever standard was before, Patriot Act changed this by allowing for “a
significant purpose.” Lowered, easier standard to satisfy.
o If FISA even as amended requires a wall, then it unconstitutionally infringes on Pres
authority. Can’t allow court to reach into the DOJ to tell it how to operate. Court
doesn’t rest its opinion on this theory.
Court says everyone who had looked at this issue before was wrong.
What does gov’t have to show now to obtain a FISA warrant?
 Gov’t can’t come in & have only a crim prosecution in mind. “As long as they have
realistic option of dealing w/ agent other than through criminal prosecution, it satisfies
significant purpose test.”
o This seems like an extremely low standard! Seems like gov’t will always win on this
point. Very pro-gov’t standard.
 They also say the court has no business weighing the purposes stated by the gov’t.
 Seems like court says ‘a reasonably possible purpose, however remote’, while Congress said
‘significant purpose’!!
o Exec asked for ‘a purpose’ language, yet Congress rejected it! Court seems to be
legislating here.
 Why wasn’t this appealed? The only side that can appeal is the gov’t!
** Is this constitutional, even if this was a correct reading of statute?
 Truong was decided under Constitution (as it was decided before FISA was enacted)
 Court said Truong was wrongly decided. In a foreign intell case, these concerns over
foreign intell continue throughout, even after it has been referred to criminal prosecutors!
o Is this correct reading of Truong by this court?
 According to Raven-Hansen: Truong just says that once crim prosecution begins, the foreign
intell stuff doesn’t drop away. Just that the balance shifts b/w privacy & foreign intell, so
supervision of fed judge would be required.
** This was an appellate court in which only the gov’t argues. Is this the right way to make law??
How can this be fixed?
 Create an independent position that can argue against gov’t, etc. Appoint a lawyer to argue
the other side.
 Or keep appeal open, do it in open court. Here, the case was about application of law, so it
wasn’t really factually sensitive.
 Improve reporting to intell committees about what court is doing. More detail, etc.
HYPO:
Al Qaeda terrorist who is US citizen was planning attack w/ Indonesian nat’l. All abroad.
** Can we arrest any in US w/out a warrant?
 Probably can meet reqs of FISA for both
 If you can’t meet FISA, Congress occupied field.
 FISA or Title III
** Could you conduct a wiretap of Indonesian in Indonesia w/out a warrant?
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


Not illegal. 4th Am. does not apply abroad. Must be reasonable, warrant req would fall
away. Yet, does it have to reas?
This person couldn’t invoke 4th b/c they aren’t protected by it. It protects citizens of US.
Can apply to foreigners IF they have substantial connection to US – so they are part of
community that 4th protects.
Ind is not a citizen. Does he have substantial connections to US? Doesn’t seem like he
does…might be enough if you are a perm resident alien, even if you travel back to your
homeland a lot.
** What about Reid case?
 Said that Constitution travels w/ gov’t abroad. Why doesn’t this control a warrantless search
of Ind? Reid dealt w/ a US citizen, not a foreigner.
 Also, Reid was a plurality. Gives opinion a little less authority, arguably – not controlling in
Verdugo.
 Harlan’s concurrence  Const applies differently abroad than it does at home. Balancing
analysis as when you decide due process.
o Applying that analysis in Verdugo, do we need a warrant?
 Argument that Ind police aren’t reliable, so no warrant required.
 Also, would an American warrant mean anything in Ind??
 Also what is privacy interest of target? That of the US, or that which is
typical in Ind?
 Also, US magistrates can only issue warrants for their own districts!
 Harlan in Reid + Kennedy in Verdugo  all of Const applies abroad, but it applies differentially.
More narrow holding than plurality.
** US citizen in Ind if we asked Ind police to do it?
 Suppose we had nothing to do w/ it? Silver platter doctrine  no deterrent purpose served
by excluding that evidence, so we can accept the results of Ind police search.
o Even if silver platter doctrine applies, is it a joint venture however? We would have
to look at how much influence US had in Ind efforts.
o What makes a joint venture? Is simply giving a tip enough? Or coming to help set
up & listen?
 Mere tip/advice doesn’t seem to be enough. If US police direct, then it
appears to be a joint venture  silver platter doctrine denied.
o Shocks the conscience exception
** US police had heavy participation in Ind investigation.
 Assuming this was joint venture search of US citizen in Ind, what standard applies?
o Not a warrant (practical considerations – see Kennedy’s ideas in Verdugo), but what
about reasonableness.
o Compliance w/ foreign law + good faith. 9th Cir. standard in Barona.
 May be difficult for US agents to do this, however
 Does this mean that we can do whatever we want in those countries that have
weak laws?? Think of US citizens in Haiti, Russia, etc.
o Probable cause. You don’t have to have a warrant to have probable cause. Dissent
in Barona.
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US v. Bin Laden (p.650)
Additional reasons for not getting a warrant here (in addition to practical considerations given by
Kennedy in Verdugo)  US person was target, associated w/ int’l terr org, & also this search was
overseas in Kenya (FISA thus wouldn’t apply).
 No warrant required b/c it is foreign intell search. What is instead necessary?
o Approval from Pres/Attny Gen,
o Primary purpose (this might not come out same today  if it was borrowing law
from FISA, it would have to be significant purpose), &
o Agent of a foreign power
 These aren’t FISA reqs, b/c it doesn’t apply!
 Surv had to be left in place for preventative purposes b/c he was so important to al Qaeda in
Africa. They had to pick him up eventually b/c of the embassy bombings.
 However, this dispenses w/ warrant req, but not w/ reasonableness req. Court appears to be
eyeballing  subjective judgment under the circumstances.
o Duration
o Scope of surveillance
o When they did a phys search, they actually left inventory behind (they had already
picked him up, so it wasn’t a concern).
 Even to items that were unreas searched, everything was done in good faith  so this
cleansed any problems.
 Local law? They had a search warrant from Kenyan authorities, even though it authorized
searching for ‘stolen property.’
o If agents believed that, the intell searches would seem ok even if violating Kenyan
law.
 Probable cause at time search is conducted.
** Could FBI or Ind police torture Ind or US citizen to get info?
 US citizen? Shocks the conscience exception might apply. Even if Ind police do it w/out
FBI playing any role?
o No real deterrent purpose. Just the very idea of it is against our system.
 What about situation where someone who is in extreme pain (i.e. in a hospital) is
interrogated? Doesn’t seem as bad as actual torture. Justices seem to characterize this
situation as not constituting torture.
o Reason against it just seems to be freedom from unwanted questioning.
o See p.19 on supp.
o Kennedy  might be ok, as long as police don’t exploit someone’s pain.
 Which custom are we looking to when examining US citizen torture in Ind? US customs or
Ind customs?
 Or we can say that the conduct is ok, but you can’t use evid gathered in court?
 Also, torture is a clear violation of jus cogens norms of int’l law! Whatever balancing under
our own substantive due process clause, aren’t we necessarily barred from using this by fed
common law that incorporates int’l law?
 So we’re not altogether sure whether this is illegal. Not sure whether 5th Am. bars torture, or
whether there is some sort of balancing. Also not sure exactly what impact int’l law will
have.
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Review – Elec surv & phys searches in US
For ordinary crim cases, need probable cause + warrant under Title III
 For domestic intell, need prior judicial approval but probably under more relaxed standard.
Keith controls.
 For foreign intell – approval from high, target is foreign, & primary purpose, then don’t
need a warrant – after Keith. But now FISA seems to occupy the field.
o FISC – PC that it is a foreign target, etc.
 What about searches abroad?
o If unconnected foreign nat’l, no 4th Am. protections. Might be protections against
torture – CIL, 5th
o If US person searched by foreign police – silver platter doctrine, unless 2 exceptions
apply (joint venture or shocks the conscience).
o If US persons (but joint venture) – no warrant reqd but reasonableness still applies –
through eyeballing test, although there are others.
Regulating investigation
Generic authority of FBI, CIA to investigate
 FBI doesn’t have much of a statutory charter, pretty much at discretion of Attorney General.
 CIA? Could it be used in investigation in either of these groups (from exercise)?
o Authority to conduct domestic investigation? Exec Order 12,333
Stage of investigation – they differ by methods of investigation allowed
 Leads – threat assessment
o Nothing really invasive allowed
 Preliminary investigation
o More invasive procedures allowed
o Answers will depend on whether it is domestic investigation, nat’l security
investigation, etc.
 Full investigation
o Everything – full surveillance, etc.
** Why not allow authorities more discretion in investigate? There has been a history of abuse!
Think of Vietnam War era, etc.
Palestinian Coalition hypo:
Qualify for investigation by FBI. CIA? Is any collection foreign intell or CI, as opposed to
domestic security?
 What about Nat’l Patriots? FBI might be only agency. Doesn’t seem like they have any foreign
connection, so it doesn’t seem likely that CIA could monitor a home-grown domestic group.
** What methods of investigation could you use?
?
Predicate
Scope/methods
Post
9/11,
FBI
assigned
Pre-9/11,
almost
none,
but
Prompt
& extremely
Leads check –
prevention
of
terr
acts.
not
quite
0.
Post-9/11,
limited
checking
out of
threat assessment
Proactive as opposed to
reactive tradition before
9/11.
might be able to open
jacket on someone w/ no
lead at all.
leads. Short term, very
restrictive, & strictly for
purpose of deciding
whether to move onto
prelim investigation. Yet if
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Preliminary
investigation
Full investigation Now, no holds are
barred.
FBI
Implied authority to
investigate regular crimes,
domestic security within
US (Exec Order 12,333)
you are assessing threats,
the job may be constant &
continuous.
 Methods: public records
checks, internet surfing,
visits to certain public
places.
Records checks,
interviews, photo/video
surv. But can’t open mail
or use nonconsensual elec
surv.
More than sufficient for
leads checks, but less than
facts reas indicating crim
activity. LOOK TO
READING AS TO
WHAT IS REQUIRED #25, 26.
Reas indication of crim
activity – seems
somewhat less than
probable cause. Mere
hunch of crim activity is
not enough, need specific
facts indicating past,
present, or future crime.
Can do just about anything
– mail opening, elec surv,
etc.
CIA




Nat’l Security Act of 1947 –
no internal security function.
This appears separate from
collection of foreign intel &
CI.
12,333  also assigns CIA
functions abroad, which
suggests that it can’t operate
domestically.
If they are investigating US
persons abroad, they have to
get permission from Attny Gen
– this comes only if they are
acting as foreign agent (similar
to FISA).
They can conduct CI within
US in conjunction w/ FBI.
NSA


Collect phone/electronic
surveillance. Largest
non-military budget,
much larger than CIA.
Operate domestically
under FISA; abroad
under Exec Order
authority – only if it
targets US persons.
[** Good book on NSA – “Puzzle Palace”]
** Special rules for investigation about WMD  any info that someone is seeking to possess/or
possesses these weapons, then FBI is authorized to conduct full investigation. Should such a rule
apply for regular weapons, i.e. truck bombs? Ingredients themselves are not illegal, yet they can
cause plenty of destruction…
Exercise (p.697):
Which level of investigation can we use for PC & NP?
 PC is openly critical of US policies, etc. NP advocating various anti-gov’t positions, also
said to be planning OK City type bomb attack.
 PC?
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

o Is it prelim inv or full inv? Not clear that info reas indicates crim activity yet. Also
plenty of 1st Am. protected activity here. So is some of predicate for inv 1st Am
activity here? Think of Reno case.
o Magnitude of harm is very substantial.
o Indivs are connected to int’l terr org.
o What about Nat’l Sec inv guidelines? Might lower threshold to 0 for group like PC
b/c they might qualify foreign agent. But we don’t have that info in front of us, so
we have to go w/ domestic guidelines. Have to balance all factors above.
NP?
o Informant who says they are planning a bombing. Does this reas indicate crim
activity? Depends in part on reliability of informant.
o However, magnitude of harm is enormous.
o Imminence, likelihood are also important.
After 9/11, all close questions would probably go in favor of opening investigation.
** Terrorism enterprise investigation  mere speculation that force might occur in an otherwise
peaceful demonstration is not enough to authorize an investigation. Unless they have history of past
abuses. See p.41 of supp.
** If in full investigation, what do we do if we want to get FISA searches authority?
 NP  can’t, b/c no indication of any foreign connection.
o So if you want to do phys search, you have to go through traditional warrant process.
Ordinary crim law under Title III. Need a warrant for wiretap as well.
 PC  they probably would qualify as foreign agent. Though it’s not so obvious, b/c they
are just donating money to foreign group. But seems like language of FISA is loose enough
to allow this. Gov’t would have to ID them, set forth facts that led them to conclude that
they are foreign agents. Also need certification from Attny General that it is FI info &
(significant) purpose is foreign intell. Also have to give court basis for that certification.
o Since this group consists of US citizens, application would have to have
minimization procedures. Details on what info is sought, how it is to be disposed of,
etc.
o Probable cause that they are foreign agents + application is procedurally ok +
certification is not clearly erroneous (b/c of connection of US citizens). This is task
of FISC.
o If authorized, it would allow sneak & peek search.
o What about business records? Pen register, trap & trace. Standard  “protect
against int’l terrorism,” which is very easy standard to satisfy. Can either get order
from FISC or bypass court altogether by subpoena to 3rd party to turn over records
w/out telling PC.
Profiling suspects
If it is done to single people out, it’s not a 4th Am. issue, but rather Equal Protection issue. Singling
out people on basis of some characteristic.
 If this is done in a suspect manner, it is subject to strict scrutiny & there must be compelling
gov’tal purpose.
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** Drug dealer is shot, people see Hispanic male fleeing the scene. Can police stop & briefly
interrogate any Hispanic male within 2 blocks in next hour? Equal protection is background legal
paradigm.
 1st of all, what does a Hispanic person look like? For this exercise, assume that we know…
 Would you regard this as profiling?
o Maybe the race thing here is just an identifying characteristic, akin to one’s height,
clothing, etc.
o Or maybe it is that you think Hispanics have propensity to commit these
crimes…obviously much more problematic, & seems to fall within ambit of Equal
Protection.
 If scope of stops is narrow, it doesn’t seem that anyone is really hurt. Look to burden on
affected community.
 Also question of whether this is actually a compelling gov’tal interest.
 Another hypo: looking for someone who might commit a crime in the future.
o State’s interest is not as compelling when there isn’t a specific crime/threat. Also not
as reliable when it is based on propensity argument.
 What if they are stopping Hispanics within 2 miles or over the span of a few days? Broader
scope.
o Further away it is in time seems to make it more problematic.
o Gov’tal interest doesn’t seem to change.
o Identifying info is arguably very unreliable, & thus more improper.
 DOJ guidelines  must be relevant to locality, time frame, & trustworthy.
o Seems like this relies on common sense & what we’ve been talking about.
 Need compelling gov’tal interest, never when based on propensity, to justify profiling.
** Chinese obtain weapons secrets, Wen Ho Lee was held.
 He was held in chains for most of his incarceration! Was this proper, since it’s not like he
was held for a violent crime.
 Lee had opportunity to hand over secrets during his travels.
 Officials thought that someone of Chinese origin would be more likely to hand over stuff to
PRC.
o That alone seems insufficient  improper profiling.
 Is it fair to single out people based on their opportunity to commit the crime? This is
somewhat different from propensity basis.
 Is it impermissible to single people out based on where they were born?
o Supreme Ct has included perm residents as “US persons.”
o Are we also singling out US citizens w/ relatives abroad? This might seem less like
discrimination.
 Seems as FBI focused on Lee & ignored other leads b/c he was Chinese
** 9/11 detentions
 If people rounded up b/c they were Muslim, would this be profiling?
o YES, profiling based on religious grounds.
o Also, fact that you are Muslim doesn’t mean you are connected to Arabs, etc.
 What if they were picked up b/c they were immigrants, would this be profiling?
o Alienage is not necessarily a suspect classification, but it might be if for this purpose.
o Also seems overbroad – Muslim, Arab, immigrant.
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NATIONAL SECURITY LAW


 Equal Protection would probably require that we be more specific.
What if we put them all together  Arab Muslim immigrants b/w 20 & 30. Would this be
profiling?
o Still a huge group of people! Doesn’t remove the unreliability of description by
combining our previous descriptions.
o Yet these are identifying characteristics of the 9/11 hijackers.
o Also what is Arab as an identifier? Is it just anyone from Mid East who isn’t Israeli?
o After 9/11, it seems that gov’tal interest might be even greater  we don’t want
massive loss of life. Thus, while our profiling factors might be unreliable & vague,
maybe we will tolerate it in this new age. Err on the side of caution.
Suppose there was threat alert that Yemenis or Saudis were going to hijack airliners from
CA to repeat 9/11? Is it ok if we interrogate people of this description?
o Seems more specific  focused on 1 general area for a limited duration (1 week).
Civil preventive detention
** Detention purpose? Options:
 Spitting on sidewalk
o Arrest them for any crime (since there might not be probable cause to arrest for
terrorism).
o What crimes? Problem is that you can’t incarcerate for many of these. Or if you’re
holding them, you probably can’t hold them very long! Or they could get out on
bail. And in these circumstances (bail hearings), they get full adversarial process,
lawyer w/ judge present, etc.
o Identity fraud, credit card fraud are typical. Even w/ these, however, how do you
demonstrate that they are threat to community?
o Flight risk.
 Material witness statute
o If gov’t can demonstrate to a court that 1 has info that would be material to a
criminal proceeding, that person can be arrested & held until they can testify at
proceeding or give a deposition. These people have no criminal liability, you just
hold them to help a crim investigation.
 Since grand jury is out for 18 months, he could conceivably be held that long.
Suspect’s lawyer would in this case ask to get depo as quick as possible so
they can release him. Or file habeas corpus proceeding or due process
challenge.
o This wasn’t very common before 9/11, although it was used to get Nichols after OK
City.
o Here also, gov’t has preponderance of evid burden. Also suspect gets full adversarial
process.
 Immigration violation
o Limited amount of time that these violators can be held – 24 hrs (changed to 48 hrs
after 9/11).
o Patriot Act – §412  if Attny Gen certifies that immigrant was of special interest,
then he can be held w/out charges for 7 days. If AG recertifies, then he can be held
for 6 months.
 They also added habeas corpus provision to this, however.
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NATIONAL SECURITY LAW

 Also, this provision has never been used.
o Remedy is often deportation, in which case, we would send them back out into the
world!
o Also, these people are entitled to release on bond. Flight risk could still be a
problem. AG was able to close bond hearings. AG also issued order that no bonds
shall issue. Also the rule that “hold until cleared.” FBI had to clear these people.
Since FBI is so busy investigating terrorism, this can translate to people waiting a
long time before being cleared.
National security exception to 4th Am.
o Why not just give Pres unilateral authority to detain?
o Rather than exception, just say that we tip balancing on reasonableness in favor of
gov’t in these cases.
 Yet usually reasonableness is measured by issuance of a warrant from a
neutral magistrate.
o Special needs cases – hot pursuit, plain view, regulatory searches…maybe we can
argue this w/ respect to seizure  b/c the need for the info is so important, we don’t
want another 9/11.
o Yet if we go down this road, the Pres can detain virtually anyone.
o Analogy to Keith case  special circumstances, b/c these people have info that fits
into the mosaic of intell that is very necessary. Thus, info collection process here is
unique from that of a traditional crim investigation.
 Might want authority to come from top, as well as some durational limit on
detention. Lessened probable cause as well.
 Yet Keith didn’t say that Pres himself could conduct foreign intell
investigations w/ lowered probable cause, but rather Congress is who creates
the exception through a statute.
** Out of the 1100 arrested after 9/11, only 1 has been indicted! Is this a sign that the detentions
aren’t legally sound? Does this sound like a democracy operating under law? Also, this civil
detention is diff from calling detainees ‘enemy combatants’, which is authorized under Pres war
powers.
** Why did gov’t arrest all these people?
 May have info about terrorism.
o Linked to or possessed knowledge about the terrorist attacks
 Prevent & disrupt future attacks
** Preventive detention according to Souter in Denmore case (p.51 of supp.):
 Need special justification that outweighs invid’s liberty interest
 Adequate procedural protections that govern detention itself – duration limit, impartial
decisionmaker.
** Bail Reform Act upheld in Salerno  person has been indicted. Court has full blown adversary
proceeding. Gov’t has burden to show flight risk/danger. Suspect has right to appeal. Divided
vote in this case on these procedural protections.
** If Pres does detaining entirely himself, there seem to be few if any procedural safeguards.
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1 check is info disclosure – FOIA case.
2nd procedural protection is rights of detainees while in detention  access to counsel. Yet its not
clear that some even got a phone call, or some of them couldn’t even speak English or use the
phone properly. This is from immigration violation area.
Also, what about treaty right to contact your embassy to tell them you’ve been arrested for
immigration violation?
** Ways to get authority for these detentions?
 Go to Congress & get authorization
o Pros  you’re not bending the law, you are going to lawmaking body & asking for
social consensus about need for preventive detention. It will probably have built-in
checks & involvement for each branch.
o Congress only gave Ashcroft 7 days of preventive detention, after which he had to
certify for more time. Then there would be habeas provision for detainees.
 Arrest people for other crimes
o These are pretextual arrests in a sense, b/c we don’t care about ID fraud, etc. But we
can use these arrests to hold these people for some time.
o Problem? Most of these crimes, b/c so minor, do not result in incarceration or
trial…so you immediately confront bail process & you have to convince judge that
suspects are flight risks, threats to community. Also, bail hearing is open court.
These people might just have info about terrorism, so they aren’t really flight risks,
etc, b/c then they would’ve been arrested for more serious crimes…
 Material witness statute
o This is also open court hearing where detainee has lawyer. Also time limited,
according to statute – until they give depo, etc. So if they offer depo, they can get
out right after. Ashcroft wants to hold them until they are cleared, not merely until
they talk, so this statute doesn’t really get at that need.
o Also seems like it might be unconstitutional to hold people for too long via this
statute.
 Immigration detention
o “Hold until cleared”
** Need for some process by which you implement that authority
** Role for judicial review
** Transparency  openness of your authority, process, to the public. FOIA is good example of
this in our system. Raven-Hansen considers this very important!
** How does FOIA work?
 Any member of public can make request to a gov’t agency for its records
 Agency has to respond by a certain time, but there are exceptions (p.926)
o Exception 1  authorized to be kept secret.
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

o Exception 5  interagency memos & advisory documents. FOIA only mandates
disclosure of final documents.
o Exception 6  certain matters that involve indiv privacy.
o Exception 7  records compiled for law enforcement purposes. This is exception
that was at issue in following case.
 Exempt only to extent that disclosure could interfere w/ enforcement
proceedings (see p.927).
Authorizes a suit by anyone who is unhappy w/ response time. If you prevail, your attorney
collects fees from gov’t.
These suits have statutory priority. But in reality, there are delays & some leeway given by
courts that protect gov’t.
** Why did gov’t stop revealing info about detainees? Maybe the numbers were getting too high,
so they wanted to avoid the issue – this is precisely the reason we want transparency in the system.
Nat’l security reasons for not releasing? Doesn’t seem like there is reason for not releasing
numbers of detainees…what about where arrest took place or names of detainees? This becomes
more problematic. If we release numbers of what nationality arrested, we might upset other
countries & their people, etc. RH wants to place burden on Administration for why they are
withholding info.
Center for Nat’l Security Studies v. DOJ (p.101 of supp.)
FOIA request = names of detainees, attorneys, dates of arrest/release, locations of arrest/detention,
& reasons for detention. Gov’t invokes Exemption 7  disclosure will interfere w/ law
enforcement function, as it will allow people to figure out mosaic of the investigation. Vaughn
affidavit (note 3 on p.943) = basically gives requester some idea of what is contained in withheld
record, to ensure “adequate adversary testing” of agency exemption claims.
 Vaughn affidavit was different from normal  ‘everything you’ve asked for is exempt, b/c
we don’t want terrorists to piece together our mosaic – they might be able to figure out
direction of our investigation so they can better avoid detection.’
o Cells that have been compromised will know it & might disappear.
 Yet if he’s been arrested, the cell will probably figure it out anyway. Also, if
they feel like they’ve been compromised, they might just speed up operation
rather than withdraw.
 Gov’t is making a predictive judgment about what will happen to investigation if disclosures
happen, so court didn’t want to 2nd-guess that.
 Disclosure will allow terrorists to map investigation & foil it.
 Counterarguments by dissent?
o Statute says = de novo review standard for courts, except for exemption 1! So they
don’t have to give so much deference to Executive as they did here.
o Must court defer to gov’t in FOIA scheme? Court says they generally defer on nat’l
security matters, & on Exemption 1.
 But this is exemption 7, not 1! Deference is to properly classified info!
o Gov’t hasn’t given us a basis to determine whether exemptions are properly invoked.
This wasn’t a typical Vaughn affidavit.
o We are detaining 1100 people w/out probable cause for indefinite period. Our
systems abhors arbitrary arrest! If courts don’t come into play, the 4th branch should
(the media!).
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
o Also, is it ‘all or nothing’?! FOIA is a redaction statute, so they still could’ve release
some of this info.
 For example, why not release attorneys’ names? It’s not like attorneys can
release names of their clients! Also, if we release attny names, we at least
know that in some way that some detainees are getting lawyers!
Access to info was denied.
CONSEQUENCE MANAGEMENT: WHEN THE WORST HAPPENS
Historically, FBI was lead federal agency (LFA). Federal level, FRP & CONPLAN come in to
provide aid. Both in limbo after creation of Homeland Security. Many FEMA functions are now
reallocated in light of organizational changes in gov’t.
Homeland Security is very jumbled b/c it combined 22 fed agencies. Some of those agencies had
their own culture.
HYPO:
 Terrorist attack involving pneumonic plague in May at a Denver concert
 Initially, detection network will be local hospitals & physicians. It might be some time
before someone realizes that this was work of bioagents from an attack. Also might be lag
time b/c of incubation period of particular agent.
o Hospitals started identifying it in large numbers 2 days after attack
 Suggests that 1st level of consequence mgmt is local, so we should 1st target local level & 1st
responders w/ funding, training, etc.
o Need to bolster public health network, which many people have complained that it is
in need of help.
 Local med people might notify CDC in Atlanta.
o They have stockpiles of antibiotics, which can be shipped out immediately
o They have system for backup med personnel in case locals get overwhelmed, &
these backup personnel can be shipped in to support.
 Once CDC told locals that they faced plague, local authorities declared emergency &
governor told people to not leave or come into the city – travel advisory.
o Yet, people’s natural reaction will be to leave the city. Raises question of whether
governor can stop them using police, nat’l guard via quarantine. Can he authorize
them to shoot at people who disobey?
o Also problem that police themselves will be trying to flee as well! So this means
you might have to use nat’l guard or fed troops.
 In this scenario, governor concluded he could make travel restrictions, but he didn’t have
enough data.
o He addressed public in scenario. Does this aggravate or help problem?
 Anthrax scare had different authorities giving conflicting advice!
 1st Am. issue  can gov’t take over airways, or has technology alleviated 1st
Am. concerns? No easy way to give public a single unified word from gov’t.
 This is all local level. When do feds come in, in addition to CDC?
o To investigate who did it, the FBI is LFA. Problem is that there is little coop b/w
feds & local police!
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
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FEMA was LFA for consequence mgmt. Now it is wrapped into DHS, but they still
probably have lead role. They help coordinate fed backup to local response, but they don’t
take over from locals.
Also, how do you distribute the ‘pushpacks’ (emergency antibiotics from CDC)? Who gets
them 1st, who physically distributes, etc. Complex equity problem in distributing these.
Also, significant portion of pop’l would be at risk from vaccination. This needs to be taken
into account as well.
Also, we’ve been talking about known viruses. What about designer viruses? People w/
enough funding could start a lab to work on these to use as agents.
Is it possible to quarantine the entire state? Can we allow ‘shoot to kill’? Will they actually
do so?
By 5th day, civil unrest broke out – attacked hospitals & police. Had to bring in military to
control rioting. This is where exercise stopped = it was a disaster!
Use of armed forces domestically
Bissonette v. Haig (p.765)
Armed group of Indians took over Wounded Knee, they were surrounded by FBI, Marshals, & they
also used military to set up surv, roadblocks, etc.
 4th Am. claim  roadblocks, etc were unreasonable
o Usually, we conduct this analysis by balancing interests of gov’t against that of
individuals.
 What were privacy interests at stake here in not being surveilled by military in conjunction
w/ local authorities? Concerns about military in civilian setting.
o Different command structure, military don’t really have to answer to locals, no
accountability – seems like a junta argument (i.e. military rule). Fear of military’s
use of undisciplined force, disregard of use of civil law.
o Competency argument  they are not trained to act domestically in this way.
Military acts w/ overwhelming force, but local police use as little force as necessary
– exact opposites! Military can’t preserve evid, interview witnesses in prep for crim
prosecution.
 Iraq peacekeeping efforts show that military can’t do this! Also, think of
Kent State incident.
o Chill factor  think of after 9/11 in DC. People in uniform everywhere! This scares
citizens.
 Gov’tal interests
o Logistics & efficiency  military gets the job done.
o Order by force  more discipline.
o Gov’t interests are strongest in emergency situations w/ breakdown of order.
 How does court strike balance to determine whether 4th Am. was violated here?
o Balance has been struck by Posse Comitatus Act thanks to Congress.
 It is a crime to use military to execute civilian laws, unless expressly
authorized by Constitution or act of Congress.
o But we still have to examine statute to determine whether it was violated. Statute is
not self-defining.
 A number of cases interpret PCA.
o Casper  conduct that is regulatory, proscriptive, or compulsory in nature is a
violation. Surv, logistical support, etc. are not violative. When military coerces
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people in some fashion, this makes it more likely that it is violation of PCA. When it
doesn’t coerce people, they have not run afoul of PCA.
o Were roadblocks coercive acts? If they were & thus violations of PCA, it is per se
unreasonable  so there could be damages as a remedy.
Posse Comitatus Act:
 Reflects constitutional spirit. 3rd Am. prohibits quartering of troops during peacetime w/out
consent.
 Declaration of Independence also reflects this distrust of military
 It has been interpreted to deal w/ only coercive & regulatory uses. Seems to leave military
to be free to support civil authorities w/ logistics & to conduct surv.
** Exceptions (see p.773)?
 What authority allows using military to break strikes? This seems coercive, so there must be
statutory or express constitutional authority.
o Breaking strikes might seem to fall under §332 – unlawful combination, etc. (see 1st
line)
 What about integrating schools?
o States are impeding fed law, so §333 could be used.
 Using fed troops to deal w/ rioting after Rodney King verdict, after request of governor of
CA
o §331 – authorizes use of troops to suppress insurrection when a state makes such a
request.
 Wounded Knee incident?
o Might be able to use §332 or §333.
o Why was there no PCA violation? Pres must make a proclamation ordering them to
disperse. Since this wasn’t done, the 3 insurrection statutes wouldn’t apply.
 War on drugs?
o Statute expressly forbids direct military participation (see note 7 on p.775). Seems to
read PCA into this exception.
o Also, Sec of Defense has to sign off on any support provided.
 Authorizing fed troops to support Secret Service in its duties.
 Military assistance to civil authorities to respond to terrorism – express statutory
authorization (on p.781) as required by PCA.
 Note: military hates to get involved w/ these kinds of assignments of civilian law
enforcement. They like to reserve themselves for big operations. Readiness concerns.
Also, they might not want to hurt their reputation by being used against the American
public.
Terrorism exception on p.781.
** Is there any other authority besides this?
 Pres has duty to take care that laws are executed (CW case, In re Neagle).
o Neagle – in a gov’t-threatening emergency, Pres can authorize use of lethal force to
defend country. Thus, even though that case dealt w/ a fed marshal rather than
military, it seems to be applicable to PCA.
 2 constitutional exceptions to PCA: inherent right to (1) preserve public order & prevent
loss of life; (2) protect fed property & functions. See note 4 on p.784.
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
o LBJ used this authority to protect DC after MLK killing. Used military to suppress
rioting. Is there authority for this? Didn’t seem like this was done in support of
states. Maybe an insurrection, but DC is not a state.
 On the other hand, maybe if it is expressly/inherently a const power of Pres,
he doesn’t need statutory authority.
 Or, you can say that the statutory exceptions we’ve named occupy the field,
so Pres doesn’t need any inherent authority. Congress has been careful to
construct specific exceptions to PCA.
1 commentator said Congress can’t control Pres here (bottom of p.784). Yet this seems to
go against Neagle – there was no statute, so if there was, implies that Congress would’ve
occupied field.
Interning civilians in military detention
Korematsu v. US (p.796)
Case involves profiling, preventive detention, & military authority during war (so we could’ve
covered it at a number of points during semester). Japanese born immigrants in US  1st they used
a curfew (which was upheld in Hirabayashi case in notes). This case deals w/ exclusion order –
military commander excluded Japanese from certain large areas, in some cases their own homes. K
refused to leave, & was convicted.
 Remember Greene v. McElroy  is there statutory or exec authority for what they’re doing?
In that case, they didn’t get to const question – just said that Congress had never authorized
the procedure, so case went down on that statutory note.
o Here, authority for exclusion order was act of Congress (wasn’t just Pres acting on
his own). Jackson’s 1st zone – Pres acting at height of his power (Steel Seizure
case).
 Level of scrutiny for equal protection claim  “most rigid scrutiny.”
o Why? It was suspect classification – people picked b/c of their racial & nat’l
identity.
 Yet they gave military great deference! Doesn’t seem to be strict scrutiny.
Dissent criticizes this.
o Wasn’t strict scrutiny – uses “definite & close relationship” which in today’s terms
means “rational relationship.”
 Where is predicate for possibility of disloyalty? Evid of disloyalty on part of some  this
evid alleged by military itself. They were forced to accept allegations asserted by military.
o Why did they have to defer to military about alleged disloyalties? This doesn’t seem
like an area where we should defer! Unusual idea that if military is involved in
anyway, courts should defer.
o Question should be whether military has special expertise in that area.
o Is there a better to way to have judged this here, other than profiling? Maybe
individualized loyalty hearings. Yet, this would be impractical & take too long.
 Raven-Hansen: military didn’t think this would take too long, they even did it
for Germans!
 Endo case  facts went further, as gov’t actually placed them in camps for duration of war.
 K’s convictions was later vacated years later, b/c gov’t lied to court in original case!
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Vigor of dissent shows that this case was very controversial even at that time. Idea of
rounding up US citizens (whose indiv loyalty had not been disputed!) in concentration
camps was ridiculous!
o If it weren’t for racial cloud around this case, this case could probably provide
authority for military detention that could help gov’t today.
Jackson’s perspective (in dissent) = he didn’t want to go w/ majority & create precedent in
favor of detention. He didn’t want to defer as much as majority did to military. Wasn’t
court’s province to review military orders. So how would he dispose of case? Seemed to
want to overturn conviction, b/c he didn’t want civil courts to approve of this. Thus,
couldn’t hold him as a criminal in civil detention. But if military wanted to hold him still,
then courts couldn’t touch it (2 diff parallel systems, civil & military). Didn’t want to
uphold a military order (b/c it would become precedent), so maybe just make nonjusticiable.
o Military can do what they need to do to win war on their own, but judiciary won’t
help them in these circumstances. Avoid handing them a legal precedent.
Murphy (another dissent) just called it racism!
Rehnquist said that this case would probably come out the same way today.
** What other variables might alter outcome today?
 Anti-detention Act (p.53 of supp.) – repealed Emergency Detention Act & said that no
citizen could be detained except pursuant to Act of Congress. Pres can’t do it on his own.
Suspending the Writ of Habeas Corpus
Challenging legality of your detention by the Executive. “Great Writ.”
Ex parte Milligan (p.811)
M was conspiring w/ Southern sympathizers in Indiana, which was a Union state. Was he entitled
to release by petitioning for HC?
 Could Lincoln have suspended writ by himself in Civil War? He purported to do so, just so
military could detain people behind friendly lines (as the battlefield wasn’t a problem).
o Textual argument  nothing in Const says that it is exclusive to Congress.
Explicitly says that it can be suspended in times of emergency. Doesn’t say who can
suspend however (i.e. by leaving it in passive voice, it became vague!).
o Functionally, in cases of rebellion/insurrection, there may be a time issue, so Pres
should be able to do so, rather than waiting for Congress.
o However, it was in Art.I, not in Art.II – if it was meant for Pres, it would be in Art.II.
If it was meant for both, it wouldn’t be in Art.I!
o RH: argues that Pres could, b/c of practical considerations. What if Congress is
unable to meet, b/c of emergency (i.e. if DC was under attack)?!
 Yet in this case, Congress had suspended writ by statute. Was this constitutional?
o In cases of insurrection, rebellion, etc., public safety must require suspension of writ.
Difficult to say that public safety required this, & it also appears as if it might be a
political question.
 So here, Pres hasn’t suspended on his own, as Congress acted. So how can M complain?
What is habeas argument here?
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o Statute said that people can only be held until grand jury sits to indict. If they don’t
indict, then people must be released by end of grand jury’s term. There is a time
limit!
When Congress has placed condition on suspension, Pres must follow it! Congress
occupied the field w/ a suspension statute & Pres failed to follow it. Therefore, M was
entitled to release.
** Bush’s Military Order
 §7(b)(2) – how do we interpret this in light of what we’ve learned about HC?
o It could be unconstitutional – order seems to be Bush trying to suspend HC.
o On the other hand, Court has been very picky about suspensions. Whoever is trying
to suspend, they must do so explicitly! Courts don’t want to remove themselves.
o In addition, even if he could, doesn’t seem like military order fits reqs for suspension
of HC under constitution.
** Who gets to suspend writ of HC?
 No definitive answer. Textual argument seems to favor Congress. Functional argument that
Pres should be able to do it w/out Congress in times of emergency.
** Any particular suspension lawful?
 Never been such a case, probably never will be. Difficult to see whether ‘public safety
requires detention’ question could be justiciable.
** If Congress does suspend, what is effect of suspension?
 Ex parte Milligan (p.811)  if Congress has done so, they have occupied field & their order
must be followed. If they limit the suspension in some way, those limits must be followed
by Pres.
** How might this change today?
 Anti-detention statute = need statute of Congress to detain someone. That itself might
answer the question, as Congress is answering & thus controlling HC.
 Patriot Act authorizes special interest detentions of some immigrants. That provision also
appears to be a suspension of HC. Congress has thus occupied field, at least for immigration
detentions, as the argument goes.
** If writ is not suspended or improperly suspended or Pres disobeys conditions set by Congress,
what are scope of judicial powers in reviewing petition?
 Jurisdictional only? Or can court look at merits? Not enough case law here either.
Detaining combatants
Both of the following cases dealt w/ military trial, not detentions.
Ex parte Milligan (p.889)
Conspiracy to raid an armory, release prisoners, & assassinate governor of Indiana is what M was
arrested for. Also violations of law of war. Arrested in Indiana, which was behind friendly lines
during Civil War, so well removed from battlefield proper.
 Tried by military commission, convicted, sentenced to death.
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What is a military commission? Military officers act as both trier of fact & determiner of
law. Proceedings are conducted in less ‘legal’ fashion as traditional court. If they are held
in battlefield, probably even more streamlined & expedited.
o Yamamoto  they made up a new charge derived from common law, & convicted &
executed him.
Court = very limited & extraordinary jurisdiction intended to be very narrow exception to
typical preference of civilian courts.
None of the following reasons of necessity are available to justify a military commission in
this case – civilian courts are open, it wasn’t in the battlefield, the civilian courts have juris
over crim cases (like conspiracy, etc.), no evidentiary problems here (police could collect
evid in usual fashion).
o Since there is no reason of necessity that would urge against using a civilian court,
he must be tried by civilian courts & no authority to try by military commission.
Concurrence = didn’t disagree w/ legality of unlawfulness of this case. However, they
wanted to limit scope of majority opinion – concurrence wanted to allow Congress the
option of instituting military commissions in Indiana if they saw fit.
If civ courts are open & functioning + not in battlezone, you can’t try by military
commission at least in absence of Act of Congress. Majority might have even struck such
statutory authority down.
Seems like this was the Marbury of nat’l security law.
** Why try enemy combatants in this manner? If in a combat zone, we can’t devote too many
resources to conduct a trial when they are trying to fight a war! Also, there might not even be
civilian courts available. Evid might be hard to collect, & troops shouldn’t have to worry about that
while in battle! Good arguments of necessity to try combatants by commission in battlezone.
 In occupied territories, why not use civilian courts? We don’t trust them, they are enemy courts!
We would rather trust our own military people.
** Arguments of necessity for military detention? All you know is that suspect is dangerous, so
you don’t want them to rejoin the enemy. Need to disable the enemy. Good arguments overall for
military commission in battlefield & in occupied terr.
Ex parte Quirin (p.893)
8 saboteurs are caught entering US. They were tried by military commission, convicted, &
executed. Supreme Court later issued full opinion, which is what we read.
 Bush order recently reads exactly like Military Order in this case that suspends HC.
Attempt in this case failed, b/c Supreme Court heard this case.
 What authority for this military commission?
o Congress provided statutory authority – Articles of War, which mentioned
commission by name, & authorized Pres to make these procedures.
 Art.15  military tribunals can have juris to try offenses against law of war
in appropriate cases. Says specifically it won’t take away juris of these
tribunals – seems like it’s suggesting that there was previously-existing
authority.
 Where would that previous authority come from? CiC power to try
violations of law of war. Law of war authority from common law (if we are
actually at war) – so maybe 15 preserves common law authority of Pres to try
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
combatants in violation of law of war. Thus, 15 seems to say that it won’t
take that authority away.
 But if that’s how you read it, there is prereq that we are actually at war. Look
ahead to terr cases, where it’s unclear that we’re at war. In this case, we are
actually at war w/ Germany, so Pres seems to have common law auth +
specific stat authority.
o Congress has 2 powers to enact a stat regulating commissions – power to enact rules
& reg’ls to govern armed forces + power to define offenses against law of nations.
So if Cong were to legislate, they would seem to have powerful case that they would
occupy the field. This is 1 possible debate that could come down road.
o But in this case, we are actually at war, these suspects were enemy combatants (they
never disputed that they were part of German army), & they even arrived in German
subs.
What about Milligan’s open court rule? Court distinguished that case.
o However, M was a citizen, but so were some of these suspects. Also he was charged
w/ same thing as these suspects. These arguments make this case more akin to
Milligan.
o M wasn’t associated w/ armed forces of enemy, while these were. Is that a
convincing distinction? If M conspired to help Confed troops, etc, it is not clear that
this distinction makes sense. Just b/c he didn’t get paid by enemy, etc, should we
really say M is so diff from these suspects?
 Puts us in limbo to apply this reasoning to terr – who fall somewhere b/w
innocent civilian & armed forces.
** Does it follow that b/c military can try someone by commission, they can also detain them?
Quirin & Milligan taken together seem to authorize trial, so why not also allow detention? Which is
worse?
 If they are tried, at least they face some process where they have a chance to contest – at
least there will be a final decision. But in case of detention, there might not be a definite
end, incommunicado, w/ no decision on status.
 If detention is worse, maybe a different set of rules should apply.
Law of war
Enemy combatants
 Members of declared armed forces
 “associated with” armed forces of enemy
o Seemed like suspects in Quirin satisfied this more than M could have.
Violations of law of war
 What are practical & legal consequences of declaration of war? Helps us decide who the
enemy is, & this was met in Quirin since they were all German nat’ls.
o Also, formal declaration is usually sweeping. This helps Pres argument that he
should be able to use military commissions on enemy combatants.
o Also, declared war has an end – when treaty of peace is made or when Congress
declares end through a statute.
 So 1 way to read Quirin – it is exception to Milligan that is limited to declared war w/ an
identifiable enemy.
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o Can’t distinguish the 2 cases by nature of charges & the outcome. Factually, the
cases are similar in those respects.
Military commission
Stat authority?
 In Quirin, Pres had this.
W/out a statute? Court expressly didn’t reach this question in Quirin.
Against a statute? Court obviously didn’t reach this question.
** So what is the law on military commission & on military detention?
 Quirin said military can – w/ stat auth – detain & try enemy combatants (‘associated w/
military arm of enemy) during time of war.
 Milligan said military cannot try US citizens who are not associated w/ armed forces of
enemy, at least when civilian courts are open.
 If you don’t violate law of war, but you commit violations while in detention, then you are a
POW by int’l law…?
o We didn’t call people we captured in Afghanistan POWs b/c we would have to send
them back after we’re done there.
o Also, can only interrogate POWs as to name, rank, serial #! We want more info
from them.
 As to those suspected of terrorism, this is violation of law of war  they could be called
unlawful combatants, so might be able to use military comm.
Hamdi v. Rumsfeld (p.57 of supp.)
H (a US citizen) was captured in Afghanistan as part of a Taliban unit, according to gov’t. Family
filed petition for HC. H has not been charged w/ anything, he is just being held. Undisputed that he
was enemy combatant.
 Does Pres, in general, have auth to order a military detention?
o War power includes power to detain those captured in armed struggle – prevent them
from rejoining enemy & remove burden on officers to have to try them while in
combat.
o However, detention of US citizens must be subject to judicial review.
** H’s 4 legal counterarguments:
 Non-Detention Act argument
o Court found statutory auth in use of force res’l of 9/18. “All necessary & appropriate
force.” Also, the Act doesn’t say ‘express’ statutory authority, it just asks for stat
authority – so we might be able to find auth by implication.
o Also, that Act was meant to deal w/ detentions within US, not those that are begun
on battlefield.
 Plain language of Act – doesn’t seem to have made any exceptions for
detentions that are begun on battlefield. Language seems clear – every form
of detention of US citizens. So we shouldn’t even go to legis history, since
language is clear.
o Yet not necessarily true that everyone associated w/ Taliban was also associated w/
Al Qaeda (& Al Qaeda was focus of 9/18 res’l).
 Geneva Convention – he was not found to be enemy belligerent by “competent tribunal.”
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o Convention was not self-executing treaty, so private party can’t use it unless
Congress allows it to become a private right.
 Whether it was SE or not is very debatable, according to RH.
o We would detain both enemy combatants or POWs, so this argument would be moot,
according to gov’t. Also undisputed that he was enemy combatant.
o Gov’t said Pres was competent tribunal & he found H to be enemy combatant.
 Suspension of HC
o Court said they weren’t refusing his petition, they were just reviewing it & denying it
on the merits. Seems like a weak argument on H’s part.
 War in Afghanistan is over
o If he was right on this, then argument goes that he can no longer be detained after
war ends. Also a weak argument.
o However, whether war is over is political question – it is more difficult b/c we are at
war w/ terrorists, so it would be even more difficult for court to decide this.
** Factual argument by H  gov’t hasn’t properly shown that I am enemy combatant.
 We don’t know what Hamdi says. Gov’t alleges that he is enemy comb, based on interviews
w/ him. It is unusual to take something as undisputed when opposing party has just alleged
it.
 Is it possible that H is not an enemy combatant? He could’ve just been a member of Taliban
& in no way associated w/ al Qaeda. Could’ve just been a drug dealer picked up. Could’ve
been trained AQ operative. Could be a pilgrim traveling – yet he was traveling w/ an AK47s (however, everyone seems to have these in Afghanistan!).
o These possibilities are important, although RH says he’s probably an enemy
combatant.
 Gov’t set for a 2 pg affidavit by Mr. Mobbs. Is that enough? It is hearsay, which is 1
problem. Not clear that this would necessarily be a problem in this setting.
o Even if it wasn’t enough for judge, H still can’t respond in any way! What kind of
hearing on status can you have if only info is supplied by gov’t & person being held
can’t be heard & can’t talk to his lawyer.
th
 4 Cir.’s answer = ‘some evidence’ that they were given was enough.
o A more detailed factual inquiry might be impossible, b/c of war. Therefore, evid
provided was enough. Asking for any more would interfere w/ operations in
Afghanistan.
o Result is that they are treating as undisputed H’s status, even though he couldn’t get
chance to dispute anything!
In Milligan, court acknowledged some auth in law of war to try soldiers, but Milligan not 1 of them.
Also tried outside battlezone when civ cts were open. Decision split 5-4 over whether Congress
could’ve authorized it. Important today – whether there’s a statute might be an important
consideration for detention.
 If distinction w/ Quirin is in background hostilities, this seems legit. 1 was declared war, the
other wasn’t.
 In Quirin, there is a statute – articles of war, which authorized use of commission.
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Padilla v. Rumsfeld (appdx.)
P was convicted felon. At some point, became ‘associated’ w/ AQ – note, gov’t didn’t say he was a
member of AQ. Allegedly reconnaissance man for dirty bomb plot, arrested in Chicago airport. He
was initially held as material witness (which means he gets counsel, gets open court), but then they
whisked him away to military brig in SC.
 Does Pres have inherent power to detain enemy comb who is also US citizen?
o 2nd Cir. said this was category 3 case. Non-Detention Act has occupied field. They
cite Steel Seizure – military detention & war power as instruments of domestic
policy reqs a statutory basis. This was not battlefield conduct.
o Provisions in Const. that Congress should have a say? Power to define offenses
against law of nations, which would include law of war. Thus, they can define what
crimes commissions can try.
 Also, Congress has power to suspend writ.
 Also, 3rd Am. – quartering of troops. When this happens within US, even in
time of war, you need act of Cong to authorize. This is consistent w/
conclusion that when war power is directed inward, Congress must pass a
statute to auth & Pres can’t act alone.
 How do you distinguish Quirin? That case was war coming to US, as combatants coming
to US. Also, in that case, there was express statutory auth + it was before Anti-Detention
Act.
o They left open question of inherent power of Pres, b/c there was stat auth.
 Requirement that when Pres uses military juris to detain/try people in US in purported
exercise of war power, he needs a statute.
o Therefore, unless you can interpret articles of war as statutory auth, you don’t need
Anti-Detention Act to throw this out
 There is Anti-Detention Act here. Thus, Pres doesn’t have express stat auth here + he has a
statute that occupies the field & takes away any power he may have had here!
 What about 9/18 res’l? Look to language of Anti-Det Act on p.53 of supp – it seems very
unambiguous.
o However, it says ‘except pursuant to act of Cong.’ Wouldn’t res’l count here?
Also, res’l counted as specific stat auth pursuant to WPR.
o At the same time, the res’l is very specifically tailored to 9/11. No allegation
anywhere that Padilla was in on the 9/11 attacks. Therefore, even if this auth by the
res’l is sufficient for Anti-Det Act, does Padilla count under the res’l?
 Involved here is a deprivation of civil liberty. Greene v. McElroy + Endo = before we will
conclude that Cong intended to take away civil liberties, we want a clear statement to that
effect!
o That might even distinguish WPR – which doesn’t discuss liberties, but rather right
of Exec branch to conduct war.
o 2nd Cir cites Endo for req of clear statement.
 Have we given up on gov’t, or do they have any other argument?
o Maybe ADA wasn’t meant to apply to comb detention in wartime. Once we can
classify Padilla as an enemy comb, we escape scope of Act, by this argument.
o Appropriations for setting up Gitmo facilities & detention. Yet Endo case was itself
an approp case – court said nonsense  unless auth specifically contemplates
deprivation of civil liberties, we will not read that into an appropriation.
nd
 If 2 Cir is right, must gov’t release Padilla?
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o Can we release him into criminal system? But we need predicate of PC. Do we
have that? Or what if evid gov’t has is classified?
o It’s also been 2 years…isn’t this too long to hold him, even if it was an emergency
initially?
Raven-Hansen seems to favor arguments against gov’t.
What about material witness statute? There is still time limit there – how long grand jury
sits. Surely that has expired as well by now! So gov’t is in a dilemma right now, probably
too late to hold him as material witness.
If Pres decides you are enemy comb, then you can be held in military detention
incommunicado w/out charges w/out trial & w/ most conclusory rubber stamp judicial
review. This is broadest take on gov’t argument, & it makes it look all the more ridiculous.
o Court is signaling that it wants a range of choices, if we take Hamdi & Padilla
together.
** Moussaui is not in military detention, but in civilian court. He has asserted 6th Am. right to
interview a witness who he asserts might have exculpatory evid. Gov’t refused, so court responded
by taking death penalty off table, etc. Ashcroft is insisting right to death penalty – so gov’t might
pull him out of civ court, declare him enemy comb, & shift him to military detention to allow for
death penalty.
 Double jeopardy? But jury hasn’t retired yet, so is this a problem under double jeopardy?
 They also transferred Padilla. Yet M is further along, he is in middle of crim trial, while P
was not yet in crim prosecution, he was still in detention.
 Violation of separation of powers? Gov’t stays in judicial process, gets a bad ruling, then
leaves. They can’t treat opinion of court as advisory – they engaged court, so they should
have to take outcome as it stands.
** Pres power w/out statute?
 War or peace. If we’re not at war or don’t have a military-like necessity, this makes his
power weaker.
 Home or abroad. Think of Steel Seizure.
o This distinction doesn’t work very well when dealing w/ terrorists.
 Battlezone or not
 Civilians courts open or closed
** Pres power pursuant to statute? Pres is acting at zenith of his authority – category 1.
 Are there restrictions?
 If Milligan is still good law, there are still probably some rules over Pres + Congress
detaining people militarily.
** Pres power against statute?
 Anti-Detention Act.
 Does this statute apply to military detentions? If it does apply, is req for act of Congress
satisfied by 9/18 res’l?
o Says ‘all necessary force’. However, nothing in there specifically about US citizens.
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Guantanamo Bay detainees
Johnson v. Eisentrager (appdx.)
Tried by military comm., then detained at German base. Petitioned for HC – classic device to test
legality of your detention.
 Does court have juris to hear HC claim, or alternatively do Ps have standing?
 They have no right to ask for HC rulings, in other words the court says it doesn’t have juris
to hear the case.
 Why not? What is it about alien enemies at war w/ US that places them outside protection
of US courts?
o Could be too many, don’t want to flood courts.
o Don’t want to have haul our troops back to answer this claims in court! They should
be trying to win the war. Can’t be diverting troops.
 Remember Verdugo. Both that case & this 1 say that in order to assert constitutional rights,
you have to have some connection to US! This is why court emphasizes that these Ps are
‘aliens.’
o These enemy aliens never set foot in US. Their actions all took place in China, &
they are being held in Germany.
 Dissent = if it all turns on territorial rights, then gov’t can just make sure you are not in US
to prevent you from using HC.
o Also, Black emphasized that he didn’t want to affect day-to-day activities of
military. Don’t haul our troops into court during war!
o So he’s worried more about trying by military, rather than detention during battle.
When things have come to a rest, why not just use regular courts – at that point,
military necessity has subsided.
Al Odah v. US (appdx.)
Here, US had to inform Kuwaiti Embassy that we were detaining some of their nationals. That’s
how the families found out & brought suit.
 Distinguishing Eisentrager?
o We control Gitmo! Territorial connection that Eisentrager required is present, by
this argument.
 Cuba technically controls, but we can continue paying lease to retain that
land. Note that Cuba hasn’t deposited checks b/c they don’t want to
acknowledge US right to be there. Technically it is not sovereign US soil.
 However, we do effectively control Gitmo! Dispute b/w 9th & DC Cir.
Lease terms do indicate that Cuba is sovereign, according to DC Cir. 9th Cir.
says that control is enough - & we have effective sovereignty over Gitmo.
 We do have territorial juris in Gitmo, which is what Eisentrager was focused
on.
o Not alien enemies in service of country at which US is at war w/. They are aliens,
but US is not at war w/ Kuwait!
 Ct said Eisentrager was more concerned w/ ‘alien’ label.
Continuity of gov’t
What happens if gov’t is decapitated? Should Armageddon Plan (AP) be made into a publiclyavailable statute, rather than being kept secret? There is really nothing on the books, b/c the one
from the Reagan years was dropped by Clinton Admin (b/c it dealt w/ nuclear war).
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Also the AP had nothing about evacuating Congress. Why is that? Some of the people in
succession line could be taken out.
Also, if principles are temporarily unable to carry out duties, & someone steps in, what
happens when the principles are ready to act? Does interim Pres step down? There is no
statute on this.
There is constitutional provision that deals w/ succession. Statute available that has some
details as well.
o What does ‘inability’ mean?
Also some would argue that Const says that Congress can’t put its own members into
presidency.
Also all the people in line are unelected! They have all been appointed by Senate, but not
elected. Does this lend less legitimacy? Yet, the elected officials approved those cabinet
members, so indirectly they do have support of the people.
Continuity Of OPerations – each dept must have a COOP plan to get back in operation in 12 hours
after a disaster. Each dept must also have its own succession plan, in case of its heads getting
killed. What are the core, essential functions of each dept that must be functional asap?
** What about Congress? What if it’s attacked?
 Half of those duly sworn & still living constitute a quorum. This can be changed by
changing quorum rule.
 Also, what legitimacy does a Congress like that have, if it’s like 5 people?!
 At any time now, 50+ members are out of town – functioning secret gov’t out of town.
Members are rotated constantly.
 If a large number are dead, how do you replace them?
o Const. amendment (25) said if a senator dies, state can provide for an election, or
governor can appoint replacement until position is filled.
o For House, you need special election – takes time to set up!
 Urgency that swirled around this issue was at height during Cold War. It has reemerged
after 9/11.
** What about judiciary? How are they replaced?
 Normally, Pres appoints w/ advice & consent of Senate. But if Senate isn’t around, then
what?
 On the other hand, not clear that you need Supreme Court. Make Appeals Court decisions
final, at least temporarily. This is probably not as urgent as continuity in rest of gov’t.
Another problem could be disabling of communications networks.
If gov’t can’t function in civilian capacity, then possibility of martial law.
Milligan  another argument by gov’t in that case.
** So what is martial law? Whatever senior military commander deems necessary at time. Must be
justified by military necessity, judged by the commander in field. Law is what he says it is. Law
can’t be broken by him b/c he decides what is law.
 Could we argue for limitation on martial law?
o Conditions under which it is allowed. But this presupposes that a court is available
to judge this.
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o Perceived necessity on part of public.
o Could Const itself be suspended? This is unclear.
o Maybe int’l human rights law still applies as a higher form of law even when martial
law exists – jus cogens.
 We have no case law on the subject, of course.
If martial law is called for by statute, then statute must be complied w/. Const thus hovers in
background through Supremacy Clause, under this assumption.
When can it be imposed?
o In warzone + military necessity tells us that commander must have complete
control.
o Milligan seems to say it can only happen in theatre of military operations.
Why was it lawful during occupied South during Civil War?
o Authorities in South were illegitimate (i.e. rebels), so they had to be reconstituted.
Why not in Indiana during Civil War? Civ authorities still in place + civ cts still open. No
military necessity there.
o Yet Indiana bordered Confederacy… Court said threatened invasion is not enough.
Another martial law case in WWII – from Hawaii.
o Congress authorized governor of Hawaii to call martial law & give control to a
military commander.
o Court found it unlawful to use martial law to convict defendant in this case charged
w/ securities fraud. Public safety rationale not there… Yet doesn’t seem right, b/c
they had been attacked!
o Are we in battlezone? Japanese just bombed Pearl Harbor!
o Also, it was a civ crime. Is there a military necessity to try this kind of crime?
Seems very attenuated to allow this.
o Court = civ cts are available, only reason they are not is b/c you shut them down.
They could handle securities law. Avoided const question – just said statute didn’t
authorize complete closure of all civ cts.
Lesson for terrorist consequence mgmt?
o Martial law not available unless attack shut down civ ct system, thus making area a
battlezone & invoking military necessity.
 This wasn’t satisfied in 9/11. Other cts were available, even though local cts
were closed down.
o Milligan must have in mind shut down of cts across the board, not just a particular
building. If it just affected a building, they can always meet somewhere else.
o Military still retains immediate 1st response ability in lieu of martial law. But they
are not purporting to replace legal system, just providing medical, logistical help.
Martial law = military gov’t! Replacement of civ gov’t by military order, according
to Milligan.
 Actual gov’t of NY was completely intact, so they retained control.
Trying terrorists
Why discuss this now that we are in the war-mentality after 9/11? Why is this still on the table?
 We’ve captured people in situations where they didn’t have to be killed. So what do we do
w/ them? We wouldn’t take them out back & shoot them. Our society is still rule of law.
o Normal process is still crim justice system.
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There are certain aspects of war on terror that can’t be handled militarily – financial, etc.
Crim courts are ideal for this.
Many of people we get will be picked up by allies. If they do, it will be on condition that we
try them normally – not by military comm. or to execute summarily. EU also won’t give
people up unless we say we won’t use death penalty.
o We need everyone on board – int’l effort. Thus, we need to use normal processes so
rest of world supports us.
** What can gov’t do if it now has 1 of these terr suspects, & evid against them is partly secret?
 Decline to prosecute. Yet unless there is some auth for preventive or military detention, you
have to let them go.
 Try them publicly but use secret evid. This is an option, or may be, in immigration
proceedings – b/c due process doesn’t apply as fully there – b/c it is quasi-crim adjudication.
Or bail hearings – cts have accepted secret evid in some of these cases.
o This is pretty unusual. Will this lead to use of secret evid in an actual crim case?
 Or don’t use secret evid, but make proceeding itself secret. Can’t show D the evid. Or just
show D’s lawyer, but not D. Just keep it out of public, & within courtroom setting.
o Some immigration hearings
o Civilian cts for different phases.
 Trying by military commission, abandoning civilian cts.
o Fashion rules to authorize secret evidence & keep them out of public eye.
o Maximum protection for gov’t, easiest way to convict.
** Why aren’t contingency plans of any kind run through Congress? Maybe to keep them secret for
security purposes? We had been talking about Eisenhower’s secret plan where his golf buddies
(who were captains of industry) would take over the gov’t if its leadership was decapitated.
** Martial law contd.
 Case law tells us that for military to substitute for gov’t, we need actual invasion/warfare +
civilian cts must be closed. Or you must be in occupied territory.
o Hawaii during WWII. In language of Milligan, if previous factors weren’t present,
then it would be unconstitutional to try D in military fashion.
o Supreme Ct. ducked constitutional question – b/c martial law was authorized by
statute. It just read the statute narrowly, & said that the particular facts were not
allowed by that statute – thus the trial by military commission for securities law was
not allowable.
** Back to trying terrorists. What if D wants to use classified info in his defense?
Use of secret evidence by prosecution
American-Arab Anti-Discrimination Comm. v. Reno (p.871)
Immigration setting. Resident Arab aliens who applied for legalization of status. AG denies
legalization based on classified info linking As to terr org (PFLP) – State Dept listed PFLP as terr
org.
 Interesting issue: was there due process in original designation of the PFLP?
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We don’t know that Ds are linked, all we have is gov’t saying that they have classified info
that they won’t show it to D.
Does gov’t have stat auth to use the classified info?
o There’s a statute that is about exclusion of aliens, not about legalization proceedings
of aliens. Court distinguishes in this way – b/c these aliens are further along
constitutional ladder than the aliens that the statute targets (b/c Ds have been here for
awhile).
What process are immigrants entitled to in legalization of status hearing, since statute
doesn’t say?
o If stat doesn’t say, go to constitutional due process balancing – Mathews balancing
test.
o Do they have an interest that triggers due process at all? What is at stake here?
Strong liberty interest in remaining in their homes.
If you otherwise meet reqs, statute would confer legalization on you. Apply Mathews
balancing:
o Private interest affected here? To answer this, need to weigh liberty interest
identified  Ds were effectively at peril of being thrown out of country all together,
so appears that private interest is very high here.
 This might show why we can exclude people at border. B/c they have very
low private interest here, unlike Ds here who have been in country for a long
time.
o Gov’t interest here? If they had option of proving case w/out secret evid, then
maybe the interest is lowered here. Also gov’t hasn’t offered any evid that these
aliens threaten nat’l security, just relied on general pronouncements in State Dept
publications.
 No indication that these aliens personally advocated views of PFLP.
 Also, why did gov’t let these aliens be free for so long before acting?
 There are many rebuttals to this argument, 1 of which is that the gov’t
may have not had enough cause to go after them until now. Not
enough to go through ordinary crim process – PC.
 This interest would be stronger if gov’t had PC – but then they wouldn’t be in
this setting, they would be in a crim ct! Shows similarity to situations after
9/11 where gov’t doesn’t have enough against someone, but has something,
& doesn’t want to let them go.
 What about state secrets privilege? Court = there is diff b/w using that as
evidentiary priv for nondisclosure (a shield) & using the priv as a sword!
Gov’t here is proactively seeking to deny status & maybe set up deportation –
this is a sword.
 Note: state secrets priv never made it to FRE. It is only a common
law privilege - & that privilege is limited to nondisclosure.
o Risk of inaccuracy? There is no check on gov’t if we allow secret evid. Courts are
always wary of one-sided processes.
 D should get right to cross-examine.
 Think of NJ bail case – eventually NJ authorities relented & made info
public. Seemed like the info was pretty unreliable, which shows danger of
allowing such evid to remain secret!
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Secret evid thus raises serious evidentiary problems, & those problems can be
addressed w/ regular ct procedures – cross ex, confrontation, etc.
 Thus, ct concluded that risk of error here was overwhelming.
o Thus, due process reqs that this evid be treated differently somehow.
What additional procedures (short of full disclosure to D) could raise this evid to a level that
the balancing test would come out differently, so that we could allow it to remain secret?
o Disclose info fully, but only to counsel of Ds, who must be security-cleared &
should be prevented from discussing w/ client.
 Yet, couldn’t the use of security clearance be used to screen out D’s lawyers?
Gov’t has a lot of discretion here, so this probably could be a concern.
 Might complicate communications b/w client & lawyer.
 Also, lawyer might need client’s help to understand the evid!
o Or, let gov’t summarize info in a sanitized manner – let judge make sure that the
summary is properly indicative of the actual evid – and then get the summary to
defense.
 Removes sources, who could be cause of bias, so this might not cleanse any
risk of inaccuracy.
 Also, how do you know that summary is accurate? If person summarizing
doesn’t understand the evid, the summary could easily be inaccurate, or at the
very least oversimplified.
o Or create a special ct to handle this – Alien Terrorist Removal Ct.
 Usually reqs disclosure to respondent, or a summary of that evid. No case
has ever been brought here – there is serious doubt of its constitutionality.
Also not necessary – govt can use secret evid in immigration courts, w/out
having to use secret ct.
o Show evid to independent office of the gov’t not involved (a 3rd party) w/ the
proceeding. Does this change risk of inaccuracy?
 It doesn’t remove danger of bias on part of gov’t, b/c it is still gov’t looking
at it! Yet it seems better than not having any review of the evid at all.
 3rd parties are no more competent than prosecutors to ferret out weak evid.
Seems like only the client could properly evaluate evid that is specific to him.
 Note that this also seems to suggest that client’s lawyer might not
have the understanding to evaluate it anyways!
o Or, gov’t could make admissions, rather than revealing the evid. Essentially give D
that argument. Yet, what if D wants the evid to go away?!
Classified Information Procedures Act (CIPA)
US v. Lee (p.880)
Gov’t thought they didn’t need to use any classified methods. Yet, that unclassified stuff may have
come from classified info – this could compromise that info. Lee wants to use classified info in his
defense. Concern of D using classified info in his defense – that’s what CIPA was intended to deal
w/. It simply reqs D early in case to show whether he plans to use classified info, so gov’t can make
decision early on whether to use that info or a summary of it.
 What are Lee’s rights in a crim case to discovery? Right to any exculpatory evid (Brady v.
MD – rests primarily on due process clause/6th Am): all info which bears on guilt or
innocence. Entitled to his own statements. Also previous statements of any witness against
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him. Tangible evid that will be disclosed against him (mainly for purpose of finding expert
testimony to rebut).
What if some of exculpatory evid is held by CIA, rather than by traditional law
enforcement? Do same discovery rules as above apply? Brady was mainly concerned w/
prosecutor who withheld exculpatory evid.
o Depends on level of involvement. Similar to joint venture doctrine to extraterr
arrests, this is a kind of domestic version of that. Is CIA sufficiently aligned w/
prosecutor? The more the involvement, the greater the argument is that the
discovery rules should be the same even though it is CIA.
o Note that taking down “the wall” may have impact here – now we raise a Brady
problem by extending scope of Brady to very sensitive classified info! Also note
that CIA wasn’t involved here, so it wasn’t an issue.
Why did Lee make the request?
o Attempt to graymail (blackmail of gov’t  if you continue to prosecute me, I will
request classified info in open ct, in other words ‘disclose or dismiss’). This is pretty
likely.
o Might defeat intent (of Lee – gov’t might not be able to prove that he was doing what
they claim), if Lee can show that a lot of the info was always in public domain. Was
some of it improperly classified?
CIPA establishes procedure that allows gov’t to determine cost/benefit analysis of whether
they want to bring in classified stuff or not – make decision early before damage is done. D
would have to inform gov’t what it expects to use/disclose, & thus puts gov’t on notice
about risk of disclosure. CIPA is usually initiated by D (as prosecutors can’t use
classified info to prove case – due process).
o Not a discovery statute, doesn’t provide D any new rights. Only provides procedure
for gov’t to figure out what they want to do. Procedure for determining when D is
going to use classified info as a shield.
o Then gov’t can ask for in camera hearing on relevance, use, & admissibility of evid.
CIPA is also not a rule of evid, it doesn’t create a priv.
o If court finds info admissible, gov’t can: summarize the info; make admissions or
stipulations that make classified info unnecessary; or simply drop case or some
counts.
 If they supply summary, ct can compare the classified info & summary –
does it give D substantially same ability to make a defense as the classified
info?
o Suppose ct decides summary is inadequate. Then gov’t could dismiss case. Or if
they refuse to dismiss & refuse to disclose, then ct could dismiss case w/ prejudice;
dismiss parts relevant to info; make findings of fact that are relevant to info; or strike
testimony or evid that gov’t plans to use.
Is this procedure constitutional? It reqs D to do more than he would have to in a normal
crim case: give early notice to gov’t of the parameters of his defense.
o Court = no const violation. This isn’t only setting where D’s are required to give
notice to gov’t of its proposed defenses (i.e. alibi defenses).
o Also, you’re not giving gov’t so much detail – just telling them about classified info.
o Lee claimed that it was too 1-sided. Court = NO, gov’t still has to disclose plenty.
Think of Brady. Overall balance is fine.
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Gov’t let Lee plea bargain on 1 count, & counted his time already served. Shows that
graymail can work!
Does CIPA eliminate graymail? If graymail was the answer in Lee, then the answer is no!
Moussaui (p.92 of supp.)
Being charged w/ being part of 9/11 plot – as a 5 plane hijacker or for subsequent plots. M wants to
depose Ramzi Bin al-Shibh – has reason to believe that he would say that M wasn’t meant to be
used for 9/11 (b/c he was too unstable!). al-Shibh  exculpatory evid? Might get him off the hook
for 9/11. The indictment seeks death penalty, so if you disconnect M from 9/11, death penalty
probably wouldn’t fly. Why else would M want al-Shibh’s evid? What is al-Shibh going to testify,
what does he say?? Wen Ho Lee motive  graymail gov’t on some or all of case.
** Can M get al-Shibh’s testimony?
 Does CIPA apply here?
o He might have exculp evid + he mentions prominently in indictment.
o CIPA applies to documents & testimony.
o Not clear that there are any documents or testimony yet. Also, seems highly unlikely
that you could classify a person! Thus, you could make a good argument that all of
it probably can’t be classified!
o Also, might be able to have someone stop him from talking about classified info. Or
put questions in writing, & cleanse answers of any classified info.
o Seems certain that he has info that could not be classified, according to RavenHansen. He hasn’t given any info yet. To be classified, these things need to go
through a process.
 What arguments (if it does apply) does gov’t have to resist making al-Shibh available?
o Gov’t’s real concern might be that this would disrupt interrogation environment of
al-Shibh, & thus disrupt string of interrogation. Interrogation dynamic concern – we
don’t want al-Shibh to have any contact w/ outside world, we want to completely
disorient the subject. Bringing in M’s lawyer will break that dynamic.
 Might be able to justify withholding al-Shibh from M based on military
necessity. Interference w/ Pres command authority.
 Yet, CIPA is not designed to protect interrogation procedures. Of course
there isn’t a perfect fit!
o Court ends up using CIPA as an analogy, to determine whether or not it applies.
 Under Lee’s CIPA framework, what should you do after notice is given that classified info
will be disclosed as part of defense?
o Request in camera hearing to determine use, relevance, & admissibility of evid.
o If ct concludes the info is usable, what comes next? Gov’t may move for & ct can
auth substitution of unclassified facts OR summary of info in form of admission by
gov’t. Ct. must compare the summary to see whether it allows other side to present a
good defense – substantially the same ability to present defense as would disclosure?
o If gov’t refuses to comply w/ ct’s order, ct can: take some of counts off the table,
prevent certain testimony, deem some facts as established. Under M, judge threw
out the death penalty, & prevented certain testimony.
 Yet, DOJ has other stuff to prosecute on, but they continue to appeal for
death penalty – ideology over practicality?
 On appeal, what can gov’t argue to say that Brady right doesn’t apply in terrorist setting?
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o Info not in hands of prosecution. There’s a necessary wall b/w military &
prosecution (they’re not aligned). Thus, Brady not applicable.
o Nat’l sec exception to 6th Am. of a crim prosecution of a terrorist. What case law
exists here for nat’l security exception?
 Keith (exception to 4th Am., try to extend it),
 Verdugo,
 Maybe Zadvyadas (dictum in case – case reviewed how long immigrant can
be held after deportation order – p.732  due process places a reas time limit
on how long an immigrant could wait deportation; reserved question of
holding’s application to terrorists or in nat’l sec setting).
 Johnson v. Eisentrager  court has no juris over al-Shibh, he’s never been in
US, so no connection to US, so court can’t order him brought to US. Yet this
doesn’t really prevent court from creating consequences from gov’t’s failure
to bring him – gov’t brought him up!
** 3 possibilities now:
 Treat people like M w/ ordinary crim process – there is reas doubt, you have to deal w/
Brady rights.
o If you do this w/ terr, some will walk
 Or, bend usual system – protect sources & methods, but this will distort crim justice system.
This might hurt system & lead to more distortion in future.
 Or preserve crim justice system, & go w/ military justice system. This won’t leave any
residue that would hurt future of crim justice system. This might be best argument for trial
by military commission.
** Do we really make same calculus of letting guilty people go when those people kill thousands at
once? So much more is at stake here – not like a random serial killer, who might kill several
people.
Secret trials of terrorists
This is where we close the entire hearing (no one allowed, maybe even taking it off docket).
 Creppy memo ordered admin judges to totally close doors of immigration proceedings of
potential terrorists & even deny that cases were on docket.
 Does gov’t have power to do that?
o They claimed that this was a matter of immigration policy, so cts must be
deferential.
 Argument on behalf of special interest immigrant for open hearings? Distinguish Detroit
Free Press which was about 1st Am.
o Maybe 6th Am. – right to speedy trial
o 5th DP – Mathews balancing
 Right of media to come into hearing?
Detroit Free Press
 Gov’t claimed that this was a matter of immigration policy, so cts must be deferential.
o Distinguish substantive & nonsubst immigration law. There can be review over
nonsubst law – procedure, which court says applies here. Issue raised here is not
over merits, but whether hearing should be closed. CONST LIMITS NON-SUBST
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NATIONAL SECURITY LAW
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IMMIGRATION LAWS & DOES NOT REQ SPECIAL DEFERENCE TO GOV’T
IN SUCH CASES. Supreme Ct has repeatedly allowed for meaningful judicial
review of non-subst immigration laws where const rights are involved.
How do we distinguish Zadyvadas? Here we are also dealing w/ terrorists, so why isn’t
heightened deference appropriate?
o Anyone who gov’t calls special interest immigrant can be subject to closed hearing.
Yet, doesn’t Z req a narrow group of citizens, rather than such across the board
treatment?
o Customary usage that immigration hearings are open?
o Also, in Z, ct said that they might entertain detention if Congress made decision.
Creppy memo thus wouldn’t carry auth of act of Congress.
How did gov’t decide who was special interest immigrant so that hearing could be closed?
We have no idea – is there internal review? Is there any std applied? Doesn’t seem very
reliable, if we don’t know. If Cong enacted a std & we knew it, that might change this.
Richmond Newspapers  auth right of public access to ordinary crim trials – (1) is there
experience of public access to this kind of hearing; (2) how does logic cut, does public
access positively add to crim trials; (3) if you conclude that these 2 are met, then any
restriction that gov’t places on it is subject to strict scrutiny (narrowly tailored to serve a
compelling gov’t interest or not).
o This case doesn’t literally apply, b/c it wasn’t a crim trial. If it looks like a trial, then
we will consider it one. Ct called it quasi-judicial.
o Should it ever apply outside Art.III context? Not so restrictive, so Richmond test can
apply across board – legis, exec, judicial branch. Thus, it can also apply to
administrative settings.
Immigration removals – cts differ.
o Usually, exclusion hearings were closed. Yet, deportation hearings were usually
open. 6th Cir: this is enough to establish a history of openness that justifies public
access. Enough to satisfy experience prong.
RH: gov’t rule can’t be right, we don’t need such long experience (1000 yrs?!). If they were
right, how can anything ever change to a transparent system – 40 yrs should be enough.
o Hard to say how Sup. Ct. would come out.
What about logic prong? 3rd sees harm to public, nat’l sec might be affected. 6th sees
openness as a good thing.
o If you buy mosaic claim, then nothing can be open – b/c any little piece of info can
be a part of larger puzzle.
Maybe we should assume public access, & assume strict scrutiny, according to RH.
o He doesn’t see these techniques here as satisfying that std. All we are demonstrating
is that visa is expired…
o Case by case determination might be feasible, rather than closing all these hearings.
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