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Foreign intelligence surveillance court created by the foreign intelligence act and determines if wiretapping will be permitted
Authorization to use military force for the war on terror 2001 roughly a week after attacks. Broad power to the president
Treaty on Torture
Multilateral treaty banning the use of torture and became American law when ratified by congress
Military Tribunals Act
Adopted after hamdi case. President initially set up tribunals to determine if people were being inappropriately held and congree adopted legislation for military tribunals. Individials captured during war on terror need not be tried in civilian courts
Official Secrets Act
Great Britain law regarding divulging classified information, a law which restricts what can be published, individuals who leak (even for a good purpose) can be prosecuted and so can the newspapers that publish 1911 and changed slightly in 1987
Habeas Corpus provision of U.S. Constitution
Habeas corpus- the right to be told what you are being held for, the captor is forced to justify why you are being held. Comes from Magna Carta. Does not operate when the in the times of war or rebellion but does not say who has the power (president or congress)
- Deals with treatment of POW
- Deals with treatment of noncombatants during war
- Multilateral treaty
- Well over 100 signatures, including the US
In re Quirin
- German soldiers switch to civilian clothing to be undetectable, their job being to sabotage the U.S. They came ashore June 13 and were Captured by June 16.
- FDR established a military tribunal July 2 and were found guilty in August.
- Reasons for military tribunal versus civilian court- they would get more rights, it would take longer, they had not done anything yet, espionage act does not allow for execution and you get a greater penalty when using military tribunal
Hamdi v. Rumsfeld
2004 captured on the battlefield in Afghanistan and he was a US citizen. Federal gov. said they could keep him detained as long as they want. Court rules in favor of Hamdi (6-3). There has to be an institution to determine if there is justification for holding
Boumediene v. Bush
- The Supreme Court ruled against the president and congress working together (5-4). Majority said petitioners do have a habeas corpus and the military commission act is unconstitutional
- Military Commission Act- commission hearings for the status of individuals
N.Y. Times v. U.S.
Published the pentagon papers, Nixon was president. History of how we got involved in vietname and Daniel Ellsberg brought papers to NY Times and supreme court rules in favor of the NY Times and allows them to publish
the Unitary Executive Theory
once war is declared or the functional equivalent the matter of carrying out the war is the sole discretion of the president
the Panopticon (in Goldsmith)
- Samuel Bentham created the Panopticon prison
- The prison allows for an inspector to monitor all of the inmates from a central location without the prisoners knowing whether or when they were being watched (and thus when they might be sanctioned for bad behavior).
- Bentham- it allowed a single guard to control many prisoners merely by conveying that he might be watching
- Constant surveillance backed with threats punishment has proved influential
take a prisoner and send them to another country to be tortured
Military tribunals in the United States are military courts designed to try members of enemy forces during wartime, operating outside the scope of conventional criminal and civil proceedings. The judges are military officers and fulfill the role of jurors.
Foreign Intelligence Surveillance Court
- Foreign intelligence surveillance act 1978- United States Federal Law which prescribes procedures for the physical and electronic surveillance and collection of foreign intelligence information between foreign powers and agents of foreign powers, which may include American citizens and permanent residents suspected of espionage or terrorism. It has repeatedly amended since the September 11, 2001 attacks.
- The courts purpose is to determine whether particular searches are permissiblei.e. wiretapping
- The court is secret and does not publish what it has done and the membership is not made public
- They denied 11 requests for warrants between 1978-2012 and in 2012 they approved 1,788 warrants.
- Secret history of the US involvement in Vietnam; Ellsberg copied over 7,000 pages.
- Secret Department of Defense study of the U.S. political and military involvement in Vietnam from 1947-1967, prepared at the request of Secretary of Defense Robert McNamara in 1967.
National Security Agency
- Signed a contract not to divulge, but still disclosed NSA documents on to The Guardian
- President appoints special commission to look into possible abuse
- Provides 40-45 recommendations
- Attempt to ensure we only gather information for national security purposes
- 2015 legislation
- NSA will no longer have control of all the information gathered
(a) to what extent has the Obama Administration followed and to what has it departed from the Bush Administrations policies in the War on Terror,
- Followed Bush Admin.- Guantanamo Bay, Military Tribunals, Target Killing, Rendition- taking a person from one country to another outside the judicial process, Surveillance- Obama has not renounced or sought to narrow any of the surveillance powers in use at the end of the Bush administration, and has not sought legislation to reverse the telecoms immunity. If anything, Obama has expanded surveillance practices & Secrecy
- Departed from Bush Admin.- Black Sites- secret overseas prisons, including CIA prisons but not short-term prisons & Interrogation practices and the use of torture
(b) what are the legal and policy considerations, pro and con, on the use of torture in the War on Terror,
- 1987 UN Convention against torture and was ratified by the US Senate and Reagan: Art I: For purposes of this convention, the term torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; Art II: No exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability, or any other public emergency may be invoked as a justification for torture; Art III: No state shall expel, return or extradite a person to another tate where there are substantial grounds to believe that he would be in danger of being subjected to torture; Art XIV: Each state shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhumane or degrading treatment or punishment that do not amount to torture as defined in Art. I
- Detainee Treatment Act of 2005- Prohibits inhumane treatment of prisoners, including prisoners at Guantanamo, by confining interrogations to the techniques in the Army Field Manual on Intelligence Interrogation. President Bushs signing statement on the Act: The executive branch shall construe Title X of the Act, relation to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief . . . [to achieve] the shared objective of Congress and the president of protecting the American people from further terrorist attacks.
- Alan Dershowitz- A court should be able to issue a torture warrant in certain extreme circumstances. My basic point, though, is we should never under any circumstances allow low-level people to administer torture. If torture is going to be administered as a last resort in a ticking-bomb case, to save enormous numbers of lives, it ought to be done openly, with accountability, with approval by the President or by a Supreme Court justice. Thats why [we could use] a torture warrant, which puts a heavy burden on the government to demonstrate by factual evidence the necessity to administer this horrible, horrible technique of torture. I would talk about nonlethal torture, say, a sterilized needle underneath of nail, which would violate the Geneva Accords, but you know, countries all over the world violate the Geneva Accords. They do it secretly and hypocritically, the way the French did it in Algeria. If we ever came close to doing it, I think we would want to do it with accountability and openly.
(c) how is the War on Terror similar to and different from previous emergencies we have studied, and what can be learned from the pastif anythingthat is pertinent to the present?
- After 9/11 and the Paris attacks, the two governments went into panic mode bombing everywhere.
- Detainees are kept in Guantanamo because they pose a clear and present danger to the United States of America, we saw those standards during the civil war. These standards were used as a justification then to curtail liberties and it is being used current day to justify the curtailing of liberties to detainees.
- Habeas corpus restrictions similar to during the civil war
(d) what are the arguments pro and con regarding government surveillance/data gathering and privacy in the War on Terror?
- The PATRIOT act allowed the NSA to run surveillance on American citizens in order to prevent any future attacks- Phone calls are surveilled, but only date, time and who initiated the phone call.
- The government has engaged in technological surveillance because of the changing times
- Feb 8 March 8 NSA collected 124 billion telephone data items and 97 billion computer data items throughout the world
- NSA modified US internet routers to help information collection
- Counter argument- The surveillance cameras outside store fronts help catch the Boston Bomber, Riverline cameras have video and audio surveillance, Retail cameras help catch shoplifters, Rights under the 4th amendment, Relative but not an absolute bond & Reasonable searches are constitutionally permissible
(e) do checks and balances operate to restrict presidential power in the War on Terror, and to what extent are they effective (see Goldsmith for a perspective on this)?
- The Supreme Court ruled against the work of Congress and the President in regards to their Military Commission Act which would allow for special hearings for individuals to know why they are being held.
- Obama wanted to close Guantanamo Bay but was blocked by Congress
- Congress adopted legislation to stop NSA's data collection. Which, in my opinion was a bad move. Meta-data collected information within the US on who, when and location of sender and recipient
- Protect America Act 2007: amendment to FISA giving the president more power to authorize searches under his direction without having to go through FISC
- FISA Amendments 2008: exempts telecommunication agencies, protecting them from suit. They were acting at request of the federal government
- Patriot Act: allowed the NSA to run surveillance on American citizens