Detention, Prosecution and Interrogation:! 1. MILITARY COMMISSIONS: ! A. Policy Reasons: ! 1.

Protect Classied info (gives enemy less discovery rights, closed to public, dont reveal sources and methods[info about how we collect info will allow our enemies to avoid detection), ! 2. Speed and Efciency (only takes 2/3 to convict), ! 3. Security. ! B. Ex Parte Milligan - read narrowly, cant try a U.S. civilian before military commission. ! C. Ex Parte Quirin - Can try citizens who are enemy combatants, and can try foreigners who invade our country. (Read narrowly: applies only to spies)! 1. Note: on p. 1065 of the CB, Ofce of Legal Counsel under President Bush reads Quirin broadly to authorizes the trial by military commission of any person subject to the laws of war for any offense under the laws of war. ! D. Hamdan v. Rumsfeld - Military commissions conicted with the Geneva Convention because they were not a regularly constituted court; also conicted with the statutes because the procedural rules were different than the rules of Court-Martial. Plurality seems to say trying a case before a military commission outside of a military exigency is illegal. (But, Hamdi would allow a military tribunal, even though there was no emergency in that case) !

II. MILITARY DETENTION: ! A. Policy reasons:! 1. Prevent return to battleeld! 2. Acquire information / intelligence! 3. Maybe Deterrence ! a) Note: these reasons for detention in National Security settings are different than the common justications given for Criminal Detention (Retribution, Rehabilitation, Deterrence). ! B. Johnson v. Eisentrager - There are geographic constraints to the governments ability to detain enemies. There are also practical considerations (how much inter-branch conict will it create). Held: Enemy aliens present didnt have a right to a Writ of Habeus Corpus (see Quirin), therefore enemy aliens abroad cant have that right either. ! 1. Note: they were admitted enemy aliens in Eisentrager, which is the key difference between it and Boumediene. ! C. Boumediene v. Bush - Writ of Habeus Corpus extends to Guantanamo detainees and process afforded by Military Commission Act of 2006 is an inadequate substitute. ! 1. United States had de facto sovereignty over Guantanamo Bay, therefore Writ must issue from there. ! 2. At minimum, detainees are entitled to a meaningful opportunity to be heard, AND the commission reviewing his case must be able to correct errors, to assess the sufciency of the governments evidence, and to consider exculpatory evidence. ! 3. Test:! a) Citizenship/Status: ! (1) Eisentrager: Citizens of Enemy Govts (in uniform, admit german status)! (2) Boumediene: Citizens of Friendly Govts (no uniforms, deny al qaeda status)! b) Adequate Process: ! (1) Eisentrager: easily identiable status, legal advise provided, trial.!

(2) Boumediene: cant easily tell if they are enemies, right to appeal to CSRTs, presumption of validity for Govt Evidence! (a) Note: CSRT process inadequate because there are 1) limits on exculpatory evidence, 2) no lawyers provided to defendant, 3) limits on access to classied info, and 4) presumption in favor of Govt evidence. ! c) Location of Capture! (1) Eisentrager: Overseas! (2) Boumediene: Overseas! d) Location of Detention: ! (1) Eisentrager: U.S. base in Germany (enemy territory)! (2) Boumediene: U.S. Controlled friendly territory! e) Practical Obstacles:! (1) Eisentrager: 1950! (2) Boumediene: 2008! D. Hamdi v. Rumsfeld: ! 1. Held: AUMF includes right to detain because all necessary and proper force means right to kill, so it must include the lesser right to detain. Therefore, under the AUMF, Congress has authorized detention.! a) Also: AUMF authorizes detention as long as the conict endures.! b) Quirin gives no bar to holding an enemy combatant who is also a citizen.! c) Milligan is distinguishable because it involved a citizen in his home state when captured, and he was not captured while bearing arms. ! 2. Held: When determining if a citizen is an enemy or not, minimum procedure due is:! a) Habeus Corpus is available for a citizen. ! b) Must receive notice of factual basis for classication.! c) Must be given opportunity to rebut the evidence before a neutral decision maker (could be done by military tribunal..), but the burden is on the suspect to rebut the evidence. ! (1) Note: OConner creates the framework for CSRTs in her process, Boumediene says this process is inadequate for non-citizens, although it is adequate for citizens Could this result be because Boumediene was handed down after the crisis was over, like in Milligan? Or is it because Boumediene was denied the Writ of Habeus Corpus? ! 3. Therefore, the Govts declaration of the facts is admissible if Hamdi has the chance to rebut it. ! 4. Scalia, dissenting - Citizens should be tried for treason or released (Sales critique: this creates a perverse incentive to kill citizens who we encounter on the battleeld). ! E. Al-Marri v. Pucciarelli:! 1. Like Milligan, shows that there are protections afforded Legal Residents who are captured in the United States. They cannot be detained without the procedures of the criminal process 4th Circuit case..! F. Al-Bihani v. Obama:! 1. AUMF not limited by international laws of war.! 2. Guantanamo Detainee, former cook in Al Qaeda, not entitled to Writ of Habeus Corpus.! 3. Government must prove legal detention by a preponderance standard, but the petitioner can rebut the governments evidence, Government hearsay presumed to be accurate subject to rebuttal. ! III. CIVIL DETENTION!

A. This is also a viable option: Ashcroft v. Iqbal (Top government ofcials not liable for the act of their subordinates absent evidence that they ordered the discriminatory activity), Ashcroft v. Al-Kidd (Government can detain suspects under material witness warrants even if their main motive is further investigation; Ashcroft had immunity). ! 1. Note: Also can try suspected terrorists of immigration crimes ! B. Prosecuting terrorists in Civilian Court:! 1. See Prep and Notes for class 16! IV. INTERROGATION:! A. Acts widely regards as torture might be legally permissible under an expansive interpretation of presidential authority during the war on terror -see Bybee memo. ! B. The specic intent requirement of torture statutes means that the defendant had to specically intend to cause harm - in interrogation the methods are used with the specic intent of gaining information ! C. The President is immune from the statutory constraints against torture (see Bybee memo), by nature of his position as commander-in-chief. ! D. Defenses to torture: Necessity (necessity of gathering information to prevent an attack like 9/11 from happening again justied interrogation techniques), and Self-Defense (Allowed to inict damage on a person if doing so to protect another). ! V. EXTRAORDINARY RENDITION:! A. Arar v. Ashcroft:! 1. Canadian citizen deported to Syria, tortured and forced to falsely confess and then released after one year without being charged. - No cause of action for violation of torture statute because U.S. ofcials allegedly told foreign ofcials to torture a nonU.S. citizen, no cause of action for violation of constitutional rights (leave to rele for conditions of detention, but did not). ! B. Subject to the detainee treatment act, P. 921. !

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Intelligence: ! I. INTRODUCTION TO INTELLIGENCE:! A. Keith Case - a warrant needed to be obtained before beginning electronic surveillance (wire-tapping) even if domestic security issues were involved. Note: the decision applies only to domestic issues foreign intelligence information gathering is governed by FISA. ! 1. In order for a national security exception for domestic warrant requirements, need specic authorization by the President or Attorney General (See. United States. Ehrlichman, D.C. Cir.) !
2. The foreign intelligence exception to the warrant requirement extends only to foreign governments, their agents and collaborators. (See United Stats v. Truong Dinh Hung). ! II. FISA! A. United States v. Rosen (background case) shows prosecution for leaked intelligence information under the espionage act.. applies FISA. Go to p. 580-99! III. THIRD PARTY RECORDS; DATA MINING:! A. SEE NOTES FROM 11/4 IN NOTEBOOK! IV. NSA SURVEILLANCE! [...]! Section 215 (codied at 50 U.S.C. 1861, a part of FISA) allows the FBI to collect any tangible things (including books, records, papers, documents, and other items) -- broad language that can be read to include almost anything. Indeed, FISC has apparently dened the relevant tangible things to include a phone companys complete call database.! [...]!

Communications collected from U.S. persons must not derive solely from First Amendment activities -- for example, collection because the FBI doesnt like the website you visit or the books you check out of the library -- but can derive in part from such actions. In addition, anyone who receives a Section 215 order to turn over tangible things to the government is prohibited from disclosing the warrant or the details of the requested records. Under fairly weak congressional oversight requirements, the Attorney General submits an annual report to Congress detailing the number of requests made, granted, modied, and denied.!

FISC cites Section 215 as providing the legal authorization for the collection of telephone metadata. According to the leaked documents, FISC ordered Verizon, pursuant to Section 215, to hand over information related to both communications between the United States and abroad, and wholly within the United States (including local telephone calls). Evidence suggests that the government has demanded similar information from other telecommunications giants on orders renewed every three months.! [...]!

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Section 702 of Title VII (codied in 2008 at 50 U.S.C. 1881a) allows the Attorney General and the Director of National Intelligence to jointly authorize a surveillance program targeting persons reasonably believed to be located outside the United States for up to one year. The surveillance must collect foreign intelligence, dened roughly as information related to national defense, foreign affairs, or the ability to protect against actual or potential attacks, international terrorism, or clandestine intelligence activities.! A Section 702 program must not intentionally target U.S. persons, but does not protect communications to and from U.S. persons inadvertently caught up in the surveillance program. In applying for FISC authorization, the government must certify targeting and minimization procedures that will reduce the likelihood of surveilling U.S. persons. As the Constitution Project points out, however, the government does not need to identify particular targets or demonstrate probable cause.! [...]! So Section 215 sanctions the targeting of US citizens, with no probable cause of any wrong-doing.! And Section 702 sanctions the targeting of Foreigners, with reasonable cause of some sort of wrong-doing. Any US citizens "inadvertently" swept up in a 702 foreign search, must be "unintentionally."! V. COVERT OPERATIONS AND TARGETED KILLINGS! A. Covert Operations = CB 443-64, 472-88! B. Targeted Killings are briey discussed in notebook, blue notes towards end of National Security law coverage. !

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Using and Protecting National Security Information! VI. CIPA, EXCULPATORY INFORMATION, STATES SECRETS PRIVILEGE! A. I. CIPA FRAMEWORK (Note: CIPA held constitutional in United States v. Lee, and United States v. Abu Ali)! 1. The Classied Information Procedures Act (CIPA), 18 U.S.C. app. III 1-16 (1988), provides for pretrial procedures to resolve questions of admissibility of classied information in advance of its use in open court.1 Under CIPA procedures, the defense must le a notice briey describing any classied information that it "reasonably expects to disclose or to cause the disclosure of" at trial. 18 U.S.C. app. III 5(a). Thereafter, the prosecution may request an in camera hearing for a determination of the "use, relevance and admissibility" of the proposed defense evidence. Id. at 6(a). If the Court nds the evidence admissible, the government may move for, and the Court may authorize, the substitution of unclassied facts

or a summary of the information in the form of an admission by the government.2 See id. at 6(c)(1). Such a motion may be granted if the Court nds that the statement or summary will provide the defendant with "substantially the same ability to make his defense as would disclosure of the specic classied information." Id. If the Court does not authorize the substitution, the government can require that the defendant not disclose classied information. See id. at 6(e). However, under 6(e)(2), if the government prevents a defendant from disclosing classied information at trial, the court may: (A) dismiss the entire indictment or specic counts, (B) nd against the prosecution on any issue to which the excluded information relates, or (C) strike or preclude the testimony of particular government witnesses. See 18 U.S.C. app. III 6(e)(2). Finally, CIPA requires that the government provide the defendant with any evidence it will use to rebut the defendant's revealed classied information evidence. See id. at 6(f).! a) NOTE: Trying to substitute the procedures of CIPA with anything that would close the trial violates CIPA and the Constitution (See United States v. Rosen). ! B. Government can also always claim a States Secret privilege: The standard for this is laid out on p. 142-59 of the casebook. ! VII. LEAKS AND PUBLICATION OF CLASSIFIED INFORMATION! A.