National Security Law

UN Charter Goal

Establish presumptive prohibition on use of force by states

Right to financial privacy act 2004 amendment

Expanded definition of financial institution to include not only banks and credit unions but also non-traditional financial institutions like car dealerships

FISA 1804

FISA Application Requirements Section

FISA Trigger

FP or AFP

E-Communications Privacy Act

Gave FBI access to local and long distance toll billing records as well as related customer info

Geneva 1977

Glaring gap in 1949 was article 3. -AP I: applies IAC and represents merger of Hague and Geneva -AP II: much shorter and intended to apply certain key provisions of AP I to NIAC

Special Needs Exception to 4th AM

Gov't can engage in narrowly tailored s/s w/o individualized suspicion or cause when primary purpose is not to discover evidence but to protect public from imminent danger that can't be addressed by following normal individualized suspicion requirement

Is the surveillance a search or seizure

Gov't must meaningfully interfere with property within target's possessory interest (Karo)

Suspension Clause

HC can only be suspended when the emergency of circumstances of rebellion or invasion so require

HUMINT

Human intelligence

FISA orders must: (1805)

Identify or describe: -Person whose communications are to be intercepted -Nature and locations of the targeted facilities or places, if known -Type of communications or activities targeted and the kind of information sought -Means by which interception is to be accomplished and whether physical entry is authorized -Period of time during which electronic surveillance is approved -Whether more than one device is to be used Direct that: -Minimization procedures be followed -Upon request of applicant, specified communication provide applicant all info/assistance necessary to protect its secrecy and produce minimum interference -That such carrier, etc. maintain under security any records concerning the surveillance -Applicant compensate at the prevailing rate the carrier furnishing aid

ICISS

If state is unwilling or unable to protect citizens from avoidable catastrophe, responsibility of the broader community

FISA National Defense/Security Information

Info with respect to FP that relates to and if concerning a US person is necessary to: -National defense of security of US -Conduct of foreign affairs of the US

FISA 1881 Limitations

May not intentionally target: -Any person known at the time of acquisition to be located in the US -Any person reasonably believed to be located outside the US if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the US -A US person reasonably believed to be located outside the US

Is the target protected by the 4th AM

Meaningful connection to US, includes any US national or alien with voluntary presence in US

Hague Main Thrust

Means and methods of warfare

Twilight Zone War

Military action initiated by Pres in absence of CONG approval or prohibition

FISA Counterintelligence of Protective Information

Must relate to and if concerning a US person is necessary to ability of US to protect against: -Actual of potential attack or other grave hostilities of FP/AFP -Sabotage, international terrorism, or international proliferation of WMDs by a FP/AFP or -Clandestine intelligence actives by an intelligence service or network of FP/AFP

FISA Significant Purpose

Obtaining foreign intelligence information

FISA Court Order AG Exception Note regarding FPs

Only applies to these Fps: -Foreign govt or componenet -Faction of foreign gov't -Entity directed or controlled by foreign gov't

Rescue Doctrine

Pres has authority to use military force to rescue US nationals abroad (In re Neagle and Hollins)

WPR Consultation Provision Requirement

Pres in every possible instance shall consult with CONG before introducing armed forces into hostilities and after every such introduction shall consult regularly with CONG until armed forces are no longer engaged in hostilities or have been removed from such situations

Geneva Main Thrust

Protect victims of armed conflict

WPR 1543

Reporting Provision

Jus in Bello

Rules governing conflict once it has started

Jus Ad Bellum

Rules governing legality of going to war

Foreign Intelligence Surveillance Exception to 4th Am

Such surveillance is reasonable so long as it is authorized by the Pres or AG and is conducted for a significant intelligence purpose

Section 215 Patriot Act (1861)

Tangible Things

Border Search Exception

Unusually intrusive search method: reasonable suspicion required

Defensive War

War is thrust upon nation: inherent Article II powers authorize Pres to respond

Silver Platter Doctrine

When US gov't agents receive evidence obtained by individuals that fall beyond the scope of the 4th AM, that evidence may be used with no 4th AM implications

Right to financial privacy act

authorized FBI to access financial institution records in foreign intelligence cases

CYBINT

cyber intelligence

FININT

financial intelligence

Fair Credit Reporting Act

grants FBI access to credit agency records relevant to authorized investigation to protect against international terrorism or clandestine intelligence activities

MASINT

measurement and signature intelligence

OSINT

open source intelligence

National Security Act

permits use of NSLs to access financial institution records, credit reports, and travel records of fed employees suspected of leaking classified information

GEOINT

satellite intelligence

SIGINT

signals intelligence

TECHINT

technical intelligence

Is the surveillance the result of US Gov't Action

-Must be conducted by or at the direction of a US Gov't Agent -Need not be express -Mere awareness, presence, or observation of private or foreign actors by US officials will not trigger the exception

NSL differences from FISA orders

-NSLs do NOT require court order and are issued by fed gov't agency responsible for NS investigations -NSLs are more limited, they require production of financial records, credit history info, telephone records, and certain info relevant to an investigation of improper disclosure of classified info -NSLs issued do NOT require nexus b/w requested records and FP/AFP

FISA Nondisclosure Requirement Exceptions

-Persons to whom disclosure is necessary to comply with the order -An attorney to obtain legal assistance -Other persons as permitted by the FBI

FISA Includes

-Physical searches -Use of pen registers and trap and trace devices -Seizure of business records and other tangible things for purpose of bathing FII

Doctrines of Judicial Restraint

-Political Question -Ripeness -Standing -Justiciability

NSL Statutes

-Right to financial privacy act -E-communications privacy act -National Security act -Fair credit reporting act

FISA Foreign Power Includes

-State or state related entities: foreign gov't, faction of foreign gov't, or entity directed and controlled by foreign gov't -Non state entities: FTO

Protections against arbitrary detention

-Suspension clause -5th AM DP clause -SoP -14th AM Equal protection clause

FISA authorizes members of FISA Court to order electronic surveillance for foreign intelligence purposes if there's PC that:

-Target is a FP or AFP -Place targeted is being used by FP or AFP

FISA 1881 Application must show

-Targeting procedures -Minimization procedures -Significant purpose is to obtain FII

3 Twilight Zone Theories

-Textualist -Unilateral CiC -Pragmatic

WPR 1542 Exceptions

-Threat requires swift action to repel sudden attacks -Use of technology does not require troops to be introduced -Gov't civilians and contractors involvement

Domestic Use of Military Force Sources

-UN Participation Act -Defensive -Statutory Authorization (AUMF) -Rescue -Twilight Zone War -WPR

WPR Trigger

-US Armed Forces -Into hostilities

FISA International Terrorism

-Violent act or acts dangerous to human life -Must appear to be intended to: intimidate or coerce a civilian population, influence gov't policy by intimidation or coercion, or affect gov't conduct by assassination or kidnapping -Must occur totally outside US or transcend national boundaries

WPR 1544

60-Day Clock

FISA Emergency Situation Requirements

AG must reasonable determine there is an emergency: -Factual basis -Must inform FISC that a decision to sure under emergency has been made -Minimization -Application to court must be made as soon as possible

2001 AUMF

All necessary and appropriate action against AQ and associated forces

WPR Report Required

Armed forces are introduced -Into hostilities (imminent hostilities) -In territory, airspace, or waters of a foreign nation equipped for combat -In numbers that substantially enlarge existing forces

2002 AUMF

Authorized military force in Iraq

FISA 1881

Authorizes e-surveillance of individuals who are not US persons and are reasonably believed to be located outside the US through: -FISC -Exigent circumstances

Protection of Nationals

Before intervening, first state should: -Ascertain that host state is unable or unwilling to provide necessary protections and -Put host state on notice of use of force

WPR 1546

Concurrent Resolution Termination: CONG can order immediate termination by concurrent resolution

WPR 1542

Consultation provision

NSL Judicial Review

Court may modify or set aside NSL only: "If compliance would be unreasonable, oppressive, or otherwise unlawful."

Border Search Rule

Do not require individualized suspicion or cause and no distinction is made b/w US persons and aliens

NS 4th AM Exceptions

-Foreign Intelligence Exception to warrant requirement -Special Needs Exception to warrant and PC requirements

Mathews Detaining Factors

-Gov't interest in ensuring compliance with law -Individual's interest in liberty -Risk of error

NSL Statutory Framework

-Gov't official must certify in each NSL issued that purpose of NSL is limited to acquiring info related to NS concerns -Each NSL statute contains a nondisclosure or confidentiality requirement

8 Most Common Types of Intelligence

-HUMINT -GEOINT -MASINT -OSINT -SIGINT -TECHINT -CYBINT -FININT

Standing (Judicial Restraint)

-Injury in fact -Traceable to defendant's conduct -Subject to judicial remedy

NIAC hinges on

-Intensity and duration of violence -Existence of an OAG responsible for the violence

3 Fourth Amendment Questions

-Is target protected by the 4th Am -Is the surveillance the result of US Gov't Action -Is the surveillance a search or seizure

Assessing legality of war power decisions requires the consideration of these factors

-Is the action offensive, defensive, or rescue in nature -Extent of inter-branch cooperation and how that cooperation is manifested -What limits on authority of each branch of gov't intrude into areas of authority vested by the CON in their counterparts -WPR

Political Question

-Issue is textually and exclusively vested in coordinate branch of Gov't -Issue involves lack of judicially discoverable and manageable standards

International Use of Military Force Sources

-Kellogg-Briand Pact -UN Charter -Hague -Geneva -Article 5 NATO

FISA AFP US Citizen

-Knowingly engages in clandestine intelligence gathering activities -Knowingly engages in sabotage, international terrorism, or preparatory activities -Must be acting on behalf of a FP

Ripeness

-Military action must be either ongoing or imminent -LEG plaintiffs must establish that Pres and CONG have reached a CON loggerhead

Exception to UN Charter

-Authorization from UNSC -Consent -Self-Defense -Protection of Nationals -Humanitarian Intervention/Responsibility to Protect

WPR Report Must

-Be submitted within 48 hours -Set forth: circumstances necessitating the introduction of armed forces, CON and LEG authority, scope and duration

Civilians who directly participate in hostilities (according to Geneva)

-CCF: targetable constantly -Non-CCF: only targetable when DPH

Who Presents Challenges to Initiation of Hostilities

-CONG Member -Service Member -Property owner negatively effected

3 Situations where Pres is authorized to commit US armed forces into hostilities (WPR 1541)

-CONG declared war -CONG provided some form of express statutory authority -Responding to attack

Legislative Standing

-Completely nullified -Must show enactment of a statute prohibiting military action or an affirmative vote against authorizing such action that Pres ignores

FISA Foreign Intelligence Info 2 Categories

-Counterintelligence or Protective -US National Defense/Security

Pres must terminate deployment at 60 days unless CONG:

-Declares war -Enacts specific statutory authorization -Extends 60-day period -Physically unable to meet

2 Part Analysis from Jones and Jardines

-Did gov't agents physically trespass against the target's home or effects for the purpose of gathering information -Did it intrude on the target's reasonable EoP?

Katz Reasonable EoP

-Did target of surveillance manifest a subjective expectation of privacy by shielding activity from public and -If so, is it an EoP that society is willing to recognize as reasonable

3 Central Principles of LOAC

-Distinction -Proportionality -Take all feasible precautions to avoid or minimize harm to civilians

Patriot Act Amendments to NSLs

-Expanded FBI's issuing authority to include heads of FBI field offices -eliminated requirement that info pertain to FP/AFP -Required NSL request be relevant to investigation to protect against international terrorism or foreign spying -Added caveat that no such investigation of US person could be predicated solely on 1st AM protected activities

1861 Records are presumptively relevant to an authorized investigation if they pertain to:

-FP/AFP -Activities of a suspected agent of FP who is subject of such authorized investigation or -Individual in contact with or known to a suspected AFP who is the subject of such authorized investigation

FISA 1881 Application Process

-AG and DNI both must apply for court order from FISC, unless exigent circumstances require immediate implementation

FISA Court Order Exceptions (1802)

-AG certifies that: surveillance solely directed at Fps, no substantial likelihood hat surveillance will acquire communications to which US person is a party, and Minimization procedures -Emergency situations -15 days following a CONG declaration of war

FISA AFP Foreign National

-Acts as officer, employee, or member of FP -Acts for or on behalf of FP engaged in clandestine activities in US, adis or abets any such person or conspires with another person to engage is such activities -Engages in international terrorism or related preparatory acts -Engages in international proliferation of WMDs or on behalf of FP or preparatory acts -No requirement that person act for or on behalf of FP is person suspected of engaging in international terrorism

Patriot Act amendments enhanced NSLs by

-Allows NSL authority to be employed more quickly -Expanded NS authority by eliminating FP/AFP requirement

Self-Defense Categories

-Anticipatory -Interceptive -Preemptive

FISA Court order will be issued upon finding: (1805)

-Application requirements have been met and -PC to believe that target is a FP/AFP and targeted facilities are used or about to be used by a FP/AFP

Geneva 1949

-Article 2 provides clear statement on applicability of LOAC as applying to conflicts b/w two states (IAC) -Article 3 applies to NIAC: state and rebels within that state or b/w a state and a transnational terrorist group

UN Participation Act

-Article 42: Pres can act w/o further CONG approval -Article 43: requires further CONG approval