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Treaty Interpretation Canons

1. Last in time 2. Exclusivity: federal gov's job to make foreign relations 3. Interpret to assume that Congress didn't intend to infringe on traditional areas of state concern (see Bond chemical weapons convention v. state law poisoning) 4. Charming Betsy: if there appears to be a conflict between a statute and a rule of international law, courts will construe it in a way that does not conflict with international law

Customary War Power (Executive)

1. Look to multiple uses of armed force that Congress has never expressly approved of 2. Look to details of Congress' response -- has Congress objected? How recently?

Geneva Conventions Common Art. 3

1. No violence to life 2. No torture 3. No arbitrary detention 4. Wounded/sick must be cared for

Custom (as a source of international law)

1. State adoption (widespread + representative) 2. Opinio juris - you are complying with this rule because you believe it is a legal obligation

Foreign Terrorist Organization

1. Track record of violence against innocents for a political purpose 2. If US presence: entitled to due process notice + opportunity to be heard + ability to appeal designation

Sources of International Law

1. Treaty 2. Custom

Merryman

Court rejected Lincoln's suspension of the writ of habeas corpus, holding that Congress had the authority to suspend. Did not resolve the issue because Lincoln rejected the decision + continued to act.

International Covenant on Civil and Political Rights, Art. 6

Every human has an inherent right to life, which shall be protected by law. No one shall be arbitrarily deprived of his life

Prize Cases

FACTS: Lincoln ordered a naval blockade that involved capture and sale of repeat offenders' ships. HOLDING: President has the power to institute a blockade b/c war was thrust on the US, and the only appropriate way to respond was to issue a blockade

UN Art. 41

UN authority to impose sanctions

UN Art. 42

UN power of collective forceful action

Presumptions of Jus in Bello

WARTIME: 1. Individuals act according to dictates of command 2. Members of the other side are hostile 3. Government has the authority to detain members of the enemy force solely on the basis of group membership 4. Use of deadly force as a first resort is authorized against enemy combatants 5. Law focuses on protecting victims from collateral harm PEACETIME: 1. Individuals are acting for themselves 2. Individuals are compliant with the law and not hostile 3. Government can only detain people based on individualized judgment 4. Use of deadly force is a last resort 5. Law protects the object of the state's violence from excessive force from the state

Jus ad Bellum

When a nation may lawfully resort to military force Right to go to war

Combatant's Privilege/Immunity

- Can't be prosecuted for lawful belligerent acts during armed conflict - Immunity for domestic criminal process - Must be tried by court martial - No torture, but positive inducements for interrogation are ok

Combatant

- International armed conflict ONLY - Lawfully authorized to fight on behalf of the state - Targetable at any time - If captured, entitled to POW status + combatants privilege/immunity

Requirements to Hear Cases

1. Case/controversy (ripeness) 2. P has a personal stake (standing) 3. Clear fact pattern

President's Powers/Authority

1. Commander in Chief 2. Enter into treaties (+ work with Congress to ratify) 3. Appoint ambassadors 4. Shadow of declare war --> quick action in self-defense

3 Justifications for rebutting presumption against use of force

1. Consent of the state (assisting with acts the state may legally engage in) 2. UN authorization 3. Self-defense in response to an armed attack

Congress' Wartime Powers

1. Control price of commodities 2. Fix rent 3. Operate railroads 4. Prohibit alcohol sales 5. Ration important commodities 6. Restrict personal freedoms through curfew/exclusion areas 7. Institute a draft

Types of War Powers

1. Defensive 2. Customary 3. Core command authority (from Commander in Chief title)

Law of War

1. Jus ad bellum 2. Jus in bello

Principles of Jus in Bello

1. Military necessity: in an armed conflict, a party to the conflict may use all force necessary to achieve complete submission of the enemy, as long as it is not forbidden by law 2. Humanity: can't inflict more suffering than is needed for military purposes - Must treat wounded/sick soldiers with dignity - Prohibits weapons that create unnecessary suffering, especially relative to military advantage 3. Distinction: must distinguish between combatants and civilians; must only launch attacks at those who are fighting - Combatants must differentiate themselves from civilians - Can't use weapons that can't differentiate between combatants and civilians 4. Proportionality: must minimize incidental harm to civilians; must refrain from attack if the expected harm to civilians will be excessive in relation to the military advantage anticipated - Analysis: weigh value of attack v. civilians who might be harmed

Justiciability Doctrines

1. Political Question Doctrine 2. Standing 3. Ripeness

Congressional Powers/Authority

1. Power to declare war 2. Takings power 3. Creating rules/regulations for the armed forces 4. Necessary and proper clause 5. Regulating commerce with foreign nationals/trade 6. Define/punish offenses against international law 7. Provide for a militia 8. Establish rules for capture on land and sea

Principles of Human Rights Law (presumptions & preferences)

1. Requires judicial process before anyone is executed 2. Presumption of innocence 3. Preference for arrest and detention by due process 4. Insistence on credible evidence and a fair trial before judicial punishment

Prize Taking in Jus Belli

1. War must exist de facto 2. Neutral must have knowledge/notice of intent of one of the belligerents to use this mode of coercion 3. Against a port, city, or territory in possession of the other

International Armed Conflict

Any situation in which there is a dispute between two states that leads to the engagement of their forces - Geneva Conventions apply to ALL states when there is a declared war

Suspension Clause

Art. I, habeas corpus may be suspended in emergency circumstances of rebellion or invasion - Unclear who may suspend - Clear intent to suspend + comprehensive - If Congress restricts access to the writ, it must provide a sufficient judicial substitute

Ripeness

Avoid adjudication of a dispute by determining that future events may affect its shape or existence Must reach case and controversy level before courts can act

Self-Defense

CONDITIONS: 1. Necessity: are there adequate non forceful options to deter/defeat the attack? 2. Proportionality: whether measure of counterforce used is proportionate to the needs/goals of repelling/deterring the original attack 3. Immediacy: can't be so removed in time that it is a punitive action - Anticipatory: ok as long as immediate, not prospective - Pre-emptive: not ok, but US argues it is permitted

Customary International Law/Jus Cogens

Can be incorporated into domestic law by codification in statutes Al-Bihani v. Obama: domestic laws incorporate international convents against torture Paquete Habana: international law is part of US domestic law...resort to custom when there is no controlling executive or legislative act or judicial decision

ICCPR Treaty

Can't derogate from torture as a prohibited offense, even in a crisis situation or national emergency.

Unlawful Combatants

Civilians, but not protected from attack for such time as they are taking direct part in hostilities Taking part: using a weapon, gathering intelligence, preparing for hostilities Direct: case by case determination, gray areas should be interpreted in favor of finding direct participation For such time: - Must have good info for categorization - Can't be attacked if a less harmful means is available - After attack, must perform thorough, independent investigation of ID of large + circumstances of attack

Non-Delegation Doctrine

Congress can delegate to the Executive if it provides standards for the Executive to follow ANALYSIS: 1. Can Congress delegate this? 2. Did the delegation include standards? 3. Did the Executive follow these standards? 4. Did the law/standards violate the Constitution or other rights?

Statutory Emergency Powers

Congress enacted emergency statutes to permit President to declare a national emergency to activate powers that are ordinarily prohibited International Emergency Economic Powers Act: gives President peacetime emergency powers, but those powers may only be exercised FOLLOWING A NEW NATIONAL EMERGENCY DECLARATION

Korematsu

Court accepted military need assertion to approve initial detention of Japanese-American citizens based solely on ethnicity. Court does not consider continuing detention or evidence of racism/economic goals. - Murphy dissent: whether deprivation is reasonably related to a public danger that is "immediate, imminent, and impending" - Jackson dissent: improper for courts to assess necessity of a military order Constitutional habeas - detention authority - deference to alleged military need

Ex Parte Endo

Court held that due process is individualized, so the government can't detail without specific facts demonstrating dangerousness + can't detain en masse because of a descriptor - Can't imply congressional intent for continued detention...need a clear statement Constitutional habeas - detention authority - length of detention

§2339(b)

Criminalizes material support for foreign terrorist activities for anything under control of a foreign terrorist organization (as designated by the SoS) INTENT: none SCIENTER: 1. X is a terrorist organization 2. engages in/engaged in foreign terrorist activity 3. Engages in terrorist activity - Criminalizes fund collection, but requires specific intent that funds be used to carry out terrorist attacks (but note commingling of funds)

§2339(a)

Criminalizes material support to terrorists or terrorist activity. INTENT: to promote attacks on persons or property MATERIAL SUPPORT: 1. Property or services, including money or securities 2. Provision of lodging 3. Offering of safeguard 4. False documentation 5. Communications equipment 6. Other facilities 7. Transportation 8. Training, expert advice, assistance 9. Personnel

Hirabayashi

Curfew permitted because Congress and the President cooperated. Court used narrow reading of Milligan Constitutional habeas - detention authority

Continuing Incorporation Doctrine

Does the development of international norms over time influence municipal law? Al-Bihani v. Obama: - Brown: courts shouldn't ignore congressional intent in favor of international norms - Kavanaugh: international law can expand authority, but can't limit constitutional power - Williams: international law norms help interpret basis/boundaries of statutes

Domestic/Foreign Spectrum

Domestic: President can only do things authorized by Constitution or statute Foreign: can do whatever is needed to make policy + advance that policy in the international community

Lawfulness of Lethal Operations Against US Citizens Who Are Senior Operational Leaders of Al Qaeda

Due process test: weigh private interest against gov's asserted interest Monitor whether capture becomes feasible Imminence: no requirement of clear evidence of specific attack - §1119(b): gov may not assassinate a US citizen outside of the US - Public Authority Justification: permissible if complies with due process

Protocol 1 (Geneva amendment)

Establishes base line standards, trial standards, prohibits torture/inhumane/degrading treatment. Applies to all individuals subject to authority of a state but NOT in one of the existing Geneva categories.

Clapper v. Amnesty International

FACTS: AI argues that government surveillance MAY impact its communications with foreign clients, but it has no proof that it has occurred yet or that it will occur. HOLDING: No standing due to no demonstrated injury - Spending money out of caution is artificially creating standing

Dellums v. Bush

FACTS: Bush sent troops to Kuwait, and members of Congress sued to prevent the President from starting an offensive attack without express Congressional authorization. HOLDING: Foreign affairs nature does not solely prevent the judicial branch from hearing cases, but this was a political question Grounds for deference: issue is factually close, ambiguous, or filled with military/diplomatic baggage POLITICAL QUESTION

Bas v. Tingy

FACTS: Congress passed a statute allowing merchant vessels to defend themselves against search/seizure by French boats, but did not formally declare war. HOLDING: a state of war existed between US and France, and it didn't matter that there was no formal declaration of war

Zovotofsky II

FACTS: Congress passed a statute allowing persons born in Jerusalem to list Israel as their place of birth, contrary to US foreign policy. HOLDING: President has exclusive power to grant formal recognition to a foreign sovereign (recognition clause) RULE: Congress can't mandate that the executive contradict an earlier statement - President is almost always subject to congressional power to control the conduct of international affairs

Curtiss-Wright

FACTS: Congress passed a statute authorizing the President to ban sales of arms to parties in a war if he found it would reduce tensions. HOLDING: Appropriate to delegate this authority because it was an international issue and the President has broad authority in international affairs - Court looked at non-delegation doctrine and location on domestic/foreign spectrum NON-DELEGATION DOCTRINE + BROAD FOREIGN AFFAIRS AUTHORITY

Boumediene

FACTS: Detainees denied being members of Al Qaeda. The court distinguished Eistentrager, holding that the suspension clause has full effect at Guantanamo by applying eisentrager factors. The detainees challenged their status determination, no evidence was disclosed to them, the US had control of the facility, and providing habeas would not impact security at the facility. - Hearing process was not an effective substitute to habeas because no meaningful opportunity to present a case + consider evidence RESPONSE: US now takes detainees to military bases in conflict areas. Must prove that an individual is taking part or substantially supporting Al Qaeda due to AUMF

Greene v. McElroy

FACTS: Engineer fired after security clearance revoked due to alleged communist ties. He was not given procedural safeguards. HOLDING: DoD's security clearance program not permitted b/c not explicitly authorized by President or Congress RULE: to take away procedural safeguards, must demonstrate CLEAR STATEMENT from P/C that procedures are NECESSARY + WARRANTED - If Congress can't properly withhold appropriations for certain activities, it should not be able to impose burdensome conditions on appropriation

Little v. Barreme

FACTS: French warships were preying on American ships, starting a Quasi-war. Congress passed an act that embargoed trade and authorized seizure of ships in violation. Little captured a ship flying Danish colors and sued it for prize money. HOLDING: President can't authorize actions that exceed the authority granted to him by Congress Congress authorized a limited war, but President's instructions exceeded Congress' authorization Congress' limit on hostilities was binding This is Congress placing a limit on an area of inherent Presidential authority! CORE POWERS & STATUTORY LIMITS

Committee of US Citizens Living in Nicaragua

FACTS: ICJ ruled that US support of paramilitary in Nicaragua violated international treaty + customary international law, but Congress continued appropriating funds. HOLDING: violations of international law do not have domestic legal consequences - Courts have no role in upholding international obligations - No customary international law principle requiring adherence to ICJ decisions that trumps domestic statutes

Dames & Moore

FACTS: In response to the Iranian hostage crisis, Raegan issued an executive order suspending Dames & Moore's legal claims against the Iranian government. HOLDING: President has implicit authority to suspend pending claims RULE: Past practice does not create power by itself, but LONG CONTINUED PRACTICE, KNOWN TO AND ACQUIESCED TO BY CONGRESS, raises a presumption that the action was taken in pursuance of congressional intent - When uncertain constitutional authority, express/implied congressional approval will carry significant weight

Youngstown

FACTS: Labor dispute disrupted steel production, so Truman seized the steel mills under the argument that the strike jeopardized national defense. Congress was aware but did not respond. ISSUE: Was this an inherent power of the President (because it's not explicitly provided for in the Constitution)? HOLDING: No Majority - Black: - No statute authorizing this action - President can't make law, but takings like this are lawmaking Jackson - Spectrum of authority: - Maximum: President acts pursuant to express/implied authorization from Congress - Twilight Zone: President acts in absence of congressional grant/denial of authority...can only use President's independent powers - Minimum: President takes measures incompatible with express/implied will of Congress Frankfurter: - Systematic, unbroken executive power - Congress must have known President was exercising this authority + agreed

Al-Bihani

FACTS: P worked as a cook for Al Qaeda, and he argues that he is a citizen that can't be detained unless he was directly engaged in hostilities. The government argues this is material support for terrorism. - Cooks = members of the military - Congress did not intend for international law to be an extra-textual limiting factor of detention authority in AUMF - Court defers to President/political branches to determine war, but should actually use objective international law analysis

Orlando v. Laird

FACTS: Ps were ordered to report for transfer to Vietnam, but sought to enjoin orders - Berk test: any action by Congress sufficient to authorize/ratify military action (appropriations count) - Baker: choice of how to authorize war is an exercise of Congressional discretion

Reid v. Covert

FACTS: SOFA said US military dependents could be tried by US court martial without a jury for crimes committed abroad. HOLDING: Can't have an agreement with a foreign nation that gives a branch of government a power that is free from the limits imposed by the Constitution

ACLU v. Clapper

FACTS: Telephone metadata collected records of everyone in the country. ACLU objects to search and seizure of data, which is searched whenever any search is run on the system. HOLDING: ACLU has standing because data has already been collected

In re Neagle

FACTS: US Marshal killed a man to protect Justice Field. The President took action in the absence of a statute to protect federal judges. HOLDING: President has inherent authority to protect vital government functions and persons - No explicit legislation, so the executive was the best prepared to make an immediate action to protect the judge NOTE: similarities to necessary and proper authority

Hamdi

FACTS: US citizen held at Guantanamo after being captured on the battlefield. The court that the AUMF justified detention because "all necessary and appropriate force" incidentally includes authority to detain. The evidence presented against him (mere location) was not enough to justify detention without due process. - Length of detention: duration of the conflict (through concerns about indefiniteness) - Due process: notice + opportunity to rebut status finding of combatant

Holder - Material Support

HLP provides legal aid to the PKK and LTTE, which are designated as FTOs. Court held that the government may limit nonviolent material support, including legal advice, without violating the 1st Amendment. - No vague due process concerns because a person of reasonable intelligence had notice of what is prohibited - No free speech violation because it limits SOME speech, not all speech...only limits speech under direction of FTOs

Political Question Doctrine

If a political question (NOT a political case), courts should stay out of it due to separation of powers concerns STANDARDS/TEST: 1. Textually DEMONSTRABLE CONSTITUTIONAL COMMITMENT of the issue to a political department 2. Lack of judicially discoverable/manageable STANDARDS for resolving it* 3. Impossibility of deciding without an INITIAL POLICY DETERMINATION that is clearly nonjudicial discretion 4. Impossibility of a court's undertaking independent resolution without EXPRESSING LACK OF RESPECT to a branch of government 5. Unusual need for UNQUESTIONING ADHERENCE to a political decision already made 6. POTENTIALITY OF EMBARRASSMENT from multifarious pronouncements by various departments on one question

UN Basic Principles on Use of Force & Firearms by Law Enforcement Officials

Law enforcement officials may use firearms if appropriate based on imminence + necessity through unavailability of other means

Youngstown - Foreign Relations Power

Location along the domestic/foreign spectrum is critical. President has more authority on foreign end of spectrum. Youngstown was a domestic economic issue

Non-International Armed Conflict v. Situation of Unrest

Look to intensity of violence + organization of the non-state entity 1. How often are conflicts? 2. How long? 3. What weapons are being used? 4. Has the UNSC taken note? Do they see it as a threat to international peace and security?

US Engagement in Collective Action in Vietnam

Meeker Memo: don't need congressional authorization to participate in collective defense actions - Constitutional argument: C allows President to determine with circumstances are so threatening to domestic security that the President must act without consulting Congress See Orlando v. Laird

Congressional/Legislative Standing

Members of Congress can sue for harms done to Congress IF there is no other remedy REQUIREMENTS: 1. Statute/bill prohibiting military action OR 2. Affirmative vote against authorizing such action 3. Followed by President explicitly ignoring the will of Congress

Ex Parte Milligan

Milligan was detained and tried by a military commission. Court held that Congress had the power to suspend, but it was improper in Indiana because the domestic courts were open and competent to handle the case. Habeas should only be suspended military courts used where necessary. - Habeas suspensions/military courts must be confined to locality of actual war

UN Responsibility to Protect

Moral imperative that if you see something going on and have the ability to stop it, you should - Not technically international law

Eisentrager

No habeas/constitutional protections when you haven't been on US soil FACTORS OF REACH OF SUSPENSION CLAUSE: 1. Citizenship and status of the detainee + adequacy of process through which status determination was made 2. Nature of sites where apprehension and detention took place 3. Practical obstacles inherent in resolving the prisoner's entitlement to the writ

UN Art. 51

Nothing in the UN Charter restricts the inherent right of self-defense against imminent armed attack

SCOTUS Jurisdiction

Original: ambassadors, cases between states Appellate: everything else

US Use of Targeted Killing & Military Operations

POLICY STANDARDS: 1. Only if continuing, imminent threat to US persons 2. Target only operational leaders + those who are trying to carry out an attack/pose an imminent treat CRITERIA BEFORE ACTION: 1. Near certainty that target is present 2. Near certainty that non-combatants will not be injured/killed 3. Assessment that capture is not feasible at the time of the operation 4. Assessment that relevant gov authorities of the country will not effectively address the threat to US persons 5. Assessment that no other reasonable alternatives exist

Congressional Foreign Relations Powers & Limitations

POWERS: - Enact policy through legislation - Declare war - Delegate authority to President (in some areas) LIMITATIONS: - Definitional issues - Appropriations bills can only be passed every 2 years - Bill of Rights - Habeas can only be suspended in cases of rebellion/invasion - Can delegate to the President, but must provide intelligible standards + can't violate the Constitution

Minimum Treatment for Interrogation (Law of War)

POWs (Geneva III) 1. No mental/physical coercion 2. Can't be denied treatment ordinarily owed to all POWs to encourage info sharing 3. Can only ask name, rank, "serial number" CIVILIANS 1. Can't detain to prevent threats 2. Can't torture detainees or use them to induce a third party to give up information

Jus Cogens

Peremptory Norms - norms that are so important and universally recognized that they can't be objected to or derogated from Necessary number of adherents: extensive + virtually uniform

Civilian

Persons who are not, or are no longer, members of the armed forces - Can't be targeted UNLESS unlawful combatant - Can't be detained based on group membership - Don't have privilege of participating in hostilities - No shield of immunity

Holder - Standards in Delegation

Power to wage war is the power to wage war successfully Minimal standards in delegation are ok because need to construe delegation in a way that helps it be effective

Terrorism

Premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents

Defensive War Power (Executive)

President has the ability to respond when war is thrust upon the nation Cases: see Prize cases

UN Charter Art. 2(4)

Prohibition of the use of force

Non-International Armed Conflict

Protracted armed violence between a government and an armed group OR between two armed groups

UN Charter Art. 1

Provides for collective measures for prevention and removal of branches of the peace

Standing

REQUIREMENTS: 1. Injury in fact: concrete, particularized, and actual/certainly imminent injury 2. Causal relationship: fairly traceable to the challenged action 3. Redressable by a favorable ruling - Focus on fitness of P to present a case against a particular D, not about merits/substantive issues - NOTE: a lot of foreign affairs decisions to not impact private interests/injuries in the US, so some agencies act without fear of judicial review

Israel Torture Case

Reasonable interrogation is free of cruel, inhumane, or degrading treatment, but it is likely unpleasant. There is no reasonable reason to use shaking, frog crouch, and the shabach position. Necessity defense is not compelling here, but seems to recognize it. - Military necessity lets you do whatever is necessary as long as it is legal

Jus in Bello

Regulates conduct of hostilities; International Humanitarian Law PURPOSES: 1. Protection of civilians and other non-combatants 2. Minimize unnecessary suffering among combatants 3. Enable effective military operations APPLICATION: applies to all parties, not just states that ratified relevant treaties + can't use enemy noncompliance to justify your violations

Habeas Corpus

Right to have neutral magistrate judge the legality of one's imprisonment AVAILABLE TO: 1. Currently in custody under US authority or committed for trial before a court 2. In custody for an act done/omitted due to an act of Congress or order/process/judgment/decree of a US court 3. Custody for violation of Constitution, laws, or treaties 4. Citizens of foreign states in US custody

Rasul

SCOTUS overturning Eisentrager. Lower courts looked constitutional habeas, but there is also statutory habeas. Because the US has de facto control of Guantanamo Bay, extraterritorial application is proper. - Habeas statute gives authority to hear habeas petitions within territorial jurisdiction and makes NO distinction between citizen/alien

Limitations on Congress' War Powers

SUBSANTIVE LIMITS - Non-delegation doctrine - Lovett Principle: acts must not be exercised in a way that would nullify another provision of the Constitution...can't cooperate to violate Constitution - Can't withhold appropriations for constitutionally-mandated activities PROCEDURAL LIMITS - Chadha: To take legislative action that alters legal rights, must act in conformity with Constitution's lawmaking procedures - Cumbersome lawmaking process to slow tyranny

Theories of Presidential Power

Stewardship Theory: every executive officer is a steward of the people, bound actively and affirmatively to do everything they can for the people...do not need explicit authorization Taft Theory: President must find a specific grant of authority for action

Georgia Torture Case

TORTURE: (law of war violation --> violation of law of nations) 1. Severe beatings 2. with intent to harm/terrorize 3. For discrimination purposes 4. Perpetrated by persons in an official capacity CRUEL/INHUMAN/DEGRADING TREATMENT: (violation of customary law) 1. Doesn't rise to the same level 2. Done for different purposes 3. Conduct specifically done with intent to degrade/humiliate - US implementation of torture prohibition does not recognize cruel/inhuman/degrading treatment...we rely on Constitution instead - Army field manual prohibits inhuman treatment through discrete prohibitions - Detainee Treatment Act: shocks the conscience standard + allows techniques that pass 5th Amendment substantive due process standard - Detainees are not protected by Geneva III, but must be treated humanely and "to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva"

Suggested Definition of National Emergency

Temporal: sudden, unforeseen, unknown duration Gravity: dangerous and threatening to well-being Perception: who discerns the phenomenon? Response: requires immediate action

UN Convention Against Torture

Torture - an act causing severe pain or suffering, physical or mental, that is intentional inflicted for particular purposes + act is done with instigation/acquiescence of an official PURPOSES: 1. Obtaining a confession or information 2. Punishment for an act or punishment of a third person 3. Intimidating or coercing the victim or a third person 4. Discrimination Also prohibits cruel, inhuman, or degrading treatment APPLICATION: peace + war

UN Charter Art. 7

UN authority to resolve disputes through Security Council NOTE: SC decisions are binding on members

UN Art. 39

UN can declare threats to peace and security, triggering the ability to take action

National Security

VARIOUS DEFINITIONS: - Protection of the nation from attack or other danger by holding adequate armed forces and guarding state secrets - A collective term encompassing both national defense and foreign relations of the US - Ability to safeguard US interests, including human physical and psychological well-being, by defense and/or proactive actions capable of successfully resisting, defeating, avoiding, and/or preventing hostile and/or destructive action from within or without the US

War Powers Resolution

WPR: Congress attempt to force an end to Vietnam due to frustration about being cut out of decision. EFFECT: President who starts a war on their own can't continue it without Congressional approval/appropriations MECHANISM: - Must consult with congressional leadership where possible - Reporting requirement IF 1. US troops are introduced into hostilities/expected to 2. Placing US troops in a foreign nation that are equipped for combat 3. Numbers that significantly enlarge the number of combat troops in a country - 60 day window for Congress to act, if they don't, hostilities must end SITUATIONS WHEN PRESIDENT CAN START HOSTILITIES: 1. Congress declares war 2. Congress provides EXPRESS statutory authority 3. Responding to an attack on US/armed forces - Congress can immediately terminate US participation by concurrent resolution (NOTE Chadha says this is unconstitutional) ANALYSIS: 1. Is the action offensive, defensive, or rescue in nature? 2. Extent of inter-branch cooperation and how that cooperation is manifested 3. Limitas on authority of each branch to intrude into areas of authority the Constitution vests in their counterparts?

Ireland v. UK

Wall standing, hooding, excessive noise, sleep deprivation, withholding food/water does not rise to the intensity and severity of torture.

Treaty

elevated to status of supreme law of the land by supremacy clause, but can't infringe on constitutional liberties Self-Executing - by signing on to a treaty, it is incorporated into domestic law Non-self-executing - Congress must take additional steps to implement the law Approval of treaties: President negotiates --> sends agreement and supporting documents to the Senate --> 2/3 vote in Senate (can include with/without conditions, understandings, reservations, and amendments) --> President ratifies and communicates with treaty partners NOTE difference with Executive Agreements, which are not presented to the Senate but operate similar to treaties