War Powers

Presidential War Powers

(1) Appointments & Removals (2) Directive Authority: "take care clause"--limited by independent agency insulation and non-delegation doctrine (3) Military Authority: CiC Power (4) Foreign Affairs: recognition; negotiation; termination? (Goldwater)

Limits on Congressional Power

(1) Enumeration/Necessary & Proper (2) Bill of Rights (3) Habeas (4) Bills of Attainder & Ex Poste Facto Laws (see Lovett)

Congress's National Security Powers

(1) Regulate Foreign Commerce (sanctions, embargoes) (2) Naturalization (3) Define and Punish Offenses against Laws of Nations (4) Declare War (5) Letters of Marque and Reprisal (privateering) (6) Rules Concerning Capture (7) Raise & Support Armies (every two years) (8) Provide and Call Forth Militia

To be a POW, Geneva requires:

(1) hold arms openly; (2) wear fixed insignia; (3) follow command hierarchy; and (4) follow the laws of war

Two Ways to Prove Treason

(1) testimony by two eyewitnesses to the same act, or (2) confession in open court

Detention of Non-Citizens Inside U.S.

(al-Marri)—entitled to full due process in civilian courts

Treason Elements

1) levying war against the United States or "adhering" to its enemies, giving them "aid and comfort"; (2) specific intent to betray one's country; and (3) an overt act directed at the objective of treason

United States v. Morrison

793(d) does not require the information to be given to an agent of a foreign government, just any person not authorized to receive it

Hamdan v. Rumsfeld (congressional will)

AGAINST WILL OF CONGRESS President needs congressional authority when determining who is subject to military tribunals

United States v. Farhane

ATTEMPT TO AID FTOS: attempt to provide requires that the defendant has taken substantial steps toward providing material aid to a foreign terrorist organization

Classified Information Procedures Act

Allows courts to prevent the declassification of sensitive information during a criminal trial while preserving its fairness

Common Article 3

Applies even to unlawful combatants Prohibits: (1) violence to life and person; (2) taking hostages; (3) outrages upon personal dignity; and (4) passing of sentences without regularly constituted and fair trial

Totten v. United States

As a general principle, public policy forbids the maintenance of any suit, the trail of which would inevitably lead to disclosure of matters which the law itself regards as confidential

Holder v. Humanitarian Law Project

BENIGN AID TO FTOs: 2239B properly restricts all aid to the terrorist groups, including benign aid, because such aid has the potential to legitimate and assist the terrorist organizations in harming U.S. interests and the govt. has an important and legitimate interest in preventing aid of all sorts to terrorists

United States v. Curtiss-Wright Export Corp.

BROAD CONCEPTION OF EXECUTIVE POWER Challenged delegation of authority to President to ban sale of weapons destined for Bolivia DECISION: The President is the sole organ in the nation's foreign affairs and is only encumbered by a the explicit constraints of the Constitution FOREIGN AFFAIRS: Anything with a direct or specific effect on the situation in another country

United States v. Salerno

Bail Reform Act permitted government to detain individual before trial if govt. could prove that the invidious was potentially dangerous DECISION: No Fifth/Eighth Amendment violations b/c govt. has interest in preventing further crime and promoting community safety that outweighs liberty interest

Murray v. The Schooner Charming Betsy

CANONS OF CONSTRUCTION: NO CONFLICT U.S. law would allow Captain to sell ship's loot, but international custom recognized ship as neutral and therefore not salable DECISION: Laws should be construed not to conflict with international law if any other possible construction remains

United States v. Afshari

CHALLENGE TO FTO DESIGNATION: Because the designation of MEK afforded MEK its own opportunity to challenge its designation as a terrorist organization, the govt. owed no duty to the defendants to separately challenge the designation of MEK as a terrorist org.

United States v. Warsame

CONFIDENTIALITY OF FISA WARRANT: Without some indication that the congressionally mandated FISA procedures were not followed, the government's legitimate interest in maintaining the secrecy of the information contained in FISA applications bars disclosure to the defendant

Little v. Barreme

CONGRESS LIMITS WAR MAKING DECISION: Congress may limit the geography, means, and duration of war

Orlando v. Laird

CONGRESSIONAL ACQUIESCENCE TO WAR Challenge to Vietnam draft b/c Congress had not officially declared war DECISION: The war declaration power of Congress contains a discoverable standard calling for some mutual participation by Congress. The test is whether there is any action by the Congress sufficient to authorize or ratify the military activity in question. HOLDING: The Tonkin Gulf Resolution, subsequent congressional appropriations, and extensions of the draft are sufficient to show congressional support for the war

Al-Bahini v. Obama

CONGRESSIONAL INTENT > INT'L CUSTOM Al-Bahini charged, in part, that the laws of war required his release despite his detention pursuant to the AUMF DECISION: The laws of war have not been implemented domestically and therefore have no limiting effect on clear congressional intent to allow detainment of Mr. Bahini

Campbell v. Clinton

CONGRESSIONAL STANDING Clinton ordered troops into Kosovo and they overstayed the 60 days allowed by War Powers Resolution, congresspersons sued DECISION: The congressmen did not have standing because their votes against authorization for war in the Kosovo were not completely nullified, as they had ample other means to prevent the President from continuing military operations

Reid v. Covert

CONSTITUTION IS SUPREME Covert convicted by military tribunal after murdering husband in England pursuant to agreement DECISION: No agreement with a foreign nation can confer power upon Congress, or any other branch, that is free from the constraints of the Constitution (except if they are accompanying forces in the field)

Hamdan v. Rumsfeld (Treaties)

COURT FINAL INTERPRETOR The Court is the final decider of what the law is, and therefore will interpret international treaties without consideration of the other branches' interpretations

Hamdan v. Rumsfeld

Congress must establish the military commissions, with four preconditions: (1) jxd. only over acts in the are under military rule; (2) offense must be during time of war; (3) if not established under martial law, only available to individuals of the enemy's army; (4) jxd. only for violations of the laws of war or of military orders

Tenet v. Doe

Courts will not hear cases of CIA agents suing the CIA to enforce a contract

Cramer v. United States

Cramer associated himself with two German saboteurs but did not know they were saboteurs OVER ACTS & TREASON: Mere association with enemies of the United States is not enough to convict of treason—there must be an overt act with knowledge that it will aid the enemy

Detroit Free Press v. Ashcroft

DECISION: The government does not have plenary power to exclude the press from administrative hearings RICHMOND NEWSPAPERS TEST: The test for press access is whether (1) there is a tradition or practice of allowing press access to the proceedings in question (defined broadly) and (2) public access plays a significant positive role in the functioning of the particular process in question (balance positive and negative effects of open hearing)

Kawakita v. United States

DUAL CITIZENSHIP & TREASON: American citizens owe an allegiance to their country, and may thus be convicted of treason, no matter where they are, even if they are in a country of which they are also a citizen

United States v. Mehanna

Defendant argued that the govt. did not have sufficient proof to show an intent to join or aid al-Qaeda DECISION: 2339A requires knowledge that the support will aid the completion of the defined crimes; 2339B requires no specific intent, just knowledge org. is an FTO

E.O. 13526

Determines classification based on the threat to national security posed by release of the information II.Three Levels: a. Top Secret: unauthorized disclosure could cause "exceptionally grave damage" b. Secret: "serious damage" to national security c. Confidential: "damage" to national security III. Declassification: at the time of classifying information as confidential, etc., the agency must establish a specific event or date for declassification, up to 25 years in most cases

United States v. Pink (1942)

EXECUTIVE AGREEMETNS ARE SIMILAR TO TREATIES Litvinov Agreement promised return of Russian companies' assets DECISION: Executive agreements have a similar dignity to Treaties and are supreme to state court proceedings regarding int'l matters and recognition of other nations--are they supreme to federal law? Probs not

Arver v. United States

FEDERAL CITIZENSHIP OVER STATE CITIZENSHIP Challenge to congressional power to raise an army without reliance on the states DECISION: Congress's express authority to raise an army supersedes any state citizenship or quota requirements (rejected that practice after Art. of Confed.)

Crosby v. National Foreign Trade Council

FEDERAL PREEMPTION OF STATES Mass. law prohibited state agencies from doing business with companies in Burma, Congress also had Burmese sanctioning legislation DECISION: When either (1) Congress intends federal law to "occupy the field," or (2) state law directly conflicts with federal law, federal law is supreme

New York Times v. United States

FIRST AM. SUPREME: The First Amendment is not subordinate to any executive branch claim that the information published concerns broad notions of national security—there must be a compelling governmental reason for outright prohibiting publication (e.g., info would risk lives of troops or agents)

In re Sealed Case

FISA & CRIMINAL PROSECUTIONS: FISA, as amended in 2001, may be used to collect information for criminal prosecutions because the warrant requirements are close enough to those required for criminal prosecutions when balanced against the government's interest

FISA

FISA governs the collection of "foreign intelligence information" through use of electronic surveillance of a "foreign power" and "agents of a foreign power"

ACLU v. DOJ

FOIA & NAT'L SECURITY EXEMPTION 1: The court will give substantial deference to the government's declarations of what information is and is not classified and the likely harm to national security that would result from its declassification EXEMPTION 3: Government may withhold information provided: (1) the information is specifically exempted from disclosure by statute; and (2) the exempting statute requires exemption in such a manner as to leave no discretion on the issue or establishes particular criteria for withholding or refers to particular types of matters to be withheld

United States v. Abu Ali

FOREIGN INTERROGATIONS: Generally, voluntary statements to foreign law enforcement, even without a Miranda warning, are admissible unless the foreign officials are (1) in a joint venture with, or (2) acting as agents of, United States law enforcement

Dames & Moore v. Regan

GLOSS OF HISTORY To end Iranian Hostage Crisis, President suspended all legal claims against Iran DECISION: The enactment of legislation closely related to the question of the President's authority in a particular case, which demonstrates legislative intent to accord the President's broad discretion, may be considered to "invite" such measures

Seditious Conspiracy

I. 18 U.S.C. § 2384: proscribes two or more persons from conspiring to overthrow or levy war against the United States, oppose by force the execution of U.S. law, or from taking over or destroying U.S. property II. Differences from Treason: (1) no allegiance requirement, (2) no eyewitness requirement; (3) no contemplation of war

Other FOIA Doctrines

I. Presumption of Good Faith: court will presume government's declaration of secrecy is made in good faith and give it substantial weight II. Mosaic Intelligence Theory: bits of data, innocuous on their own, are dangerous together III. Waiver Doctrine: if information requested under FOIA has already been disclosed by other means, the government must release those documents

War Powers Resolution

I. Requires the President to inform congressional leadership ("gang of six") of U.S. involvement in imminent overseas hostilities within 48 hours of deployment II. Congress then has 60 days to approve or disapprove the President's actions and, if no approval is granted, the President has 30 days to remove U.S. forces from the conflict zone

The Paquete Habana

INT'L CUSTOM IS COMMON LAW Dispute over capture of Spanish fishing boat, which int'l custom considered neutral DECISION: Where there is no treaty and no controlling executive or legislative act or judicial decision to the contrary, international custom will be the law of the land resorted to by the courts

United States v. Aref

In criminal cases, courts must: (1) determine whether the information in question is discoverable; (2) whether the state-secrets privilege applies because (a) there is a reasonable danger that compulsion of the evidence will damage national security and (b) the privilege is lodged by the head of the department which has control over the matter; and (3) if privileged, determine if the information is material to the defense of the accused (i.e., useful to bolstering the defense), in which case a summary of relevant information should be provided

Diggs v. Shultz (1972)

LAST IN TIME RULE Congress passed amendment allowing trade with South Africa in violation of Sec. Council sanctions DECISION: Subsequent national law that conflicts with U.S. treaty obligations will be considered an Act of Congress that denounces the nation's obligations to the treaty in that respect

Clark v. Allen

LAST IN TIME RULE Question whether Treaty of Friendship b/w Germany and U.S. still in effect b/c of WWII DECISION: Courts will abide by treaties unless Congress or the President explicitly or implicitly act inconsistent with the treaty

United States v. Lindh

LAWFUL v. UNLAWFUL COMBATANTS Lindh classified as unlawful combatant DECISION: Deference is given to the President's determination of the Geneva Convention's application to a combatant, so long as he obviously does not meet the 4 factors required for privileged belligerents

Zivotofsky v. Kerry (2015)

LIMITS CURTISS-WRIGHT C-W did not hold that the President is free from Congress' lawmaking power in the field of international relations, it merely emphasized the broad discretion CONGRESS may give the President in that field OTHER DECISION: Congress may not intrude on President's explicit authority to recognize other states

Ex Parte Merryman (1861)

LIMITS OF JUDICIAL POWER Lincoln had suspended writ of habeas corpus which was expressly a congressional power DECISION: Though the President improperly suspended the writ, the Court has not power to enforce its decisions and must rely on the executive's decision to comply

Ashcroft v. al-Kidd

MATERIAL WITNESS LAW FBI arrested al-Kidd under Material Witness Law but really just wanted to prevent him from leaving U.S. DECISION: So long as the detention of an individual under the MWL is objectively justified, the true motives of the govt. will not be questioned by the court

United States v. Abdulmutallab

MIRANDA & PUBLIC SAFETY: Agents may ask questions directed at determining any immediate threat to public safety without providing a Miranda warning

Exemptions to 2339A-C

May provide medical or religious materials to FTOs

Dellums v. Bush

Members of Congress challenged H.W.'s authority to enter Gulf War POLITICAL QUESTION: The courts do not lack the power and the ability to make factual and legal determinations on whether the nation's military actions constitute war for purposes of the Constitution's war clause STANDING: Where a plaintiff suffers "unconstitutional deprivations of his constitutional duties and rights ... if the injuries are specific and discernible," a finding of harm sufficient to support standing is justified. RIPENESS: Especially in cases of military and foreign affairs, the courts will be prudent in their use of judicial authority and will wait for all the political branches to exhaust all possible constitutional authorities at their disposal before weighing in

Principles of the Laws of Armed Conflict (Hague Tradition)

Military Necessity: requires attacks to be justified as a means to bring the enemy into submission as soon as possible Humanity (Constraint): prohibits excessive and unnecessary use of force and the humanitarian aid to those no longer actively participating in armed conflict—must avoid WMD and indiscriminate weapon Distinction: requires combatants to distinguish lawful objects of attack and all other persons, places, and things in the battle space (based on nature, location, use, and purpose) Proportionality: combatants must refrain from using an level of force against proper targets that creates unnecessary risk to civilian property and life

United States v. Yousef (2014)

NEXUS REQ. AND EXTRATERRITORIALITY Yousef was arrested and charged with operating an illegal arms trade with Columbian FARC DECISION: To apply federal criminal law extraterritorially consistent with due process, there must be a sufficient nexus between the defendant and the United States, so that such application would not be arbitrary or unfair—however, a defendant waives any objection to said charges if he or she pleads guilty

United States v. Verdugo-Urquidez

NON-CITIZENS ABROAD DECISION: The Fourth Amendment does not protect non-U.S. citizens from unlawful searches and seizures by U.S. agents when overseas

Holtzman v. Schlesinger

NONJUSTICIABILITY OF TACTICAL DECISIONS Challenge to decision to fight in Cambodia as part of Vietnam effort DECISION: The Court lacks the institutional competence to question the tactical decision of the President in how to successfully achieve victory

Bas v. Tingy

PERFECT & IMPERFECT WAR Debate whether ship could be seized by U.S. when it was not officially at war with France DECISION: There need not exist a perfect war, declared by Congress, for another nation to be considered an enemy at least in limited circumstances. Where some external contention by force between some of the members of two nations, authorized by those nations' legitimate powers, there is war.

Prize Cases

PRESIDENT'S DUTY TO CRUSH INSURRECTION Lincoln ordered blockade of southern ports, several ships were captured as a result DECISION: If war be made by invasion or insurrection, the President is not only authorized by bound to resist the use of force with force, without waiting for a special act of Congress

Zadvydas v. Davis

PUNITIVE/PREVENTATIVE DISTINCTION DECISION: Government detention violates due process unless the detention is ordered in a criminal proceeding with adequate procedural protections, or in certain, non-punitive circumstances where a special justification (e.g., community safety) outweighs the individual's constitutionally protected interests

Korematsu v. United States

Permits domestic detention of persons by the executive at least in times of war and not based on actions

In re Neagle

RESCUE DOCTRINE AG assigned U.S. Marshall to protect Justice Field after he received threats. Neagle killed the perpetrator and was charged with murder. DECISION: The Executive's duty to "take care that the laws be faithfully executed" and as Commander in Chief of the Army and navy imparts an implied power to provide for the protection of U.S. citizens and officials at home and abroad

United States v. Rahman

SC & FIRST AM. Challenge to SC law as prior restraint on association and speech DECISON: No restraint on speech b/c Act targets the actual conspiracy to use force, not just advocating for it (which is also unprotected), nor is it overbroad, as the Act targets conspiratorial agreement, not the general expression of disdain

United States v. Rodriguez

SEDITIOUS CONSPIRACY NOT TREASON Rodriguez charged with SC after plotting attack on fed. govt. prisons DECISION: The Seditious Conspiracy Act does not conflict with the treason clause because it does not require allegiance and targets terrorism, not war-like acts or support of enemies of the United States

Medellin v. Texas

SELF-EXECUTING REQUIREMENT President unilaterally complied with ICJ decision, for which Congress had not passed implementing legislation DECISION: The President may only act under authority of a law or the Constitution, and may not act under authority of a non-self-executing treaty until Congress acts to pass legislation executing it

McWade v. Kelly

SPECIAL NEEDS SEARCHES: A search is proper under the special needs doctrine if: (1) a search serves an objective distinct from ordinary evidence gathering; and (2) the search is reasonable considering (a) the weight and immediacy of the government's interest, (b) the nature of the privacy interest allegedly compromised—including if forewarning is given, (c) the character of the intrusion imposed, and (4) the efficacy of the search in advancing the government's interest.

United States v. Richardson

STANDING Richardson requested documents on CIA expenditures DECISION: Must have more than a generalized grievance in the case

El-Masri v. Tenet (E.D. Va. 2006)

STATES SECRET PRIVILEGE CIA declared evidence about Masri's detention was privileged DECISION: States secret privilege is an evidentiary privilege derived from the President's authority over diplomatic and military affairs and belongs exclusively to the Executive Branch

Committee of U.S. Citizens Living in Nicaragua v. Reagan

STATUTES MAY VIOLATE INT'L LAW OR TREATIES U.S. pulled out of ICJ before it ruled that U.S violated treaty obligations DECISION: U.S. law and the Const. may override international law or treaties.

Perkins v. Elg

STATUTORY INTERPRETATION ISSUE: Whether Elg retained citizenship after returning to U.S. from Sweden when Naturalization Convention said one thing and U.S. law another DECISION: Courts will read treaties to make sense with existing policy

Youngstown and "inherent power"

The President does not have inherent power and must rely on either an act of Congress or the Constitution itself

United States v. Reynolds

There is a valid claim of privilege under FRCP 34 when the government fails to disclose classified information in the interest of public safety. The court must determine (1) whether the state-secrets privilege applies because (a) there is a reasonable danger that compulsion of the evidence will damage national security and (b) the privilege is lodged by the head of the department which has control over the matter and (2) if so, whether the suit can proceed without the privileged information.

Smith v. Maryland

Third-Party Records Doctrine: A person does not have a reasonable expectation of privacy over information they voluntarily surrender to a third party whom they know will keep records of such information

United States v. Yousef (2003)

U.S. JXD ABROAD Yousef charged in Manilla for conspiracy to bomb U.S. airliner a. INTERNATIONAL CUSTOM: Int'l custom permits states to exercise jxd. in specific circumstances, namely: i. Protective Principle: allows the U.S. to exercise jurisdiction abroad when the criminalized conduct otherwise threatens U.S. interests ii. Passive Personality Principle: allows jurisdiction over acts that harm U.S. nationals abroad iii. Objective Territorial Principle: allows jurisdiction when the foreign conduct threatens something within U.S. territory iv. Active Personality Principle: allows jurisdiction over U.S. nationals abroad v. Universality Principle: allows jurisdiction over acts by citizens or non-citizens which are universally considered abhorrent to any civilized nation (piracy, war crimes, and crimes against humanity)

New York Times Co v. United States

WAR DETERMINED CASE-BY-CASE Father of American terrorist killed in Yemen challenged lawfulness of drone strike DECISION: To determine whether a conflict exists in a particular area, and which body of humanitarian law applies, the court must consider the entirety of the conflict and its individual characteristics

Lichter v. United States

WAR MAKING POWERS/DELEGATION Challenge to congressional delegation of authority to renegotiate contracts during wartime DECISION: When an Act is a measure intended to contribute to the accomplishment of victory in a declared war, it is likely "necessary and proper" to Congress's lawmaking power and not in violation of the non-delegation doctrine

United States v. United States Dist. Ct.

WARRANT REQ. AG argued he did not need warrant for electronic surveillance of organizations threatening to overturn the govt. DECISION: A warrant must be obtained by the government before eavesdropping on U.S. citizens domestically, even when national security is a concern

United States v. Jones

WHAT IS A SEARCH? Agents attached GPS to Jone's car DECISION: A search is anything that constitutes a trespass on the personal effects of an individual for the purposes of collecting information.

Prosecutor v. DULE

WHEN WAR EXISTS Tardic accused of war crimes in Bosnian, argued war did not legally exist so there could not be war crimes DECISION: Armed conflict exists whenever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups, or between such groups within a state. International humanitarian law applies beyond the cessation of hostilities and until a general conclusion of peace is achieved.

Youngstown Spectrum of Authority

a. HIGHEST: When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for if what he does is unconstitutional it is because the federal government as a whole cannot do what the president did b. MIDDLE: When a President acts under congressional silence, he can only rely on his independent powers - the test of this power relies on the imperatives of events & imponderables c. LOWEST: When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest, for then he must rely only on powers he, alone, has, with no power of Congress counter to it

Privileged Belligerents

a. Privileged Belligerents: those who are lawfully permitted to participate in armed conflict and who can actually claim combatant immunity—(1) must be an international armed conflict and (2) must be fighting under state authority under command, with fixed insignia, open arms, and acting within LOAC

Agent of a Foreign Power (FISA)

an agent, officer, or employee of a foreign power; someone acting on behalf of a foreign power; terrorists in general; WMD dealers in general; U.S. persons must be acting on behalf of a foreign power

Death Sentence for Espionage

available if release of classified information (a) led to death of an agent of the United States, (b) concerned major weapons systems, (c) affected military strategy in time of war, or (d) defense infrastructure generally

18 U.S.C. 2339A

criminalizes provision of material support or resources knowing or intending that they are to be used in carrying out a violation of various enumerated crimes

Espionage Act

criminalizes the (1) possession, receipt, communication, delivery, and transmission of (2) information relating to the national defense with (3) intent or reason to believe that the information could be used to the injury of the United States, or to the advantage of any foreign nation

18 U.S.C. 2339B

criminalizes the action, attempt, or conspiracy to provide support or resources having knowledge that the organization so supported is designated an FTO, or that it engages, or has engaged, in terrorist acts (no requirement that they have intent to aid terrorist activities)

Foreign Intelligence Information

either counterintelligence or protective foreign information that relates to the ability of the United States to protect against any threat to national defense or security, or foreign affairs

Detention of Citizens Outside U.S.

fewer protections granted and may be considered unlawful combatants subject to military detention, but they have a right to challenge their status as an enemy combatant in front of a neutral decisionmaker with a presumption in favor of the government

Foreign Power (FISA)

foreign governments, factions, or any government-controlled entity; and non-state groups engaged in international terrorism, weapons proliferation

Bulk Telephone Metadata

government may collect such data only if it can show—(1) reasonable grounds to believe that the call detail records are relevant to a terrorist investigation, and (2) reasonable articulable suspicion that the specific selection term or telephone number being queried is international terrorism

Detention of Non-Citizens Outside U.S.

i. General Rule—outside the U.S., noncitizens have no constitutional rights ii. Rasul—U.S. Courts can hear the habeas petitions of noncitizen detainees at Gitmo iii. Hamdan—President may not prosecute conspiracy as a war crime and his military commissions were in violation of the Uniform Code of Military Justice and were not otherwise authorized by Congress iv. Boumediene—although Congress stripped the Court of statutory jurisdiction over habeas petitions, the Constitution extended habeas rights to those detainees that the Court could still consider unless Congress explicitly acts to suspend the writ

Detention of Citizens Inside U.S.

i. Milligan: have a right to Article III trial when the government exists in that area, except when the citizen becomes an unlawful belligerent ii. Quirin—the laws of war provide for two classes of enemy combatants: (1) lawful combatants who may be detained as prisoners of war; and (2) unlawful combatants who may not only be detained but also tried by military tribunal for violations of the laws of war iii. Padilla—if the citizen is charged with a crime, his case for unlawful detention as a combatant becomes moot

Stop-and-Frisk Stops

if the officer can point to specific and articulable facts which, taken together with rational inferences, reasonable warrant his or her suspicion of criminal behavior, the officer may temporarily detain the person and even search them for no longer than is necessary to effectuate the purpose of the stop

FISA Warrant Requirements

issued if the FISA judge finds probable cause that the subject of the surveillance is a foreign power or agent of a foreign power and each of the facilities or places to be surveilled or searched are used, or are about to be used, by such parties

Safety & Regulatory Inspections

permissible even without reasonable suspicion of a violation so long as they are based on neutral criteria (e.g., customs searches; sobriety stops)

FISA Amendments (2008)

permits surveillance of non-US persons reasonably believed to be outside the United States; and allows surveillance without a court order when exigent circumstances require

Espionage Act 793(d)

prevents persons with lawful access to classified information from wilfully communicating that information to a person not entitled to receive it

18 U.S.C. 2339C

prohibits financing knowing or intending to carry out enumerated terroristic crimes

UN Charter Art. 2(4)

prohibits the threat or use of military force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations

Military Extraterritorial Jurisdiction Act

provides Article III courts with jurisdiction over non-military civilians accompanying or employed by the Armed Forces

UCMJ Art. 2(10)

provides military jxd. over persons serving with or accompanying armed forces in times or war or contingency operations

UN Charter Art. 51

provides that member states may used armed forces to defend themselves against actual or imminent unlawful threats with a justified and proportionate response

Ker-Frisbie Doctrine

the court does not care how criminals are brought before the court if jurisdiction is proper so long as the methods used do not "shock the conscience"

Armed Conflict Not of an International Character

when a non-state transnational actor is fighting a State or another non-state transnational actor (e.g., United States war on terror)