New periodicals and law journals, if not commonplace, are still far from unknown. The arrival of this inaugural issue of the Journal of National Security Law & Policy is particularly noteworthy, however, because of the circumstances that have produced it and the need it seeks to address: bringing national security practitioners, lawyers, and scholars into conversation about the evolving relationship between law and national security. It is worth reflecting on the circumstances that make the arrival of this new journal so timely and important.
Secrecy | This issue contributes to the national debate on the use of torture and “enhanced interrogation” techniques from a variety of perspectives.
Two innovative federal crimes, 18 U.S.C. §2339A and §2339B, have been frequently charged in prosecutions since September 11, 2001, becoming key elements in the government’s anti-terrorism efforts. Section 2339A makes it a federal crime knowingly to provide material support or resources4 in preparation for or in carrying out specified crimes of terrorism. Section 2339B prohibits knowingly providing material support to a foreign terrorist organization. These statutes bear some resemblance to criminal liability for complicity, but they are being used like a new kind of conspiracy charge, the familiar “prosecutor’s darling.” Unlike conspiracy, they are framed with a mens rea of knowledge rather than of purpose, and because they are substantive offenses, they can be combined with traditional conspiracy charges. These provisions can be used to impose punishment for conduct remote from the commission of criminal harms, often conduct involving minimal and outwardly non-criminal acts.
Counterintelligence and Access to Transactional Records: A Practical History of USA PATRIOT Act Section 215
The USA PATRIOT Act has sparked intense public debate, with proponents claiming that the Act is a necessarily hard-minded response to a national crisis, while opponents see unwarranted, even opportunistic, expansion of state power. Perhaps no provision of the Act has generated more controversy than §215, which authorizes the FBI to seek a court order compelling the production of “any tangible things” relevant to certain counterintelligence and counterterrorism investigations. Like many other provisions of the USA PATRIOT Act, §215 will expire on December 31, 2005, unless reauthorized by Congress. The controversy, therefore, is likely to intensify over the coming months.
In two cases decided on June 28, 2004, the Supreme Court emphatically upheld the rule of law and the right of those being detained as part of the war on terrorism to have access to the courts. In Rasul v. Bush, the Court held that those being detained in Guantánamo Bay, Cuba are entitled to have a habeas corpus petition heard in federal court. In Hamdi v. Rumsfeld, the Justices declared, by an 8-to-1 margin, that an American citizen apprehended in a foreign country and held as an enemy combatant must be accorded due process, including a meaningful factual hearing on his status.
Alvarez-Machain II: The Supreme Court’s Reliance on the Non-Self-Executing Declaration in the Senate Resolution Giving Advice and Consent to the International Covenant on Civil and Political Rights
Humberto Alvarez-Machain, a Mexican national, was kidnaped in Mexico and brought to the United States at the behest of U.S. Drug Enforcement Administration (DEA) agents for allegedly assisting in the torture and murder of a DEA agent in Mexico. He challenged the jurisdiction of U.S. courts to try him, arguing that his illegal seizure barred the trial. The Supreme Court rejected that contention, holding that “the power of a court to try a person for a crime is not impaired by the fact that he has been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’” This writer was one of the few who supported the Supreme Court’s decision sustaining jurisdiction, arguing that it was consistent both with international law and with the Fourth Amendment.
In comparison with other subjects currently taught at law schools in this country, national security law is relatively new. Traditionally, issues involving the constitutional separation of powers among the respective branches of government, including war powers, were covered within the context of an offering on basic constitutional law. If there were courses that touched on specific legal issues involving national security, they tended to be occasional seminars teaching military justice. These focused almost exclusively on the Uniform Code of Military Justice and the separate criminal legal system that it establishes for men and women in uniform. One such course, first offered at the University of North Carolina Law School almost 50 years ago and later at Duke University Law School, was taught by Robinson O. Everett, then a young faculty member at Duke.
On the afternoon of September 11, 2001, shortly after Air Force One touched down at Offutt Air Force Base, President Bush began a teleconference with senior national security officials by proclaiming, “We’re at war.” The war, the President elaborated, would be “global in nature.” During a meeting of the National Security Council the next day, the principals labored to flesh out the parameters of the conflict. In particular, they discussed a proposal to frame America’s objective not merely as the destruction of al Qaeda but as the “‘elimination of terrorism as a threat to our way of life,’ an aim that would include pursuing other international terrorist organizations in the Middle East.”
A Troubling Equation in Contracts for Government Funded Scientific Research: “Sensitive But Unclassified” = Secret But Unconstitutional
Breakthrough science can lead both to great good and to great evil. The September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon and the anthrax letter attacks that followed highlight the fact that our enemies may use our own advanced science and technology against us. When the dissemination of scientific information might jeopardize national security, the federal government’s primary response has always been to try to control the spread of that information. In a variety of ways, the government has long restricted public access to scientific information in the government’s possession. Since September 11, the government has further tightened access to its own information, withholding from public view not just classified data but also so-called “sensitive” information, the release of which it says could pose a danger to national security.