Category Archives: Vol. 5 No. 1

The War on Terror 10 Years On | A decade after the Sept. 11, 2001 attacks, JNSLP takes a look at key elements of the ensuing War on Terror, including intelligence collection, law enforcement and counterterrorism, counterintelligence, the legacy of US vs. Klein, SHIELD, civil liberties, leaks, and the role of the judiciary.

Teaching National Security Law, Terrorism and Counterterrorism, The Constitution, Vol. 5 No. 1

Why Klein (Still) Matters: Congressional Deception and the War on Terrorism

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No one seriously claims that the Supreme Court’s 1872 decision in United States v. Klein is a model of clarity. Justice Field’s opinion for the Court is as enigmatic as it is intriguing, providing the only pre-2008 example of a Supreme Court decision invalidating an Act of Congress for unconstitutionally depriving the federal courts of jurisdiction. The million dollar question, of course, is why the Court so ruled, and no amount of scholarship, no matter the quality of the analysis or the intellectual abilities of the author, has managed to settle the issue to any meaningful degree. Indeed, even when the Klein “rule” has been deployed by contemporary jurists as a basis for invalidating federal legislation, such efforts have, charitably, failed to persuade. Thus, although virtually all observers agree that Klein bars Congress from commanding the courts to rule for a particular party in a pending case, the question remains whether it stands for any broader constraint on legislative power.

Professor Howard Wasserman’s response to this state of doctrinal, academic, and juridical indeterminacy is to suggest that it conclusively establishes Klein’s insignificance, and that Klein’s importance to the modern Federal Courts canon is really a “myth,” born out of a “false belief that Klein establishes vigorous judicially enforceable constitutional limitations on Congress.”  To be sure, Wasserman does not believe Klein to be devoid of force; rather, he concludes that “[m]ost blatantly Klein violative laws are never enacted; Klein-vulnerable laws that have been enacted raise no meaningful or serious Klein problems and should survive any separation of powers challenge.”

FISA, Teaching National Security Law, Terrorism and Counterterrorism, Vol. 5 No. 1

Constitutional Pathology, the War on Terror, and United States v. Klein

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Many labels have attached to United States v. Klein, the venerable Reconstruction era Supreme Court decision that established some undefined limits on congressional control over federal law and federal courts. It has been called “opaque,” “deeply puzzling,” “disjointed,” “Delphic,” “generally difficult to follow,” “exaggerated,” and “dead wrong.” Klein is a case of substantial significance, although no one really knows how or why. Nevertheless, it has achieved a cult-like following among academics, advocates, and some judges.

In a recent article, I attached a new label to Klein – myth. In this article, I explore the Klein-derived issues in two major pieces of national security legislation enacted as part of the ongoing struggle against terrorism. The first is Section 802 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, which granted retroactive immunity from civil liability to telecommunications providers for assisting the federal government with arguably unconstitutional warrantless domestic surveillance between late 2001 and early 2007. The second is the Military Commissions Act (MCA) of 2006, which in several provisions creates adjudicative mechanisms for dealing with terror suspects and simultaneously limits the scope and manner of judicial involvement in those cases.

In Klein, the Supreme Court struck down an 1870 law governing claims by pardoned southern property owners seeking to recover proceeds in the Court of Claims for property confiscated during the Civil War. The law prohibited any claimant who used an uncontested pardon to establish loyalty to the Union from recovering proceeds; instead, it required that courts treat the pardon as conclusive evidence that the claimant had been disloyal and thus was not entitled to recover. The legislation was intended to limit recovery by disloyal southern property owners (particularly cotton growers, such as the claimant in Klein, who had acted as sureties for Confederate officers). Congress sought not only to undo the lower-court decision in favor of the claimant in Klein (which then was pending onappeal), but also to undo the effects of the Court’s decision holding that receipt of a pardon rendered a property owner innocent in law.

International Law, International Security, Secrecy, Vol. 5 No. 1

Spies Without Borders: International Law and Intelligence Collection

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To the surprise of many, it turns out that Canada’s chief security intelligence agency – the Canadian Security Intelligence Service (CSIS) –may not legally collect covert intelligence abroad. That is at least one interpretation of a Canadian Federal Court decision issued in October 2007, but only released publicly in 2008. At issue was whether the court had the jurisdiction to issue a warrant under the Canadian Security Intelligence Service Act (CSIS Act) in investigations concerning Canadians taking place overseas. CSIS had sought the warrant because the targets of the investigations, as Canadians, potentially enjoyed privacy rights under Canada’s constitutional bill of rights, the Canadian Charter of Rights and Freedoms.

Faced with this conundrum, there were two plausible courses of action open to the court. First, it could have concluded that the CSIS Act’s warrant provisions extended only as far as authorizing searches and seizures in Canada. While this approach would have left open the question whether constitutional rules applied to CSIS’s extraterritorial conduct, it would have allowed the court to avoid the incongruity of a Canadian court “legally” authorizing an invasion of privacy taking place in a foreign jurisdiction whose own laws would probably be violated by the action.

Second, the court could have reached even further and concluded that CSIS itself has no statutory authorization to conduct extraterritorial investigations, pursuant to its core, statutory mission to collect intelligence relating to threats to the security of Canada. This approach would avoid the constitutional question entirely, but with the consequence of greatly limiting the scope of CSIS’s basic jurisdictional competence.