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2006

National Security Law

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Full-Text Articles in Law

Wrangling In The Shadows: The Use Of United States Special Forces In Covert Military Operations In The War On Terror, Michael Mcandrew Dec 2006

Wrangling In The Shadows: The Use Of United States Special Forces In Covert Military Operations In The War On Terror, Michael Mcandrew

Boston College International and Comparative Law Review

Following the terrorist attacks in the United States on September 11, 2001, the United States Senate granted the use of all necessary and appropriate force to prevent any future acts of international terrorism against the country. As part of this campaign against global terrorism, the United States Department of Defense sought an expanded role for Special Forces soldiers in covert paramilitary operations, a tactical responsibility traditionally within the domain of the CIA. In this Note, the author analyzes the protocol for authorizing covert activity and the ramifications under international law of utilizing formal United States military personnel to conduct such ...


Defining Terrorism: The Evolution Of Terrorism As A Legal Concept In International Law And Its Influence On Definitions In Domestic Legislation, Reuven Young Dec 2006

Defining Terrorism: The Evolution Of Terrorism As A Legal Concept In International Law And Its Influence On Definitions In Domestic Legislation, Reuven Young

Boston College International and Comparative Law Review

This Article examines the evolution of the definition of terrorism at international law and tests the widely held view that international law does not provide a definition of terrorism. It contends that by abstracting from the common elements and themes present in the United Nations General Assembly and Security Council resolutions concerning terrorism, and the multi-lateral anti-terrorism conventions, treaties, and protocols, one can discern a core international law definition of terrorism. The Article then compares this definition to those in the domestic legal systems of the United States, United Kingdom, India, and New Zealand to determine whether (1) international law ...


Burkean Minimalism, Cass R. Sunstein Nov 2006

Burkean Minimalism, Cass R. Sunstein

Michigan Law Review

Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically unambitious; what Burkeans add is an insistence on respect for traditional practices and an intense distrust of those who would renovate social practices by reference to moral or political reasoning of their own. An understanding of the uses and limits of Burkean minimalism helps to illuminate a number of current debates, including those involving substantive due process, the Establishment Clause, and the power of the president to protect national security. Burkean minimalists oppose, and ...


Providing Material Support To Violate The Constitution: The Usa Patriot Act And Its Assault On The 4th Amendment, Christopher Metzler Oct 2006

Providing Material Support To Violate The Constitution: The Usa Patriot Act And Its Assault On The 4th Amendment, Christopher Metzler

North Carolina Central Law Review

No abstract provided.


National Security And The Endangered Species Act: A Fresh Look At The Exemption Process And The Evolution Of Army Environmental Policy, Jason C. Wells Oct 2006

National Security And The Endangered Species Act: A Fresh Look At The Exemption Process And The Evolution Of Army Environmental Policy, Jason C. Wells

William & Mary Environmental Law and Policy Review

No abstract provided.


The Nsa Domestic Surveillance Program: An Analysis Of Congressional Oversight During An Era Of One-Party Rule, Tara M. Sugiyama, Marisa Perry Oct 2006

The Nsa Domestic Surveillance Program: An Analysis Of Congressional Oversight During An Era Of One-Party Rule, Tara M. Sugiyama, Marisa Perry

University of Michigan Journal of Law Reform

On December 16, 2005, the New York Times sounded a fire alarm when it revealed that, in response to the September 11, 2001 attacks, President George W Bush had issued a secret executive order permitting the National Security Agency (NSA) to conduct warrantless surveillance on individuals to unearth nascent terrorist activity. Congress responded to the disclosure of the NSA domestic surveillance program largely by shirking its oversight duties. This Note argues that when a single party controls both the executive and the legislative branches, the fire-alarm model fails to provide sufficient congressional oversight. Short of future elections altering the balance ...


Redefining Torture In The Age Of Terrorism: An Argument Against The Dilution Of Human Rights, Miri Lim Sep 2006

Redefining Torture In The Age Of Terrorism: An Argument Against The Dilution Of Human Rights, Miri Lim

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


A Practitioner's Observations On U.S. Immigration Policy Changes In Response To 9/11 And The War On Terror, Mary E. Pivec Sep 2006

A Practitioner's Observations On U.S. Immigration Policy Changes In Response To 9/11 And The War On Terror, Mary E. Pivec

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Are You A Terrorist Or An American?:An Analysis Of Immigration Lawpost 9/11: Introduction, Mark A. Drumbl Sep 2006

Are You A Terrorist Or An American?:An Analysis Of Immigration Lawpost 9/11: Introduction, Mark A. Drumbl

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Decrypting The Fourth Amendment: Warrantless Nsa Surveillance And The Enhanced Expectation Of Privacy Provided By Encrypted Voice Over Protocol, David Alan Jordan May 2006

Decrypting The Fourth Amendment: Warrantless Nsa Surveillance And The Enhanced Expectation Of Privacy Provided By Encrypted Voice Over Protocol, David Alan Jordan

Boston College Law Review

Information to, from, and about U.S. persons routinely comes into the possession of the National Security Agency (the "NSA") through the lawful warrantless surveillance of foreign persons abroad. The NSA's internal administrative guidelines allow such information to be disseminated to law enforcement if it evinces any criminal conduct on the part of the U.S. person. This information may therefore be used to initiate domestic criminal investigations against U.S. citizens and other protected persons despite the fact that no warrant authorized the initial surveillance. The NSA's guidelines contain no qualification as to the type of criminal ...


Terrorizing Justice: An Argument That Plea Bargains Struck Under The Threat Of "Enemy Combatant" Detention Violate The Right To Due Process, Carl Takei May 2006

Terrorizing Justice: An Argument That Plea Bargains Struck Under The Threat Of "Enemy Combatant" Detention Violate The Right To Due Process, Carl Takei

Boston College Law Review

As part of the War on Terror, the President has detained certain individuals as "enemy combatants"—a form of military detention that is preventive, non-criminal, and of indefinite duration. Some terrorism defendants appear to have pled guilty to criminal charges in order to avoid being detained as enemy combatants. This Note argues that plea bargains induced by threats of enemy combatant detention do not arise from the normal give-and-take of plea bargaining, create serious public policy concerns, and serve no societal interests that could not be served equally well by other means. It therefore concludes that the courts should hold ...


Confidential Informants In National Security Investigations, Daniel V. Ward May 2006

Confidential Informants In National Security Investigations, Daniel V. Ward

Boston College Law Review

Although a body of law has developed around the use of confidential informants in criminal investigations, the role of informants in national security matters is less clearly defined. This Note first examines the limitations on the use of informants in the criminal context that are imposed by the Fourth Amendment, a detailed set of guidelines issued by the Attorney General, and other sources of law. It then turns to the treatment of informants by the major sources of national security law, including the Foreign Intelligence Surveillance Act. Ultimately, this Note concludes that in the national security context, government agents are ...


Bioweapon Impacts On Public Health And The Environment, David Pimentel, Marcia Pimentel Apr 2006

Bioweapon Impacts On Public Health And The Environment, David Pimentel, Marcia Pimentel

William & Mary Environmental Law and Policy Review

No abstract provided.


Beyond Absolutism: Legal Institutions In The War On Terror, Peter Margulies Apr 2006

Beyond Absolutism: Legal Institutions In The War On Terror, Peter Margulies

Law Faculty Scholarship

No abstract provided.


The Rhetoric Of Necessity (Or, Sanford Levinson's Pinteresque Conversation), Kevin Jon Heller Apr 2006

The Rhetoric Of Necessity (Or, Sanford Levinson's Pinteresque Conversation), Kevin Jon Heller

Scholarly Works

It may seem odd to begin a discussion of whether the President should have the power to act extraconstitutionally in times of necessity with a quote from The Dwarves. As I researched this Comment, though, I could not escape the uneasy feeling that I was witnessing what could only be described as a Pinteresque conversation--a conversation in which Professor Levinson and his interlocutors, "while exchanging remarks apparently on a common topic, and using mutually comprehensible vocabulary, are revealed as experiencing a profound failure to communicate with one another." Professor Levinson wants to find a workable balance between constitutional restraints and ...


Implementing The Usa Patriot Act: A Case Study Of The Student And Exchange Visitor Information System (Sevis), Kam C. Wong Mar 2006

Implementing The Usa Patriot Act: A Case Study Of The Student And Exchange Visitor Information System (Sevis), Kam C. Wong

Brigham Young University Education and Law Journal

No abstract provided.


The Need For Closed Circuit Television In Mass Transit Systems, Michael Greenberger Feb 2006

The Need For Closed Circuit Television In Mass Transit Systems, Michael Greenberger

Faculty Scholarship

Closed circuit television video (CCTV) surveillance systems need to be introduced or enhanced in the public areas within United States’ mass transit systems. London’s extensive system was used very successfully in the investigation of the July 2005 terrorist attacks on its subway and bus systems. That effective investigatory use of CCTV is very likely to be a significant deterrence to future terrorist activities on London mass transit. The United States must be prepared in the event of similar attacks on its soil. As roughly twenty times more people travel by mass transit than by air, it is time for ...


Sustainable Development And Terrorism: International Linkages And A Case Study Of Sri Lanka, Sumudu Atapattu Feb 2006

Sustainable Development And Terrorism: International Linkages And A Case Study Of Sri Lanka, Sumudu Atapattu

William & Mary Environmental Law and Policy Review

No abstract provided.


Cia V. Sims: Mosaic Theory And Government Attitude, Christina E. Wells Jan 2006

Cia V. Sims: Mosaic Theory And Government Attitude, Christina E. Wells

Faculty Publications

In CIA v. Sims, the United States Supreme Court held that the CIA could withhold information about controversial government-sponsored psychological experiments in response to Freedom of Information Act (FOIA) requests. The Court reasoned that the requested information would reveal intelligence sources related to national defense, which were specifically protected from disclosure under the National Security Act of 1947. Accordingly, the Court concluded that the CIA could refuse to disclose the information under FOIA Exemption 3, which allows withholding of information “specifically exempted from disclosure by statute.” Numerous scholars assailed Sims, arguing that the Court's broad reading of the National ...


The People's Agent: Executive Branch Secrecy And Accountability In An Age Of Terrorism, Sidney A. Shapiro, Rena I. Steinzor Jan 2006

The People's Agent: Executive Branch Secrecy And Accountability In An Age Of Terrorism, Sidney A. Shapiro, Rena I. Steinzor

Faculty Scholarship

The increase in government secrecy is an important and troubling policy trend. Although the trend predates the 2000 presidential election, the movement towards government secrecy has accelerated dramatically in the Bush Administration. The case for open government is usually based on political principles embraced by the Framers of the U.S. Constitution. This article seeks to bolster these arguments by applying “agency theory” to the question of how much secrecy is too much. While agency theory is most often used to analyze private sector economic relationships, commentators have also applied it to the analysis of methods for holding legislators and ...


Domestic Surveillance And The Constitution, 24 J. Marshall J. Computer & Info. L. 177 (2006), Lawrence Friedman, René M. Landers Jan 2006

Domestic Surveillance And The Constitution, 24 J. Marshall J. Computer & Info. L. 177 (2006), Lawrence Friedman, René M. Landers

The John Marshall Journal of Information Technology & Privacy Law

This article argues that President Bush’s domestic electronic surveillance program is unconstitutional. The program allows the President to order the NSA to conduct surveillance of electronic communications, including communications involving United States citizens, without court order. The authors conclude that the President lacked the statutory or constitutional power to authorize such a program and that the program runs afoul to the letter and the spirit of the constitutional protection against unreasonable searches and seizures embraced by the Fourth Amendment of the United States Constitution. Congress and the President share overlapping constitutional authority in matters of foreign affairs and national ...


The Suffocation Of Free Speech Due To The "Gravity Of Danger" Of Terrorism, Tim Davis Jan 2006

The Suffocation Of Free Speech Due To The "Gravity Of Danger" Of Terrorism, Tim Davis

The Modern American

No abstract provided.


Implications Of The Small V. United States Decision, Anwar K. Malik Jan 2006

Implications Of The Small V. United States Decision, Anwar K. Malik

Kentucky Law Journal

No abstract provided.


Fear, Legal Indeterminacy, And The American Lawyering Culture, Michael Hatfield Jan 2006

Fear, Legal Indeterminacy, And The American Lawyering Culture, Michael Hatfield

Articles

On August 1, 2002, then Assistant Attorney General Jay S. Bybee signed for President Bush a memorandum of law concluding that some torture was not necessarily illegal if the President ordered it. This Essay examines how Bybee could arrive at a conclusion that is fundamentally at odds with both our national moral spirit and our law. In doing so, it cautions American lawyers to recognize the difference between what is "legal" and what is "arguably legal, " and to be aware of their own extra-legal biases when interpreting the law.


In The Service Of Secrets: The U.S. Supreme Court Revisits Totten, 39 J. Marshall L. Rev. 475 (2006), Douglas Kash, Matthew Indrisano Jan 2006

In The Service Of Secrets: The U.S. Supreme Court Revisits Totten, 39 J. Marshall L. Rev. 475 (2006), Douglas Kash, Matthew Indrisano

The John Marshall Law Review

No abstract provided.


When Liberty And Security Collide: Foreign Policy Litigation And The Federal Judiciary, Kirk A. Randazzo Jan 2006

When Liberty And Security Collide: Foreign Policy Litigation And The Federal Judiciary, Kirk A. Randazzo

Kentucky Law Journal

No abstract provided.


Anti-Terrorist Finance In The United Kingdom And United States, Laura K. Donohue Jan 2006

Anti-Terrorist Finance In The United Kingdom And United States, Laura K. Donohue

Michigan Journal of International Law

This Article adopts a two-tiered approach: it provides a detailed, historical account of anti-terrorist finance initiatives in the United Kingdom and United States-two states driving global norms in this area. It then proceeds to a critique of these laws. The analysis assumes-and accepts-the goals of the two states in adopting these provisions. It questions how well the measures achieve their aim. Specifically, it highlights how the transfer of money laundering tools undermines the effectiveness of the states' counterterrorist efforts-flooding the systems with suspicious activity reports, driving money out of the regulated sector, and using inappropriate metrics to gauge success. This ...


The Spy Who Came In From The Cold War: Intelligence And International Law, Simon Chesterman Jan 2006

The Spy Who Came In From The Cold War: Intelligence And International Law, Simon Chesterman

Michigan Journal of International Law

This Article will focus on the narrower questions of whether obtaining secret intelligence-that is, without the consent of the state that controls the information-is subject to international legal norms or constraints, and what restrictions, if any, control the use of this information once obtained. Traditional approaches to the question of the legitimacy of spying, when even asked, typically settle on one of two positions: either collecting secret intelligence remains illegal despite consistent practice, or apparent tolerance has led to a "deep but reluctant admission of the lawfulness of such intelligence gathering, when conducted within customary normative limits.” Other writers have ...


Constitutional Cash: Are Banks Guilty Of Racial Profiling In Implementing The United States Patriot Act?, Cheryl R. Lee Jan 2006

Constitutional Cash: Are Banks Guilty Of Racial Profiling In Implementing The United States Patriot Act?, Cheryl R. Lee

Michigan Journal of Race and Law

This Article begins by comparing the concerns of American racial profiling to current terrorism concerns. Part II is an overview of the Bank Secrecy Act and its role in privacy issues concerning bank customers (as the predecessor to the USA Patriot Act). Here, the value of traditional reporting devices, specifically CTRs and SARs used by banks to alert law enforcement to possible terrorist activities, are discussed and evaluated. The facts suggest these reports have been ineffective in identifying terrorists, and have not only greatly infringed upon First Amendment privacy rights, but also diminished the Fourth Amendment protection against warrant-less searches ...


The Usa Patriot Act: A Policy Of Alienation, Kam C. Wong Jan 2006

The Usa Patriot Act: A Policy Of Alienation, Kam C. Wong

Michigan Journal of Race and Law

This Article provides a brief overview of how Muslims were treated after 9/11. It documents how the USAPA and related measures have been used to monitor, investigate, detain, and deport Muslim U.S. citizens in violation of their civil rights. Of particular importance, is how the life circumstances of the Muslims in America have changed for the worse as a result of zealous enforcement and discriminatory application of the USAPA. In so doing, this Article seeks to provide concrete facts and a rich context to ascertain the implications of 9/11 on American society.