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U.S. Nationals and Foreign Military Service [March 28, 2022]
From the Background: "International law grants rights to and imposes duties upon a neutral state during an armed conflict between belligerent nations. One of these duties is that neutral states shall not furnish troops to belligerent states, except this duty does not include independent actions by a neutral state's citizens. A state's neutrality is usually unaffected if its citizens willingly serve in a belligerent state's armed forces. International law permits such service, but a state's internal law may prohibit it. U.S. nationals (including both citizens and other persons owing allegiance to the United States (8 U.S.C. [United States Code] §1101)) have performed foreign military service at various times since 1788. This In Focus examines the laws governing U.S. national foreign military service during armed conflicts."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Gaffney, Jonathan M.; Ott, Alan
2022-03-28
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War Crimes: A Primer [March 15, 2022]
From the the Document: "The Russian invasion [hyperlink] of Ukraine has given rise [hyperlink] to numerous accusations [hyperlink] of war crimes [hyperlink]. This Legal Sidebar addresses the sources and content of the law of war, also known as the law of armed conflict or international humanitarian law (IHL) as it pertains to war crimes that occur in an international armed conflict. IHL applies to the conduct of war; it does not address the legality of the war itself [hyperlink]. For information about potential accountability for war crimes in international tribunals, see CRS Legal Sidebar LSB10704, The Role of International Tribunals in the Response to the Invasion of Ukraine, by Nina M. Hart and Stephen P. Mulligan [hyperlink]."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2022-03-15
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Toward the Creation of a U.S. 'Space Force' [August 16, 2018]
"For over two decades, the U.S. Government Accountability Office (GAO) and others have found that fragmentation and overlap in national security space acquisition management and oversight have contributed to program delays and cancellations, cost increases, and inefficient operations. Congress has attempted numerous organizational and acquisition reforms to address these problems. In the view of many observers, these efforts have generally been unsuccessful. In addition to these perceived managerial deficits, Congress has more recently expressed concern over the slow pace with which the Department of Defense (DOD) and the Air Force have addressed the growing threat to U.S. national security in space from adversaries, particularly Russia and China, and to a lesser extent North Korea and Iran. Some in the military and elsewhere now increasingly refer to space as a 'warfighting domain'; once seen as peaceful and uncontested, space is now viewed as crowded and adversarial."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Kapp, Lawrence; McInnis, Kathleen J.
2018-08-16
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Recent U.S. Airstrikes: Legal Authorities and Questions [January 8, 2020]
From the Document: "Recent U.S. airstrikes in Iraq and Syria have raised legal questions concerning the scope of the President's power to use force against Iran and Iran-backed organizations. In late December, U.S. forces conducted airstrikes against five facilities in Iraq and Syria used by Kata'ib Hizbollah--an entity with ties to Iran designated by the Department of State as a foreign terrorist organization. According to a Department of Defense (DOD) statement, the strikes came in response to attacks on military bases in Iraq that host U.S. forces engaged in the campaign to defeat the Islamic State. [...] This Sidebar examines the President's domestic legal authority to initiate military action under the two sources cited in the National Security Advisor's statement: the Constitution and the 2002 authorization for use of military force related to Iraq (2002 AUMF). Although not discussed in O'Brien's statement, this Sidebar also examines the implications of the ban on assassinations in Executive Order 12333 as well as the international legal framework governing the strikes."
Library of Congress. Congressional Research Service
Mulligan, Stephen P.; Elsea, Jennifer
2020-01-08
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Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information [Updated March 7, 2017]
From the Summary: "Recent unauthorized disclosures of information concerning activities in the White House, and the publication of large quantities of classified information by WikiLeaks and other organizations and news outlets, have prompted congressional interest in criminal prohibitions on disclosure of classified information. While some have described recent leaks of classified information as 'illegal' and 'criminal,' there is no single statute that criminalizes any unauthorized disclosure of classified information. Instead, the legal framework is based on a complex and often overlapping set of statutes with provisions that differ depending on, among other factors, what information was disclosed, to whom it was given, and the intentions of the discloser. This report identifies statutory prohibitions that may be implicated by the unauthorized release of classified information, and it examines the elements necessary to secure a conviction under the Espionage Act and applicable statutes."
Library of Congress. Congressional Research Service
Mulligan, Stephen P.; Elsea, Jennifer
2017-03-07
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Updated: Recent U.S. Airstrikes: Legal Authorities and Questions [Updated February 18, 2020]
From the Document: "'The Trump Administration has reported to Congress a 'change in application of the existing legal and policy frameworks' regarding the use of military force, which presented the following legal justification for the January airstrikes: Article II of the United States Constitution, empowers the President, as Commander in Chief, to direct the use of military force to protect the Nation from an attack or threat of imminent attack and to protect important national interests. Article II thus authorized the President to use force against forces of Iran, a state responsible for conducting and directing attacks against United States forces in the region.' [...] This Sidebar examines the President's domestic legal authority to initiate military action under the two sources cited in the National Security Advisor's statement: the Constitution and the 2002 authorization for use of military force related to Iraq (2002 AUMF). Although not discussed in O'Brien's statement, this Sidebar also examines the implications of the ban on assassinations in Executive Order 12333 as well as the international legal framework governing the strikes."
Library of Congress. Congressional Research Service
Mulligan, Stephen P.; Elsea, Jennifer
2020-02-18
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State Secrets Privilege: National Security Information in Civil Litigation [April 28, 2022]
From the Document: "he Supreme Court of the United States has long recognized a common law government privilege against the disclosure of state and military secrets in civil litigation known as the 'state secrets privilege.' The United States has invoked this privilege in two broad categories of cases. [...] This report presents an overview of the protections afforded by the state secrets privilege, a discussion of some of the many unresolved issues associated with the privilege, and a selection of high-profile examples of how the privilege has been applied in practice. The report also describes some considerations for Congress."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Liu, Edward C.
2022-04-28
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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court [March 8, 2017]
From the Document: "On January 31, 2017, President Donald J. Trump announced the nomination of Judge Neil M. Gorsuch of the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) to fill the vacancy on the Supreme Court of the United States created by the death of Justice Antonin Scalia in 2016. Judge Gorsuch was appointed to the Tenth Circuit by President George W. Bush in 2006. The Tenth Circuit's territorial jurisdiction covers Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming, and parts of Yellowstone National Park that extend into Idaho and Montana. […] This report provides an overview of Judge Gorsuch's jurisprudence and discusses how the Supreme Court might be affected if he were to succeed Justice Scalia. In particular, the report focuses on those areas of law where Justice Scalia can be seen to have influenced the High Court's approach to particular issues or provided a fifth and deciding vote on the Court, with a view toward how the nominee might approach those same issues. The report begins by discussing the nominee's views on two cross-cutting issues-the role of the judiciary and statutory interpretation. It then addresses fourteen separate areas of law, arranged in alphabetical order, from 'administrative law' to 'takings.' The report includes a table that notes the cases where the Supreme Court has reviewed majority opinions written or joined by Judge Gorsuch. Another set of tables in this report analyzes the nominee's concurrences and dissents and those of his colleagues on the Tenth Circuit."
Library of Congress. Congressional Research Service
Nolan, Andrew; Lewis, Caitlain Devereaux; Manuel, Kate . . .
2017-03-08
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Abu Zubaydah and the State Secrets Doctrine [June 16, 2022]
From the Document: "Zayn Al-Abidin Muhammad Husayn (also known as Abu Zubaydah) is a detainee at the U.S. Naval Station at Guantanamo Bay, Cuba. He was also the first suspected Al Qaeda detainee rendered [hyperlink] into Central Intelligence Agency (CIA) custody at various 'black sites' abroad for interrogation, including 'Detention Site Blue,' allegedly in Poland, from December 2002 to September 2003. He sought depositions from two former CIA contractors who helped devise the CIA's 'Enhanced Interrogation Program,' for submission to prosecutors in Krakow, Poland, to use in a criminal investigation of Polish officials' alleged complicity in the claimed unlawful detention and torture of Abu Zubaydah. The district court granted the application, and the United States filed a motion to intervene and to quash the subpoenas, citing, among other things, the state secrets privilege. On March 3, 2022, the Supreme Court upheld [hyperlink] the government's assertion of the state secrets privilege and dismissed Abu Zubaydah's suit."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2022-06-16
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Defense Primer: President's Constitutional Authority with Regard to the Armed Forces [Updated December 29, 2021]
From the Document: "The Constitution makes the President Commander in Chief of the Armed Forces, but does not define exactly what powers he may exercise in that role. Nor does it explain the extent to which Congress, using its own constitutional powers, may influence how the President commands the Armed Forces. Separation-of-powers debates arise with some frequency regarding the exercise of military powers. Early in the nation's history, Alexander Hamilton wrote in 'The Federalist', No. 69, that the Commander in Chief power is 'nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy.' Concurring in that view in 1850, the Supreme Court in 'Fleming v. Page' stated, '[The President's] duty and his power are purely military. As Commander in Chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2021-12-29
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [September 15, 2009]
"After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called 'Combatant Status Review Tribunals' (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue relief in federal court by seeking a writ of habeas corpus. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. […]. In March 2009, the Obama Administration announced a new definitional standard for the government's authority to detain terrorist suspects, which does not use the phrase 'enemy combatant' to refer to persons who may be properly detained. The new standard is similar in scope to the 'enemy combatant' standard used by the Bush Administration to detain terrorist suspects. The standard would permit the detention of members of the Taliban, Al Qaeda, and associated forces, along with persons who provide 'substantial support' to such groups, regardless of whether such persons were captured away from the battlefield in Afghanistan. Courts that have considered the Executive's authority to detain under the AUMF and law of war have reached differing conclusions as to the scope of this detention authority."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Thomas, Kenneth R.; Garcia, Michael John
2009-09-15
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [Updated April 7, 2009]
This report discusses past and recent developments of habeas corpus challenges in Federal Court. "In March 2009, the Obama Administration announced a new definitional standard for the government's authority to detain terrorist suspects, which does not use the phrase "enemy combatant" to refer to persons who may be properly detained. The new standard is similar in scope to the "enemy combatant" standard used by the Bush Administration to detain terrorist suspects. The standard would permit the detention of members of the Taliban, Al Qaeda, and associated forces, along with persons who provide "substantial support" to such groups, regardless of whether such persons were captured away from the battlefield in Afghanistan."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Thomas, Kenneth R.; Garcia, Michael John
2009-04-07
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [January 29, 2009]
From the Document: "After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called 'Combatant Status Review Tribunals' (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue relief in federal court by seeking a writ of habeas corpus. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. [...] This report provides an overview of the CSRT procedures; summarizes selected court cases related to the detentions and the use of military commissions; discusses the Detainee Treatment Act, as amended by the Military Commissions Act of 2006, analyzing its effects on detainee-related litigation in federal court; and discusses the Supreme Court's decision in Boumediene and possible effects upon legal challenges raised by detainees. The report summarizes pending legislation and provides an analysis of relevant constitutional issues that may have some bearing on Congress's options with respect to detainees held at Guantanamo and elsewhere."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Thomas, Kenneth R.; Garcia, Michael John
2009-01-29
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Military Commissions Act of 2006: Background and Proposed Amendments [September 8, 2009]
From the Summary: "This report provides a background and analysis of military commissions rules under the MCA. After reviewing the history of the implementation of military commissions in the 'global war on terrorism,' the report provides an overview of the procedural safeguards provided in the MCA. The report identifies pending legislation, including Senate-passed S. 1390, and describes proposals suggested by the Obama Administration. Finally, the report provides two charts comparing the MCA with proposed legislation. The first chart describes the composition and powers of the military tribunals, as well as their jurisdiction. The second chart, which compares procedural safeguards under the MCA with those established for courts-martial as well as proposed amendments to the MCA, follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts, to facilitate comparison with safeguards provided in federal court and international criminal tribunals."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2009-09-08
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Private Security Contractors in Iraq and Afghanistan: Legal Issues [January 7, 2010]
"This report discusses the legal framework that applies to Private Security Contractors (PSCs) in Iraq and Afghanistan. After presenting a general description of the types of law applicable, including international humanitarian law and relevant status of forces agreements, the report addresses some implications of international law and a multilateral proposal for the adoption of international 'best practices' regarding the use of PSCs. The report follows up with a discussion of jurisdiction over PSC personnel in U.S. courts, whether federal or military courts, identifying possible means of prosecuting contractor personnel who are accused of violating the law overseas in the context of U.S. military operations, including a listing of known cases that have occurred or are pending. Finally, the report briefly discusses the possible implication of the roles of private security contractors with respect to inherently governmental functions."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2010-01-07
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Satellite Surveillance: Domestic Issues [February 1, 2010]
"Reconnaissance satellites, first deployed in the early 1960s to peer into denied regions of the Soviet Union and other secretive enemy states, have from time to time been used by civilian agencies of the federal government to assist with mapping, disaster relief, and environmental concerns. These uses have been coordinated by the Civil Applications Office at the U.S. Geological Survey, a component of the Interior Department. Post 9/11, the Bush Administration sought to encourage use of satellite-derived data for homeland security and law enforcement purposes, in addition to the civil applications that have been supported for years. In 2007, it moved to transfer responsibility for coordinating civilian use of satellites to the Department of Homeland Security. The initiative was launched, however, apparently without notification of key congressional oversight committees. Members of Congress and outside groups raised concerns that using satellites for law enforcement purposes may infringe on the privacy and Fourth Amendment rights of U.S. persons. Other commentators questioned whether the proposed surveillance will violate the Posse Comitatus Act or other restrictions on military involvement in civilian law enforcement, or would otherwise exceed the statutory mandates of the agencies involved."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Best, Richard A.
2010-02-01
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Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court [January 26, 2010]
"The Obama Administration's decision to try certain detainees and other terrorist suspects in federal criminal court, including those accused of conspiring to commit the 9/11 terrorist attacks and the man arrested after a failed aircraft bombing on Christmas Day, 2009, and to try other detainees by military commission, has focused attention on the procedural differences between trials in federal court and those conducted under the Military Commissions Act (MCA), as recently amended. Some who are opposed to the decision argue that bringing detainees to the United States for trial poses a security threat and risks disclosing classified information, or could result in the acquittal of persons who are guilty. Others have praised the decision as recognizing the efficacy and fairness of the federal court system and have voiced confidence in the courts' ability to protect national security while achieving justice that will be perceived as such among U.S. allies abroad. Some continue to object to the planned trials of detainees by military commission, despite the amendments Congress enacted as Title XVIII of the National Defense Authorization Act for Fiscal Year 2010, P.L. 111-84, because they say it demonstrates a less than full commitment to justice or that it casts doubt on the strength of the government's case against those detainees. Four bills have been introduced in the House of Representatives to require military commission trials for certain classes of suspected terrorists or to authorize their detention: H.R. 4111, H.R. 4463, H.R. 4415, and H.R. 4127. One bill in the Senate, S. 2943, would require the Attorney General to consult with the Director of National Intelligence as well as the Secretaries of Defense and Homeland Security prior to proceeding against a terrorism suspect in the criminal justice system."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2010-01-26
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Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications [March 17, 2011]
From the Summary: "This report provides historical background on the enactment of declarations of war and authorizations for the use of force and analyzes their legal effects under international and domestic law. It also sets forth their texts in two appendices. The report includes an extensive listing and summary of statutes that are triggered by a declaration of war, a declaration of national emergency, and/or the existence of a state of war. The report concludes with a summary of the congressional procedures applicable to the enactment of a declaration of war or authorization for the use of force and to measures under the War Powers Resolution. The report will be updated as circumstances warrant."
Library of Congress. Congressional Research Service
Grimmett, Richard F.; Elsea, Jennifer
2011-03-17
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Closing the Guantanamo Detention Center: Legal Issues [March 28, 2011]
"Following the terrorist attacks of 9/11, Congress passed the Authorization to Use Military Force (AUMF), which granted the President the authority 'to use all necessary and appropriate force against those ... [who] planned, authorized, committed, or aided the terrorist attacks' against the United States. Many persons subsequently captured during military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention and possible prosecution before military tribunals. Although nearly 800 persons have been held at Guantanamo at some point since early 2002, the substantial majority of Guantanamo detainees have ultimately been transferred to another country for continued detention or release. Those detainees who remain fall into three categories: (1) persons placed in non-penal, preventive detention to stop them from rejoining hostilities; (2) persons who face or are expected to face criminal charges; and (3) persons who have been cleared for transfer or release, whom the United States continues to detain pending transfer. Although the Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees may seek habeas corpus review of the legality of their detention, several legal issues remain unsettled."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John; Mason, R. Chuck
2011-03-28
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Closing the Guantanamo Detention Center: Legal Issues [February 11, 2011]
"The closure of the Guantanamo detention facility raises a number of legal issues with respect to the individuals formerly interned there, particularly if those detainees are transferred to the United States. The nature and scope of constitutional protections owed to detainees within the United States may be different from the protections owed to aliens held abroad. The transfer of detainees to the United States may also have immigration consequences. This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought into the country. It also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions)."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John; Mason, R. Chuck
2011-02-11
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Criminal Prohibitions on the Publication of Classified Defense Information [January 10, 2011]
"The recent online publication of classified defense documents and diplomatic cables by the organization WikiLeaks and subsequent reporting by the New York Times and other news media have focused attention on whether such publication violates U.S. criminal law. The Attorney General has reportedly stated that the Justice Department and Department of Defense are investigating the circumstances to determine whether any prosecutions will be undertaken in connection with the disclosure. This report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2011-01-10
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Satellite Surveillance: Domestic Issues [January 13, 2011]
"Reconnaissance satellites, first deployed in the early 1960s to peer into denied regions of the Soviet Union and other secretive enemy states, have from time to time been used by civilian agencies of the federal government to assist with mapping, disaster relief, and environmental concerns. These uses have been coordinated by the Civil Applications Office at the U.S. Geological Survey, a component of the Interior Department. Post 9/11, the Bush Administration sought to encourage use of satellite-derived data for homeland security and law enforcement purposes, in addition to the civil applications that have been supported for years. In 2007, it moved to transfer responsibility for coordinating civilian use of satellites to the Department of Homeland Security. The initiative was launched, however, apparently without notification of key congressional oversight committees. Members of Congress and outside groups raised concerns that using satellites for law enforcement purposes may infringe on the privacy and Fourth Amendment rights of U.S. persons. Other commentators questioned whether the proposed surveillance will violate the Posse Comitatus Act or other restrictions on military involvement in civilian law enforcement, or would otherwise exceed the statutory mandates of the agencies involved. Such concerns led Congress to preclude any funds in the Consolidated Appropriations Act, 2008 (H.R. 2764, P.L. 110-161), from being used to 'commence operations of the National Applications Office ... until the Secretary [of the Department of Homeland Security] certifies that these programs comply with all existing laws, including all applicable privacy and civil liberties standards, and that certification is reviewed by the Government Accountability Office.' (Section 525.) Similar language has been included in a subsequent Continuing Appropriations Act (P.L. 110-329) approved in September 2008."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Best, Richard A.
2011-01-13
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Samantar v. Yousef: The Foreign Sovereign Immunities Act and Foreign Officials [January 11, 2011]
"On June 1, 2010, the U.S. Supreme Court decided unanimously in Samantar v. Yousef that the Foreign Sovereign Immunities Act (FSIA), which governs the immunity of foreign states in U.S. courts, does not apply in suits against foreign officials. The ruling clarifies that officials of foreign governments, whether present or former, are not entitled to invoke the FSIA as a shield, unless the foreign state is the real party in interest in the case. Samantar's particular facts involve the Alien Tort Statute (ATS) and the Tort Victims Protection Act (TVPA), but the ruling applies to all causes of action against foreign officials. The ruling leaves open the possibility that foreign officials have recourse to other sources of immunity or other defenses to jurisdiction or the merits of a lawsuit, such as foreign sovereign immunity under the common law, perhaps aided by State Department suggestions of immunity. The Court also left open the possibility that Congress could enact new provisions to address the immunity of foreign officials. Prior to the Samantar decision, most federal judicial circuits interpreted the FSIA to cover foreign officials as 'agencies or instrumentalities' of the foreign state based on their interpretation that Congress had intended to fully codify the common law of foreign sovereign immunity. To the extent the FSIA exceptions codify sovereign immunity of states under the common law, as in the case of lawsuits based on commercial activity under the restrictive theory, the recognition of a separate theory of immunity for foreign officials may not yield results significantly different from those cases in which courts applied the FSIA. The same common law considerations some courts previously applied to determine whether a foreign official is an 'agency or instrumentality' under the FSIA would likely lead to similar results where the common law is applied directly. However, where Congress enacts exceptions to the FSIA that depart from the common law, outcomes may vary from cases decided under the pre-Samantar approach."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2011-01-11
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Protection of Classified Information: The Legal Framework [January 10, 2011]
"The publication of secret information by WikiLeaks and multiple media outlets has heightened interest in the legal framework that governs security classification, access to classified information, agency procedures for preventing and responding to unauthorized disclosures, and penalties for improper disclosure. Classification authority generally rests with the executive branch, although Congress has enacted legislation regarding the protection of certain sensitive information. While the Supreme Court has stated that the President has inherent constitutional authority to control access to sensitive information relating to the national defense or to foreign affairs, no court has found that Congress is without authority to legislate in this area. This report provides an overview of the relationship between executive and legislative authority over national security information, and summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2011-01-10
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [April 05, 2010]
"After the Supreme Court held that federal courts have jurisdiction under the federal habeas corpus statute to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the conflict against Al Qaeda and associated groups (Rasul v. Bush), the Pentagon established administrative hearings, called 'Combatant Status Review Tribunals' (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue habeas relief in federal court. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. […]This report provides an overview of the early judicial developments and the establishment of CSRT procedures; summarizes selected court cases related to the detentions and the use of military commissions; and discusses the Detainee Treatment Act, as amended by the Military Commissions Act of 2006 and the Military Commissions Act of 2009, analyzing its effects on detainee-related litigation in federal court. The report summarizes the Supreme Court's decision in Boumediene invalidating Congress's efforts to revoke the courts' habeas jurisdiction, and discusses some remaining issues and subsequent developments."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2010-04-05
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [February 3, 2010]
"After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called 'Combatant Status Review Tribunals' (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue relief in federal court by seeking a writ of habeas corpus. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. [...] In March 2009, the Obama Administration announced a new definitional standard for the government's authority to detain terrorist suspects, which does not use the phrase 'enemy combatant' to refer to persons who may be properly detained. The new standard is similar in scope to the 'enemy combatant' standard used by the Bush Administration to detain terrorist suspects. The standard would permit the detention of members of the Taliban, Al Qaeda, and associated forces, along with persons who provide 'substantial support' to such groups, regardless of whether such persons were captured away from the battlefield in Afghanistan. Courts that have considered the Executive's authority to detain under the AUMF [Authorization to Use Military Force] and law of war have reached differing conclusions as to the scope of this detention authority. In January 2010, a D.C. Circuit panel held that support for or membership in an AUMF-targeted organization may constitute a sufficient ground to justify military detention."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2010-02-03
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Alien Tort Statute: Legislative History and Executive Branch Views [October 2, 2003]
"The Alien Tort Statute (ATS), also known as the Alien Tort Claims Act (ACTA), provides that 'district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.' The Second Circuit's 1980 decision in Filartiga v. Pena- Irala, a case involving torture and wrongful death that occurred in Paraguay, opened the door for the use of the ATS for aliens to assert jurisdiction in federal court for human rights violations and other violations of international law. Since 1980, the ATS has been asserted in numerous cases, with varying success, involving issues ranging from environmental torts and expropriation to torture and genocide. While human rights advocates and plaintiffs' lawyers may see great promise in the ATS as a way to vindicate human rights worldwide, others warn that it could easily spiral out of control, resulting in a deluge of foreign cases in federal courts, to the possible detriment of U.S. foreign policy interests. Of particular concern to many is the apparent rise in litigation against U.S. companies operating abroad that are accused of complicity in human rights abuses committed by the governments of their host countries. […]. The report provides a historical overview of court decisions interpreting the ATS, followed by an overview of the positions taken by the U.S. government in published opinions of the Attorney General and in court briefs related to ATS claims."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2003-10-02
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Criminal Prohibitions on the Publication of Classified Defense Information [December 6, 2010]
"The recent online publication of classified defense documents and diplomatic cables by the organization WikiLeaks and subsequent reporting by the New York Times and other news media have focused attention on whether such publication violates U.S. criminal law. The Attorney General has reportedly stated that the Justice Department and Department of Defense are investigating the circumstances to determine whether any prosecutions will be undertaken in connection with the disclosure. This report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2010-12-06
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Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court [April 6, 2010]
"The Obama Administration's decision to try certain detainees and other terrorist suspects in federal criminal court, including those accused of conspiring to commit the 9/11 terrorist attacks and the man arrested after a failed aircraft bombing on Christmas day, and to try other detainees by military commission, has focused attention on the procedural differences between trials in federal court and those conducted under the Military Commissions Act, as recently amended. Some who are opposed to the decision argue that bringing detainees to the United States for trial poses a security threat and risks disclosing classified information, or could result in the acquittal of persons who are guilty. Others have praised the decision as recognizing the efficacy and fairness of the federal court system and have voiced confidence in the courts' ability to protect national security while achieving justice that will be perceived as such among U.S. allies abroad. [...] This report provides a brief summary of legal issues raised by the choice of forum for trying accused terrorists and a table comparing selected military commissions rules under the Military Commissions Act, as amended, to the corresponding rules that apply in federal court."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2010-04-06
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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings [April 1, 2010]
"As part of the conflict with Al Qaeda and the Taliban, the United States has captured and detained numerous persons believed to have been part of or associated with enemy forces. Over the years, federal courts have considered a multitude of petitions by or on behalf of suspected belligerents challenging aspects of U.S. detention policy. Although the Supreme Court has issued definitive rulings concerning several legal issues raised in the conflict with Al Qaeda and the Taliban, many others remain unresolved, with some the subject of ongoing litigation. This report discusses major judicial opinions concerning suspected enemy belligerents detained in the conflict with Al Qaeda and the Taliban. The report addresses all Supreme Court decisions concerning enemy combatants. It also discusses notable circuit court opinions addressing issues of ongoing relevance to U.S. detention policy. The report also addresses a few notable decisions by federal district courts that are the subject of ongoing habeas litigation. Finally, it describes a few federal court rulings in criminal cases involving persons who were either involved in the 9/11 attacks or were captured abroad by U.S. forces during operations against Al Qaeda, the Taliban, and associated entities."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2010-04-01
