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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
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Criminal Prohibitions on the Publication of Classified Defense Information [October 18, 2010]
"The recent online publication of classified defense documents 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. This report will discuss the statutory prohibitions that may be implicated, including the Espionage Act; the extraterritorial application of such statutes; and the First Amendment implications related to such prosecutions against domestic or foreign media organizations and associated individuals."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2010-10-18
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Criminal Prohibitions on the Publication of Classified Defense Information [September 10, 2010]
"The recent online publication of classified defense documents 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. The 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."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2010-09-10
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Treatment of 'Battlefield Detainees' in the War on Terrorism [April 11, 2002]
After earlier criticism from human rights organizations and many foreign governments regarding the determination that the Geneva Conventions of 1949 do not apply to the detainees held in Cuba, President Bush shifted position with an announcement that Taliban fighters are covered by the 1949 Geneva Conventions, while al Qaeda fighters are not. Taliban fighters are not to be treated as prisoners of war (POW), however, because they reportedly fail to meet international standards as lawful combatants. The decision is not likely to affect the treatment of any of the detainees held at the U.S. Naval Base at Guantanamo Bay, Cuba, and is not likely to quell all of the criticism. The U.N. High Commissioner on Human Rights (UNHCR) and some human rights organizations argue that all combatants captured on the battlefield are entitled to be treated as POWs until an independent tribunal has determined otherwise.
Library of Congress. Congressional Research Service
Elsea, Jennifer
2002-04-11
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Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions [Updated December 11, 2001]
"On November 13, 2001, President Bush signed a Military Order pertaining to the detention, treatment, and trial of certain non-citizens as part of the war against terrorism. [...] The order finds that the effective conduct of military operations and prevention of military attacks make it necessary to detain certain non-citizens and if necessary, to try them 'for violations of the laws of war and other applicable laws by military tribunals.' The unprecedented nature of the September attacks and the magnitude of damage and loss of life they caused have led a number of officials and commentators to assert that the acts are not just criminal acts, they are 'acts of war.' [...] The purpose of this report is to identify some of the legal and practical implications of treating the terrorist acts as war crimes and of applying the law of war rather than criminal statutes to prosecute the alleged perpetrators."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2001-12-11
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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings [March 29, 2011]
"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 summarizes a few notable decisions by federal district courts, which have addressed whether the executive may lawfully detain only persons who are 'part of' Al Qaeda, the Taliban, and affiliated groups, or also those who provide a sufficient degree of support to such entities in their hostilities against the United States and its allies; adopted a functional approach for assessing whether a person is 'part of' Al Qaeda; decided that a preponderance of evidence standard is appropriate for detainee habeas cases, but suggested that a lower standard might be constitutionally permissible, and instructed courts to assess the cumulative weight of evidence rather than each piece of evidence in isolation; determined that Guantanamo detainees have a limited right to challenge their proposed transfer to the custody of a foreign government, but denied courts the authority to order detainees released into the United States; and held that the constitutional writ of habeas does not presently extend to noncitizen detainees held at U.S.-operated facilities in Afghanistan. Finally, the report discusses several criminal cases involving persons who were either involved in the 9/11 attacks (Zacarias Moussaoui) or were captured abroad by U.S. forces or allies during operations against Al Qaeda, the Taliban, and associated entities (John Walker Lindh and Ahmed Ghailani)."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2011-03-29
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Selected Procedural Safeguards in Federal, Military, and International Courts [January 30, 2002]
"Declaring it necessary to bring to justice those responsible for the terrorist attacks on the United States of September 11, 2001, President Bush signed a Military Order (M.O.) authorizing the trial by military commission of certain non-citizens. The order directs the Secretary of Defense to establish the procedural rules for the operation of the military commissions convened pursuant to the M.O. The Department of Defense is reportedly drafting regulations, but few details have been released. In the meantime, there has been much discussion about the procedural safeguards to be applied by the military commissions. The chart that follows compares selected procedural safeguards employed in criminal trials in federal criminal court with parallel protective measures in military general courts-martial, military commissions as authorized under the Military Order of November 13, and, as a possible benchmark of international standards, the Rome Statute of the International Criminal Court."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2002-01-30
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Trying Terrorists as War Criminals [Updated November 28, 2001]
On November 13, 2001, President Bush signed a Military Order pertaining to the detention, treatment, and trial of certain non-citizens in the war against terrorism. The President's Military Order makes it apparent that he plans to treat the attacks as acts of war rather than criminal acts, and to prosecute those responsible as war criminals, trying them by special military commission rather than in federal court. The purpose of this report is to clarify the legal basis for treating the acts as war crimes and the ramifications of applying the law of war rather than criminal statutes to prosecute the perpetrators. The discussion focuses on the trial of alleged terrorists and conspirators by a military commission rather than the federal courts. A longer treatment of the issues in this report and an analysis of other relevant issues, including the Military Order, are contained in CRS Report RL 31191.
Library of Congress. Congressional Research Service
Elsea, Jennifer
2001-11-28
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Race-based Civil Detention for Security Purposes [October 4, 2001]
From the Introduction: "The terrorist attacks of September 11, 2001 dramatically increased awareness of the need for more stringent security measures, but this awareness is tempered with caution against implementing measures that could undermine civil liberties. Because the source of the current foreign threat, there is some concern that measures implemented to fight that threat will have a disproportionate negative effect on innocent Arab-Americans, Muslims, and aliens with ties to the Middle East. The purpose of this report is to address the issues surrounding race-based civil detention for security purposes."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2001-10-04
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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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Palestinians and Amendments to the Anti-Terrorism Act: U.S. Aid and Personal Jurisdiction [March 18, 2020]
From the Introduction and Issues for Congress: "This report provides background information and analysis on two amendments to the Anti-Terrorism Act (ATA, 18 U.S.C. §§ 2331 et seq.): the Anti-Terrorism Clarification Act of 2018 (ATCA, P.L. 115-253), which became law in October 2018; and the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA, § 903 of P.L. 116-94), which became law in December 2019. The report focuses on the impact of this legislation on the following key issues: [1] U.S. aid to the Palestinians. [2] Whether federal courts have personal jurisdiction over the Palestinian Authority (PA) and Palestine Liberation Organization (PLO) for terrorism-related offenses."
Library of Congress. Congressional Research Service
Zanotti, Jim; Elsea, Jennifer
2020-03-18
