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Can the Department of Defense Build the Border Wall? [January 10, 2019]
"This Sidebar provides an overview of the NEA [National Emergencies Act] ; the military construction authorities available in the event of a declared emergency that the Administration may rely upon to deploy border fencing; and other statutory authorities that may provide the DOD with the authority to engage in certain construction operations. The Sidebar also discusses the availability of judicial review of a decision to invoke such authorities, along with critical questions that would arise in litigation over the lawfulness of a DOD border fencing project. Because the NEA and related military construction authorities do not appear to have been employed to construct barriers along the U.S. border, the invocation of such authorities for that purpose would raise a variety of novel legal issues, including (1) the circumstances in which conditions along the border rise to the level of a 'national emergency' that 'requires use of the armed forces,' and the circumstances in which military construction is 'necessary to support such use of the armed forces'; (2) the meaning of the term 'military construction' in the MCCA [Military Construction Codification Act] ; (3) how a court would review different segments of border wall construction; and (4) the relationship between military construction authorities and various other federal laws and constitutional considerations that shape the manner in which federal agencies carry out construction projects."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.; Liu, Edward C.; Sykes, Jay B.
2019-01-10
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Definition of National Emergency under the National Emergencies Act [March 1, 2019]
From the Document: "States and various organizations have filed a number of lawsuits challenging President Trump's proclamation of a national emergency in order to secure funding for the construction of physical barrier along the U.S. southern border. The lawsuits assert that no national emergency exists and that the President has overstepped his authority. Some observers are concerned that the declaration of a national emergency under present circumstances will set a precedent for future presidents to declare national emergencies to override Congress on other policy matters. Others have raised alarm about the number of and nature of statutes that provide the President specific authorities once he has proclaimed a national emergency."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.
2019-03-01
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Recent Migration to the United States from Central America: Frequently Asked Questions [Updated January 29, 2019]
From the Document: "Over the last decade, migration to the United States from Central America--in particular from El Salvador, Guatemala, and Honduras (known collectively as the Northern Triangle)--has increased considerably. Families migrating from this region, many seeking asylum, have made up an increasing share of the migrants seeking admission to the United States at the U.S.-Mexico border. In the past year, news reports of migrant 'caravans' from the Northern Triangle traveling toward the United States have sparked intense interest and questions from Congress."
Library of Congress. Congressional Research Service
Wilson, Jill, 1974-; Bruno, Andorra; Elsea, Jennifer K. . . .
2019-01-29
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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 K.
2020-02-18
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Legal Authority to Repurpose Funds for Border Barrier Construction [September 10, 2019]
From the Document: "President Trump has prioritized the construction of border barriers along the U.S.-Mexico border. Over the course of negotiations for FY2019 appropriations, the Administration asked Congress to appropriate $5.7 billion to the Department of Homeland Security (DHS) for that purpose. When Congress appropriated $1.375 billion to DHS for border fencing, the President announced that his Administration would fund the construction of border barriers by repurposing funds appropriated to the Department of Defense (DOD) and transferring funds from the Department of the Treasury."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Hayes, Benjamin; Liu, Edward C.
2019-09-10
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Legal Authority to Repurpose Funds for Border Barrier Construction [Updated October 2, 2019]
From the Document: "President Trump has prioritized the construction of border barriers along the U.S.-Mexico border. Over the course of negotiations for FY2019 appropriations, the Administration asked Congress to appropriate $5.7 billion to the Department of Homeland Security (DHS) for that purpose. When Congress appropriated $1.375 billion to DHS for border fencing, the President announced that his Administration would fund the construction of border barriers by repurposing funds appropriated to the Department of Defense (DOD) and transferring funds from the Department of the Treasury."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.; Liu, Edward C.; Hayes, Benjamin
2019-10-02
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'In Re Terrorist Attacks on September 11, 2001': Claims Against Saudi Defendants Under the Foreign Sovereign Immunities Act (FSIA) [Updated May 17, 2016]
From the Document: "'In re Terrorist Attacks on September 11, 2001', is a consolidated case that includes, among other claims, claims against the Kingdom of Saudi Arabia, several Saudi princes, a Saudi banker, and a Saudi charity. Plaintiffs argued that these Saudi defendants played a 'critical role' in the September 11 attacks by giving money to Muslim groups, which in turn funded Al Qaeda. In August 2008, the U.S. Court of Appeals for the Second Circuit affirmed dismissals of the claims against the Saudi defendants. However, part of the reasoning for the dismissals was later overturned, and the plaintiffs were permitted a second chance to bring their suit against the Saudi government and government-owned charity. This effort also failed on sovereign immunity grounds at the district court, however, and is once again on appeal at the U.S. Court of Appeals for the Second Circuit. This report explains the legal bases for the dismissals and provides an update to the status of the case. To address some issues involving the interpretation of the FSIA [Foreign Sovereign Immunities Act], among other related matters, Congress is considering the Justice Against Sponsors of Terrorism Act (S. 2040, H.R. 3815). This report addresses relevant legislative developments in its final section."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.
2016-05-17
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Legal Authority to Repurpose Funds for Border Barrier Construction [Updated December 30, 2019]
From the Document: "President Trump has prioritized the construction of border barriers along the U.S.-Mexico border. Over the course of negotiations for FY2019 appropriations, the Administration asked Congress to appropriate $5.7 billion to the Department of Homeland Security (DHS) for that purpose. When Congress appropriated $1.375 billion to DHS for border fencing, the President announced that his Administration would fund the construction of border barriers by repurposing funds appropriated to the Department of Defense (DOD) and transferring funds from the Department of the Treasury."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.; Liu, Edward C.
2019-12-30
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Defense Primer: President's Constitutional Authority with Regard to the Armed Forces [Updated March 11, 2020]
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. [...] Under the Trump Administration's apparent view, such use of force does not require congressional consultation or authorization, seemingly without consideration of the likelihood of escalation into 'war in the constitutional sense.' The report also cited the 2002 authorization for the use of military force against Iraq in support of the operation."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2020-03-11
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Justice for United States Victims of State Sponsored Terrorism Act: Eligibility and Funding [Updated December 19, 2019]
From the Document: "Since 1996, the Foreign Sovereign Immunities Act (FSIA) has authorized U.S. courts to order state sponsors of terrorism--namely, Iran, Sudan, North Korea, and Syria, and previously Libya, Iraq, and Cuba--to pay monetary damages to terrorism victims. Courts have since awarded an estimated $90 billion against these states. Although these states have largely not participated in this litigation at the merits phase, some of these states have appeared in court to attempt to prevent plaintiffs from collecting their assets."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.
2019-12-19
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Iran's Central Bank Asks Supreme Court to Consider Whether the Bank's Assets Abroad Are Immune from Attachment to Satisfy Terror Judgments [Updated January 14, 2020]
From the Document: "Iran's central bank, Bank Markazi, has asked the Supreme Court to reverse a decision by the U.S. Court of Appeals for the Second Circuit (Second Circuit) , which concluded that the bank's assets held in Luxembourg may be ordered transferred to New York for possible satisfaction of terrorism judgments obtained under the Foreign Sovereign Immunities Act (FSIA). At issue is Bank Markazi's right to payment of bond proceeds of about $1.68 billion being held by, reflected on the books of, and recorded as a debt owed by Clearstream Banking, S.A. (Clearstream), a financial institution in Luxembourg specializing in bond and equity investments. The plaintiffs are a group of judgment creditors against Iran who prevailed in actions they brought under the terrorism exception to the FSIA, including the victims of the 1983 Marine Corps barracks bombing in Beirut, Lebanon (awarded damages in 'Peterson v. Islamic Republic of Iran'), as well as victims of other terrorist attacks supported by Iran. They are owed approximately $3.8 billion in compensatory damages. Iran defaulted in each of their cases."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.
2020-01-14
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Defense Primer: Legal Authorities for the Use of Military Forces [Updated January 3, 2020]
From the Document: "By the Framers' apparent design, in order to keep the nation's 'purse' and the 'sword' in separate hands and in other ways hinder its embroilment in unnecessary wars, the Constitution divides war powers between Congress and the President. Congress is empowered to declare war, provide for and regulate the Armed Forces, and issue letters of marque and reprisal, as well as to call forth the militia to suppress an insurrection, repel an invasion, or 'execute the Laws of the Union.' The President, as the Commander in Chief, has the responsibility to direct the Armed Forces as they conduct hostilities, put down insurrections, or execute the law when constitutionally authorized to do so. But the extent to which the President has independent authority under the Constitution, without explicit statutory support, to use the military for purposes other than to repel a sudden attack is the subject of long-standing debate."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.
2020-01-03
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Defense Primer: Congress's Constitutional Authority with Regard to the Armed Forces [Updated January 3, 2020]
From the Document: "The power 'To declare War' has long been construed to mean not only that Congress can formally take the nation into war, but also that it can authorize the use of the Armed Forces for military expeditions that may not amount to war. While a restrictive interpretation of the power 'To declare War' is possible, for example, by viewing the Framers' use of the verb 'to declare' rather than 'to make' as an indication of an intent to limit Congress's ability to affect the course of a war once it is validly commenced, Congress's other powers over the use of the military would likely fill any resulting void. In practice, courts have not sought to delineate the boundaries of each clause relating to war powers or identify gaps between them to find specific powers that are denied to Congress."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.
2020-01-03
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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 K.
2020-01-08
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Treatment of "Battlefield Detainees" in the War on Terrorism [Updated January 23, 2007]
"In June 2004, the U.S. Supreme Court ruled in Rasul v. Bush that U.S. courts have jurisdiction to hear challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism. The Court overturned a ruling that no U.S. court has jurisdiction to hear petitions for habeas corpus on behalf of the detainees because they are aliens detained abroad, but left questions involving prisoners' rights and status unanswered. The 9/11 Commission recommended a common coalition approach to such detention. Congress enacted the Detainee Treatment Act of 2005 (DTA), P.L. 109-148, to establish standards for interrogation and to deny detainees access to federal courts to file habeas petitions but allow limited appeals of status determinations and final decisions of military commissions. Congress approved the Military Commissions Act of 2006 (MCA), P.L. 109-366, to authorize military commissions for the prosecution of detainees for war crimes. The Bush Administration earlier deemed all of the detainees to be 'unlawful combatants,' who may, according to Administration officials, be held indefinitely without trial or even if they are acquitted by a military tribunal. Fifteen of the detainees were designated as subject to the President's Military Order of November 13, 2001, making them eligible for trial by military commission. In answer to the Rasul decision, the Pentagon instituted Combatant Status Review Tribunals to provide a forum for detainees to challenge their status as 'enemy combatants.' The Pentagon had earlier announced a plan for annual reviews to determine whether detainees may be released without endangering national security."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2007-01-23
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Treatment of "Battlefield Detainees" in the War on Terrorism [Updated November 14, 2006]
"In June 2004, the U.S. Supreme Court ruled in Rasul v. Bush that U.S. courts have jurisdiction to hear challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism. The Court overturned a ruling that no U.S. court has jurisdiction to hear petitions for habeas corpus on behalf of the detainees because they are aliens detained abroad, but left questions involving prisoners' rights and status unanswered. Congress enacted the Detainee Treatment Act of 2005 (DTA), P.L. 109-148, to establish standards for interrogation and to deny detainees access to federal courts to file habeas petitions but allow limited appeals of status determinations and final decisions of military commissions. Congress approved the Military Commissions Act of 2006 (MCA), P.L. 109-366, to authorize military commissions for the prosecution of detainees for war crimes. The Bush Administration earlier deemed all of the detainees to be 'unlawful combatants,' who may, according to Administration officials, be held indefinitely without trial or even if they are acquitted by a military tribunal. In answer to the Rasul decision, the Pentagon instituted Combatant Status Review Tribunals to provide a forum for detainees to challenge their status as 'enemy combatants.' The Pentagon had earlier announced a plan for annual reviews to determine whether detainees may be released without endangering national security. This report provides an overview of the law of war and the historical treatment of wartime detainees, in particular the U.S. practice; describes how the detainees' status might affect their rights and treatment; and summarizes activity of the 108th and 109th Congresses related to detention in connection with the war against terrorism."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2006-11-14
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U.S. Policy Regarding the International Criminal Court [Updated September 3, 2002]
"One month after the International Criminal Court (ICC) officially came into existence on July 1, 2002, the President signed legislation that limits U.S. government support and assistance to the ICC, curtails military assistance to many countries that have ratified the Rome Statute establishing the ICC, and most controversially among European allies, authorizes the President to use "all means necessary and appropriate to bring about the release" of certain U.S. and allied persons who may be detained or tried by the ICC...The (Bush) Administration initially vetoed a United Nations resolution to extend the peacekeeping mission in Bosnia because it did not contain any guarantee that U.S. participants would be immune to prosecution by the ICC. Ultimately, the Security Council and the U.S. delegation were able to reach a compromise that defers for one year any prosecution of participants in U.N. established or authorized missions, whose home countries have not ratified the Rome Statute. While the compromise falls short of the Administration's original goal of ensuring permanent immunity for U.S. citizens from the ICC, it suggests that the role of the U.N. Security Council under the Rome Statute may prove effective in addressing some of the concerns U.S. opponents of the ICC have voiced. This report outlines the main objections the United States has raised with respect to the ICC and analyzes the American Servicemembers' Protection Act (ASPA) enacted to regulate the U.S. cooperation with the ICC. The report concludes with a discussion of the implications for the United States, as a non-ratifying country, as the ICC comes into force, as well as the Administration's apparent strategy with regard to the ICC." -- Summary
Library of Congress. Congressional Research Service
Elsea, Jennifer
2002-09-03
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Naval Station Guantanamo Bay: History and Legal Issues Regarding Its Lease Agreements [August 4, 2015]
"This report briefly outlines the history of the establishment of the U.S. naval station at Guantanamo Bay, Cuba, during the first decade of the twentieth century, its changing relationship to the community around it, and its heightened importance with the onset of military operations in Afghanistan and Iraq. It also explains in detail the legal status of the lease of the land on which the naval station stands, the statutory and treaty authorities granted to the President with regard to any potential closure of the naval station, and the second-order effects on such a closure that current Cuba sanctions laws might have. A short list of additional readings ends the report. At the end of the Spanish-American War in 1898, the Spanish colonies of Cuba, Puerto Rico, Guam, and the Philippines transitioned to administration by the United States. Of these four territories, only Cuba quickly became in independent republic. As a condition of relinquishing administration, though, the Cuban government agreed to lease three parcels of land to the United States for use as naval or coaling stations. Naval Station Guantanamo Bay, Cuba, was the sole installation established under that agreement. The two subsequent lease agreements, one signed in 1903 and a second in 1934, acknowledged Cuban sovereignty, but granted to the United States 'complete jurisdiction and control over' the property so long as it remained occupied."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Else, Daniel H.
2015-08-04
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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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U.S. Treatment of Prisoners in Iraq: Selected Legal Issues [Updated October 27, 2005]
"The Army report charging that U.S. Military Police and other personnel, including civilian contractor personnel, abused Iraqi prisoners held under the authority of the Coalition Provisional Authority (CPA) has given rise to questions regarding the applicable law. The report1 was the result of an Army investigation initiated after a soldier turned over to military law enforcers photographs depicting U.S. military personnel subjecting Iraqi detainees to treatment that has been described as degrading, inhumane, and in some cases, tantamount to torture. A report by the International Committee of the Red Cross (ICRC) relating to the treatment of prisoners by U.S. forces was also made public. The results of several investigations initiated by the Department of Defense (DOD) have been presented to Congress. Congress included several measures in the National Defense Authorization Act for FY2005, Pub. Law 108-375, to address the treatment of detainees and jurisdiction over persons responsible for their abuse. As new allegations of prisoner maltreatment continue to surface, congressional interest in the matter is not likely to diminish any time soon. This report summarizes pertinent provisions of the four 1949 Geneva Conventions Relative to the Treatment of Victims of War and other international agreements concerning the treatment of certain types of prisoners. The report begins with a discussion of international and U.S. standards regarding the treatment of prisoners. A discussion of accountability in case of breach of these standards follows, including potential means of asserting jurisdiction over alleged violators, either in military courts or U.S. federal courts."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2005-10-27
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U.S. Treatment of Prisoners in Iraq: Selected Legal Issues [Updated May 19, 2005]
"This report summarizes pertinent provisions of the Geneva Conventions Relative to the Treatment of Victims of War (Geneva Conventions) and other relevant international agreements. The report begins with a discussion of international and U.S. standards pertaining to the treatment of prisoners. A discussion of accountability in case of breach of these standards follows, including potential means of asserting jurisdiction over alleged violators, either in military courts under the Uniform Code of Military Justice (UCMJ) or U.S. federal courts, by applying U.S. criminal statutes that explicitly apply extraterritorially or within the special maritime or territorial jurisdiction of the United States (as defined in 18 U.S.C. § 7), or by means of the Military Extraterritorial Jurisdiction Act (MEJA). The section that follows discusses international requirements to provide redress for those whose treatment at the hands of U.S. officials may have fallen below the standards outlined in the first section of the report. Finally, the report summarizes relevant congressional activity during the 108th and 109th Congresses, including a brief discussion of the anti-torture provision of P.L.109-13 (H.R. 1268). This report will be updated."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2005-05-19
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U.S. Policy Regarding the International Criminal Court [Updated April 26, 2006]
"One month after the International Criminal Court (ICC) officially came into existence on July 1, 2002, the President signed legislation that limits U.S. government support and assistance to the ICC; curtails certain military assistance to many countries that have ratified the Rome Statute establishing the ICC; regulates U.S. participation in United Nations (U.N.) peacekeeping missions commenced after July 1, 2003; and, most controversially among European allies, authorizes the President to use 'all means necessary and appropriate to bring about the release' of certain U.S. and allied persons who may be detained or tried by the ICC. The provision withholding military assistance under the programs for Foreign Military Financing (FMF) and International Military Education and Training (IMET) from certain States Parties to the Rome Statute came into effect on July 1, 2003. The 109th Congress reauthorized the Nethercutt Amendment as part of the FY2006 Consolidated Appropriations Act (H.R. 3057/P.L. 109-102). Unless waived by the President, it bars Economic Support Funds (ESF) assistance to countries that have not agreed to protect U.S. citizens from being turned over to the ICC for prosecution...This report outlines the main objections the United States has raised with respect to the ICC and analyzes the American Servicemembers' Protection Act (ASPA), enacted to regulate the U.S. cooperation with the ICC. The report concludes with a discussion of the implications for the United States, as a non-ratifying country, as the ICC begins to take shape, as well as the Administration's efforts to win immunity from the ICC's jurisdiction for Americans."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2006-04-26
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Use of Federal Troops for Disaster Assistance: Legal Issues [November 6, 2006]
"Hurricane Katrina raised questions concerning the President's legal authority to send active duty military forces into a disaster area and the permissible functions the military can perform to protect life and property and maintain order. The Stafford Act authorizes the use of the military for disaster relief operations at the request of the state governor, but does not authorize the use of the military to perform law enforcement functions, which is ordinarily prohibited by the Posse Comitatus Act. However, the President may invoke other authorities to use federal troops to aid in the execution of the law, including the Insurrection Act, as amended and renamed by P.L. 109-364 (H.R. 5122/S. 2766). This report summarizes the possible constitutional and statutory authorities and constraints relevant to the use of armed forces, including National Guard units in federal service, to provide assistance to states when a natural disaster impedes the operation of state and local police."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2006-11-06
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Use of Federal Troops for Disaster Assistance: Legal Issues [April 24, 2007]
"Hurricane Katrina raised questions concerning the President's legal authority to send active duty military forces into a disaster area and the permissible functions the military can perform to protect life and property and maintain order. The Stafford Act authorizes the use of the military for disaster relief operations at the request of the state governor, but it does not authorize the use of the military to perform law enforcement functions, which is ordinarily prohibited by the Posse Comitatus Act. However, the President may invoke other authorities to use federal troops to aid in the execution of the law, including the Insurrection Act, as amended and renamed by P.L. 109-364. This report summarizes the possible constitutional and statutory authorities and constraints relevant to the use of armed forces, including National Guard units in federal service, to provide assistance to states when a natural disaster impedes the operation of state and local police, and identifies relevant legislation currently under consideration (S. 513/H.R. 869)."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2007-04-24
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Use of Federal Troops for Disaster Assistance: Legal Issues [September 16, 2005]
"Hurricane Katrina has raised questions concerning the President's legal authority to send active duty military forces into a disaster area and the permissible functions the military can perform to protect life and property and maintain order. The Stafford Act authorizes the use of the military for disaster relief operations at the request of the state governor, but does not authorize the use of the military to perform law enforcement functions, which is ordinarily prohibited by the Posse Comitatus Act. However, the President may invoke other authorities, such as the Insurrection Act, to use federal troops to aid in the execution of the law. This report summarizes the possible constitutional and statutory authorities and constraints relevant to the use of armed forces, including National Guard units in federal service, to provide assistance to states when a natural disaster impedes the operation of state and local police."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2005-09-16
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Use of Federal Troops for Disaster Assistance: Legal Issues [December 26, 2006]
"Hurricane Katrina raised questions concerning the President's legal authority to send active duty military forces into a disaster area and the permissible functions the military can perform to protect life and property and maintain order. The Stafford Act authorizes the use of the military for disaster relief operations at the request of the state governor, but it does not authorize the use of the military to perform law enforcement functions, which is ordinarily prohibited by the Posse Comitatus Act. However, the President may invoke other authorities to use federal troops to aid in the execution of the law, including the Insurrection Act, as amended and renamed by P.L. 109-364 (H.R. 5122/S. 2766). This report summarizes the possible constitutional and statutory authorities and constraints relevant to the use of armed forces, including National Guard units in federal service, to provide assistance to states when a natural disaster impedes the operation of state and local police."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2006-12-26
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U.S. Policy Regarding the International Criminal Court [Updated June 14, 2006]
"One month after the International Criminal Court (ICC) officially came into existence on July 1, 2002, the President signed legislation that limits U.S. government support and assistance to the ICC; curtails certain military assistance to many countries that have ratified the Rome Statute establishing the ICC; regulates U.S. participation in United Nations (U.N.) peacekeeping missions commenced after July 1, 2003; and, most controversially among European allies, authorizes the President to use 'all means necessary and appropriate to bring about the release' of certain U.S. and allied persons who may be detained or tried by the ICC. The provision withholding military assistance under the programs for Foreign Military Financing (FMF) and International Military Education and Training (IMET) from certain States Parties to the Rome Statute came into effect on July 1, 2003. The 109th Congress reauthorized the Nethercutt Amendment as part of the FY2006 Consolidated Appropriations Act (H.R. 3057/P.L. 109-102). Unless waived by the President, it bars Economic Support Funds (ESF) assistance to countries that have not agreed to protect U.S. citizens from being turned over to the ICC for prosecution. H.R. 5522 would continue the prohibitions for FY2007."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2006-06-14
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U.S. Policy Regarding the International Criminal Court [August 29, 2006]
"One month after the International Criminal Court (ICC) officially came into existence on July 1, 2002, the President signed the American Servicemembers' Protection Act (ASPA), which limits U.S. government support and assistance to the ICC; curtails certain military assistance to many countries that have ratified the Rome Statute establishing the ICC; regulates U.S. participation in United Nations (U.N.) peacekeeping missions commenced after July 1, 2003; and, most controversially among European allies, authorizes the President to use 'all means necessary and appropriate to bring about the release' of certain U.S. and allied persons who may be detained or tried by the ICC. The provision withholding military assistance under the programs for Foreign Military Financing (FMF) and International Military Education and Training (IMET) from certain States Parties to the Rome Statute came into effect on July 1, 2003. The 109th Congress reauthorized the Nethercutt Amendment as part of the FY2006 Consolidated Appropriations Act (H.R. 3057/P.L. 109-102). Unless waived by the President, it bars Economic Support Funds (ESF) assistance to countries that have not agreed to protect U.S. citizens from being turned over to the ICC for prosecution. H.R. 5522, as passed by the House of Representatives, would continue the ESF restriction for FY2007. The Senate passed a measure as part of the 2007 National Defense Authorization Act (H.R. 5122, S. 2766) that would modify ASPA to end the ban on IMET assistance. […] This report outlines the main objections the United States has raised with respect to the ICC and analyzes ASPA and other relevant legislation enacted or proposed to regulate U.S. cooperation with the ICC. The report concludes with a discussion of the implications for the United States, as a non-ratifying country, as the ICC begins to take shape, as well as the Administration's efforts to win immunity from the ICC's jurisdiction for Americans. A description of the ICC's background and a more detailed analysis of the ICC organization, jurisdiction, and procedural rules may be found in CRS Report RL31437, 'International Criminal Court: Overview and Selected Legal Issues', by Jennifer K. Elsea."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2006-08-29
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Use of Federal Troops for Disaster Assistance: Legal Issues [August 14, 2006]
"Hurricane Katrina raised questions concerning the President's legal authority to send active duty military forces into a disaster area and the permissible functions the military can perform to protect life and property and maintain order. The Stafford Act authorizes the use of the military for disaster relief operations at the request of the state governor, but does not authorize the use of the military to perform law enforcement functions, which is ordinarily prohibited by the Posse Comitatus Act. However, the President may invoke other authorities, such as the Insurrection Act, to use federal troops to aid in the execution of the law. This report summarizes the possible constitutional and statutory authorities and constraints relevant to the use of armed forces, including National Guard units in federal service, to provide assistance to states when a natural disaster impedes the operation of state and local police. The report also addresses proposed legislation, including H.R. 5122 (S. 2766)."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2006-08-14
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U.S. Treatment of Prisoners in Iraq: Selected Legal Issues [Updated December 2, 2004]
"Photographs depicting the apparent abuse of Iraqi detainees at the hands of U.S.
military personnel at Abu Ghraib prison in Iraq have resulted in numerous
investigations, congressional hearings, and prosecutions, raising questions regarding
the applicable law. The international law of armed conflict, in particular, those parts
relating to belligerent occupation, applies in Iraq. The four Geneva Conventions of
1949 related to the treatment of prisoners of war (POW) and civilian detainees, as
well as the Hague Regulations define the status of detainees and state responsibility
for their treatment. Other international law relevant to human rights and to the
treatment of prisoners may also apply. For example, the International Covenant on
Civil and Political Rights prohibits 'cruel, inhuman or degrading treatment.' The
U.N. Declaration on Human Rights and the U.N. Convention Against Torture (CAT)
is also relevant. Federal statutes that implement the relevant international law, such
as the War Crimes Act of 1996 and the Torture Victim Protection Act, as well as
other criminal statutes with extraterritorial application may also come into play.
Finally, the law of Iraq as amended by regulations issued by the Coalition Provisional
Authority (CPA) may apply in some circumstances."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2004-12-02
