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Servicemembers Civil Relief Act (SCRA): Section-By-Section Summary [Updated March 25, 2019]
From the Document: "Congress enacted the Servicemembers Civil Relief Act (SCRA) in 2003 in response to the increased deployment of Reserve and National Guard military and as a modernization and restatement of the protections and rights previously available to servicemembers under the Soldiers' and Sailors' Civil Relief Act of 1940 (SSCRA). The SCRA has been amended since its initial passage, and Congress continues to consider amendments from time to time."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2019-03-25
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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 K.
2017-03-07
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No-Fly Zones: Strategic, Operational, and Legal Considerations for Congress [March 18, 2011]
"The ongoing uprising in Libya against the government of Muammar al Qadhafi has been the subject of ongoing domestic and international debate about potential international military intervention, including the proposed establishment of a no-fly zone over Libya. Congress may wish to consider issues surrounding the strategy, international authorization, congressional authorization, operations, and costs of establishing and maintaining no-fly zones. The military strategy designed to support the grand strategy, it has been suggested, might be based on these considerations: the operational-level military objectives that need to be achieved, to support the overall grand strategy; and the extent to which a no-fly zone--as one set of ways and means--helps achieve those objectives."
Library of Congress. Congressional Research Service
Gertler, Jeremiah; Blanchard, Christopher M.; Daggett, Stephen . . .
2011-03-18
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No-Fly Zones: Strategic, Operational, and Legal Considerations for Congress [May 3, 2013]
"In conflicts in Kosovo, Iraq, and Libya, the United States has taken part in establishing and maintaining no-fly zones. As no-fly zones represent a significant commitment of U.S. forces, and may prove a precursor to other military actions, Congress may wish to consider issues surrounding the strategy, international authorization, congressional authorization, operations, and costs of establishing and maintaining no-fly zones. The military strategy designed to support U.S. grand strategy, it has been suggested, might be based on these considerations: the operational-level military objectives that need to be achieved, to support the overall grand strategy; and the extent to which a no-fly zone--as one set of ways and means--helps achieve those objectives. Practitioners and observers have debated what constitutes international 'authorization' for the establishment of a no-fly zone. Given the paucity of relevant precedents, and the dissimilarities among them, there may not exist a single, clear, agreed model. The concept of authorization is typically considered to be linked to the ideas of both 'legality' and 'legitimacy'--the three concepts overlap but are all distinct. The precise meaning of each of the terms is still debated. Express authorization from the U.N. Security Council provides the clearest legal basis for imposing a no-fly zone."
Library of Congress. Congressional Research Service
Gertler, Jeremiah; Blanchard, Christopher M.; Dale, Catherine . . .
2013-05-03
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Foreign Sovereign Immunity and COVID-19 Lawsuits Against China [May 15, 2020]
From the Document: "Putative classes of plaintiffs have launched at least five class action lawsuits against the government of the People's Republic of China (PRC or China) for losses in the United States associated with the COVID-19 [coronavirus disease 2019] pandemic. Two states--Missouri and Mississippi--have also lodged claims in federal court against China and Chinese entities for COVID-19 associated losses in those states. The lawsuits essentially allege that the PRC government's early failure to accurately inform the World Health Organization and the world community about the contagiousness and scope of outbreak of the disease in China, along with other actions to conceal vital information, prevented containment of the coronavirus and directly led to its reaching global pandemic proportions. Each of these lawsuits faces a common initial hurdle: jurisdiction under the Foreign Sovereign Immunities Act (FSIA). This Legal Sidebar analyzes two possible exceptions under the FSIA that these lawsuits have asserted as a jurisdictional basis and describes some legislative efforts to overcome foreign sovereign immunity. Because the complaints are similar but the Missouri complaint seems to be the most detailed in its foreign sovereign immunity claims, this Legal Sidebar focuses on the lawsuit by the State of Missouri."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2020-05-15
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Supreme Court Permits Retroactive Punitive Damages Against Sudan in Terrorism Cases [May 28, 2020]
From the Document: "More than two decades after the U.S. embassies bombings in Tanzania and Kenya, some plaintiffs who alleged that Sudanese support of Al Qaeda contributed to the attacks have won the opportunity to obtain punitive damages against the government of Sudan. The Supreme Court decided 8-0 (with no participation by Justice Kavanaugh) in 'Opati v. Republic of Sudan' that Congress intended to make punitive damages available on a retroactive basis when it updated the terrorism exception to the Foreign Sovereign Immunities Act (FSIA) in 2008. The U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) had decided otherwise, invalidating $4.3 billion in punitive damages and halving the 'Opati' plaintiffs' award for the embassy bombings. Under 'Opati', the D.C. Circuit is to reinstate some or all of those punitive damages."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2020-05-28
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Emergency Authorities Under the National Emergencies Act, Stafford Act, and Public Health Service Act [June 3, 2020]
From the Summary: "The Supreme Court has explained that the President's authority 'must stem either from an act of Congress or from the Constitution itself.' Because Article II of the Constitution does not grant the Executive general emergency powers, the President generally must rely on Congress for such authority. Congress has historically given the President robust powers to act in times of crisis. These emergencies powers are scattered throughout the 'U.S. Code' and touch on matters ranging from international emergencies to public health crises to natural disasters, among many other things. Many of these authorities are triggered from declarations made under three frameworks: the National Emergencies Act (NEA), the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), and the Public Health Service Act (PHSA)."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.; Sykes, Jay B.; Lampe, Joanna R. . . .
2020-06-03
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Military Appellate Court: Presidential Comments Can Amount to Unlawful Command Influence [November 2, 2020]
From the Document: "In a set of divided opinions on August 27, the U.S Court of Appeals for the Armed Forces (CAAF) rejected Sergeant Robert 'Bowe' Bergdahl's appeal in his desertion case, which he argued was invalid due to unlawful command influence. However, CAAF found that the President's remarks about an ongoing court-martial trial can amount to unlawful command influence in violation of Art. 37 of the Uniform Code of Military Justice (UCMJ). The court reasoned that the President is by statute a convening authority for general courts-martial and is therefore subject to the Rules for Courts-Martial (R.C.M.) Rule 104(a)'s prohibition on unlawful command influence, which implements Art. 37 of the UCMJ. [...] This Legal Sidebar explains the prohibition against unlawful command influence in military courts, describes the tests CAAF uses to decide whether unlawful command influence has occurred, and explains CAAF's decision in the 'Bergdahl' appeal."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2020-11-02
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Defense Primer: President's Constitutional Authority with Regard to the Armed Forces [Updated December 16, 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. 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
2020-12-16
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Defense Primer: Congress's Constitutional Authority with Regard to the Armed Forces [Updated December 16, 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. However, the Supreme Court has suggested that Congress might overstep its bounds into presidential territory if it were to interfere with the conduct of military operations."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.
2020-12-16
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Defense Primer: Legal Authorities for the Use of Military Forces [Updated January 4, 2021]
From the Document: "By the Framers' apparent design, to keep the nation's 'purse' and the 'sword' in separate hands and in other ways hinder the nation's 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. 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. At the same time, efforts in Congress to exercise its constitutional war powers in some way that is perceived to constrain military operations have met with objections that the constitutional separation of powers is imperiled."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2021-01-04
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So, Now Can Menachem Zivotofsky Get His Passport Reissued to Say 'Israel'? [March 1. 2018]
"Menachem Zivotofsky, a U.S. citizen born in Jerusalem in 2002, was sufficiently interested in having his passport list Israel as his birth place that he asked the Supreme Court - twice, and was denied- for assistance in compelling the State Department to comply with a law that said it had to list Israel upon request. Notwithstanding that law (section 214(d) of the Foreign Relations Authorization Act for FY2003), State Department policy under President George W. Bush continued to follow the longstanding practice of directing consular officers to list 'Jerusalem' as the place of birth in such cases on consular reports of birth and passports. The purpose of this policy was to avoid the perception of contradicting the President's recognition policy that conspicuously refrained from acknowledging any foreign government's sovereign control over Jerusalem. In addition, the city's status is a longstanding point of contention in the enduring dispute between Israel and the Palestinians. For more information, see CRS Report RL33476, Israel: Background and U.S. Relations, by Jim Zanotti."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.
2018-03-01
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President's Authority to Use the National Guard or the Armed Forces to Secure the Border [April 19, 2018]
"President Trump's recent announcement and memorandum to the Attorney General and the Secretaries of Defense and Homeland Security regarding the possibility of deploying the military to help guard the U.S.Mexican border against aliens entering the country unlawfully as well as to stop the flow of drug and gang activity raise questions regarding his statutory or constitutional authority to do so. The answer may depend on which troops are sent and the role they will play. This sidebar addresses the legal authorities for the President to use the National Guard or the armed forces to assist in securing the southwestern border."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.
2018-04-19
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United States Off the Hook for Vacated Terror Judgment against Libya [May 8, 2018]
"The United States Court of Federal Claims in late December 2016 denied the claim of the family of a U.S. victim of Libyan-sponsored terrorism for compensation from the United States. The lawsuit essentially seeks to make up the difference between what a federal district court judge had awarded against Libya (about $1.3 billion) and what the Foreign Claims Settlement Commission of the United States (FCSC) awarded ($10.8 million) under the 2008 Claims Settlement Agreement with Libya, as ratified by the Libyan Claims Resolution Act (LCRA). At the time, Libya's government was led by Muammar al Qadhafi, who was toppled by an uprising in 2011. The family of Mihai Alimanestianu, who was killed in 1989 by the bombing of UTA Flight 772 over Niger, argued that the U.S. government's settlement of terrorism claims against Libya effected a taking of their previously obtained district court judgment and therefore required just compensation under the Fifth Amendment's Taking Clause."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.
2018-05-08
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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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Defense Primer: Legal Authorities for the Use of Military Forces [December 7, 2016]
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. At the same time, efforts in Congress to exercise its constitutional war powers in some way that is perceived to constrain military operations have met with objections that the constitutional separation of powers is imperiled."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2016-12-07
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Military Enjoined from Transferring American ISIS Suspect to Foreign Country--at Least for Now [June 20, 2018]
"In Doe v. Mattis, a case with potential ramifications regarding the authority to conduct military operations against the Islamic State of Iraq and the Levant (ISIS), the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) upheld 2-1 the district court's injunctions temporarily protecting 'John Doe' from forcible transfer to another country from Iraq, where he is currently being held by the U.S. military as a suspected ISIS combatant. Doe, a dual U.S.-Saudi national who surrendered to Syrian Democratic Forces and was subsequently transferred to U.S. custody, seeks to end his detention through a petition for a writ of habeas corpus in the federal district court for the District of Columbia. The Department of Defense (DOD) seeks to transfer him involuntarily to the custody of one of two countries (the names of which remain classified). Doe asked the district court to prevent his transfer during the pendency of his litigation, but DOD claimed the authority to transfer him as soon as diplomatic arrangements could be made. The district court judge issued two orders, one requiring DOD to provide 72 hours' notice to the court prior to Doe's transfer to another country and a second enjoining the government from transferring Doe, once the government gave notice to the court of its intent to transfer him. DOD appealed both orders."
Library of Congress. Congressional Research Service
Elsea, Jennifer K.
2018-06-20
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Israel and the Boycott, Divestment, and Sanctions (BDS) Movement [June 9, 2017]
"This report provides information and analysis on a boycott, divestment, and sanctions ('BDS') movement against Israel. The BDS movement is generally seen as a loose grouping of actors from various countries who advocate or engage in economic measures against Israel or Israel-related individuals or organizations, though defining precisely what may or may not constitute BDS activity is subject to debate. The report also analyzes economic measures that 'differentiate' or might be seen as differentiating between (1) Israel in general and (2) entities linked with Israeli-developed areas and settlements (whose legality is questioned under international law). Such settlements are found in the West Bank, East Jerusalem, and Golan Heights- areas that Israel has controlled and administered since the 1967 Arab-Israeli war. Debate is ongoing in the United States and elsewhere about whether economic differentiation (such as with regard to product labeling policies) between Israel proper and Israeli settlements constitutes a form of BDS. The report also discusses [1] Anti-BDS or anti-differentiation efforts to date, including U.S. legislative action and proposals at the federal and state level […] [and] [2] Legislative considerations arising from existing antiboycott law, First Amendment issues, and issues regarding congressional powers over commerce and foreign affairs. "
Library of Congress. Congressional Research Service
Zanotti, Jim; Weiss, Martin A.; Ruane, Kathleen Ann . . .
2017-06-09
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Naval Station Guantanamo Bay: History and Legal Issues Regarding Its Lease Agreements [November 17, 2016]
"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 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 Cuba sanctions laws might have. A short list of additional readings ends the report."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Else, Daniel H.
2016-11-17
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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 [May 30, 2018]
"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.
2018-05-12
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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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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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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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Intelligence Identities Protection Act [April 10, 2013]
"Concern that government documents obtained by WikiLeaks and disclosed to several newspapers could reveal the identities of United States intelligence agents or informants focused attention on whether the disclosure or publication of such information could give rise to criminal liability. This report summarizes the Intelligence Identities Protection Act (IIPA; P.L. [Public Law] 97-200), enacted by Congress in 1982 to address the unauthorized disclosure of information that exposes covert U.S. intelligence agents. The act, as amended, is codified at 50 U.S.C. Sections 421-426, and provides criminal penalties in certain circumstances for intentional, unauthorized disclosure of information identifying a covert agent, where those making such a disclosure know that the information disclosed identifies the covert agent as such and that the United States is taking affirmative measures to conceal the covert agent's foreign intelligence relationship to the United States. The act prescribes punishments for disclosing the identities of covert agents with increasing severity according to the level of access to classified information the offender exploited. Offenders without authorized access to classified information are subject to punishment only if they participated in a pattern of activity designed to discover and reveal the identities of covert agents and have reason to believe that such disclosure will harm U.S. intelligence operations."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2013-04-10
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'Samantar v. Yousef': The Foreign Sovereign Immunities Act and Foreign Officials [August 24, 2010]
"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; Segall, Jordan E.
2010-08-24
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Congressional Authority to Limit U.S. Military Operations in Iraq [January 29, 2007]
"President Bush's announced plan to increase the number of troops participating in military operations in Iraq has raised questions regarding Congress's authority to limit or possibly terminate the U.S. military role in Iraq. It has been suggested that the President's role as Commander-in-Chief of the Armed Forces provides sufficient authority for his deployment of additional troops, and any efforts on the part of Congress to intervene could represent an unconstitutional violation of separation-of-powers principles. While even proponents of strong executive prerogative in matters of war appear to concede that it is within Congress's authority to cut off funding entirely for a military operation, it has been suggested that spending measures that restrict but do not end financial support for the war in Iraq would amount to an 'unconstitutional condition.' The question may turn on whether the President's proposal is a purely operational decision committed to the President in his role as Commander-in-Chief, or whether congressional action to prevent the carrying out of the proposal is a valid exercise of Congress's authority to allocate resources using its war powers and power of the purse."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Nicola, Thomas J.
2007-01-29
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Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court [November 19, 2009]
"Attorney General Holder's decision to try certain detainees in federal criminal court, including those accused of conspiring to commit the 9/11 terrorist attacks, 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. 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. 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
2009-11-19
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Closing the Guantanamo Detention Center: Legal Issues [May 30, 2013]
"Following the terrorist attacks of 9/11, Congress passed the Authorization for the Use of 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. Although nearly 800 persons have been held at Guantanamo since early 2002, the substantial majority of Guantanamo detainees have been transferred to another country for continued detention or release. […] 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 forums (i.e., federal courts, court-martial proceedings, and military commissions)."
Library of Congress. Congressional Research Service
Garcia, Michael John; Elsea, Jennifer; Mason, R. Chuck . . .
2013-05-30
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Detention of U.S. Persons as Enemy Belligerents [July 25, 2013]
"The detainee provisions passed as part of the National Defense Authorization Act for FY2012, P.L. [Public Law] 112-81, affirm that the Authorization for Use of Military Force (AUMF), P.L. 107-40, in response to the terrorist attacks of September 11, 2001, authorizes the detention of persons captured in connection with hostilities. The act provides for the first time a statutory definition of covered persons whose detention is authorized pursuant to the AUMF. During debate of the provision, significant attention focused on the applicability of this detention authority to U.S. citizens and other persons within the United States. The Senate adopted an amendment to clarify that the provision was not intended to affect any existing law or authorities relating to the detention of U.S. citizens or lawful resident aliens, or any other persons captured or arrested in the United States. This report analyzes the existing law and authority to detain U.S. persons, including American citizens and resident aliens, as well as other persons within the United States who are suspected of being members, agents, or associates of Al Qaeda or possibly other terrorist organizations as 'enemy combatants.'"
Library of Congress. Congressional Research Service
Elsea, Jennifer
2013-07-25
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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings [April 21, 2014]
"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. In particular, it summarizes notable decisions which have (1) 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 support to such entities in their hostilities against the United States and its allies; (2) adopted a functional approach for assessing whether a person is 'part of' Al Qaeda; (3) 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; (4) determined that Guantanamo detainees have a limited right to challenge their proposed transfer to foreign custody, but denied courts the authority to order detainees released into the United States; and (5) held that the constitutional writ of habeas does not extend to noncitizen detainees held at U.S.-operated facilities in Afghanistan. Finally, the report discusses a few criminal cases involving persons who were either involved in the 9/11 attacks or were captured abroad by U.S. forces or allies during operations against Al Qaeda, the Taliban, and associated entities, as well as reviews of military commission cases in federal appellate courts."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2014-04-21
