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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 [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 [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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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [Updated September 10, 2008]
This CRS report provides an update on the recent federal court cases in which enemy combatants held at Guantanamo Bay, Cuba, have "the constitution privilege of habeas corpus. "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 […], 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. […] In December 2005, Congress passed the Detainee Treatment Act of 2005 (DTA) […] eliminating the federal courts' statutory jurisdiction over habeas claims by aliens detained at Guantanamo Bay (as well as other causes of action based on their treatment or living conditions). […] the 109th Congress enacted the Military Commissions Act of 2006 (MCA) (P.L. 109-366) to authorize the President to convene military commissions and to amend the DTA to further reduce access to federal courts by 'alien enemy combatants,' wherever held, by eliminating pending and future causes of action other than the limited review of military proceedings permitted under the DTA. In June 2008, the Supreme Court held in the case of Boumediene v. Bush that aliens designated as enemy combatants and detained at Guantanamo Bay have the constitutional privilege of habeas corpus. […] The immediate impact of the Boumediene decision is that detainees at Guantanamo may petition a federal district court for habeas review of the legality and possibly the circumstances of their detention, perhaps including challenges to the jurisdiction of military commissions."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Thomas, Kenneth R.; Garcia, Michael John
2008-09-10
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Detention of American Citizens as Enemy Combatants [Updated March 31, 2005]
From the Summary: "The Supreme Court in 2004 issued three decisions related to the detention of 'enemy combatants,' including two that deal with U.S. citizens in military custody on American soil. In 'Hamdi v. Rumsfeld', a plurality held that a U.S. citizen allegedly captured during combat in Afghanistan and incarcerated at a Navy brig in South Carolina is entitled to notice and an opportunity to be heard by a neutral decision-maker regarding the government's reasons for detaining him. The Court in 'Rumsfeld v. Padilla' overturned a lower court's grant of habeas corpus to another U.S. citizen in military custody in South Carolina on jurisdictional grounds. The decisions affirm the President's powers to detain 'enemy combatants,' including those who are U.S. citizens, as part of the necessary force authorized by Congress after the terrorist attacks of September 11, 2001. However the Court appears to have limited the scope of individuals who may be treated as enemy combatants pursuant to that authority, and clarified that such detainees have some due process rights under the U.S. Constitution. This report, which will be updated as necessary, analyzes the authority to detain American citizens who are suspected of being members, agents, or associates of Al Qaeda, the Taliban and possibly other terrorist organizations as 'enemy combatants.'"
Library of Congress. Congressional Research Service
Elsea, Jennifer
2005-03-31
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Treatment of 'Battlefield Detainees' in the War on Terrorism [Updated March 27, 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. The 9/11 Commission recommended a common coalition approach to such detention. Congress enacted the Detainee Treatment Act of 2005 to establish standards for interrogation and to deny detainees access to federal courts to file habeas petitions (S.Amdt. 2524 to S. 1042, 'Graham-Levin Amendment') but allow limited appeals of status determinations and final decisions of military commissions. 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 have been 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
2006-03-27
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Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice [Updated September 18, 2006]
"November 13, 2001, President Bush issued a Military Order (M.O.) pertaining to the detention, treatment, and trial of certain non-citizens in the war against terrorism. Military commissions pursuant to the M.O. began in November, 2004, against four persons declared eligible for trial, but proceedings were suspended after a federal district court found one of the defendants could not be tried under the rules established by the Department of Defense. The D.C. Circuit Court of Appeals reversed that decision, Rumsfeld v. Hamdan, but the Supreme Court granted review and reversed the decision of the Court of Appeals. This report provides a background and analysis comparing military commissions as envisioned under M.C.O. No. 1 to general military courts-martial conducted under the UCMJ. A summary of the Hamdan case follows, in particular the shortcomings identified by the Supreme Court. The report provides an overview of legislation (H.R. 6054, S. 3901, S. 3861, and S. 3886). Finally, the report provides two charts to compare the regulations issued by the Department of Defense to standard procedures for general courts-martial under the Manual for Courts-Martial and to proposed legislation. The second chart, which compares procedural safeguards incorporated in the regulations with established procedures in courts-martial, follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts, in order to facilitate comparison with safeguards provided in federal court and international criminal tribunals."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2006-09-18
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Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice [Updated July 25, 2006]
"This report provides a background and analysis comparing military commissions as envisioned under M.C.O. No. 1 [Military Commission Order No. 1] to general military courts-martial conducted under the UCMJ [Uniform Code of Military Justice]. A summary of the Hamdan case follows, in particular the shortcomings identified by the Supreme Court. The report provides an overview of relevant legislation (H.R. 3044, H.R. 3038, and S. 3614). Finally, the report provides two charts to compare the regulations issued by the Department of Defense to standard procedures for general courts-martial under the Manual for Courts-Martial and to proposed legislation. The second chart, which compares procedural safeguards incorporated in the regulations with established procedures in courts-martial, follows the same order and format used in CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts, in order to facilitate comparison with safeguards provided in federal court and international criminal tribunals."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2006-07-25
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [Updated September 26, 2006]
"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. The proposed legislation (H.R. 6054, H.R. 6166, S. 3901, S. 3930, S. 3861, and S. 3886) would also amend the DTA to further reduce the access of aliens in U.S. custody overseas to federal court, to the extent that such jurisdiction existed, by eliminating pending and future causes of action other than the limited review of military proceedings permitted under the DTA. Implementation of the DTA, in its present form or as proposed to be amended, to preclude the detainees' access to court may raise constitutional issues with respect to the Suspension Clause (U.S. Const. Art. 1, § 9, cl. 2), whether it amounts to an impermissible 'court-stripping' measure to deprive the Supreme Court of jurisdiction over matters of law entrusted to it by the Constitution, and whether such constitutionally sensitive issues can be avoided in light of the alternative procedures provided. This report will be updated as events warrant."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Thomas, Kenneth R.
2006-09-26
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [Updated September 21, 2006]
"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. The Court's decision has led to efforts in Congress to enact legislation authorizing the President to convene military commissions. The proposed legislation (H.R. 6054, S. 3901, S. 3861, and S. 3886) would also amend the DTA to further reduce the access of aliens in U.S. custody overseas to federal court, to the extent that such jurisdiction existed, by eliminating pending and future causes of action other than the limited review of military proceedings permitted under the DTA. Implementation of the DTA, in its present form or as proposed to be amended, to preclude the detainees' access to court may raise constitutional issues with respect to the Suspension Clause (U.S. Const. Art. 1, § 9, cl. 2), whether it amounts to an impermissible 'court-stripping' measure to deprive the Supreme Court of jurisdiction over matters of law entrusted to it by the Constitution, and whether such constitutionally sensitive issues can be avoided in light of the alternative procedures provided. This report will be updated as events warrant."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Thomas, Kenneth R.
2006-09-21
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Undisclosed U.S. Detention Sites Overseas: Background and Legal Issues [Updated September 12, 2006]
"This report provides background information regarding the controversy and discusses the possible legal frameworks that may apply. It is based on available open-source documentation, as cited, and not on any independent CRS investigation. It focuses on protections accorded to persons under international law, and is not intended to address intelligence operations or policy. It also focuses primarily on the allegations relating to Europe, although other countries may be involved, and includes in its appendix a status discussion concerning relevant investigations being conducted by the European Parliament and the Council on Europe."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2006-09-12
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Selected Procedural Safeguards in Federal, Military, and International Courts [Updated September 18, 2006]
"This report provides a brief overview of procedural rules applicable in selected historical and contemporary tribunals for the trials of war crimes suspects. The chart herein compares selected procedural safeguards employed in criminal trials in federal criminal court with parallel protective measures in military general courts martial, international military tribunals used after World War II, including the International Military Tribunal (IMT or 'Nuremberg Tribunal'), and the International Criminal Courts for the former Yugoslavia (ICTY) and Rwanda (ICTR). The chart identifies a selection of basic rights in rough order of the stage in the criminal justice process where they might become most important. The text of the chart indicates some of the procedural safeguards designed to protect these rights in different tribunals. Recognizing that fundamental fairness relies on the system of procedural safeguards as a whole - rather than individual rules - the chart is intended only as an outline to compare some of the rules different courts and tribunals might use to safeguard certain rights."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2006-09-18
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Federal and State Quarantine and Isolation Authority [Updated August 16, 2006]
From the Summary: "In the wake of recent terrorist attacks and increasing fears about the spread of highly contagious diseases, such as severe acute respiratory syndrome (SARS) and pandemic influenza, federal, state, and local governments have become increasingly aware of the need for a comprehensive public health response to such events. An effective response could include the quarantine of persons exposed to infectious biological agents that are naturally occurring or released during a terrorist attack, the isolation of infected persons, and the quarantine of certain cities or neighborhoods. [...] This report provides an overview of federal and state public health laws as they relate to the quarantine and isolation of individuals, a discussion of constitutional issues that may be raised should individual liberties be restricted in a quarantine situation, and federalism questions that may arise where federal and state authorities overlap. In addition, the possible role of the armed forces in enforcing public health measures is discussed, specifically whether the Posse Comitatus Act would constrain any military role, and other statutory authorities that may be used for the military enforcement of health measures."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Swendiman, Kathleen
2006-08-16
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Defense Primer: Congress's Constitutional Authority with Regard to the Armed Forces [Updated December 21, 2021]
From the Document: "Debates relating to legislation regarded by some as interfering with the President's Commander-in-Chief authority are frequently framed in terms of legislative meddling in military operations, but the line between regulating the Armed Forces and directing campaigns has proved elusive. Congress has also used its authority to provide for the organization and regulation of the Armed Forces to determine how military personnel are to be organized and employed. For example, early statutes prescribed in fairly precise terms how military units were to be formed and commanded."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2021-12-21
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Defense Primer: Legal Authorities for the Use of Military Forces [Updated January 26, 2022]
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."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2022-01-26
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Afghanistan Central Bank Reserves [February 23, 2022]
From the Document: "According to the United Nations, Afghanistan has been 'descending into the worst humanitarian crisis in the world' since the Taliban's August 2021 return to power. A U.S. hold on assets of the Afghan central bank (Da Afghanistan Bank, or DAB) deposited in the United States has attracted particular scrutiny from some observers who describe this as one of the most important factors impacting the humanitarian and economic situations in Afghanistan. Members of Congress have expressed a range of views on how to proceed with the assets, including whether to continue holding or utilizing them for economic assistance or other purposes. In February 2022, the House considered, but rejected, a measure that would have required the Administration to submit an assessment to Congress on the humanitarian impact in Afghanistan of both sanctions and the U.S. hold on DAB assets. According to the International Monetary Fund (IMF), total international DAB reserves are $9.76 billion, as of the end of 2020, the most recent data available. Of this amount, $2 billion is deposited in financial institutions in the United Kingdom, Germany, Switzerland, and the United Arab Emirates. The remaining funds are deposited at the Federal Reserve Bank of New York. On February 11, 2022, President Biden signed Executive Order 14064 to block U.S.-held Afghanistan central bank reserves, and stated his intention to disburse $3.5 billion of the $7 billion currently held in the U.S. Federal Reserve Bank 'for the benefit of the Afghan people.' The Biden Administration is currently exploring possible avenues, including humanitarian relief efforts, possibly through a separate trust fund or by providing support through the United Nations or some other enabling organization."
Library of Congress. Congressional Research Service
Weiss, Martin A.; Thomas, Clayton (Analyst in Middle Eastern Affairs); Elsea, Jennifer
2022-02-23
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U.S. Nationals and Foreign Military Service [March 28, 2022]
From the Background: "International law grants rights to and imposes duties upon a neutral state during an armed conflict between belligerent nations. One of these duties is that neutral states shall not furnish troops to belligerent states, except this duty does not include independent actions by a neutral state's citizens. A state's neutrality is usually unaffected if its citizens willingly serve in a belligerent state's armed forces. International law permits such service, but a state's internal law may prohibit it. U.S. nationals (including both citizens and other persons owing allegiance to the United States (8 U.S.C. [United States Code] §1101)) have performed foreign military service at various times since 1788. This In Focus examines the laws governing U.S. national foreign military service during armed conflicts."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Gaffney, Jonathan M.; Ott, Alan
2022-03-28
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War Crimes: A Primer [March 15, 2022]
From the the Document: "The Russian invasion [hyperlink] of Ukraine has given rise [hyperlink] to numerous accusations [hyperlink] of war crimes [hyperlink]. This Legal Sidebar addresses the sources and content of the law of war, also known as the law of armed conflict or international humanitarian law (IHL) as it pertains to war crimes that occur in an international armed conflict. IHL applies to the conduct of war; it does not address the legality of the war itself [hyperlink]. For information about potential accountability for war crimes in international tribunals, see CRS Legal Sidebar LSB10704, The Role of International Tribunals in the Response to the Invasion of Ukraine, by Nina M. Hart and Stephen P. Mulligan [hyperlink]."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2022-03-15
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Toward the Creation of a U.S. 'Space Force' [August 16, 2018]
"For over two decades, the U.S. Government Accountability Office (GAO) and others have found that fragmentation and overlap in national security space acquisition management and oversight have contributed to program delays and cancellations, cost increases, and inefficient operations. Congress has attempted numerous organizational and acquisition reforms to address these problems. In the view of many observers, these efforts have generally been unsuccessful. In addition to these perceived managerial deficits, Congress has more recently expressed concern over the slow pace with which the Department of Defense (DOD) and the Air Force have addressed the growing threat to U.S. national security in space from adversaries, particularly Russia and China, and to a lesser extent North Korea and Iran. Some in the military and elsewhere now increasingly refer to space as a 'warfighting domain'; once seen as peaceful and uncontested, space is now viewed as crowded and adversarial."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Kapp, Lawrence; McInnis, Kathleen J.
2018-08-16
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Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information [Updated March 7, 2017]
From the Summary: "Recent unauthorized disclosures of information concerning activities in the White House, and the publication of large quantities of classified information by WikiLeaks and other organizations and news outlets, have prompted congressional interest in criminal prohibitions on disclosure of classified information. While some have described recent leaks of classified information as 'illegal' and 'criminal,' there is no single statute that criminalizes any unauthorized disclosure of classified information. Instead, the legal framework is based on a complex and often overlapping set of statutes with provisions that differ depending on, among other factors, what information was disclosed, to whom it was given, and the intentions of the discloser. This report identifies statutory prohibitions that may be implicated by the unauthorized release of classified information, and it examines the elements necessary to secure a conviction under the Espionage Act and applicable statutes."
Library of Congress. Congressional Research Service
Mulligan, Stephen P.; Elsea, Jennifer
2017-03-07
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Updated: Recent U.S. Airstrikes: Legal Authorities and Questions [Updated February 18, 2020]
From the Document: "'The Trump Administration has reported to Congress a 'change in application of the existing legal and policy frameworks' regarding the use of military force, which presented the following legal justification for the January airstrikes: Article II of the United States Constitution, empowers the President, as Commander in Chief, to direct the use of military force to protect the Nation from an attack or threat of imminent attack and to protect important national interests. Article II thus authorized the President to use force against forces of Iran, a state responsible for conducting and directing attacks against United States forces in the region.' [...] This Sidebar examines the President's domestic legal authority to initiate military action under the two sources cited in the National Security Advisor's statement: the Constitution and the 2002 authorization for use of military force related to Iraq (2002 AUMF). Although not discussed in O'Brien's statement, this Sidebar also examines the implications of the ban on assassinations in Executive Order 12333 as well as the international legal framework governing the strikes."
Library of Congress. Congressional Research Service
Mulligan, Stephen P.; Elsea, Jennifer
2020-02-18
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Recent U.S. Airstrikes: Legal Authorities and Questions [January 8, 2020]
From the Document: "Recent U.S. airstrikes in Iraq and Syria have raised legal questions concerning the scope of the President's power to use force against Iran and Iran-backed organizations. In late December, U.S. forces conducted airstrikes against five facilities in Iraq and Syria used by Kata'ib Hizbollah--an entity with ties to Iran designated by the Department of State as a foreign terrorist organization. According to a Department of Defense (DOD) statement, the strikes came in response to attacks on military bases in Iraq that host U.S. forces engaged in the campaign to defeat the Islamic State. [...] This Sidebar examines the President's domestic legal authority to initiate military action under the two sources cited in the National Security Advisor's statement: the Constitution and the 2002 authorization for use of military force related to Iraq (2002 AUMF). Although not discussed in O'Brien's statement, this Sidebar also examines the implications of the ban on assassinations in Executive Order 12333 as well as the international legal framework governing the strikes."
Library of Congress. Congressional Research Service
Mulligan, Stephen P.; Elsea, Jennifer
2020-01-08
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State Secrets Privilege: National Security Information in Civil Litigation [April 28, 2022]
From the Document: "he Supreme Court of the United States has long recognized a common law government privilege against the disclosure of state and military secrets in civil litigation known as the 'state secrets privilege.' The United States has invoked this privilege in two broad categories of cases. [...] This report presents an overview of the protections afforded by the state secrets privilege, a discussion of some of the many unresolved issues associated with the privilege, and a selection of high-profile examples of how the privilege has been applied in practice. The report also describes some considerations for Congress."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Liu, Edward C.
2022-04-28
