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Weapons of Mass Destruction Counterproliferation: Legal Issues for Ships and Aircraft [October 1, 2003]
From the Summary: "Aspects of this national security strategy raise questions related to the
international law of jurisdiction, the law of the sea (which also references airspace), and international civil aviation agreements. The right of States to conduct self defense and law enforcement activities abroad has the potential to collide with the rights of other States to maintain their sovereign integrity and conduct free navigation and commerce. These rights are not absolute. This report provides an overview of the international law of the sea and other agreements as they relate to the permissible range of methods for interdicting WMD-related contraband. After a short summary of the current legal regime for international arms control related to WMD, the report outlines the basic concepts of jurisdiction in international law. Next, the report describes concepts central to the law of the sea, including the division of the world's
waters and airspace into "international" and "national" territory, and a description of the rights, duties and limitations that apply depending on where the conduct takes place. The report then turns to the international legal framework limiting the conduct of nations as it applies during times of war and peace, and during what has been called 'quasi war.'"
Library of Congress. Congressional Research Service
Elsea, Jennifer
2003-10-01
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International Criminal Court: Overview and Selected Legal Issues [June 5, 2002]
"On April 11, 2002, the Rome Statute of the International Criminal Court received its sixtieth ratification, meaning it will come into effect July 1, 2002, establishing the first global permanent international court with jurisdiction to prosecute individuals for 'the most serious crimes of concern to the international community.' The United Nations, many human rights organizations, and most democratic nations have expressed support for the new court. The Bush Administration firmly opposes it and has formally renounced the U.S. obligations under the treaty. At the same time, however, the Administration has stressed that the United States shares the goal of the ICC's supporters - promotion of the rule of law - and does not intend to take any action to undermine the ICC. This report provides an historical background of the negotiations for the Rome Statute, outlines the structure of the ICC as contained in the final Statute, and describes the jurisdiction of the ICC. The report identifies the specific crimes enumerated in the Rome Statute as supplemented by the draft elements of crime. A discussion of procedural safeguards follows, including reference to the draft procedural rules. The report then discusses the implications for the United States as a non-ratifying country when the ICC comes into being, and outlines some legislation enacted and proposed to regulate U.S. relations with the ICC, including versions of the American Servicemembers' Protection Act (ASPA) contained in H.R. 1646 and H.R. 4775, the American Servicemember and Citizen Protection Act, H.R. 4169, and the American Citizens' Protection and War Criminal Prosecution Act of 2001, S. 1296/H.R. 2699."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2002-06-05
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Proposed Change to the Foreign Intelligence Surveillance Act (FISA) under S.113 [Updated August 9, 2004]
From the Summary: "In order to facilitate the surveillance of possible 'lone wolf' terrorists, whose links to an international terrorist organization may be difficult to ascertain, several bills have been introduced to amend the Foreign Intelligence Surveillance Act ('FISA'). The Senate passed S. 113, a bill to extend the coverage of FISA to non-U.S. persons who engage in international terrorism or activities in preparation for terrorist acts, without a showing of membership in or affiliation with an international terrorist group. While the Final Report of the National Commission on Terrorist Attacks Upon the United States (9/11 Commission) does not call for such a measure, the Bush Administration has indicated its support. FISA provides the government authority to conduct electronic surveillance (wiretap) and other searches with respect to a foreign power or its agents to obtain intelligence related to espionage, terrorism, or other matters involving national security. Related proposals include H.R. 3179, 304 of S. 2386, H.R. 3552, and S. 123."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2004-08-09
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U.S. Treatment of Prisoners in Iraq: Selected Legal Issues [Updated October 4, 2004]
From the Summary: "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) may also be 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 also apply in some circumstances. This report summarizes pertinent provisions of the Geneva Conventions Relative to the Treatment of Victims of War (Geneva Conventions) 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. This report will be updated."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2004-10-04
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Iraq: Transition to Sovereignty [Updated July 21, 2004]
"The Bush Administration had initially made the end of the U.S. occupation contingent on the completion of a new constitution and the holding of national elections for a new government, tasks to be completed by 2005. However, political infighting among Iraq's various ethnic and political factions, coupled with a persistent insurgency, slowed progress on setting up an elected political structure. Amid ongoing insurgency, the United States handed sovereignty to an Iraqi interim government on June 28. The Bush Administration maintains that the handover was a success and will begin a transition to democracy and stability. Critics assert that the handover does not appear to have diminished the anti-U.S. insurgency, threatening the transition roadmap developed by the United States and United Nations. Legal issues may arise regarding the validity of laws issued during the occupation, as well as the status of U.S. troops in Iraq. See CRS Report RL31339, 'Iraq: U.S. Regime Change Efforts and Post-Saddam Governance'."
Library of Congress. Congressional Research Service
Katzman, Kenneth; Elsea, Jennifer
2004-07-21
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U.S. Treatment of Prisoners in Iraq: Selected Legal Issues [Updated January 14, 2005]
From the Summary: "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
2005-01-14
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International Emergency Economic Powers Act: Origins, Evolution, and Use [March 20, 2019]
From the Document: "The International Emergency Economic Powers Act (IEEPA) provides the President broad authority to regulate a variety of economic transactions following a declaration of national emergency. IEEPA, like the Trading with the Enemy Act (TWEA) from which it branched, sits at the center of the modern U.S. sanctions regime. Changes in the use of IEEPA powers since the act's enactment in 1977 have caused some to question whether the statute's oversight provisions are robust enough given the sweeping economic powers it confers upon the President upon declaration of a state of emergency."
Library of Congress. Congressional Research Service
Casey, Christopher A.; Fergusson, Ian F.; Rennack, Dianne E. . . .
2019-03-20
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International Emergency Economic Powers Act: Origins, Evolution, and Use [Updated July 14, 2020]
From the Summary: "The International Emergency Economic Powers Act (IEEPA) provides the President broad authority to regulate a variety of economic transactions following a declaration of national emergency. IEEPA, like the Trading with the Enemy Act (TWEA) from which it branched, sits at the center of the modern U.S. sanctions regime. Changes in the use of IEEPA powers since the act's enactment in 1977 have caused some to question whether the statute's oversight provisions are robust enough given the sweeping economic powers it confers upon the President during a declared emergency."
Library of Congress. Congressional Research Service
Casey, Christopher A.; Fergusson, Ian F.; Rennack, Dianne E. . . .
2020-07-14
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Criminal Prohibitions on the Publication of Classified Defense Information [August 4, 2011]
"The 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 suspected source of the material, Army Private Bradley Manning, has been charged with a number of offenses under the Uniform Code of Military Justice (UCMJ), including aiding the enemy, while a grand jury in Virginia is deciding whether to indict any civilians in connection with the disclosure. A number of other cases involving charges under the Espionage Act demonstrate the Obama Administration's relatively hard-line policy with respect to the prosecution of persons suspected of leaking classified information to the media. 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
2011-08-04
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U.S. Treatment of Prisoners in Iraq: Selected Legal Issues [May 24, 2004]
"A recent 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 report was the result of an Army investigation initiated after a soldier turned over to military law enforces 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. 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. 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). Finally, the report 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. This report will be updated."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2004-05-24
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Terrorism: Some Legal Restrictions on Military Assistance to Domestic Authorities Following a Terrorist Attack [Updated May 27, 2005]
"The Constitution empowers the President to act as Commander in Chief of the
armed forces and to see to the execution of federal law; it gives Congress the authority to make federal law including laws for the regulation of the armed forces. The Posse Comitatus Act prohibits use of the armed forces to perform civilian governmental tasks unless explicitly authorized to do so. There are statutory exceptions to ensure continued enforcement of state and federal law, to provide disaster assistance, and to provide technical support for law enforcement. Further exceptions are proposed (H.R. 1986, H.R. 1815). There are constitutional impediments to the use of the military to nationalize an industry, to try civilians, and to compel state officials to perform federally-imposed duties. Unlawful use of the armed forces might result in criminal or civil liability for responsible authorities and frustrate prosecution of terrorists. For a more complete discussion, see CRS Report 95-964, 'The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law."
Library of Congress. Congressional Research Service
Doyle, Charles; Elsea, Jennifer
2005-05-27
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Detention of American Citizens as Enemy Combatants [Updated February 24, 2005]
From the Summary: "This report provides background information regarding the cases of two U.S. citizens deemed "enemy combatants," Yaser Esam Hamdi, who has been returned to Saudi Arabia, and Jose Padilla, who remains in military custody. A brief introduction to the law of war pertinent to the detention of different categories of individuals is offered, followed by brief analyses of the main legal precedents invoked to support the President's actions, as well as 'Ex parte Milligan,' which some argue supports the opposite conclusion. A discussion of U.S. practice during wartime to detain persons deemed dangerous to the national security follows, including legislative history that may help to shed light on Congress' intent in authorizing the use of force to fight terrorism. The report concludes that historically, even during declared wars, additional statutory authority has been seen as necessary to validate the detention of citizens not members of any armed forces, casting in some doubt the argument that the power to detain persons arrested in a context other than actual hostilities is necessarily implied by an authorization to use force."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2005-02-24
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Options for Trying Saddam Hussein for International Crimes [Updated April 7, 2004]
From the Summary: "While U.S. courts do not appear to have jurisdiction under U.S. law for most of the crimes alleged to have been committed by Saddam Hussein, several options are available for prosecuting him for crimes against humanity, genocide, and war crimes. Precedents include national courts and national and international military tribunals similar to those used in the aftermath of World War II, an international ad hoc tribunal similar to those set up by the U.N. to adjudicate atrocities in the former Yugoslavia and Rwanda, and 'hybrid' tribunals -- which combine national and international elements. The Bush Administration supports prosecution by a special Iraqi court. Under the Geneva Conventions, if the United States were to turn Hussein over to the Iraqi interim government or another detaining power, it may remain responsible for assuring that the receiving power observe the safeguards in the Conventions."
Library of Congress. Congressional Research Service
Elsea, Jennifer
2004-04-07
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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
