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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona's S.B. 1070 [June 7, 2011]
"On April 23, 2010, Arizona enacted S.B. 1070, which is designed to discourage and deter the entry or presence of aliens who lack lawful status under federal immigration law. Potentially sweeping in effect, the measure requires state and local law enforcement officials to facilitate the detection of unauthorized aliens in their daily enforcement activities. The measure also establishes criminal penalties under state law, in addition to those already imposed under federal law, for alien smuggling offenses and failure to carry or complete alien registration documents. Further, it makes it a crime under Arizona law for an unauthorized alien to apply for or perform work in the state, either as an employee or an independent contractor. […] S.B. 1070, as amended, was scheduled to go into effect on July 29, 2010. However, the U.S. Department of Justice filed suit seeking to preliminarily enjoin the enforcement of certain sections of S.B. 1070 on the grounds that they are preempted. On July 28, 2010, a federal district court enjoined Arizona from enforcing those provisions of S.B. 1070 pertaining to immigration status verifications, among other things. Arizona appealed this decision, and on April 11, 2011, the U.S. Court of Appeals for the Ninth Circuit issued an opinion affirming the district court's decision. Arizona's governor has reportedly expressed a desire to appeal this decision, and the district court has yet to issue a final ruling as to the merits of the government's challenge."
Library of Congress. Congressional Research Service
Eig, Larry M.; Garcia, Michael John; Manuel, Kate
2011-06-07
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Closing the Guantanamo Detention Center: Legal Issues [February 11, 2011]
"The closure of the Guantanamo detention facility raises a number of legal issues with respect to the individuals formerly interned there, particularly if those detainees are transferred to the United States. The nature and scope of constitutional protections owed to detainees within the United States may be different from the protections owed to aliens held abroad. The transfer of detainees to the United States may also have immigration consequences. This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought into the country. It also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions)."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John; Mason, R. Chuck
2011-02-11
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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings [March 29, 2011]
"As part of the conflict with Al Qaeda and the Taliban, the United States has captured and detained numerous persons believed to have been part of or associated with enemy forces. Over the years, federal courts have considered a multitude of petitions by or on behalf of suspected belligerents challenging aspects of U.S. detention policy. Although the Supreme Court has issued definitive rulings concerning several legal issues raised in the conflict with Al Qaeda and the Taliban, many others remain unresolved, with some the subject of ongoing litigation. This report discusses major judicial opinions concerning suspected enemy belligerents detained in the conflict with Al Qaeda and the Taliban. The report addresses all Supreme Court decisions concerning enemy combatants. It also discusses notable circuit court opinions addressing issues of ongoing relevance to U.S. detention policy. The report also summarizes a few notable decisions by federal district courts, which have addressed whether the executive may lawfully detain only persons who are 'part of' Al Qaeda, the Taliban, and affiliated groups, or also those who provide a sufficient degree of support to such entities in their hostilities against the United States and its allies; adopted a functional approach for assessing whether a person is 'part of' Al Qaeda; decided that a preponderance of evidence standard is appropriate for detainee habeas cases, but suggested that a lower standard might be constitutionally permissible, and instructed courts to assess the cumulative weight of evidence rather than each piece of evidence in isolation; determined that Guantanamo detainees have a limited right to challenge their proposed transfer to the custody of a foreign government, but denied courts the authority to order detainees released into the United States; and held that the constitutional writ of habeas does not presently extend to noncitizen detainees held at U.S.-operated facilities in Afghanistan. Finally, the report discusses several criminal cases involving persons who were either involved in the 9/11 attacks (Zacarias Moussaoui) or were captured abroad by U.S. forces or allies during operations against Al Qaeda, the Taliban, and associated entities (John Walker Lindh and Ahmed Ghailani)."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2011-03-29
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Closing the Guantanamo Detention Center: Legal Issues [March 28, 2011]
"Following the terrorist attacks of 9/11, Congress passed the Authorization to Use Military Force (AUMF), which granted the President the authority 'to use all necessary and appropriate force against those ... [who] planned, authorized, committed, or aided the terrorist attacks' against the United States. Many persons subsequently captured during military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention and possible prosecution before military tribunals. Although nearly 800 persons have been held at Guantanamo at some point since early 2002, the substantial majority of Guantanamo detainees have ultimately been transferred to another country for continued detention or release. Those detainees who remain fall into three categories: (1) persons placed in non-penal, preventive detention to stop them from rejoining hostilities; (2) persons who face or are expected to face criminal charges; and (3) persons who have been cleared for transfer or release, whom the United States continues to detain pending transfer. Although the Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees may seek habeas corpus review of the legality of their detention, several legal issues remain unsettled."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John; Mason, R. Chuck
2011-03-28
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Guantanamo Detention Center: Legislative Activity in the 111th Congress [January 13, 2011]
"The detention of alleged enemy belligerents at the U.S. Naval Station in Guantanamo Bay, Cuba, together with proposals to transfer some such individuals to the United States for prosecution or continued detention, has been a subject of considerable interest for Congress. Several authorization and appropriations measures enacted during the 111th Congress addressed the disposition and treatment of Guantanamo detainees. This report analyzes legislation enacted in the 111th Congress concerning persons held at the Guantanamo detention facility. […] Several appropriations measures enacted in the 111th Congress restricted appropriated funds from being used to transfer or release Guantanamo detainees into the United States; they permitted transfers for purposes of criminal prosecution or detention during legal proceedings, contingent upon certain reporting requirements being fulfilled. However, the 2011 NDAA [National Defense Authorization Act] (P.L. 111-383), which was signed into law on January 7, 2011, prohibits any funds it authorizes to be appropriated to the Department of Defense (DOD) from being used to transfer Guantanamo detainees into the United States for any purpose, and also bars such funds from being used to assist in the transfer of such persons. Because Guantanamo detainees are presently in military custody, the act could be interpreted as effectively barring the transfer of any Guantanamo detainee into the United States, despite language in authorizing appropriations measures for other federal agencies that permits the use of funds to transfer detainees into the country for criminal prosecution. In addition to these restrictions, the 2011 NDAA bars authorized funds from being used to construct facilities in the United States to house transferred Guantanamo detainees, and also imposes restrictions on the transfer of detainees to certain foreign countries in order to deter the return of transferred detainees to hostilities."
Library of Congress. Congressional Research Service
Garcia, Michael John
2011-01-13
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Guantanamo Detention Center: Legislative Activity in the 111th Congress [November 4, 2010]
"The detention of alleged enemy belligerents at the U.S. Naval Station in Guantanamo Bay, Cuba, together with proposals to transfer some such individuals to the United States for prosecution or continued detention, has been a subject of considerable interest for Congress. Several authorization and appropriations measures enacted during the 111th Congress, along with various pending bills, address the disposition and treatment of Guantanamo detainees. To date in the 111th Congress, provisions directly relating to Guantanamo detainees have been enacted as part of eight laws: the 2009 Supplemental Appropriations Act (P.L. 111-32); the Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83); the 2010 National Defense Authorization Act (P.L. 111-84); the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010 (P.L. 111-88); the Consolidated Appropriations Act, 2010 (P.L. 111-117); the Department of Defense Appropriations Act, 2010 (P.L. 111-118); the Supplemental Appropriations Act, 2010 (P.L. 111-212) and the Intelligence Authorization Act for FY2010 (P.L. 111-259). Most of these measures impose general restrictions on the use or availability of funds to transfer or release Guantanamo detainees into the United States, though they also provide an exception permitting transfers for purposes of criminal prosecution or detention during legal proceedings if certain reporting requirements are fulfilled. Although the 2010 fiscal year has ended, the Continuing Appropriations Act, 2011 (P.L. 111-242) generally extends funding for federal agencies at the FY2010 enacted spending levels through December 3, 2010, under the authority and conditions established under FY2010 appropriations acts."
Library of Congress. Congressional Research Service
Garcia, Michael John
2010-11-04
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Immigration: Selected Opinions of Judge Samuel Alito [January 3, 2006]
"Judge Samuel Alito, President Bush's nominee to replace retiring Justice Sandra Day O'Connor as an associate justice on the Supreme Court, has been a judge for the U.S. Court of Appeals for the Third Circuit since 1990. This report discusses notable majority and dissenting opinions written by Judge Alito relating to immigration."
Library of Congress. Congressional Research Service
Garcia, Michael John
2006-01-03
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Immigration Consequences of Criminal Activity [Updated December 2, 2004]
"Congress has broad plenary authority to determine classes of aliens who may be admitted into the United States and the grounds for which they may be removed. Pursuant to the Immigration and Nationality Act (INA), as amended, certain conduct may either disqualify an alien from entering the United States ('inadmissibility') or provide grounds for his or her removal/deportation. Prominently included among this conduct is criminal activity. 'Criminal activity' comprises acts violative of federal, state, or, in many cases, foreign criminal law. It does not cover violations of the INA that are not crimes, most notably, being in the U.S. without legal permission. Thus, the term 'illegal alien' -- an alien without legal status -- is not synonymous with 'criminal alien.' Most crimes affecting immigration status are not specifically mentioned by the INA, but instead fall under a broad category of crimes, such as crimes involving moral turpitude or aggravated felonies. In addition, certain criminal conduct precludes a finding of good moral character under the INA, which is a requirement for naturalization and certain types of immigration relief. In certain circumstances, grounds for inadmissibility or deportability may be waived. Additionally, aliens facing removal may be allowed to remain in the United States, subject to discretionary or mandatory relief from removal for humanitarian reasons, such as through asylum, withholding of removal, or cancellation of removal. Aliens facing removal may also be permitted to depart the United States voluntarily, and thereby avoid the potential stigma and legal consequences of forced removal. Criminal conduct may effect an alien's eligibility for either voluntary departure or discretionary relief from removal. Additionally, criminal conduct is a key disqualifying factor under the character requirement for naturalization."
Library of Congress. Congressional Research Service
Eig, Larry M.; Garcia, Michael John
2004-12-02
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona's S.B. 1070 [September 14, 2010]
"On April 23, 2010, Arizona enacted S.B. 1070, which is designed to discourage and deter the entry or presence of aliens who lack lawful status under federal immigration law. [...] The enactment of S.B. 1070 has sparked significant legal and policy debate. Supporters argue that federal enforcement of immigration law has not adequately deterred the migration of unauthorized aliens into Arizona, and that state action is both necessary and appropriate to combat the negative effects of unauthorized immigration. Opponents argue, among other things, that S.B. 1070 will be expensive and disruptive, will be susceptible to uneven application, and can undermine community policing by discouraging cooperation with state and local law enforcement. In part to respond to these concerns, the Arizona State Legislature modified S.B. 1070 on April 30, 2010, through the approval of H.B. 2162. [...] S.B. 1070, as amended, was scheduled to go into effect on July 29, 2010. However, the U.S. Department of Justice filed suit seeking to preliminarily enjoin the enforcement of certain sections of S.B. 1070 on the grounds that they are preempted. On July 28, 2010, a federal district court enjoined Arizona from enforcing those provisions of S.B. 1070 pertaining to immigration status determinations during lawful stops, detentions, or arrests; failure to apply for or carry alien registration papers; the solicitation or performance of work by unauthorized aliens; and warrantless arrests for certain public offenses. Enforcement of other provisions of S.B. 1070 was not enjoined. Arizona has appealed the district court's decision."
Library of Congress. Congressional Research Service
Eig, Larry M.; Garcia, Michael John; Manuel, Kate
2010-09-14
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Authority of State and Local Police to Enforce Federal Immigration Law [September 17, 2010]
"The power to prescribe rules as to which aliens may enter the United States and which aliens may be removed resides solely with the federal government, and in particular with Congress. Concomitant to its exclusive power to establish rules which determine which aliens may enter and which may stay in the country, the federal government also has the power to sanction activities that subvert this system. Congress has defined our nation's immigration laws in the Immigration and Nationality Act (INA), a comprehensive set of rules for legal immigration, naturalization, work authorization, and the entry and removal of aliens. These requirements are bolstered by an enforcement regime containing both civil and criminal provisions. Deportation and associated administrative processes related to the removal of aliens are civil in nature, while certain violations of federal immigration law, such as smuggling unauthorized aliens into the country, carry criminal penalties."
Library of Congress. Congressional Research Service
Garcia, Michael John; Manuel, Kate
2010-09-17
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Extradition To and From the United States: Overview of the Law and Recent Treaties [March 17, 2010]
"'Extradition' is the formal surrender of a person by a State to another State for prosecution or punishment. Extradition to or from the United States is a creature of treaty. The United States has extradition treaties with over a hundred nations, although they are many countries with which it has no extradition treaty. International terrorism and drug trafficking have made extradition an increasingly important law enforcement tool. This is a brief overview of the adjustments made in recent treaties to accommodate American law enforcement interests, and then a nutshell overview of the federal law governing foreign requests to extradite a fugitive found in this country and a United States request for extradition of a fugitive found in a foreign country. Extradition treaties are in the nature of a contract and generate the most controversy with respect to those matters for which extradition may not be had. In addition to an explicit list of crimes for which extradition may be granted, most modern extradition treaties also identify various classes of offenses for which extradition may or must be denied. Common among these are provisions excluding purely military and political offenses; capital offenses; crimes that are punishable under only the laws of one of the parties to the treaty; crimes committed outside the country seeking extradition; crimes where the fugitive is a national of the country of refuge; and crimes barred by double jeopardy or a statute of limitations."
Library of Congress. Congressional Research Service
Doyle, Charles; Garcia, Michael John
2010-03-17
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [April 05, 2010]
"After the Supreme Court held that federal courts have jurisdiction under the federal habeas corpus statute to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the conflict against Al Qaeda and associated groups (Rasul v. Bush), the Pentagon established administrative hearings, called 'Combatant Status Review Tribunals' (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue habeas relief in federal court. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. […]This report provides an overview of the early judicial developments and the establishment of CSRT procedures; summarizes selected court cases related to the detentions and the use of military commissions; and discusses the Detainee Treatment Act, as amended by the Military Commissions Act of 2006 and the Military Commissions Act of 2009, analyzing its effects on detainee-related litigation in federal court. The report summarizes the Supreme Court's decision in Boumediene invalidating Congress's efforts to revoke the courts' habeas jurisdiction, and discusses some remaining issues and subsequent developments."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2010-04-05
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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings [April 1, 2010]
"As part of the conflict with Al Qaeda and the Taliban, the United States has captured and detained numerous persons believed to have been part of or associated with enemy forces. Over the years, federal courts have considered a multitude of petitions by or on behalf of suspected belligerents challenging aspects of U.S. detention policy. Although the Supreme Court has issued definitive rulings concerning several legal issues raised in the conflict with Al Qaeda and the Taliban, many others remain unresolved, with some the subject of ongoing litigation. This report discusses major judicial opinions concerning suspected enemy belligerents detained in the conflict with Al Qaeda and the Taliban. The report addresses all Supreme Court decisions concerning enemy combatants. It also discusses notable circuit court opinions addressing issues of ongoing relevance to U.S. detention policy. The report also addresses a few notable decisions by federal district courts that are the subject of ongoing habeas litigation. Finally, it describes a few federal court rulings in criminal cases involving persons who were either involved in the 9/11 attacks or were captured abroad by U.S. forces during operations against Al Qaeda, the Taliban, and associated entities."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2010-04-01
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [September 15, 2009]
"After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called 'Combatant Status Review Tribunals' (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue relief in federal court by seeking a writ of habeas corpus. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. […]. In March 2009, the Obama Administration announced a new definitional standard for the government's authority to detain terrorist suspects, which does not use the phrase 'enemy combatant' to refer to persons who may be properly detained. The new standard is similar in scope to the 'enemy combatant' standard used by the Bush Administration to detain terrorist suspects. The standard would permit the detention of members of the Taliban, Al Qaeda, and associated forces, along with persons who provide 'substantial support' to such groups, regardless of whether such persons were captured away from the battlefield in Afghanistan. Courts that have considered the Executive's authority to detain under the AUMF and law of war have reached differing conclusions as to the scope of this detention authority."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Thomas, Kenneth R.; Garcia, Michael John
2009-09-15
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Closing the Guantanamo Detention Center: Legal Issues [September 14, 2009]
"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. The report also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions). Issues discussed include detainees' right to a speedy trial, the prohibition against prosecution under ex post facto laws, and limitations upon the admissibility of hearsay and secret evidence in criminal cases."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Garcia, Michael John; Mason, R. Chuck . . .
2009-09-14
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Interrogation of Detainees: Requirements of the Detainee Treatment Act [Updated August 26, 2009]
"This report discusses the application of the [Detainee Treatment Act] DTA by the [Department of Defense] DOD in the updated 2006 version of the Army Field Manual, particularly in light of the Supreme Court's ruling in Hamdan v. Rumsfeld. In addition, the report discusses the Military Commissions Act of 2006 (MCA) (P.L. 109-366), which contains provisions that reference or amend the DTA. It also addresses the Executive Order issued by President Barack Obama that generally instructs all U.S. agencies to comply with Army Field Manual requirements when interrogating persons captured in an armed conflict. The report also discusses the recommendations made by the Special Task Force on Interrogation and Transfer established by the Executive Order, and the DTA's relevance in the event of the prosecution of U.S. personnel for authorized interrogation or detention activities. For discussion of the provisions in the DTA that limit judicial review of challenges to U.S. detention policy, see CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea, Kenneth R. Thomas, and Michael John Garcia."
Library of Congress. Congressional Research Service
Garcia, Michael John
2009-08-26
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [Updated April 7, 2009]
This report discusses past and recent developments of habeas corpus challenges in Federal Court. "In March 2009, the Obama Administration announced a new definitional standard for the government's authority to detain terrorist suspects, which does not use the phrase "enemy combatant" to refer to persons who may be properly detained. The new standard is similar in scope to the "enemy combatant" standard used by the Bush Administration to detain terrorist suspects. The standard would permit the detention of members of the Taliban, Al Qaeda, and associated forces, along with persons who provide "substantial support" to such groups, regardless of whether such persons were captured away from the battlefield in Afghanistan."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Thomas, Kenneth R.; Garcia, Michael John
2009-04-07
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U.S. Accesion to ASEAN's Treaty of Amity and Cooperation (TAC) [May 5, 2009]
"In February 2009, Secretary of State Hillary Rodham Clinton announced that the Obama Administration would launch its formal interagency process to pursue accession to the Association of Southeast Asian Nations' (ASEAN) Treaty of Amity and Cooperation (TAC), one of the ten-nation organization's core documents. It is expected that this process could be concluded within the year. If the Administration chooses to send a signal (such as signing the agreement) before then, it could do so at the next likely milestone, the ASEAN Regional Forum Foreign Ministerial meeting in late July 2009. This report will analyze the legal and diplomatic issues involved with the possible accession to the TAC. […]. Some U.S. and Southeast Asian officials and analysts say that expanding U.S. engagement with ASEAN will help boost Southeast Asia's political stature, particularly as China seeks to continue expanding its influence in the region. The major concern with accession is whether the TAC's emphasis on non-interference in other countries' domestic affairs would constrain U.S. freedom of action, particularly its ability to maintain or expand sanctions on Burma. […]. Other objections have included arguments that acceding would accord greater legitimacy to the ruling Burmese junta; a view that ASEAN is insufficiently 'action-oriented'; and a belief that the TAC is an untested, arguably meaningless agreement. One issue that might arise for U.S. policymakers is whether accession to the TAC should take the form of a treaty, subject to the advice and consent of the Senate, or whether the President already has sufficient authority to enter the TAC without further legislative action being necessary."
Library of Congress. Congressional Research Service
Morrison, Wayne M.; Manyin, Mark E.; Garcia, Michael John
2009-05-05
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Congressional Oversight and Related Issues Concerning International Security Agreements Concluded by the United States [June 2, 2009]
"The United States is a party to numerous security agreements with other nations. The topics covered, along with the significance of the obligations imposed upon agreement parties, may vary. Some international security agreements entered by the United States, such as those obliging parties to come to the defense of another in the event of an attack, involve substantial commitments and have traditionally been entered as treaties, ratified with the advice and consent of the Senate. Other agreements dealing with more technical matters, such as military basing rights or the application of a host country's laws to U.S. forces stationed within, are entered more routinely and usually take a form other than treaty (i.e., as an executive agreement or a nonlegal political commitment). […]. This report begins by providing a general background on the types of international agreements that are binding upon the United States, as well as considerations affecting whether they take the form of a treaty or an executive agreement. Next, the report discusses historical precedents as to the role that security agreements have taken, with specific attention paid to past agreements entered with Afghanistan, Germany, Japan, South Korea, the Philippines, and Iraq. The report discusses the oversight role that Congress exercises with respect to entering and implementing international agreements involving the United States."
Library of Congress. Congressional Research Service
Garcia, Michael John; Mason, R. Chuck
2009-06-02
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Closing the Guantanamo Detention Center: Legal Issues [Updated July 20, 2009]
"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. The report also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions). Issues discussed include detainees' right to a speedy trial, the prohibition against prosecution under ex post facto laws, and limitations upon the admissibility of hearsay and secret evidence in criminal cases."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Garcia, Michael John; Mason, R. Chuck
2009-07-20
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U.S. Accession to the Association of Southeast Asian Nations' Treaty of Amity and Cooperation (TAC) [Updated July 13, 2009]
"In February 2009, Secretary of State Hillary Rodham Clinton announced that the Obama Administration would launch its formal interagency process to pursue accession to the Association of Southeast Asian Nations' (ASEAN) Treaty of Amity and Cooperation (TAC), one of the ten-nation organization's core documents. The Administration reportedly hopes to announce its accession at the ASEAN Regional Forum Foreign Ministerial meeting July 22-23, 2009. This report analyzes the legal and diplomatic issues involved with accession to the TAC."
Library of Congress. Congressional Research Service
Morrison, Wayne M.; Manyin, Mark E.; Garcia, Michael John
2009-07-13
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [February 3, 2010]
"After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called 'Combatant Status Review Tribunals' (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue relief in federal court by seeking a writ of habeas corpus. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. [...] In March 2009, the Obama Administration announced a new definitional standard for the government's authority to detain terrorist suspects, which does not use the phrase 'enemy combatant' to refer to persons who may be properly detained. The new standard is similar in scope to the 'enemy combatant' standard used by the Bush Administration to detain terrorist suspects. The standard would permit the detention of members of the Taliban, Al Qaeda, and associated forces, along with persons who provide 'substantial support' to such groups, regardless of whether such persons were captured away from the battlefield in Afghanistan. Courts that have considered the Executive's authority to detain under the AUMF [Authorization to Use Military Force] and law of war have reached differing conclusions as to the scope of this detention authority. In January 2010, a D.C. Circuit panel held that support for or membership in an AUMF-targeted organization may constitute a sufficient ground to justify military detention."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2010-02-03
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International Law and Agreements: Their Effect Upon U.S. Law [January 26, 2010]
"This report provides an introduction to the roles that international law and agreements play in the United States. International law is derived from two primary sources--international agreements and customary practice. Under the U.S. legal system, international agreements can be entered into by means of a treaty or an executive agreement. The Constitution allocates primary responsibility for entering into such agreements to the executive branch, but Congress also plays an essential role. First, in order for a treaty (but not an executive agreement) to become binding upon the United States, the Senate must provide its advice and consent to treaty ratification by a two-thirds majority. Secondly, Congress may authorize congressional-executive agreements. Thirdly, many treaties and executive agreements are not self-executing, meaning that implementing legislation is required to provide U.S. bodies with the domestic legal authority necessary to enforce and comply with an international agreement's provisions."
Library of Congress. Congressional Research Service
Garcia, Michael John
2010-01-26
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Closing the Guantanamo Detention Center: Legal Issues [January 27, 2010]
"Following the terrorist attacks of 9/11, Congress passed the Authorization to Use Military Force (AUMF), which granted the President the authority 'to use all necessary and appropriate force against those ... [who] planned, authorized, committed, or aided the terrorist attacks' against the United States. Many persons subsequently captured during military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention and possible prosecution before military tribunals. Although nearly 800 persons have been transferred to Guantanamo since early 2002, the substantial majority of Guantanamo detainees have ultimately been transferred to another country for continued detention or release. The 192 detainees who remain fall into three categories: (1) persons placed in non-penal, preventive detention to stop them from rejoining hostilities; (2) persons who have faced or are expected to face criminal charges; and (3) persons who have been cleared for transfer or release, whom the United States continues to detain pending transfer. Although the Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees may seek habeas corpus review of the legality of their detention, several legal issues remain unsettled, including the extent to which other constitutional provisions apply to noncitizens held at Guantanamo."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Garcia, Michael John; Mason, R. Chuck
2010-01-27
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Closing the Guantanamo Detention Center: Legal Issues [April 14, 2009]
"The closure of the Guantanamo detention facility may raise a number of legal issues with respect to the individuals formerly interned there, particularly if those detainees are transferred to the United States. The nature and scope of constitutional protections owed to detainees within the United States may be different than the protections owed to persons held at Guantanamo or elsewhere. This may have implications for the continued detention or prosecution of persons who are transferred to the United States. The transfer of detainees to the United States may also have immigration consequences. Notably, some detainees might qualify for asylum or other protections under immigration law. 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 or release 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 to the United States. The report also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, courtmartial proceedings, and military commissions). Issues discussed include detainees' right to a speedy trial, the prohibition against prosecution under ex post facto laws, and limitations upon the admissibility of hearsay and secret evidence in criminal cases."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Garcia, Michael John; Liu, Edward C.
2009-04-14
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Enforcing Immigration Law: The Role of State and Local Law Enforcement [March 11, 2009]
"Since the September 11, 2001, terrorist attacks, the enforcement of our nation's immigration laws has received a significant amount of attention. Some observers contend that the federal government does not have adequate resources to enforce immigration law and that state and local law enforcement entities should be utilized. Others, however, question what role state and local law enforcement agencies should have in light of limited state and local resources and immigration expertise. Congress defined our nation's immigration laws in the Immigration and Nationality Act (INA), which contains both criminal and civil enforcement measures. [...] Indeed, several jurisdictions have signed agreements (INA §287(g)) with the federal government to allow their respective state and local law enforcement agencies to perform new, limited duties relating to immigration law enforcement. Still, the enforcement of immigration laws by state and local officials has sparked debate among many who question what the proper role of state and local law enforcement officials should be in enforcing such laws. For example, many have expressed concern over proper training, finite resources at the local level, possible civil rights violations, and the overall impact on communities. Some communities have taken steps to define or limit the involvement of local authorities in the implementation of immigration law. This report examines some of the policy and legal issues that may accompany an increased role of state and local law officials in the enforcement of immigration law."
Library of Congress. Congressional Research Service
Ester, Karma; Seghetti, Lisa M.; Garcia, Michael John
2009-03-11
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Border Security: Barriers Along the U.S. International Border [March 16, 2009]
"Congress has repeatedly shown interest in examining and expanding the barriers being deployed along the U.S. international land border. The United States Border Patrol (USBP) deploys fencing, which aims to impede the illegal entry of individuals, and vehicle barriers, which aim to impede the illegal entry of vehicles (but not individuals) along the border. The USBP first began erecting physical barriers in 1990 to deter illegal entries and drug smuggling in its San Diego sector. The ensuing 14-mile-long San Diego 'primary fence' formed part of the USBP's 'Prevention Through Deterrence' strategy, which called for reducing unauthorized migration by placing agents and resources directly on the border along population centers in order to deter would-be migrants from entering the country. [...]. In addition to border fencing, the USBP deploys both permanent and temporary vehicle barriers to the border. Temporary vehicle barriers are typically chained together and can be moved to different locations at the USBP's discretion. Permanent vehicle barriers are embedded in the ground and are meant to remain in one location. A number of policy issues concerning border barriers generally and fencing specifically may be of interest to Congress, including, but not limited, to their effectiveness, costs versus benefits, location, design, environmental impact, potential diplomatic ramifications, and the costs of acquiring the land needed for construction. This report will be updated as circumstances warrant."
Library of Congress. Congressional Research Service
Garcia, Michael John; Haddal, Chad C.; Kim, Yule
2009-03-16
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Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court [January 29, 2009]
"After the U.S. Supreme Court held that U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba, in connection with the war against terrorism (Rasul v. Bush), the Pentagon established administrative hearings, called 'Combatant Status Review Tribunals' (CSRTs), to allow the detainees to contest their status as enemy combatants, and informed them of their right to pursue relief in federal court by seeking a writ of habeas corpus. Lawyers subsequently filed dozens of petitions on behalf of the detainees in the District Court for the District of Columbia, where district court judges reached inconsistent conclusions as to whether the detainees have any enforceable rights to challenge their treatment and detention. [...]. This report provides an overview of the CSRT procedures; summarizes selected court cases related to the detentions and the use of military commissions; discusses the Detainee Treatment Act, as amended by the Military Commissions Act of 2006, analyzing its effects on detainee-related litigation in federal court; and discusses the Supreme Court's decision in Boumediene and possible effects upon legal challenges raised by detainees. The report summarizes pending legislation and provides an analysis of relevant constitutional issues that may have some bearing on Congress's options with respect to detainees held at Guantanamo and elsewhere."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Thomas, Kenneth R.; Garcia, Michael John
2009-01-29
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Closing the Guantanamo Detention Center: Legal Issues [November 17, 2009]
"The closure of the Guantanamo detention facility may raise a number of legal issues with respect to the individuals formerly interned there, particularly if those detainees are transferred to the United States for continued detention, prosecution, or release. The nature and scope of constitutional protections owed to detainees within the United States may be different from the protections owed to persons held outside the United States. This may have implications for the continued detention or prosecution of persons who are transferred to the United States. The transfer of detainees to the United States may also have immigration consequences. This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought into the country. It also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions)."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Garcia, Michael John; Mason, R. Chuck
2009-11-17
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Congressional Oversight and Related Issues Concerning International Security Agreements Concluded by the United States [October 1, 2009]
"The United States is a party to numerous security agreements with other nations. [...]. Some international security agreements entered by the United States, such as those obliging parties to come to the defense of another in the event of an attack, involve substantial commitments and have traditionally been entered as treaties, ratified with the advice and consent of the Senate. Other agreements dealing with more technical matters, such as military basing rights or the application of a host country's laws to U.S. forces stationed within, are entered more routinely and usually take a form other than treaty (i.e., as an executive agreement or a nonlegal political commitment). Occasionally, the substance and form of a proposed security agreement may become a source of dispute between Congress and the executive branch. [...]. Regardless of the form a security arrangement may take, Congress has several tools to exercise oversight regarding the negotiation, form, conclusion, and implementation of the agreement by the United States. This report begins by providing a general background on the types of international agreements that are binding upon the United States, as well as considerations affecting whether they take the form of a treaty or an executive agreement. Next, the report discusses historical precedents as to the role that security agreements have taken, with specific attention paid to past agreements entered with Afghanistan, Germany, Japan, South Korea, the Philippines, and Iraq. The report discusses the oversight role that Congress exercises with respect to entering and implementing international agreements involving the United States."
Library of Congress. Congressional Research Service
Garcia, Michael John; Mason, R. Chuck
2009-10-01
