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Guantanamo Detention Center: Legislative Activity in the 111th Congress [June 17, 2010]
"The detention of alleged enemy combatants 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, and various pending bills, address the disposition and treatment of Guantanamo detainees. Recently legislative activity has focused on the possible transfer of Guantanamo detainees to the United States. The Supplemental Appropriations Act, 2009 (P.L. 111-32) and five FY2010 measures place general restrictions on the use of federal funds to release or transfer a Guantanamo detainee into the United States. The relevant FY2010 measures include the Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83); the National Defense Authorization Act for Fiscal Year 2010 (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); and the Department of Defense Appropriations Act, 2010 (P.L. 111-118). Each of the enacted laws provides an exception which permits transfers when effected 45 days after specified reporting requirements have been fulfilled. However, in most of the measures, the 45-day exceptions apply only to transfers for the purpose of prosecution or detention during legal proceedings. Several pending bills, including the House-passed intelligence authorization bill (H.R. 2701) and FY2011 defense authorization measures in the House (H.R. 5136) and Senate (S. 3454), would extend or expand restrictions on detainee transfers."
Library of Congress. Congressional Research Service
Henning, Anna C.
2010-06-17
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Jurisprudence of Justice John Paul Stevens: Leading Opinions of Wartime Detentions [May 13, 2010]
"Justice John Paul Stevens played a pivotal role in determining the scope of executive-branch power in a post-9/11 world. After 9/11, Congress quickly authorized the Executive to respond to the terrorist attacks using military force. Difficult legal questions emerged from the consequences of the ensuing military actions, particularly as suspected members of Al Qaeda and the Taliban were captured in Afghanistan and elsewhere and transferred to the U.S. Naval Station at Guantanamo Bay, Cuba. Key questions included: What legal authorities restrict the Executive's ability to detain and try such persons as it sees fit? To what extent do detainees outside of the United States have the right to challenge their detentions in federal courts? When may Congress remove federal courts' jurisdiction over habeas cases? Justice Stevens authored majority opinions in two leading cases, 'Rasul v. Bush' and 'Hamdan v. Rumsfeld', in which the Court allowed detainees' habeas petitions to proceed and invalidated the early incarnation of military commissions, thereby rejecting the broader views of executive power articulated shortly after the 9/11 attacks. In the cases, his view prevailed over strongly articulated dissenting opinions authored by Justice Scalia and other justices. For a more in-depth examination of the Supreme Court's post-9/11 decisions regarding habeas corpus, see CRS [Congressional Research Service] Report RL33180, 'Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court', by Jennifer K. Elsea and Michael John Garcia."
Library of Congress. Congressional Research Service
Henning, Anna C.
2010-05-13
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Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice [April 8, 2010]
"For the first time since the judicial impeachments of 1986-1989, the House of Representatives has impeached two federal judges. On June 19, 2009, the House voted to impeach U.S. District Judge Samuel B. Kent of the U.S. District Court for the Southern District of Texas. The impeachment trial of Judge Kent before the Senate was dismissed after Judge Kent resigned from office and the House indicated that it did not wish to pursue the matter further. [...] Under the Constitution, the Senate has the unique power to try an impeachment. The decision whether to convict on each of the articles must be made separately. A conviction must be supported by a two-thirds majority of the Senators present. A conviction on any one of the articles of impeachment brought against an individual is sufficient to constitute conviction in the trial of the impeachment. Should a conviction occur, then the Senate must determine what the appropriate judgment is in the case. The Constitution limits the judgment to either removal from office or removal and prohibition against holding any future offices of 'honor, Trust or Profit under the United States.' The precedents in impeachment suggest that removal may flow automatically from conviction, but that the Senate must vote to prohibit the individual from holding future offices of public trust, if that judgment is also deemed appropriate. A simple majority vote is required on a judgment. Conviction on impeachment does not foreclose the possibility of criminal prosecution arising out of the same factual situation. The Constitution does not permit the President to extend executive clemency to anyone in order to preclude his or her impeachment by the House or trial or conviction by the Senate."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Henning, Anna C.
2010-04-08
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Guantanamo Detention Center: Legislative Activity in the 111th Congress [March 25, 2010]
"Recently legislative activity has focused on the possible transfer of Guantanamo detainees to the United States. The Supplemental Appropriations Act, 2009 (P.L. 111-32) and five FY2010 measures place general restrictions on the use of federal funds to release or transfer a Guantanamo detainee into the United States. The relevant FY2010 measures include the Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83); the National Defense Authorization Act for Fiscal Year 2010 (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); and the Department of Defense Appropriations Act, 2010 (P.L. 111-118). Each of the enacted laws provides an exception which permits transfers when effected 45 days after specified reporting requirements have been fulfilled. However, in most of the measures, the 45-day exceptions apply only to transfers for the purpose of prosecution or detention during legal proceedings. The public laws and pending proposals address additional issues related to the treatment and disposition of Guantanamo detainees. For example, Title XVIII of P.L. 111-84 establishes new procedures for military commissions. Section 552 of P.L. 111-83 requires that former Guantanamo detainees be included on the 'No Fly List' in most circumstances and restricts their access to immigration benefits. This report analyzes relevant provisions in enacted legislation and selected pending bills. For more detailed explorations of the legal issues related to the potential closure of the detention facility and the transfer, release, and treatment of detainees, see CRS Report R40139, 'Closing the Guantanamo Detention Center: Legal Issues', by Michael John Garcia et al., and CRS Report RL33180, 'Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court', by Jennifer K. Elsea and Michael John Garcia."
Library of Congress. Congressional Research Service
Henning, Anna C.
2010-03-25
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Government Collection of Private Information: Background and Issues related to the USA PATRIOT Act Reauthorization [March 2, 2010]
"Congress enacted the USA PATRIOT Act soon after the 9/11 terrorist attacks. The most controversial sections of the act facilitate the federal government's collection of more information, from a greater number of sources, than had previously been authorized in criminal or foreign intelligence investigations. The Foreign Intelligence Surveillance Act (FISA), the Electronic Communications Privacy Act (ECPA), and the national security letter (NSL) statutes were all bolstered. With the changes came greater access to records showing an individual's spending and communication patterns as well as increased authority to intercept e-mail and telephone conversations and to search homes and businesses. In some cases, evidentiary standards required to obtain court approval for the collection of information were lowered. Other approaches included expanding the scope of information subject to search, adding flexibility to the methods by which information could be collected, and broadening the purposes for which information may be sought. [...] Subsequent measures made most of the USA PATRIOT Act changes permanent. However, three authorities affecting the collection of foreign intelligence information are set to expire on February 28, 2011: the lone wolf, roving wiretap, and business record sections of FISA. The 111th Congress replaced an earlier expiration date with the 2011 date. Before that change was made, the impending expiration prompted legislative proposals which revisit changes made by the USA PATRIOT Act and related measures. [...] This report surveys the legal environment in which the legislative proposals arise."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Doyle, Charles; Henning, Anna C. . . .
2010-03-02
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Guantanamo Detention Center: Legislative Activity in the 111th Congress [December 30, 2009]
"The detention of alleged enemy combatants at the U.S. Naval Station in Guantanamo Bay, Cuba, together with recent 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, and various pending bills, address the disposition and treatment of Guantanamo detainees."
Library of Congress. Congressional Research Service
Henning, Anna C.
2009-12-30
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Amendments to the Foreign Intelligence Surveillance Act (FISA) Set to Expire February 28, 2010 [December 23, 2009]
"Three amendments to the Foreign Intelligence Surveillance Act (FISA) are set to expire (sunset) on February 28, 2010. S. 1692, a bill reported favorably by the Senate Judiciary Committee with an amendment in the nature of a substitute, would extend the sunset date by four years and make various modifications to existing authorities. H.R. 3845 would likewise establish a new sunset of December 31, 2013, but it would reauthorize only two of the three expiring provisions."
Library of Congress. Congressional Research Service
Henning, Anna C.; Liu, Edward C.
2009-12-23
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Government Collection of Private Information: Background and Issues Related to the USA PATRIOT Act Reauthorization [December 23, 2009]
"Congress enacted the USA PATRIOT Act soon after the 9/11 terrorist attacks. The most controversial sections of the Act facilitate the federal government's collection of more information, from a greater number of sources, than had previously been authorized in criminal or foreign intelligence investigations. The Foreign Intelligence Surveillance Act (FISA), the Electronic Communications Privacy Act (ECPA), and the national security letter (NSL) statutes were all bolstered. With the changes came greater access to records showing an individual's spending and communication patterns as well as increased authority to intercept e-mail and telephone conversations and to search homes and businesses. In some cases, evidentiary standards required to obtain court approval for the collection of information were lowered. Other approaches included expanding the scope of information subject to search, adding flexibility to the methods by which information could be collected, and broadening the purposes for which information may be sought."
Library of Congress. Congressional Research Service
Henning, Anna C.; Doyle, Charles; Bazan, Elizabeth B.
2009-12-23
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Government Collection of Private Information: Background and Issues Related to the USA PATRIOT Act Reauthorization [December 9, 2009]
"Congress enacted the USA PATRIOT Act soon after the 9/11 terrorist attacks. The most controversial sections of the Act facilitate the federal government's collection of more information, from a greater number of sources, than had previously been authorized in criminal or foreign intelligence investigations. The Foreign Intelligence Surveillance Act (FISA), the Electronic Communications Privacy Act (ECPA), and the national security letter (NSL) statutes were all bolstered. With the changes came greater access to records showing an individual's spending and communication patterns as well as increased authority to intercept e-mail and telephone conversations and to search homes and businesses. In some cases, evidentiary standards required to obtain court approval for the collection of information were lowered. Other approaches included expanding the scope of information subject to search, adding flexibility to the methods by which information could be collected, and broadening the purposes for which information may be sought. Some perceived the changes as necessary to unearth terrorist cells and update investigative authorities to respond to the new technologies and characteristics of ever-shifting threats. Others argued that authorities granted by the USA PATRIOT Act and subsequent measures could unnecessarily undermine constitutional rights over time. […]. In addition to the expiring provisions, pending bills address a range of issues, including national security letters, minimization requirements, nondisclosure requirements (gag orders), interception of international communications, and retroactive repeal of communication provider immunity for Terrorist Surveillance Program (TSP) assistance. This report surveys the legal environment in which the legislative proposals arise."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Doyle, Charles; Henning, Anna C.
2009-12-09
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Guantanamo Detention Center: Legislative Activity in the 111th Congress [November 6, 2009]
"The detention of alleged enemy combatants at the U.S. Naval Station in Guantanamo Bay, Cuba, and the potential transfer of such individuals away from the Guantanamo detention facility, have been the focus of significant legislative activity during the 111th Congress. Several enacted authorization and appropriations measures affect the treatment of Guantanamo detainees and restrict the use of federal funds to transfer or release Guantanamo detainees into the United States. [...] This report analyzes relevant provisions in enacted legislation and selected pending bills. For more detailed explorations of the legal issues related to the potential closure of the detention facility and the transfer, release, and treatment of detainees, see CRS Report R40139, 'Closing the Guantanamo Detention Center: Legal Issues,' by Michael John Garcia et al., and 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
Henning, Anna C.
2009-11-06
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Amendments to the Foreign Intelligence Surveillance Act (FISA) Set to Expire in 2009 [October 29, 2009]
"Three amendments to the Foreign Intelligence Surveillance Act (FISA) are set to expire (sunset) on December 31, 2009. S. 1692, a bill reported favorably by the Senate Judiciary Committee with an amendment in the nature of a substitute, would extend the sunset date by four years and make various modifications to existing authorities. H.R. 3845 would likewise establish a new sunset of December 31, 2013, but it would reauthorize only two of the three expiring provisions. The three sunsetting amendments expanded the scope of federal intelligence-gathering authority following the 9/11 terrorist attacks. Two were enacted as part of the USA PATRIOT Act. Section 206 of the USA PATRIOT Act amended FISA to permit multipoint, or 'roving,' wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. Section 215 enlarged the scope of materials that could be sought under FISA to include 'any tangible thing.' It also lowered the standard required before a court order may be issued to compel their production. The third amendment was enacted in 2004, as part of the Intelligence Reform and Terrorism Protection Act (IRTPA). Section 6001(a) of the IRTPA changed the rules regarding the types of individuals who may be targets of FISA-authorized searches. Also known as the 'lone wolf' provision, it permits surveillance of non-U.S. persons engaged in international terrorism without requiring evidence linking those persons to an identifiable foreign power or terrorist organization."
Library of Congress. Congressional Research Service
Henning, Anna C.; Liu, Edward C.
2009-10-29
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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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Guantanamo Detention Center: Legislative Activity in the 111th Congress [August 6, 2009]
"The detention of alleged enemy combatants at the U.S. Naval Station in Guantanamo Bay, Cuba, has been the focus of significant legislative activity during the 111th Congress. The Supplemental Appropriations Act, 2009 (P.L. 111-32), enacted in June 2009, contains several provisions relevant to Guantanamo detainees. Section 319 of the act includes an ongoing reporting requirement. Section 14103 restricts the use of funds for the transfer and release of the detainees in specified circumstances. Although the Supplemental Appropriations Act is the only Guantanamo-related measure enacted to date in the 111th Congress, versions of defense appropriations and authorization bills passed by the House and Senate also contain provisions that would establish reporting requirements, restrict the transfer or release of detainees, or amend military commission procedures. Various other proposals address a range of issues related to detainee treatment, executive and judicial authority, and other matters. This report analyzes the relevant provisions of the Supplemental Appropriations Act, 2009, and selected legislative proposals that have been introduced in the 111th Congress. For more detailed explorations of the legal issues related to the potential closure of the detention facility and the transfer, release, and treatment of detainees, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia, et al., and 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
Henning, Anna C.
2009-08-06
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Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice [June 22, 2009]
"For the first time since the judicial impeachments of 1986-1989, the House has impeached a federal judge. On June 19, 2009, the House voted to impeach U.S. District Judge Samuel B. Kent of the U.S. District Court for the Southern District of Texas. [...] Under the Constitution, the Senate has the unique power to try an impeachment. The decision whether to convict on each of the articles must be made separately. A conviction must be supported by a two-thirds majority of the Senators present. A conviction on any one of the articles of impeachment brought against an individual is sufficient to constitute conviction in the trial of the impeachment. Should a conviction occur, then the Senate must determine what the appropriate judgment is in the case. The Constitution limits the judgment to either removal from office or removal and prohibition against holding any future offices of 'honor, Trust or Profit under the United States.' The precedents in impeachment suggest that removal may flow automatically from conviction, but that the Senate must vote to prohibit the individual from holding future offices of public trust, if that judgment is also deemed appropriate. A simple majority vote is required on a judgment. Conviction on impeachment does not foreclose the possibility of criminal prosecution arising out of the same factual situation. The Constitution does not permit the President to extend executive clemency to anyone in order to preclude his or her impeachment by the House or trial or conviction by the Senate."
Library of Congress. Congressional Research Service
Bazan, Elizabeth B.; Henning, Anna C.
2009-06-22
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Judge Sonia Sotomayor: Analysis of Selected Opinions [June 19, 2009]
"In May 2009, Supreme Court Justice David Souter announced his intention to retire from the Supreme Court. Several weeks later, President Obama nominated Judge Sonia Sotomayor, who currently serves on the U.S. Court of Appeals for the Second Circuit, to fill his seat. To fulfill its constitutional 'advice and consent' function, the Senate will consider Judge Sotomayor's extensive record -- compiled from years as a lawyer, prosecutor, district court judge, and appellate court judge -- to better understand her legal approaches and judicial philosophy. This report provides an analysis of selected opinions authored by Judge Sotomayor during her tenure as a judge on the Second Circuit. Discussions of the selected opinions are grouped according to various topics of legal significance."
Library of Congress. Congressional Research Service
Henning, Anna C.; Thomas, Kenneth R.
2009-06-19
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Analysis of Selected Legislative Proposals Addressing Guantanamo Detainees [May 11, 2009]
"Several bills introduced during the 111th Congress address the detention of suspected enemy belligerents held at the U.S. Naval Station in Guantanamo Bay, Cuba. This report identifies selected legislative proposals and analyzes pertinent legal implications. For detailed explorations of the legal issues raised by proposals addressing closure of the Guantanamo detention facility and interrogation techniques, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia, et. al. and CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea, Kenneth R. Thomas, and Michael John Garcia. On January 22, 2009, President Obama issued three executive orders affecting Guantanamo detainees. Some legislative proposals would effectuate or make permanent the policies contained in the executive orders. Other bills offer alternative approaches to the disposition of the detainees. The proposals pursue dramatically different goals, ranging from mandating closure of the Guantanamo detention facility to precluding closure through various requirements and restrictions, and offering various approaches to detainee treatment, interrogation methods, and jurisdictional concerns. To date, most bills have been referred to committees and no further legislative action has been taken."
Library of Congress. Congressional Research Service
Henning, Anna C.
2009-05-11
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Analysis of Selected Legislative Proposals Addressing Guantanamo Detainees [March 20, 2009]
"Several bills introduced during the 111th Congress address the detention of suspected enemy belligerents held at the U.S. Naval Station in Guantanamo Bay, Cuba. This report identifies selected legislative proposals and analyzes pertinent legal implications. For detailed explorations of the legal issues raised by proposals addressing closure of the Guantanamo detention facility and interrogation techniques, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia, et. al. and CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea, Kenneth R. Thomas, and Michael John Garcia. On January 22, 2009, President Obama issued three executive orders affecting Guantanamo detainees. Some legislative proposals would effectuate or make permanent the policies contained in the executive orders. Other bills offer alternative approaches to the disposition of the detainees. The proposals pursue dramatically different goals, ranging from mandating closure of the Guantanamo detention facility to precluding closure through various requirements and restrictions, and offering various approaches to detainee treatment, interrogation methods, and jurisdictional concerns. To date, most bills have been referred to committees and no further legislative action has been taken."
Library of Congress. Congressional Research Service
Henning, Anna C.
2009-03-20
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Comprehensive National Cybersecurity Initiative: Legal Authorities and Policy Considerations [March 10, 2009]
"Federal agencies report increasing cyber-intrusions into government computer networks, perpetrated by a range of known and unknown actors. In response, the President, legislators, experts, and others have characterized cybersecurity as a pressing national security issue. Like other national security challenges in the post-9/11 era, the cyber threat is multi-faceted and lacks clearly delineated boundaries. Some cyber attackers operate through foreign nations' military or intelligence-gathering operations, whereas others have connections to terrorist groups or operate as individuals. Some cyber threats might be viewed as international or domestic criminal enterprises. In January 2008, the Bush Administration established the Comprehensive National Cybersecurity Initiative (the CNCI) by a classified joint presidential directive. The CNCI establishes a multi-pronged approach the federal government is to take in identifying current and emerging cyber threats, shoring up current and future telecommunications and cyber vulnerabilities, and responding to or proactively addressing entities that wish to steal or manipulate protected data on secure federal systems. On February 9, 2009, President Obama initiated a 60-day interagency cybersecurity review to develop a strategic framework to ensure the CNCI is being appropriately integrated, resourced, and coordinated with Congress and the private sector. In response to the CNCI and other proposals, questions have emerged regarding: (1) the adequacy of existing legal authorities--statutory or constitutional--for responding to cyber threats; and (2) the appropriate roles for the executive and legislative branches in addressing cybersecurity. The new and emerging nature of cyber threats complicates these questions."
Library of Congress. Congressional Research Service
Rollins, John; Henning, Anna C.
2009-03-10
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Supreme Court Appellate Jurisdiction Over Military Court Cases [March 5, 2009]
This report describes the jurisdiction of military courts over cases involving military service members, including, in some cases, retired service members. Military courts "have the power to convict for crimes defined in the Uniform Code of Military Justice (UCMJ), including both uniquely military offenses and crimes with equivalent definitions in civilian laws. For example, in a 2008 case, United States v. Stevenson, military courts prosecuted a retired serviceman for rape, a crime often tried in civilian courts. The military court system includes military courts-martial; a Criminal Court of Appeals for each branch of the armed services; and the U.S. Court of Appeals for the Armed Forces (CAAF), which has discretionary appellate jurisdiction over all military cases. With the exception of potential final review by the U.S. Supreme Court, these Article I courts handle review of military cases in an appellate system that rarely interacts with Article III courts.[…] Companion bills introduced in the 111th Congress, the Equal Justice for Our Military Act of 2009 (H.R. 569) and the Equal Justice for Our Military Personnel Act of 2009 (S. 357), would authorize appeals to the U.S. Supreme Court for all military cases, including cases that the CAAF declined to review. The House passed a similar measure, H.R. 3174, during the 110th Congress."
Library of Congress. Congressional Research Service
Henning, Anna C.
2009-03-05
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Analysis of Legislative Proposals Addressing Guantanamo Detainees [March 5, 2009]
This report addresses several bills that were introduced during the 111th Congress regarding the detention of suspected enemy belligerents held at the U.S. Naval Station in Guantanamo Bay, Cuba. "On January 22, 2009, President Obama issued three executive orders affecting Guantanamo detainees. Some legislative proposals would effectuate or make permanent the policies contained in the executive orders. Other bills offer alternative approaches to the disposition of the detainees. […] Legislative proposals introduced during the 111th Congress offer dramatically different approaches to the disposition and treatment of Guantanamo detainees. They address a range of issues, including closure of the base, transfer of detainees to the United States, detainee treatment and prosecution, and jurisdictional matters. […] Although President Obama has addressed several of these issues in executive orders, legislation may be necessary to make measures taken in an executive order permanent or to effect alternative approaches to the disposition of Guantanamo detainees. To date, none of the legislative proposals have been reported from committee. If no bill passes, the Special Task Force on Detainee Disposition, established by executive order, will likely address many issues raised by the legislative proposals."
Library of Congress. Congressional Research Service
Henning, Anna C.
2009-03-05
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Border Searches of Laptop Computers and Other Electronic Storage Devices [January 30, 2009]
This Congressional Research Service (CRS) report discusses the debate surrounding fourth amendment rights and warrantless searches of laptop computers and other electronic storage devices at U.S. borders. "A developing question in the law of search and seizure is whether the Fourth Amendment of the U.S. Constitution permits warrantless searches of the content of laptop computers and other electronic storage devices at U.S. borders. The federal courts that have addressed this issue have universally held that the border search exception to the Fourth Amendment applies to these searches, making warrantless searches permissible. Although most of these courts did not make explicit the degree of suspicion needed to initiate such a search, the United States Court of Appeals for the Ninth Circuit was the first to rule that the Fourth Amendment does not require reasonable suspicion to justify a warrantless search of laptops at the border. The Fourth Amendment mandates that a search or seizure conducted by a government agent must be 'reasonable.' As a general rule, courts have construed Fourth Amendment 'reasonableness' as requiring probable cause and a judicially granted warrant. Nonetheless, the Supreme Court has recognized several exceptions to this presumptive warrant requirement, one of which is the border search exception."
Library of Congress. Congressional Research Service
Kim, Yule; Henning, Anna C.
2009-01-30
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Border Searches of Laptop Computers and Other Electronic Storage Devices [Updated November 17, 2008]
"As a general rule, the Fourth Amendment of the U.S. Constitution requires government-conducted searches and seizures to be supported by probable cause and a warrant. Federal courts have long recognized that there are many exceptions to this presumptive warrant requirement, one of which is the border search exception. The border search exception permits government officials, in most 'routine' circumstances, to conduct searches based on no suspicion of wrongdoing whatsoever. On the other hand, warrantless searches are permissible in some 'non-routine' and particularly invasive situations only when customs officials have 'reasonable suspicion' to conduct the search. The federal courts have universally held that the border search exception applies to laptop computer searches conducted at the border. Although the Supreme Court has not directly addressed the degree of suspicion needed to conduct a warrantless laptop border search, the federal appellate courts that have addressed the issue appear to have concluded that reasonable suspicion is not needed to justify such a search. The Ninth Circuit, in 'United States v. Arnold', explicitly held that reasonable suspicion is not required to conduct a warrantless search of a laptop at the border. Two related bills introduced in the 110th Congress, H.R. 6702 and H.R. 6588, would impose more rigorous standards for laptop searches than those the federal courts have determined are constitutionally required."
Library of Congress. Congressional Research Service
Henning, Anna C.; Kim, Yule
2008-11-17
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In Re Terrorist Attacks on September 11, 2001: Dismissals of Claims Against Saudi Defendants Under the Foreign Sovereign Immunities Act (FSIA) [October 29, 2008]
"In response to congressional inquiries, this report summarizes the FSIA and jurisdiction in cases against foreign defendants and analyzes the recent court of appeals decision. […] Practical and legal hurdles, including the difficulty of locating hidden al Qaeda members and the infeasibility of enforcing judgments in terrorism cases, hinder victims' attempts to establish liability in U.S. courts against, and recover financially from, those they argue are directly responsible for the September 11 terrorist attacks. […] Within the consolidated case In Re Terrorist Attacks of September 11, 2001, one such group of defendants was the Kingdom of Saudi Arabia, several Saudi princes, a Saudi banker, and a Saudi charity. Plaintiffs argued that these Saudi defendants funded groups that, in turn, assisted the attackers. […] In August 2008, the U.S. Court of Appeals for the Second Circuit affirmed dismissals of all claims against the Saudi defendants, holding that U.S. courts lack jurisdiction over the claims. Specifically, the court of appeals held that in this case, U.S. courts lack: 1) subject matter jurisdiction over the Kingdom of Saudi Arabia, because the Kingdom is entitled to immunity under the Foreign Sovereign Immunities Act (the FSIA) and no statutory exception to immunity applies; 2) subject matter jurisdiction over the Saudi charity and Saudi princes acting in their official capacities, because they are 'agents or instrumentalities' of the Kingdom and thus, under the FSIA, are entitled to immunity to the same extent as the Kingdom itself; and 3) personal jurisdiction over Saudi princes sued in their personal capacities, because the princes had insufficient interactions with the forum to satisfy the 'minimum contacts' standard for personal jurisdiction under the Fifth Amendment due process clause."
Library of Congress. Congressional Research Service
Henning, Anna C.
2008-10-29
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