NATIONAL SECURITY LAW BRIEFING ©

PRESENTED BY

PIERRE A. KLEFF, JR., JD, MA

Pierre A. Kleff, JR. © 2017

Any copyrighted material contained in this lecture, including but not limited to cartoons, drawings, photographs,
essays, or other materials, are reproduced herein under the provisions of the Fair Use Doctrine, 17 U.S. Code §
107.

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 PIERRE A. KLEFF, JR., JD, MA

Family: Wife, daughter (1), sons (2), granddaughters (6), grandsons (2)

Education:
J.D. – Chase College of Law, Northern Kentucky University - 1973
M.A. (Hist) – Sam Houston State University - 2016
B.A. (Pol Sci/Hist) – University of Dayton - 1968
Post-graduate studies (Pol Sci/Hist) – Sam Houston State University

Admissions: Supreme Court of the United States, Supreme Court of Texas, Supreme
Court of Ohio (inactive), United States Court of Appeals for the Armed Forces,
United States Court of Appeals for the Fifth Circuit, United States District Court for
Western District of Texas, United States District Court for Northern District of
Texas

Military:
Enlisted – U.S. Air Force – Honorable Discharge (Airman 1st Class)
Commissioned – U.S. Army – Judge Advocate officer – Retired (Lt. Colonel)
Overseas Tours: Honduras, Panama, Ecuador, Cuba (GTMO)

Civilian:
Business/commercial, transactional, real estate, family law, bankruptcy, and
litigation attorney (semi-retired)

Teaching Venues:
Central Texas College – Killeen, Texas
University of Texas Brownsville – Brownsville, Texas
Lone Star College – Cypress, Texas
University of Phoenix – Houston, Texas

Personal Interests:
Hobbies – dancing; Roman & Byzantine reenactment; watching Hallmark movies
Music - Blues, 50s rock n’ roll, classical
Reading – history; military; archeology; and historical, mystery, science fiction,
and military novels

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 SEPTEMBER 11, 2001

Following the 9/11 attacks, not only the Bush Administration, but the country as a
whole, was anxiously considering how to best respond to this unprecedented
attack on American soil by Islamic (al-Qaida) terrorists.

The Bush Administration faced a security and legal crisis following 9/11.

● The Clinton Administration had chosen to treat terrorism primarily as a

criminal problem, and thus relied on criminal prosecution to deal with the
problem.

● But the horror of the 9/11 attacks on U.S. soil made such approach
unfeasible.

● This attack was an act of war – President Bush chose to treat it as such.

If you know the enemy and know yourself, you need not fear the result
of a hundred battles. If you know yourself but not the enemy, for every
victory gained you will also suffer a defeat. If you know neither the enemy nor
yourself, you will succumb in every battle.”
- Sun Tzu, The Art of War

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 THE ISSUE OF WATERBOARDING

The Bush Administration had to consider how to detain and what

interrogation techniques were permissible and would effectively yield information
from captured al-Qaida terrorists.

The applicable federal statute in the Bush Administration’s consideration was

18 U.S.C. chapter 113C - Torture.

18 U.S. Code chapter 113C - § 2340 – Definitions

As used in this chapter—(1) “torture” means an act committed by a person
acting under the color of law specifically intended to inflict severe physical or
mental pain or suffering (other than pain or suffering incidental to lawful sanctions)
upon another person within his custody or physical control; [Emphasis added.]
(2) “severe mental pain or suffering” means the prolonged mental harm
caused by or resulting from— (A) the intentional infliction or threatened infliction of
severe physical pain or suffering; [Emphasis added.]
(B) the administration or application, or threatened administration or
application, of mind-altering substances or other procedures calculated to disrupt
profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death,
severe physical pain or suffering, or the administration or application of mind-
altering substances or other procedures calculated to disrupt profoundly the senses
or personality; and
(3) “United States” means the several States of the United States, the District
of Columbia, and the commonwealths, territories, and possessions of the United
States.

(Added Pub. L. 103–236, title V, § 506(a), Apr. 30, 1994, 108 Stat. 463; amended
Pub. L. 103–415, § 1(k), Oct. 25, 1994, 108 Stat. 4301; Pub. L. 103–429, § 2(2), Oct. 31,
1994, 108 Stat. 4377; Pub. L. 108–375, div. A, title X, § 1089, Oct. 28, 2004, 118 Stat.
2067.)

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 Article 1 of the United Nations Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment

“Torture means any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing him for an act
he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity. It does not include pain or suffering arising
only from, inherent in or incidental to lawful sanctions.”

This definition contains three cumulative elements:

● The intentional infliction of severe mental or physical suffering

● by a public official, who is directly or indirectly involved

● for a specific purpose.

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Following 9/11, the CIA suggested the use of enhanced interrogation techniques
(EITs) for terrorists captured overseas.

● This included waterboarding.

So, the definitions of torture are clear; and, waterboarding is indubitably torture.

Right?

A central theme of most definitions is that torture is the intentional infliction or

threatened infliction of severe physical pain or suffering.

● While waterboarding is thought of by many as inflicting severe physical pain,

the technique is actually a psychological technique.
ᴑ It arouses a fear of drowning, but in fact is not intended to drown the
subject.

So, is waterboarding torture?

This was a legal dilemma facing the Bush Administration following 9/11.

What is waterboarding?

“The application of the waterboard technique involves binding the detainee to a

bench with is feet elevated above his head. The detainee’s head is immobilized
and an interrogator places a cloth over the detainee’s mouth and nose while pouring
water onto the cloth in a controlled manner. Airflow is restricted for 20 to 40
seconds and the technique produces the sensation of drowning and suffocation.”

Source: Office of the Inspector General, Special Review: Counterterrorism, Detention, and
Interrogation Activities (September 2001 – October 2003) (Report No. 2003-7123-IG) (May 7, 2004),
15.

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 Military Position on Waterboarding

The U.S. Army was opposed the use of waterboarding based on legal precedent.

Court-Martial of Major Edwin F. Glenn.

Edwin F. Glenn was born in Greensboro, North Carolina. He graduated from the United
States Military Academy in 1877 and obtained a law degree in 1891.

During his military career, he served on the Western Frontier and in the Philippines,
the Campaign in Mexico, and World War I. Captain Glenn commanded exploratory
expeditions to the Cook Inlet area of Alaska in 1898 and 1899. He attained the rank of
Major General in 1917.

Major Glenn was tried by court martial for waterboarding in 1902.

● Court-Martial Charge: “Conduct to the prejudice of good order and discipline, in
violation of the sixty-second article of war.”
● Specification: “In that Maj. Edwin F. Glenn ... being on duty commanding the
United States troops while at the pueblo of Igbarras ... having in his charge one
Tobeniano Ealdama ... did unlawfully order, direct, and by his presence and
authority, cause an officer and soldiers ... to execute upon ... the said Tobeniano
Ealdama, a method of punishment commonly known ... as the ‘water cure....’ ”
● Testimony: According to Glenn, the technique he used was “the habitual method
of obtaining information from individual insurgents.” He did not deny that he
used waterboarding, but he argued that the method was “justified by military
necessity and warranted as a legitimate exercise of force by the laws of war.”
● Finding: Guilty.
● Sentence: Suspension from command for one month and $50.00 fine.
● History: This interrogation method was used by U.S. troops in the Philippines
during the Spanish-American War.

World War II War Crimes

There were a number of Japanese military personnel tried and convicted for torturing
Allied POWs in WWII, including waterboarding.

For an analysis see, Wallach, Evan, “Drop by Drop: Forgetting the History of Water
Torture in U.S. Courts,” The Columbia Journal of Transnational Law 45/2 (2007) [PDF
rough draft], www.pegc.us/archive/Articles/wallach_drop_by_drop_draft_20061016.pdf.

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 Traditional Military Law (c. 1886)

“We have seen that the status of war justifies no violence against a prisoner of
war as such, and subjects him to no penal consequence of the mere fact that he is an
enemy. For a commander to disembarrass his army of the presence and charge of
prisoners of war by taking their lives would be a barbarity which would be denounced
by all civilized nations. Where a captive entitled to be treated as a prisoner of war is put
to death, or where unlawful, unreasonably harsh, or cruel, treatment of prisoners is
practiced or permitted by one belligerent, the other may, as far as legally permissible,
retaliate; and any individual officer resorting to or taking part in such act or treatment is
guilty of a grave violation of the laws of war, for which, upon capture, he may be made
criminally answerable.”

Winthrop, William, Military Law and Precedents, Second Edition (Washington, D.C.:
Government Printing Office, 1920).

“Not only must we show consideration for those whom we have conquered by force
of arms but we must also ensure protection to those who lay down their arms and
throw themselves upon the mercy of our generals…” Cicero, “On Moral Duties 11/35,”
De officiis, trans. Walter Miller Boston, MA: Harvard University Press, 1913).

Legal Enquiries by President Bush

President Bush sought legal opinions from within his administration on what
interrogation techniques were legal under U.S. and international law.

Response: “The Bybee Memo”: Written by Jay C. Bybee for Alberto R. Gonzalez,
Counsel to the President, “Re. Standards of Conduct for Interrogation under 18 U.S.C.
§§ 2340-2340A (August 1, 2002)”.
Source: www.tomjoad.org/bybeememo.htm.

Jay Bybee, then Assistant U.S. Attorney General and head of the OLC, addressed a
memorandum to Alberto Gonzales, then Counsel to the President, dated August 1,

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2002, titled “Standards for Conduct for Interrogation under 18 U.S.C. 2340-2340A”. He
was responding to the President's reported request for a legal opinion on the U.N.
Convention Against Torture and 18 U.S.C. section 2340 and the interrogation of al
Qaeda operatives.
● The memorandum concludes with a narrow definition of torture, that
“severe pain” must necessarily be pain associated with “death, organ
failure, or serious impairment of body functions”.
● It also states that the statute requires “prolonged mental harm” to
accompany mental or physical pain, and that “prolonged” means a duration of
months or years.

Based on the Bybee Memo, the Bush Administration allowed the CIA to proceed to use
enhanced interrogation techniques on “high value detainees”.

The CIA concluded that some persons in its custody who were labeled “high value
detainees” (HVDs) – i.e., believed to possess actionable knowledge about imminent
terrorist threats against the U.S. - were resisting ordinary interrogation techniques.
● The CIA then began using “enhanced interrogation techniques” (EITs), including
waterboarding.
_____________________________________________________________________________

Jay Scott Bybee (born October 27, 1953) is a judge on the U.S. Court of Appeals for the Ninth Circuit. He
Has published numerous articles in law journals and has taught in law school. His primary research
interests are in Constitutional and administrative law. While serving in the Bush Administration
as the Assistant Attorney General at the Office of Legal Counsel, DOJ, he signed the controversial
“Torture Memo” in August 2002. This memo was used by the Bush Administration to authorize
“enhanced interrogation techniques” that were used in the interrogation of detainees at GITMO.

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 Enhanced Interrogation Techniques (EITs).

● The attention grasp consists of grasping the detainee with both hands, with
one hand on each side of the collar opening, in a controlled and quick
motion. In the same motion as the grasp, the detainee is drawn toward the
interrogator.

● During the walling motion, the detainee is pulled forward and then quickly
and firmly pushed into a flexible wall so that his shoulder blades hit the
wall. His head and neck are supported with a rolled towel to prevent
whiplash.

● The facial hold is used to hold the detainee’s head immobile. The
interrogator places an open palm on either side of the detainee’s face and
the interrogator’s fingertips are kept well away from the detainee’s eyes.

● With the facial or insult slap, the fingers are slightly spread apart. The
interrogator’s hand makes contact with the area between the tip of the
detainee’s chin and bottom of the corresponding earlobe.

● In cramped confinement, the detainee is placed in a confined space,

typically a small or large box, which is usually dark. Confinement in the
smaller space lasts no more than two hours and in the larger space it can
last up to 18 hours.

● Insects placed in a confinement box involves placing a harmless insect

into the box with the detainee.

● During wall standing, the detainee may stand about 4 to 5 feet from a wall
with is feet spread approximately to his shoulder width. His arms are
stretched out in front of him and his fingers rest on the wall to support all
of his body weight. The detainee is not allowed to reposition his hands or
feet.

● The application of stress positions may include having the detainee sit on
the floor with his legs extended straight out in front of him with his arms
raised above his head or kneeling on the floor while leaning back at a 45
degree angle.

● Sleep deprivation will not exceed 11 days at a time.

● The application of the waterboard technique involves binding the detainee

to a bench with is feet elevated above his head. The detainee’s head is
immobilized and an interrogator places a cloth over the detainee’s mouth
and nose while pouring water onto the cloth in a controlled manner.
Airflow is restricted for 20 to 40 seconds and the technique produces the
sensation of drowning and suffocation.

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Source: Office of the Inspector General, Special Review: Counterterrorism, Detention, and
Interrogation Activities (September 2001 – October 2003) (Report No. 2003-7123-IG) (May 7, 2004),
15.

President Bush issued a memorandum after September 17, 2001 – it remains

classified – which purportedly gave the CIA “unprecedented, broad authority to
render individuals who pose ‘continuing or serious threats of violence or death to
U.S. persons or interests or who are planning terrorist attacks’.”
● It is believed that this memo did not specifically refer to interrogation.
● Render is the capture of terrorists overseas and transferring them to
secure facilities overseas or to GTMO.

The first known foreign (extraordinary) rendition by the U.S. was that of airline
hijacker Fawaz Younis, who, in September 1987, was abducted after being lured
on a yacht in Italy and brought to the U.S. for trial. This was authorized by
President Ronald Reagan. President Bill Clinton authorized numerous renditions
to other states. Critics charge some of these host states practiced torture. The
administration of President George W. Bush rendered hundreds of “illegal
combatants” to foreign states and to U.S. controlled sites for interrogation,
including GTMO where enhanced interrogation techniques were used.
Rendition continued under President Barrack Obama. Under the Obama
Administration conventional interrogation was used. Some captives were taken
to the U.S. for trial under various terrorism statutes.

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In October 2003, Jack Goldsmith succeeded Bybee as head of the Office of Legal
Counsel.
● Based on his review of Bybee’s “Torture Memo”, he concluded that the
memo was legally defective and had to be withdrawn.
● His advice was rejected.
● He resigned.

In 2006, the Bush Administration banned “torture”, to include waterboarding of

detainees.
● This was ultimately based on the Bradbury memos.

Near the end of the Bush administration, Steven G. Bradbury, head of the Office
of Legal Counsel, signed two memoranda for the files, explaining that during his
tenure the OLC had determined that certain legal propositions previously stated
in ten prior OLC opinions issued between 2001 and 2003 concerning executive
power in the War on Terror no longer reflected the views of OLC.
● Bradbury had previously penned two memos approving continued use of
EITs.

These two memos said the 10 earlier opinions “should not be treated as authoritative
for any purpose” and further explained that some of the underlying opinions had
been withdrawn or superseded and that “caution should be exercised” by the
Executive Branch “before relying in other respects” on the other opinions that had
not been superseded or withdrawn.
● Source: Bradbury, Steven G., “Memorandum for the Files from Steven G. Bradbury, Principal
Deputy Assistant Attorney General, Re: Status of Certain OLC Opinions Issued in the
Aftermath of the Terrorist Attacks of September 22, 2011,” United States Department of Justice.

__________________________________________________________________________________________

Steven G. Bradbury (born 1958) is an American lawyer and from 2005-2009 was acting director of the
Office of Legal Counsel (OLC), `DOJ, during the second term of President George W. Bush. He
authored a number of classified legal opinions concerning the use of “enhanced interrogation
techniques”. He served as the acting chief of OLC until the end of the Bush Administration on
January 20, 2009. He is currently a partner at the Washington, D.C. office of Dechert LLP.

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President Barack H. Obama signed an Executive Order, released January 22, 2009,
which rescinded all the previous OLC guidance about “detention or the interrogation
of detained individuals” and directed that no government agency may rely on any of
the OLC opinions on that topic between 2001 and 2009.
● EITs were terminated, including waterboarding.
● See, “Executive Order: Interrogation, USA Today (January 22, 2009).

Effectiveness of enhanced interrogation techniques.

● Con: “Senate Select Committee on Intelligence Committee Study of the

Central Intelligence Agency’s detention and Interrogation Program –
Executive Summary”.
ᴑ “The CIA's use of its enhanced interrogation techniques was not an
effective means of acquiring intelligence or gaining cooperation from
detainees.”
ᴑ Source: See entire executive summary:
i2.cdn.turner.com/cnn/2014/images/12/09/sscistudy1.pdf

● Pro: “CIA Fact Sheet Regarding the SSCI Study on the Former Detention and
Interrogation Program.”
ᴑ “The Agency takes no position on whether intelligence obtained from
detainees who were subjected to EITs could have been obtained
through other means or from other individuals. The answer to this
question is, and will remain, unknowable.”
ᴑ “However, CIA reviews indicate that the program, including
interrogations of detainees on whom EITs were used, did produce
valuable and unique intelligence that helped thwart attack plans,
capture terrorists and save lives.”
ᴑ Source: https://www.cia.gov/news-information/press-releases-tatements/...

Commentary: Zegart, Amy, “SSCI Study of the CIA’s Detention and Interrogation
Program: A Flawed Report,” Lawfare (December 10, 2015),
www.lawwarfareblog.com/ssci-study-cias-detention-and…

Miscellaneous case law

● United States of America v. Charles Emmanuel, Case No. 06-20758-CR-

ALTONAGA, 2007 WL 2002452.
● Chavez v. Martinez, 538 U.S. 760 (2003).
● Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir,
(1991).

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 Miscellaneous statutes

● 5th, 8th, and 14th Amendments, U.S. Constitution.

● Torture Act, 18 USC Chap. 13 (§§ 2340-2340A).
● War Crimes Act of 1996, 18 USC § 2441.
● Alien Tort Statute, 28 USC § 1350.
● UCMJ, 10 USC § 855 (Cruel and unusual punishments prohibited).
● Detainee Treatment Act , 119 Stat. 2680 (2005), codified in part at 42 USC §
2000dd.

Miscellaneous international conventions.

● Common Article 3 of the Geneva Conventions.

● U.N. Convention Against Torture (CAT).
ᴑ U.S. Reservations, Cong. Rec. S17486-01 (Oct. 22, 1990) – intent.
● International Convention on Civil and Political Rights (ICCPR).

Common Article 3 to the Geneva Conventions

Common Article 3 to the Four Geneva Conventions of 1949 - Article 3, the text of
which is repeated in all four Geneva Conventions - is the only part of the
conventions that applies explicitly to internal armed conflicts. It has been called a
“treaty in miniature”, and sets forth the minimum protections and standards of
conduct to which the State and its armed opponents must adhere. The protections
it spells out are at the core of international humanitarian law. Additional Protocol II
of 1977 also covers internal armed conflicts, but it is less widely accepted among
States than the 1949 Conventions.

Article 3

“In the case of armed conflict not of an international character occurring in

the territory of one of the High Contracting Parties, each Party to the conflict shall
be bound to apply, as a minimum, the following provisions:

“1. Persons taking no active part in the hostilities, including

members of armed forces who have laid down their arms and those placed ‘hors
de combat’ by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction founded on
race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

“To this end, the following acts are and shall remain prohibited at
any time and in any place whatsoever with respect to the above-mentioned
persons:

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 (a) violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and
degrading treatment;
(d) the passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.

“2. The wounded and sick shall be collected and cared for.

“An impartial humanitarian body, such as the International

Committee of the Red Cross, may offer its services to the Parties to
the conflict.

“The Parties to the conflict should further endeavour to bring into

force, by means of special agreements, all or part of the other
provisions of the present Convention.

“The application of the preceding provisions shall not affect the legal
status of the Parties to the conflict.”

Operation Desert Storm saw the capture and imprisonment of an Army Flight Surgeon, Major
Rhonda Cornum and an Army Transportation Specialist-Sp4 Melissa Rathbun-Nealy.

CONVENTION AGAINST TORTURE

and Other Cruel, Inhuman or Degrading Treatment or Punishment

Article 1

“For the purposes of this Convention, torture means any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information or
a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person,
or for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity. It

15
does not include pain or suffering arising only from, inherent in or incidental to
lawful sanctions.

“This article is without prejudice to any international instrument or national

legislation which does or may contain provisions of wider application.”

U.S. reservations, declarations, and understandings, Convention Against Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment, Cong. Rec.
S17486-01 (daily ed., Oct. 27, 1990).

“The Senate's advice and consent is subject to the following reservations:

“(1) That the United States considers itself bound by the obligation under
Article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only
insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means
the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth,
Eighth, and/or Fourteenth Amendments to the Constitution of the United States.

“(2) That pursuant to Article 30(2) the United States declares that it does
not consider itself bound by Article 30(1), but reserves the right specifically to
agree to follow this or any other procedure for arbitration in a particular case.

“The Senate's advice and consent is subject to the following

understandings, which shall apply to the obligations of the United States
under this Convention:

“(1)(a) That with reference to Article 1, the United States understands

that, in order to constitute torture, an act must be specifically intended to inflict
severe physical or mental pain or suffering and that mental pain or suffering
refers to prolonged mental harm caused by or resulting from: (1) the intentional
infliction or threatened infliction of severe physical pain or suffering; (2) the
administration or application, or threatened administration or application, of mind
altering substances or other procedures calculated to disrupt profoundly the
senses or the personality; (3) the threat of imminent death; or (4) the threat that
another person will imminently be subjected to death, severe physical pain or
suffering, or the administration or application of mind altering substances or
other procedures calculated to disrupt profoundly the senses or personality.
[Emphasis added.]

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 (b) That the United States understands that the definition of torture in
Article 1 is intended to apply only to acts directed against persons in the
offender's custody or physical control.
(c) That with reference to Article 1 of the Convention, the United
States understands that ‘sanctions’ includes judicially imposed sanctions and
other enforcement actions authorized by United States law or by judicial
interpretation of such law. Nonetheless, the United States understands that a
State Party could not through its domestic sanctions defeat the object and
purpose of the Convention to prohibit torture.
(d) That with reference to Article 1 of the Convention, the
United States understands that the term ‘acquiescence’ requires that the
public official, prior to the activity constituting torture, have awareness of such
activity and thereafter breach his legal responsibility to intervene to prevent such
activity.
(e) That with reference to Article 1 of the Convention, the United
States understands that noncompliance with applicable legal procedural
standards does not per se constitute torture.
“(2) That the United States understands the phrase, ‘where there are
substantial grounds for believing that he would be in danger of being subjected
to torture,’ as used in Article 3 of the Convention, to mean ‘if it is more likely than
not that he would be tortured.’
“(3) That it is the understanding of the United States that Article 14
requires a State Party to provide a private right of action for damages only for
acts of torture committed in territory under the jurisdiction of that State Party.
“(4) That the United States understands that International law does not
prohibit the death penalty, and does not consider this Convention to restrict or
prohibit the United States from applying the death penalty consistent with the
Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United
States, including any constitutional period of confinement prior to the
imposition of the death penalty.”

Detainee Treatment Act (DTA) 119 Stat. 2680 (2005)

(Codified in part at 42 U.S. Code § 2000dd (2012)

“42 U.S. Code § 2000dd - Prohibition on cruel, inhuman, or degrading treatment

or punishment of persons under custody or control of the United States
Government

“(a) In general. No individual in the custody or under the physical control of

the United States Government, regardless of nationality or physical location, shall
be subject to cruel, inhuman, or degrading treatment or punishment.

“(b) Construction. Nothing in this section shall be construed to impose any

geographical limitation on the applicability of the prohibition against cruel,
inhuman, or degrading treatment or punishment under this section.

17
 “(c) Limitation on supersedure. The provisions of this section shall not be
superseded, except by a provision of law enacted after December 30, 2005, which
specifically repeals, modifies, or supersedes the provisions of this section.

“(d) Cruel, inhuman, or degrading treatment or punishment defined In this

section, the term ‘cruel, inhuman, or degrading treatment or punishment’ means
the cruel, unusual, and inhumane treatment or punishment prohibited by the
Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United
States, as defined in the United States Reservations, Declarations and
Understandings to the United Nations Convention Against Torture and Other
Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New
York, December 10, 1984.”

(Pub. L. 109–148, div. A, title X, § 1003, Dec. 30, 2005, 119 Stat. 2739; Pub. L. 109–
163, div. A, title XIV, § 1403, Jan. 6, 2006, 119 Stat. 3475.)

Uniform Code of Military Justice (UCMJ

“10 U.S. Code § 855 - Art. 55. Cruel and unusual punishments prohibited
Punishment by flogging, or by branding, marking, or tattooing on the body, or any
other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted
upon any person subject to this chapter. The use of irons, single or double, except for
the purpose of safe custody, is prohibited.”

“10 U.S. Code § 934 - Art. 134. General article

Though not specifically mentioned in this chapter, all disorders and neglects to
the prejudice of good order and discipline in the armed forces, all conduct of a nature to
bring discredit upon the armed forces, and crimes and offenses not capital, of which
persons subject to this chapter may be guilty, shall be taken cognizance of by a general,
special, or summary court-martial, according to the nature and degree of the offense, and
shall be punished at the discretion of that court.”

The International Convention on Civil and Political Rights (ICCPR)

The ICCPR is a treaty to which the U.S. is a party.

The treaty prohibits torture, and cruel, inhuman, and degrading conduct.

Lower federal courts have held that the ICCPR does not create privately
enforceable rights (tort) in U.S. courts. Buell v. Mitchell, 274 F.3d 337 (6th Cir.,
2001).

Some legal scholars suggest that because the ICCPR is non-self-executing, the
President might maintain that its terms do not apply to U.S. activities abroad
during an armed conflict. Nevertheless, they continue, unless those activities are
based on the President’s exclusive powers (repel-attack or tactical authority), he

18
may be constrained by at least some elements of the ICCPR as a reflection of
customary international law or jus cogens.

Alien Tort Statute, 28 U.S. Code § 1350 (ATS)

The Alien Tort Statute (ATS), also called the Alien Tort Claims Act (ATCA),
provides:

"The district courts shall have original jurisdiction of any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of the United
States.”

● Since 1980, federal courts have interpreted this statute to allow foreign
citizens to seek remedies in U.S. courts for “human rights” violations
for conduct committed outside the United States.

● The ATS presumably allows lawsuits in federal court for damages arising
from torture. As the statute does not define torture, the courts
previously would have likely resorted to the CAT for a relevant definition.

● Federal courts have been divided, however, on their willingness to rely

on the ATS to support terrorism-related causes of action.
ᴑ Compare Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257 (E.D.N.Y.
2007) (finding that the ATS allows suit against supporters of suicide
bombers), with Saperstein v. The Palestinian Authority, 2006 WL
3804718 (S.D. Fla. 2006) (no ATS basis for similar claims).
ᴑ The decision in Ibrahim v. Titan Corp., 2007 WL 3274784 (D.D.C. 2007),
granted one corporate defendant’s motion to dismiss state common
law tort claims based on the theory that such claims are preempted by
a (federal) government contractor defense.
ᴑ The court denied the defense for the other defendant, CACI. In
essence, the court ruled that the Titan employees were effectively
overseen by U.S. military personnel at Abu Ghraib, but that CACI
managed its own workers there.

U.S. Supreme Court building, Washington, D.C.

19
 The War Crimes Act of 1996, 110 Stat. 2104, 18 U.S. Code § 2441

This statute law defines a war crime to include a “grave breach of the Geneva
Conventions” specifically noting that "grave breach" should have the meaning
defined in any convention to which the U.S. is a party.

The War Crimes Act criminalized all violations of Common Article 3.

_______________________________________________________________________________________________

A war crime is an act that constitutes a serious violation of the law of war which gives rise to
individual criminal responsibility. Examples of war crimes include intentionally killing civilians or
prisoners, torture, destroying civilian property, taking hostages, perfidy, rape, using child soldiers,
pillaging, declaring that no quarter will be given, genocide, and serious violations of the principles of
distinction and proportionality, such as strategic bombing of civilian populations. Source: Cassese,
Antonio, and Paola Gaeta, Cassese’s International Criminal Law (Oxford, UK: Oxford, 2013).
_____________________________________________________________________________________________

Japanese General Hideki Tojo, who was Prime Minister of Japan from 1941 to 1944, during his
trial for war crimes following the end of World War II.

The Nuremberg Trials, Nuremberg, Germany, 1945, of Nazi leaders for war crimes.

20
 Abu Ghraib

The military personnel at Abu Graib, who posted abuse of detainees on the
Internet, violated the UCMJ.
● The actions were “war crimes” under international law as well.

Article 92 of the UCMJ makes it an offense for military personnel to violate or fail
to disobey any lawful general order or regulation.

In this instance military regulations concerning treatment of prisoners clearly

prohibits maltreatment of prisoners or detainees.

Article 93 makes it an offense to be cruel toward, or oppressive or maltreat any

person subject to his orders.

One hardly needs to engage in a lengthy legal dissertation to conclude that the
military personnel at Abu Graib violated both of these punitive articles.

This conduct was not authorized as an EIT.

Picture of Abuse of Detainee at Abu Graib

FOURTH AMENDMENT CONSIDERATIONS

“The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.” U.S. Constitution, 4th Amendment.
21
 4th Amendment case law deals with three central questions: (1) what
government activities constitute “search” and “seizure”; (2) what constitutes
probable cause for these actions; and (3), how violations of 4th Amendment rights
should be addressed.

● Katz v. United States, 389 U.S. 347 (1967), the U.S. Supreme Court held that its
protections, such as the warrant requirement, extend to the privacy of
individuals as well as physical locations.

● Law enforcement officers need a warrant for most search and seizure
activities, but the Court has defined a series of exceptions for consent
searches, motor vehicle searches, evidence in plain view, exigent
circumstances, border searches, and other situations.

● The exclusionary rule is one way the amendment is enforced. Established in

Weeks v. United States, 232 U.S. 383 (1914), this rule holds that evidence
obtained through a 4th Amendment violation is generally inadmissible at criminal
trials. Evidence discovered as a later result of an illegal search may also be
inadmissible as “fruit of the poisonous tree”, unless it inevitably would have
been discovered by legal means.

These rules provide guidelines for law enforcement.

Is there or should there be a National Security Exception?

Omnibus Crime Control and Safe Streets Act of 1968

Omnibus Crime Control and Safe Streets Act of 1968, 42 USC § 3711.

● § 2516 authorizes use of electronic surveillance of specified crimes.

22
● § 2511(3) provides: "Nothing contained in this chapter or in section 605 of
the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit
the constitutional power of the President to take such measures as he
deems necessary to protect the Nation against actual or potential attack or
other hostile acts of a foreign power, to obtain foreign intelligence
information deemed essential to the security of the United States, or to
protect national security information against foreign intelligence activities.
Nor shall anything contained in this chapter be deemed to limit the
constitutional power of the President to take such measures as he deems
necessary to protect the United States against the overthrow of the
Government by force or other unlawful means, or against any other clear
and present danger to the structure or existence of the Government. The
contents of any wire or oral communication intercepted by authority of the
President in the exercise of the foregoing powers may be received in
evidence in any trial hearing, or other proceeding only where such
interception was reasonable, and shall not be otherwise used or disclosed
except as is necessary to implement that power.“ [Emphasis added.]

United States v. U.S. District Court, 407 U.S. 297 (1972) (“Keith case”)

United States v. U.S. District Court, 407 U.S. 297 (1972), also known as the Keith
case, was a landmark U.S. Supreme Court decision which upheld, in a unanimous
8-0 ruling, the requirements of the 4th Amendment in cases of domestic
surveillance targeting a domestic threat.

● The Supreme Court upheld the prior rulings in the case, holding that the
wiretaps were an unconstitutional violation of the 4 th Amendment and as
such must be disclosed to the defense. This established the precedent
that a warrant needed to be obtained before beginning electronic
surveillance even if domestic security issues were involved.

● Note that the decision applied only to domestic issues; foreign intelligence
operations were not bound by the same standards.

● This was a wiretapping case which arose from surveillance of the anti-war
movement during the Vietnam War.

23
The post-Keith cases shed some light on the continuing uncertainties
surrounding warrantless surveillance.

● Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144 (1976) and Zweibon
v. Mitchell, 720 F.2d 162 (1983), tilt in favor of a warrant and against the
national security exception.

● Brown v. United States, 484 F.2d 418 (1973), cert. den. 415 U.S. 960 (1974),
and Butenko v. United States, 392 U.S. 923 (1968), accepted an exception
to the warrant requirement, but the facts in each clearly indicated the
need for foreign intelligence.

On balance, the result in Keith and the application of the Keith reasoning in
Zweibon suggest that some form of judicial approval should be obtained before
engaging in electronic surveillance.

Unless the “exigent circumstances” mentioned by the court in Zweibon are

present, the interrelatedness of any domestic organizations’ activities with U.S.
foreign policy interests, as in Zweibon and Berlin Democratic Club, seems to tilt
in favor of a warrant.

Moreover, the U.S. Supreme Court’s unwillingness to review the cases since
Keith suggests that, absent a known foreign connection, some form of prior
judicial approval is required.

Nonetheless, the proper balance between the 1st and 4th Amendment rights of the
individual and the government’s interest in surveillance to protect the national
security is still invariably resolved ad hoc, on the basis of fact-sensitive inquiries.

United States v. Erlichman, 546 F.2d 910 (1976), cert. den. 97 S. Ct. 1155 (1977)

Facts: Agents of the executive branch broke into a psychiatrist’s office without a
warrant for the purpose of obtaining the doctor’s medical records relating to one
of his patients, Ellsberg, then under federal indictment for revealing top secret
documents.

Defense: The defendants claimed that the (1) the break-in was legal under the 4th
Amendment because the President (Nixon) authorized it for reasons of national
security [No explicit authority proven.]; and (2), that even in the absence of such
authorization, the national security information available to the defendants at that
time led them to the good-faith, reasonable belief that the break-in was legal and
justified in the national interest.

24
Issue: May an executive officer who has no explicit authority from the President
or the Attorney General and without a warrant, break into a private office and
claim justification based upon an implicit delegation of presidential power to
oversee national security?

Holding: No. An executive officer, who has no explicit authority from the
President or the Attorney General and without a warrant, may not break into a
private office and claim justification based upon an implicit delegation of
presidential power to oversee national security.
● This break-in and search was “clearly illegal under the unambiguous
mandate of the 4th Amendment because no search warrant was
obtained”.
● In regard to defendants’ argument that President has authority, by reason
of his special responsibilities over foreign relations and national
th
defense, to suspend 4 Amendment requirements: government must
comply with strict Constitutional and statutory limitations on
trespassory searches and arrests even when known foreign agents are
involved. To hold otherwise, unless exigent circumstances, would be to
abandon 4th Amendment to whim of executive branch.
● Regarding the claim of presidential power:
ᴑ The appellate court concluded that the President not only lacked the
authority to authorize the break-in, but in this instance he did not in
fact give any specific directive to do so.
ᴑ Even if the President did have the power, the appellate court rejected
the argument that the president could delegate his alleged power to
suspend Constitutional rights to non-law enforcement officers.

As the Ehrlichman appeal indicates, the courts - other than the FISA Court of
Review - have, after Keith, continued to finesse the 4th Amendment and Article II
issues.

In Keith, the Court of Appeals did not say that specific authorization by the
President or the Attorney General would obviate any 4th Amendment restrictions,
it merely declared that a “national security” search would not be proper without
such authorization.
● Circuit Judge Wilkey’s dictum in the appellate court opinion suggests that
an exception to the warrant requirement may exist, within certain limited
circumstances, for gathering “foreign” intelligence.
ᴑ He thus foreshadowed just the system put into place by the
President Reagan five years later with Executive Order No. 12,333.

25
 Terrorist Surveillance Program

With respect to the Terrorist Surveillance Program (TSP), one federal judge ruled
that the program violated the 4th Amendment. American Civil Liberties Union v.
National Security Agency, 438 F. Supp. 2d 754 (E.D. Mich. 2006).
● That decision was reversed on standing grounds, American Civil
Liberties Union v. National Security Agency, 493 F.3d 644 (6th Cir. 2007).

Other courts have declined to determine the lawfulness of TSP.

For further reading, see:

● Emerson, Thomas, The System of Freedom of Expression (New York,
NY: Random House, 1970).
● Donner, Frank, The Age of Surveillance: The Aims and Methods of
America's Political Intelligence System (New York, NY: Knopf, 1980).
● Smolla, Rodney A., Free Speech in an Open Society (New York, NY:
Knopf, 1992).

The Terrorist Surveillance Program (TSP) and Keith:

● The Terrorist Surveillance Program was an electronic surveillance program
implemented by the NSA following the 9/11 attacks.
● The NSA implemented the program to intercept al Queda communications
overseas where at least one party is not a U.S. individual.
● One important consideration in deciding the reasonableness of such
surveillance is the quantity and quality of pre-surveillance evidence that
targets possess foreign intelligence information.
● It is an open question as to whether the TSP would have survived
constitutional review under the Keith standard.
● United States v. U.S. District Court, 407 U.S. 297 (1972) (Keith case).
ᴑ This case was a landmark U.S. Supreme Court decision which
upheld, in a unanimous 8-0 ruling, the requirements of the 4th
Amendment in cases of domestic surveillance targeting a domestic
threat.
● Because the TSP initially bypassed the courts altogether, and clearly
involved intelligence collection that interfered with reasonable
expectations of privacy of Americans and other U.S. residents, the likely
impact on 1st and 4th Amendment freedoms was significant, and the
government might have been hard pressed to argue that it could not use
FISA processes to gain approvals for the desired surveillance.
● On August 17, 2006, U.S. District Judge Anna Diggs Taylor ruled the
program unconstitutional and illegal. On appeal, the decision was
overturned on procedural grounds and the lawsuit was dismissed without
addressing the merits of the claims. American Civil Liberties Union v.
National Security Agency, 438 F. Supp. 2d 754 (ED MI, 2006), reversed 493
F.3d 644 (6th Cir, 2007).

26
● On January 17, 2007, Attorney General Alberto Gonzales informed U.S.
Senate leaders by letter that the program would not be reauthorized by the
President, and future surveillance would be subjected to judicial oversight.
ᴑ “Any electronic surveillance that was occurring as part of the
Terrorist Surveillance Program will now be conducted subject to the
approval of the Foreign Intelligence Surveillance Court.”
ᴑ Source: “Letter from Alberto Gonzales, Attorney General, to Senators
Patrick Leahy and Arlen Spector,” (PDF) The New York Times.

The “Foreign Intelligence” Exception

United States v. Truong Dinh Hung, 629 F.2d 908 (1980)

Facts: Defendants were convicted of espionage by transmitting classified docs.

● The defendants committed espionage for the North Vietnamese during the
Vietnam War.

Defense: Defendants sought reversal of their convictions because of

warrantless surveillance and searches.
● Defendants argued that the FBI violated the 4th Amendment.
ᴑ There was no court authorization ever sought or obtained for the
installation of wire taps, for mail intercepts, etc.
ᴑ They argued that “solely” for foreign policy reasons should be the
test.

Government: The government relied on a “foreign intelligence” exception to the

4th Amendment.
● The FBI sought and received approval for the surveillance from the
President’s delegate, the Attorney General.
ᴑ The FBI asserted this approval is constitutionally sufficient to
authorize foreign intelligence surveillance because of President’s
constitutional prerogatives in foreign affairs. Thus, no warrant was
required.

Issue: Is the 4th Amendment violated when domestics are subjected to

warrantless wiretapping for the purpose of foreign intelligence gathering.

Holding: Yes. But the court recognized a foreign intelligence exception.

● However, because individual privacy interests are important, the appellate
court provided a carefully limited exception:
ᴑ First, the government is only relieved from seeking a warrant when
the object of the search is a foreign power, its agent or collaborators.
Where there is no foreign connection, the executive’s needs become
less compelling; and the surveillance more closely resembles the
surveillance of suspected criminals, which must be authorized by
warrant.

27
 ᴑ Second, the executive should be excused from securing a warrant
only when the surveillance is conducted “primarily” for foreign
intelligence reasons. (I.e., not for criminal prosecution).

Final Thoughts

When intelligence collection targets non-U.S. persons abroad, the only legal
constraints are supplied by Executive Order No. 12,333. Where the CIA is
involved, the National Security Act of 1947 applies, unless more are imposed by
international law recognized as binding by the U.S.
● The U.S. Supreme Court has held that the 4th Amendment does not protect
aliens against actions of the federal government taken outside the United
States. See, United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
________________________________________________________________________________________

On December 4, 1981, President Ronald Reagan signed Executive Order 12333, which was
intended to extend powers and responsibilities of U.S. intelligence agencies and direct the
leaders of U.S. federal agencies to co-operate fully with CIA requests for information. This
executive order was entitled United States Intelligence Activities.

It was amended by Executive Order 13355: Strengthened Management of the Intelligence

Community, on August 7, 2004. On July 30, 2008, President George W. Bush issued Executive
Order 13470, amending Executive Order 12333 to strengthen the role of the DNI.

______________________________________________________________________

Current Situation

With the availability of and easy access to the Foreign Intelligence Surveillance
Court (FISC), the need for warrantless searches in intelligence activities is
minimal.

Today, most legal scholars agree that within the United States and its territories,
a search warrant is required in national security cases.

28
 Additional Case Law

In re DIRECTIVES [redacted text] PURSUANT TO SECTION 105B OF the FOREIGN

INTELLIGENCE SURVEILLANCE ACT, 551 F. 3d 1004, United States Foreign
Intelligence Surveillance Court of Review.
● For entire opinion (redacted) see, Surveillance Court of Review, United States Foreign
…blogs.reuters.com/alison-frankel/files/2013/07/In-re-Directives...

United States v. Jones, 132 S. Ct. 945 (2012)

● Global-Positioning-System (GPS) tracking device on a vehicle under an expired
warrant is an illegal search.

In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment

Challenges), 552 F.3d 157 (2008).
● Extraterritorial reach of the Fourth Amendment - holding that the U.S.
government may conduct a search or seizure of an American citizen
abroad without a warrant.

DOMESTIC FOREIGN INTELLIGENCE SURVEILLANCE

Foreign Intelligence Surveillance Act

The Foreign Intelligence Surveillance Act of 1978 (FISA), 92 Stat. 1783, 50 U.S. Code
chap. 36, prescribes procedures for the physical and electronic surveillance and
collection of “foreign intelligence information” between “foreign powers” and
“agents of foreign powers”, including U.S. citizens and permanent residents
suspected of espionage or terrorism.

Although the Executive Branch did not relinquish its claim of inherent authority to
conduct foreign intelligence surveillance, the question seemed to be mooted when
the Carter Administration strongly supported FISA and its new procedures.

29
 FISA Procedures

Because targets of FISA surveillance usually never learn that they were
targeted, challenges to FISA surveillance almost invariably first arise at trial as in
United States v. Rosen, 447 F. Supp. 538 (2006).

Once the government chooses to use information derived through FISA

surveillance at trial, prosecutors are obligated to provide the surveillance records to
the federal judge for ex parte and in camera review.

For intelligence officials, FISA affords the opportunity for lawful

surveillance without the rigors of a law enforcement warrant proceeding pursuant
to Title III.
● Yet the multi-layered review of FISA affidavits, certifications, and applications
may still be viewed by some as unduly restrictive of the Executive’s Article II
discretion to conduct surveillance for foreign intelligence purposes.

The Scope of FISA Electronic Surveillance and Physical Searches

The information subject to FISA surveillance is broadly defined.

The significant limitations are that the information must concern “foreign”
intelligence, and that collection may only be conducted pursuant to FISA in the
United States.

● The “foreign intelligence” limitation may be constitutionally compelled (recall

Keith), and it forecloses the use of FISA procedures to conduct surveillance
of the individuals such as Timothy McVeigh or Ted Kaczynski.

The categories of electronic information subject to FISA surveillance are

comprehensive, and FISA’s procedures apply any time privacy rights may be
threatened or a law enforcement warrant otherwise would be required.

● The breadth of the definition made it difficult for defenders of the TSP to
argue that the program was not subject to FISA requirements.

● If FISA did not exist, electronic surveillance would be authorized and/or

limited by Title III or by constitutional principles, including Article II and the 4th
Amendment.

To see an opinion granting a FISA search order by a FISC, see

www.fisc.uscourts.gov/sites/default/files/BR 13-25 Opinion-1.pdf

30
 Foreign Intelligence Surveillance Court

The Foreign Intelligence Surveillance Court (FISC) consists of eleven federal district
court judges selected by the Chief Justice from at least seven judicial circuits and
serving staggered seven year terms. See 50 U.S. Code § 1803(a).

● At least three of the FISC’s judges must reside within twenty miles of
Washington, D.C. Id.

● In the unlikely event that a FISA application is denied by a FISC judge, the
government may seek review of such denial by the Foreign Intelligence
Surveillance Court of Review (FISCR), and if necessary, by the U.S. Supreme
Court. See 50 U.S. Code § 1803()b).

Statistics 1979 – 2013:

Requests Approved Modified Denied

35,529 35,434 533 12

Source: “Foreign Intelligence Surveillance Act Court Orders 1979 - 2014,” Electronic Privacy Information
Center.

The Foreign Intelligence Surveillance Court of Review (FISCR)

The Foreign Surveillance Court of Review (FISCR) was established in 1978 when
Congress enacted The Foreign Intelligence Surveillance Act (FISA), which is
codified, as amended, at 50 U.S. Code §§ 1801-1885c.

● The Court sits in Washington D.C., and is composed of three federal district
court or appeals court judges who are designated by the Chief Justice.

● The FISCR was established to review the decisions of the FISC.

Warrant procedure

Unlike the normal procedure of serving a search warrant, FISA does not require
agents to knock before entry, supply notice of the search (copy of the warrant),
or inventory what is found and seized. This is based on practical considerations.

“Physical searches to gather foreign intelligence information depend upon stealth.

If the targets of such searches discover that the United States Government had
obtained significant information about their activities, those activities would
likely be altered, rendering the information useless.” Brown, William F., and
Americo R. Cinquegrana, “Warrantless Searches for Foreign Intelligence
Purposes: Executive Order 12,333 and the Fourth Amendment,” 35 Cath. L. Rev. 97
(1985), 131.
31
 “Lone Wolf”

The “lone wolf” provision found in 550 U.S. Code 1801(b)(1)(C) was added in 2004.

● This provision eliminates the requirement that a “foreign agent” be directly

connected with a foreign power as defined in the act.

Overview of the process of obtaining a FISA order for

electronic surveillance or a physical search

Predicate > Investigation > FI Need > Application Preparation

Execution by Agency < FISC Approval < Submission to FISC

Conducting Surveillance

Criminal Prosecution > Motion to Suppress > Criminal Court’s Second Look

Applications for FISA Orders

Applications for FISA orders must meet statutory standards. 50 U.S. Code § 1804
provides as follows:

● Each application for an order approving electronic surveillance under this

subchapter shall be made by a Federal officer in writing upon oath or
affirmation to a judge having jurisdiction under section 1803 of this title.
Each application shall require the approval of the Attorney General based
upon his finding that it satisfies the criteria and requirements of such
application as set forth in this subchapter. It shall include - (1) the identity
of the Federal officer making the application;

(2) the identity, if known, or a description of the specific target of the

electronic surveillance;

(3) a statement of the facts and circumstances relied upon by the

applicant to justify his belief that - (A) the target of the electronic
surveillance is a foreign power or an agent of a foreign power; and (B) each
of the facilities or places at which the electronic surveillance is
directed is being used, or is about to be used, by a foreign power or an
agent of a foreign power;

32
 (4) a statement of the proposed minimization procedures;

(5) a description of the nature of the information sought and the type of
communications or activities to be subjected to the surveillance;

(6) a certification or certifications… (A) that the certifying official

deems the information sought to be foreign intelligence information; (B)
that a significant purpose of the surveillance is to obtain foreign
intelligence information; (C) that such information cannot reasonably be
obtained by normal investigative techniques; (D) that designates the
type of foreign intelligence information being sought according to the
categories described in section 1801(e) of this title…

(7) a summary statement of the means by which the surveillance will be

effected and a statement whether physical entry is required to effect the
surveillance;

(8) a statement of the facts concerning all previous applications that have
been made to any judge under this subchapter involving any of the
persons, facilities, or places specified in the application, and the action
taken on each previous application; and

(9) a statement of the period of time for which the electronic surveillance is
required to be maintained, and if the nature of the intelligence
gathering is such that the approval of the use of electronic surveillance
under this subchapter should not automatically terminate when the
described type of information has first been obtained, a description of
facts supporting the belief that additional information of the same type will
be obtained thereafter.

Use of Classified Information in Criminal Trial

United States v. Rosen, 447 F. Supp. 538 (E.D. VA 2006) - Summary

Facts: Defendants Steven Rosen and Keith Weissman were charged with
conspiracy to violate the Espionage Act, 18 U.S. Code §§ 793(g) and (e). Rosen
was also charged with one count of aiding and abetting alleged co-conspirator
Larry Franklin’s unauthorized disclosure of national defense information, in
violation of 18 U.S.C. § 2, 793(d).

CIPA/Discovery: This case involved a large volume of classified information.

Discovery of such information, and its use at trial, is governed by CIPA.

33
● Classified Information Procedures Act (CIPA), 94 Stat. 2025, 18 U.S. Code
App. III, §§ 1-16.

● The goal of the CIPA process is to identify in advance of trial the universe
of classified information to be disclosed at trial and to minimize
unnecessary disclosure of classified information by use of substitutions,
redactions, and summaries that do not meaningfully impair defendants’
ability to present a defense.

● In effect, the CIPA process compels discovery well beyond that required by
Rule 16, Fed. R. Crim. P.

● Attaining the CIPA goal is all the more difficult where, as in Rosen, the case
is complex, the relevant issues and topics numerous, and the volume of
pertinent classified documents is large by any measure.

● The guiding principle of CIPA § 6(c) regarding substitutions, summaries or

redactions is fairness.

Rule: It is not open to the court to question or second-guess the classification

status of any document or the government’s request to subject parts of
documents to a substitution, redaction, or summary.

To read the memorandum, see fas.org/sgp/jud/aipac/memop110107.pdf

FISA Electronic Surveillance and Physical Searches

The information subject to FISA surveillance is broadly defined.

The significant limitations are:

● The information sought must concern “foreign” intelligence, and that
collection may only be conducted pursuant to FISA in the United States.
● The use of FISA procedures to conduct surveillance of the next Timothy
McVeigh or Ted Kaczynski would be prohibited.

34
● The categories of electronic information subject to FISA surveillance are
comprehensive, and FISA’s procedures apply any time privacy rights may
be threatened or a law enforcement warrant otherwise would be required.

Are there limitations on granting a FISA warrant?

In Re Sealed Cases Nos. 02-001, 02-002, Foreign Intelligence Surveillance Court
of Review, 310 F.3d 717 (2002)
Summary
Government appealed from order of the Foreign Intelligence Surveillance Court,
imposing restrictions on its use of information obtained through surveillance
under Foreign Intelligence Surveillance Act (FISA).
Holding:
The Foreign Intelligence Surveillance Court of Review held that: (1) FISA did not
require government to demonstrate to the FISA court that its primary purpose in
conducting electronic surveillance was not criminal prosecution, abrogating In re
All Matters Submitted to Foreign Intelligence Surveillance Court, 218 F.Supp.2d
611, and (2) Patriot Act's amendment to FISA, permitting government to conduct
surveillance of agent of foreign power if foreign intelligence is “significant
purpose” of such surveillance, did not violate Fourth Amendment.
Decision: Case reversed and remanded.
Read the redacted opinion at blogs.reuters.com/alison-frankel/files/2013/07/In-re-
Sealed-Case.pdf

ADDITIONAL ISSUES

Profiling

Pretextual arrests

● Whren v. United States, 517 U.S. 806 (1996).

ᴑ Arrests for intentionally discriminatory reasons does not violate the
4th Amendment as long as there is probable cause for the arrest.

35
 ᴑ The 4th Amendment essentially tolerates pretextual arrests by
prohibiting courts from inquiring into the arresting officer’s
subjective intent.
ᴑ Definition: Pretextual arrest is an arrest of a person for a minor
offense for the opportunity to investigate the person’s involvement
in a more serious offense for which there is no lawful grounds to
make an arrest.

● Problem with Whren is that it leaves open the question as to whether

ethnicity – used as a surrogate for a battery of suspect classifications –
can contribute to probable cause.
ᴑ The answer is probably, but not as a standalone factor.
ᴑ Propensity theory – e.g., Arabs have a greater propensity than non-
Arabs toward “terrorism”.

● Faraq v. United States, 587 F. Supp. 436 (E.D NY, 2008).

Facts: Farag, a U.S. citizen, and his friend Elmasry, spoke loudly, partly in
Arabic, and switched seats on the plane, and one played with his cell
phone.

Issues: (1) Did Farag and Elmasry’s behavior provide probable cause for
their arrest? (2) Does ethnicity make a difference?

Holding: Not by itself, the court reasoned, taking into account the
predictable “escalation of events” and resulting jittery conduct of the
arrestees.

The Court stated: “Even granting that all of the participants in the 9/11
attacks were Arabs, and even assuming arguendo that a large proportion of
would-be anti-American terrorists are Arabs, the likelihood that any given
airline passenger of Arab ethnicity is a terrorist is so negligible that Arab
ethnicity has no probative value in a particularized reasonable-suspicion or
probable-cause determination.”

Legal Review of Profiling.

● President George W. Bush ordered a ban on racial profiling in 2001, and DOJ
issued an official policy in furtherance thereof.

● See, “Fact Sheet: Racial Profiling,” Department of Justice (June 17, 2003),
www.justice.gov/archive/opa/pr/2003/June/racial_profiling_fact...

● See also, Ramirez, Deborah, and Jack McDevitt, and Amy Farrell, “A
Resource Guide on Racial Profiling Data Systems,” Department of Justice
(November 2000), www.ncjrs.gov/pdffiles1/bja/184768.pdf

36
● See, Tucker, Eric, “New Obama Administration Policy Broadens Racial
Profiling Ban, But With Key Caveats,” Associated Press (December 8, 2014),
www.foxnews.com/us/2014/12/08/new-obama-administration-policy...

● See, Apuzza, Matt, and Michael S. Schmidt, “U.S. to Continue Racial, Ethnic
Profiling in Border Policy,” The New York Times (December 5, 20124),
www.nytimes.com/.../politics/obama-to-impose-racial-profiling-curbs...

Practical Problems with Profiling:

● As an identifier, “Middle Eastern men” has problems: it is imprecise, it

invites impermissible “propensity” speculation, and it may distract from the
next wave of terrorists if they are recruited from a different population.

If the special needs analysis requires only that the racial or ethnic factor in a
profile be clearly relevant to the law enforcement need to be served, then the 4th
Amendment arguably imposes little restraint on profiling in counterterrorist
operations.

● United States v. Martinez-Fuerte, 428 U.S. 543 (1976) on border checkpoint

cases seem to support this conclusion.

Equal protection provides a more promising challenge to racial profiling, insofar

as it requires strict scrutiny.

Tamerlane and Dzhokhar Tsarnaev

Boston Marathon Bombers (April 15, 2013)

Watchlists

The watchlist process begins when a member of the intelligence community shares
newly acquired information about suspected terrorists or their supporters with the
NCTC’s TIDE.
● Definitions: NCTC = National Counterterrorism Center; TIDE = Terrorist Identifies
Datamart Environment.
● See, See, NCTC Terrorist Identities Datamart Environment (TIDE) Watchlisting
Overview (January 2, 2016), www.publicintelligence.net/nctc-watchlisting-overview.

37
NCTC nominates some of these identified persons, and the FBI-administered
inter-agency Terrorist Screening Center (TSC) decides whether to accept the
nominations for inclusion in the Consolidated Terrorist Screening Database (TSDB).

The FBI also provides data about domestic terrorist suspects to the TSDB.

As of 2011 the TDSB reportedly contained records of more than 420,000

individuals, including 8,000 Americans.
● See, Savage, Charlie, “Even Those Cleared of Crimes Can Stay on F.B.I.’s Watch
List,” NY Times (September 27, 20011).

The TSC distributes TSDB-generated watchlists to end-users, including

the Transportation Security Administration (administering the no-fly and selectee
lists), U.S. Customs and Border Protection, the State Department’s Bureau of
Consular Affairs, the FBI, and state and local governments through the National
Crime Information Center.

“No-Fly Lists”

The threshold determination in a due process challenge to a no-fly listing is that the
air traveler show a protected liberty or property interest.

Green v. Transportation Administration, 351 F. Supp. 1119 (W.D. Wash. 2005), the
court concluded that the plaintiffs failed at the threshold because the no-fly listing
did not impede their right to travel and imposed no burden beyond the stigma of the
listing.

Ibrahim v. Department of Homeland Security, 62 F. Supp. 3d 909 (N.D. CA, 2014); 538
F.3d 1250 (9th Cir. 2008).

● Plaintiff: Plaintiff is a Muslim woman and a citizen of Malaysia barred from

boarding a flight because of her inclusion on the No Fly List and denied a visa
to return to the United States.

● Appellate Holding: The U.S. Court of Appeals for the Ninth Circuit held
(1) that the district court had original subject matter jurisdiction over the
plaintiff's claim for injunctive relief regarding inclusion of her name on the
No Fly List; and,
(2) the district court lacked subject matter jurisdiction over her claim for
injunctive relief regarding the government's policies and procedures
implementing the No-Fly List.

● Relief Granted on Retrial: 1. The federal government must search and trace
all of its terrorist watchlists and records for entries identifying the plaintiff
and remove all references to the mistaken designations by the FBI agent
and/or add a correction in the same paragraph that said designations were
erroneous and should not be relied upon for any purpose.

38
 2. The federal government must inform the plaintiff of the specific
subsection of Section 212(a)(3)(B) of the Immigration and Nationality Act that
rendered her ineligible for a visa in 2009.
3. The federal government must inform the plaintiff that she is no longer on
the no-fly list and has not been on it since 2005.
4. The government must inform the plaintiff that she is eligible to at least
apply for a discretionary visa waiver.

REVIEW OF ISLAMIC TERRORISM

Summer 2016

Continued Terrorists Attacks

Between May 5, 2017 and June 4, 2017, there were 191 attacks by Islamic terrorists
in 27 countries, in which 1454 people were killed and 1709 injured.
Source: “List of Islamic Terrorist Attacks,” The Religion of Peace,
https://www.thereligionofpeace.com/attacks/attacks.aspx?Yr=Last30.

Breakdown in the West (May 5, 2017 to June 6, 2017):

5-05-2017 Chechnya Grosny 17 year old pushed off 9th floor balcony by a Muslim
uncle for being homosexual

5-18- 2017 Italy Milan Islamic terrorist stabs three people at train station

5-19- 2017 U.S. Tampa Recent convert to Islam shoots two people to death
for “disrespecting” Islam

39
 5-22-2017 U.K. Manchester Islamic terrorist detonated a bomb at the
Manchester Arena following an Ariana Grande
concert. 23 adults and children, including the
terrorist, were killed, and 119 people were injured,
23 critically.

6-06-2017 U.K. London Three Islamic terrorists plow into pedestrians

on London Bridge, then proceed to the Bourough
Market where they stabbed people with knives.
10 people killed, including 3 terrorists, 36
hospitalized, 21 critically injured.

Politically Incorrect Reality

The Islamic terrorist movement – primarily Shiite - is at war with the West.

● It is a sectarian, religious war: The underlying conflict in the Middle East:

Both Sunnis and Shiites think they have a right to power and see
themselves as coming out on top in a sectarian war. On the Shia side
lays Iran, Iraq, Syrian President Bashar Assad, and the Lebanese
militant group Hezbollah. On the Sunni side is Saudi Arabia, Turkey, Iraqi
Kurdistan, and other Gulf countries.
Source: Engel, Pamela, “The greatest threat in the Middle East is ‘going to get much
worse before it gets better’,” Business Insider (January 10, 20126),
www.businessinsider.com/middle-east-sectarianism-iraq-iran-isis...

● The Sunni-Shia war has existed since the death of the Prophet Mohammed
(June 8, 632 AD).
ᴑ The original split between Sunnis and Shiites occurred soon after the
death of the Prophet Mohammad, in the year 632 AD.
ᴑ The dispute began over the question of succession. In other words,
who was to be the rightful successor to the prophet?"
ᴑ Most of the Prophet Muhammad's followers wanted the community
of Muslims to determine who would succeed him. A smaller group
thought that someone from his family should take up his mantle.
They favored Ali, who was married to Muhammad's daughter,
Fatimah.
ᴑ Shia believed that leadership should stay within the family of the
prophet, and thus supported Ali. Sunnis believed that leadership
should fall to the person who was deemed by the elite of the
community to be best able to lead the community. And it was
fundamentally that political division that began the Sunni-Shia split.
Source: Shuster, Mike, “The Origins of the Sunni-Shiite Split,” NPR (February 12,
2007), www.npr.org/.../02/12/7332087/the-origins-of-the-shiite-sunni-split.

40
● The war against Israel: “Sha'a Allah [God willing], there will be no such
thing as a Zionist regime in 25 years. Until then, struggling, heroic and
jihadi morale will leave no moment of serenity for Zionists." Iran's
Supreme Leader, Ayatollah Ali Khamenei, on September, 2015.
Source: Rafizadeh, Majid, “Iran Steps Up Threats to Israel, U.S.,” Gatestone Institute
(January 11, 12017), https://www.gatestoneinstitute.org/9750/iran-threats-israel-us.

● The U.S. – the Great Satan: The Great Satan is a derogatory epithet for the
U.S. in some Iranian foreign policy statements. The was originally used
by Iranian leader Ruhollah Khomeini in his speech on November 5, 1979 to
describe the United States, which he accused of imperialism and the
sponsoring of corruption throughout the world.
ᴑ Khomeini, Ruhollah, “American plots against Iran,” speech
November 5, 1979, Iranian Central Insurance Office Staff. Imam's
Sahifeh. Qum.
ᴑ “In this revolution, the Great Satan is America that gathers around
other devils blatantly…If we see the US, this great Satan, raising
chain and bringing the devils together around him, it is because the
US grip over our country and our resources curtailed.”
ᴑ This attitude continues today at least publicly.

● The War Against the West: “Let France and all nations following its path
know that they will continue to be at the top of the target list for the Islamic
State and that the scent of death will not leave their nostrils as long as they
partake in the crusader campaign, as long as they dare to curse our
Prophet (blessings and peace be upon him), and as long as they boast
about their war against Islam in France and their strikes against Muslims in
the lands of the Caliphate with their jets, which were of no avail to them in
the filthy streets and alleys of Paris. Indeed, this is just the beginning. It is
also a warning for any who wish to take heed. Allah is the greatest.”
[Statement by ISIS following attacks in Paris.]
Source: Sharma, Swati, “Islamic State claims responsibility for Paris attacks,” The
Washington Post (November 14, 2015), www.washingtonpost.com.

Present confrontation between U.S. and Iran: In late March 2017, Iran’s Iranian
Defense Minister Brig. Gen. Hossein Dehghan said Washington behaved like an
"insane armed robber" by establishing dozens of bases in the Gulf and
conducting military operations on foreign soil, Iran's Mehr News Agency
reported. A day earlier, U.S. Army Gen. Joseph Votel, head of the U.S. Central
Command, called Iran "the greatest long-term threat to stability" in the Gulf.
Dehghan questioned the U.S. role in the region and urged Washington to
withdraw.
● “What are Americans doing in the Persian Gulf? They had better get out of
this region and not cause nuisance for the regional countries,” Dehghan

41
 said, according to a press release published by Iran's Tasnim News
Agency.
Source: O’Connor, Tom, “Iran Military Tells U.S. to Get Out of Persian Gulf,” Newsweek
(March 31, 2017), ww.newsweek.com/iran-military-us-get-out-persian-gulf-577231.

Political/religious goal of Iranian Shiites: “We have often proclaimed this truth in
our domestic and foreign policy, namely that we have set as our goal the world-
wide spread of the influence of Islam and the suppression of the rule of the world
conquerors ... We wish to cause the corrupt roots of Zionism, capitalism, and
Communism to wither throughout the world. We wish, as does God almighty, to
destroy the systems which are based on these three foundations, and to promote
the Islamic order of the Prophet ... in the world of arrogance.”
Source: Bayan, No.4 (1990), 8.

President Trump has aligned the U.S. with the Sunnis in this conflict.

● On May 21, 2017, President Donald Trump delivered a speech at the Arab
Islamic Summit in Riyadh, Saudi Arabia.
ᴑ Some 55 Muslim-majority states were represented by political and
religious leaders – all Sunni.

● Excerpts from speech:

ᴑ “And so this historic and unprecedented gathering of leaders—

unique in the history of nations—is a symbol to the world of our
shared resolve and our mutual respect. To the leaders and citizens of
every country assembled here today, I want you to know that the
United States is eager to form closer bonds of friendship, security,
culture and commerce.”

ᴑ “Later today, we will make history again with the opening of a new
Global Center for Combating Extremist Ideology – located right here,
in this central part of the Islamic World.

“This groundbreaking new center represents a clear declaration that

Muslim-majority countries must take the lead in combatting
radicalization, and I want to express our gratitude to King Salman for
this strong demonstration of leadership.”

ᴑ “Here at this summit we will discuss many interests we share

together. But above all we must be united in pursuing the one goal
that transcends every other consideration. That goal is to meet
history’s great test—to conquer extremism and vanquish the forces
of terrorism.”

42
ᴑ “We now face a humanitarian and security disaster in this region that
is spreading across the planet. It is a tragedy of epic proportions. No
description of the suffering and depravity can begin to capture its
full measure.

“The true toll of ISIS, Al Qaeda, Hezbollah, Hamas, and so many

others, must be counted not only in the number of dead. It must also
be counted in generations of vanished dreams.”

ᴑ “Every time a terrorist murders an innocent person, and falsely

invokes the name of God, it should be an insult to every person of
faith.

“Terrorists do not worship God, they worship death.

“If we do not act against this organized terror, then we know what
will happen. Terrorism’s devastation of life will continue to spread.
Peaceful societies will become engulfed by violence. And the futures
of many generations will be sadly squandered.

“If we do not stand in uniform condemnation of this killing—then not

only will we be judged by our people, not only will we be judged by
history, but we will be judged by God.

“This is not a battle between different faiths, different sects, or

different civilizations. This is a battle between barbaric criminals
who seek to obliterate human life, and decent people of all religions
who seek to protect it. This is a battle between Good and Evil.”

ᴑ “Above all, America seeks peace – not war.

“Muslim nations must be willing to take on the burden, if we

are going to defeat terrorism and send its wicked ideology into
oblivion.”

ᴑ “Of course, there is still much work to do.

“That means honestly confronting the crisis of Islamist

extremism and the Islamist terror groups it inspires. And it
means standing together against the murder of innocent
Muslims, the oppression of women, the persecution of Jews,
and the slaughter of Christians.

“Religious leaders must make this absolutely clear: Barbarism

will deliver you no glory – piety to evil will bring you no
dignity. If you choose the path of terror, your life will be empty,
43
 your life will be brief, and YOUR SOUL WILL BE
CONDEMNED.”

ᴑ “From Lebanon to Iraq to Yemen, Iran funds, arms, and trains

terrorists, militias, and other extremist groups that spread
destruction and chaos across the region. For decades, Iran
has fueled the fires of sectarian conflict and terror.

“It is a government that speaks openly of mass murder,

vowing the destruction of Israel, death to America, and ruin for
many leaders and nations in this room.”

ᴑ “ We in this room are the leaders of our peoples. They look to

us for answers, and for action. And when we look back at their
faces, behind every pair of eyes is a soul that yearns for
justice.

“Today, billions of faces are now looking at us, waiting for us

to act on the great question of our time.

“Will we be indifferent in the presence of evil? Will we protect

our citizens from its violent ideology? Will we let its venom
spread through our societies? Will we let it destroy the most
holy sites on earth? If we do not confront this deadly terror, we
know what the future will bring—more suffering and despair.
But if we act—if we leave this magnificent room unified and
determined to do what it takes to destroy the terror that
threatens the world—then there is no limit to the great future
our citizens will have.”

Source: “Full Text of Donald Trump’s Speech in Riyadh, Saudi, Arabia,” Raw
Story (May 21, 2017), www.rawstory.com/2017/05/full-text-of-donald-
trumps-speech-in....

The $64,000 Questions:

● Will the alliance with Sunni Muslim states result in the eradication or
diminishment of Shiite Islamic terrorism?
● Will the alliance with Sunni Muslim states eradicate or diminish Sunni
Islamic terrorism?

44
 The Concept of a Religious War

The concept of a religious war is anathema to Europeans.

● The last religious war fought in Europe was the Thirty Years’ War.
ᴑ It was series of wars in Central Europe between 1618 and 1648. It
was one of the longest and most destructive conflicts, as well as the
deadliest European religious war in history, resulting in eight million
casualties.

The concept of a religious war in the U.S. is incomprehensible.

● Freedom of religion and respect for all religions in bred into American
culture.

The concept of a religious war in other parts of the world –e.g., Middle East and
Asia) – is common.

The politically sensitive question is whether there is a religious basis for the
wars waged by Islamic terrorists.
● The answer is yes.

Present-day Islamic terrorism has valid roots in the Qur’an.

● “O Prophet! Strive hard [Arabic: jahidi] against the unbelievers and

hypocrites, and be firm against them.” Qur’an 9:73.

● “O ye who believe! Fight the unbelievers who gird you about, and let them
find firmness in you: and know that Allah is with those who fear Him.”
Qur’an 9:123.

● “Prophet, make war on the unbelievers and the hypocrites and deal
rigorously with them. Hell shall be their home: an evil fate.” Qur’an 9:73.

● “Fight those who believe not in Allah nor the Last Day, nor hold that
forbidden by Allah and his Messenger, nor acknowledge the religion of
Truth (even if they are) of the People of the Book, until they pay the Jizya
with willing submission, and feel themselves subdued.” Qur’an 9:29.
ᴑ “People of the Book” refers to Jews and Christians.
ᴑ Jizya was a tax imposed on non-Muslims in lands controlled by
Muslims.

45
 Recent Submissions by Islamic Scholars

Omar Ahmad, Board Chairman of the Council on American-Islamic Relations

(CAIR) stated in a speech in 1998: “Islam isn’t in America to be equal to any other
faith, but to become dominant. The Koran should be the highest authority in
America, and Islam the only accepted religion on earth.”
Source: Gardiner, Lisa, “American Muslim leader urges faithful to spread Islam’s message,”
San Ramon Valley Herald (July 4, 1998).

Need for Understanding by Americans

It is important to note that this does not imply that all Muslims in the 21st Century
support or believe in the Islamic terrorists’ war on the West nor the intra-religious
conflict between Sunnis and Shiites.
● It is critical for U.S. leaders (and Americans) to appreciate the religious
nature of Islamic terrorism.
● It is equally important for U.S. leaders (and Americans) not to assume that
all Muslims support Islamic terrorism or wish the destruction of the U.S.

Miscellaneous Readings

Olidort, Jacob, “The Truth About Sectarianism: Behind the Various Strands of Shiite-Sunni
Discord,” Foreign Affairs (January 25, 2016), https://www.foreignaffairs.com/articles/middle-
east/2016-01-25/... .

“Sunnis and Shia: Islam's ancient schism,” BBC News (January 4, 2016),
www.bbc.com/news/world-middle-east-16047709.

Huda, “What's the Difference Between Shia and Sunni Muslims?,” ThoughtCo (November 28,
2016), https://www.thoughtco.com/difference-between-shia-and-sunni...

Mauro, Ryan, “Shiites: Syria War Will Ignite End Times,” Frontpage Mag (September 15,
2013), www.frontpagemag.com/fpm/204280/shiites-syria-war-will-ignite-end....

The Myth of Islamic Intolerance: How Islamic Law Treats Non-Muslims, ed. Robert Spencer
(Amherst, NY: Prometheus Books, 2005).

Riley-Smith, Jonathan, The Crusades: A History, Second Edition (New Haven, CT: Yale
University Press, 2005).

46
 THE MASQUE BALL

In early April 2017, news reports began to circulate that in 2016 Susan Rice,
President Obama’s National Security Advisor, had repeatedly asked for the
“unmasking” of the protected identities of presidential candidate Donald Trump’s
Associates who were intercepted by American intelligence surveillance.

● Information disclosed from such unmasking was reportedly leaked to the

press.

Sources: (1) Turley, Jonathan, “Media Flouts Facts on Susan Rice,” The Hill (April 6, 2017),
www.thehill.com; (2) Lake, Eli, “Top Obama Advisor Sought Names of Trump Associates in
Intel,” Bloomberg (April 3, 2017), www.bloomberg.com/view/articles/2017-04-03/top-
obama...

More recent press reports indicate that President Obama’s United Nations
Ambassador, Samantha Powers, also requested “unmasking”.

Sources: (1) Moe, Alex and Kasie Hunt, “House Subpoenas Flynn, Cohen, and Unmasking
Requests by Obama Trio,” NBC News (June 1, 2017); (2) Hains, Tim, “James Rosen: Unmasking
Obama Administration’s Unmaskers,” Real Clear Politics (May 31, 2017),
www.realclearpolitics.com/video/2017/05/31/james_rosen_unmasking....

The United States Signals Intelligence Directive published by the National

Security Agency (NSA) sets for the applicable regulations governing surveillance
involving U.S. persons.

● USSID 18: Legal Compliance and Minimization Procedures.

ᴑ “1.1 The Fourth Amendment to the United States Constitution protects all
U.S. persons anywhere in the world and all persons within the United
States from unreasonable searches and seizures by any person or agency
acting on behalf of the U.S. Government. The Supreme Court has ruled
that the interception of electronic communications is a search and seizure
within the meaning of the Fourth Amendment. It is therefore mandatory
that signals intelligence (SIGINT) operations be conducted pursuant to
procedures which meet the reasonableness requirements of the Fourth
Amendment.

“1.2 In determining whether United States SIGINT System (USSS)

operations are "reasonable," it is necessary to balance the U.S.
Government's need for foreign intelligence information and the privacy
interests of persons protected by the Fourth Amendment. Striking that
balance has consumed much time and effort by all branches of the United
States government. The results of that effort are reflected in the references
listed in Section 2 below. Together, these references require the
minimization of U.S. person information collected, processed, retained or

47
 disseminated by the USSS. The purpose of this document is to implement
these minimization requirements.”

● USSID 18: Dissemination.

ᴑ “7.1. Focus of SIGINT Reports. All SIGINT reports will be written so as to

focus solely on the activities of foreign entities and persons and their
agents. Except as provided in Section 7.2., FOREIGN INTELLIGENCE
information concerning U.S. PERSONS must be disseminated in a manner
which does not identify the U.S. PERSON. Generic or general terms or
phrases must be substituted for the identity (e.g., "U.S. firm" for the
specific name of a U.S. CORPORATION or "U.S. PERSON" for the specific
name of a U.S. PERSON). Files containing the identities of U.S. persons
deleted from SIGINT reports will be maintained for a maximum period of
one year and any requests from SIGINT customers for such identities
should be referred to…” [Emphasis added.]

ᴑ “7.2. Dissemination of U.S. PERSON Identities. SIGINT reports may include

the identification of a U.S. PERSON only if one of the following conditions
is met and a determination is made by the appropriate approval authority
that the recipient has a need for the identity for the performance of official
duties:

a. The U.S. PERSON has CONSENTED to the dissemination of

communications of, or about, him or her and has executed the
CONSENT form…

b. The information is PUBLICLY AVAILABLE (i.e., the information is

derived from unclassified information available to the general
public), or

c. The identity of the U.S. PERSON is necessary to understand

FOREIGN INTELLIGENCE information or assess its importance…”

ᴑ “7.3. Approval Authorities. Approval authorities for the release of identities

of U.S. persons under Section 7 are as follows…

“DDO and Designees...

c. In all other cases, U.S. PERSON identities may be released only

with the prior approval of the Deputy Director for Operations, the
Assistant Deputy Director for Operations, the Chief, P02, the Deputy
Chief, P02, or, in their absence, the Senior Operations Office of the
National SIGINT Operations Center. The DDO or ADDO shall review
all U.S. identities released by these designees as soon as
practicable after the release is made.”
Source: United States Signals Intelligence Directive (USSID) 18,
cryptome.info/0001/nsa-ussid18.htm.

48
U.S. Person defined.
● U.S. citizen, born in U.S. and its territories, and naturalized citizens.
● Additionally: U.S. person means a person (as defined in § 120.14 of this
part) who is a lawful permanent resident as defined by 8 USC § 1101(a)(20)
or who is a protected individual as defined by * USC § 1324b(a)(3). It also
means any corporation, business association, partnership, society, trust,
or any other entity, organization or group that is incorporated to do
business in the United States. It also includes any governmental (federal,
state or local) entity. It does not include any foreign person as defined in
§120.16 of this part.
ᴑ 22 CFR 120.15.

18 USC § 798 - Disclosure of classified information.

“a) Whoever knowingly and willfully communicates, furnishes, transmits, or
otherwise makes available to an unauthorized person, or publishes, or uses in
any manner prejudicial to the safety or interest of the United States or for the
benefit of any foreign government to the detriment of the United States any
classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or
cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any
device, apparatus, or appliance used or prepared or planned for use by the United
States or any foreign government for cryptographic or communication
intelligence purposes; or
(3) concerning the communication intelligence activities of the United
States or any foreign government; or
(4) obtained by the processes of communication intelligence from the
communications of any foreign government, knowing the same to have been
obtained by such processes—

‘Shall be fined under this title or imprisoned not more than ten years, or both.”

Things to ponder:

● Domestic intelligence surveillance requires a FISA warrant.

ᴑ There are limited exceptions.

● If a U.S. “person” is a participant in an intercepted communication, it is

required that their identity be “masked”.
ᴑ If a transcript of the communication is made for distribution to users
of intelligence, the U.S. person’s name must be redacted.

49
● Both Susan Rice and Samantha Powers were users of intelligence, not
intelligence analysts.
ᴑ For either to request “unmasking” of a U.S. person’s name in an
intelligence report is extraordinary.

● Was the information which Rice and Powers reportedly “unmasked”

obtained with a valid FISA warrant?

● Was proper protocol followed when the names of U.S. persons were
unmasked?

● Was the unmasking required as an intelligence matter?

ᴑ If not, what was the purpose of the alleged unmasking?

● Was the reported release of information by Rice and Powers a violation of

18 USC § 798?
_______________________________________________________________________________________

BONUS MATERIAL

This spring I took a graduate course in political science on the American

presidency at Sam Houston State University. One of the topics addressed was
the “travel ban” promulgated by President Donald Trump. As this is a topic of
some fascination, I thought you might have an interest in my analysis. It is set
forth below in its entirety.

Describe an example, real or hypothetical, of an instance where you would feel

uncomfortable with executive unilateral action.

Any executive directive – no matter of how delineated – which is not based on either
derivative authority granted under the Constitution or by a grant of authority by
Congress would be troubling to me. Constitutional authority is found four places:

Article II, Section 2, clause 1 (Commander in Chief). Although the President’s

power as Commander in Chief is limited by constitutional powers granted to Congress –
power to declare war, raise and support the armed forces, makes rules (i.e., laws) for the
regulation of the armed forces, and calling forth the state militias – the President’s power
as Commander in Chief is very broad with respect to armed forces subject to his
disposal, including situations in which Congress has not acted to declare war.

Article II, Section 2, clauses 2 and 3 (Head of State). The President is solely
responsible for carrying out foreign policy (i.e., the execution of foreign policy and
diplomatic relations) – to include the sole power to recognize foreign governments,
receive foreign ambassadors, and negotiate treaties. Congress can enact laws affecting

50
foreign policy, and two-thirds of the Senate must ratify a treaty before it becomes binding
law.

Article II, Section 2, clause 3 (Chief Law Enforcement Officer). The President has
the sole constitutional obligation to “take care that the laws be faithfully executed”. This
provision grants the President broad discretion over federal law enforcement decisions;
that is, not only the power, but additionally the responsibility to see that the constitution
and laws are interpreted correctly.

Article II, Section 1, clauses 1 and 2 (Head of the Executive Branch). The
President has the power to nominate and appoint all officers in the Executive Branch, in
some cases such appointment requiring the consent of the Senate. With some
exceptions, the President has the sole power to remove an officer from an appointed
position.

If the President promulgates an executive order within the framework of the foregoing
four categories, the scope of power is exceeding broad. There is expansive discretion
no matter the form or title assigned.

One executive action which was problematic for me was the military order promulgated
by President George W. Bush in November 2001. This order established military
tribunals to try enemy aliens captured OCONUS for violations of the law of war. 1 There
was a presidential finding to justify the order …an extraordinary emergency exists for
national defense purposes, that this emergency constitutes an urgent and compelling
government interest, and that the issuance of this order is necessary to meet the
emergency.”2 My objection was that the structure and procedures of such military
tribunals violated the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 801–946, and
Common Article 3 of the Geneva Conventions. I note parenthetically that Judge
Advocate officers at the Department of Defense, objected to the order on these grounds.
In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the U.S. Supreme Court ruled against the
government on the foregoing grounds, and disallowed these particular military tribunals.
Note that the decision is based on a procedural defect, not constitutional. The opinion
explicitly did not rule that the President lacked authority to constitute military tribunals to
try “enemy combatants”, rather only that such tribunals had to be sanctioned by the
“laws of war”, citing Article 21 of the UCMJ. The Supreme Court vindicated my
position.

Describe an example, real or hypothetical, of an instance where you would feel

comfortable, or would accept to some degree, executive unilateral action.

On November 13, 2001, President George W. Bush promulgated a military order to the
Department of Defense to deploy U.S. military forces to Afghanistan to engage in ground
combat operations.3 There had been no declaration of war by Congress under Article I,
Section 8, of the Constitution. However, Congress had passed the Authorization for Use

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of Military Force (AUMF), 115 Stat. 224, on September 14, 2001. The authorization
granted the President the authority to use all "necessary and appropriate force" against
those whom he determined "planned, authorized, committed or aided" the September
11th attacks, or who harbored said persons or groups.

I was comfortable with this order. This “unilateral executive action” was appropriate and
in compliance with Article II, Section 2, clause 1, of the Constitution. Importantly, the
order was pursuant to a grant of authority by Congress.

As … discuss[ed] above, the Left has been high critical of President Trump's
travel ban on travelers from seven majority Muslim countries. Do you feel that
this is a proper use of presidential unilateral action? If you don't, would you
change your mind if you discovered that the authority granted the president is
in existing statue (sic)?

Setting aside the current political controversy about President Trump’s “travel ban”, the
correct question is does any President have the legal and constitutional power to
institute such a ban. The first issue is whether there is any constitutional basis for a
president to issue a directive which bars the admission of an alien into the U.S.?
Without advancing a dreary, legalistic opinion, it is my opinion as a student of
constitutional law that Article II, Section 2, clauses 2 and 3, indeed provide such
authority, with the caveat that such directive comply with applicable statutes.

The second issue is whether there are statutory grounds which would authorize
President Trump’s “travel ban”. 8 U.S.C. § 1182(f) provides as follows: “Whenever the
President finds that the entry of any aliens or of any class of aliens into the United States
would be detrimental to the interests of the United States, he may by proclamation, and
for such period as he shall deem necessary, suspend the entry of all aliens or any class
of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any
restrictions he may deem to be appropriate.”

8 U.S.C. §1187 authorizes the Secretary of Homeland Security to establish a program

under which could waive entry requirements into the U.S. under 11 U.S.C. § 1182 (Visa
Waiver Program), provided that (1) the alien has been determined not to represent a
threat to the welfare, health, safety, or security of the United States, and (2) who has not
been present in Iraq, Syria, or any other country or area of concern.

On February 18, 2016, the Department of Homeland Security (DHS) announced travel
restrictions for the Visa Waiver Program.4 Previously DHS had named as countries of
concern the states of Iran, Iraq, Sudan, and Syria. With this announcement, DHS added
Libya, Somalia, and Yemen, bringing the list to seven. The DHS announcement stated:
“The addition of these three countries is indicative of the Department’s continued focus
on the threat of foreign fighters.” This action was taken under the authority of 8 U.S.C. §
1182(f).

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8 U.S.C. § 1182(a)(3)(B) also prohibits entry to any individual who has engaged in a
terrorist activity, is a representative of a terrorist organization or group that endorses or
espouses terrorist activity, or has received military-type training from or on behalf of an
organization that was a terrorist organization.

On January 27, 2017, President Donald J. Trump signed executed Executive Order 13769,
titled “Protecting the Nation from Foreign Terrorist Entry into the United States”. The
executive order provides:5

“I hereby proclaim that the immigrant and nonimmigrant entry into the United
States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C.
1187(a)(12), would be detrimental to the interests of the United States.” [and]

“Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the
entry of nationals from Syria as refugees is detrimental to the interests of the United
States and thus suspend any such entry until such time as I have determined that
sufficient changes have been made to the USRAP to ensure that admission of Syrian
refugees is consistent with the national interest”6

“…I hereby proclaim that the immigrant and nonimmigrant entry into the United
States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C.
1187(a)(12)…”

Without going into detail, Executive Order 13769 was only a temporary order intended to
allow DHS and other government agencies sufficient time to devise adequate “vetting”
procedures to determine whether aliens asking for admission to the U.S. posed a threat
to national security.

So the relevant question is whether President Trump’s “travel ban”, as constituted in

Executive Order 13769 meets constitutional and statutory muster. Based on the
foregoing discussion, the answer is yes.

Finally … most importantly, what would say are the long-term consequences of
aggressive unilateral action? How you answer this question should reflect your
views on government power in general. In other words, if you are opposed to
Trump's executive order then you should, by extension, be opposed to
Obama's use of unilateral action since you would logically object to expansive
power. On the other hand, if you support Trump's travel ban, then you
should, logically, support Obama's unilateral actions since you would be
suggesting that expansive power is justified. To throw a wrench into this
thinking, if you support, say, Obama's unilateral actions but not Trump's, then
we can safely say that you are a partisan who is willing to ignore consistent
constitutional thinking. Of course, one could make the argument that, just to

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pick a side, Trump's executive actions are justified since one side is fighting a
revolution against the executive abuses of the other and these actions
are necessary to correct past damages. This view, naturally, would suggest
that you are entirely partisan and have little difficulty in telling others how to
live.

This question is too complex to address in this brief comment. So let me approach it this
way. I am a constitutionalist. Constitutional lawyer and political commentator Mark
Levin would use the word originalist. In any event, an originalist looks to the actual text
of the U.S. Constitution and the intent of the Framers when considering a constitutional
question. Further, we believe that we are bound by the Constitution and such intent.
Thus, it is our position that the powers enumerated in the Constitution are the only
powers of the federal government – be it the legislative, executive, or judicial branches.7
Constitutional scholar Robert Bork put it this way: “Judges may look to the text,
structure, and history of the Constitution, but are prohibited from inventing extra-
constitutional rights.”8 The same principle logically applies to the executive and
legislative branches. Deceased Justice Antonin Scalia stated: “Originalism seeks to
promote the rule of law by imparting to the Constitution a fixed, continuous, and
predictable meaning.”9

When pondering an executive directive, my analysis focuses not on whether I would

have adopted the policy therein enunciated nor whether I am politically sympathetic to its
author, rather on whether the order is constitutionally sound. So to become bogged
down in a comparison of executive directives issued by President Barrack Obama with
those issued by President Donald Trump is in my humble opinion a fruitless exercise.

In closing, my views “on government power in general” are quite simple. The
government which governs least governs best.10

________________________________________

1
OCONUS is a military term which means outside the continental United States.

2 “
Military Order of November 13, 2001,” Section 1: Findings, para. (g), Federal Register:
November 16, 2001 (Vol. 55, No. 222), Presidential Documents, 57831-57836.

3
georgewbush-whitehouse.archives.gov/news/releases

4
www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions...

5
https://www.whitehouse.gov/the-press-office/2017/01/27/executive...

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6
The United States Refugee Admissions Program (USRAP) is a consortium of federal agencies
and nonprofit organizations working together, both overseas and domestically, to identify and
admit qualified refugees for resettlement into the United States.

7
See, Levin, Mark B., Men in Black (Washington, D.C.: Regnery Publishing Co., 2003), 13.

8
Bork, Robert, The Tempting of America: The Usurpation of Law by Politics (New York, NY: Free
Press, 1997), 165-166. ,

9
Scalia, Antonin, “Originalism: The Lesser Evil,” 57 U. Cin. L. Rev. 849 (1989), 862-863.

10
Thoreau, Henry David, Civil Disobedience,
jrbooksonline.com/PDF_Books/CivilDisobedience.pdf

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