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Constitutional & Legal Issues

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Harvard Journal of Law and Public Policy. "Intelligence Oversight, National Security, and Democracy." 12, no. 2 (Spring 1989): Entire issue.

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Harvard Journal of Law and Public Policy. "Law and the War on Terrorism." 25, no. 2 (Spring 2002): Entire issue.

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Harvard Law Review. "Developments in the Law: The National Security Interest and Civil Liberties." 85, no. 6 (1972): Entire issue. [Petersen]

Hoffman, Daniel N. Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls. Westport, CT: Greenwood, 1981.

Houston, Lawrence R. "The CIA's Legislative Base." International Journal of Intelligence and Counterintelligence 5, no. 4 (Winter 1991-1992): 411-415.

Few people have been better positioned to write on this subject. Houston served as General Counsel to two of the CIA's immediate predecessor organizations -- Strategic Services Unit (SSU) and Central Intelligence Group (CIG) -- from 1945 to 1947, and then held that post with the CIA from 1947 to 1974. By his account, the drafters began in February 1946 with General Donovan's 1944 functional concept of a peacetime central intelligence establishment.

Houston, Lawrence R. "Executive Privilege in the Field of Intelligence." Studies in Intelligence 2, no. 4 (Fall 1958): 61-74.

"Former CIA General Counsel reviews legal precedents for protecting sensitive information from disclosure in the courts and Congress, with particular references to Central Intelligence privileges. Citations stretch back to Continental Congress proceedings."

Ikenaga, Cindy S. "Electronic Eavesdropping: Which Conversations Are Protected from Interception?" University of Hawaii Law Review 7 (Spring 1985): 227-237.

Calder: Discusses "state constitutional protection in electronic eavesdropping cases."

International Law Update. "U.S. Supreme Court Holds that Former Spies Cannot Use U.S. Courts to Enforce Compensation Agreements for Espionage Services." 11 (Mar. 2005): 37-38.

Chief Justice William H. Rehnquist for the unanimous U.S. Supreme Court: "We adhere to Totten. The state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection we found necessary in enunciating the Totten rule. The possibility that a suit may proceed and an espionage relationship may be revealed, if the state secrets privilege is found not to apply, is unacceptable."

Jackson, Mark G. "The Court-Martial Is Closed: The Clash Between the Constitution and National Security." Air Force Law Review 30 (1989): 1-20.

Calder: There are difficulties "when military prosecution is initiated for crimes involving classified information."

Johnson, Loch K.

1. "The CIA and the Question of Accountability." Intelligence and National Security 12, no. 1 (Jan. 1997): 178-200.

Clark comment: Johnson is arguably the foremost academic writer on the subject of intelligence accountability. His views, however, have been irreducibly influenced by his service on the Church Committee staff. While this gives his work a sameness of tone and viewpoint, it does not diminish the value of his thoughts. His basic argument here is that the investigations of 1975 and the reforms that flowed from them have made the CIA "a part of the government's usual checks and balances," that the resulting increase in accountability is a good thing, and that Congress remains a necessary -- and clearly, constitutionally mandated -- part of maintaining democratic oversight of intelligence activities.

See Stephen Knott's counterargument: "Executive Power and the Control of American Intelligence," Intelligence and National Security 13, no. 2 (Summer 1998): 171-176. Johnson responds in, "Intelligence and the Challenge of Collaborative Government," Intelligence and National Security 13, no. 2 (Summer 1998): 177-182.

2. "Controlling the CIA: A Critique of Current Safeguards." Harvard Journal of Law and Public Policy 12, no. 2 (Spring 1989): 371-396. [Petersen]

3. "On Drawing a Bright Line for Covert Operations." American Journal of International Law 89 (Apr. 1992): 284-309.

Journal of National Security Law and Policy. "Shadow Wars." 5, no. 2 (2012). entire issue. [http://jnslp.com]

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Kornblum, Allan N. Intelligence and the Law: Cases and Materials. 6 vols. Washington, DC: Defense Intelligence College, 1993.

Vol. I: Legal Framework for Intelligence, Legal Authorities for Intelligence, Domestic Security, Search and Seizure, Electronic Surveillance.

Vol. II: Protecting Intelligence Sources and Methods, Unauthorized Disclosures, International Terrorism, Technology Transfer.

Vol. III: Prosecuting Intelligence Cases, The Roles of Congress in Intelligence, Government and Personal Liability, Comparative Intelligence Law.

Vol. IV: Legal Framework for Intelligence, Legal Authorities for Intelligence, Domestic Security, Search and Seizure, Electronic Surveillance, Protecting Intelligence Sources and Methods, Unauthorized Disclosures.

Kruh, Louis. "Cryptology and the Law--IV." Cryptologia 9, no. 4 (1985): 348-350. [Petersen]

Lacovara, Philip A. "Presidential Power to Gather Intelligence: The Tension Between Article II and Article IV." Law and Contemporary Problems 10, no. 3 (Summer 1976): 106-131. [Calder]

Lane, Charles. "Court Will Review Right to Secret Data." Washington Post, 11 Dec. 2001, A11. [http://www.washingtonpost.com]

In the case of Christopher v. Harbury, No. 01-394, the U.S. Supreme Court announced on 10 December 2001 that it would consider whether "an American activist who supported the guerrillas during their war against the Guatemalan army," Jennifer K. Harbury, "has the right to sue former high-ranking U.S. officials for allegedly covering up the torture and murder of her husband, who was a commander of the now-defunct Marxist guerrillas in Guatemala."

Justice Souter delivered the opinion of the Court (20 June 2002) in Christopher v. Harbury (01-394) 536 U.S. 403 (2002), 233 F.3d 596, reversed and remanded: "Respondent-plaintiff in this case alleges that Government officials intentionally deceived her in concealing information that her husband, a foreign dissident, was being detained and tortured in his own country by military officers of his government, who were paid by the Central Intelligence Agency. One count of the complaint, brought after the husband’s death, charges that the official deception denied respondent access to the courts by leaving her without information, or reason to seek information, with which she could have brought a lawsuit that might have saved her husband's life. The issue is whether this count states an actionable claim. We hold that it does not, for two reasons. As stated in the complaint, it fails to identify an underlying cause of action for relief that the plaintiff would have raised had it not been for the deception alleged. And even after a subsequent, informal amendment accepted by the Court of Appeals, respondent fails to seek any relief presently available for denial of access to courts that would be unavailable otherwise." [Available at: http://www4.law.cornell.edu/supct/html/01-394.ZO.html]

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