Ruffner, Kevin C. "CIA and the Search for Nazi War Criminals." Center for the Study of Intelligence Bulletin 10 (Winter 2000): 10-11.1. Nazi War Crimes Disclosure Act
2. Statement and Account Clause
3. Use of "Dirty Assets"
4. Patriot Act
5. National Security Letters
6. Torture and Rendition
7. State Secrets
8. Plame Suit
9. Executive Privilege
Ruffner, Kevin C. "CIA and the Search for Nazi War Criminals." Center for the Study of Intelligence Bulletin 10 (Winter 2000): 10-11.
The unit managing the CIA's compliance with the Nazi War Crimes Disclosure Act of 1998 is the Special Collections Division of the Office of Information Management (OIM).
Elliott, Douglas P. "Cloak and Ledger: Is CIA Funding Constitutional?" Hastings Constitutional Law Quarterly 2 (Summer 1975): 347-385. [Petersen]
Warner, John S. "National Security and the First Amendment." In The First Amendment and National Security, ed. Paul Stephen. Charlottesville, VA: University of Virginia Press, 1984.
Halperin v. Central Intelligence Agency, 629 F.2d 144 (DC Cir. 1980): Halperin sought in an FOIA request disclosure of legal bills paid to private attorneys by the CIA. The Agency claimed exemption under section 102(d)(3) of the National Security Act which makes the DCI responsible for protecting intelligence sources and methods. Halperin argued that this violated the "statement and account clause" of the U.S. Constitution (Article I, Section 9, Clause 7). Judge Wilkey concluded for the Court that "the Statement and Account Clause does not create a judicially enforceable standard for the required disclosure of expenditures for intelligence activities." In addition, this "is a non-justiciable political question. Courts therefore have no jurisdiction to decide whether, when, and in what detail intelligence expenditures must be disclosed."
Baugher, Thomas R. "Swans Swimming in the Sewer: Legal Use of 'Dirty Assets' by CIA." International Journal of Intelligence and Counterintelligence 9, no. 4 (Winter 1996/97): 435-471.
The author uses the March 1995 uproar surrounding the CIA's relationship with Guatemalan Colonel Julio Roberto Alpinez, accused of involvement in human rights violations in Guatemala, to survey the law and other possible controls over the CIA's use of foreign assets with less than a savory background. He compares some of these issues to those associated with the FBI's use of confidential informants.
Baugher concludes that the CIA "must be free to deal with anyone possessing valuable information." However, "Congress must be informed when the asset threatens American lives or interests"; it is, then, up to Congress to "try to pressure the president to forbid a clandestine relationship or terminate an existing one."
Bradley, Alison A. "Extremism in the Defense of Liberty?: The Foreign Intelligence Surveillance Act and the Significance of the Patriot Act." Tulane Law Review 70, no. 2 (2002): 465-494. [Marlatt]
Henderson, Nathan . "The Patriot Act's Impact on the Government's Ability to Conduct Electronic Surveillance of Ongoing Domestic Communications." Duke Law Journal 52 (2002): 179 ff.
"[W]hile most of the modifications" to the previous balance between privacy interests and national security concerns "will not pose a significant threat [to privacy interests], two of them may. Namely, potentially allowing FISA to be used to circumvent Title III intercept order requirements may unnecessarily put nonterrorists at risk of being investigated and prosecuted as terrorists. Similarly, allowing roving surveillance to be conducted pursuant to FISA may result in the interception of numerous innocent conversations, many of which will probably involve innocent American citizens."
Jaeger, Paul T, et al. "The Impact of the USA Patriot Act on Collection and Analysis of Personal Information Under the Foreign Intelligence Surveillance Act." Government Information Quarterly 20. no. 3 (Jul. 2003): 295-314.
Liptak, Adam. "Judge Voids F.B.I. Tool Granted by Patriot Act." New York Times, 7 Sep. 2007. [http://www.nytimes.com]
On 6 September 2007, Judge Victor Marrero of the Federal District Court in Manhattan "struck down the parts of the recently revised USA Patriot Act that authorized the Federal Bureau of Investigation to use informal secret demands called national security letters to compel companies to provide customer records." He "ruled that the measure violated the First Amendment and the separation of powers guarantee."
Schulhofer, Stephen. The Enemy Within: Intelligence Gathering, Law Enforcement, and Civil Liberties in the Wake of September 11. New York: Century Foundation, 2002.
Seamon, Richard Henry, and William Dylan Gardner. "The Patriot Act and the Wall Between Foreign Intelligence and Law Enforcement." Harvard Journal of Law and Public Policy 28, no. 2 (Spring 2005): 319-463.
Doyle, Charles. National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments. Washington, DC: Congressional Research Service, Library of Congress, Updated 20 Mar. 2007. Available at: http://www.fas.org/sgp/crs/intel/RL33320.pdf.
From "Summary": "Five federal statutes authorize intelligence officials to request certain business record information in connection with national security investigations. The authority to issue these national security letters (NSLs) is comparable to the authority to issue administrative subpoenas. The USA PATRIOT Act expanded the authority under four of the NSL statutes and created the fifth. Thereafter, the authority has been reported to have been widely used. Prospects of its continued use dimmed, however, after two lower federal courts held the lack of judicial review and the absolute confidentiality requirements in one of the statutes rendered it constitutionally suspect."
Levit, Kenneth J. "The CIA and the Torture Controversy: Interrogation Authorities and Practices in the War on Terror." Journal of National Security Law & Policy 1, no. 2 (2005): 341-356.
"It is important to distinguish ... between coercive measures used for interrogation and abusive practices in a detention facility that have no bearing on intelligence gathering efforts.... Interrogation tactics and gratuitous abuse of detainees raise different issues.... [I]t would be reckless for CIA leadership not to seek legal advice from the Department of Justice in determining how to carry out its responsibilities for interrogation under a covert action finding without breaking the law. As the interrogation controversy has taken shape, it is becoming increasingly clear that the Agency did in fact take significant steps to ensure that it had met its legal responsibilities.... [W]here mistreatment is not likely and there is a well articulated legal basis for a rendition of a particular detainee to a particular destination country, a rendition should be considered legal."
Fisher, Louis. In the Name of National Security: Unchecked Presidential Power and the Reynolds Case. Lawrence, KS: University Press of Kansas, 2006.
Prados, I&NS 23.3 (Jun. 2008), declares that "[t]here is no study with comparable depth and dexterity on the whole question of the state secrets doctrine." The author's analysis of United States v. Reynolds (decided by the Supreme Court in 1953) "is exhaustive to a fault, but the result is quite valuable.... This book will be fascinating for legal scholars but a tough read for the rest of us."
Liptak, Adam. "Appeals Court Upholds Dismissal of Abuse Suit." New York Times, 3 Mar. 2007. [http://www.nytimes.com]
On 2 March 2007, the U.S. Court of Appeals for the Fourth Circuit ruled that Khaled el-Masri, a German citizen of Lebanese descent who alleges kidnapping and abuse by the CIA, "cannot seek redress in court because his lawsuit would expose state secrets." The opinion was written by Judge Robert B. King for the court's unanimous three-judge panel.
Zagel, James. "The State Secrets Privilege." Minnesota Law Review 50 (1965-1966): 875-910. [Calder]
8. Plame Suit
Leonnig, Carol D. "Plame's Suit Against Top Officials Dismissed." Washington Post, 20 Jul. 2007, A5. [http://www.washingtonpost.com]
On 19 July 2007, a U.S. district judge dismissed a lawsuit filed by Valerie Plame and her husband "against Vice President Cheney and other top officials over the Bush administration's disclosure of Plame's name and covert status to the media.... The judge said that such efforts are a natural part of the officials' job duties, and, thus, they are immune from liability." Because he was dismissing the claims for jurisdictional reasons, he did not express an opinion on the merits of the case.
9. Executive Privilege
Fisher, Louis. "Congressional Access to National Security Information." Harvard Journal on Legislation 45, no. 1 (Winter 2008): 219-235.
From abstract: "Recent presidential administrations have invoked a broad executive privilege to justify withholding national security information from Congress and the courts. This Article argues that such a broad claim of privilege rests on a mischaracterization of the President’s constitutional role. The author ... argues that Congress must have access to this information to effectively exercise its own powers with regard to war and national security. The Article proposes that Congress enact legislation giving the Judiciary access to this information so that it can properly enforce the separation of powers and vindicate individual rights."
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