OVERVIEWS

Constitutional & Legal Issues

By Topic

Included here:

1. Intelligence Identities Protection Act

2. Intelligence and Law Enforcement

3. Homeland Security

4. Executive Privilege

5. First Amendment and the Press

1. Intelligence Identities Protection Act

Intelligence Identities Protection Act of 1982. (Disclosure of information by persons in course of pattern of activities intended to identify and expose covert agents.) Pub. L. 97-200, June 23, 1982; 96 Stat. 122; 50 U.S.C. (sections) 421(c)-426.

American Bar Association. Standing Committee on Law and National Security. "Intelligence Identities Protection Act Signed Into Law by President." Intelligence Report 4, no. 7 (1982): 1-2, 12. [Petersen]

Bazan, Elizabeth B. Intelligence Identities Protection Act. Washington, DC: Congressional Research Service, Library of Congress, 3 Oct. 2003.

From "Summary": "There do not appear to be any published cases involving prosecutions under this Act."

Boston University International Law Journal. "The First Amendment Goes Undercover: A Constitutional Analysis of the Intelligence Identities Protection Act of 1982." 2 (Summer 1984): 495-511.

Brooklyn Law Review. "The Intelligence Identities Protection Act of 1982: An Assessment of the Constitutionality of Section 601(c)." 49 (Spring 1983): 479-516.

Columbia Law Review. "The Constitutionality of the Intelligence Identities Protection Act." 83 (Apr. 1983): 727-754.

Maffet, Meri W. "Open Secrets: Protecting the Identity of the CIA's Intelligence Gatherers in a First Amendment Society." Hastings Law Journal 32, no. 6 (Jul. 1981): 1723-1775.

Stanford Law Review. "'Naming Names': Unauthorized Disclosure of Intelligence Agents' Identities." 33 (Apr. 1981): 693-713.

2. Intelligence and Law Enforcement

Best, Richard A., Jr. Intelligence and Law Enforcement: Countering Transnational Threats to the U.S. Washington, DC: Congressional Research Service, Library of Congress, updated 3 Dec. 2001. Available at: http://www.fas.org/irp/crs/RL30252.pdf.

"This report looks at the separate roles and missions and distinct identities of intelligence and law enforcement agencies. Coordinating their efforts has raised significant legal and administrative difficulties that have been only partially overcome.... This report also addresses congressional oversight of the law enforcement-intelligence relationship that is spread among a number of House and Senate committees, each of which has only partial jurisdiction."

Connors, Timothy. "Putting the 'L' into Intelligence-Led Policing: How Police Leaders Can Leverage Intelligence Capability." International Journal of Intelligence and Counterintelligence 22, no. 2 (Summer 2009): 237-245.

Heymann, Philip B. "Law Enforcement and Intelligence in the Last Years of the Twentieth Century." National Security Law Report 18, no. 1 (Winter 1996): 1, 4-12.

Since the end of the Cold War, law enforcement and intelligence communities "find themselves working on the same issues in the same areas of the world." This is a significant change from the past, and creates several issues by "the blurring of boundaries between the intelligence community and law enforcement."

Kris, David S. "Law Enforcement as a Counterterrorism Tool." Journal of National Security Law & Policy 5, no. 1 (2011): 1-79 (plus Appendices). [http://www.jnslp.com]

"As an empirical matter, the criminal justice system has advanced three important national security goals: disrupting terrorist plots through detection and arrest, incapacitating terrorists through prosecution and incarceration, and gathering intelligence from and about terrorists through interrogation and recruitment of them as cooperating assets.... While our criminal justice system has limits, and is not always the right tool for the job, when it is the right tool it has an exceptional success rate."

[Reno, Janet.] "Attorney General Reno Addresses Intelligence and Law Enforcement." National Security Law Report 15, no. 11 (Nov. 1993): 1-6.

Excerpts of speech to the Standing Committee on Law and National Security of the American Bar Association, 19 November 1993.

Riley, K. Jack, et al. State and Local Intelligence in the War on Terrorism. Santa Monica, CA: RAND, 2005. Available at: http://www.rand.org/pubs/monographs/MG394/index.html.

"This report ... examin[es] how state and local law enforcement agencies conducted and supported counterterrorism intelligence activities after 9/11. It analyzes data from a 2002 survey of law enforcement preparedness in the context of intelligence and reports the results of case studies showing how eight local law enforcement agencies handle intelligence operations. Finally, it suggests ways that the job of gathering and analyzing intelligence might best be shared among federal, state, and local agencies."

Snider, L. Britt, Elizabeth R. Rindskopf, and John Coleman. Relating Intelligence and Law Enforcement: Problems and Prospects. Washington, DC: Consortium for the Study of Intelligence, 1994.

Sommers, Marilyn B. "Law Enforcement Intelligence: A New Look." International Journal of Intelligence and Counterintelligence 1, no. 3 (1986): 25-40.

This article deals with the subject of "law enforcement intelligence analysis" and why "strategic analysis" should be practiced by law enforcement agencies.

3. Homeland Security

Nicholson, William C., ed. Homeland Security Law and Policy. Springfield, IL: C.C. Thomas, 2005.

4. 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."

5. First Amendment and the Press

Schoenfeld, Gabriel. Necessary Secrets: National Security, the Media, and the Rule of Law. New York: Norton, 2010.

Peake, Studies 54.3 (Sep. 2010), comments that this book "is accurately titled, well documented, and persuasive." For Goulden, Intelligencer 18.1 (Fall-Winter 2010) [originally published in Washington Lawyer, Sep. 2010], the author's "sprightly narrative" is, for the most part, "carefully objective and dispassionate." However, he does argue that "the modern press has a dangerously inflated concept of its role in a democratic society."

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