OVERVIEWS

Constitutional & Legal Issues

By Topic

Included here:

1. Nazi War Crimes Disclosure Act

2. Statement and Account Clause

3. Use of "Dirty Assets"

4. Patriot Act

5. National Security Letters

1. Nazi War Crimes Disclosure Act

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).

2. Statement and Account Clause

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."

3. Use of "Dirty Assets"

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 1996-1997): 435-471.

The author uses the March 1995 uproar surrounding the CIA's relationship with Guatemalan Colonel Julio Roberto Alpinez 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."

4. Patriot Act

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 FBI "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."

Liu, Edward C., and Charles Doyle, Government Collection of Private Information: Background and Issues Related to the USA PATRIOT Act Reauthorization. Washington, DC: Congressional Research Service, Library of Congress, 16 Jun. 2011. Available at: http://www.fas.org/sgp/crs/intel/R40980.pdf.

From "Summary": "[A] number of authorities affecting the collection of foreign intelligence information are still temporary. Three such provisions (the lone wolf, roving wiretap, and business record sections of FISA) are set to expire on June 1, 2015. Additionally, provisions added by the FISA Amendments Act of 2008, relating to the use of foreign intelligence tools to target individuals while they are reasonably believed to be abroad, will expire on December 31, 2012."

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.

5. National Security Letters

Doyle, Charles. National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments. Washington, DC: Congressional Research Service, Library of Congress, 8 Sep. 2009. Available at: http://www.fas.org/sgp/crs/intel/RL33320.pdf.

From "Summary": "The USA PATRIOT Improvement and Reauthorization Act (H.R. 3199), P.L. 109-177, and its companion P.L. 109-178, amended the five NSL [national security letter] sections to expressly provide for judicial review of both the NSLs and the confidentiality requirements that attend them. The sections have also been made explicitly judicially enforceable and sanctions recognized for failure to comply with an NSL request or to breach NSL confidentiality requirements with the intent to obstruct justice. The use of the authority has been made subject to greater congressional oversight."

An abridged version of this report, "without the footnotes, appendixes, and most of the citations to authority found in the longer report," is available as National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments (Washington, DC: Congressional Research Service, Library of Congress, 27 Dec. 2010), at: http://www.fas.org/sgp/crs/intel/RS22406.pdf.

Doyle, Charles. National Security Letters: Proposals in the 112th Congress. Washington, DC: Congressional Research Service, Library of Congress, 30 Jun. 2011. Available at: http://www.fas.org/sgp/crs/intel/R41619.pdf.

"This report reprints the text of the five NSL statutes as they now appear and as they appeared prior to amendment by the USA PATRIOT Act (to which form they would be returned under S. 193)."

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."

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