OVERVIEWS

Constitutional & Legal Issues

By Topic

Included here:

1. The Fourth Amendment

2. Torture and Rendition

3. Plame Suit

4. CIA's Destruction of the Abu Zubaydah Tapes

5. War Powers

1. The Fourth Amendment

Bowman, M. E. "Privacy, Technology, Security, and Surveillance." Intelligencer 20, no. 1 (Spring-Summer 2013): 7-17.

This article "is about the way technology has changed and is changing the way the way we live our lives and, perhaps, the way the 4th Amendment is understood."

Thompson, Richard M., II. Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses. Washington, DC: Congressional Research Service, Library of Congress, 3 Apr. 2013. Available at: http://www.fas.org/sgp/crs/natsec/R42701.pdf.

"This report assesses the use of drones under the Fourth Amendment right to be free from unreasonable searches and seizures. The touchstone of the Fourth Amendment is reasonableness.... While individuals can expect substantial protections against warrantless government intrusions into their homes, the Fourth Amendment offers less robust restrictions upon government surveillance occurring in public places including areas immediately outside the home, such as in driveways or backyards. Concomitantly, as technology advances, the contours of what is reasonable under the Fourth Amendment may adjust as people's expectations of privacy evolve."

2. Torture and Rendition

Finn, Peter. "Suit Dismissed against Firm in CIA Rendition Case." Washington Post, 9 Sep. 2010, A2. [http://www.washingtonpost.com]

By a 6-5 decision on 8 September 2010, the U.S. Court of Appeals for the 9th Circuit "dismissed a lawsuit seeking damages" from Jeppesen Dataplan, a Boeing subsidiary, "that worked with the CIA as part of its 'extraordinary rendition' program." The court ruled "that the government's decision to invoke the 'state secrets' privilege means that the case cannot go forward." See also, Charlie Savage, "Court Dismisses a Case Asserting Torture by C.I.A.," New York Times, 8 Sep. 2010.

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."

3. 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.

4. CIA's Destruction of the Abu Zubaydah Tapes

Cox, Douglas. "Burn After Viewing: The CIA's Destruction of the Abu Zubaydah Tapes and the Law of Federal Records." Journal of National Security Law & Policy 5, no. 1 (2011). [http://www.jnslp.com]

The author argues that "the CIA should have treated the tapes as records and, had it done so, the much publicized debates within the CIA and the White House over whether it was politically palatable to destroy them and questions about their relevance to ongoing cases and government inquiries would have been largely academic. The federal records laws, properly applied, would have required the preservation of the tapes."

5. War Powers

Fenster, Herbert Lawrence. "The Great War Powers Misconstruction." Journal of National Security Law and Policy 5, no. 2 (2012): 339-358.

"It would now make very little sense to solve the war powers enigma in isolation from the emerging construct of the new military. Whatever may have been the historical and definitional errors of the past, a very new construct is now essential."

Fisher, Louis. "Basic Principles of the War Power." Journal of National Security Law and Policy 5, no. 2 (2012): 319-337.

"The Framers of the U.S. Constitution assigned to Congress many of the powers of external affairs previously vested in the English king. That allocation of authority is central to America's democratic and constitutional system. When decisions about armed conflict, whether overt or covert, slip from the elected members of Congress, the principles of self-government and popular sovereignty are undermined.... Congress alone was given the constitutional authority to initiate war."

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