nationalsecuritylaw forthcoming scholarship

May 23, 2012

The Extraordinary Restrictions on the Constitutional Rights of Central Intelligence Agency Employees: How National Security Concerns Legally Trump Individual Rights

Daniel L. Pines

Central Intelligence Agency
Florida State Journal of Transnational Law & Policy, Vol. 21, 2011

Employees of the Central Intelligence Agency (CIA or “the Agency”) engage in activities designed to protect the nation’s security and, at heart, its Constitution. Ironically, however, CIA employees, by dint of their employment with the Agency, are required to forego many of the very constitutional protections they fight so hard to protect. U.S. law and Agency regulations restrict the ability of CIA employees to engage in political activity, take outside employment, or travel internationally. The CIA significantly invades the privacy of its employees by requiring extensive and intrusive background checks of its employees including blood tests and polygraph examinations. The Agency even goes so far as to limit who its employees can befriend, date, and marry. To top it all off, CIA employees are greatly precluded from contesting these limitations as Congress has prohibited them from forming unions or going on strike, and the Judiciary has greatly limited the ability of Agency employees to bring claims in U.S. courts. Failure to comply with any of the above restrictions can result in disciplinary action and even termination of employment. CIA employees recognize, upon voluntarily joining the Agency, that their constitutional freedoms will be restricted to protect national security; yet few Americans realize the breadth and depth of those restrictions. This article examines the legality of the various restrictions imposed on CIA employees. It concludes that virtually all pass constitutional muster but that one – prohibiting employees from maintaining a substantial and personal relationship with any citizen from certain designated nations – could raise legal concerns.

History, Hamdan, and Happenstance: "Conspiracy by Two or More to Violate the Laws of War by Destroying Life or Property in Aid of the Enemy."

Haridimos V. Thravalos

Harvard National Security Journal

The U.S. Court of Appeals for the District of Columbia Circuit will soon confront the question of whether, under the Military Commissions Act of 2009, conspiracy to violate the law of war is an offense triable by law-of-war military commission. In June 2006, a plurality of the Supreme Court in Hamdan v. Rumsfeld determined that the Government failed to make a colorable case for the inclusion of conspiracy among those offenses cognizable by law-of-war military commission. The plurality’s reasoning was largely based on its survey of domestic law sources and precedents. That survey, however, was inaccurate and incomplete.

This Article examines and expounds upon the domestic law sources and precedents, spanning from the Civil War to beyond World War II, that inform the issues surrounding the charge of conspiracy to violate the law of war. These sources and precedents are supplemented by the scholarship of highly respected military law historians who continually recognized conspiracy as an offense triable by law-of-war military commission. Crucially, the Hamdan plurality relied on one such scholar for a principle that he did not assert, and this author’s discovery of a critical record-keeping error illuminates the defects in the Hamdan plurality’s rationale.

The Article concludes that a thorough analysis of historical evidence leads to a substantial showing that conspiracy to violate the law of war is, itself, a violation of the law of war that has traditionally and lawfully been tried by law-of-war military commission.

A Functional Approach to Targeting and Detention

Monica Hakimi

University of Michigan Law School
Michigan Law Review, Vol. 110, 2012

The international law governing when states may target to kill or preventively detain nonstate actors is in disarray. This Article puts much of the blame on the method that international law uses to answer that question. The method establishes different standards in four regulatory domains: (1) law enforcement, (2) emergency, (3) armed conflict for civilians, and (4) armed conflict for combatants. Because the legal standards vary, so too may substantive outcomes; decisionmakers must select the correct domain before determining whether targeting or detention is lawful. This Article argues that the “domain method” is practically unworkable and theoretically dubious. Practically, the method breeds uncertainty and subverts the discursive process by which international law adapts to new circumstances and holds decisionmakers accountable. Theoretically, it presupposes that the domain choice, rather than shared substantive considerations embedded in the domains, drives legal outcomes. This Article argues, to the contrary, that all targeting and detention law is and ought to be rooted in a common set of core principles. Decisionmakers should look to those principles to assess when states may target or detain nonstate actors. Doing so would address the practical problems of the domain method. It would narrow the uncertainty about when targeting and detention are lawful, lead to a more coherent legal discourse, and equip decisionmakers to develop the law and hold one another accountable.