olc opinions on cybersecurity measures

* OLC opinions regarding certain cybersecurity measures

Just posted to OLC’s website, these will be of interest to those interested in the intersection of law, privacy, technology, and security.  If that topic interests you, by the way, please note that it is the theme of this year’s Texas Law Review symposium (with the security aspect defined broadly to include intelligence collection, sharing, storage, and analysis, as well as cybersecurity and network operations).  That event will take place in Austin from February 4-6, 2010.  More info on that to follow in the near future.  For now, here are the two OLC opinions:

LEGALITY OF INTRUSION-DETECTION SYSTEM TO PROTECT UNCLASSIFIED COMPUTER NETWORKS IN THE EXECUTIVE BRANCH
(August 14, 2009) (added 09/18/09)

LEGAL ISSUES RELATING TO THE TESTING, USE, AND DEPLOYMENT OF AN INTRUSION-DETECTION SYSTEM (EINSTEIN 2.0) TO PROTECT UNCLASSIFIED COMPUTER NETWORKS IN THE EXECUTIVE BRANCH
(January 9, 2009) (added 09/18/09)

significant release of old OLC memos

DOJ today announced the release of a number of significant OLC memos

No time for summaries at the moment, but here they are:

• Memorandum Regarding Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001 (01-15-2009)
• Memorandum Regarding Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the “Purpose” Standard for Searches (09-25-2001)
• Memorandum Regarding Authority for Use of Military Force to Combat Terrorist Activities within the United States (10-23-2001)
• Memorandum Regarding Authority of the President to Suspend Certain Provisions of the ABM Treaty (11-15-2001)
• Memorandum Regarding the President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (03-13-2002)
• Memorandum Regarding Swift Justice Authorization Act (04-08-2002)
• Memorandum Regarding Determination of Enemy Belligerency and Military Detention (06-08-2002)
• Memorandum Regarding Applicability of 18 U.S.C. § 4001(a) to Military Detention of United States Citizens (06-27-2002)
• Memorandum Regarding October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities (10-06-2008)

handy link for OLC memos; forthcoming scholarship

1. Handy resource for keeping track of OLC and other legal memos from 2001-2008 relating to national security, including links to those that are public and descriptions of those that are not

This is pretty useful.  From ProPublica:

http://www.propublica.org/special/missing-memos

2. Forthcoming Scholarship

“‘De Facto Sovereignty’: Boumediene and Beyond”

George Washington Law Review, Forthcoming
SMU Dedman School of Law Legal Studies Research Paper No. 00-29

ANTHONY J. COLANGELO, Southern Methodist University – Dedman School of Law
Email: colangelo@smu.edu

In Boumediene v. Bush, which grants non-citizens detained at Guantanamo Bay, Cuba, constitutional habeas corpus privileges the Supreme Court took notice that the United States maintains “de facto sovereignty” over that territory. As its sole precedential support, the Court cited a case that never mentions the term de facto sovereignty. What is this concept? How important is it to the Court’s holding? Did the Court get the concept right given its longstanding usage and meaning in Supreme Court precedent? And what can de facto sovereignty tell us about when the Court will find habeas to extend to other situations involving extraterritorial detention of non-citizens in the war on terror?

AG opinion on constitutionality of proposed OLC reporting act; forthcoming scholarship

1.  Attorney General Mukasey, Constitutionality of the OLC Reporting Act of 2008 (Nov. 14, 2008) (made public 1/12/09)

OLC has released a memorandum from AG Mukasey to the Senate Majority Leader, from November 2008, declaring his view that proposed legislation requiring public disclosure of OLC memos in certain scenarios would be unconstitutional.  The memo is posted here: http://www.usdoj.gov/olc/2008/olc-reporting-act.pdf

2. Forthcoming scholarship

“True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers”

Roger Williams University School of Law Legal Studies Research Paper Series

PETER MARGULIES, Roger Williams University School of Law
Email: pmargulies@rwu.edu

Post-September 11 legal events have demonstrated that ideological agendas distort the deliberation required for sound advice about national security. Legal issue entrepreneurs who market a theory without context exalt short-term interests and encourage executive unilateralism. These perils have emerged in a number of recent developments, including the torture memos drafted by the Justice Department’s Office of Legal Counsel (OLC) and the destruction of CIA interrogation tapes.

newly-public OLC memos

* Newly-public memos from the Office of Legal Counsel

A fascinating array of OLC memos, ranging in date from November 2001 to March 2004, have just been posted to OLC’s website:

“PROTECTED PERSON” STATUS IN OCCUPIED IRAQ UNDER THE FOURTH GENEVA CONVENTION
(March 18, 2004) (added 1/08/09)

STATUS OF TALIBAN FORCES UNDER ARTICLE 4 OF THE THIRD GENEVA CONVENTION OF 1949
(February 7, 2002) (added 1/08/09)

AUTHORITY OF THE PRESIDENT UNDER DOMESTIC AND INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ
(October 23, 2002) (added 1/08/09)

EFFECT OF A RECENT UNITED NATIONS SECURITY COUNCIL RESOLUTION ON THE AUTHORITY OF THE PRESIDENT UNDER INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ
(November 8, 2002) (added 1/08/09)

WHETHER FALSE STATEMENTS OR OMISSIONS IN IRAQ’S WEAPONS OF MASS DESTRUCTION DECLARATION WOULD CONSTITUTE A “FURTHER MATERIAL BREACH” UNDER U.N. SECURITY COUNCIL RESOLUTION 1441
(December 7, 2002) (added 1/08/09)

LEGALITY OF THE USE OF MILITARY COMMISSIONS TO TRY TERRORISTS
(November 6, 2001) (added 1/08/09)