by John Yoo
45. Those orders prohibited assassination and declared that "the law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such international outlawry; on the contrary, it abhors such outrage." U.S. Army, General Orders No. 100, paragraph 148 (1863).
46. Michael N. Schmitt, "State-Sponsored Assassination in International and Domestic Law," 17 Yale J. Int'l L. 609, 633 (1992). Protocol I to the Geneva Conventions, which the United States refused to ratify in 1987, continues the prohibition against "treachery" by prohibiting "resort to perfidy," which it defines as "acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence." Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), June 8, 1977, art. 37.
47. Army Manual, supra note 44, at art. 3.
48. Protocol I defines proportionality by prohibiting operations that can "be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." Protocol I, supra note 46, at art. 57(2)(a)(iii). The Navy manual defines proportionality as: "The employment of any kind or degree of force not required for the purpose of the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources, is prohibited." Office of the Judge Advocate General, United States Navy, The Commander's Handbook on the Law of Naval Operations, SS 5.2 (Jul. 1987).
49. See, e.g., Steven David, "Israel's Policy of Targeted Killing," 17 Ethics & Int'l Aff. 111 (2003).
50. Oran Ben-Naftali & Keren Michaeli, "We Must not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings," 36 Cornell Int'l L.J. 233 (2003).
51. Israeli Ministry of Foreign Affairs, http://www.israelemb.org/ faq_main_conflict.htm.
52. Eric Posner, "A Theory of the Laws of War," 70 U. Chi. L. Rev. 297(2003); James Morrow, "The Institutional Features of the Prisoner of War Treaties," 55 Int'l Org. 971 (2001).
53. See, e.g., Geoffrey Best, War and Law Since 1945 (1994).
54. Id., at 77.
Chapter 4
1. http://www.fbi.gov/hq/siocfs.htm.
2. Foreign Intelligence Surveillance Act of 1978, codified at 50 U.S.C. SSSS 1801-1862.
3. 50 U.S.C. SS 1805(a)(3).
4. FISA defines a foreign power, in part, as "a group engaged in international terrorism or activities in preparation therefor" and "a foreign-based political organization, not substantially composed of United States persons." 50 U.S.C. SSSS 1801(a)(4), (5).
5. 18 U.S.C. SS 1801(b)(2)(A); see also In re Sealed Case, 310 F.3d 717, 737-42 (For. Intel. Surv. Ct. Rev. 2002).
6. Bill Brubaker, "Bush Signs New Version of the Patriot Act," Wash. Post, Mar. 9, 2006.
7. http://www.whitehouse.gov/news/releases/2006/03/20060309-4.html.
8. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, at SS 213 (amending 18 U.S.C. SS 3103a).
9. Fed. R. Crim. P. 41(d).
10. Dalia v. United States, 441 U.S. 238 (1979).
11. See U.S. Department of Justice, The USA Patriot Act: Myths v. Reality, http://www.lifeandliberty.gov/subs/add_myths.htm (discussing hawala case).
12. Id. (describing detonator and Zodiac gunman cases).
13. Quoted in id.
14. See, e.g., United States v. Miller, 425 U.S. 435 (1976).
15. Fed. R. Crim. P. 41(a).
16. Myths v. Reality, supra note 11.
17. These facts come from The 9/11 Commission Report, supra note 9, at 273.
18. Id. at 181.
19. Id. at 266.
20. Id. at 269.
21. Id. at 271.
22. Id.
23. 50 U.S.C. SS 1804 (requiring a national security official to certify that "the purpose" of the surveillance is to obtain foreign intelligence information).
24. In re Sealed Case, 310 F.3d at 735.
25. U.S. Department of Justice, Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations (1995).
26. Richard Posner, Preventing Surprise Attacks (2005).
27. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. SSSS 2510-2522.
28. United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990) (concluding that the Fourth Amendment did not protect nonresident aliens against unreasonable searches or seizures conducted outside the sovereign territory of the United States, because of serious consequences for use of armed forces abroad).
29. This conclusion is supported by the Supreme Court's recent "special needs" cases, which allow reasonable, warrantless searches for government needs that go beyond regular law enforcement. See Vernonia School Dist. 47 J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 2391, 132 L.Ed.2d 564 (1995) (random drug testing of student athletes); Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990) (stopping drunk drivers); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (border control checkpoints).
30. See e.g., United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980); United States v. United States District Court, 407 U.S. 297, 322 (1972).
31. Katz v. United States, 389 U.S. 347, 358 n.23 (1967); see also Mitchell v. Forsyth, 472 U.S. 511, 531 (1985).
32. 407 U.S. 297, 308 (1972).
33. 629 F.2d 908, 913 (4th Cir. 1980).
34. Id. at 913-14.
35. See also United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 960 (1974); United States v. Buck, 548 F.2d 871 (9th Cir.), cert. denied, 434 U.S. 890 (1977); United States v. Clay, 430 F.2d 165 (5th Cir. 1970), rev'd on other grounds, 403 U.S. 698 (1971).
36. Vernonia School Dist. 47 J v. Acton, 515 U.S. 646, 652 (1995).
37. Id. at 653 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987).
38. See, e.g., Pennsylvania v. Labron, 518 U.S. 938 (1996) (per curiam) (automobile searches); Acton, 515 v.s. at 653 (drug testing of athletes); Michigan Dep't of State Police v. Sitz, 496 U.S. at 455 (1990) (drunk driver checkpoints); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) (drug testing railroad personnel); Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (drug testing federal customs officers); United States v. Place, 462 U.S. 696 (1983) (baggage search); Terry v. Ohio, 392 U.S. 1 (1968) (temporary stop and search).
39. See Tennessee v. Garner, 471 U.S. 1, 8 (1985).
40. Haig v. Agee, 453 U.S. 280, 307 (1981).
41. The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others. Here, the right to self-defense is not that of an individual, but that of the nation and of its citizens. Cf. In re Neagle, 135 U.S. 1 (1890); The Prize Cases, 67 U.S. (2 Black) 635 (1862). If the government's heightened interest in self-defense justifies the use of deadly force, then it certainly would also justify warrantless searches.
42. City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
43. Id. at 44.
44. Id. at 47-48.
45. Cf. Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 1-45 (1997).
46. Quoted in In Re Sealed Case, 310 F.3d at 720.
47. Transcript of Docket No. 02-001, United States Foreign Intelligence Court of Review (Sept. 9, 2002), http://fas.org/irp/agency/doj/fisa/hrng090902.htm.
48. In Re Sealed Case, 310 F.3d at 724.
49. Id. at 743.
50. Id. at 735.
51. Id. at 744.
52. Id. 744-45.
53. Id. at 746.
54. Id. at 742.
55. Eric Posner & Adrian Vermeule, "Accommodating Emergencies," 56 Stan. L. Rev. 605 (2003).
56. Id.
57. See, e.g. Geoffrey Stone, Perilous Times: Free Speech in Wartime (2005).
58. A task force commissioned by Attorney General Reno to investigate the mistakes in the Wen Ho Lee prosecution concluded in 2000 that the Wall obstructed the government's ability to successfully conduct foreign intelligence. In Re Sealed Case, 310 F.3d at 743 n.28 [citing Final Report of the Attorney General's Review Team on the Handling of the Los Alamos National Laboratory Investigation (May 2000)].
Chapter 5
1. James Risen & Eric Lichtblau, "Bush Lets U.S. Spy on Callers Without Courts," N.Y. Times, Dec. 16, 2005.
2. Tim Golden, "A Junior Aide Had a Big Role in Terror Policy," N.Y. Times, Dec. 23, 2005.
3. S. Res. 398, Relating to the Censure of George W. Bush, Mar. 13, 2006, 109th Congress, 2d Session; Statement of Senator Russ Feingold, On the President's Warrantless Wiretapping Program, Feb. 7, 2006, available at www.feingold.senate.gov/06/02/20060207.html (hereinafter "December 2005 Briefing").
4. Shailagh Murray, "Senate Maverick's Motion Stirs Angry Debate," Wash. Post, Mar. 15, 2006.
5. George F. Will, "No Checks, Many Imbalances," Wash. Post, Feb. 16, 2006.
6. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
7. U.S. Const. art II, section 2 (The President "shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur").
8. Richard A. Epstein, "Executive Power on Steroids," Wall St. J., Feb. 13, 2006.
9. Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J., dissenting).
10. John Yoo, The Powers of War and Peace, 30-45, 88-142 (2005).
11. Epstein argues that "commander in chief" is not textually a "power," but just a position. But the lack of the word "power" there does not seem significant. Other authorities enjoyed by the President, such as the power to nominate and then appoint federal officials with the advice and consent of the Congress, do not use the word "power" either. But the authority to appoint individuals is not a position, but indeed a right of the President, and an important one at that. The Treaty Clause, by contrast, does designate the President as having a "power," but the role of the President in both appointments and treaties are virtually identical. It does not seem as if there is anything significant in the latter's grant of a "power" and the former's silence on the matter.
12. Yoo, supra note 10, at 152-55.
13. See Risen & Lichtblau, supra note 1 (describing use of information obtained via wiretap to arrest suspect who plotted to destroy the Brooklyn Bridge).
14. See supra note 1.
15. U.S. Department of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President (Jan. 19, 2006).
16. Richard Posner, "A New Surveillance Act," Wall St. J., Feb. 15, 2006; see also Richard Posner, Preventing Surprise Attacks (2005).
17. Posner, "A New Surveillance Act," supra note 16.
18. Heather MacDonald, "What We Don't Know Can Hurt Us," City Journal, Spring 2004.
19. 50 U.S.C. SS 1804(a).
20. 50 U.S.C. SS 1805(f).
21. See Financial Crimes Enforcement Network, www.fincen.gov, which administers the Bank Secrecy Act, 31 U.S.C. SSSS 5311 et seq.
22. Leslie Cauley, "NSA Has Massive Database of Americans' Phone Calls," USA Today, May 11, 2006.
23. President's Radio Address, May 13, 2006, available at: http:// www.whitehouse.gov/news/releases/2006/05/20060513.html.
24. Susan Page, "NSA Secret Database Report Triggers Fierce Debate in Washington," USA Today, May 11, 2006.
25. Smith v. Maryland, 442 U.S. 735, 744-45 (1979); United States v. Miller, 425 U.S. 435, 443 (1976).
26. William Safire, "You Are a Suspect," N.Y. Times, Nov. 14, 2002.
27. MacDonald, supra note 18.
28. December 2005 Briefing, supra note 3.
29. In the 1907 Hague Regulations, one of the first treaties on the laws of war, the leading military powers agreed that "the employment of measures necessary for obtaining information about the enemy and the country is considered permissible." Interception of electronic communications is known as SIGINT, or signals intelligence, as opposed to HUMINT, or human intelligence. Writers on the laws of war have recognized that interception of an enemy's communications is a legitimate tool of war. According to one recognized authority, nations at war can gather intelligence by use of air and ground reconnaissance and observation, "interception of enemy messages, wireless and other," the capturing of documents, and the interrogation of prisoners. Morris Greenspan, The Modern Law of Land Warfare 326 (1959).
30. Halperin v. CIA, 629 F.2d 144, 158 (D.C. Cir. 1980).
31. Totten v. United States, 92 U.S. 105 (1876).
32. Exec. Order No. 2604 (Apr. 28, 1917) (World War I order); Exec. Order No. 8985 (Dec. 19, 1941) (World War II order).
33. Christopher Andrew, For the President's Eyes Only 124-25 (1995).
34. The Prize Cases, 67 U.S. 635, 670 (1863).
35. The President has the power "to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war," and to issue military commands using the powers to conduct war "to repel and defeat the enemy." Ex Parte Quirin, 317 U.S. 1, 28 (1942).
36. See, e.g., Louis Fisher, Presidential War Power 11 (1995); Michael J. Glennon, Constitutional Diplomacy 17 (1990); but see Yoo, The Powers of War and Peace, supra note 10, at 143-60.
37. Johnson v. Eisentrager, 339 U.S. 763, 788 (1950).
38. The Federalist No. 64, at 435 (Jacob E. Cooke ed. 1961) (John Jay).
39. See, e.g., United States v. Waterman S.S. Corp., 299 U.S. 304 (1936); Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948). In a post-Civil War case, recently reaffirmed, the Court ruled that President Lincoln had the constitutional authority to engage in espionage. The President "was undoubtedly authorized during the war, as commander-in-chief...to employ secret agents to enter the rebel lines and obtain information respecting the strength, resources, and movements of the enemy." Totten v. United States, 92 U.S. 105, 106(1876). On Totten's continuing vitality, see Tenet v. Doe, 544 U.S. 1, 8-11 (2005).
40. Reprinted in Appendix A, United States v. United States District Court, 444 F.2d 651, 669-70 (6th Cir. 1971).
41. See Nardone v. United States, 302 U.S. 379 (1937) (interpreting Section 605 of the Federal Communications Act of 1934 to prohibit interception of telephone calls).
42. See Robert H. Jackson, That Man: An Insider's Portrait of Franklin D. Roosevelt 68-69 (2003).
43. Foreign Intelligence Surveillance Act of 1978: Hearings on H.R. 5764, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on Legislation of the House Comm. on Intelligence, 95th Cong., 2d Sess. 15 (1978) (Statement of Attorney General Griffin Bell).
44. Most notably, Clinton Deputy Attorney General Jamie Gorelick testified before Congress that the Justice Department could carry out physical searches for foreign intelligence purposes, even though FISA at the time did not provide for them. Amending the Foreign Intelligence Surveillance Act: Hearings Before the House Permanent Select Comm. on Intelligence, 103d Cong. 2d Sess. 61 (1994). Clinton's OLC issued a legal opinion that the President could order the sharing of electronic surveillance gathered through criminal wiretaps between the Justice Department and intelligence agencies, even though this was prohibited by statute. Sharing Title III Electronic Surveillance Material with the Intelligence Community, OLC Prelim. Print, 2000 WL 33716983 (Oct. 17, 2000).
45. United States v. United States District Court, 407 U.S. 297 (1972).
46. In re Sealed Case, 310 F.3d 717, 742 (For. Intel. Surv. Ct. Rev. 2002).
47. See Tom Daschle, "Power We
Didn't Grant," Wash. Post, Dec. 23, 2005.
48. A letter to Congress from law professors and former government officials, many of them longtime critics of the Bush administration's war on terrorism or opponents of presidential war powers, backed up Senator Feingold's statement of this view with the conclusion that there is no "plausible legal defense" of the NSA program, and that President Bush should have sought an amendment to the Patriot Act to allow it. They argued that "the President simply cannot violate criminal laws behind closed doors because he deems them obsolete or impracticable." Beth Nolan, et al., Letter to Congress on NSA Spying (Jan. 9, 2006). A similar conclusion is reached by the Congressional Research Service. See Congressional Research Service, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information (Jan. 5, 2006).
49. Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion). Although a plurality opinion, five justices agreed on this point because Justice Thomas, in dissent, concluded that the President had the constitutional authority to detain enemy combatants and that Congress had authorized this. Id. at 587 (Thomas, J., dissenting). In fact, a federal law also prohibited the detention of American citizens without the authorization of Congress, in part as a response to the internment of Japanese-Americans in World War II. Civil libertarians argued that the AUMF was insufficient to overcome this federal antidetention act.
50. As Hamilton wrote in the Federalist, "[E]nergy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." The Federalist No. 70 (Alexander Hamilton). This point applies to the war context directly. Wrote Hamilton: "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." The Federalist No. 74 (Alexander Hamilton). Future Supreme Court Justice James Iredell argued that "[f]rom the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, d[i]spatch, and decision, which are necessary in military operations, can only be expected from one person." Jonathan Elliot, ed., 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 107 (1836); 2 Joseph Story, Commentaries on the Constitution of the United States SS 1491 (1833) (in military matters, "[u]nity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power").
