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Category Archives: National Security
by: Victor Hansen
One of the primary criticisms of trying terrorists by military commission is the slippery slope which exists in a system not founded on sound legal principles. Proponents of military commissions have argued we needed this separate system to address unique issues involved with trying suspected enemy terrorists, and by creating a separate system we prevent the individual rights protections that apply in Article III prosecutions from being diluted. This is because military commissions are limited to trying non-U.S. citizen “unprivileged belligerents.”
One of the key flaws of this argument is that the Military Commission Act’s limitation on trying only non-U.S. citizens by military commission was not based on any clear legal principle, and nothing would prevent the jurisdiction of these commissions from expanding in the future. Over the past several weeks, the Senate Armed Services Committee has been toying with an amendment to the National Defense Authorization Act (NDAA) which will push us down this slope.
by: Victor Hansen
In a new book, Top Secret America, Washington Post reporters Dana Priest and William Arkin tell the story of the rise of the American security state following the terrorist attacks on 9/11. The authors detail the vast security apparatus developed by an alphabet soup of federal agencies. The thesis of the book is twofold. First, the authors explain, with numerous examples, how this security apparatus developed with little if any oversight, coordination or attempt to assess whether the new security state would better protect us from terrorist attacks. A second theme is that much of this security apparatus is being used not to fight terrorism, but to combat ordinary crime. The extremely sophisticated technologies that state and local law enforcement agencies now routinely use, make the thermal imaging device at issue in Kyllo v. United States seem like ancient technology.
In this era of endless budget battles and a competition between the major political parties as to which can show better fiscal restraint and responsibility, it is striking how little either party, particularly in Congress, is willing to question the need for such a vast and expensive security apparatus. The hesitancy of politicians of either stripe to question these programs is obvious: no politician wants to be seen as soft on terror or unwilling to do everything necessary to protect citizens. Hence, there has been virtually no effort in Congress to assert meaningful oversight of these programs or even to become educated as to what programs actually exist. In one interview, the authors quote a senior Department of Defense official who says that only God knows the extent of the government’s security programs.
by: Victor Hansen
In a recent post, my colleague George Dargo suggested that the Obama administration has no reason not to comply with the terms of the War Powers Act regarding our support of NATO forces in Libya. One of the members of the Obama administration who has argued that the War Powers Act does not apply is Harold Koh, the Legal Advisor to the State Department. He recently addressed an audience of international law and law of war experts at the annual International Law Conference, hosted by the U.S. Naval War College.
Mr. Koh sought to highlight ways in which the Obama administration’s approach to many of these issues fundamentally differed from his predecessor. Among the topics discussed was congressional authorization for U.S. military involvement and support for rebels in Libya who are seeking to topple the Gaddafi regime. The War Powers Act requires the President to seek congressional authorization for U.S. forces engaged in hostilities for more than 60 days. The Obama administration has been under pressure from some members of Congress to seek this authorization for continued military action. The administration’s position is that the War Powers Act does not apply because the nature of our military involvement does not rise to the level of “hostilities” as defined by the War Powers Act.
by: George Dargo
How many angels can dance on the head of a pin? When does the use of the armed forces of the United States trigger the War Powers Resolution of 1973? Why have we not intervened in “hostilities” within the meaning of that resolution with our military operations in Libya?
Learned counsel for the State Department and the White House appear to know the answers to such questions with reasons that would make medieval scholastics blush with embarrassment.
This Just In: President’s Use of Military Force in Libya Does Not Require Prior Congressional Approval!
by: Victor Hansen
The Office of Legal Counsel (OLC) recently issued an opinion on the President’s decision to direct the use of force in Libya in support of United Nation Security Council (UNSC) Resolution 1973. The OLC concluded, unsurprisingly, that the President had the constitutional authority to direct the use of force without prior congressional approval. The OLC opinion is the latest in a series of opinions which reached the same conclusions in a long and growing list of Presidential authorizations for the use force in Panama, Somalia, Haiti (twice), Bosnia, and Yugoslavia. According to the OLC opinion, in contrast to the long history of the President’s unilateral authorization to use force, Congress’s power to declare war is not well defined, even though it is expressly provided for in Article I of the Constitution.
The OLC’s opinion reasons that both the Constitution and past history show that not every use of force must have congressional authorization. According to the OLC opinion, the President can unilaterally authorize the use of force when important national interests are at stake and the use of force does not rise to the level of a “war” in the constitutional sense. In the case of Libya, according to the memo, the President articulated two national security interests. First, the United States has a longstanding national security and foreign policy interest in the stability of the Middle East, a stability threatened by Qadhafi’s actions. Second, the United States has longstanding commitments to maintaining the credibility of the United Nations Security Council. If the United States were unwilling to support UNSC 1973, the authority and credibility of the Council would be undermined.