Panel Discussion: What Students and Teachers Ought To Know

About Intelligence Law

May 27, 2010

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The Constitution is not a suicide pact.

–Justice Arthur Goldberg, 1963, Kennedy v. Mendoza-Martinez

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If you don't stick to your values when they're being tested, they're not values; they’re just hobbies.

-- Jon Stewart, The Daily Show, 2009

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One Approach to designing an intel law course

• Basic legal concepts and history are critical to understanding development of intelligence law since the early 20th century

• Specific, “black-letter law” is less important than a solid grounding in Constitutional principles and a few foundational legal documents such as the National Security Act of 1947 and Executive Order 12333.

• Course should use selected case studies, hypotheticals, and anything else helping students to read critically and engage with legal concepts, as opposed to simply memorizing statutes.

• Students should get practice in briefing legal cases and preparing legal arguments in oral and written assignments.

Law & Intelligence: A Proposed Course Overview

Week 1: History & foundations of U.S. constitutional law; origins and organization of the U.S. Intelligence Community

Week 2: 4th Amendment; Foreign Intelligence Surveillance Act of 1978

Week 3: 1st Amendment and Classified Information; Material Support to Terrorism

Week 4: 6th Amendment: Prosecutions; Classified Information Procedures Act; Freedom of Information Act; State Secrets Privilege; Secret Contracts; Leaks’ Prepublication Review

Week 5: Law Enforcement & National Security I: Counterintelligence; Posse Comitatus

Week 6: Law Enforcement & National Security II: Counterterrorism, Habeus Corpus, and Military Commissions

Week 7: Interrogations; Renditions; Geneva Conventions

Week 8: Information Operations, Covert Actions, and Cyberspace

Week 9: Intelligence Oversight

Week 10: Emerging Topics in National Security Law

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Week 1: Origins of National Security Law: legal history from earliest times

through the late 18th century; basic legal concepts and terms; important Supreme

Court cases defining Constitutional separation of powers

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Week 2: FISA; the Right(?) to Privacy; and Other 4th Amendment Issues in

National Security

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Is there a Constitutional right to privacy?

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The Constitution’s “Penumbra” of Privacy

• Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

• Amendment III. No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

• Amendment IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

• Amendment V. No person shall…be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

• Amendment IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

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Week 3: The First Amendment (Freedom of Speech, Association, and the Press);

Material Support to Terrorism

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First Amendment and Freedom of Speech: when do words become “conduct”?

The Smith Act of 1940:Whoever, with intent to cause the overthrow or

destruction of [the U.S.] government—

• prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

• organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or

• becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof –

Shall be fined under this title or imprisoned not more than twenty years, or both…

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First Amendment and the PressPart II: The Pentagon Papers

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U.S. v. The Progressive(Western District of Wisconsin, 1979)

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Week 4: Under the Rose: Sixth Amendment and classified information;

state secrets privilege; Freedom of Information Act; leaks and other

unauthorized disclosures

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Week 5: G-Man and Secret Agent Man, or Issues in Law Enforcement-

Intelligence Community cooperation; counterintelligence; Posse Comitatus

and the Insurrection Act; non-traditional Threats to National Security

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Week 6: How These Laws Do Try Us: John Yoo and Executive Superpowers;

Counterterrorism; Military Commissions

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Week 7: Interrogations and Renditions; Interrogation law and other legal

guidance, 2002-2009; related U.S. and international law; renditions, ordinary

and extraordinary renditions

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Week 8: Information Operations, Covert Actions, and Cyberspace

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Week 9: Intelligence Oversight: Church Committee; Executive

Order 12333; Iran-Contra; Executive and Legislative oversight issues;

Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA)

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Church and Pike committees

In 1975, following disclosures of Watergate, the Pentagon Papers, and many other accounts of dubious government activities in the preceding decades, Senator Frank Church chaired the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities.

The Church Committee published 14 reports on a range of Executive Branch activities, including pervasive, decades-long electronic and physical surveillance of mostly law-abiding citizens.

The Committee’s reports led directly to President Reagan

issuing Executive Order 12333, and to the passage of FISA

in 1978.

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Church and Pike committee findings regarding warrantless surveillance (a partial list)

• 1940s-1970s: Project SHAMROCK, an NSA program to copy and store all telegrams sent overseas by Americans.

• 1950s-1970s: CIA and FBI intercepted, opened and photographed more than 215,000 pieces of mail.

• 1950s-1960s: FBI “black bag jobs,” involving warrantless surreptitious entries (without AG knowledge or approval) in order to search and photograph private property.

• 1960s: Army assigned 1500 plainclothes agents to monitor anti-war demonstrations of 20 or more persons.

• 1967-1973: NSA Project MINARET: Law enforcement and intelligence agencies monitored and disseminated communications from roughly 6,000 U.S. citizens, without warrants or other judicial oversight.

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Week 10: Emerging Legal Issues and Events; Role of Government

Lawyers and Inspectors General in the Intelligence Community

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Course should be a core requirement. I may not like the

legal minefield that I perceive we are laying in our own

backyard - but I bloody well want to know how to traverse it

as a military and intelligence professional.

-Anonymous student evaluation of an NDIC intelligence law course, May 2010

Questions and discussion