Homeland Security Law

A Primer

Tyll van Geel

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138369696
• eBook ISBN: 9781315298238
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Since 2001 the U.S. government has been engaged in the delicate balancing act of seeking to protect the country against terrorism, both foreign-connected and wholly domestic, while taking into account a number of constitutional protections that can all too easily be trammelled in the effort to assure domestic security. At the same time the development of these policies has created significant constitutional tension among the three branches of the federal government, especially when the President vigorously asserts claims of sweeping power as commander-in-chief in such a way as to raise warnings about the emergence of an imperial presidency. Simultaneously, the rule of law has been placed under stress as the technological prowess of the government has grown.

This book addresses these topics in an accessible manner, covering the key developments of domestic security law related to terrorism. Tyll van Geel covers the essential elements of homeland security law including: branches of government and institutions involved in counterterrorism law; border control and immigration; surveillance; the searching of computers and cell phones; the prosecution of terrorists for any number of crimes, including cyberterrorism; military detention; the prosecution of unprivileged enemy belligerents in military commissions; and habeas corpus. The book is designed to offer a clear guide to current issues in domestic security in response to terrorism and will be a valuable guide for concerned citizens as well as undergraduate students studying domestic politics or national security.

1
The Counterterrorism Enterprise

The United States’ governmental apparatus to protect the homeland against foreign-connected and domestic terrorists is huge, involving all three branches of government – executive, legislative and the judicial. According to research by the Washington Post, it involves over 1200 governmental agencies and approximately 2000 private companies in 10,000 locations across the United States.¹ The Intelligence Community (IC) expends roughly $71 billion a year, about $18 billion by the military IC and $53 billion by the non-military IC.² The effort to combat terrorism is spread across almost every department and agency of the executive branch. This federal effort to make combating terrorism a priority arguably had its start on June 21, 1995, when Presidential Decision Directive No. 39 was issued. It opened with this statement:

It is the policy of the United States to deter, defeat and respond vigorously to all terrorist attacks on our territory and against our citizens, or facilities, whether they occur domestically, in international waters or airspace or on foreign territory. The United States regards all such terrorism as a potential threat to national security as well as a criminal act and will apply all appropriate means to combat it. In doing so, the U.S. shall pursue vigorously efforts to deter and preempt, apprehend and prosecute, or assist other governments to prosecute, individuals who perpetrate or plan to perpetrate such attacks.³

Two agencies focus primarily on foreign-connected terrorism, the Central Intelligence Agency and the National Security Agency. The Federal Bureau of Investigation focuses on both domestic and foreign-connected terrorism. Inevitably, whatever the original primary mission of an agency it may end up dealing with both foreign-connected and domestic terrorism. Given the way budget figures are reported, and the overlapping jurisdiction of the agencies, makes it a Herculean task to determine the absolute dollar figures and percentages of the federal budget allocated to countering foreign-connected terrorism versus domestic terrorism. Chances are, however, that considerably more money is being devoted to the detection, capture and prosecution of foreign-connected terrorists than domestic terrorists. The CIA is focused on foreign terrorists. The NSA’s and FBI’s total budgets seem to be roughly the same, $10 billion each.⁴ Most of the budget of the NSA as well as at least 50% the FBI’s budget is devoted to foreign-connected terrorists.⁵

The federal government’s homeland security counterterrorism enterprise can be refined by taking note of its three major components: (I) the steering mechanism, (II) the core and, (III) the checking mechanism. The original architects, engineers and builders of the system are Congress, which adopted legislation establishing the system, and the President who also exercised his authority (under Article II and the federal statutes) to create systems and structures.

I. The steering mechanism

The President, the heads of various executive departments such as the Department of Homeland Security and the Department of Justice, and the heads of the divisions under these departments (e.g., the director of Immigration & Customs Enforcement) play a role in formulating counterterrorism policy, setting and allocating the budget, and in steering counterterrorism efforts. Congress too, with its various committees concerned with national security, is a major co-captain of the counter-terrorism ship. The judiciary is taken up in Section III below.

The President issues Executive Orders, policy directives, and other memorandums. The most comprehensive policy guidance issued in 1981 was that of President Reagan, E.O. 12333.⁶ This order has three parts, one of which addresses the goal of U.S. intelligence efforts and the duties and responsibilities of various agencies and officers, including the intelligence community (IC); a second part lays out principles of intelligence activities; and the third has general provisions and definitions.

Congress passes laws regarding surveillance (e.g., the Wiretap Act⁷ and the Foreign Intelligence Surveillance Act), spells out which crimes should be prosecuted as terrorism, specifies the offender and offense jurisdiction of military commissions, specifies the rules of procedures to be used in the military commissions, lays out policies to protect infrastructure, and authorizes and empowers components of the “core.” Other laws, such as state wiretapping laws, are the product of state legislatures. Federal courts interpret and apply the Constitution, interpret and apply federal statutes, and also promulgate the Federal Rules of Criminal Procedure and the Federal Rules of Evidence applicable in the federal courts.

Working with the President are several top-level councils – the National Security Council (NSC), and the Homeland Security Council (HSC) whose members are specified by statute.⁸ (Also advising the President are two advisors for national and homeland security.) Because these councils are at the apex of the government they include the President and secretaries of relevant executive departments, as well as others appointed by the President. The Director of National Intelligence (DNI) has overall responsibility for intelligence and day-to-day management of the IC; the DNI determines and controls the intelligence budget.⁹ Also advising the President and serving at the pleasure of the President are the members of the President’s Intelligence Advisory Board who are charged with making recommendations to improve the government’s intelligence efforts.

Steering the policies for investigating both domestic and foreign-connected terrorism inside the U.S. are the Department of Justice and the Federal Bureau of Investigation (28 CFR §0.85).

Setting the broad policy directives for the “core” in a nation that embraces adherence to the rule of law necessarily will, and has involved, the advice of legal counsel. Jack Goldsmith claims that over a long period of time a culture has taken hold in the executive branch that he calls a “fiercely legalistic conception of unprecedented wartime constraints on the presidency.” He adds that “never in the history of the United States had lawyers had such an extraordinary influence over war policy as they did after 9/11 … [because] war itself was encumbered with legal restrictions as never before.”¹⁰

National security legal advice is provided to the President and NSC by, among others:

[T]he Office of White House Counsel, the Department of Justice (including the Attorney General, Deputy Attorney General, Office of Legal Counsel, and National Security Division), and the Office of the Legal Adviser at the NSC. In addition, national security legal advice is provided directly to individual members of the NSC by department and agency counsel. However, the principal mechanism and source of national security legal advice for the President, NSC … is from and through the Office of the Legal Adviser to the National Security Council.¹¹

With multiple sources of legal advice, issues arise such as the relationship between the Office of White House Counsel and the Legal Advisor at the NSC, and the relationship between, on the one hand, the attorneys located in the White House, and on the other hand the Attorney General and the Office of Legal Counsel (OCL) in the Department of Justice. At the heart of these relationships lies the question of whether the President should be guided (constrained?) by non-partisan, independent impartial legal advice, or should the President be able to obtain and rely on advice that works backwards from “yes” and then constructs a legal rationale for what the President wants to do.

A word about the OCL.¹² Historically OCL’s role has been to provide nonpartisan and independent legal opinions for the President and the executive branch as a whole – even if the President does not like the advice – despite the fact that the OCL operates under the Attorney General who is an appointee and works under the President.¹³ The legal opinions from the OCL become binding on the executive branch until countermanded by the President. People acting pursuant to an OLC opinion enjoy civil and criminal immunity. The OCL has followed a number of practices to help assure its autonomy, but arguably its autonomy had been compromised during the Bush administration, when the OCL issued its notorious opinion that waterboarding was neither torture nor a crime, thus authorizing the CIA to move ahead, and eventually leading to the immunity of the CIA personnel who were involved in waterboarding. In 2009 the Office of Professional Responsibility in the Department of Justice concluded that John Yoo, who wrote the “torture memos,” had committed “intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.”¹⁴ This finding implied that the OCL had at this historical moment, been politicized. The OCL also issued opinions providing legal justification for the President’s Surveillance Program.

Given only the broad-brush guidance of E.O. 12333 and scant statutory authority the Attorney General, FBI, and U.S. Attorneys have self-imposed guidelines for the conduct of investigations and prosecutions. (See Chapters 6 and 7.) These guidelines are a first step toward assuring the FBI and prosecutors operate according to the rule of law, and a balance is struck between, on the one hand, crime prevention and national security, and on the other hand, civil rights and civil liberties.¹⁵

The Department of Defense also operates under various manuals reflecting its understanding of the law of war and Geneva Conventions.

II. The core

A. Overview

The “core” is comprised of all the departments, divisions, agencies, and offices that carry out the counterterrorism program. A wide range of agencies have counter-terrorism as part of their mission. Those of central concern in this book, starting at the executive department level, are the Departments of Homeland Security (with multiple components), Defense, State, Treasury, Justice, Energy, and the Office of the Director of National Intelligence. Nested within these departments are the National Intelligence Council, the National Security Agency (NSA), the Federal Bureau of Investigation, Customs and Border Protection, Immigration and Customs Enforcement, the Transportation Security Administration as well as other components that comprise the Intelligence Community (IC), a collaborati...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• CONTENTS
• Acknowledgements
• Acronyms and abbreviations
• Introduction
• 1 The counterterrorism enterprise
• 2 President Bush and mass surveillance
• 3 Mass surveillance today
• 4 Securing the borders
• 5 Airline security and the no fly list
• 6 Investigating individual suspects
• 7 The trial
• 8 Military detention and interrogation
• 9 Military commissions: trials
• 10 Protection against being “disappeared”
• Select bibliography
• Index