Foreign Relations and National Security Law
Anderson Spring 2004 -- Text: Dycus-- Venzor
Constitutional Division of Authority 2
Invitation to Struggle 2
Constitutional Division of Foreign Rels Power 2
Presidential Powers 2
Congressional Powers 2
Judicial Powers 2
Constitutional National Security History 2
Separation of Powers 3
Applying Jackson’s Tiers 3
President v. Congress 4
War Powers 4
Pres War Power 4
Cong War Power 4
Defense Approps and Cong War Powers 5
Limits on Congl Delegation of War Powers 5
Cong Limits on Pres By Approps 5
Other Approps Matters 6
Political Branches v. Courts 6
Limits on Cts in Foreign Affairs 6
Political Questions 6
Applying Baker v. Carr Criteria to Dellums and Ange 7
Citizen Standing 7
Taxpayer Standing 7
States v. Fed 7
Constl Limits 7
Int’l Law and U.S. Law 8
Treaties 8
Treaty Interpretation 8
Exec Agreements 8
Self Execution of Treaties 8
Customary Int’l Law 9
State Secrets and FOIA 9
Exemptions and Judicial Review 9
Protecting State Secrets 10
National Security v. Individual Liberties 10
Secrecy Agreements 10
Enjoining Press 10
Crim Prosecution 11
Statutes Punishing Classified Disclosures 11
Fourth Amendment and FISA 11
FISA 12
Interrupting Terrorist Support and Financing 12
Economic Sanctions 12
Trading with Enemy Act of 1917 12
IEEPA OF 1977 12
USAPATRIOT 13
Prosecuting Terrorists 13
Designating/Charging Terrorists 13
Criminalizing Terrorism 13
Extraterritorial App of Law 13
Principles of Extraterritorial Regulation 13
Extradition/Rendition 14
Secret Evidence 14
Classified Information Procedures Act 14
Military Commissions 15
Military Detention 15
Detention Act 15
9/11 Joint Resolution 15
Miscellaneous Topics 16
Foreign Sovereign Immunity 16
FSIA of 1976 17
FSIA Commercial Activity Exception 17
Violations of Int’l Law Exception 17
Diplomatic Immunity 17
Head of State Immty 17
Constitutional Division of Authority
Invitation to Struggle
Constitutional Division of Foreign Rels Power
Presidential Powers
§ Vestiture Cl. for “Executive Power”
§ Cmmdr in Chief (CIC)
§ Faithful Execution of Law
§ Treaty Negotiation/Ratification
o Exec Agreements too
§ Apt. Ambassadors
§ Receive Ambassadors
§ Veto Laws, propose laws
Congressional Powers
§ Vestiture Clause for “Legislative Power”
§ Spending
§ Raise Armies
§ Declare War
§ Regulate Military
§ Letters of Marque and Reprisal
§ Call up militia
§ Define and punish crimes v. law of nations
§ Regulate foreign commerce
§ Tariffs, duties, etc.
§ Consent to treaties and appointments (Sen)
Judicial Powers
§ Vestiture Clause for “Judicial Power”
§ SCOTUS original J over Ambassadors
§ Judge treaties and Federal Law
Constitutional National Security History
§ Corwin and Edwin: The Constitution was an invitation to struggle.
§ Courts are limited to cases or controversies and prudential doctrines of justiciability, thus have little say
§ Framers were largely familiar with foreign affairs powers, esp. with Contl Congress control over Revolutionary War. Though Crown exercised executive alone for most British history, by 1750s Parliament began exercising regular powers in foreign affairs.
o Lockean philosophy on Sep of Powers grows in popularity
o Philosophical distinction between types of war:
w “Perfect Wars” (declared by states for national gains); think Harry at Agincourt
w “Imperfect Wars” (undeclared and fought to protect privates rights; think French & Indian War
ª Role of Imperfect Wars left colonies largely hostile to Executive For. Rels. Pwr.
ª Nevertheless, experience during Rev War left reinvigorated movement against leg. supremacy in war making.
§ Constl Convention
o Exec and Leg relationship in foreign affs became large issue
o Rel between Fed and States in for rels more easily weighted to Feds (failure of Confederation)
o Most debate on War Decl. power was whether Senate alone or whole Cong should do; little discussion of “imperfect wars” though Pres largely seen as administrator for war.
o Senate alone given treaty approval power as poss need for secrecy made smaller body preferable.
Separation of Powers
Applying Jackson’s Tiers
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952)
J. Black
§ During Korean Conflict, Truman authorizes SecComm to seize steel plants to prevent strikes.
§ SCOTUS strikes down Presidential acts
§ Exec action must rely on act of Congress or inherent Exec autho; no such act in place
§ Pres claimed autho from:
o CIC power (per Black, domestic steel mills not in theater of war)
w J. Frankfurter says statutes only give autho over these acts to Cong; also, no declaration of war here
o Inherent Exec Power during emergencies
o Faithful Execution of laws pwr
[Concurrences: N.B. Frankfurter & Jackson address Cong Acquiescence; Burton & Clark say great enough need enough unless Cong has specifically prohibited]
J. Douglas (concurring)
§ Pres cannot raise funds or seize property unilaterally
J. Burton (concurring)
§ some autho may be intimated absent Cong. autho, but not this much
J. Clark (concurring)
§ Unless Cong expressly prohibits action; grave enough need may allow Pres action.
J. Frankfurter (concurring)
§ No decl of war here, no direct Cong acquiescence, order placed not on military but on civilians, order outside theater of war.
*J. JACKSON (concurring --most often cited opinion)
§ Pres/Cong Rels based on 3 tiers
o 1st: Where Pres acts with authorization of Cong, is at zenith of power
o 2d: Where Pres acts in area of concurrent Jurisdiction with Cong, zone of twilight where Cong acquiescence justifies Pres actions till Cong steps back in
o 3d: Where Pres acts contrary to Cong, may only act on enumerated powers (not many)
§ (Cong had asserted autho without specifically giving Pres autho, therefore no delegation to Pres.)
Public Citizen v. DoJ, 41 U.S. 440 (1989)
§ DoJ sought to aid Pres in nominating Judges by seeking advice from ABA committee on Judiciary; which met in secret. Πs sue for access to per Fed Advisory Comm Act. DoJ denies it applies; if it does, it interferes with Pres nominations power.
J. Kennedy, (concurring)
§ Test of Jackson II (Steel Seizure Case)
o For un-enumerated powers, Pres may act if Cong would unduly interfere with general character of autho
o For enumerated powers, Jacksin III hold and pres may not be interfered with.
Dames & Moore v. Regan, 453 U.S. 654 (1981)
J. Rehnquist
§ Π seeks stay of exec order to nullify certain attachments of assts for suits v. Iran; Pres negotiations created a specific institution for settling claims v. Iran.
o In Persinger, D.C. Cir. holds that Pres may dismiss claims as hostages effectively gave up claims against Iran in exchange for freedom. (Hello . . .. Duress!?!)
§ J. Rehnquist relies on Youngstown doctrine to find:
§ IEEPA Allowed suspension/nullification of claims
§ claims have existence apart from attachment, autho for Pres to suspend
§ Cong agreed for long time with Pres autho to act this way
§ Ct upholds suspension of claims
§ N.B. taking not implicated as only one route of processing property right is here limited; others remain.
§ (Under IEEPA- Pres nullification of attachments is Jackson I; Suspension of citizen claims v. for states is Jackson II as Cong was acquiescent)
President v. Congress
U.S. v. Curtis-Wright Export Co., 299 U.S. 304 (1936)
J. Sutherland
§ “United States v. Curtis-Wright says Uncle Sam is always right”
§ Curtis-Wright sues for FDR’s ban on weapons exports to certain countries. Act of Cong delegated to Pres autho to declare certain arms embargoes
§ A sovereign power of the U.S., inherited from British crown, is diplomacy and foreign affairs.
§ Constl structure places Pres as “sole organ of foreign affairs” (though must exercise powers consistent with Const.) Pres is Constl equivalent of the singular British Crown.
§ Diplomacy is area with wide Pres latitude
§ (Conv of embargo breaker upheld)
U.S. v. Pink, 315 U.S. 203 (1942)
§ Dispute over Constly of Litvinoff assignment recognizing USSR in exchange for dismissing various claims v. nationalized Russian property.
§ Ct finds Receive Ambassadors power of Exec leads to implied power to recognize govts.
§ Under power to recognize govts, Pres may make certain Exec agreements (not rising to treaty level)
§ Pres is yet limited by Constl autho (e.g. Takings Cl., other limits).
N.B. 2004 agreement normalizes rels with Libya provided she settles claims of Pan Am 103 victims
War Powers
Pres War Power
Little v. Barreme, 6 U.S. 170 (1804)
CJ Marshall
§ Captain found liable for illegal seizure of ship during undeclared war with France; was acting under embargo act against U.S. ships going to France. (Ship was Danish).
§ Cong limited Act to U.S. ships going to French ports; Pres construed as including ships leaving French ports
§ Pres was wrong to authorize captain’s acts, the captain is liable for following illegal order. (Harry and the soldiers--“every subjects duty is the King’s, but every man’s soul is his own”).
o N.B. Cong later indemnifies soldiers and others in good faith performance of their duty in many cases.
§ (Cong may bind Pres warmaking power per Decl of War pwr)
The Prize Cases, 67 U.S. 635 (1803)
§ May Pres (Lincoln) under law of war/int’l law, authorize blockades in civil war/insurrection (is sabre rattling an implied power of Pres)?
§ Ct holds Civil War is effectively a state of war, as secessionary states assert independence.
§ Pres autho to callout militia and repel invasion (suppress insurrection et. in early U.S. law).
§ Also Cong ratified Act with blocked act later.
Cong War Power
§ Cong sets limits for conflict (espec. in limited war, Pres may act only to extent authorized by Cong)
§ May declare war (giving Pres plenary power to prosecute as CIC)
§ May set limited war aims
§ ??Does mutual defense treaty consented to by Senate (alone) and ratified by Pres, preemptively substitute for decl. of war in case of attack??
Bas v. Tingy, 4 U.S. 37 (1800)
§ For undeclared war with France, Cong. authorizes action v. French belligerent vessels
§ When U.S. captain recaptured a U.S. ship from French, he sought retrieval value. Depending on state of war and acts related to France, value was different.
Judges announce opinions seriatim, major opinions=
J. Washington (most filled out, but almost identical with J. Chase)
§ Ct must determine nature of war at time
o Solemn war is general grant of autho
o Imperfect war has only specifically autho types of action
§ This war is sufficiently authorized to justify wartime retrieval value per Cong acts
In re Neagle, 135 U.S. 1 (1890)
§ U.S. marshal assigned to protect a threatened judge, kills assailant; is arrested under Calif. law
§ Neagle files habeas petition arguing his action was authorized under U.S. law
§ Pres may take action to respond to imminent threat, besides, U.S. marshal is at least as authorized to act as a domestic deputy
§ Pres may also respond to overseas emergencies
Defense Approps and Cong War Powers
Lichter v. U.S., 334 U.S. 742 (1948)
§ Def contractors against an Act authzg the cong to recapture “excessive war profits”
o Initial renegotiation act was in 1942, but history of recapture legislation dated to 1920s after WWI, with a longer history of understanding, agreeing to and approving of relevant proceedings
§ K’rs argued Cong was taking too much
§ Admin autho delegated by Cong is satisfactory (leg. was broad grant of power to determine excess)
§ Pres administration of statute with historical basis is approved by SCOTUS
§ (Cong may broadly delegate for aff pwr to Exec)
Greene v. McElroy, 360 U.S. 474 (1954)
§ Suit against lack of hearing & review for withdrawal of secy clearance which led to term of emplyment (also Due Process gds)
o Cong may not delegate its law-making ability to another branch
o Here, Cong has much less experience with such procedures and Ct sees the DoD procedures as akin to Star Chambers
§ Cong delegation of powers allows creation of clearance system, but not delegate ability for summary hearing.
§ Where Admin action raises constl probs, it is assumed that Due Process was intended to be protected. Delegation had no hint of allowing these proceedures.
o Pres exercise of undelegated power slapped down
§ Here, summary hearing violated Due Process therefore revers lower cts.
§ (Cong delegations of pwr will be carefully reviewed if civil libs are involved)
Limits on Congl Delegation of War Powers
§ Primary nature of War Power is power to wage war successfully; therefore sweeping delegations allowed
§ Likely not delegate actual power to declare war, but has come close --Iraq War (II) Resolution
§ Cts view delegations of power or authos of action through the appropriations power, warily
§ Approps limited in duration, riders not nexx. product of as lengthy a deliberation, etc.
Dames & Moore v. Regan, 453 U.S. 654 (1981)
§ Cong deemed to have acquiesced to Pres claims settlement through exec agreements based on history of prior law (IEEPA, etc and such settlements done since 18th Cent).
o Because of Pres action acquiesced to by Cong supports SCOTUS ruling for Pres
§ N.B. IEEPA gives Pres various economic powers to use in peacetime when mobilizing
o Control over prop in which foreign entities have an interest
o Pres declares nat’l emergency and invokes IEEPA. Under Natl Emergencies Act and unusla or extraordinary threat originating overseas.
Cong Limits on Pres By Approps
§ Use of riders massive as easier to sneak policy through omnibus approp bill Pres is reticent to veto.
Natl Fedtn of Fed Employees v. U.S., 688 F. Supp 671 (D.D.C. 1988) vacated sub nom
§ Exec forced secrecy acts on employees that banned disclosures to Cong.
§ Cong passed rider disallowing use of funds for secy clearance programs
§ DoJ argued rider was unconstl
§ Ct holds Congl rider is unconstl, as Cong could not do through approps act what it could not do directly.
o However the consensus is that Judge Gash was wrong, as Cong COULD have just as easily done this through direct legislation.
McGrain v. Daugherty, 273 U.S. 135 (1927)
§ Where Sen. Select Comm orders arrest of person for refusal of subpoena to testify, person files habeas petition