Examining the Anomalies, Explaining the Value: Should the USA FREEDOM Act’s Metadata Program be Extended?
by Susan Landau & Asaf Lubin
Edward Snowden’s disclosure of National Security Agency (“NSA”) bulk collection of communications metadata was a highly disturbing shock to the American public. The intelligence community was surprised by the response, as it had largely not anticipated a strong negative public reaction to this surveillance program. Controversy over the bulk metadata collection led to the 2015 passage of the USA FREEDOM Act. The law mandated that the intelligence community would collect the Call Detail Records (“CDR”) from telephone service providers in strictly limited ways, not in bulk, and only under order from the Foreign Intelligence Surveillance Court. The new program initially seemed to be working well, although the fact that from 40 court orders in both 2016 and 2017, the NSA collected hundreds of millions of CDRs created public concern. Then in June 2018 the NSA announced it had purged three years’ worth of CDRs due to “technical irregularities”; later the agency made clear that it would not seek the program’s renewal.
This Article demystifies these situations, analyzing how forty orders might lead to the collection of several million CDRs and providing the first explanation that fits the facts of what might have caused the “technical irregularities” leading to the purge of records. This Article also exposes a rather remarkable lacuna in Congressional oversight: even at the time of the passage of the USA FREEDOM Act a changing terrorist threat environment and changing communications technologies had effectively eliminated value of the CDR collection. We conclude with recommendations on conducting intelligence oversight.
Defending Against the Military: The Posse Comitatus Act’s Exclusionary Rule
by Anthony J. Ghiotto
On any given day, American military members engage in domestic law enforcement activities. Whether it’s patrolling the border, interdicting the flow of illegal drugs, monitoring internet file-sharing sites looking for potential child sex offenders, or representing the United States in federal court to enforce federal immigration laws, there has been a gradual encroachment by the military into civilian law enforcement matters. While these activities are often met with a presidential endorsement or a shrug of the shoulders by the American people, many of them are in fact a violation of federal law. The Posse Comitatus Act, passed by Congress at the end of Reconstruction, expressly prohibits the military from enforcing civilian laws. In practice, though, the Posse Comitatus Act is rarely, if ever, enforced. The judiciary is complicit in the weakening of the Posse Comitatus Act by both limiting what constitutes a violation of the Act and then refusing to apply the exclusionary rule to exclude any unlawfully obtained evidence when a violation does occur.
Nonetheless, as the military increasingly encroaches into American society, the purpose and enforcement of the Posse Comitatus Act via the exclusionary rule needs to be reexamined; otherwise, there may be little legal protection against a gradual erosion into military control. This Article makes a relatively straightforward argument: the Constitution affords each American a right to be free from military control and that the Posse Comitatus Act is an effort by Congress to protect that constitutional right. As a statute designed to safeguard a constitutional right, there must be an effective enforcement mechanism. The most appropriate enforcement mechanism available for violations of the Posse Comitatus Act is the exclusionary rule, which would allow courts to suppress evidence obtained in violation of the Posse Comitatus Act in order to deter similar encroachment in the future.
While seemingly straightforward, this argument is in fact novel. Courts and scholars have long struggled with the applicability of the exclusionary rule to the Posse Comitatus Act. Courts have been hesitant to place the Posse Comitatus Act in its true constitutional context and the growing trend is to apply the exclusionary rule only to the most egregious intentional Fourth and Fifth Amendment violations. This Article contributes to the discussion by grounding the Posse Comitatus Act in its constitutional context. By doing so, it supports the establishment of a Posse Comitatus Act exclusionary rule, built upon procedural due process, which serves to preserve the Posse Comitatus Act as an effective subconstitutional check protecting the right to be free from military control.
Unnamed & Uncharged: Next Friend Standing and the Anonymous Detainee
by Scott Harman-Heath
Since before the founding of the United States, the writ of habeas corpus has been an important tool for challenging executive detention. The Supreme Court has carefully limited who may petition for a writ of habeas corpus. Pursuant to a doctrine called “next friend standing,” third parties are sometimes allowed to petition for the release of detainees who are unable to litigate on their own behalf. In Whitmore v. Arkansas, the Supreme Court held that in order for a federal court to exercise jurisdiction over a next friend petition, the third party must demonstrate a significant connection with the detainee. But it is, of course, impossible to establish a significant connection to a detainee without knowing his identity. Thus, by withholding a detainee’s identity and precluding that detainee from accessing judicial process, the government can constructively suspend access to habeas corpus. In one recent case, the U.S. government attempted to exploit this doctrinal shortcoming: In late 2017, the government detained a U.S. citizen for three months without access to judicial process—a constructive suspension of the detainee’s right to access habeas corpus. Protracted litigation was ongoing when the government announced and executed an agreement to release the detainee to a third country, without judicial resolution of the lawfulness of his detention. This Article examines how courts can respond to similar situations when they arise in the future. It argues that courts can address this problem by exercising the power to ascertain their own jurisdiction. This power, the Article contends, can be used to require the government to answer series of simple questions. These questions will facilitate expedient determinations by federal courts on the question of whether a next friend exists and will protracted jurisdictional disputes between a putative next friend and the government. Ultimately, the Article contends that it is possible for federal courts to remain faithful to both the Constitution’s promise of access to habeas corpus and the Supreme Court’s opinion in Whitmore.
Bilateral Defense-Related Treaties and the Dilemma Posed by the Law of Neutrality
by Jeremy K. Davis
To effectively counter current and emerging threats to U.S. and global security, the United States needs to rely on defense cooperation from allies and partners. That defense cooperation is frequently reflected in bilateral defense-related treaties. The United States has many such treaties and it continues to negotiate more. Using a selection of U.S. defense-related treaties as exemplars, this Article explores how states and their lawyers should prioritize the international legal obligations of defense-related treaty partners, when the partners’ treaty obligations to one belligerent and their customary law neutrality obligations to the opposing belligerent in an international armed conflict are incompatible. The Article proffers that an analogous application of the treaty conflict framework from Article 30 of the Vienna Convention on the Law of Treaties is the appropriate methodology to use. Further, this Article examines the potential consequences, under the law of state responsibility, when a partner nation chooses to uphold its treaty obligations to one belligerent and necessarily breaches its neutrality obligations to the opposing belligerent.
Photo by Trevor Paglen (CC0 1.0)