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Abstract:
This article assesses the transfer of terrorism suspects outside the United States to other countries for detention and interrogation. The focus is on the CIA's alleged program of irregular rendition on non-U.S. citizens. Article 3 of the Convention Against Torture sets a standard for irregular rendition, precluding transfers in which there are substantial grounds for believing the suspect will be tortured in the receiving country. Beyond an argument that commander-in-chief powers may override American law on rendition, two means for complying with Article 3 are obtaining official assurances from the receiving country before transfer and monitoring the conditions of the suspect's confinement after transfer. The assurances, oral or in writing, could come from heads of state, through diplomatic channels, or from intelligence officials. And the monitoring could be done by human observers or by technical means. Assurances and monitoring are not necessary on renditions to countries with excellent human rights records. On renditions to countries whose human rights records are at the bottom of the list, assurances and monitoring will not be enough to reach legality. Assurances and monitoring do, however, make a difference on close calls. Accordingly, several combinations of assurances and monitoring are assessed against the records of countries, including Romania, Jordan, and Uzbekistan, which have been mentioned as possible recipients of CIA renditions. The conclusion, in disagreement with Human Rights Watch and the New York City Bar Association, is that irregular rendition can be carried out under the rule of law with care, caution, and a bit more transparency.

terrorism, rendition, interrogation, torture, intelligence, CIA

Abstract:
Neither the McCain Amendment of 2005 nor the Military Commissions Act of 2006 provides a fair and solid foundation for detaining al Qaeda members to gather intelligence from them. Yet, intelligence continues to be vital to American efforts to disrupt terrorist plots. This article, straddled between arguments for civil liberties and for executive supremacy, recommends a new statute to provide that foundation.

A special court would be created to hear Executive applications for the detention and interrogation of terrorism suspects. Court hearings would be secret. The total number of prisoners within special detention would be limited. And an ombudsman would appear on behalf of terrorism suspects at the hearings. To justify detention and interrogation outside the criminal justice system, alternative models are analyzed, including pre-trial detention, civil commitment of the mentally ill and of sexual predators, quarantines for public health emergencies, immigration removals, and detention of enemy combatants. Also discussed are the British and Israeli experiences in handling terrorism suspects.

The use of coercion, short of torture, is considered for interrogations. After considering absolute positions against torture and extra-constitutional exceptions to the ban on torture, this article places special detention within a system of ex ante warrants.

McCain Amendment, terrorism, torture, criminal law, interrogation, rendition, detention

Abstract:
Fewer rules apply to peacetime espionage than to espionage which is conducted during an armed conflict. Espionage, filled with paradox and contradiction, continues to have an ambivalent place under international law. To the sophisticated observer, espionage is neither legal nor illegal. In a sense, it goes beyond law. When an American intelligence officer gathers intelligence through human sources in another country, he or she, from the perspective of American law, is doing something useful and authorized to protect American national security. From the perspective of the other country's law, however, the American intelligence officer and the human sources are committing crimes. The reverse applies when other countries spy on us. Diplomatic immunity, after all, does not decriminalize the practice of espionage, but simply protects people from prosecution. For those intelligence officers who operate under diplomatic cover, the worst that usually happens to them, if caught, is that they are returned home as personae non gratae. Espionage and international law are not in harmony.

counterintelligence, espionage, detention, interrogation, terrorism, intelligence, covert action, international law, diplomatic immunity, customary international law

Abstract:
"Targeted killing" is extra-judicial, premeditated killing by a state of a specifically identified person not in its custody. States have used this tool, secretly or not, throughout history. In recent years, targeted killing has generated new controversy as two states in particular - Israel and the United States - have struggled against opponents embedded in civilian populations. As a matter of express policy, Israel engages in targeted killing of persons it deems members of terrorist organizations who are involved in attacks on Israel. The United States, less expressly, has adopted a similar policy against al Qaeda - particularly in the border areas of Afghanistan and Pakistan, where the CIA has used unmanned Predator drones to fire Hellfire missiles to attempt to kill al Qaeda leaders. This campaign of Predator strikes has continued into the Obama Administration.

This Article explores the implications for targeted killing of the due process model that the Supreme Court has developed in Hamdi v. Rumsfeld and Boumediene v. Bush for detention of enemy combatants. Contrary to a charge leveled by Justice Thomas in his Hamdi dissent, this model does not break down in the extreme context of targeted killing. Instead, it suggests useful means to control this practice and heighten accountability. Our primary conclusion in this regard is that, under Boumediene, the executive has a due-process obligation to develop fair, rational procedures for its use of targeted killing no matter whom it might be targeting anywhere in the world. To implement this duty, the executive should, following the lead of the Supreme Court of Israel (among others), require an independent, intra-executive investigation of any targeted killing by the CIA. Such investigations should be as public as is reasonably consonant with national security. Even in a war-on-terror, due process demands at least this level of accountability for the power to kill suspected terrorists.

due process, targeted killing, enemy combatant, war-on-terror, Boumediene, Hamdi

Abstract:
The narrative is set in 2006 between the Supreme Court's decision in Hamdan v. Rumsfeld and the passage of the Military Commissions Act (MCA). During those few months, the Central Intelligence Agency (CIA) was most concerned that an application of Common Article 3 of the Geneva Conventions to all American activities against al Qaeda would prohibit its secret program of detention and interrogation for suspected terrorists. Hamdan, in a retroactive wrinkle, also increased the exposure of government officials involved in the program to civil and criminal penalties. This article, written by a former CIA lawyer, pays particular attention to the CIA's use of secret prisons, the isolation of prisoners from family and friends, the deferral of trial, and to interrogation tactics such as sleep deprivation, bombarding with music, and making the prisoner's cell uncomfortably hot or cold. In application, Common Article 3's standard of humane treatment is more restrictive of the CIA's practices than the Detainee Treatment Act of 2005 (also known as the McCain Amendment). For this reason, the CIA and its supporters strongly pushed for a legislative fix to the Hamdan decision. That fix, of course, was the MCA which, among many things, amended the War Crimes Act and authorized the President to issue new "authoritative" regulations on the scope of Common Article 3. Under my narrative, President Bush's announcement on September 6, 2006 that he was transferring fourteen high-level prisoners from the CIA's secret prisons to Guantanamo was part of his public relations to ensure that Congress passed the MCA.

Geneva Conventions, interrogation, detention, secret prisons, CIA, Hamdan, Common Article 3

Abstract:
There are heaps of spy novels and piles of memoirs and histories about espionage, but very few discussions of how American law applies to secret deals for secret services. This article adds that interesting third strand.

The purpose of this article is to analyze what role, if any, American courts should play in resolving financial disputes between spymasters and their secret agents. While espionage may be an esoteric area for the law, some disputes about espionage contracts have made their way into the courts. Some cases have been summarily dismissed in the lower courts while others have made it farther along the process. And just recently, the Supreme Court in the Tenet v. Doe case decided to be heard again on this topic.

In Part II of this article, I suggest a framework for analyzing espionage disputes under American law. To do so, I explore the trade-off between individual liberty and group security and assess the need for judicial deference to the executive branch, common themes in national security studies. While I believe that espionage contracts are by themselves worthy of such analysis, my separation of powers framework could be used to review other areas of national security law. In Part III, in a historical survey of cases, I assess some arguments for and against judicial enforcement of espionage contracts, leading up to the Tenet v. Doe decision. In Part IV, I determine how an espionage dispute would be treated under three different strands or keys in national security law. This part leads to the analysis of the Supreme Court's recent decision in Tenet v. Doe. In Part V, in conclusion, I suggest some opportunities which the Supreme Court and Congress have missed for bridging gaps and harmonizing the law in this area.

Espionage, Intelligence, National Security, Separation of Powers, Spymasters, Terrorism

Abstract:
But who guards the guardians? At the Central Intelligence Agency, the General Counsel and the other lawyers in the office range in their function between watchdogs and lapdogs. They go from pure oversight to slavish facilitation. This Article, by suggesting a more balanced breed, presents and assesses several views about CIA lawyers as well as offering the author's first-hand accounts of top dogs John Rizzo, Scott Muller, and Robert McNamara. Crucial to the CIA's detention and interrogation program was the advice government lawyers gave about the torture statute. Also significant have been the referrals to the Justice Department for investigations into possible crimes. Other topics for CIA lawyers include the guidelines for covert action and intelligence gathering, the Classified Information Procedures Act, the state secrets privilege, and the Freedom of Information Act. This Article is part of a broader project that analyzes internal checks on the intelligence community.

Oversight, intelligence, espionage, CIA, interrogation, internal checks, classified information, covert action, criminal referrals, secrecy

Abstract:
I apply the pragmatic approach of Justice O'Connor's opinion in Hamdi v. Rumsfeld to propose a better legal (and political) framework for irregular rendition. Following Justice O'Connor, I try to split the difference between the civil liberties camp and the executive supremacy camp on a contentious issue of national security law. My proposal, less restrictive of CIA practices than Senator Biden's proposed legislation in 2007, includes a FISA-type court and adds more process and oversight to the transfers of suspected terrorists outside the formalities of extradition. With better controls, there is still room for irregular rendition between intelligence services as a part of American counterterrorism.

irregular rendition, extraordinary rendition, torture, interrogation, transfers, oversight, assurances, post-transfer monitoring, FISA review, and intelligence agencies

Abstract:
Long past the soul-searching of Watergate, very few people question the need for covert action as a part of American foreign policy. The world is so dangerous after 9/11 that it would be irresponsible to suggest that our intelligence agencies should be disbanded or that our government should acknowledge everything it does on the dark side. Today the question is not whether we should engage in covert action at all, but how often and under what circumstances.

Not everything stays secret. Our Nation has been conducting covert action with greater transparency and more congressional participation than during the Cold War. Despite the doomsayers, the statutory checks on covert action that started in the 1970s have not damaged the Nation.

This Article, casting additional light on covert action, provides a framework for answering two sets of questions: one about delegations of presidential authority to the Central Intelligence Agency, the other about notices to Congress. For background, this Article presents a selected history of covert action since World War II, and reviews the statutes and regulations that affect covert action’s legality. After that, this Article examines the extent to which the President may (and should) delegate authority for covert action, then balances the need for congressional oversight against the President’s prerogative to limit knowledge of covert action to a small and trusted group. Recognizing the need to protect intelligence sources and methods, this Article proposes a new executive order (or a new statute) to clarify and to publicize the internal procedures that take place before the United States fixes foreign elections, beams propaganda onto foreign radios, supplies weapons to insurgents who fight our enemies, or kills suspected terrorists with missiles from Predator drones.

CIA, covert action, oversight, separation of powers, intelligence gathering, national security, delegation, notices

Abstract:
This article, written before Zacarias Moussaoui pleaded guilty and was spared the death penalty in the Eastern District of Virginia, argued that it was a mistake to use civilian justice, rather than a military commission, to handle his case. Before "national security courts" became fashionable, this article identified several problems in using civilian justice to deal with someone associated with the high levels of al Qaeda: not being able to interrogate Moussaoui about past and pending plots; compromises to intelligence sources and methods from the discovery process; giving a person linked to 9/11 another opportunity to attack the United States; and unnecessarily adding to the burdens of providing physical security for the proceedings. Moussaoui and other members of al Qaeda, in sum, are better handled outside the usual system of civilian justice.

Moussaoui, 9/11, death penalty, civilian justice, national security, al Qaeda, intelligence

Abstract:
Whether related to attempted assassinations, unauthorized interrogations, or other intelligence failures, the Inspector General at the Central Intelligence Agency is supposed to conduct audits and internal investigations into potential wrongdoing at an organization that operates in the shadows. From 1947 until 1990, the IG served at the discretion of the Director of the CIA. Congress, after uncovering the CIA’s improper role in Iran-contra, created a statutory IG. A new IG, appointed by the President and confirmed by the Senate, was granted the power to initiate investigations on his own and was required to make reports to the oversight committees on problems within the Agency and on disputes between the IG and the Director. Through a more independent IG, Congress sought more effective oversight of Agency activities as well as greater access to the CIA’s inner dealings. This Article, part of a broader project that analyzes internal checks on the intelligence community, reviews the IG’s statutory structure, compares the performance of the office on several investigations before 1990 to its performance since then, and discusses the backgrounds and experiences of a handful of officers who have served as the CIA’s watchdog. We question whether the changes in the IG’s structure have really improved that office’s ability to keep the CIA on the right side of the law. Institutional lapses have gone uncorrected. Individual responsibility has not been assigned for operational and strategic failures. And, in many cases, journalists have scooped the IG

Central Intelligence Agency, CIA, oversight, internal checks, external checks, inspector general, rendition, black sites, enhanced interrogations, secrecy, accountability

Abstract:
Sweeping change is necessary at the Central Intelligence Agency (CIA). During President Barack Obama‘s transition into office, change should go deeper than usual between administrations. To restore the trust of the American people and to regain the confidence of the international community, the CIA needs to do better. I will outline three areas for legislative change relating to my former employer, the CIA. The first proposal is to have a national security court for the trials of terrorists. The second is to permit the CIA to continue to have an exception to pursue aggressive interrogations with a lot of oversight and checks. The third is to continue the process of rendition or the transfer of suspected terrorists with more oversight and checks.

Central Intelligence Agency, CIA, national security court, oversight, rendition, enhanced interrogations

Abstract:
In the new century, the CIA’s continued existence is not guaranteed. That is alarming because our country depends on its intelligence services for survival. CIA officers, while protecting us against real dangers, should help clear the smoke for all to see that the Justice Department’s investigation, whether or not it leads to criminal charges, is not part of a vast conspiracy against them. Understanding that the eagle in the CIA’s seal stands for both security and liberty, they should trust Leon Panetta to improve the Agency with more assertive roles from a new General Counsel, a new Inspector General, and better internal review boards. These internal checks are especially important for an agency that operates so much in the shadows. These checks have to be realistic, however, or else the case officers will no longer take their tough questions to the safe havens. Balance is vital.

Central Intelligence Agency, CIA, Justice Department investigation, DOJ, interrogation tapes, oversight, internal checks, external checks, intelligence community, Office of General Counsel, Office of Legal Counsel, rendition, secret prisons, enhanced interrogations, Panetta