The Foreign Intelligence Surveillance Act of 1978 Compared with the Law of Electronic Surveillance in Europe

The purpose of this article is to compare the fundamental operative provisions of the U.S. Foreign Intelligence Surveillance Act (FISA) with the equivalent directives of European surveillance law in five representative countries. The specific provisions being compared relate to the ability to monitor the content of individual communications within the nation state or citizens outside territorial borders. The author is not greatly concerned at this point with the procedure required before interceptions of noncitizens outside the country as under U.S. law this is not limited in a manner that endangers the nation. Foreign residents outside the country are not protected by the Fourth Amendment and thus there are less obstructive regulations. Nor is there a need at this time to concentrate on metadata collection, which is simply the accumulation of data on numbers dialed, time, and duration of calls made by telephone subscribers. Metadata does not include content. Although the provisions of the USA Freedom Act will increase the burden on the government by directing that this data be stored with the separate telecommunications providers instead of NSA, the threat posed by these provisions is minor compared to the dangers created by the restraints of the FISA statute on the ability of the government to intercept citizens and communications domestically.The Scowcroft Institute of International Affair

Congress\u27s Consistent Intent to Utilize Military Commissions in the War against Al-Qaeda and Its Adoption of Commission Rules That Fully Comply with Due Process.

Congress responded to the terrorist attack of September 11, 2001 by passing the Authorization for the Use of Military Force (AUMF). In the following years Congress augmented that authority with the Military Commissions Act of 2006 (MCA of 2006) and the Military Commissions Act of 2009 (MCA of 2009). In passing these acts, Congress responded to the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President Bush’s attempt to establish military commissions required Congressional authorization. When drafting both MCAs, Congress recognized numerous evidentiary and trial procedures from federal civilian court were inappropriate for trying unlawful combatants. By these Acts, Congress provided a forum which could bring enemy combatants to justice. Despite this forum, President Obama reversed the policy when he announced the Department of Justice would prosecute an enemy combatant in federal civilian court. This reversal effectively recast the war on terror as a criminal matter. The Supreme Court recognized in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld that detention and trial of enemy combatants are fundamental incidents of war encompassed in the AUMF. Legislators who drafted the AUMF concluded the belligerents in this new war should be tried for violations of the laws of war by military commissions. Congress set forth detailed rules for these trials which fully comply with traditional American notions of due process. While the traditions of justice demand fair trial, often seized evidence cannot meet all the evidentiary requirements imposed in civil trials. This includes Congress permitting reliable hearsay, not requiring the overly formal chain of custody requirements, permitting reliable but potentially damaging statements made by enemy soldiers, and limiting the jury pool to qualified officers. The trials of enemy combatants should proceed in the forum which Congress created

Congress\u27s Consistent Intent to Utilize Military Commissions in the War against Al-Qaeda and Its Adoption of Commission Rules That Fully Comply with Due Process.

Congress responded to the terrorist attack of September 11, 2001 by passing the Authorization for the Use of Military Force (AUMF). In the following years Congress augmented that authority with the Military Commissions Act of 2006 (MCA of 2006) and the Military Commissions Act of 2009 (MCA of 2009). In passing these acts, Congress responded to the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President Bush’s attempt to establish military commissions required Congressional authorization. When drafting both MCAs, Congress recognized numerous evidentiary and trial procedures from federal civilian court were inappropriate for trying unlawful combatants. By these Acts, Congress provided a forum which could bring enemy combatants to justice. Despite this forum, President Obama reversed the policy when he announced the Department of Justice would prosecute an enemy combatant in federal civilian court. This reversal effectively recast the war on terror as a criminal matter. The Supreme Court recognized in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld that detention and trial of enemy combatants are fundamental incidents of war encompassed in the AUMF. Legislators who drafted the AUMF concluded the belligerents in this new war should be tried for violations of the laws of war by military commissions. Congress set forth detailed rules for these trials which fully comply with traditional American notions of due process. While the traditions of justice demand fair trial, often seized evidence cannot meet all the evidentiary requirements imposed in civil trials. This includes Congress permitting reliable hearsay, not requiring the overly formal chain of custody requirements, permitting reliable but potentially damaging statements made by enemy soldiers, and limiting the jury pool to qualified officers. The trials of enemy combatants should proceed in the forum which Congress created

Working Toward a Legally Enforceable Nuclear Non-Proliferation Regime

The foundation of the international effort to stop the proliferation of nuclear weapons is the Nuclear Non-Proliferation Treaty ( NPT ). This Article proceeds in three parts. Part I proposes a new Nuclear Non-Proliferation Treaty. Part II contains preliminary observations regarding the Security Council, General Assembly and Zanger Committee provisions of the new treaty and then addresses the basic question of why nations might be willing to scrap the established NPT in favor of this new proposed agreement. Finally, Part III discusses how the advent of international institutions and the increasing incorporation of international law into the framework of domestic, regional and international tribunals may enhance the enforcement of the proposed non-proliferation treaty