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Proposed Wording List Group
Resolved: the United States federal government should increase statutory restrictions
on the [Commander in Chief / presidential war powers] of the President of the United
States to: utilize targeted killing attacks launched from unmanned aircraft systems;
conduct offensive cyber operations; engage in warrantless domestic electronic
surveillance; conduct covert operations; or detain enemy combatants.
Alternate wordings (*that present issues for potential discussion):
Resolved: the United States federal government should increase statutory restrictions
on one or more of the following [Commander in Chief / presidential war powers] of
the President of the United States: targeted killing attacks launched from unmanned
aircraft systems; offensive cyber operations; warrantless domestic electronic
surveillance; covert operations; or detention of enemy combatants.
Resolved: the United States federal government should increase statutory restrictions
on the [Commander in Chief / presidential war powers] of the President of the United
States to: utilize targeted killing attacks launched from unmanned aircraft systems;
conduct offensive cyber operations; engage in warrantless domestic electronic
surveillance; conduct covert operations; detain enemy combatants; or introduce
United States Armed Forces into hostilities.
Resolved: the United States federal government should increase statutory restrictions
on the [Commander in Chief / presidential war powers] of the President of the United
States to: utilize targeted killing attacks launched from unmanned aircraft systems;conduct offensive cyber operations; conduct covert operations; or introduce United
States Armed Forces into hostilities.
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List Group - Goals
This analysis is designed to supplement the original controversy paper in terms ofwording choices for a list-oriented resolution(s).
As the original topic paper suggests, on pages 91-92
Given our research, we suggest inclusion of the following war powers:
designate and detain enemy combatants;
conduct covert military operations; extraterritorial
use domestic wiretapping;
deploy military force without congressional approval (e.g., UAVs, Offensive Cyber Operations,
*Support for United Nations or NATO operations,
*Preventive or Preemptive unilateral action)
However, we want to be clear that not all of these powers must be included and these do not have
to be the only presidential war powers that can be included.There are many other issues such as
authorization to use nuclear weapons, regulation of military personal, operation of military courts and
other matters that could be debated and are discussed within the literature. We selected these areas
listed above because they appear to be the most recently and frequently debated issues in the literature
base.
The proposed resolution discusses several of the above areas deemed most viable for
debate on this topic. It excludes support for United Nations or NATO operations and
preventive or preemptive unilateral operations from the original paper in favor ofmore developed debate in the other areas.
We also noted that controversy paper authors indicated a desire for a list of specific
powers in the resolution. Some original phrases in the controversy paper were
perhaps too loose or broad and this analysis attempts to tighten up wording to allow
quality areas for debate, while restricting areas we might not want to debate such as
deploy weapons to X country.
Kelly Young on the CEDA Forum
(http://www.cedadebate.org/forum/index.php?topic=4800.msg10633#msg10633):
Your concern is a valid one that we considered as we drafted the paper. We think the conventional or
non-nuclear issues are rather robust without bringing in all of the nuclear weapon authority issues. For
this reason, we think a list of specific powers would be the best option.Our List/Limited and
Passive/Limited options on page 92 of the paper attempt to specify to exclude areas like nuclear
authority. Unfortunately with these wording, our intent does not match well with our product. The
Deploy military forces without congressional approval likely allows for no first use and deploy
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weapons to X country. I don't think it allows some of the other examples, but I can't say with certainty.
As I admitted in the controversy paper, the "deploy military forces without congressional approval" is
very loose and needs to be tightened up substantially with wording papers to cover UAVs, OSOs, and
other areas without allowing everything in. I'm not very good at specific wording, so this wording was
convenient because it captured several areas we highlight in the paper, but admittedly isn't very
restrictive. Something like conventional military forces or non-nuclear military forces might resolve
the concern rather easily. On the other hand, the broad wording options would allow these affirmatives,
unless conventional or non-nuclear is added before Commander-in-Chief/presidential war powers.
That seems more awkward in wording to me, so I would opt for the lists above.
Rather than reconsidering issues vetted by the controversy paper, like what
arguments are likely under each area, this paper focuses on what wording the
committee might like to consider to allow debate in the areas discussed in the
controversy area.
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Unmanned Aircraft Systems / Drones
To address the portion of the controversy paper that covers the debate about drones,
this paper advocates use of the phrase utilize targeted killing attacks launched fromunmanned aircraft systems.
Unmanned Aircraft Systems seems like the best phrase to use in place of drones.
Government agencies appear to have adopted this as a formal way to refer to drone
use because it includes the vehicle plus the ground stations and other elements used
in such missions.
Officially, with government agencies, such as the FAA, Unmanned Aircraft System (or
UAS) is used because is reflects that the systems include ground stations and other
elements besides the vehicle itself.http://www.theuav.com/
The UAV is an acronym for Unmanned Aerial Vehicle, which is an aircraft with no pilot on board. UAVs
can be remote controlled aircraft (e.g. flown by a pilot at a ground control station) or can fly
autonomously based on pre-programmed flight plans or more complex dynamic automation systems.
UAVs are currently used for a number of missions, including reconnaissance and attack roles. For the
purposes of this article, and to distinguish UAVs from missiles, a UAV is defined as being capable of
controlled, sustained level flight and powered by a jet or reciprocating engine. In addition, a cruise
missile can be considered to be a UAV, but is treated separately on the basis that the vehicle is the
weapon. The acronym UAV has been expanded in some cases to UAVS (Unmanned Aircraft Vehicle
System). The FAA has adopted the acronym UAS (Unmanned Aircraft System) to reflect the fact that
these complex systems include ground stations and other elements besides the actual air vehicles.Officially, the term 'Unmanned Aerial Vehicle' was changed to 'Unmanned Aircraft System' to reflect
the fact that these complex systems include ground stations and other elements besides the actual air
vehicles. The term UAS, however, is not widely used as the term UAV has become part of the modern
lexicon.
The military role of UAV is growing at unprecedented rates. In 2005, tactical and theater level
unmanned aircraft (UA) alone, had flown over 100,000 flight hours in support of Operation ENDURING
FREEDOM (OEF) and Operation IRAQI FREEDOM (OIF). Rapid advances in technology are enabling more
and more capability to be placed on smaller airframes which is spurring a large increase in the number
of SUAS being deployed on the battlefield. The use of SUAS in combat is so new that no formal DoD wide
reporting procedures have been established to track SUAS flight hours. As the capabilities grow for all
types of UAV, nations continue to subsidize their research and development leading to further advances
enabling them to perform a multitude of missions. UAV no longer only perform intelligence,
surveillance, and reconnaissance (ISR) missions, although this still remains their predominant type. Their
roles have expanded to areas including electronic attack (EA), strike missions, suppression and/or
destruction of enemy air defense (SEAD/DEAD), network node or communications relay, combat search
and rescue (CSAR), and derivations of these themes. These UAV range in cost from a few thousand
dollars to tens of millions of dollars, and the aircraft used in these systems range in size from a Micro Air
Vehicle (MAV) weighing less than one pound to large aircraft weighing over 40,000 pounds. UAV Types
Target and decoy - providing ground and aerial gunnery a target that simulates an enemy aircraft or
http://www.theuav.com/http://www.theuav.com/ -
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missile Reconnaissance - providing battlefield intelligence Combat - providing attack capability for high-
risk missions (see Unmanned Combat Air Vehicle) Research and development - used to further develop
UAV technologies to be integrated into field deployed UAV aircraft Civil and Commercial UAVs - UAVs
specifically designed for civil and commercial applications.
UAS recognizes aircraft, components, and personnel required.Bart W. Darnell December 2011 NAVAL POSTGRADUATE SCHOOL MONTEREY, CALIFORNIAUNMANNED AIRCRAFT SYSTEMS: A LOGICAL CHOICE FOR HOMELAND SECURITY SUPPORT
http://www.nps.edu/Academics/Centers/CRUSER/docs/research_completed/Final_Thesis_Darnell.pdf
The nomenclature that describes unmanned aircraft is diverse and has evolved with time. Some of
the most common names associated with them include: balloons, drone, unmanned aerial vehicle
(UAV), and remotely piloted vehicle (RPV).28 Other terms used to describe them include remotely
operated aircraft (ROA) and remotely piloted aircraft (RPA). The DoD recognizes most of these terms
and captures them in Joint Publication 1-02, Department of Defense Dictionary of Military and
Associated Terms. No matter what their nomenclature, each term portrays a common lineage that
an unmanned aircraft is an aircraft operated without the possibility or direct human intervention
from within or on the aircraft.29 Unmanned aircraft have diverse shapes, sizes, uses, and means of
control. They range in size from small radio-controlled model airplanes with wingspans as small as six
inches to large jet aircraft with wingspans reaching 117 feet (similar to a Boeing 737 aircraft). Some are
controlled manually via a ground control system, while others may be controlled autonomously
through use of an on-board computer, communication links and any additional equipment required
for safe flight. To account for the diversity in unmanned aircraft, the FAA has adopted the term
unmanned aircraft system (or UAS), which appears to be a more common lexicon among aviation
enthusiasts today. This term recognizes that UAS are systems that include not only the airframe, but
other components and personnel required to control them.30 Each of the terms mentioned above
are common nomenclature for UAS and can be found in the various literatures that discuss aviation
and unmanned flight. However, for this thesis I will use the FAAs UAS nomenclature to describe the
vast population of remotely piloted, operated and/or monitored aircraft that are capable of flyingwithin NAS.
This is additional evidence that illustrates that the phrase is used in the literature
about counterterrorism
Unmanned Aircraft Systems/UAS spending driven by focus on counterterrorism
Glennon J. Harrison Specialist in Industry Policy January 30, 2013 Unmanned Aircraft Systems (UAS):Manufacturing Trendshttp://www.fas.org/sgp/crs/natsec/R42938.pdf
Unmanned aircraft systems (UAS) represent a bright spot for the technology-intensive aerospace
manufacturing sector, but military and civil government agencies will likely be the predominant
customers for an extended period while such systems are integrated into the U.S. National AirspaceSystem (national airspace). Airspace access by commercial UAS users is projected to be much slower
than for governmental entities. U.S. export control policies pose an issue for manufacturers that seek
to export UAS. Some UAS are classified as weapons under the International Traffic in Arms Regulations
(ITAR), and require an export license approved by the U.S. State Department. UAS are also covered by
the Missile Technology Control Regime (MTCR), a voluntary arrangement among 34 member countries
to restrict the proliferation of missiles or UAS capable of delivering weapons of mass destruction.
Under MTCR guidelines, export of UAS carries a strong presumption of denial of an export license.
http://www.nps.edu/Academics/Centers/CRUSER/docs/research_completed/Final_Thesis_Darnell.pdfhttp://www.fas.org/sgp/crs/natsec/R42938.pdfhttp://www.fas.org/sgp/crs/natsec/R42938.pdfhttp://www.nps.edu/Academics/Centers/CRUSER/docs/research_completed/Final_Thesis_Darnell.pdf -
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The Aerospace Industries Association (AIA) has stated that advances in UAS technologies have resulted
in the development of some systems that are not suited to weapons-ofmass-destruction (WMD)
delivery. The association says the regulations will allow nonmember countries (such as Israel or China)
to sell UAS with advanced capabilities. The U.S. Department of Defense (DOD), the major user of
such systems, has demonstrated the effectiveness of UAS in Iraq and Afghanistan, but continued
development of new systems and capabilities depends on access to the national airspace. UAS
spending has been driven primarily by military needs in Iraq, Afghanistan, and other countries
where terrorist groups were or are active. Numerous forecasts project that U.S. and global UAS
markets will experience strong growth during the next 10 years. A forecast of global UAS demand by
the Teal Group shows worldwide annual spending on research, development, testing, and
evaluation (RDT&E) and procurement rising from $6.6 billion in 2013 to $11.4 billion in 2022. Total
spending for the decade is projected to amount to $89.1 billion.
Predator B is an example of a UAS (as referred to be US Customs and Border Patrol)
US Customs and Border Protection, Jan 2011http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/marine/uas.ctt/uas.pdf
The U.S. Customs and Border Protection (CBP), Office of Air and Marine, or OAM, operates the
highly capable and proven Predator B unmanned aircraft system (UAS) in support of law
enforcement and homeland security missions at the nations borders. OAM selected the Predator B,
manufactured by General Atomics Aeronautical Systems, for its unique combination of operational
capabilities, payload capacity, mission flexibility, potential to accommodate new sensor packages, and
its safety and performance record with other federal agencies.
Drone is also known as unmanned combat air vehicle
Anthony Sodd May 23rd at 9:01 am Bullet Points: What You Need To Know About Drone Warfarehttp://inthecapital.streetwise.co/2013/05/23/what-is-a-uav-drone/
An unmanned combat air vehicle, better known as a drone, is really just an extremely advanced
remote controlled airplane like the ones you see in the park. They come in all shapes and sizes and can
either be used in the field with a handheld remote or directed remotely from the other side of the
globe. Some are used only for reconnaissance, while others are heavily armed terrorist hunting
machines. In the past couple of years the Obama administration has increasingly relied on drone
strike to target enemy combatants abroadwhich is where the debate starts. The recent debate is
actually about two separate things: do we have the right to assassinate foreign civilians abroad, and
more recently at least, can the president kill American citizens abroad without a trial.
http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/marine/uas.ctt/uas.pdfhttp://inthecapital.streetwise.co/2013/05/23/what-is-a-uav-drone/http://inthecapital.streetwise.co/2013/05/23/what-is-a-uav-drone/http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/marine/uas.ctt/uas.pdf -
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This paper also argues for the use of the term targeted killing to modify the type of
action President is not able to use drones/UAS for this seems like a useful way to
exclude cases that would place restrictions on the presidents ability to use drones for
wildfires, or other surveillance that dont seem to be at the heart of the controversy
surrounding our counterterrorism efforts. A key issue for debate seems to be the use
of drones in targeted killings, and this phrasing hopes to clarify that.
Targeted killings premeditated acts of lethal force to eliminate specific individuals
outside custody
Author: Jonathan Masters, Deputy Editor CFR Backgrounder Targeted Killings
Updated: May 23, 2013 http://www.cfr.org/counterterrorism/targeted-killings/p9627According to a UN special report on the subject, targeted killings are premeditated acts of lethal force
employed by states in times of peace or during armed conflict to eliminate specific individuals outside
their custody. "Targeted killing" is not a term distinctly defined under international law, but gained
currency in 2000 after Israel made public a policy of targeting alleged terrorists in the Palestinianterritories. The particular act of lethal force, usually undertaken by a nation's intelligence or armed
services, can vary widely--from cruise missiles to drone strikes to special operations raids. The primary
focus of U.S. targeted killings, particularly through drone strikes, has been on the al-Qaeda and Taliban
leadership networks in Afghanistan and the remote tribal regions of Pakistan. However, U.S. operations
have expanded in recent years to include countries such as Somalia and Yemen.
Targeted killing takes place primarily through an increase in unmanned drone strikes
Author: Jonathan Masters, Deputy Editor CFR Backgrounder Targeted Killings
Updated: May 23, 2013 http://www.cfr.org/counterterrorism/targeted-killings/p9627The United States adopted targeted killing as an essential tactic to pursue those responsible for the
terrorist attacks of September 11, 2001. The Pentagon and the Central Intelligence Agency have
employed the controversial practice with more frequency in recent years, both as part of combat
operations in Afghanistan and Iraq, as well as in counterterrorism efforts in Pakistan, Yemen, and
Somalia. Since assuming office in 2009, Barack Obama's administration has escalated targeted killings,
primarily through an increase in unmanned drone strikes on al-Qaeda and the Taliban, but also
through an expansion of U.S. Special Operations kill/capture missions. The successful killing of Osama
bin Laden in a U.S. Navy SEAL raid in May 2011 and the September 2011 drone strike on Anwar al-
Awlaki, an American-born Yemeni cleric and AQAP propagandist, are prime examples of this trend.
Targeted killings using drones have increased under Obama uses the phrase
targeted attacks launched from unmanned aerial vehiclesAuthor: Jonathan Masters, Deputy Editor CFR Backgrounder Targeted Killings
Updated: May 23, 2013 http://www.cfr.org/counterterrorism/targeted-killings/p9627Targeted attacks launched from unmanned aerial vehicles, or drones, have ballooned under the
Obama administration. A study undertaken by the New American Foundation reports that in his first
two years of office, President Obama authorized nearly four times the number of strikes in Pakistan as
President Bush did in his eight years. The report, which relies solely on media accounts of attacks,
http://www.cfr.org/counterterrorism/targeted-killings/p9627http://www.cfr.org/counterterrorism/targeted-killings/p9627http://www.cfr.org/counterterrorism/targeted-killings/p9627http://counterterrorism.newamerica.net/droneshttp://counterterrorism.newamerica.net/droneshttp://www.cfr.org/counterterrorism/targeted-killings/p9627http://www.cfr.org/counterterrorism/targeted-killings/p9627http://www.cfr.org/counterterrorism/targeted-killings/p9627 -
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claims that some 291 strikes have been launched since 2009, killing somewhere between 1,299 and
2,264 militants, as of January 2013.Alternate reports also document the escalation in drone strikes in
recent years, but the accounting of militant and civilian deaths can vary widely depending on the source.
Another issue to consider in the phrasing was how to introduce the item in the
listthis paper chose utilize, after consideration of alternatives like employ, but
the definitions for each are:
Definition of utilizeto make use ofMerriam Websters Online Dictionary
http://www.merriam-webster.com/dictionary/utilize
Definition of UTILIZE
to make use of : turn to practical use or account
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yesterday, he spent a lot of time criticizing the idea of endless war under the AUMFwhile not
concretely committing himself to ending hostilities. He criticized Guantanamo and indefinite detention,
without promising to release detainees who pose a serious threat yet cannot face trial. One of the more
blatant of these areas is Obamas comments about the idea of additional review mechanisms for drone
strikes: Going forward, I have asked my Administration to review proposals to extend oversight of lethal
actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory,
but poses difficulties in practice. For example, the establishment of a special court to evaluate and
authorize lethal action has the benefit of bringing a third branch of government into the process, but
raises serious constitutional issues about presidential and judicial authority. Another idea thats been
suggestedthe establishment of an independent oversight board in the executive branchavoids those
problems, but may introduce a layer of bureaucracy into national-security decision-making, without
inspiring additional public confidence in the process. Despite these challenges, I look forward to actively
engaging Congress to explore theseand otheroptions for increased oversight. Notice here what
the president is not promising. He is not promising to support a drone court. He is not promising to
support proposals like Neal Katyals or Jen Daskals for an enhanced, court-like internal executive
review mechanism. He is only promising to have his administration review *such+ proposals and
saying that he will actively engag*ing+ with Congress to explore such ideas. Nobody can possibly
object to this, and I certainly dont, but it is notable that the president nowhere hints what sort ofoutcome he expects from his engagement. This is a way of signaling respect for the ideasand the
underlying idea that he needs to be on the side of increased oversightwithout actually committing
his administration to doing anything concrete.
There remains an urgent need for Congressional action beyond Obamas recent
rhetoric
Andrew Sullivan, Obamas War On Terror Speech: Reax II MAY 24 2013 @ 12:29PMhttp://dish.andrewsullivan.com/2013/05/24/obamas-war-on-terror-speech-reax-ii/
Freddie deBoer wants more than words:
We have lived with this war on terror for a third of my life. And liberals: speeches do not walk the doganymore. The time for flowery speeches is over. Its time for action. Saying were going to end the
AUMF eventually is not enough. Talking about closing Guantanamo is not enough. It has to actually
happen. Like Anthony Romero of the ACLU says, actions are more important than words. If Obama
actually closes Guantanamo, I promise I will applaud. If Obama actually reduces or ends the drone
campaign, I will celebrate. But those specific policies will only be valuable if they are part of a broad
attempt to end the hostilities between the United States and the Muslim world. Given that every
Muslim terrorist who announces their motives says that they are based on our incursions into the
Muslim world, that can only happen if we withdraw. Yes and yes. My support yesterday for the
arguments of the speech is, of course, contingent on actual progress. Friedersdorf is in the same
ballpark: All things considered, Thursdays developments were an improvement on the status quo.
Obama constrained himself rhetorically in ways he hadnt before, expressed agreement with core civillibertarian critiques, and signalled that future policy will shift in that direction as a result. But talk is
cheap, Obama has a history of breaking promises to civil libertarians, and drone strikes remain
surrounded in enough secrecy that it will remain difficult to verify whats going on. Moreover, policies
implemented at the presidents prerogative can be changed on his determination too. There remains an
urgent need for Congress to step into the breach and constrain the president, even if only in the ways
that Obama says that he has constrained himself.
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Offensive Cyberspace Operations
This paper argues for use of the phrase conduct offensive cyber operations in a list
topic.
This phrase seems to account for the controversy and is directly addressed in Section
954 of the NDAA.
Robert Chesney Wednesday, December 14, 2011 at 10:17 PM Offensive Cyberspace Operations, theNDAA, and the Title 10-Title 50 Debate
Back in May, I noted that the House version of the NDAA contained a very interesting section
addressing military activities in cyberspace.Section 962 of that bill would have affirmed that DOD
may conduct military activities in cyberspace (including clandestine operations at least when acting in
support of military activity under the 9/18/01 AUMF and the target is outside the United States, or
when the activity is responsive to an attack on DOD assets). I wrote at the time that this seemedresponsive, albeit in a fuzzy way, to the so-called Title 10-Title 50 debate and thus had implications for
the various issues that debate entails (I write about these issues in much more detail here; they include
questions such as what counts as covert action subject to finding and notification requirements, what
counts as traditional military activity that is exempt from the covert action definition even though
the US role is not intended to be acknowledged, and whether the applicable substantive legal
constraints differ depending on whether one is acting under the Title 10 or the Title 50 heading). The
Senate, for its part, ultimately included nothing comparable in its NDAA bill, and so the discrepancy had
to be addressed during the recently-concluded conference. The end result is section 954 of the
Conference version of the NDAA. The new language is brief, yet very interesting: SEC. 954. MILITARY
ACTIVITIES IN CYBERSPACE. Congress affirms that the Department of Defense has the capability, and
upon direction by the President may conduct offensive operations in cyberspace to defend our
Nation, Allies and interests, subject to (1) the policy principles and legal regimes that the Department
follows for kinetic capabilities, including the law of armed conflict; and (2) the War Powers Resolution
(50 U.S.C. 1541 et seq.). Sowhat does this accomplish?First Ill discuss the issues impacted by the text
itself. Second, Ill discuss some important issues directly addressed only (or at least only clearly) in the
explanatory statement promulgated by the Conference Committee in connection with this section. I.
The Text of Section 954 Based on the text alone, there are three components to this provision: An
affirmation of authority, a requirement of presidential authorization somewhat akin to the covert action
requirement of a presidential finding, and a limited clarification of how such operations relate to various
other bodies of law. A. Affirmation of Authority to Conduct OCOs First, section 954 makes clear that
DOD can conduct offensive cyberspace operations (OCOs) under certain conditions, defined very, very
loosely as the defense of the nation, of allies, and of our interests.Thats not much of a limitation, of
course; the reference to interests would seem to encompass just about any scenario in which one mightlike to be able to conduct an offensive operation. And I suppose some might look at this language and
draw the conclusion that section 954 is some kind of free-standing cyber-AUMF, usable at presidential
discretion. But I really do not think this is what the affirmation language means to signify. On the
contrary, with respect to separation of war powers I think the whole section is premised on the notion
that there already is some separate underlying legal foundation for the action, such as the 9/18/01
AUMF in the case of an OCO directed at an al Qaeda website or Article II national self-defense for fact
patterns that might fall under that heading. Put another way, I dont think the purpose of section 954 is
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to grant new authority, but rather to clarify a variety of procedural and substantive questions OCOs
raise. So on to the first such issue, which concerns the decision-making process.
In addition, the phrasing retains the focus on offensive cyber operations as seems to
be the crux of the controversy in this area.
ROSEMARY M. CARTER, BRENT FEICK, and ROY C. UNDERSANDER July 2012 Offensive Cyber forthe Joint Force Commander: It's Not That Different JFQ JFQ-66 OFFENSIVE CYBER FOR THE JOINT
FORCE COMMANDER http://www.ndu.edu/press/offensive-cyber.html
The cyber domain consists of four operating areas: providing capability, protecting that capacity,
exploiting within the domain, and conducting offensive operations that are also referred to as
computer network attack. The areas of provide and protect are the most mature because our day -to-
day information technology operations require a secure and functioning cyber domain. This article
focuses instead on offensive cyber capability, which is the newest segment of the domain but is
rapidly maturing. Unlike airpower, where development was limited to nations with significant industrialand financial resources, the cyber warfare arena is inexpensive and characterized by state and nonstateactors limited only by creativity and the Internet. Therefore, to maintain strategic capability for cybersuperiority,4 the cyber domain must be rapidly synchronized with the other warfighting domains. A fullunderstanding of the features, capabilities, limitations, and impacts of the cyber domain may be yearsaway, but actionable knowledge of this domain at the operational level will not be achieved as long ascyber operations remain segregated from the other warfare mission areas
http://www.ndu.edu/press/offensive-cyber.htmlhttp://www.ndu.edu/press/offensive-cyber.html -
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Warrantless Electronic Surveillance
The phrase engage in warrantless domestic electronic surveillance seems to bestaccount for this portion of the controversy paper.
The controversy paper itself used the phrase use domestic wiretapping. This paper
presents a couple of changes to that original phrase in hopes of more accurately
framing this portion of the controversy. First, it seems that the potential extension of
presidential authority goes beyond just wiretapping, but extends into other important
areas and cases such as disputes about use of GPS technology for tracking, etc. The
Patriot Act, for example, allows for a number of surveillance options to fight
terrorism. This wording allows for all forms of surveillance wiretapping, internet
taps, GPS surveillance, etc to all be considered in the topic. Also, this wording paperclarifies that the electronic surveillance at issue is the warrantless type of surveillance.
These authors used the terminology above in their discussion of warrantless electronic
surveillance.
Elizabeth B. Bazan and Jennifer K. Elsea Legislative Attorneys American Law Division Memorandum
January 5, 2006 SUBJECT: Presidential Authority to Conduct Warrantless Electronic Surveillance toGather Foreign Intelligence Information http://www.fas.org/sgp/crs/intel/m010506.pdf
Recent media revelations that the President authorized the National Security Agency (NSA) to collect
signals intelligence from communications involving U.S. persons within 1 the United States, without
obtaining a warrant or court order, raise numerous questions regarding the Presidents authority toorder warrantless electronic surveillance. Little information is currently known about the full extent of
the NSA domestic surveillance, which was revealed by the New York Times in December, 2005, but
allegedly began after the President issued a secret order in 2002. Attorney General Alberto Gonzales
laid out some of its parameters, telling reporters that it involves intercepts of contents of
communications where one . . . party to the communication is outside the United States and the
government has a reasonable basis to conclude that one party to the communication is a member of
al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working
in support of al Qaeda. The aim of the program, according to Principal Deputy 3 Director for National
Intelligence General Michael Hayden, is not to collect reams of intelligence, but to detect and warn
and prevent *terrorist+ attacks.4 The President has stated that he believes his order to be fully
supported by the Constitution and the laws of the United States, and the Attorney General clarified that
the 5 Administration bases its authority both on inherent presidential powers and the joint
resolution authorizing the use of all necessary and appropriate force to engage militarily those
responsible for the terrorist attacks of September 11, 2001 (AUMF). Although the resolution does
not expresslyspecifywhat it authorizes as necessary and appropriate force, the Administration
discerns the intent of Congress to provide the statutory authority necessary take virtually any action
reasonably calculated to prevent a terrorist attack, including by overriding at least some statutory
prohibitions that contain exceptions for conduct that is otherwise authorized by statute.
Specifically, the Administration asserts that a part of the Foreign Intelligence Surveillance Act (FISA)
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that punishes those who conduct 7 electronic surveillanceunder color of law except as authorized
by statute does not bar the 8 NSA surveillance at issue because the AUMF is just such a statute. On
December 22, 2005, 9 the Department of Justice Office of Legislative Affairs released a letter to certain
members of the House and Senate intelligence committees setting forth in somewhat greater detail
the Administrations position with regard to the legal authority supporting the NSA activities described
by the President.10 The Administrations views have been the subject of debate. Critics challenge the
notion that federal statutes regarding government eavesdropping may be bypassed by executive order,
or that such laws were implicitly superceded by Congresss authorization to use military force. Others,
however, have expressed the view that established wiretap procedures are too cumbersome and slow
to beeffective in the war against terrorism, and that the threat of terrorism justifies
extraordinarymeasures the President deems appropriate, and some agree that Congress authorized the
measures when it authorized the use of military force.
This is a contextual use of the phrase engage in warrantless electronic surveillance
Mitra Ebadolahi is the inaugural Nadine Strossen Fellow with the American Civil Liberties UnionsNational Security Project. Warrantless Wiretapping Under the FISA Amendments Act
Vol. 39 No. 3 2013http://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39/may_2013_n2
_privacy/warrantless_wiretapping_fisa.html
To understand the scope and implications of the FISA Amendments Act, a little bit of history is useful .
In 1975, Congress established a committee, chaired by Senator Frank Church, to investigate allegations
of substantial wrongdoing by federal intelligence agencies. The Church Committee discovered that,
over the course of four decades, these intelligence agencies had violated specific statutory
prohibitions, infringed the constitutional rights of American citizens, and intentionally disregarded
legal limitations on surveillance in the name of national security. Attributing these systematic
constitutional violations to a failure in the system of checks and balances, the committee recommended
that all surveillance of communications to, from, or about an American without his consent be subject
to a judicial warrant procedure. Congress subsequently enacted the Foreign Intelligence Surveillance Act(FISA) of 1978, creating a secret FISA Court to grant or deny government applications for surveillance
orders in foreign intelligence investigations. See 50 U.S.C. 1803(a). FISA generally foreclosed the
government from engaging in electronic surveillance without first obtaining an individualized and
particularized warrant. The FISA Court could issue such a warrant only if it found, among other things,
that there was probable cause to believe that the target of the electronic surveillance *was+ a foreign
power or an agent of a foreign power, id. 1805(a)(2)(A), and that each of the facilities or places at
which the electronic surveillance [was] directed [was] being used, or [was] about to be used, by a
foreign power or an agent of a foreign power, id. 1805(a)(2)(B).
After September 11, President Bush secretly authorized the National Security Agency (NSA) to ignore
FISA and to engage in warrantless electronic surveillance inside the United States without seeking
surveillance orders from the FISA Court. When the program became public, the Bush administrationpressured Congress to amend FISA. The FISA Amendments Act is the result.
This article also uses the phrase warrantless electronic surveillance to include
internet based communication beyond the telephone.
Huffington Post, 2012 Warrantless Electronic Surveillance Surges Under Obama Justice Department
http://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39/may_2013_n2_privacy/warrantless_wiretapping_fisa.htmlhttp://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39/may_2013_n2_privacy/warrantless_wiretapping_fisa.htmlhttp://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39/may_2013_n2_privacy/warrantless_wiretapping_fisa.htmlhttp://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39/may_2013_n2_privacy/warrantless_wiretapping_fisa.html -
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Posted: 09/28/2012 9:52 pm Updated: 09/29/2012 1:02 pm
http://www.huffingtonpost.com/2012/09/28/warrantless-electronic-surveillance-
obama_n_1924508.html
NEW YORK -- The Obama administration has overseen a sharp increase in the number of people
subjected to warrantless electronic surveillance of their telephone, email and Facebook accounts by
federal law enforcement agencies, new documents released by the American Civil Liberties Union on
Friday revealed. The documents, released by the ACLU after a months-long legal battle with the
Department of Justice, show that in the last two years, more people were spied on by the government
than in the preceding decade. The documents do not include information on most terrorism
investigations and requests from state and local law enforcers. Nor do they include surveillance by
federal agencies outside Justice Department purview, like the Secret Service. Department of Justice
agencies obtained 37,616 court orders for information about phone calls in 2011, according to the
documents. That's an increase of 47 percent from the 25,535 orders obtained by the government in
2009. Including Internet and email information requests, more than 40,000 people were targeted in
2011.
http://www.huffingtonpost.com/2012/09/28/warrantless-electronic-surveillance-obama_n_1924508.htmlhttp://www.huffingtonpost.com/2012/09/28/warrantless-electronic-surveillance-obama_n_1924508.htmlhttp://www.huffingtonpost.com/2012/09/28/warrantless-electronic-surveillance-obama_n_1924508.htmlhttp://www.huffingtonpost.com/2012/09/28/warrantless-electronic-surveillance-obama_n_1924508.html -
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Covert Action
This paper supports use of the phrase conduct covert operations in a list topic.The controversy paper suggests a viable area for debate with regard to CIA and covert
operations through the DOD. The controversy paper uses the phrase conduct covert
military operations in the sample wording section.
It is potentially worth consideration that there seems to be a distinction in some
literature with regard to CIA covert action, and covert military operations through the
DOD. It seems that use of the phrase covert military operations could restrict the
viability of cases that involve the CIA. This is why this wording paper argues for just
the phrase conduct covert operations to ensure the inclusion of both types ofcases, but it is just worth considering what the heart of the issue the community
would like to debate in this area is and if it might be achieved with the alternate
phrasing of covert military operations.
The distinction is discussed as Title 50 and Title 10 authority:
Robert Chesney University of Texas School-Charles Francis Professor in Law The University of TexasSchool of Law Public Law and Legal Theory Research Paper Series Number 212 Military Intelligence
Convergence and the Law of the Title 10/Title 50 Debate http://ssrn.com/link/texas-public-law.html 1-
31-2012Note2 Title 50 is a section of the US Code addressing a range of security topics, including the standingauthorities of the CIA. Title 10, in contrast, is a section of the Code devoted exclusively to the armed
forces. Reflecting this distinction, the argot of national security lawyers uses Title 50 authority and
Title 10 authority as shorthands for the notion that there are distinct spheres of intelligence and
military operations and that each is subject to a distinct set of standing statutory authorizations and
constraints.
Title 50 is the section of US Code that authorizes the activities of the CIA and defines
covert operations.http://www.law.cornell.edu/uscode/text/50/413b
50 USC 413b - Presidential approval and reporting of covert actions
Current through Pub. L. 113-99. (See Public Laws for the current Congress.)
(a) Presidential findings
The President may not authorize the conduct of a covert action by departments, agencies, or entities of
the United States Government unless the President determines such an action is necessary to support
identifiable foreign policy objectives of the United States and is important to the national security of the
United States, which determination shall be set forth in a finding that shall meet each of the following
conditions:
http://ssrn.com/link/texas-public-law.htmlhttp://www.law.cornell.edu/uscode/text/50/413bhttp://www.law.cornell.edu/uscode/text/50/413bhttp://ssrn.com/link/texas-public-law.html -
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(1) Each finding shall be in writing, unless immediate action by the United States is required and time
does not permit the preparation of a written finding, in which case a written record of the Presidents
decision shall be contemporaneously made and shall be reduced to a written finding as soon as possible
but in no event more than 48 hours after the decision is made.
(2) Except as permitted by paragraph (1), a finding may not authorize or sanction a covert action, or any
aspect of any such action, which already has occurred.
(3) Each finding shall specify each department, agency, or entity of the United States Government
authorized to fund or otherwise participate in any significant way in such action. Any employee,
contractor, or contract agent of a department, agency, or entity of the United States Government other
than the Central Intelligence Agency directed to participate in any way in a covert action shall be subject
either to the policies and regulations of the Central Intelligence Agency, or to written policies or
regulations adopted by such department, agency, or entity, to govern such participation.
(4) Each finding shall specify whether it is contemplated that any third party which is not an element of,
or a contractor or contract agent of, the United States Government, or is not otherwise subject to
United States Government policies and regulations, will be used to fund or otherwise participate in any
significant way in the covert action concerned, or be used to undertake the covert action concerned on
behalf of the United States.
(5) A finding may not authorize any action that would violate the Constitution or any statute of theUnited States.
(b) Reports to congressional intelligence committees; production of information
To the extent consistent with due regard for the protection from unauthorized disclosure of classified
information relating to sensitive intelligence sources and methods or other exceptionally sensitive
matters, the Director of National Intelligence and the heads of all departments, agencies, and entities of
the United States Government involved in a covert action
(1) shall keep the congressional intelligence committees fully and currently informed of all covert actions
which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department,
agency, or entity of the United States Government, including significant failures; and
(2) shall furnish to the congressional intelligence committees any information or material concerning
covert actions (including the legal basis under which the covert action is being or was conducted) whichis in the possession, custody, or control of any department, agency, or entity of the United States
Government and which is requested by either of the congressional intelligence committees in order to
carry out its authorized responsibilities.
(c) Timing of reports; access to finding
(1) The President shall ensure that any finding approved pursuant to subsection (a) of this section shall
be reported in writing to the congressional intelligence committees as soon as possible after such
approval and before the initiation of the covert action authorized by the finding, except as otherwise
provided in paragraph (2) and paragraph (3).
(2) If the President determines that it is essential to limit access to the finding to meet extraordinary
circumstances affecting vital interests of the United States, the finding may be reported to the chairmen
and ranking minority members of the congressional intelligence committees, the Speaker and minority
leader of the House of Representatives, the majority and minority leaders of the Senate, and such other
member or members of the congressional leadership as may be included by the President.
(3) Whenever a finding is not reported pursuant to paragraph (1) or (2) of this section, [1] the President
shall fully inform the congressional intelligence committees in a timely fashion and shall provide a
statement of the reasons for not giving prior notice.
(4) In a case under paragraph (1), (2), or (3), a copy of the finding, signed by the President, shall be
provided to the chairman of each congressional intelligence committee.
(5)
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(A) When access to a finding, or a notification provided under subsection (d)(1), is limited to the
Members of Congress specified in paragraph (2), a written statement of the reasons for limiting such
access shall also be provided.
(B) Not later than 180 days after a statement of reasons is submitted in accordance with subparagraph
(A) or this subparagraph, the President shall ensure that
(i) all members of the congressional intelligence committees are provided access to the finding or
notification; or
(ii) a statement of reasons that it is essential to continue to limit access to such finding or such
notification to meet extraordinary circumstances affecting vital interests of the United States is
submitted to the Members of Congress specified in paragraph (2).
(d) Changes in previously approved actions
(1) The President shall ensure that the congressional intelligence committees, or, if applicable, the
Members of Congress specified in subsection (c)(2) of this section, are notified in writing of any
significant change in a previously approved covert action, or any significant undertaking pursuant to a
previously approved finding, in the same manner as findings are reported pursuant to subsection (c) of
this section.
(2) In determining whether an activity constitutes a significant undertaking for purposes of paragraph
(1), the President shall consider whether the activity(A) involves significant risk of loss of life;
(B) requires an expansion of existing authorities, including authorities relating to research, development,
or operations;
(C) results in the expenditure of significant funds or other resources;
(D) requires notification under section 414 of this title;
(E) gives rise to a significant risk of disclosing intelligence sources or methods; or
(F) presents a reasonably foreseeable risk of serious damage to the diplomatic relations of the United
States if such activity were disclosed without authorization.
(e) Covert action defined
As used in this subchapter, the term covert action means an activity or activities of the United
States Government to influence political, economic, or military conditions abroad, where it isintended that the role of the United States Government will not be apparent or acknowledged
publicly, but does not include
(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence
activities, traditional activities to improve or maintain the operational security of United States
Government programs, or administrative activities;
(2) traditional diplomatic or military activities or routine support to such activities;
(3) traditional law enforcement activities conducted by United States Government law enforcement
agencies or routine support to such activities; or
(4) activities to provide routine support to the overt activities (other than activities described in
paragraph (1), (2), or (3)) of other United States Government agencies abroad.
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Detain Enemy Combatants
Finally, this paper argues that, in a list topic, the committee include the phrase detain
enemy combatants
The definition of enemy combatant is:
Gothamist, 2013 Can The Boston Bombing Suspect Be Deemed An "EnemyCombatant?"http://gothamist.com/2013/04/21/can_the_boston_bomber_suspect_be_de.php
But by 2008, the courts were very clear on who could be considered an "enemy combatant." Federal
Judge Richard Leon, appointed by President Bush, provides [PDF] this widely accepted definition of
"enemy combatant":
An "enemy combatant" is an individual who was part of or supporting Taliban or al Qaeda forces, or
associated forces that are engaged in hostilities against the United States or its coalition partners. This
includes any person who has committed a belligerent act or has directly supported hostilities in aid of
enemy armed forces.
This definition was provided in the Boumediene v Bush federal case in the United
States District Court for the District of Columbiahttp://www.scotusblog.com/wp-
content/uploads/2008/10/boumediene-order-10-27-08.pdf
President under the AUF, and with current agreement from the courts has authority to
detain enemy combatants
JENNIFER K. ELSEA Congressional Research Service Presidential Studies Quarterly
Volume 33, Issue 3, Article first published online: 12 SEP 2003
President Bush claims the power, as Commander in Chief of the Armed Forces, to determine that anyperson, including an American citizen, who is suspected of being a member, agent, or associate of Al
Qaeda, the Taliban, or possibly any other terrorist organization, is an enemy combatant who can
be detained in U.S. military custody until hostilities end, pursuant to the international law of war
(Dworkin 2002). Attorney General John Ashcroft has taken the view that the authority to detain
enemy combatants belongs to the president alone, and that any interference in that authority by
Congress would thus be unconstitutional (U.S. Senate 2002). Even if congressional authority were
necessary, the government argues, such permission can be found in the Authorization to Use Force
(AUF; Pub. L. No. 107-40, 115 Stat. 224 [2001]). So far, the courts have agreed that Congress has
authorized the detention of enemy combatants.
Under the AUMF as interpreted by the courts, and under the NDAA as passed by
Congress, the administration is authorized to hold in military detention only those
who are part of or substantially supporting Al Qaeda, the Taliban, or associated
forces.
http://gothamist.com/2013/04/21/can_the_boston_bomber_suspect_be_de.phphttp://www.scotusblog.com/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdfhttp://www.scotusblog.com/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdfhttp://www.scotusblog.com/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdfhttp://www.scotusblog.com/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdfhttp://www.scotusblog.com/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdfhttp://www.scotusblog.com/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdfhttp://gothamist.com/2013/04/21/can_the_boston_bomber_suspect_be_de.php -
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To address any potential concern about the scope of the phrase detain enemy
combatants also consider that there is a distinction between enemy aliens and
enemy combatants.
JENNIFER K. ELSEA Congressional Research Service Presidential Studies Quarterly
Volume 33, Issue 3, Article first published online: 12 SEP 2003The distinction between enemy aliens and enemy combatants may prove critical. Whereas Congress
has traditionally declined to regulate the conduct of the military in its treatment of prisoners taken
during battle, Congress has taken a more active role regarding the treatment of enemy aliens,
setting down a more precise definition for who may be treated as such and under what conditions.
Under the Alien Enemy Act, 50 U.S.C. 21 et seq., alien enemies include all natives, citizens, denizens,
or subjects of the hostile nation or government, being of the age of fourteen years and upward, who
shall be within the United States and not actually naturalized. This designation is further limited to
times of declared war or presidentially proclaimed predatory invasion, and the statute broadly
prescribes the types of restrictions the president may place, by proclamation, on alien enemies,
including possible detention and deportation, and the denial of access to U.S. courts. Where U.S.
citizens not subject to treatment as prisoners of war have been interned as possible threats to the
national security, additional statutory authority to at least ratify the presidentially claimed power tointern them was crucial if the detentions were to be validated by the courts, and even then it
appears that due process considerations played a role
Also, Korematsu overrule really wouldnt be a case about Presidents power to detain
enemy combatants.
JENNIFER K. ELSEA Congressional Research Service Presidential Studies Quarterly
Volume 33, Issue 3, Article first published online: 12 SEP 2003World War II
Internment of Enemies. At the outset of the Second World War, President Roosevelt made numerous
proclamations under the Alien Enemy Act to place restrictions on aliens deemed dangerous or likely toengage in espionage or sabotage.10 Initially, the restrictions were effected under the civil authority of
the attorney general, who established prohibited areas in which no aliens of Japanese, Italian, or
German descent were permitted to enter or remain, as well as a host of other restraints on affected
aliens, including curfews and internment after a hearing. The president, acting under statutory
authority, delegated to the attorney general the authority to prescribe regulations for the execution of
the program. Attorney General Francis Biddle created the Alien Enemy Control Unit to review the
recommendations of hearing boards handling the cases of the more than 2,500 enemy aliens in the
temporary custody of the Immigration and Naturalization Service (INS; U.S. House of Representatives
1942, 163). In February 1942, the president extended the program to cover certain citizens as well as
enemy aliens, and turned over the authority to prescribe military areas to the secretary of war, who
further delegated the responsibilities under the order with respect to the west coast to theCommanding General of the Western Defense Command.11 The new order, Executive Order 9066 (17
Fed. Reg. 1407), clearly amended the policy established under the earlier proclamations regarding aliens
and restricted areas, but did not explicitly rely on the authority of the Alien Enemy Act, as the previous
proclamations had. Although the Department of Justice denied that the transfer of authority to the
Department of War was motivated by a desire to avoid constitutional issues with regard to the
restriction or detention of citizens, the House Select Committee Investigating National Defense
Migration found the shift in authority significant, as it appeared to rely on the nations war powers
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directly, and could find no support in the Alien Enemy Act with respect to citizens (ibid., 166). The
summary exercise of authority under that act to restrain aliens was thought to be untenable if stretched
to reach U.S. citizens, and the War Department felt congressional authorization was necessary to
provide authority for its enforcement (ibid., 167; Biddle 1962, 216-17). Congress granted the War
Departments request, enacting with only minor changes the proposed legislation providing criminal
penalties for the knowing violation of any exclusion order issued pursuant to Executive Order 9066 or
similar executive order (Pub. L. 77-503, codified at 18 U.S.C. 1383 *1970 ed.+, repealed by Pub. L. 94-
412, Title V, 501[e] [1976]). A policy of mass evacuation from the west coast of persons of Japanese
descentcitizens as well as aliensfollowed, which soon transformed into a system of compulsory
internment at relocation centers (Commission on Wartime Relocation and Internment of Civilians
1982, 2). Persons of German and Italian descent (and others) were treated more selectively, receiving
prompt (though probably not full and fair12) loyalty hearings to determine whether they should be
interned, paroled, or released (ibid., 285). The disparity of treatment was explained by the theory that
it would be impossible or too time consuming to attempt to distinguish the loyal from the disloyal
among persons of Japanese descent (ibid., 288-89). In a series of cases, the Supreme Court limited but
did not strike down the internment program. In Hirabayashi v. United States, 320 U.S. 81, 89-90 (1943),
the Supreme Court found the curfew imposed upon persons of Japanese ancestry to be constitutional
as a valid wartime security measure, even as implemented against U.S. citizens, emphasizing theimportance of congressional ratification of the executive order. Hirabayashi had also been indicted for
violating an order excluding him from virtually the entire west coast, but the Court did not review the
constitutionality of the exclusion measure because the sentences for the two charges were to run
concurrently. Because the restrictions affected citizens solely because of their Japanese descent, the
Court framed the relevant inquiry as a question of equal protection, asking whether in the light of all
the facts and circumstances there was any substantial basis for the conclusion, in which Congress and
the military commander united, that the curfew as applied was a protective measure necessary to meet
the threat of sabotage and espionage which would substantially affect the war effort and which might
reasonably be expected to aid a threatened enemy invasion (ibid., 95). In a concurring opinion, Justice
Douglas added that in effect, due process considerations were unnecessary to ensure that only
individuals who were actually disloyal were affected by the restrictions, even if it were to turn out thatonly a small percentage of Japanese-Americans were actually disloyal (ibid., 106). However, he noted
that a more serious question would arise if a citizen did not have an opportunity at some point to
demonstrate his loyalty in order to be reclassified and no longer subject to the restrictions (ibid., 109).
In Korematsu v. United States, 323 U.S. 214 (1944), the Supreme Court upheld the
conviction of an American citizen for remaining in his home, despite the fact that it
was located in a newly declared Military Area and was thus off-limits to persons of
Japanese descent. Fred Korematsu challenged the detention of Japanese-Americans in
internment camps, but the Court majority declined to consider the constitutionality of
the detention itself, as Korematsus conviction was for violating the exclusion order only.
The Court, in effect, validated the treatment of citizens in a manner similar to that
of enemy aliens by reading Executive Order 9066, together with the act of Congress
ratifying it, as sufficient authority under the combined war powers of the president and
Congress. It did not address the statutory scope of the Alien Enemy Act.
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Hostilities
The group discussed the possible inclusion of a hostilities area of the resolution.Alternative wordings noted above suggest issues for discussion for the larger topic
committee. Questions, beyond wording of the item in the list, include whether to
include a list item about hostilities (given that some of the literature is accounted for
under the drones or cyber operations areas), and whether to take items out of the
proposed list to include the hostilities area.
The hostilities area is potential ripe for discussion given recent actions.
The Obama Administration argued that the War Powers Resolution didnt apply in
Libya because US activity did not constitute hostilitiesHarvard Law Review, 2012(RECENT ADMINISTRATIVE INTERPRETATION: Separation of Powers - War Powers Resolution - Obama
Administration Argues that U.S. Military Action in Libya Does Not Constitute "Hostilities.", April, 125
Harv. L. Rev. 1546)
The War Powers Resolution n1 ("WPR" or "Resolution") requires the President to obtain congressional
authorization for the use of military force "in any case in which United States Armed Forces are
introduced ... into hostilities." n2 If Congress has not declared war or otherwise authorized the
deployment of U.S. forces within sixty days of the WPR's activation, the President must withdraw
them from use. n3 While purporting to clarify the allocation of war powers, the Resolution has generated nearly four decades of dispute.
n4 Recently, the Obama Administration denied the Resolution's applicability to U.S. support of an
international military action in Libya that persisted for over sixty days . On June 28, 2011, Harold Koh, LegalAdviser of the Department of State, appeared before Congress to defend the Administration's continued use of U.S. forces. n5
Relying on previous administrations' interpretations of the WPR, Koh argued that U.S. activity in Libya did not constitute
"hostilities" and thus did not trigger the WPR's sixty-day withdrawal rule. n6 Koh properly relied on historicalinterpretations of the WPR, but his testimony illustrates the ambiguity that these precedents allow. While Koh construed the precedents
narrowly, Congress's failure in this and other war powers disputes to contemporaneously oppose executive constructions of the WPR has
invited increasingly narrow interpretations of it. This episode thus suggests limitations on the Resolution's ability to function as an ex ante time
limit on executive action and further demonstrates the need for congressional participation in the Resolution's construction and application.
[*1547] In February 2011, Libya erupted in a series of protests inspired by antigovernment uprisings in Egypt and Tunisia.n7 Violence steadily increased over the following weeks as then-Libyan leader Muammar Qadhafi struck back at the protesters, vowing to root
them out "house by house, room by room ... [with] no mercy and no pity." n8 On March 17, aiming to avert what the international community
feared would become a humanitarian catastrophe, the United Nations Security Council voted to authorize military action against Qadhafi's
forces in Libya. n9 U.S. and European forces began a broad campaign of airstrikes against Libyan targets twodays later. n10 The Obama Administration reported the activity to Congress within forty-eight hours of the coalition intervention. n11 While the
United States took an early lead in disabling Libyan military targets, the North Atlantic Treaty Organization (NATO) assumed command in early
April, and U.S. forces shifted into a "supporting role." n12 The Administration consulted with Congress throughout the operation, n13 but
Congress did not authorize the use of military force. n14 As the engagement continued into its sixtieth day, the legality
of the Administration's activity in Libya catapulted into the public consciousness. n15 [*1548] On June 28, inresponse to repeated congressional inquiries, Legal Adviser Koh appeared before the Senate Foreign Relations Committee to elaborate on and
defend the Administration's position. n16 Koh's testimony focused on the scope of the term "hostilities," n17 which he
argued "is an ambiguous term of art that is defined nowhere in the statute." n18 The WPR's legislative history indicated that
"there was no fixed view on exactly what the term "hostilities' would encompass" at the time the
Resolution was adopted, n19 and no court or Congress had subsequently defined it. n20 Instead, the drafters of the WPR "declined to
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give ["hostilities'] a more concrete meaning," n21 intending, Koh argued, "to leave the matter for subsequent executive practice." n22 In light
of the drafters' deliberate vagueness, "the political branches have worked together to flesh out the law's meaning over time." n23 Koh then
turned to the history of the WPR's application, beginning with the evacuation of U.S. citizens from Southeast Asia at the close of the Vietnam
War, shortly after the Resolution's passage. n24 Citing a 1975 letter from the Departments of State and Defense to Congress, n25 Koh argued
that the executive branch had always considered "hostilities" [*1549] "definable in a meaningful way only in the context of an actual set of
facts." n26 Koh referred to a series of executive interpretations of the term that reaffirmed the 1975 letter, n27 claiming that "the term should
not necessarily be read to include situations where the nature of the mission is limited[,] ... the exposure of U.S. forces is limited[,] ... and ... the
risk of escalation is therefore limited." n28 Koh's argument then proceeded by analogy, comparing the U.S. intervention in Libya to, among
others, past engagements in Lebanon, n29 Grenada, n30 and Somalia, n31 in which previous administrations had not found the WPR's sixty-daypullout rule to apply. n32 Koh hewed closely to the facts of these historical precedents and found the Libya intervention similarly limited in its
mission, military means, exposure of U.S. forces, and risk of escalation. n33 Thus, while a different set of facts might have produced a different
legal conclusion, the "unusual confluence" of variables in Libya n34 led the Administration to conclude that it did not "constitute the kind of
"hostilities' envisioned by the [WPR]." n35 [*1550] Although Koh's definition of "hostilities" strains the term's everyday meaning, n36 the
vehemence of commentators' responses belies the issue's complexity. Legislative history n37 and four decades of the WPR's
operation indicate that not every military engagement triggers the Resolution's sixty-day clock. As courtshave largely dismissed WPR litigation on prudential grounds, n38 historical practice has become law in the Resolution's regard, guiding its
application. n39 Koh properly sought to locate Libya amidst the universe of WPR precedents, n40 but his analysis illustrates the indeterminacy
inherent in a statutory structure with only contested, historical practice to fill textual silence. This ambiguity has weakened the WPR's ability to
function as a general, ex ante time limit on executive action. Page 2 125 Harv. L. Rev. 1546, *1546 Rather, Congress must actively
participate in enforcing the Resolution's letter if it wishes to deny the executive the flexibility on
which Koh's argument relied.
The Obama Administration argued that there were not hostilities because US troops
were not in danger since they were using drones Congress must amend the WPR to
apply to drones
Grimmett, Specialist in International Security at the CRS, 2012(Richard F., The War Powers Resolution: After Thirty-Eight Years, CRS Report for Congress, September
24, p. http://www.fas.org/sgp/crs/natsec/R42699.pdf)Obama Administration submitted a 32-page unclassified report, together with a classified annex, that described U.S. actions in Libya to that
date. On page 25 of that unclassified report was a Legal Analysis consisting of one long paragraph
summarizing the Administrations view of what the Presidents authority was to take the actions he
had taken in Libya, andhis rationale for not having to obtain congressional authorization to do so. This
paragraph from the report states:Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated
actions, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to
direct such limited military operations abroad. The President is of the view that the current U.S. military
operations in Libya are consistent with the War Powers Resolution and do not under that law require
further congressional authorization, because U.S. military operations are distinct from the kind of
hostilities contemplated by the Resolutions 60 day termination provision. U.S. forces are playing a
constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited tothe terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas
under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained
fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground
troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict
characterized by these factors.There are various legal arguments available to the Administration to justify use of UAVs for military action abroad against terrorist organizations
and individuals. The following addresses the potential interplay of the War Powers Resolutions statutory requirements and the use of UAVs for
military operations abroad. The War Powers Resolution and Military Use of UAVs : Some Considerations In another
situation, it is possible that the President might use the same basic formulation he and his legal advisors set out
regarding the application of the War Powers Resolution to U.S. military actions in Libya discussed above.
Directly put, if it is accepted that the Presidents use of UAVs for military attacks against terrorist targets
abroad constitutes an action that is limited in scope and duration, and does not require introduction
of U.S. military forces directly and physically into hostilities, then the War Powers Resolution, under
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this interpretation, does not apply to this presidential action, nor require congressional statutory
authorization. The President, under this construction, has sufficient authority to act to defend the United States based only on his ownConstitutional authorities as Commander-in-Chief, as set out in the legal memorandum of the Office of Legal Counsel of April 1, 2011, and in the
Presidents June 15, 2011, report to Congress. To date, based on public reports, instances of the use of UAVs to attack terrorist targets abroad
have not required a time period in excess of 60 days to execute, nor have U.S. military personnel been placed directly into h arms way or in
places where hostilities that could directly involve them were indicated. The very nature of UAV technology permits their employment from
locations remote from the places they are used to attack. Thus, the argument could be made that in these
circumstances, the War Powers Resolution, as currently drafted, does not require the President to
obtain statutory congressional approval for the use of UAVs in military operations abroad. In his WarPowers Resolution report to Congress, on June 15, 2012, the President noted that he had authorized, during the previous six months, the U.S.
military to work closely with the government of Yemen to operationally dismantle and ultimately eliminate the terrorist threat posed by al-
Qaida in the Arabian Peninsula (AQAP), the most active and dangerous affiliate of al-Qaida today. The President added that: Our joint efforts
have resulted in direct action against a limited number of AQAP operatives and senior leaders in that country who posed a terrorist threat to
the United States and our interests.87 While the term direct action is not defined in the Presidents June 15, 2012, report quoted above, its
context, coupled with public reporting on the U.S. use of UAVs to attack al-Qaida terrorist personnel in Yemen, strongly suggests that this is
what the President is referring to in this report. The President further notes in this report that similar actions may be undertaken by the United
States in the future. He stated: The United States is committed to thwarting the efforts of al-Qaida and its associated forces to carry out future
acts of international terrorism, and we have continued to work with our CT [counter-terrorism] partners to disrupt and degrade the capabilities
of al-Qaida and its associated forces. As necessary, in response to the terrorist threat, I will direct additional measures agains t al-Qaida, the
Taliban, and associated forces to protect U.S. citizens and interests. The June 15, 2012, report also stated that a classified annex to it would
provide further information on such matters. That annex would perhaps elaborate on the specifics of the topics alluded to in the unclassified
text, and clarify the express meaning of direct action, and, in particular, how it was employed by the United States. In light of the above
considerations, it appears that the existing statutory language of the War Powers Resolution, as
interpreted by the Administration, does not require congressional authorization for the President to
use UAVs in military operations against terrorists abroad, in Yemen or in other countries. It does appear that thePresident may believe that in fulfilling his reporting obligations to Congress under the WPR he should at least implicitly note the use of UAVs in
military attacks against terrorists when he submits his supplementary WPR report every six months. Perhaps the President also believes he
should, in keeping with WPR reporting requirements, report more explicitly about such actions in classified reports every six months. Even
though the President has not publicly reported the specific use of UAVs in military operations within 48 hours of their use, private consultations
with the congressional leadership about their use may have occurred in individual cases. Should Congress agree with what
appears to be the Presidents position regarding his minimal obligations under the War Powers
Resolution regarding the military use of UAVs, it need do nothing further. However, should Congress
conclude that the War Powers Resolution should unambiguously require statutory congressional
authorization of the military use of UAVs for counter-terrorism operations, then it would likely have
to amend this statute , unless other mutually agreeable alternatives can be devised with the President.
Obamas definition of hostilities justifies UAV & Cyberwar without notifying
Congress under the WPR
Boston College Law Review, 2012(Restoring Constitutional Balance: Accommodating the Evolution of War, November, 53 B.C. L. Rev
1767)
On March 19, 2011, American forces began a campaign of air strikes against the Qaddafi regime in
Libya using warplanes and missiles. n1 On March 21, the President of the United States sent written notification to the leaders of Congressthat "U.S. military forces . . . began a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly
zone." n2 On March 30, it was reported that the Central Intelligence Agency (CIA) had operatives working on the ground in Libya to gather
intelligence for military airstrikes and to assess the rebel Libyan fighters. n3 The U.S. military was using spy planes and unmanned aerial vehicles(UAVs) to identify potential Libyan military [*1768] and government targets. n4 By May 12, UAVs were the only American
weapons being used to fire on ground targets in Libya . n5 Nonetheless, other American aircraft were supporting allied
attack missions. n6 The President took this action without consulting Congress through the process
prescribed by the War Powers Resolution of 1973 ("Resolution"). n7 The Resolution, which was passed in response to
the Vietnam War, was a congressional attempt to check executive power and restore a balance of powers
in the decision to enter a war. n8 Nonetheless, in response to congressional outcry against the
President's unilateral action, the administration claimed that the War Powers Resolution was not
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applicable to the Libyan campaign. n9 The Office of Legal Counsel, a unit of the U.S. Department of Justice tasked with providing
legal advice to the President, reasoned that the existence of "war" is satisfied "only by prolonged and substantial
military engagements, typically involving exposure of U.S. military personnel to significant risk over a
significant period." n10 Thus, the military operations in Libya did not meet the administration's
definition of "war." n11 According to the administration's reasoning, the President may unilaterally take the nation to war using limitedmilitary means. n12 What the Obama administration characterized as a unique situation in Libya, however, is becoming more common due to
advances in technology and the changing face of warfare. n13 The use of UAVs and cyber-warfare could inflict seriousdamage on another country, with, from the American perspective, limited [*1769] means, no troop deployments, and possibly
no involvement of military personnel. n14 According to the Obama administration, there are no
"hostilities" under the terms of the Resolution so long as U.S. military casualties are minimal or
nonexistent. n15
In terms of the wording question for the list item, the WPR states that the President
must go to Congress to get approval in any case where US Armed forces are
introduced into hostilities. The language from the WPR seems like a good place to get
the language for the list item. Discussion might be warranted for how much of thatcondition to include in the resolution to cover the area of debate we hope to achieve.
Angie Drobnic Holan and Louis Jacobson Published on Wednesday, June 22nd, 2011 at 11:38 a.m.Are U.S. actions in Libya subject to the War Powers Resolution? A review of the evidence
http://www.politifact.com/truth-o-meter/article/2011/jun/22/are-us-actions-libya-subject-war-powers-
resolution/
To research the administration's claim, we first turned to the law itself. The War Powers Resolution,
passed in 1973, is not long; you can read it here. The resolution doesn't define "hostilities," but it does
say that the president must go to Congress under three possible conditions if there is no formal
declaration of war: "In any case in which United States Armed Forces are introduced (1) into
hostilities or into situations where imminent involvement in hostilities is clearly indicated by thecircumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat,
except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already
located in a foreign nation."
http://www.politifact.com/truth-o-meter/article/2011/jun/22/are-us-actions-libya-subject-war-powers-resolution/http://www.politifact.com/truth-o-meter/article/2011/jun/22/are-us-actions-libya-subject-war-powers-resolution/http://www.politifact.com/truth-o-meter/article/2011/jun/22/are-us-actions-libya-subject-war-powers-resolution/http://www.politifact.com/truth-o-meter/article/2011/jun/22/are-us-actions-libya-subject-war-powers-resolution/