National Security Law - Exam Blog

The most recent emails are posted at the top of the page.

6 Dec 2007

> I think I have found the answer. Would it be under RICO like
> the Saleh v. Titan case?

>> Where can I find information about this? The only way I
>> can find for a foreigner to sue a US corporation is under the
>> ATCA. I can't find any other alternatives to the ATCA.

That is one, but think more generally - US corporation, US courts - why do you need any special law at all? When do you need the ATCA? (Hint - in most cases, ATCA claims are never paid.)

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> "Given the lone wolf provisions and the aiding and abetting
> provisions, and the Patriot Act Amendments moving to
> significant purpose, give some examples of how a local
> prosecutor might expand the reach of FISA for domestic crime.
>
> FISA also covers sabotage. If you look at the definition of
> sabotage, it is very broad, and includes most any government
> function or critical infrastructure. (
> http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_
> 10_I_20_105.html
> <http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18
> _10_I_20_105.html> ) How might this be used for the McVeys?
> Would it give a pretty much free hand for use against
> domestic terrorist groups, since you would not know ahead of
> time what they would hit?"
>
> Do you mean that because significant purpose is less than
> primary purpose and because the loan wolf provision doesn't
> require that the target be related to a foriegn power and
> because the definition of sabotage is so vague that FISA
> could be used as way around the fourth amendment for criminal
> investigations? If FISA applies to US citizens (which I
> think it does) than the only limits we talked about were the
> heightened standard that the judge uses and that the
> information wouldn't be turned over to another agency if no
> criminal or foriegn activity was found. In that case it is
> possible for FISA to be a way around the 4th amendment.
> Especially since the Patriot Act encourages the Feds to seek
> help from local law enforcement.

Is the definition of sabotage vague or broad? Why does that matter? As to who FISA applies to, look at the language of the act.

> This blog is quite confusing.

It reflects the questions I get.:-)

5 Dec 2007

> Professor, I have been going through the information
> concerning suing Blackwater. It seems Like I am missing
> something. My understanding is this, the FTCA does not apply
> to actions outside of the U.S., therefore it really has not
> application for any action that blackwater has taken in Iraq
> (this is assuming that they would even be considered military
> contractors, otherwise the government could not be sued at
> all regarding their activity). Second, the Alien tort statute
> is only jurisdictional in nature, therefore you have to have
> some underlying law that would allow you to have a cause of
> action. This is the only chance at getting blackwater in an
> American court. The petition we read at the end of class was
> based on the alien tort statute and it was bringing every
> action known to man (negligence, war crimes, etc). After the
> district court opinion in Titan, this may work because
> Blackwater is not really controlled by the Military so they
> may not have a military contractors defense (which would take
> them out of the alien tort claims act because the FTCA would
> Preempt the ATS per Titan). Therefore I assume that the alien
> tort statute could be read as a vehicle for bringing a claim
> against a private contractor based on a state law cause of
> action- other than that the victims are out of luck- they
> cannot sue the federal government under the FTCA (outside of
> territory of U.S.) and the alien tort statute does not waive
> sovereign immunity for the U.S. Is there some huge flaw in my
> understanding?

You are pretty much on track, except for the source of law for a claim under the ATCA. Go back and reread SOSA V. ALVAREZ-MACHAIN 542 U.S. 692 (2004), p. 187 et seq. in the text. I probably did not put enough emphasis on the part of the case that pointed to where you must find the law to bring a claim, rather than the section that said that the claim of the plaintiff failed. The ATCA requires that the plaintiff bring a claim based on the violation of a treaty or of international law. It was originally about pirates, among other things. Sosa was based on a claim that the illegal arrest violated international law, but the court said it did not. Successful cases have been based on torture, war crimes, slavery, and the like. Illegal killing, as in the Blackwater case, might work but it is not a slam-dunk. So rather than state law claims, you have to state a case under treaties or international law, which includes war crimes and the like.

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> wait a minute- I am conflating actions against the U.S. with actions against private individuals. the only reason the Alien tort claim act cause of action failed in sosa was because they were trying to bind the feds- that is why you had to look to international law- since the case against blackwater is arguably outside of any action against the federal govt (see my prior discussion about blackwater not being a contractor) then theoretically you could rely solely on state law to bring the action without ever having to rely on the ATCA, which is only a vehicle to get into state court.

I see the problem - the editing in the book makes it very difficult to tell who is really being sued. Look at the case on my WWW site:

https://biotech.law.lsu.edu/cases/nat-sec/Alvarez-Machain.htm

Who is being sued under the ATCA? Why does the claim against them have to be under the ATCA? What is the claimed violation? Why does the court reject it? Would the result have been different if the claim had been torture - the Filartiga case? How does Blackwater fit with the court's discussion of Filartiga and related cases? Why might you be able to get to Blackwater without the ATCA, i.e., how is Blackwater different from the ATCA defendants in SOSA?

--------

> Sorry for the barrage of emails- I have been searching
> through my notes and the book in trying to determine the
> significance of a "terrorist" classification for 4th
> amendment purposes. What it seems to boil down to is that if
> you can classify someone as a terrorist, then you can invoke
> the "lone wolf" provision of FISA and get under its
> procedural benefits. Thus, the 4th amendment basically
> becomes inapplicable and FISH dictates all that is needed for
> any sort of surveillance. Before FISA, the president was seen
> to have some inherent national security powers which could be
> invoked in conducting surveillance. There were some limits on
> this powers however, especially when the surveillance was
> being conducted on purely domestic parties (however it was
> rather unlimited in the foreign intelligence context).
> However with FISA and the Lone wolf provision, the
> distinction between foreign and domestic surveillance has
> been erased and the government can basically conduct
> surveillance on a purely domestic terrorist by filling in the
> blanks on a FISA warrant. This has created the practical
> effect of expanding the executives powers over warrantless
> surveillance to unprecedented levels. Just with my last
> email, this seems almost too simple of an answer for this
> question- is there something fundamental that I an overlooking?

The missing piece is how the limits of FISA are different for a US person than from a pure foreign terrorist. Could this different treatment limit the extent that FISA can be used as an end-run on the 4th amendment?

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> FISA does not on its plain language apply to purely domestic
> terrorists- only to international terrorists. This would mean
> that surveillance of those individuals would have to be done
> while acting under the purely constitutional 4th amendment
> analysis in cases like Keith, which would severely limit the
> presidents power to use warrantless wiretaps, etc. This would
> severely limit FISA's effectiveness against the timothy mcveys
> of the world.

Given the lone wolf provisions and the aiding and abetting provisions, and the Patriot Act Amendments moving to significant purpose, give some examples of how a local prosecutor might expand the reach of FISA for domestic crime.

FISA also covers sabotage. If you look at the definition of sabotage, it is very broad, and includes most any government function or critical infrastructure. (http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I_20_105.html) How might this be used for the McVeys? Would it give a pretty much free hand for use against domestic terrorist groups, since you would not know ahead of time what they would hit?

> I read the Sosa case on your website- the plaintiff was suing
> Sosa, not the federal govt under the ATCA. The court said
> that the Law of nations applied under the federal common law
> and that they would not read any new causes of action into
> the law of nations, therefore his unlawful seizure could not
> be compensated. This makes sense- so unless you have a claim
> or torture as possibly violating the law of nations (which is
> not totally settled), then if you are a foreigner or foreign
> sole you are probably out of luck for anything that is done
> to you unless if fits in the special circumstances listed
> under the law of nations.

Do not forget, how is Blackwater different from Sosa so that you might have a non-ATCA claim?