Constitutional & Legal Issues



Baggett, Candace S. "Fourth Amendment -- Absent Exigent Circumstances, Prior Judicial Authorizatiom of Electronic Surveillance of United States Citizens Abroad Is Constitutionally Required: Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144 (DDC 1976)," Texas International Law Journal 12, no. 2-3 (Spring-Summer 1977): 362-369. [Calder]

Baker, James E. In the Common Defense: National Security Law for Perilous Times. New York: Cambridge University Press, 2007.

Keiser, Proceedings 133.11 (Nov. 2007), finds that "[t]he author has given us a superb -- and not too arduous -- guide to comprehending the complexities of our laws and how they relate to national defense." While noting that Baker "does not address ... what to do when an operational situation is not covered by existing law," Peake, Studies 52.4 (Dec. 2008) and Intelligencer 17.1 (Winter-Spring 2009), still calls the book "a valuable resource for better understanding of the rule of law and the pervasive role lawyers play in the national security process."

For Fontenot. Military Review (Mar.-Apr. 2009), Baker "is able to make the basis of our national security system understandable. He does not, however, make it particularly easy to read. The book is heavy going. The topic is difficult and the writing sometimes dense, but the book is well organized and finished with a lawyer's rigor.... Every Soldier, regardless of service or grade, should read this excellent work."

Baker, Jeffrey L. "Domestic and National Security Wiretaps: A Fourth Amendment Perspective." International Journal of Intelligence and Counterintelligence 12, no. 1 (Spring 1999): 1-17.

"Throughout the twentieth century, a well-balanced process of coordinating electronic surveillance evolved out of both legislation and Supreme Court decisions."

Ball, George W. "NSDD 84: Contempt for Our Laws and Traditions." First Principles 9, no. 2 (1983): 14-16.

Petersen: "Former Under Secretary of State on Reagan's directive on protection of classified information."

Banks, William C.

1. "Counter Terrorism and the Law -- The Role of the Courts in Time of War: An Historical Overview." Intelligencer14, no. 1 (Winter-Spring 2004): 36-41.

"Over time and with varying degrees of conviction, the Courts have served as necessary counterweight to government overreaching in times of war.... [N]o other part of government is as equipped as the judiciary to anchor the nation to its core values during a storm."

2. and Peter Raven-Hansen. National Security Law and the Power of the Purse. New York: Oxford University Press, 1994. KF4651B36

From advertisement: "This study ... explores the history, mechanics, and scope of the power of the purse in national security, using Vietnam War appropriations and the Boland Amendments as case studies." Cohen, FA 73.6 (Nov.-Dec. 1993) says this book is "marred by ponderous and glutinous prose. If one has the patience to wade through it, this is a useful introduction."

Barnds, William J. The Right to Know, to Withhold and to Lie. New York: Council on Religion and International Affairs, 1969. [Petersen]

Basile, James F. "Congressional Assertiveness, Executive Authority and the Intelligence Oversight Act: A New Threat to the Separation of Powers." Notre Dame Law Review 64, no. 4 (1989): 571-605. [Marlatt]

Benda, Susan. "Violations of Law in the Covert War Against Nicaragua." First Principles 12, no. 2 (1987): 7-9. [Petersen]

Blake, John F. [Jack] [CIA Deputy Director for Administration]. Affidavit, Nathan Gardels v. Central Intelligence Agency, Civil Action No. 78-0330. U.S. District Court for the District of Columbia, 7 Jun. 1978.

Block, Lawrence J., and David B. Rivkin, Jr. "The Battle to Control the Conduct of Foreign Intelligence and Covert Operations: The Ultra-Whig Counterrevolution Revisited." Harvard Journal of Law and Public Policy 12, no. 2 (1989): 303-355. [Petersen]

Bowman, M. E.

1. "Collective Security v. Personal Privacy." Intelligencer 14, no. 2 (Winter-Spring 2005): 39-47.

The author discusses "the social and legal predicates for the laws, regulations and even the social compact we work under today." He notes that "for the United States and other common law nations it can be very difficult to know how to fit modern technology into our present legal regime." He concludes: "From colonial days, the average United States citizen has considered privacy, in particular, the right to be free of government intrusion, to be an integral part of security. Even so, government must be able to provide both security and privacy. In an age of widespread terrorism, this demands innovative methods of compiling and sharing information, coupled with equally innovative methods of protecting it."

2. "Intelligence Contributions to American Law: The Early Years." Intelligencer 13, no. 1 (Spring/Summer 2002): 31-43.

"[I]ntelligence and intelligence-related matters have always been among the catalysts for law and for policy, even from colonial days.... This article briefly describes the influence of intelligence on law and policy in the formative years of the Republic."

3. "The Lessons of SHAMROCK." Intelligencer 16, no. 2 (Fall 2008): 7-11.

This is not a revisit of the details of NSA's SHAMROCK, but rather a carefully argued discussion of privacy vs. security. "Today we have a bewildering array of new technologies that leave in the dust both traditional and evolutionary thought processes of the Fourth Amendment.... SHAMROCK is, today, a crude example of the technological means to be intrusive, but it remains an important benchmark to illustrate the ease with which the use of technology can morph into activitiy not originally contemplated."

4. "Prosecuting Spies: An Uneasy Alliance of Security, Ethics, and Law." Defense Intelligence Journal 4, no. 1 (Spring 1995): 57-81.

"[P]rosecution involving classified information is one of the most difficult undertakings of our legal system." The author identifies six basic issues which underlie the problems of espionage prosecution: the charges, discovery, the evidence, using classified information (the author discusses the Classified Information Procedures Act (CIPA)), defenses (diplomatic status, the national security standard, reliance on apparent authority, extra-territorial acts, promises), and sentencing. An earlier version of this article, "Prosecuting Spies: An Uneasy Alliance of Security, Ethics and Law," appears in American Intelligence Journal 11, no. 2 (1990): 29-39.

Branch, Taylor. "Playing Both Sides Against the Middle: M. Rogivin Representing the CIA and Public Interest Clients." Esquire 86 (Sep. 1976): 17-18. [Petersen]

Brooklyn Law Review. Editors. "Beyond Institutional Competence: Congressional Efforts to Legislate United States Policy Towards Nicaragua -- the Boland Amendments." 54 (1988): 131 ff. [Petersen]

Bruce, James B. "Laws and Leaks of Classified Intelligence: The Consequences of Permissive Neglect." Studies in Intelligence 47, no. 1 (2003): 39-49.

The problem of leaks of classified information "is worse now than ever before, given the scope and seriousness of leaks coupled with the power of electronic dissemination and search engines.... Unless comprehensive measures with teeth [emphasis in original] are taken to identify and hold leakers and their publishing collaborators accountable for the significant, often irreversible, damage that they inflict on vital US intelligence capabilities, the damage will continue unabated."

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