Constitutional & Legal Issues


C - G

Cabaniss, H., Jr. "Espionage and Sabotage Legislation." California State Bar Journal 17 (May-Jun. 1942): 116-120. [Calder]

Cacamo, Joseph A. "A Comparison and Analysis of Immunities Defenses Raised by Soviet Nationals Indicted Under United States Espionage Laws." Brooklyn Journal of International law 6, no. 2 (Summer 1980): 259-288.

Calder: "Functional immunity ... is not a defense against charges of espionage."

Chimes, Lewis. "National Security and the First Amendment: The Proposed Use of Government Secrecy Agreements Under National Security Directive 84." Columbia Journal of Law and Social Problems 19, no. 3 (1985): 209-251. [Marlatt]

Civiletti, Benjamin R. "Intelligence Gathering and the Law: Conflict or Compatibility." Fordham Law Review 48, no. 6 (1980): 883-906.

The author is a former U.S. Attorney General.

Cleveland, Harlan, and Stuart Gerry Brown. "The Limits of Obsession: Fencing in the 'National Security' Claim." Administrative Law Review 28 (Summer 1976): 327-346.

Cohen, William S. [Sen.; R-ME]

1. "Congressional Oversight of Covert Actions." International Journal of Intelligence and Counterintelligence 2, no. 2 (Summer 1988): 155-162.

The then-SSCI member (later Secretary of Defense) argues in favor of the "48-hour rule" on notification of Congress regarding covert actions. He also discusses some of the oversight problems involved in such activities.

2. "Congressional Oversight of Covert Actions: The Public's Stake in the Forty-Eight Hour Rule." Harvard Journal of Law and Public Policy 12, no. 2 (Spring 1989): 285-302.

Cole, David. "Challenging Covert Action: The Politics of the Political Question Doctrine." Harvard International Law Journal 26 (Winter 1985): 155-188. [Petersen]

Commanger, Henry S. "Intelligence: The Constitution Betrayed." New York Review of Books 23 (30 Sep. 1976): 32-37.

Conner, William E.. "National Classification System Update." National Security Law Report 16, no. 3-4 (Mar.-Apr. 1994): 1, 4, 6-7.

Conrad, Sherri J. "Executive Order 12,333: 'Unleashing' the CIA Violates the Leash Law." Cornell Law Review 70 (1985): 968-990.

Petersen: "Reagan intelligence guidelines."

Dycus, Stephen, Arthur L. Berney, William C. Banks, and Peter Raven-Hansen. National Security Law. 4th ed. New York: Aspen, 2006. 5th ed. New York: Aspen, 2011.

This is a law school casebook. The 4th edition was updated to include "[n]ew case studies of controversial initiatives like the Terrorist Surveillance Program, extraordinary rendition, and the Valerie Plame case."

Eagle, Kenneth L. "Prior Restraint Enforced Against the Publication of Classified Material by CIA Employee." North Carolina Law Review 51 (Mar. 1973): 865-874.

Discusses Fourth Circuit Court of Appeals decision affirming an injunction to enforce Victor Marchetti's secrecy agreement with the CIA.

Easterbrook, Frank H. "Insider Trading, Secret Agents, Evidentiary Privileges and the Production of Information." Supreme Court Review (1981): 309-365.

This article mostly concerns nonintelligence issues, but the author also discusses the Frank Snepp case in which Snepp's secrecy agreement with the CIA was upheld.

Edgar, Harold, and Benno C. Schmidt, Jr. "The Espionage Statutes and Publication of Defense Information." Columbia Law Review 73 (May 1973): 929-1087. [Petersen]

Edwards, George C., III, and W. E. Walker, eds. National Security and the U. S. Constitution: The Impact of the Political System. Baltimore, MD: Johns Hopkins University Press, 1988.

Eggen, Dan. "Grand Jury Subpoenas Times Reporter Over Book Sources." Washington Post, 2 Feb. 2008, A7. [http://www.washingtonpost.com]

On 24 January 2008, a federal grand jury in Alexandria "issued a subpoena seeking information about the confidential sources" of James Risen of the New York Times. In State of War (2006), he wrote about "Operation Merlin, depicted as an unsuccessful CIA effort to destabilize the Iranian nuclear program." According to Risen's attorney, David N. Kelley, the "subpoena ordered the reporter ... to appear before the grand jury" on 7 February 2008. Kelley "said Risen plans to resist the order."

Fagelson, David. "The Constitution and National Security: Covert Action in the Age of Intelligence Oversight." Journal of Law and Politics 5, no. 2 (Winter 1989): 275-347

The discussion here focuses on Iran-Contra.

Fein, Bruce E. "The Constitution and Covert Action." Houston Journal of International Law 11, no. 1 (1988): 53-68. [Petersen]

Feldman, Daniel L. "Constitutional Dimensions of the Iran-Contra Affair." International Journal of Intelligence and Counterintelligence 2, no. 3 (Fall 1988): 381-397.

"The balance between security concerns, reflected in executive secrecy, and the free flow of information, necessary for informed dissent and debate, has shifted too far toward secrecy, and should be shifted back to a balance between the two."

Fisher, Louis. Nazi Saboteurs on Trial: A Military Tribunal and American Law. Lawrence, KS: University Press of Kansas, 2003.

Peake, Studies 48.4 (2004), notes that the author "emphasizes the legal aspects ... and characterizes the tribunal approach as ill-conceived."

For Doerries, JIH 6.2 (Winter 2006/7), Fisher "presents a thoughtful collection of pros and cons on the question of trying persons before a military tribunal. The danger of an erosion of the constitutional rights of persons charged in the U.S. is evident, and categorization into citizens, non-citizens, legal aliens, illegal aliens, etc. does not really allay that concern.... The author's conclusion that 'the Nazi saboteur case represented an unwise and ill-conceived concentration of power in the executive branch' (p. 172) is one of several legal -- and political -- opinions in the ongoing debate."

Fuchs, Meredith. "Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy." Administrative Law Review 58, no. 1 (Winter 2006): 131-176.

"In the absence of of stronger judicial willingness to scrutinize secrecy claims, secrecy can be expected to continue to expand and undermine the public's ability to influence governmental policies."

Gaffney, Frank J., Jr. "The Leaker Shield Act." Intelligencer 16, no. 1 (Spring 2008): 15-19. Originally carried online at: http://www.townhall.com/columnists/FrankJGaffneyJr/2008/05/12/the_leaker_shield_act.

The author expresses strong opposition to Senate bill S. 2035, the Free Flow of Information Act (FFIA) of 2007. His view of the proposed legislation is made clear in the title of the article.

Gates, Robert M. "Unauthorized Disclosures: Risks, Costs, and Responsibilities." American Intelligence Journal 9, no. 1 (1988): 6-8.

Gruner, Richard. "Government Monitoring of International Communications: National Security Agency Watch List Surveillance and the Fourth Amendment." Southern California Law Review 51 (Mar. 1978): 429-466. [Petersen]

Gumina, Paul. "Title VI of the Intelligence Authorization Act, Fiscal Year 1991: Effective Covert Action Reform or 'Business as Usual?'" Hastings Constitutional Law Quarterly (Fall 1992): 149-205.

According to Lowenthal, this article examines the new reporting requirements for covert actions included in the referent act. The author argues that these requirements are "firmly rooted in the Constitution and in past Congressional acts regarding oversight."

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