LESSON 2: PRIMARY LEGAL AUTHORITY IN THE FEDERAL SYSTEM
2.1 The Federal Legal System of the United States
2.1.2 National Law vs. International Law
Annotated Lecture Transcript
Now, before we really get into the framework, you need to understand that domestic law is not the only body of law that might affect intelligence operations.
There are two separate and distinct legal systems governing the actions of U.S. intelligence agencies at the global level:
Ø National Law; and
Ø International Law.
Since this course is focused exclusively on intelligence activities affecting United States persons, I don’t go into international law very much.
I’m planning to cover intelligence and international law in a separate lecture series.
 In addition to public international law, foreign law is also relevant whenever U.S. agents engage in intelligence operations overseas within the territorial jurisdiction of a foreign sovereign. The term “foreign law” refers to the national law of a foreign country. See e.g. Rachel Donadio, Italy Convicts 23 Americans for C.I.A. Renditions, N.Y. Times, Nov. 5, 2009, available at http://www.nytimes/com/2009/11/05/world/europe/05italy.html; see also Craig Whitlock, Prosecutors: Italian Agency Helped CIA Seize Cleric, Wash. Post, July 6, 2006, at A15; see also Craig Whitlock, Italy Seeks Extradition of 22 CIA Operatives, Wash. Post, Nov. 12, 2005, at A19.
 See e.g. Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits), Int'l Ct. of Justice, 1986 I.C.J. 4 (1986) (holding, by fourteen votes to one, that “the United States of America, by producing in 1983 a manual entitled Operaciones sicologicas en guerra de guerrillas, and disseminating it to contra forces, has encouraged the commission by them of acts contrary to general principles of humanitarian law; but does not find a basis for concluding that any such acts which may have been committed are imputable to the United States of America as acts of the United States of America”).
 For example, international law places restrictions on the ability of a nation’s intelligence agencies to engage in surveillance targeting foreign diplomatic missions within their territory. Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes art. 22, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 (stating that the premises of diplomatic missions are inviolable and immune from search).
Also, a host nation is forbidden from interfering with the official correspondence of foreign diplomatic missions in its territory. Id. art. 27.
United Nations diplomats are also entitled to diplomatic immunity from surveillance under international law. See Convention on the Privileges and Immunities of the United Nations art. 2, § 3, Apr. 29, 1970, 21 U.S.T. 1418, 1 U.N.T.S. 16 (providing that the premises of the United Nations are inviolable and are immune from search); see also Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations, June 26, 1947, 61 Stat. 3416, 11 U.N.T.S. 11 (same).
 There are two separate legal systems that apply to the conduct of the United States government: National Law and International Law.
(1) National Law: National Law is the domestic or internal law of the nation itself—this is known as “municipal law” in international law parlance. This is the law we cover in this course: i.e. constitutional law, statutory law, administrative law, and judicial opinions.
(2) Public International Law: Public international law is the body of legal rules and principles that govern the interaction of sovereign nations and international organizations. Public international law is also known as the law of nations.
See Restatement (Third) of the Foreign Relations Law of the United States § 101 (1986) (defining “international law”); see also See Michael John Garcia, Congressional Research Serv., International Law and Agreements: Their Effect Upon U.S. Law (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL32528_1-26-2010.pdf (“International law consists of “rules and principles of general application dealing with the conduct of [S]tates and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.” Citing the following sources: Restatement (Third) of Foreign Relations, § 101 (1987). Recorded international law dates back to agreements between Mesopotamian rulers five thousand years ago, but international law as we understand it began with the Roman Empire, whose scholars formulated a jus gentium (law of nations) they believed universally derivable through reason. See generally DAVID J. BEDERMAN, INTERNATIONAL LAW IN ANTIQUITY (2001). The term “international law” appears to have been coined by Jeremy Bentham in 1789. JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 326 n. 1 (Hafner Publ’g Co. 1948) (1789). Although originally governing State-to-State relations, the scope of international law has grown, beginning in the latter half of the 20th century with the emerging fields of human rights law and international criminal law, to regulate the treatment and conduct of individuals in certain circumstances. See, e.g., Universal Declaration on Human Rights, UN GAOR, Supp. No. 16, UN Doc. A/6316 (1948); Geneva Convention (Third) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention (Fourth) Relative to the Protection of Civilian Persons in Times of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; International Covenant on Civil and Political Rights, G.A. Res. 2200A, U.N. GAOR, 3rd Comm., 21st Sess., 1496th plen. mtg., U.N. Doc. A/RES/2200A (XXI) (1966). See also U.S. State Dept. Pub. No. 3080, REPORT OF ROBERT H. JACKSON, INTERNATIONAL CONFERENCE ON MILITARY TRIALS 437 (1949) (arguing that crimes against humanity were “implicitly” in violation of international law even before Nuremberg).”).
 Article 38(1) of the Statute of the International Court of Justice states the primary sources of legal authority in public international law international law. It says that when the ICJ is deciding a case, it shall apply: (1) “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;” (2) “international custom, as evidence of a general practice accepted as law;” and (3) “the general principles of law recognized by civilized nations.” Essentially, this means 3 things: (1) Treaties; (2) Custom; and (3) common rules of equity and due process. See Statute of the International Court of Justice art. 38(1), June 26, 1945, 59 Stat. 1055, 3 Bevans 1153, [hereinafter ICJ Statute] (“The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) . . . judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”); see also Restatement (Third) of the Foreign Relations Law of the United States § 102 reporters note 1 (1986) (describing Article 38(1) of the Statute of the International Court of Justice as an authoritative statement of the sources of international law.); see also Michael John Garcia, Congressional Research Serv., International Law and Agreements: Their Effect Upon U.S. Law (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL32528_1-26-2010.pdf (“Rules of international law can be established in three main ways: (1) by international, formal agreement, usually between states (i.e., countries), (2) in the form of international custom, and (3) by derivation of principles common to major world legal systems.”).
 International law is important, but this lecture series is focused solely on domestic intelligence activities affecting United States persons so I only cover national law throughout this course. For foreign intelligence operations outside the United States there is an entirely separate system of public international law that affects the conduct of U.S. intelligence activities in some circumstances.
Although public international law represents a separate legal system, some international legal mandates are fully domesticated into the national legal system of the United States. See generally Michael John Garcia, Congressional Research Serv., International Law and Agreements: Their Effect Upon U.S. Law (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL32528_1-26-2010.pdf (“Since its inception, the United States has understood international legal commitments to be binding upon it both internationally and domestically.”) Citing the following sources: See, e.g., Ware v. Hylton, 3 U.S. (3 Dall.) 199, 281 (1796) (“[w]hen the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement”); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) (“the United States had, by taking a place among the nations of the earth, become amenable to the law of nations”); see also Letter from Thomas Jefferson, Secretary of State, to M. Genet, French Minister (June 5, 1793) (construing the law of nations as an “integral part” of domestic law).”).
Treaties, for example, become part of federal law with force and effect on the same level as statutes passed by Congress when they are ratified through the full constitutional process. See U.S. Const., art. II, § 2 (The President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur”); see also Michael John Garcia, Congressional Research Serv., International Law and Agreements: Their Effect Upon U.S. Law (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL32528_1-26-2010.pdf (“Under U.S. law, a treaty is an agreement negotiated and signed by the executive branch that enters into force if it is approved by a two-thirds majority of the Senate and is subsequently ratified by the President. Treaties generally require parties to exchange or deposit instruments of ratification in order for them to enter into force.”); but see Michael John Garcia, Congressional Research Serv., International Law and Agreements: Their Effect Upon U.S. Law (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL32528_1-26-2010.pdf (“The United States regularly enters into international legal agreements with other states or international organizations that are legally binding as a matter of international law. Under U.S. law, legally binding international agreements may take the form of treaties or executive agreements. In this regard, it is important to distinguish “treaty” in the context of international law, in which “treaty” and “international agreement” are synonymous terms for all binding agreements, and “treaty” in the context of domestic American law, in which “treaty” may more narrowly refer to a particular subcategory of binding international agreements.” Citing the following sources: Vienna Convention on the Law of Treaties, entered into force Jan. 27, 1980, 1155 U.N.T.S. 331 [hereinafter “Vienna Convention”], art.2. Although the United States has not ratified the Vienna Convention, it recognizes it as generally signifying customary international law. See, e.g., Fujitsu Ltd. v. Federal Exp. Corp., 247 F.3d 423 (2nd Cir. 2001) (“we rely upon the Vienna Convention here as an authoritative guide to the customary international law of treaties ... [b]ecause the United States recognizes the Vienna Convention as a codification of customary international law ... and [it] acknowledges the Vienna Convention as, in large part, the authoritative guide to current treaty law and practice”) (internal citations omitted). The term “treaty” is not always interpreted under U.S. law to refer only to those agreements described in Article II, § 2 of the Constitution. See Weinberger v. Rossi, 456 U.S. 25 (1982) (interpreting statute barring discrimination except where permitted by “treaty” to refer to both treaties and executive agreements); B. Altman & Co. v. United States, 224 U.S. 583 (1912) (construing the term “treaty,” as used in statute conferring appellate jurisdiction, to also refer to executive agreements).”).
In practice, however, only a small percentage of international conventions entered into by the U.S. are “treaties.” Over the last 70 years, executive agreements have outnumbered formal treaties about 16 to 1. See Michael John Garcia, Congressional Research Serv., International Law and Agreements: Their Effect Upon U.S. Law (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL32528_1-26-2010.pdf (“The great majority of international agreements that the United States enters into are not treaties but executive agreements—agreements entered into by the executive branch that are not submitted to the Senate for its advice and consent. Congress generally requires notification upon the entry of such an agreement. Although executive agreements are not specifically discussed in the Constitution, they nonetheless have been considered valid international compacts under Supreme Court jurisprudence and as a matter of historical practice. Starting in the World War II era, reliance on executive agreements has grown significantly. Whereas 27 executive agreements (compared to 60 treaties) were concluded by the United States during the first 50 years of the Republic, between 1939 and 2009 the United States concluded roughly 16,500 executive agreements (compared to approximately 1,100 treaties).”).
In addition to treaties, customary international law can be recognized as part of our domestic legal system. In the Paquete Habana case the Supreme Court famously stated that “international law is part of our law.” See The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.”) (citing Hilton v. Guyot, 159 U.S. 113, 163-164, 159 U.S. 214-215.); but see Michael John Garcia, Congressional Research Serv., International Law and Agreements: Their Effect Upon U.S. Law (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL32528_1-26-2010.pdf (“There does not appear to be a case where the Court has ever struck down a U.S. statute on the ground that it violated customary international law. However, customary international law can potentially affect how domestic law is construed. If two constructions of an ambiguous statute are possible, one of which is consistent with international legal obligations and one of which is not, courts will often construe the statute so as not to violate international law, presuming such a statutory reading is reasonable.” Citing the following sources: Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, J.) (“an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains....”). But see Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1151-54 (7th Cir. 2001) (suggesting that given the “present uncertainty about the precise domestic role of customary international law,” application of this canon of construction to resolve differences between ambiguous congressional statutes and customary international law should be used sparingly).”).
There is also the “Charming Betsy Rule” of statutory interpretation, which requires judges to avoid interpreting domestic law in ways that would violate binding international custom. See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804) (“"an Act of Congress ought never to be construed to violate the law of nations if any other possible construction remains . . . ."); see also Restatement (Third) of the Foreign Relations Law of the United States § 114 (1986); but see Michael John Garcia, Congressional Research Serv., International Law and Agreements: Their Effect Upon U.S. Law (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL32528_1-26-2010.pdf (“There does not appear to be a case where the Court has ever struck down a U.S. statute on the ground that it violated customary international law. However, customary international law can potentially affect how domestic law is construed. If two constructions of an ambiguous statute are possible, one of which is consistent with international legal obligations and one of which is not, courts will often construe the statute so as not to violate international law, presuming such a statutory reading is reasonable.”)(internal citations omitted).
The problem is that most treaties are not self-executing. This means that they lack binding effect in their own right domestically, but instead must be internalized into the national legal system of the United States by Congress. In such circumstances what happens is that, after the treaty is ratified, Congress passes an enabling statute that brings the provisions of the treaty into the national law of the United States. It is then the statute that provides the substantive rights plaintiffs can sue to enforce in U.S. Courts, not the actual provisions of the treaty itself. Most international treaties haven’t been domesticated in this way, so they’re given no binding effect as primary authority in U.S. Courts. There’s a 2008 Supreme Court case called Medellin v. Texas that reaffirmed the Court’s commitment to this understanding of international law. See Medellin v. Texas, 552 U.S. 491, pgs. 26-27 (slip opinion), n.3 (2008) (“Even when treaties are self-executing in the sense that they create federal law, the background presumption is that ‘[i]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.’ citing Restatement (Third) of Foreign Relations Law of the United States § 907, Comment a, p. 395 (1986). Accordingly, a number of the Courts of Appeals have presumed that treaties do not create privately enforceable rights in the absence of express language to the contrary. See, e.g., United States v. Emuegbunam, 268 F.3d 377, 389 (CA6 2001); United States v. Jimenez-Nava, 243 F.3d 192, 195 (CA5 2001); United States v. Li, 206 F.3d 56, 60-61 (CA1 2000) (en banc); Goldstar (Panama) S. A. v. United States, 967 F.2d 965, 968 (CA4 1992); Canadian Transp. Co. v. United States, 214 U.S. App. D.C. 138, 663 F.2d 1081, 1092 (CADC 1980); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (CA3 1979).”); see also Michael John Garcia, Congressional Research Serv., International Law and Agreements: Their Effect Upon U.S. Law (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL32528_1-26-2010.pdf (“in order to have domestic, judicially enforceable legal effect, the provisions of many treaties and executive agreements may require implementing legislation that provides U.S. bodies with the authority necessary to enforce and comply with an international agreement’s provisions.” Citing the following sources: “See, e.g., Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1828) (Marshall, C.J.) (finding that international agreements entered into by the United States are “to be regarded in courts of justice as equivalent to an act of the legislature, wherever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the [agreement] addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the court”), overruled on other grounds by United States v. Percheman, 7 Pet. 51, 8 L.Ed. 604 (1833). Congressional Research Service, Treaties and Other International Agreements; The Role of the United States Senate, A Study Prepared for the Senate Comm. On Foreign Relations 4 (Comm. Print 2001); RESTATEMENT, supra footnote 1, § 111(3).”).
There is also another problem specific to the application of international law to U.S. intelligence activities that makes international law largely irrelevant to the domestic intelligence activities targeting United States persons we discuss in this lecture series. In 2001, Congress enacted a special statute that makes most new international obligations of the United States inapplicable to U.S. intelligence operations. This controversial provision added a new Title 11 to the National Security Act that is codified at 50 U.S.C. § 442. This new statute essentially exempts U.S. intelligence agencies from complying with international law. See 50 U.S.C. § 442 (a) (2010) (“No Federal law enacted on or after the date of the enactment of the Intelligence Authorization Act for Fiscal Year 2001 that implements a treaty or other international agreement shall be construed as making unlawful an otherwise lawful and authorized intelligence activity of the United States Government or its employees, or any other person to the extent such other person is carrying out such activity on behalf of, and at the direction of, the United States, unless such Federal law specifically addresses such intelligence activity.”).
These are the reasons why international law isn’t a major focus of this first set of courses on U.S. intelligence law.
 PROFESSOR NOTE: I am considering putting together a full course on international law and intelligence, but the field is still too underdeveloped for the kind of practice-oriented courses I like to teach. I like you to be able to go right from one of my courses into a court room to apply what you’ve learned. International law doesn’t have that kind of real-world application, at least not in the intelligence law context.
Still, international law is one of my specialties, so I’ll definitely put up something. I’ll start with a quick sidebar lesson on the sources of international law, and see if people want more. If the view count is good on YouTube, I’ll put more international law stuff together. First, though, I need to finish these practice-oriented courses so I can get you all into the courtroom as fast as possible. Like the ACLU says—freedom can’t defend itself.