Intelligence Law School - Course 1: Lesson 3.2.4 The Three Amendments Most Important to U.S. Intelligence Law


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LESSON 3: CONSTITUTIONAL LAW


3.2 Basic Structure of the U.S. Constitution


3.2.4 The Three Amendments Most Important to U.S. Intelligence Law


Lecture Audio



Annotated Lecture Transcript

3.2.4 The Three Amendments Most Important to U.S. Intelligence Law

Since this series is focused on U.S. intelligence law as it applies to operations affecting United States persons, later courses on constitutional law focus primarily on the rights of individuals contained in the Amendments.

 

Ø  The 6 Amendments Relevant to U.S. Intelligence Law: As for the second important part of the Constitution—the 27 Amendments—only 6 of those Amendments are relevant to U.S. intelligence law in any practical way; and only 3 of those are critically important:

o   The 6 Amendments that are relevant are the

§  1st;[1]

§  4th;[2]

§  5th;[3]

§  6th;[4]

§  8th;[5] and

§  14th Amendments.[6]  

Ø  The Bill of Rights: The first 10 Amendments to the U.S. Constitution are known collectively as “The Bill of Rights.”

o   The Bill of Rights limits the government’s use of the constitutional powers given to it in Articles I’ve just mentioned.

o   It does through 10 Amendments that modify the powers granted in the Articles to recognize certain fundamental rights possessed by individuals that cannot be violated by any branch of the government.[7]

o   Of the first 10 Amendments that make up the Bill of Rights, only 3 have major application in the intelligence law context.

§  They are the

·         1st;[8]

·         4th;[9] and

·         5th Amendments.[10]  

o   The 6th Amendment contains trial rights that are relevant to certain aspects of criminal trial that might be relevant in instances where intelligence activities are connected to criminal prosecutions. [11]

§  For example, the 6th Amendment’s Confrontation Clause might limit the extent to which a defendant in a criminal trial can be excluded from proceedings on national security grounds.[12]

§  There’s also a case called Marzook, where a defendant challenged allowing Israeli ISA agents to use pseudonyms and dress in “light disguise” while testifying against him at his criminal trial.[13]

·         The judge in Marzook found that the 6th Amendment’s Confrontation Clause wasn’t violated by letting the agents testify under false names because the defendant presumably didn’t know their real names when they were interacting with him as undercover, so letting them do the same in court would not prejudice the defendant’s ability to confront his accusers.[14]

·         The judge did however rule that the agents could not testify in “light disguise” because that would make it impossible for the defendant to be able to know who they were to be able to rebut their accusations, which in turn created a 6th Amendment Confrontation Clause problem.[15]

·         The judge ordered the courtroom closed and forbade anyone present from describing or disclosing the identities of the Israeli ISA agents.[16]

§  But most intelligence activities do not result in criminal trials, so the 6th Amendment is only of limited importance in most day-to-day intelligence law situations. 

o   The 8th Amendment’s ban on cruel or unusual punishment is also tangentially relevant because it prevents torture in intelligence interrogations.[17]

§  But most intelligence activities are carried out remotely or in secret, and do not involve direct contact with the targeted American in any way that might trigger 8th Amendment considerations.

§  That’s why I say the 6th Amendment and 8th Amendment are relevant to U.S. intelligence law, but not critically important.

Ø  The Fourteenth Amendment: The Fourteenth Amendment: Besides the first 10 Amendments that make up the Bill of Rights, the 14th Amendment is also somewhat important because it applies the federal Bill of Rights to the states.[18]

o   Before the 14th Amendment, you might have had a 4th Amendment right to protect you against unreasonable searches and seizures by the federal government, but that didn’t protect you from unreasonable searches by state officials.

§  The 14th Amendment’s Due Process Clause was used to remove this ridiculous technicality and incorporate most of the protections found in the federal Bill of Rights so that they now apply to local and state governments.

§  I don’t list the 14th Amendment as one of the 3 most critical Amendments to U.S. intelligence law only because the 14th Amendment is critical primarily to state-level operations.

§  Remember that this course is focused on federal-level intelligence operations. 

o   There is an important aspect of the 14th Amendment that concerns the Equal Protection Clause.

§  The Due Process Clause of the 5th Amendment applies to the federal government, but contains no Equal Protection Clause.

§  The Due Process Clause of the 14th Amendment applies to the state governments and does contain an Equal Protection Clause.

§  Courts have used the Due Process Clause of the 5th Amendment to reverse incorporate the 14th Amendment’s Equal Protection Clause so that it applies to the federal government.[19]

§  Just like how the courts used the Due Process Clause of the 14th Amendment to incorporate most of the protections in the Bill of Rights to apply to the state governments.

Ø  The 3 Amendments that are Critically Important to U.S. Intelligence Law: So really, the 3 most important Amendments we’re going to be studying are:

o   The 1st Amendment;[20]

o   4th Amendment;[21] and

o   5th Amendment.[22]

 

So there are 3 Articles and 3 Amendments that are critically important to U.S. Intelligence Law.

I’ll tell you more about each one in just a second.

 

Footnotes

[1] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”).

[2] U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”).

[3] U.S. Const. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”) (emphasis added).

[4] U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”).

[5] U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).

[6] U.S. Const. amend. XIV (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

 

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”).

[7] See Encyclopedia Britannica, Constitution of the United States of America (Student and Home Edition 2009).

[8] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”).

[9] U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”).

[10] U.S. Const. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”) (emphasis added).

[11] U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”).

[12] See Edward C. Liu, Congressional Research Serv., The State Secrets Privilege: Limits on Litigation Involving Classified Information (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/R40603_5-28-2009.pdf (“The use of secret evidence at trial also implicates constitutional concerns. As described above, there may be instances where disclosure of classified information to the defendant would be damaging to the national security. In these instances, the prosecution may seek to present evidence at trial in a manner that does not result in disclosure to the defendant. One proposed scenario might be the physical exclusion of the defendant from those portions of the trial, while allowing the defendant’s counsel to remain present. [See Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 168 (D.D.C. 2004) (describing potential procedures under military commissions established by Presidential order)] However, such proceedings could be viewed as unconstitutionally infringing upon the defendant’s Sixth Amendment right to confrontation.[ See Hamdan v. Rumsfeld, 548 U.S. 557, 634 (2006) (Stevens, J., plurality opinion) (stating that “an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him”)] Historically, defendants have had the right to be present during the presentation of evidence against them, and to participate in their defense. [See, e.g., id.; Crawford, 541 U.S. at 49, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“It is a rule of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine”) (internal citations omitted)] But other courts have approved of procedures which do not go so far as to require the defendant’s physical presence. In United States v. Abu Ali, the Fourth Circuit permitted video conferences to allow the defendant to observe, and be observed by, witnesses who were being deposed in Riyadh, Saudi Arabia. [United States v. Abu Ali, 528 F.3d 210, 239-240 (4th Cir. 2008)(quoting Maryland v. Craig, 497 U.S. 836, 850 (1990)). In this case the defendant, while located in the Federal courthouse in Alexandria, Va., was able to communicate with his counsel in Riyadh via telephone during breaks in the deposition or upon the request of defense counsel] The Fourth Circuit stated that these procedures satisfied the Confrontation Clause if “the denial of ‘face-to-face confrontation’ [was] ‘necessary to further an important public policy,’” and sufficient procedural protections were in place to assure the reliability of the testimony. [Id. at 241-242 (citing Maryland v. Craig, 497 U.S. 836 (1990), in which one-way video testimony procedures were used in a prosecution for alleged child abuse)] Here, the Fourth Circuit cited the protection of national security as satisfying the “important public policy” requirement. The cited procedural safeguards were the ability of the defendant and witness to mutually observe the other, the fact that testimony was given under oath in the Saudi criminal justice system, and the ability of defense counsel to cross examine the witnesses. [Id. See, also, United States v. Bell, 464 F.2d 667 (2nd Cir. 1972) (holding that exclusion of the public and the defendant from proceedings in which testimony regarding a “hijacker profile” was presented was consistent with the Confrontation Clause)] Arguments alleging that protective orders violate the Confrontation Clause because they do not allow the participation of the defendant may also be undercut in the classified information context because, in some cases, the excluded defendant is not believed to have knowledge of the information being presented. Therefore, his ability to provide his counsel with rebuttal information for cross examination purposes may be reduced. CIPA does not have any provisions which authorize the exclusion of defendants from any portion of trial based upon national security considerations. But, CIPA § 3 may authorize courts to issue protective orders preventing disclosure of classified information to the defendant by defense counsel.[ See Brian Z. Tamanaha, A Critical Review of The Classified Information Procedures Act, 13 AM. J. CRIM. L. 277, 290, n.64, n.65 (1986).]”).

[13] United States v. Marzook, 412 F. Supp. 2d 913 (ND IL 2006).

[14] United States v. Marzook, 412 F. Supp. 2d 913, 923-924 (ND IL 2006) (“Allowing the ISA agents to testify using pseudonyms does not deprive Defendant of his Sixth Amendment right to confront these witnesses. The Sixth Amendment's Confrontation Clause guarantees a criminal defendant the right "to be confronted with the witnesses against him." United States v. McGee, 408 F.3d 966, 974 (7th Cir. 2005), quoting U.S. CONST., amend. VI. "The clause protects the criminal defendant's right physically to face those who testify against him, and the right to conduct cross-examination." Id. (quotation and citation omitted). Defendant will be able to physically face each of the ISA witnesses and to cross examine them. Although he will not know their true identities, they will identify themselves by their pseudonyms that they use in connection with their work. Defendant has admitted that he never knew these individuals by their true identities, but only by the pseudonyms that they will use in court. (R. 406, p. 41.) Defendant remains free to cross examine these witnesses on the basis of their direct testimony or any other proper basis. See Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986) (courts can "impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant."). The use of pseudonyms is also appropriate for the security of these witnesses. See United States v. Watson, 599 F.2d 1149, 1157 (2d Cir. 1979) (finding no Confrontation Clause violation: "given the seriousness of the threat and the extensiveness of the cross-examination that the court did permit, we believe that the judge acted within his discretion in limiting the scope of cross-examination so as to permit [witness who was in the Federal Witness Protection Program] to maintain his concealed identity"); United States v. Abu Ali, 395 F.Supp.2d 338, 344 (E.D. Va. 2005) (on motion to suppress, court considered testimony from witnesses who, for security reasons, used pseudonyms).").

[15] United States v. Marzook, 412 F. Supp. 2d 913, 927-928 (ND IL 2006) (“The government seeks permission to have the ISA agents testify in light disguise for ‘the protection of their identity, both for their ability to continue covert work as well as their safety and the safety of their families.’ (R. 367-1, p. 21.) Defendant opposes this measure. The appearance of these agents presents legitimate security issues. See id. Although light disguise would be appropriate in some circumstances, see, e.g., United States v. Dumeisi, 2003 U.S. Dist. LEXIS 20960, No. 03 CR 664, R. 367-1, Ex. C), it is not necessary here where the courtroom will be closed to the public. The government contends that Defendant Salah and others in the courtroom will be able to publicly identify these agents if they do not wear light disguise. These are the same agents that previously questioned Defendant Salah. The government has not submitted any evidence or argument that these agents were in disguise at the time of such questioning, thus Salah presumably has already physically seen them at length. The only other individuals in the courtroom will be defense attorneys, court personnel who have security clearances, and federal agents. Without any evidence of why the extra precaution of light disguise is necessary in a closed courtroom, the Court denies the government's request without prejudice. The Court orders that no one present in the courtroom can disclose or describe the physical identity of these ISA agents.”).

[16] United States v. Marzook, 412 F. Supp. 2d 913, 928 (ND IL 2006) ("The Court orders that no one present in the courtroom can disclose or describe the physical identity of these ISA agents.").

[17] U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).

[18] U.S. Const. amend. XIV (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

 

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”).

[19] While there is no Equal Protection Clause in the Fifth Amendment to the U.S. Constitution, the Supreme Court has held the Equal Protection Clause of the Fourteenth Amendment to be reverse incorporated, via the Fifth Amendment’s Due Process Clause, to apply equal protection requirements to the federal government. See Bolling v. Sharpe, 347 U.S. 497 (1954); see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Claims regarding possible denial of equal protection by local or state police would be assessed under the Fourteenth Amendment’s Equal Protection Clause.

[20] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”).

[21] U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”).

[22] U.S. Const. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”) (emphasis added).

 


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