wording paper work - list group

8/22/2019 Wording Paper Work - List Group

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Proposed Wording List Group

Resolved: the United States federal government should increase statutory restrictions

on the [Commander in Chief / presidential war powers] of the President of the United

States to: utilize targeted killing attacks launched from unmanned aircraft systems;

conduct offensive cyber operations; engage in warrantless domestic electronic

surveillance; conduct covert operations; or detain enemy combatants.

Alternate wordings (*that present issues for potential discussion):


on one or more of the following [Commander in Chief / presidential war powers] of

the President of the United States: targeted killing attacks launched from unmanned

aircraft systems; offensive cyber operations; warrantless domestic electronic

surveillance; covert operations; or detention of enemy combatants.



States to: utilize targeted killing attacks launched from unmanned aircraft systems;

conduct offensive cyber operations; engage in warrantless domestic electronic

surveillance; conduct covert operations; detain enemy combatants; or introduce

United States Armed Forces into hostilities.



States to: utilize targeted killing attacks launched from unmanned aircraft systems;conduct offensive cyber operations; conduct covert operations; or introduce United

States Armed Forces into hostilities.


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List Group - Goals

This analysis is designed to supplement the original controversy paper in terms ofwording choices for a list-oriented resolution(s).

As the original topic paper suggests, on pages 91-92

Given our research, we suggest inclusion of the following war powers:

designate and detain enemy combatants;

conduct covert military operations; extraterritorial

use domestic wiretapping;

deploy military force without congressional approval (e.g., UAVs, Offensive Cyber Operations,

*Support for United Nations or NATO operations,

*Preventive or Preemptive unilateral action)

However, we want to be clear that not all of these powers must be included and these do not have

to be the only presidential war powers that can be included.There are many other issues such as

authorization to use nuclear weapons, regulation of military personal, operation of military courts and

other matters that could be debated and are discussed within the literature. We selected these areas

listed above because they appear to be the most recently and frequently debated issues in the literature

base.

The proposed resolution discusses several of the above areas deemed most viable for

debate on this topic. It excludes support for United Nations or NATO operations and

preventive or preemptive unilateral operations from the original paper in favor ofmore developed debate in the other areas.

We also noted that controversy paper authors indicated a desire for a list of specific

powers in the resolution. Some original phrases in the controversy paper were

perhaps too loose or broad and this analysis attempts to tighten up wording to allow

quality areas for debate, while restricting areas we might not want to debate such as

deploy weapons to X country.

Kelly Young on the CEDA Forum

(http://www.cedadebate.org/forum/index.php?topic=4800.msg10633#msg10633):

Your concern is a valid one that we considered as we drafted the paper. We think the conventional or

non-nuclear issues are rather robust without bringing in all of the nuclear weapon authority issues. For

this reason, we think a list of specific powers would be the best option.Our List/Limited and

Passive/Limited options on page 92 of the paper attempt to specify to exclude areas like nuclear

authority. Unfortunately with these wording, our intent does not match well with our product. The

Deploy military forces without congressional approval likely allows for no first use and deploy


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weapons to X country. I don't think it allows some of the other examples, but I can't say with certainty.

As I admitted in the controversy paper, the "deploy military forces without congressional approval" is

very loose and needs to be tightened up substantially with wording papers to cover UAVs, OSOs, and

other areas without allowing everything in. I'm not very good at specific wording, so this wording was

convenient because it captured several areas we highlight in the paper, but admittedly isn't very

restrictive. Something like conventional military forces or non-nuclear military forces might resolve

the concern rather easily. On the other hand, the broad wording options would allow these affirmatives,

unless conventional or non-nuclear is added before Commander-in-Chief/presidential war powers.

That seems more awkward in wording to me, so I would opt for the lists above.

Rather than reconsidering issues vetted by the controversy paper, like what

arguments are likely under each area, this paper focuses on what wording the

committee might like to consider to allow debate in the areas discussed in the

controversy area.


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Unmanned Aircraft Systems / Drones

To address the portion of the controversy paper that covers the debate about drones,

this paper advocates use of the phrase utilize targeted killing attacks launched fromunmanned aircraft systems.

Unmanned Aircraft Systems seems like the best phrase to use in place of drones.

Government agencies appear to have adopted this as a formal way to refer to drone

use because it includes the vehicle plus the ground stations and other elements used

in such missions.

Officially, with government agencies, such as the FAA, Unmanned Aircraft System (or

UAS) is used because is reflects that the systems include ground stations and other

elements besides the vehicle itself.http://www.theuav.com/

The UAV is an acronym for Unmanned Aerial Vehicle, which is an aircraft with no pilot on board. UAVs

can be remote controlled aircraft (e.g. flown by a pilot at a ground control station) or can fly

autonomously based on pre-programmed flight plans or more complex dynamic automation systems.

UAVs are currently used for a number of missions, including reconnaissance and attack roles. For the

purposes of this article, and to distinguish UAVs from missiles, a UAV is defined as being capable of

controlled, sustained level flight and powered by a jet or reciprocating engine. In addition, a cruise

missile can be considered to be a UAV, but is treated separately on the basis that the vehicle is the

weapon. The acronym UAV has been expanded in some cases to UAVS (Unmanned Aircraft Vehicle

System). The FAA has adopted the acronym UAS (Unmanned Aircraft System) to reflect the fact that

these complex systems include ground stations and other elements besides the actual air vehicles.Officially, the term 'Unmanned Aerial Vehicle' was changed to 'Unmanned Aircraft System' to reflect

the fact that these complex systems include ground stations and other elements besides the actual air

vehicles. The term UAS, however, is not widely used as the term UAV has become part of the modern

lexicon.

The military role of UAV is growing at unprecedented rates. In 2005, tactical and theater level

unmanned aircraft (UA) alone, had flown over 100,000 flight hours in support of Operation ENDURING

FREEDOM (OEF) and Operation IRAQI FREEDOM (OIF). Rapid advances in technology are enabling more

and more capability to be placed on smaller airframes which is spurring a large increase in the number

of SUAS being deployed on the battlefield. The use of SUAS in combat is so new that no formal DoD wide

reporting procedures have been established to track SUAS flight hours. As the capabilities grow for all

types of UAV, nations continue to subsidize their research and development leading to further advances

enabling them to perform a multitude of missions. UAV no longer only perform intelligence,

surveillance, and reconnaissance (ISR) missions, although this still remains their predominant type. Their

roles have expanded to areas including electronic attack (EA), strike missions, suppression and/or

destruction of enemy air defense (SEAD/DEAD), network node or communications relay, combat search

and rescue (CSAR), and derivations of these themes. These UAV range in cost from a few thousand

dollars to tens of millions of dollars, and the aircraft used in these systems range in size from a Micro Air

Vehicle (MAV) weighing less than one pound to large aircraft weighing over 40,000 pounds. UAV Types

Target and decoy - providing ground and aerial gunnery a target that simulates an enemy aircraft or
http://www.theuav.com/http://www.theuav.com/


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missile Reconnaissance - providing battlefield intelligence Combat - providing attack capability for high-

risk missions (see Unmanned Combat Air Vehicle) Research and development - used to further develop

UAV technologies to be integrated into field deployed UAV aircraft Civil and Commercial UAVs - UAVs

specifically designed for civil and commercial applications.

UAS recognizes aircraft, components, and personnel required.Bart W. Darnell December 2011 NAVAL POSTGRADUATE SCHOOL MONTEREY, CALIFORNIAUNMANNED AIRCRAFT SYSTEMS: A LOGICAL CHOICE FOR HOMELAND SECURITY SUPPORT

http://www.nps.edu/Academics/Centers/CRUSER/docs/research_completed/Final_Thesis_Darnell.pdf

The nomenclature that describes unmanned aircraft is diverse and has evolved with time. Some of

the most common names associated with them include: balloons, drone, unmanned aerial vehicle

(UAV), and remotely piloted vehicle (RPV).28 Other terms used to describe them include remotely

operated aircraft (ROA) and remotely piloted aircraft (RPA). The DoD recognizes most of these terms

and captures them in Joint Publication 1-02, Department of Defense Dictionary of Military and

Associated Terms. No matter what their nomenclature, each term portrays a common lineage that

an unmanned aircraft is an aircraft operated without the possibility or direct human intervention

from within or on the aircraft.29 Unmanned aircraft have diverse shapes, sizes, uses, and means of

control. They range in size from small radio-controlled model airplanes with wingspans as small as six

inches to large jet aircraft with wingspans reaching 117 feet (similar to a Boeing 737 aircraft). Some are

controlled manually via a ground control system, while others may be controlled autonomously

through use of an on-board computer, communication links and any additional equipment required

for safe flight. To account for the diversity in unmanned aircraft, the FAA has adopted the term

unmanned aircraft system (or UAS), which appears to be a more common lexicon among aviation

enthusiasts today. This term recognizes that UAS are systems that include not only the airframe, but

other components and personnel required to control them.30 Each of the terms mentioned above

are common nomenclature for UAS and can be found in the various literatures that discuss aviation

and unmanned flight. However, for this thesis I will use the FAAs UAS nomenclature to describe the

vast population of remotely piloted, operated and/or monitored aircraft that are capable of flyingwithin NAS.

This is additional evidence that illustrates that the phrase is used in the literature

about counterterrorism

Unmanned Aircraft Systems/UAS spending driven by focus on counterterrorism

Glennon J. Harrison Specialist in Industry Policy January 30, 2013 Unmanned Aircraft Systems (UAS):Manufacturing Trendshttp://www.fas.org/sgp/crs/natsec/R42938.pdf

Unmanned aircraft systems (UAS) represent a bright spot for the technology-intensive aerospace

manufacturing sector, but military and civil government agencies will likely be the predominant

customers for an extended period while such systems are integrated into the U.S. National AirspaceSystem (national airspace). Airspace access by commercial UAS users is projected to be much slower

than for governmental entities. U.S. export control policies pose an issue for manufacturers that seek

to export UAS. Some UAS are classified as weapons under the International Traffic in Arms Regulations

(ITAR), and require an export license approved by the U.S. State Department. UAS are also covered by

the Missile Technology Control Regime (MTCR), a voluntary arrangement among 34 member countries

to restrict the proliferation of missiles or UAS capable of delivering weapons of mass destruction.

Under MTCR guidelines, export of UAS carries a strong presumption of denial of an export license.
http://www.nps.edu/Academics/Centers/CRUSER/docs/research_completed/Final_Thesis_Darnell.pdfhttp://www.fas.org/sgp/crs/natsec/R42938.pdfhttp://www.fas.org/sgp/crs/natsec/R42938.pdfhttp://www.nps.edu/Academics/Centers/CRUSER/docs/research_completed/Final_Thesis_Darnell.pdf


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The Aerospace Industries Association (AIA) has stated that advances in UAS technologies have resulted

in the development of some systems that are not suited to weapons-ofmass-destruction (WMD)

delivery. The association says the regulations will allow nonmember countries (such as Israel or China)

to sell UAS with advanced capabilities. The U.S. Department of Defense (DOD), the major user of

such systems, has demonstrated the effectiveness of UAS in Iraq and Afghanistan, but continued

development of new systems and capabilities depends on access to the national airspace. UAS

spending has been driven primarily by military needs in Iraq, Afghanistan, and other countries

where terrorist groups were or are active. Numerous forecasts project that U.S. and global UAS

markets will experience strong growth during the next 10 years. A forecast of global UAS demand by

the Teal Group shows worldwide annual spending on research, development, testing, and

evaluation (RDT&E) and procurement rising from $6.6 billion in 2013 to $11.4 billion in 2022. Total

spending for the decade is projected to amount to $89.1 billion.

Predator B is an example of a UAS (as referred to be US Customs and Border Patrol)

US Customs and Border Protection, Jan 2011http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/marine/uas.ctt/uas.pdf

The U.S. Customs and Border Protection (CBP), Office of Air and Marine, or OAM, operates the

highly capable and proven Predator B unmanned aircraft system (UAS) in support of law

enforcement and homeland security missions at the nations borders. OAM selected the Predator B,

manufactured by General Atomics Aeronautical Systems, for its unique combination of operational

capabilities, payload capacity, mission flexibility, potential to accommodate new sensor packages, and

its safety and performance record with other federal agencies.

Drone is also known as unmanned combat air vehicle

Anthony Sodd May 23rd at 9:01 am Bullet Points: What You Need To Know About Drone Warfarehttp://inthecapital.streetwise.co/2013/05/23/what-is-a-uav-drone/

An unmanned combat air vehicle, better known as a drone, is really just an extremely advanced

remote controlled airplane like the ones you see in the park. They come in all shapes and sizes and can

either be used in the field with a handheld remote or directed remotely from the other side of the

globe. Some are used only for reconnaissance, while others are heavily armed terrorist hunting

machines. In the past couple of years the Obama administration has increasingly relied on drone

strike to target enemy combatants abroadwhich is where the debate starts. The recent debate is

actually about two separate things: do we have the right to assassinate foreign civilians abroad, and

more recently at least, can the president kill American citizens abroad without a trial.
http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/marine/uas.ctt/uas.pdfhttp://inthecapital.streetwise.co/2013/05/23/what-is-a-uav-drone/http://inthecapital.streetwise.co/2013/05/23/what-is-a-uav-drone/http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/marine/uas.ctt/uas.pdf


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This paper also argues for the use of the term targeted killing to modify the type of

action President is not able to use drones/UAS for this seems like a useful way to

exclude cases that would place restrictions on the presidents ability to use drones for

wildfires, or other surveillance that dont seem to be at the heart of the controversy

surrounding our counterterrorism efforts. A key issue for debate seems to be the use

of drones in targeted killings, and this phrasing hopes to clarify that.

Targeted killings premeditated acts of lethal force to eliminate specific individuals

outside custody

Author: Jonathan Masters, Deputy Editor CFR Backgrounder Targeted Killings

Updated: May 23, 2013 http://www.cfr.org/counterterrorism/targeted-killings/p9627According to a UN special report on the subject, targeted killings are premeditated acts of lethal force

employed by states in times of peace or during armed conflict to eliminate specific individuals outside

their custody. "Targeted killing" is not a term distinctly defined under international law, but gained

currency in 2000 after Israel made public a policy of targeting alleged terrorists in the Palestinianterritories. The particular act of lethal force, usually undertaken by a nation's intelligence or armed

services, can vary widely--from cruise missiles to drone strikes to special operations raids. The primary

focus of U.S. targeted killings, particularly through drone strikes, has been on the al-Qaeda and Taliban

leadership networks in Afghanistan and the remote tribal regions of Pakistan. However, U.S. operations

have expanded in recent years to include countries such as Somalia and Yemen.

Targeted killing takes place primarily through an increase in unmanned drone strikes

Author: Jonathan Masters, Deputy Editor CFR Backgrounder Targeted Killings

Updated: May 23, 2013 http://www.cfr.org/counterterrorism/targeted-killings/p9627The United States adopted targeted killing as an essential tactic to pursue those responsible for the

terrorist attacks of September 11, 2001. The Pentagon and the Central Intelligence Agency have

employed the controversial practice with more frequency in recent years, both as part of combat

operations in Afghanistan and Iraq, as well as in counterterrorism efforts in Pakistan, Yemen, and

Somalia. Since assuming office in 2009, Barack Obama's administration has escalated targeted killings,

primarily through an increase in unmanned drone strikes on al-Qaeda and the Taliban, but also

through an expansion of U.S. Special Operations kill/capture missions. The successful killing of Osama

bin Laden in a U.S. Navy SEAL raid in May 2011 and the September 2011 drone strike on Anwar al-

Awlaki, an American-born Yemeni cleric and AQAP propagandist, are prime examples of this trend.

Targeted killings using drones have increased under Obama uses the phrase

targeted attacks launched from unmanned aerial vehiclesAuthor: Jonathan Masters, Deputy Editor CFR Backgrounder Targeted Killings

Updated: May 23, 2013 http://www.cfr.org/counterterrorism/targeted-killings/p9627Targeted attacks launched from unmanned aerial vehicles, or drones, have ballooned under the

Obama administration. A study undertaken by the New American Foundation reports that in his first

two years of office, President Obama authorized nearly four times the number of strikes in Pakistan as

President Bush did in his eight years. The report, which relies solely on media accounts of attacks,
http://www.cfr.org/counterterrorism/targeted-killings/p9627http://www.cfr.org/counterterrorism/targeted-killings/p9627http://www.cfr.org/counterterrorism/targeted-killings/p9627http://counterterrorism.newamerica.net/droneshttp://counterterrorism.newamerica.net/droneshttp://www.cfr.org/counterterrorism/targeted-killings/p9627http://www.cfr.org/counterterrorism/targeted-killings/p9627http://www.cfr.org/counterterrorism/targeted-killings/p9627


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claims that some 291 strikes have been launched since 2009, killing somewhere between 1,299 and

2,264 militants, as of January 2013.Alternate reports also document the escalation in drone strikes in

recent years, but the accounting of militant and civilian deaths can vary widely depending on the source.

Another issue to consider in the phrasing was how to introduce the item in the

listthis paper chose utilize, after consideration of alternatives like employ, but

the definitions for each are:

Definition of utilizeto make use ofMerriam Websters Online Dictionary

http://www.merriam-webster.com/dictionary/utilize

Definition of UTILIZE

to make use of : turn to practical use or account


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yesterday, he spent a lot of time criticizing the idea of endless war under the AUMFwhile not

concretely committing himself to ending hostilities. He criticized Guantanamo and indefinite detention,

without promising to release detainees who pose a serious threat yet cannot face trial. One of the more

blatant of these areas is Obamas comments about the idea of additional review mechanisms for drone

strikes: Going forward, I have asked my Administration to review proposals to extend oversight of lethal

actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory,

but poses difficulties in practice. For example, the establishment of a special court to evaluate and

authorize lethal action has the benefit of bringing a third branch of government into the process, but

raises serious constitutional issues about presidential and judicial authority. Another idea thats been

suggestedthe establishment of an independent oversight board in the executive branchavoids those

problems, but may introduce a layer of bureaucracy into national-security decision-making, without

inspiring additional public confidence in the process. Despite these challenges, I look forward to actively

engaging Congress to explore theseand otheroptions for increased oversight. Notice here what

the president is not promising. He is not promising to support a drone court. He is not promising to

support proposals like Neal Katyals or Jen Daskals for an enhanced, court-like internal executive

review mechanism. He is only promising to have his administration review *such+ proposals and

saying that he will actively engag*ing+ with Congress to explore such ideas. Nobody can possibly

object to this, and I certainly dont, but it is notable that the president nowhere hints what sort ofoutcome he expects from his engagement. This is a way of signaling respect for the ideasand the

underlying idea that he needs to be on the side of increased oversightwithout actually committing

his administration to doing anything concrete.

There remains an urgent need for Congressional action beyond Obamas recent

rhetoric

Andrew Sullivan, Obamas War On Terror Speech: Reax II MAY 24 2013 @ 12:29PMhttp://dish.andrewsullivan.com/2013/05/24/obamas-war-on-terror-speech-reax-ii/

Freddie deBoer wants more than words:

We have lived with this war on terror for a third of my life. And liberals: speeches do not walk the doganymore. The time for flowery speeches is over. Its time for action. Saying were going to end the

AUMF eventually is not enough. Talking about closing Guantanamo is not enough. It has to actually

happen. Like Anthony Romero of the ACLU says, actions are more important than words. If Obama

actually closes Guantanamo, I promise I will applaud. If Obama actually reduces or ends the drone

campaign, I will celebrate. But those specific policies will only be valuable if they are part of a broad

attempt to end the hostilities between the United States and the Muslim world. Given that every

Muslim terrorist who announces their motives says that they are based on our incursions into the

Muslim world, that can only happen if we withdraw. Yes and yes. My support yesterday for the

arguments of the speech is, of course, contingent on actual progress. Friedersdorf is in the same

ballpark: All things considered, Thursdays developments were an improvement on the status quo.

Obama constrained himself rhetorically in ways he hadnt before, expressed agreement with core civillibertarian critiques, and signalled that future policy will shift in that direction as a result. But talk is

cheap, Obama has a history of breaking promises to civil libertarians, and drone strikes remain

surrounded in enough secrecy that it will remain difficult to verify whats going on. Moreover, policies

implemented at the presidents prerogative can be changed on his determination too. There remains an

urgent need for Congress to step into the breach and constrain the president, even if only in the ways

that Obama says that he has constrained himself.


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Offensive Cyberspace Operations

This paper argues for use of the phrase conduct offensive cyber operations in a list

topic.

This phrase seems to account for the controversy and is directly addressed in Section

954 of the NDAA.

Robert Chesney Wednesday, December 14, 2011 at 10:17 PM Offensive Cyberspace Operations, theNDAA, and the Title 10-Title 50 Debate

Back in May, I noted that the House version of the NDAA contained a very interesting section

addressing military activities in cyberspace.Section 962 of that bill would have affirmed that DOD

may conduct military activities in cyberspace (including clandestine operations at least when acting in

support of military activity under the 9/18/01 AUMF and the target is outside the United States, or

when the activity is responsive to an attack on DOD assets). I wrote at the time that this seemedresponsive, albeit in a fuzzy way, to the so-called Title 10-Title 50 debate and thus had implications for

the various issues that debate entails (I write about these issues in much more detail here; they include

questions such as what counts as covert action subject to finding and notification requirements, what

counts as traditional military activity that is exempt from the covert action definition even though

the US role is not intended to be acknowledged, and whether the applicable substantive legal

constraints differ depending on whether one is acting under the Title 10 or the Title 50 heading). The

Senate, for its part, ultimately included nothing comparable in its NDAA bill, and so the discrepancy had

to be addressed during the recently-concluded conference. The end result is section 954 of the

Conference version of the NDAA. The new language is brief, yet very interesting: SEC. 954. MILITARY

ACTIVITIES IN CYBERSPACE. Congress affirms that the Department of Defense has the capability, and

upon direction by the President may conduct offensive operations in cyberspace to defend our

Nation, Allies and interests, subject to (1) the policy principles and legal regimes that the Department

follows for kinetic capabilities, including the law of armed conflict; and (2) the War Powers Resolution

(50 U.S.C. 1541 et seq.). Sowhat does this accomplish?First Ill discuss the issues impacted by the text

itself. Second, Ill discuss some important issues directly addressed only (or at least only clearly) in the

explanatory statement promulgated by the Conference Committee in connection with this section. I.

The Text of Section 954 Based on the text alone, there are three components to this provision: An

affirmation of authority, a requirement of presidential authorization somewhat akin to the covert action

requirement of a presidential finding, and a limited clarification of how such operations relate to various

other bodies of law. A. Affirmation of Authority to Conduct OCOs First, section 954 makes clear that

DOD can conduct offensive cyberspace operations (OCOs) under certain conditions, defined very, very

loosely as the defense of the nation, of allies, and of our interests.Thats not much of a limitation, of

course; the reference to interests would seem to encompass just about any scenario in which one mightlike to be able to conduct an offensive operation. And I suppose some might look at this language and

draw the conclusion that section 954 is some kind of free-standing cyber-AUMF, usable at presidential

discretion. But I really do not think this is what the affirmation language means to signify. On the

contrary, with respect to separation of war powers I think the whole section is premised on the notion

that there already is some separate underlying legal foundation for the action, such as the 9/18/01

AUMF in the case of an OCO directed at an al Qaeda website or Article II national self-defense for fact

patterns that might fall under that heading. Put another way, I dont think the purpose of section 954 is


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to grant new authority, but rather to clarify a variety of procedural and substantive questions OCOs

raise. So on to the first such issue, which concerns the decision-making process.

In addition, the phrasing retains the focus on offensive cyber operations as seems to

be the crux of the controversy in this area.

ROSEMARY M. CARTER, BRENT FEICK, and ROY C. UNDERSANDER July 2012 Offensive Cyber forthe Joint Force Commander: It's Not That Different JFQ JFQ-66 OFFENSIVE CYBER FOR THE JOINT

FORCE COMMANDER http://www.ndu.edu/press/offensive-cyber.html

The cyber domain consists of four operating areas: providing capability, protecting that capacity,

exploiting within the domain, and conducting offensive operations that are also referred to as

computer network attack. The areas of provide and protect are the most mature because our day -to-

day information technology operations require a secure and functioning cyber domain. This article

focuses instead on offensive cyber capability, which is the newest segment of the domain but is

rapidly maturing. Unlike airpower, where development was limited to nations with significant industrialand financial resources, the cyber warfare arena is inexpensive and characterized by state and nonstateactors limited only by creativity and the Internet. Therefore, to maintain strategic capability for cybersuperiority,4 the cyber domain must be rapidly synchronized with the other warfighting domains. A fullunderstanding of the features, capabilities, limitations, and impacts of the cyber domain may be yearsaway, but actionable knowledge of this domain at the operational level will not be achieved as long ascyber operations remain segregated from the other warfare mission areas
http://www.ndu.edu/press/offensive-cyber.htmlhttp://www.ndu.edu/press/offensive-cyber.html


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Warrantless Electronic Surveillance

The phrase engage in warrantless domestic electronic surveillance seems to bestaccount for this portion of the controversy paper.

The controversy paper itself used the phrase use domestic wiretapping. This paper

presents a couple of changes to that original phrase in hopes of more accurately

framing this portion of the controversy. First, it seems that the potential extension of

presidential authority goes beyond just wiretapping, but extends into other important

areas and cases such as disputes about use of GPS technology for tracking, etc. The

Patriot Act, for example, allows for a number of surveillance options to fight

terrorism. This wording allows for all forms of surveillance wiretapping, internet

taps, GPS surveillance, etc to all be considered in the topic. Also, this wording paperclarifies that the electronic surveillance at issue is the warrantless type of surveillance.

These authors used the terminology above in their discussion of warrantless electronic

surveillance.

Elizabeth B. Bazan and Jennifer K. Elsea Legislative Attorneys American Law Division Memorandum

January 5, 2006 SUBJECT: Presidential Authority to Conduct Warrantless Electronic Surveillance toGather Foreign Intelligence Information http://www.fas.org/sgp/crs/intel/m010506.pdf

Recent media revelations that the President authorized the National Security Agency (NSA) to collect

signals intelligence from communications involving U.S. persons within 1 the United States, without

obtaining a warrant or court order, raise numerous questions regarding the Presidents authority toorder warrantless electronic surveillance. Little information is currently known about the full extent of

the NSA domestic surveillance, which was revealed by the New York Times in December, 2005, but

allegedly began after the President issued a secret order in 2002. Attorney General Alberto Gonzales

laid out some of its parameters, telling reporters that it involves intercepts of contents of

communications where one . . . party to the communication is outside the United States and the

government has a reasonable basis to conclude that one party to the communication is a member of

al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working

in support of al Qaeda. The aim of the program, according to Principal Deputy 3 Director for National

Intelligence General Michael Hayden, is not to collect reams of intelligence, but to detect and warn

and prevent *terrorist+ attacks.4 The President has stated that he believes his order to be fully

supported by the Constitution and the laws of the United States, and the Attorney General clarified that

the 5 Administration bases its authority both on inherent presidential powers and the joint

resolution authorizing the use of all necessary and appropriate force to engage militarily those

responsible for the terrorist attacks of September 11, 2001 (AUMF). Although the resolution does

not expresslyspecifywhat it authorizes as necessary and appropriate force, the Administration

discerns the intent of Congress to provide the statutory authority necessary take virtually any action

reasonably calculated to prevent a terrorist attack, including by overriding at least some statutory

prohibitions that contain exceptions for conduct that is otherwise authorized by statute.

Specifically, the Administration asserts that a part of the Foreign Intelligence Surveillance Act (FISA)
http://www.fas.org/sgp/crs/intel/m010506.pdfhttp://www.fas.org/sgp/crs/intel/m010506.pdf


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that punishes those who conduct 7 electronic surveillanceunder color of law except as authorized

by statute does not bar the 8 NSA surveillance at issue because the AUMF is just such a statute. On

December 22, 2005, 9 the Department of Justice Office of Legislative Affairs released a letter to certain

members of the House and Senate intelligence committees setting forth in somewhat greater detail

the Administrations position with regard to the legal authority supporting the NSA activities described

by the President.10 The Administrations views have been the subject of debate. Critics challenge the

notion that federal statutes regarding government eavesdropping may be bypassed by executive order,

or that such laws were implicitly superceded by Congresss authorization to use military force. Others,

however, have expressed the view that established wiretap procedures are too cumbersome and slow

to beeffective in the war against terrorism, and that the threat of terrorism justifies

extraordinarymeasures the President deems appropriate, and some agree that Congress authorized the

measures when it authorized the use of military force.

This is a contextual use of the phrase engage in warrantless electronic surveillance

Mitra Ebadolahi is the inaugural Nadine Strossen Fellow with the American Civil Liberties UnionsNational Security Project. Warrantless Wiretapping Under the FISA Amendments Act

Vol. 39 No. 3 2013http://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39/may_2013_n2

_privacy/warrantless_wiretapping_fisa.html

To understand the scope and implications of the FISA Amendments Act, a little bit of history is useful .

In 1975, Congress established a committee, chaired by Senator Frank Church, to investigate allegations

of substantial wrongdoing by federal intelligence agencies. The Church Committee discovered that,

over the course of four decades, these intelligence agencies had violated specific statutory

prohibitions, infringed the constitutional rights of American citizens, and intentionally disregarded

legal limitations on surveillance in the name of national security. Attributing these systematic

constitutional violations to a failure in the system of checks and balances, the committee recommended

that all surveillance of communications to, from, or about an American without his consent be subject

to a judicial warrant procedure. Congress subsequently enacted the Foreign Intelligence Surveillance Act(FISA) of 1978, creating a secret FISA Court to grant or deny government applications for surveillance

orders in foreign intelligence investigations. See 50 U.S.C. 1803(a). FISA generally foreclosed the

government from engaging in electronic surveillance without first obtaining an individualized and

particularized warrant. The FISA Court could issue such a warrant only if it found, among other things,

that there was probable cause to believe that the target of the electronic surveillance *was+ a foreign

power or an agent of a foreign power, id. 1805(a)(2)(A), and that each of the facilities or places at

which the electronic surveillance [was] directed [was] being used, or [was] about to be used, by a

foreign power or an agent of a foreign power, id. 1805(a)(2)(B).

After September 11, President Bush secretly authorized the National Security Agency (NSA) to ignore

FISA and to engage in warrantless electronic surveillance inside the United States without seeking

surveillance orders from the FISA Court. When the program became public, the Bush administrationpressured Congress to amend FISA. The FISA Amendments Act is the result.

This article also uses the phrase warrantless electronic surveillance to include

internet based communication beyond the telephone.

Huffington Post, 2012 Warrantless Electronic Surveillance Surges Under Obama Justice Department
http://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39/may_2013_n2_privacy/warrantless_wiretapping_fisa.htmlhttp://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39/may_2013_n2_privacy/warrantless_wiretapping_fisa.htmlhttp://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39/may_2013_n2_privacy/warrantless_wiretapping_fisa.htmlhttp://www.americanbar.org/publications/human_rights_magazine_home/2013_vol_39/may_2013_n2_privacy/warrantless_wiretapping_fisa.html


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Posted: 09/28/2012 9:52 pm Updated: 09/29/2012 1:02 pm

http://www.huffingtonpost.com/2012/09/28/warrantless-electronic-surveillance-

obama_n_1924508.html

NEW YORK -- The Obama administration has overseen a sharp increase in the number of people

subjected to warrantless electronic surveillance of their telephone, email and Facebook accounts by

federal law enforcement agencies, new documents released by the American Civil Liberties Union on

Friday revealed. The documents, released by the ACLU after a months-long legal battle with the

Department of Justice, show that in the last two years, more people were spied on by the government

than in the preceding decade. The documents do not include information on most terrorism

investigations and requests from state and local law enforcers. Nor do they include surveillance by

federal agencies outside Justice Department purview, like the Secret Service. Department of Justice

agencies obtained 37,616 court orders for information about phone calls in 2011, according to the

documents. That's an increase of 47 percent from the 25,535 orders obtained by the government in

2009. Including Internet and email information requests, more than 40,000 people were targeted in

2011.
http://www.huffingtonpost.com/2012/09/28/warrantless-electronic-surveillance-obama_n_1924508.htmlhttp://www.huffingtonpost.com/2012/09/28/warrantless-electronic-surveillance-obama_n_1924508.htmlhttp://www.huffingtonpost.com/2012/09/28/warrantless-electronic-surveillance-obama_n_1924508.htmlhttp://www.huffingtonpost.com/2012/09/28/warrantless-electronic-surveillance-obama_n_1924508.html


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Covert Action

This paper supports use of the phrase conduct covert operations in a list topic.The controversy paper suggests a viable area for debate with regard to CIA and covert

operations through the DOD. The controversy paper uses the phrase conduct covert

military operations in the sample wording section.

It is potentially worth consideration that there seems to be a distinction in some

literature with regard to CIA covert action, and covert military operations through the

DOD. It seems that use of the phrase covert military operations could restrict the

viability of cases that involve the CIA. This is why this wording paper argues for just

the phrase conduct covert operations to ensure the inclusion of both types ofcases, but it is just worth considering what the heart of the issue the community

would like to debate in this area is and if it might be achieved with the alternate

phrasing of covert military operations.

The distinction is discussed as Title 50 and Title 10 authority:

Robert Chesney University of Texas School-Charles Francis Professor in Law The University of TexasSchool of Law Public Law and Legal Theory Research Paper Series Number 212 Military Intelligence

Convergence and the Law of the Title 10/Title 50 Debate http://ssrn.com/link/texas-public-law.html 1-

31-2012Note2 Title 50 is a section of the US Code addressing a range of security topics, including the standingauthorities of the CIA. Title 10, in contrast, is a section of the Code devoted exclusively to the armed

forces. Reflecting this distinction, the argot of national security lawyers uses Title 50 authority and

Title 10 authority as shorthands for the notion that there are distinct spheres of intelligence and

military operations and that each is subject to a distinct set of standing statutory authorizations and

constraints.

Title 50 is the section of US Code that authorizes the activities of the CIA and defines

covert operations.http://www.law.cornell.edu/uscode/text/50/413b

50 USC 413b - Presidential approval and reporting of covert actions

Current through Pub. L. 113-99. (See Public Laws for the current Congress.)

(a) Presidential findings

The President may not authorize the conduct of a covert action by departments, agencies, or entities of

the United States Government unless the President determines such an action is necessary to support

identifiable foreign policy objectives of the United States and is important to the national security of the

United States, which determination shall be set forth in a finding that shall meet each of the following

conditions:
http://ssrn.com/link/texas-public-law.htmlhttp://www.law.cornell.edu/uscode/text/50/413bhttp://www.law.cornell.edu/uscode/text/50/413bhttp://ssrn.com/link/texas-public-law.html


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(1) Each finding shall be in writing, unless immediate action by the United States is required and time

does not permit the preparation of a written finding, in which case a written record of the Presidents

decision shall be contemporaneously made and shall be reduced to a written finding as soon as possible

but in no event more than 48 hours after the decision is made.

(2) Except as permitted by paragraph (1), a finding may not authorize or sanction a covert action, or any

aspect of any such action, which already has occurred.

(3) Each finding shall specify each department, agency, or entity of the United States Government

authorized to fund or otherwise participate in any significant way in such action. Any employee,

contractor, or contract agent of a department, agency, or entity of the United States Government other

than the Central Intelligence Agency directed to participate in any way in a covert action shall be subject

either to the policies and regulations of the Central Intelligence Agency, or to written policies or

regulations adopted by such department, agency, or entity, to govern such participation.

(4) Each finding shall specify whether it is contemplated that any third party which is not an element of,

or a contractor or contract agent of, the United States Government, or is not otherwise subject to

United States Government policies and regulations, will be used to fund or otherwise participate in any

significant way in the covert action concerned, or be used to undertake the covert action concerned on

behalf of the United States.

(5) A finding may not authorize any action that would violate the Constitution or any statute of theUnited States.

(b) Reports to congressional intelligence committees; production of information

To the extent consistent with due regard for the protection from unauthorized disclosure of classified

information relating to sensitive intelligence sources and methods or other exceptionally sensitive

matters, the Director of National Intelligence and the heads of all departments, agencies, and entities of

the United States Government involved in a covert action

(1) shall keep the congressional intelligence committees fully and currently informed of all covert actions

which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department,

agency, or entity of the United States Government, including significant failures; and

(2) shall furnish to the congressional intelligence committees any information or material concerning

covert actions (including the legal basis under which the covert action is being or was conducted) whichis in the possession, custody, or control of any department, agency, or entity of the United States

Government and which is requested by either of the congressional intelligence committees in order to

carry out its authorized responsibilities.

(c) Timing of reports; access to finding

(1) The President shall ensure that any finding approved pursuant to subsection (a) of this section shall

be reported in writing to the congressional intelligence committees as soon as possible after such

approval and before the initiation of the covert action authorized by the finding, except as otherwise

provided in paragraph (2) and paragraph (3).

(2) If the President determines that it is essential to limit access to the finding to meet extraordinary

circumstances affecting vital interests of the United States, the finding may be reported to the chairmen

and ranking minority members of the congressional intelligence committees, the Speaker and minority

leader of the House of Representatives, the majority and minority leaders of the Senate, and such other

member or members of the congressional leadership as may be included by the President.

(3) Whenever a finding is not reported pursuant to paragraph (1) or (2) of this section, [1] the President

shall fully inform the congressional intelligence committees in a timely fashion and shall provide a

statement of the reasons for not giving prior notice.

(4) In a case under paragraph (1), (2), or (3), a copy of the finding, signed by the President, shall be

provided to the chairman of each congressional intelligence committee.

(5)


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(A) When access to a finding, or a notification provided under subsection (d)(1), is limited to the

Members of Congress specified in paragraph (2), a written statement of the reasons for limiting such

access shall also be provided.

(B) Not later than 180 days after a statement of reasons is submitted in accordance with subparagraph

(A) or this subparagraph, the President shall ensure that

(i) all members of the congressional intelligence committees are provided access to the finding or

notification; or

(ii) a statement of reasons that it is essential to continue to limit access to such finding or such

notification to meet extraordinary circumstances affecting vital interests of the United States is

submitted to the Members of Congress specified in paragraph (2).

(d) Changes in previously approved actions

(1) The President shall ensure that the congressional intelligence committees, or, if applicable, the

Members of Congress specified in subsection (c)(2) of this section, are notified in writing of any

significant change in a previously approved covert action, or any significant undertaking pursuant to a

previously approved finding, in the same manner as findings are reported pursuant to subsection (c) of

this section.

(2) In determining whether an activity constitutes a significant undertaking for purposes of paragraph

(1), the President shall consider whether the activity(A) involves significant risk of loss of life;

(B) requires an expansion of existing authorities, including authorities relating to research, development,

or operations;

(C) results in the expenditure of significant funds or other resources;

(D) requires notification under section 414 of this title;

(E) gives rise to a significant risk of disclosing intelligence sources or methods; or

(F) presents a reasonably foreseeable risk of serious damage to the diplomatic relations of the United

States if such activity were disclosed without authorization.

(e) Covert action defined

As used in this subchapter, the term covert action means an activity or activities of the United

States Government to influence political, economic, or military conditions abroad, where it isintended that the role of the United States Government will not be apparent or acknowledged

publicly, but does not include

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence

activities, traditional activities to improve or maintain the operational security of United States

Government programs, or administrative activities;

(2) traditional diplomatic or military activities or routine support to such activities;

(3) traditional law enforcement activities conducted by United States Government law enforcement

agencies or routine support to such activities; or

(4) activities to provide routine support to the overt activities (other than activities described in

paragraph (1), (2), or (3)) of other United States Government agencies abroad.


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Detain Enemy Combatants

Finally, this paper argues that, in a list topic, the committee include the phrase detain

enemy combatants

The definition of enemy combatant is:

Gothamist, 2013 Can The Boston Bombing Suspect Be Deemed An "EnemyCombatant?"http://gothamist.com/2013/04/21/can_the_boston_bomber_suspect_be_de.php

But by 2008, the courts were very clear on who could be considered an "enemy combatant." Federal

Judge Richard Leon, appointed by President Bush, provides [PDF] this widely accepted definition of

"enemy combatant":

An "enemy combatant" is an individual who was part of or supporting Taliban or al Qaeda forces, or

associated forces that are engaged in hostilities against the United States or its coalition partners. This

includes any person who has committed a belligerent act or has directly supported hostilities in aid of

enemy armed forces.

This definition was provided in the Boumediene v Bush federal case in the United

States District Court for the District of Columbiahttp://www.scotusblog.com/wp-

content/uploads/2008/10/boumediene-order-10-27-08.pdf

President under the AUF, and with current agreement from the courts has authority to

detain enemy combatants

JENNIFER K. ELSEA Congressional Research Service Presidential Studies Quarterly

Volume 33, Issue 3, Article first published online: 12 SEP 2003

President Bush claims the power, as Commander in Chief of the Armed Forces, to determine that anyperson, including an American citizen, who is suspected of being a member, agent, or associate of Al

Qaeda, the Taliban, or possibly any other terrorist organization, is an enemy combatant who can

be detained in U.S. military custody until hostilities end, pursuant to the international law of war

(Dworkin 2002). Attorney General John Ashcroft has taken the view that the authority to detain

enemy combatants belongs to the president alone, and that any interference in that authority by

Congress would thus be unconstitutional (U.S. Senate 2002). Even if congressional authority were

necessary, the government argues, such permission can be found in the Authorization to Use Force

(AUF; Pub. L. No. 107-40, 115 Stat. 224 [2001]). So far, the courts have agreed that Congress has

authorized the detention of enemy combatants.

Under the AUMF as interpreted by the courts, and under the NDAA as passed by

Congress, the administration is authorized to hold in military detention only those

who are part of or substantially supporting Al Qaeda, the Taliban, or associated

forces.
http://gothamist.com/2013/04/21/can_the_boston_bomber_suspect_be_de.phphttp://www.scotusblog.com/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdfhttp://www.scotusblog.com/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdfhttp://www.scotusblog.com/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdfhttp://www.scotusblog.com/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdfhttp://www.scotusblog.com/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdfhttp://www.scotusblog.com/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdfhttp://gothamist.com/2013/04/21/can_the_boston_bomber_suspect_be_de.php


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To address any potential concern about the scope of the phrase detain enemy

combatants also consider that there is a distinction between enemy aliens and

enemy combatants.


Volume 33, Issue 3, Article first published online: 12 SEP 2003The distinction between enemy aliens and enemy combatants may prove critical. Whereas Congress

has traditionally declined to regulate the conduct of the military in its treatment of prisoners taken

during battle, Congress has taken a more active role regarding the treatment of enemy aliens,

setting down a more precise definition for who may be treated as such and under what conditions.

Under the Alien Enemy Act, 50 U.S.C. 21 et seq., alien enemies include all natives, citizens, denizens,

or subjects of the hostile nation or government, being of the age of fourteen years and upward, who

shall be within the United States and not actually naturalized. This designation is further limited to

times of declared war or presidentially proclaimed predatory invasion, and the statute broadly

prescribes the types of restrictions the president may place, by proclamation, on alien enemies,

including possible detention and deportation, and the denial of access to U.S. courts. Where U.S.

citizens not subject to treatment as prisoners of war have been interned as possible threats to the

national security, additional statutory authority to at least ratify the presidentially claimed power tointern them was crucial if the detentions were to be validated by the courts, and even then it

appears that due process considerations played a role

Also, Korematsu overrule really wouldnt be a case about Presidents power to detain

enemy combatants.


Volume 33, Issue 3, Article first published online: 12 SEP 2003World War II

Internment of Enemies. At the outset of the Second World War, President Roosevelt made numerous

proclamations under the Alien Enemy Act to place restrictions on aliens deemed dangerous or likely toengage in espionage or sabotage.10 Initially, the restrictions were effected under the civil authority of

the attorney general, who established prohibited areas in which no aliens of Japanese, Italian, or

German descent were permitted to enter or remain, as well as a host of other restraints on affected

aliens, including curfews and internment after a hearing. The president, acting under statutory

authority, delegated to the attorney general the authority to prescribe regulations for the execution of

the program. Attorney General Francis Biddle created the Alien Enemy Control Unit to review the

recommendations of hearing boards handling the cases of the more than 2,500 enemy aliens in the

temporary custody of the Immigration and Naturalization Service (INS; U.S. House of Representatives

1942, 163). In February 1942, the president extended the program to cover certain citizens as well as

enemy aliens, and turned over the authority to prescribe military areas to the secretary of war, who

further delegated the responsibilities under the order with respect to the west coast to theCommanding General of the Western Defense Command.11 The new order, Executive Order 9066 (17

Fed. Reg. 1407), clearly amended the policy established under the earlier proclamations regarding aliens

and restricted areas, but did not explicitly rely on the authority of the Alien Enemy Act, as the previous

proclamations had. Although the Department of Justice denied that the transfer of authority to the

Department of War was motivated by a desire to avoid constitutional issues with regard to the

restriction or detention of citizens, the House Select Committee Investigating National Defense

Migration found the shift in authority significant, as it appeared to rely on the nations war powers


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directly, and could find no support in the Alien Enemy Act with respect to citizens (ibid., 166). The

summary exercise of authority under that act to restrain aliens was thought to be untenable if stretched

to reach U.S. citizens, and the War Department felt congressional authorization was necessary to

provide authority for its enforcement (ibid., 167; Biddle 1962, 216-17). Congress granted the War

Departments request, enacting with only minor changes the proposed legislation providing criminal

penalties for the knowing violation of any exclusion order issued pursuant to Executive Order 9066 or

similar executive order (Pub. L. 77-503, codified at 18 U.S.C. 1383 *1970 ed.+, repealed by Pub. L. 94-

412, Title V, 501[e] [1976]). A policy of mass evacuation from the west coast of persons of Japanese

descentcitizens as well as aliensfollowed, which soon transformed into a system of compulsory

internment at relocation centers (Commission on Wartime Relocation and Internment of Civilians

1982, 2). Persons of German and Italian descent (and others) were treated more selectively, receiving

prompt (though probably not full and fair12) loyalty hearings to determine whether they should be

interned, paroled, or released (ibid., 285). The disparity of treatment was explained by the theory that

it would be impossible or too time consuming to attempt to distinguish the loyal from the disloyal

among persons of Japanese descent (ibid., 288-89). In a series of cases, the Supreme Court limited but

did not strike down the internment program. In Hirabayashi v. United States, 320 U.S. 81, 89-90 (1943),

the Supreme Court found the curfew imposed upon persons of Japanese ancestry to be constitutional

as a valid wartime security measure, even as implemented against U.S. citizens, emphasizing theimportance of congressional ratification of the executive order. Hirabayashi had also been indicted for

violating an order excluding him from virtually the entire west coast, but the Court did not review the

constitutionality of the exclusion measure because the sentences for the two charges were to run

concurrently. Because the restrictions affected citizens solely because of their Japanese descent, the

Court framed the relevant inquiry as a question of equal protection, asking whether in the light of all

the facts and circumstances there was any substantial basis for the conclusion, in which Congress and

the military commander united, that the curfew as applied was a protective measure necessary to meet

the threat of sabotage and espionage which would substantially affect the war effort and which might

reasonably be expected to aid a threatened enemy invasion (ibid., 95). In a concurring opinion, Justice

Douglas added that in effect, due process considerations were unnecessary to ensure that only

individuals who were actually disloyal were affected by the restrictions, even if it were to turn out thatonly a small percentage of Japanese-Americans were actually disloyal (ibid., 106). However, he noted

that a more serious question would arise if a citizen did not have an opportunity at some point to

demonstrate his loyalty in order to be reclassified and no longer subject to the restrictions (ibid., 109).

In Korematsu v. United States, 323 U.S. 214 (1944), the Supreme Court upheld the

conviction of an American citizen for remaining in his home, despite the fact that it

was located in a newly declared Military Area and was thus off-limits to persons of

Japanese descent. Fred Korematsu challenged the detention of Japanese-Americans in

internment camps, but the Court majority declined to consider the constitutionality of

the detention itself, as Korematsus conviction was for violating the exclusion order only.

The Court, in effect, validated the treatment of citizens in a manner similar to that

of enemy aliens by reading Executive Order 9066, together with the act of Congress

ratifying it, as sufficient authority under the combined war powers of the president and

Congress. It did not address the statutory scope of the Alien Enemy Act.


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Hostilities

The group discussed the possible inclusion of a hostilities area of the resolution.Alternative wordings noted above suggest issues for discussion for the larger topic

committee. Questions, beyond wording of the item in the list, include whether to

include a list item about hostilities (given that some of the literature is accounted for

under the drones or cyber operations areas), and whether to take items out of the

proposed list to include the hostilities area.

The hostilities area is potential ripe for discussion given recent actions.

The Obama Administration argued that the War Powers Resolution didnt apply in

Libya because US activity did not constitute hostilitiesHarvard Law Review, 2012(RECENT ADMINISTRATIVE INTERPRETATION: Separation of Powers - War Powers Resolution - Obama

Administration Argues that U.S. Military Action in Libya Does Not Constitute "Hostilities.", April, 125

Harv. L. Rev. 1546)

The War Powers Resolution n1 ("WPR" or "Resolution") requires the President to obtain congressional

authorization for the use of military force "in any case in which United States Armed Forces are

introduced ... into hostilities." n2 If Congress has not declared war or otherwise authorized the

deployment of U.S. forces within sixty days of the WPR's activation, the President must withdraw

them from use. n3 While purporting to clarify the allocation of war powers, the Resolution has generated nearly four decades of dispute.

n4 Recently, the Obama Administration denied the Resolution's applicability to U.S. support of an

international military action in Libya that persisted for over sixty days . On June 28, 2011, Harold Koh, LegalAdviser of the Department of State, appeared before Congress to defend the Administration's continued use of U.S. forces. n5

Relying on previous administrations' interpretations of the WPR, Koh argued that U.S. activity in Libya did not constitute

"hostilities" and thus did not trigger the WPR's sixty-day withdrawal rule. n6 Koh properly relied on historicalinterpretations of the WPR, but his testimony illustrates the ambiguity that these precedents allow. While Koh construed the precedents

narrowly, Congress's failure in this and other war powers disputes to contemporaneously oppose executive constructions of the WPR has

invited increasingly narrow interpretations of it. This episode thus suggests limitations on the Resolution's ability to function as an ex ante time

limit on executive action and further demonstrates the need for congressional participation in the Resolution's construction and application.

[*1547] In February 2011, Libya erupted in a series of protests inspired by antigovernment uprisings in Egypt and Tunisia.n7 Violence steadily increased over the following weeks as then-Libyan leader Muammar Qadhafi struck back at the protesters, vowing to root

them out "house by house, room by room ... [with] no mercy and no pity." n8 On March 17, aiming to avert what the international community

feared would become a humanitarian catastrophe, the United Nations Security Council voted to authorize military action against Qadhafi's

forces in Libya. n9 U.S. and European forces began a broad campaign of airstrikes against Libyan targets twodays later. n10 The Obama Administration reported the activity to Congress within forty-eight hours of the coalition intervention. n11 While the

United States took an early lead in disabling Libyan military targets, the North Atlantic Treaty Organization (NATO) assumed command in early

April, and U.S. forces shifted into a "supporting role." n12 The Administration consulted with Congress throughout the operation, n13 but

Congress did not authorize the use of military force. n14 As the engagement continued into its sixtieth day, the legality

of the Administration's activity in Libya catapulted into the public consciousness. n15 [*1548] On June 28, inresponse to repeated congressional inquiries, Legal Adviser Koh appeared before the Senate Foreign Relations Committee to elaborate on and

defend the Administration's position. n16 Koh's testimony focused on the scope of the term "hostilities," n17 which he

argued "is an ambiguous term of art that is defined nowhere in the statute." n18 The WPR's legislative history indicated that

"there was no fixed view on exactly what the term "hostilities' would encompass" at the time the

Resolution was adopted, n19 and no court or Congress had subsequently defined it. n20 Instead, the drafters of the WPR "declined to


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give ["hostilities'] a more concrete meaning," n21 intending, Koh argued, "to leave the matter for subsequent executive practice." n22 In light

of the drafters' deliberate vagueness, "the political branches have worked together to flesh out the law's meaning over time." n23 Koh then

turned to the history of the WPR's application, beginning with the evacuation of U.S. citizens from Southeast Asia at the close of the Vietnam

War, shortly after the Resolution's passage. n24 Citing a 1975 letter from the Departments of State and Defense to Congress, n25 Koh argued

that the executive branch had always considered "hostilities" [*1549] "definable in a meaningful way only in the context of an actual set of

facts." n26 Koh referred to a series of executive interpretations of the term that reaffirmed the 1975 letter, n27 claiming that "the term should

not necessarily be read to include situations where the nature of the mission is limited[,] ... the exposure of U.S. forces is limited[,] ... and ... the

risk of escalation is therefore limited." n28 Koh's argument then proceeded by analogy, comparing the U.S. intervention in Libya to, among

others, past engagements in Lebanon, n29 Grenada, n30 and Somalia, n31 in which previous administrations had not found the WPR's sixty-daypullout rule to apply. n32 Koh hewed closely to the facts of these historical precedents and found the Libya intervention similarly limited in its

mission, military means, exposure of U.S. forces, and risk of escalation. n33 Thus, while a different set of facts might have produced a different

legal conclusion, the "unusual confluence" of variables in Libya n34 led the Administration to conclude that it did not "constitute the kind of

"hostilities' envisioned by the [WPR]." n35 [*1550] Although Koh's definition of "hostilities" strains the term's everyday meaning, n36 the

vehemence of commentators' responses belies the issue's complexity. Legislative history n37 and four decades of the WPR's

operation indicate that not every military engagement triggers the Resolution's sixty-day clock. As courtshave largely dismissed WPR litigation on prudential grounds, n38 historical practice has become law in the Resolution's regard, guiding its

application. n39 Koh properly sought to locate Libya amidst the universe of WPR precedents, n40 but his analysis illustrates the indeterminacy

inherent in a statutory structure with only contested, historical practice to fill textual silence. This ambiguity has weakened the WPR's ability to

function as a general, ex ante time limit on executive action. Page 2 125 Harv. L. Rev. 1546, *1546 Rather, Congress must actively

participate in enforcing the Resolution's letter if it wishes to deny the executive the flexibility on

which Koh's argument relied.

The Obama Administration argued that there were not hostilities because US troops

were not in danger since they were using drones Congress must amend the WPR to

apply to drones

Grimmett, Specialist in International Security at the CRS, 2012(Richard F., The War Powers Resolution: After Thirty-Eight Years, CRS Report for Congress, September

24, p. http://www.fas.org/sgp/crs/natsec/R42699.pdf)Obama Administration submitted a 32-page unclassified report, together with a classified annex, that described U.S. actions in Libya to that

date. On page 25 of that unclassified report was a Legal Analysis consisting of one long paragraph

summarizing the Administrations view of what the Presidents authority was to take the actions he

had taken in Libya, andhis rationale for not having to obtain congressional authorization to do so. This

paragraph from the report states:Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated

actions, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to

direct such limited military operations abroad. The President is of the view that the current U.S. military

operations in Libya are consistent with the War Powers Resolution and do not under that law require

further congressional authorization, because U.S. military operations are distinct from the kind of

hostilities contemplated by the Resolutions 60 day termination provision. U.S. forces are playing a

constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited tothe terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas

under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained

fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground

troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict

characterized by these factors.There are various legal arguments available to the Administration to justify use of UAVs for military action abroad against terrorist organizations

and individuals. The following addresses the potential interplay of the War Powers Resolutions statutory requirements and the use of UAVs for

military operations abroad. The War Powers Resolution and Military Use of UAVs : Some Considerations In another

situation, it is possible that the President might use the same basic formulation he and his legal advisors set out

regarding the application of the War Powers Resolution to U.S. military actions in Libya discussed above.

Directly put, if it is accepted that the Presidents use of UAVs for military attacks against terrorist targets

abroad constitutes an action that is limited in scope and duration, and does not require introduction

of U.S. military forces directly and physically into hostilities, then the War Powers Resolution, under


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this interpretation, does not apply to this presidential action, nor require congressional statutory

authorization. The President, under this construction, has sufficient authority to act to defend the United States based only on his ownConstitutional authorities as Commander-in-Chief, as set out in the legal memorandum of the Office of Legal Counsel of April 1, 2011, and in the

Presidents June 15, 2011, report to Congress. To date, based on public reports, instances of the use of UAVs to attack terrorist targets abroad

have not required a time period in excess of 60 days to execute, nor have U.S. military personnel been placed directly into h arms way or in

places where hostilities that could directly involve them were indicated. The very nature of UAV technology permits their employment from

locations remote from the places they are used to attack. Thus, the argument could be made that in these

circumstances, the War Powers Resolution, as currently drafted, does not require the President to

obtain statutory congressional approval for the use of UAVs in military operations abroad. In his WarPowers Resolution report to Congress, on June 15, 2012, the President noted that he had authorized, during the previous six months, the U.S.

military to work closely with the government of Yemen to operationally dismantle and ultimately eliminate the terrorist threat posed by al-

Qaida in the Arabian Peninsula (AQAP), the most active and dangerous affiliate of al-Qaida today. The President added that: Our joint efforts

have resulted in direct action against a limited number of AQAP operatives and senior leaders in that country who posed a terrorist threat to

the United States and our interests.87 While the term direct action is not defined in the Presidents June 15, 2012, report quoted above, its

context, coupled with public reporting on the U.S. use of UAVs to attack al-Qaida terrorist personnel in Yemen, strongly suggests that this is

what the President is referring to in this report. The President further notes in this report that similar actions may be undertaken by the United

States in the future. He stated: The United States is committed to thwarting the efforts of al-Qaida and its associated forces to carry out future

acts of international terrorism, and we have continued to work with our CT [counter-terrorism] partners to disrupt and degrade the capabilities

of al-Qaida and its associated forces. As necessary, in response to the terrorist threat, I will direct additional measures agains t al-Qaida, the

Taliban, and associated forces to protect U.S. citizens and interests. The June 15, 2012, report also stated that a classified annex to it would

provide further information on such matters. That annex would perhaps elaborate on the specifics of the topics alluded to in the unclassified

text, and clarify the express meaning of direct action, and, in particular, how it was employed by the United States. In light of the above

considerations, it appears that the existing statutory language of the War Powers Resolution, as

interpreted by the Administration, does not require congressional authorization for the President to

use UAVs in military operations against terrorists abroad, in Yemen or in other countries. It does appear that thePresident may believe that in fulfilling his reporting obligations to Congress under the WPR he should at least implicitly note the use of UAVs in

military attacks against terrorists when he submits his supplementary WPR report every six months. Perhaps the President also believes he

should, in keeping with WPR reporting requirements, report more explicitly about such actions in classified reports every six months. Even

though the President has not publicly reported the specific use of UAVs in military operations within 48 hours of their use, private consultations

with the congressional leadership about their use may have occurred in individual cases. Should Congress agree with what

appears to be the Presidents position regarding his minimal obligations under the War Powers

Resolution regarding the military use of UAVs, it need do nothing further. However, should Congress

conclude that the War Powers Resolution should unambiguously require statutory congressional

authorization of the military use of UAVs for counter-terrorism operations, then it would likely have

to amend this statute , unless other mutually agreeable alternatives can be devised with the President.

Obamas definition of hostilities justifies UAV & Cyberwar without notifying

Congress under the WPR

Boston College Law Review, 2012(Restoring Constitutional Balance: Accommodating the Evolution of War, November, 53 B.C. L. Rev

1767)

On March 19, 2011, American forces began a campaign of air strikes against the Qaddafi regime in

Libya using warplanes and missiles. n1 On March 21, the President of the United States sent written notification to the leaders of Congressthat "U.S. military forces . . . began a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly

zone." n2 On March 30, it was reported that the Central Intelligence Agency (CIA) had operatives working on the ground in Libya to gather

intelligence for military airstrikes and to assess the rebel Libyan fighters. n3 The U.S. military was using spy planes and unmanned aerial vehicles(UAVs) to identify potential Libyan military [*1768] and government targets. n4 By May 12, UAVs were the only American

weapons being used to fire on ground targets in Libya . n5 Nonetheless, other American aircraft were supporting allied

attack missions. n6 The President took this action without consulting Congress through the process

prescribed by the War Powers Resolution of 1973 ("Resolution"). n7 The Resolution, which was passed in response to

the Vietnam War, was a congressional attempt to check executive power and restore a balance of powers

in the decision to enter a war. n8 Nonetheless, in response to congressional outcry against the

President's unilateral action, the administration claimed that the War Powers Resolution was not


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applicable to the Libyan campaign. n9 The Office of Legal Counsel, a unit of the U.S. Department of Justice tasked with providing

legal advice to the President, reasoned that the existence of "war" is satisfied "only by prolonged and substantial

military engagements, typically involving exposure of U.S. military personnel to significant risk over a

significant period." n10 Thus, the military operations in Libya did not meet the administration's

definition of "war." n11 According to the administration's reasoning, the President may unilaterally take the nation to war using limitedmilitary means. n12 What the Obama administration characterized as a unique situation in Libya, however, is becoming more common due to

advances in technology and the changing face of warfare. n13 The use of UAVs and cyber-warfare could inflict seriousdamage on another country, with, from the American perspective, limited [*1769] means, no troop deployments, and possibly

no involvement of military personnel. n14 According to the Obama administration, there are no

"hostilities" under the terms of the Resolution so long as U.S. military casualties are minimal or

nonexistent. n15

In terms of the wording question for the list item, the WPR states that the President

must go to Congress to get approval in any case where US Armed forces are

introduced into hostilities. The language from the WPR seems like a good place to get

the language for the list item. Discussion might be warranted for how much of thatcondition to include in the resolution to cover the area of debate we hope to achieve.

Angie Drobnic Holan and Louis Jacobson Published on Wednesday, June 22nd, 2011 at 11:38 a.m.Are U.S. actions in Libya subject to the War Powers Resolution? A review of the evidence

http://www.politifact.com/truth-o-meter/article/2011/jun/22/are-us-actions-libya-subject-war-powers-

resolution/

To research the administration's claim, we first turned to the law itself. The War Powers Resolution,

passed in 1973, is not long; you can read it here. The resolution doesn't define "hostilities," but it does

say that the president must go to Congress under three possible conditions if there is no formal

declaration of war: "In any case in which United States Armed Forces are introduced (1) into

hostilities or into situations where imminent involvement in hostilities is clearly indicated by thecircumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat,

except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already

located in a foreign nation."
http://www.politifact.com/truth-o-meter/article/2011/jun/22/are-us-actions-libya-subject-war-powers-resolution/http://www.politifact.com/truth-o-meter/article/2011/jun/22/are-us-actions-libya-subject-war-powers-resolution/http://www.politifact.com/truth-o-meter/article/2011/jun/22/are-us-actions-libya-subject-war-powers-resolution/http://www.politifact.com/truth-o-meter/article/2011/jun/22/are-us-actions-libya-subject-war-powers-resolution/

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