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Contents Introduction Background Enacted La Restrictions on Transfer and Release Restrictions on the Use of Funds to Release Detainees into the United States 15-Day Reporting Requirements for Release in or [...]

Contents Introduction Background The Constitutional Framework Judicial Decisions Related to Impeachment Some Basic Research Tools to Assist in Impeachment Proceedings A Brief History and Some Preliminary Issues Relating to Impeachment [...]

Contents Introduction Constitutional Limitations Fourth Amendment First Amendment History of Congressional Action Statutory Framework Federal Rules of Criminal Procedure and Subpoena Authorities Electronic Communications Privacy Act (ECPA) Foreign Intelligence Surveillance [...]

Contents Overview Background Distinction Between FISA Court Orders and Warrants in Criminal Investigations Distinction Between FISA Court Orders and National Security Letters Expiring FISA Amendments "Lone Wolf" Terrorists Historical Context […]

Contents Introduction Detainee Transfer or Release from Guantanamo Transfer/Release of Guantanamo Detainees to a Country other than the United States Transfer of Detainees into the United States Detention and Treatment […]

Contents Introduction Enacted Laws Supplemental Appropriations Act, 2009 (P.L. 111-32) National Defense Authorization Act for Fiscal Year 2010 (P.L. 111-84) Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83) Department […]

Contents Overview Background Distinction Between FISA Court Orders and Warrants in Criminal Investigations Distinction Between FISA Court Orders and National Security Letters Expiring FISA Amendments "Lone Wolf" Terrorists Historical Context […]

March 10, 2009 Summary Federal agencies report increasing cyber-intrusions into government computer networks, perpetrated by a range of known and unknown actors. In response, the President, legislators, experts, and others […]

March 5, 2009 Summary Several bills introduced during the 111th Congress address the detention of suspected enemy belligerents held at the U.S. Naval Station in Guantanamo Bay, Cuba. On January […]

Updated November 17, 2008 Contents Introduction Border Search Exception Judicial Developments On Laptop Searches United States v. Ickes United States v. Romm United States v. Arnold U.S. Customs and Border […]

October 29, 2008 Contents Overview of the Foreign Sovereign Immunities Act Jurisdiction in Cases Against Foreign Defendants Subject matter jurisdiction Personal jurisdiction U.S. Court of Appeals Decision in In Re […]

The detention of alleged enemy combatants at the U.S. Naval Station in Guantanamo Bay, Cuba, together with proposals to transfer some such individuals to the United States for prosecution or continued detention, has been a subject of considerable interest for Congress. Several authorization and appropriations measures enacted during the 111th Congress, and various pending bills, address the disposition and treatment of Guantanamo detainees. Recently legislative activity has focused on the possible transfer of Guantanamo detainees to the United States. The Supplemental Appropriations Act, 2009 (P.L. 111-32) and five FY2010 measures place general restrictions on the use of federal funds to release or transfer a Guantanamo detainee into the United States. The relevant FY2010 measures include the Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83); the National Defense Authorization Act for Fiscal Year 2010 (P.L. 111-84); the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010 (P.L. 111-88); the Consolidated Appropriations Act, 2010 (P.L. 111-117); and the Department of Defense Appropriations Act, 2010 (P.L. 111-118). Each of the enacted laws provides an exception which permits transfers when effected 45 days after specified reporting requirements have been fulfilled. However, in most of the measures, the 45-day exceptions apply only to transfers for the purpose of prosecution or detention during legal proceedings. Several pending bills, including the House-passed intelligence authorization bill (H.R. 2701) and FY2011 defense authorization measures in the House (H.R. 5136) and Senate (S. 3454), would extend or expand restrictions on detainee transfers. Public laws and pending proposals address additional issues related to the treatment and disposition of Guantanamo detainees. For example, Title XVIII of P.L. 111-84 establishes new procedures for military commissions. Section 552 of P.L. 111-83 requires that former Guantanamo detainees be included on the "No Fly List" in most circumstances and restricts their access to immigration benefits. This report analyzes relevant provisions in enacted legislation and selected pending bills. For more detailed explorations of the legal issues related to the potential closure of the detention facility and the transfer, release, and treatment of detainees, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia et al., and CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea and Michael John Garcia. [ABSTRACT FROM AUTHOR]

The article presents the report titled "Guantanamo Detention Center: Legislative Activity in the 111th Congress" released by the U.S. Congressional Research Service as of June 17, 2010. Topics discussed include restrictions on the use of funds to release the detainees at the U.S. Naval Station in Guantanamo Bay, Cuba, formation of executive and judicial authorities, and disposition and treatment of detainees.

For the first time since the judicial impeachments of 1986-1989, the House of Representatives has impeached two federal judges. On June 19, 2009, the House voted to impeach U.S. District Judge Samuel B. Kent of the U.S. District Court for the Southern District of Texas. The impeachment trial of Judge Kent before the Senate was dismissed after Judge Kent resigned from office and the House indicated that it did not wish to pursue the matter further. The impeachment process with respect to U.S. District Court Judge G. Thomas Porteous, Jr., from the U.S. District Court for the Eastern District of Louisiana, is ongoing. This impeachment inquiry was initiated in the 110th Congress and has continued in the 111th Congress. H.Res. 1031, a resolution impeaching Judge Porteous for high crimes and misdemeanors, was introduced on January 21, 2010. The resolution includes four articles of impeachment. The measure was referred to the House Judiciary Committee the same day. On March 4, 2010, H.Res. 1031 was reported out, H.Rept. 111-427, and placed on the House Calendar, Calendar No. 170. On March 11, 2010, the House impeached Judge Porteous. In four unanimous votes, the House approved each of the four articles of impeachment, then agreed to the impeachment resolution by a voice vote. On March 17, 2010, the House Managers presented these articles of impeachment before the bar of the Senate. Pursuant to S.Res. 457, the Senate issued a summons to Judge Porteous to respond to the articles of impeachment. He filed his answer to the articles against him on April 7, 2010, and the House filed its replication to the answer on April 15, 2010. Under S.Res. 458, the Senate created an Impeachment Trial Committee to take evidence in the case. The full Senate, sitting as a Court of Impeachment, will make the ultimate decision whether to acquit or convict on each article and, if Judge Porteous is convicted on one or more articles, will impose judgment of removal alone or removal and disqualification from holding any further federal office. The impeachment process provides a mechanism for removal of the President, Vice President, and other federal civil officers found to have engaged in "treason, bribery, or other high crimes and misdemeanors." The Constitution places the responsibility and authority to determine whether to impeach and to draft articles of impeachment in the hands of the House of Representatives.… [ABSTRACT FROM AUTHOR]

Congress enacted the USA PATRIOT Act soon after the 9/11 terrorist attacks. The most controversial sections of the act facilitate the federal government's collection of more information, from a greater number of sources, than had previously been authorized in criminal or foreign intelligence investigations. The Foreign Intelligence Surveillance Act (FISA), the Electronic Communications Privacy Act (ECPA), and the national security letter (NSL) statutes were all bolstered. With the changes came greater access to records showing an individual's spending and communication patterns as well as increased authority to intercept e-mail and telephone conversations and to search homes and businesses. In some cases, evidentiary standards required to obtain court approval for the collection of information were lowered. Other approaches included expanding the scope of information subject to search, adding flexibility to the methods by which information could be collected, and broadening the purposes for which information may be sought. Some perceived the changes as necessary to unearth terrorist cells and update investigative authorities to respond to the new technologies and characteristics of ever-shifting threats. Others argued that authorities granted by the USA PATRIOT Act and subsequent measures could unnecessarily undermine constitutional rights over time. In response to such concerns, sunset provisions were established for many of the changes. Subsequent measures made most of the USA PATRIOT Act changes permanent. However, three authorities affecting the collection of foreign intelligence information are set to expire on February 28, 2011: the lone wolf, roving wiretap, and business record sections of FISA. The 111th Congress replaced an earlier expiration date with the 2011 date. Before that change was made, the impending expiration prompted legislative proposals which revisit changes made by the USA PATRIOT Act and related measures. Two such bills-the USA PATRIOT Act Sunset Extension Act of 2009 (S. 1692) and the USA PATRIOT Amendments Act of 2009 (H.R. 3845)-were reported from their respective judiciary committees. In addition to the expiring provisions, these and other bills introduced during the 111th Congress (e.g., S. 1686, S. 1725, S. 1726, S. 2336, H.R. 1800, H.R. 3846, H.R. 3969, and H.R. 4005) address a range of issues, including national security letters, minimization requirements, nondisclosure requirements (gag orders), interception of international communications, and retroactive repeal of communication provider immunity for Terrorist Surveillance Program (TSP) assistance. This report surveys the legal environment in which the legislative proposals arise. [ABSTRACT FROM AUTHOR]

The detention of alleged enemy combatants at the U.S. Naval Station in Guantanamo Bay, Cuba, together with recent proposals to transfer some such individuals to the United States for prosecution or continued detention, has been a subject of considerable interest for Congress. Several authorization and appropriations measures enacted during the 111th Congress, and various pending bills, address the disposition and treatment of Guantanamo detainees. Recently legislative activity has focused on the possible transfer of Guantanamo detainees to the United States. The Supplemental Appropriations Act, 2009 (P.L. 111-32), and five FY2010 measures place general restrictions on the use of federal funds to release or transfer a Guantanamo detainee into the United States. The relevant FY2010 measures include: the Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83), the National Defense Authorization Act for Fiscal Year 2010 (P.L. 111-84), the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010 (P.L. 111-88), the Consolidated Appropriations Act, 2010 (P.L. 111-117), and the Department of Defense Appropriations Act, 2010 (P.L. 111-118). Each of the enacted laws provides an exception which permits transfers when effected 45 days after specified reporting requirements have been fulfilled. However, in most of the measures, the 45-day exceptions apply only to transfers for the purpose of prosecution or detention during legal proceedings. The public laws and pending proposals address additional issues related to the treatment and disposition of Guantanamo detainees. For example, Title XVIII of P.L. 111-84 establishes new procedures for military commissions. Section 552 of P.L. 111-83 requires that former Guantanamo detainees be included on the “No Fly List” in most circumstances and restricts their access to immigration benefits. This report analyzes relevant provisions in enacted legislation and selected pending bills. For more detailed explorations of the legal issues related to the potential closure of the detention facility and the transfer, release, and treatment of detainees, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia et al., and CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea, Kenneth R. Thomas, and Michael John Garcia. [ABSTRACT FROM AUTHOR]

Three amendments to the Foreign Intelligence Surveillance Act (FISA) are set to expire (sunset) on February 28, 2010. S. 1692, a bill reported favorably by the Senate Judiciary Committee with an amendment in the nature of a substitute, would extend the sunset date by four years and make various modifications to existing authorities. H.R. 3845 would likewise establish a new sunset of December 31, 2013, but it would reauthorize only two of the three expiring provisions. The three sunsetting amendments expanded the scope of federal intelligence-gathering authority following the 9/11 terrorist attacks. Two were enacted as part of the USA PATRIOT Act. Section 206 of the USA PATRIOT Act amended FISA to permit multipoint, or "roving," wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. Section 215 enlarged the scope of materials that could be sought under FISA to include "any tangible thing." It also lowered the standard required before a court order may be issued to compel their production. The third amendment was enacted in 2004, as part of the Intelligence Reform and Terrorism Protection Act (IRTPA). Section 6001(a) of the IRTPA changed the rules regarding the types of individuals who may be targets of FISA-authorized searches. Also known as the "lone wolf" provision, it permits surveillance of non-U.S. persons engaged in international terrorism without requiring evidence linking those persons to an identifiable foreign power or terrorist organization. Although these provisions are set to sunset, grandfather clauses permit them to remain effective with respect to investigations that began, or potential offenses that took place, before the sunset date. [ABSTRACT FROM AUTHOR]

Congress enacted the USA PATRIOT Act soon after the 9/11 terrorist attacks. The most controversial sections of the Act facilitate the federal government's collection of more information, from a greater number of sources, than had previously been authorized in criminal or foreign intelligence investigations. The Foreign Intelligence Surveillance Act (FISA), the Electronic Communications Privacy Act (ECPA), and the national security letter (NSL) statutes were all bolstered. With the changes came greater access to records showing an individual's spending and communication patterns as well as increased authority to intercept e-mail and telephone conversations and to search homes and businesses. In some cases, evidentiary standards required to obtain court approval for the collection of information were lowered. Other approaches included expanding the scope of information subject to search, adding flexibility to the methods by which information could be collected, and broadening the purposes for which information may be sought. Some perceived the changes as necessary to unearth terrorist cells and update investigative authorities to respond to the new technologies and characteristics of ever-shifting threats. Others argued that authorities granted by the USA PATRIOT Act and subsequent measures could unnecessarily undermine constitutional rights over time. In response to such concerns, sunset provisions were established for many of the changes. Subsequent measures made most of the USA PATRIOT Act changes permanent. However, three authorities affecting the collection of foreign intelligence information are set to expire on February 28, 2010: the lone wolf, roving wiretap, and business record sections of FISA. The impending expiration has prompted legislative proposals which revisit changes made by the USA PATRIOT Act and related measures. Examples of relevant bills include the USA PATRIOT Act Sunset Extension Act of 2009 (S. 1692) and the USA PATRIOT Amendments Act of 2009 (H.R. 3845), which were reported or ordered to be reported from their respective judiciary committees, as well as a number of additional bills, including S. 1686, S. 1725, S. 1726, S. 2336, H.R. 1800, H.R. 3846, H.R. 3969, and H.R. 4005. In addition to the expiring provisions, pending bills address a range of issues, including national security letters, minimization requirements, nondisclosure requirements (gag orders), interception of international communications, and retroactive repeal of communication provider immunity for Terrorist Surveillance Program (TSP) assistance. This report surveys the legal environment in which the legislative proposals arise. [ABSTRACT FROM AUTHOR]

The article presents a report related to the the proposed transfer of individuals currently detained at the U.S. Naval Station at Guantanamo Bay, Cuba as of December 2009. Topics discussed include explorations of the legal issues related to the potential closure of the detention facility and the transfer, release, and treatment of detainees.

Following the terrorist attacks of 9/11, Congress passed the Authorization to Use Military Force (AUMF), which granted the President the authority “to use all necessary and appropriate force against those ... [who] planned, authorized, committed, or aided the terrorist attacks” against the United States. Many persons subsequently captured during military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention and possible prosecution before military tribunals. Although nearly 800 persons have been transferred to Guantanamo since early 2002, the substantial majority of Guantanamo detainees have ultimately been transferred to another country for continued detention or release. The 215 detainees who remain fall into three categories: (1) persons placed in non-penal, preventive detention to stop them from rejoining hostilities; (2) persons who have faced or are expected to face criminal charges; and (3) persons who have been cleared for transfer or release, whom the United States continues to detain pending transfer. Although the Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees may seek habeas corpus review of the legality of their detention, several legal issues remain unsettled, including the extent to which other constitutional provisions apply to noncitizens held at Guantanamo. On January 22, 2009, President Obama issued an Executive Order requiring the Guantanamo detention facility to be closed as soon as practicable, and no later than a year from the date of the Order. Several legislative proposals have been introduced in the 111th Congress concerning the potential closure of the Guantanamo facility. The Supplemental Appropriations Act, 2009 (P.L. 111-32), Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83), National Defense Authorization Act for Fiscal Year 2010 (P.L. 111-84), and Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010 (P.L. 111-88), all contain provisions barring funds from being used to release Guantanamo detainees into the United States, and also restrict funds from being used to transfer detainees into the country for prosecution prior to the submission of certain reports to Congress. The National Defense Authorization Act also contains provisions modifying the rules for military commissions, which may have implications for Guantanamo detainees. For more information, see CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the 111th Congress, by Anna C. Henning, and CRS Report R40932, Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court, by Jennifer K. Elsea. The closure of the Guantanamo detention facility may raise a number of legal issues with respect to the individuals formerly interned there, particularly if those detainees are transferred to the United States for continued detention, prosecution, or release. The nature and scope of constitutional protections owed to detainees within the United States may be different from the protections owed to persons held outside the United States. This may have implications for the continued detention or prosecution of persons who are transferred to the United States. The transfer of detainees to the United States may also have immigration consequences. This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought into the country. It also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions). [ABSTRACT FROM AUTHOR]

Three amendments to the Foreign Intelligence Surveillance Act (FISA) are set to expire (sunset) on December 31, 2009. S. 1692, a bill reported favorably by the Senate Judiciary Committee with an amendment in the nature of a substitute, would extend the sunset date by four years and make various modifications to existing authorities. H.R. 3845 would likewise establish a new sunset of December 31, 2013, but it would reauthorize only two of the three expiring provisions. The three sunsetting amendments expanded the scope of federal intelligence-gathering authority following the 9/11 terrorist attacks. Two were enacted as part of the USA PATRIOT Act. Section 206 of the USA PATRIOT Act amended FISA to permit multipoint, or “roving,” wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. Section 215 enlarged the scope of materials that could be sought under FISA to include “any tangible thing.” It also lowered the standard required before a court order may be issued to compel their production. The third amendment was enacted in 2004, as part of the Intelligence Reform and Terrorism Protection Act (IRTPA). Section 6001(a) of the IRTPA changed the rules regarding the types of individuals who may be targets of FISA-authorized searches. Also known as the “lone wolf” provision, it permits surveillance of non-U.S. persons engaged in international terrorism without requiring evidence linking those persons to an identifiable foreign power or terrorist organization. Although these provisions are set to sunset on December 31, 2009, grandfather clauses permit them to remain effective with respect to investigations that began, or potential offenses that took place, before the sunset date. [ABSTRACT FROM AUTHOR]

For the first time since the judicial impeachments of 1986-1989, the House has impeached a federal judge. On June 19, 2009, the House voted to impeach U.S. District Judge Samuel B. Kent of the U.S. District Court for the Southern District of Texas. The impeachment process provides a mechanism for removal of the President, Vice President, and other federal civil officers found to have engaged in treason, bribery, or other high crimes and misdemeanors. The Constitution places the responsibility and authority to determine whether to impeach and to draft articles of impeachment in the hands of the House of Representatives. A number of means have been used to trigger the Houses investigation, but the ultimate decision in all instances as to whether impeachment is appropriate rests with the House. Should the House vote to impeach and vote articles of impeachment specifying the grounds upon which impeachment is based, the matter is then presented to the Senate for trial. Under the Constitution, the Senate has the unique power to try an impeachment. The decision whether to convict on each of the articles must be made separately. A conviction must be supported by a two-thirds majority of the Senators present. A conviction on any one of the articles of impeachment brought against an individual is sufficient to constitute conviction in the trial of the impeachment. Should a conviction occur, then the Senate must determine what the appropriate judgment is in the case. The Constitution limits the judgment to either removal from office or removal and prohibition against holding any future offices of honor, Trust or Profit under the United States. The precedents in impeachment suggest that removal may flow automatically from conviction, but that the Senate must vote to prohibit the individual from holding future offices of public trust, if that judgment is also deemed appropriate. A simple majority vote is required on a judgment. Conviction on impeachment does not foreclose the possibility of criminal prosecution arising out of the same factual situation. The Constitution does not permit the President to extend executive clemency to anyone in order to preclude his or her impeachment by the House or trial or conviction by the Senate. [ABSTRACT FROM AUTHOR]

In May 2009, Supreme Court Justice David Souter announced his intention to retire from the Supreme Court. Several weeks later, President Obama nominated Judge Sonia Sotomayor, who currently serves on the U.S. Court of Appeals for the Second Circuit, to fill his seat. To fulfill its constitutional advice and consent function, the Senate will consider Judge Sotomayors extensive record compiled from years as a lawyer, prosecutor, district court judge, and appellate court judge to better understand her legal approaches and judicial philosophy. This report provides an analysis of selected opinions authored by Judge Sotomayor during her tenure as a judge on the Second Circuit. Discussions of the selected opinions are grouped according to various topics of legal significance. As a group, the opinions belie easy categorization along any ideological spectrum. However, it is possible to draw some conclusions regarding Judge Sotomayors judicial approach, both within some specific issue areas and in general. Perhaps the most consistent characteristic of Judge Sotomayors approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents. Other characteristics appear to include what many would describe as a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as oversteping its judicial role. It is difficult to determine the extent to which Judge Sotomayors style as a judge on the Second Circuit would predict her style should she become a Supreme Court justice. However, as has been the case historically with other nominees, some of her approaches may be enduring characteristics. [ABSTRACT FROM AUTHOR]

The article focuses on a report released by the U.S Congressional Research Service, a public policy research arm of the U.S Congress, as of 2009 on selected opinions authored by Judge Sonia Sotomayor during her as a judge on the U.S. Court of Appeals for the Second Circuit. Topics discussed include dismissal of First Amendment challenge to the Mexico City Policy by Sotomayor, Sotomayor's decision in a public employee case claiming racial discrimination and her opinion on religious freedom.

Federal agencies report increasing cyber-intrusions into government computer networks, perpetrated by a range of known and unknown actors. In response, the President, legislators, experts, and others have characterized cybersecurity as a pressing national security issue. Like other national security challenges in the post-9/11 era, the cyber threat is multi-faceted and lacks clearly delineated boundaries. Some cyber attackers operate through foreign nations military or intelligence-gathering operations, whereas others have connections to terrorist groups or operate as individuals. Some cyber threats might be viewed as international or domestic criminal enterprises. In January 2008, the Bush Administration established the Comprehensive National Cybersecurity Initiative (the CNCI) by a classified joint presidential directive. The CNCI establishes a multi-pronged approach the federal government is to take in identifying current and emerging cyber threats, shoring up current and future telecommunications and cyber vulnerabilities, and responding to or proactively addressing entities that wish to steal or manipulate protected data on secure federal systems. On February 9, 2009, President Obama initiated a 60-day interagency cybersecurity review to develop a strategic framework to ensure the CNCI is being appropriately integrated, resourced, and coordinated with Congress and the private sector. In response to the CNCI and other proposals, questions have emerged regarding: (1) the adequacy of existing legal authoritiesstatutory or constitutionalfor responding to cyber threats; and (2) the appropriate roles for the executive and legislative branches in addressing cybersecurity. The new and emerging nature of cyber threats complicates these questions. Although existing statutory provisions might authorize some modest actions, inherent constitutional powers currently provide the most plausible legal basis for many potential executive responses to national security related cyber incidences. Given that cyber threats originate from various sources, it is difficult to determine whether actions to prevent cyber attacks fit within the traditional scope of executive power to conduct war and foreign affairs. Nonetheless, under the Supreme Court jurisprudence, it appears that the President is not prevented from taking action in the cybersecurity arena, at least until Congress takes further action. Regardless, Congress has a continuing oversight and appropriations role. In addition, potential government responses could be limited by individuals constitutional rights or international laws of war. This report discusses the legal issues and addresses policy considerations related to the CNCI. [ABSTRACT FROM AUTHOR]

Several bills introduced during the 111th Congress address the detention of suspected enemy belligerents held at the U.S. Naval Station in Guantanamo Bay, Cuba. On January 22, 2009, President Obama issued three executive orders affecting Guantanamo detainees. Some legislative proposals would effectuate or make permanent the policies contained in the executive orders. Other bills offer alternative approaches to the disposition of the detainees. The legislative proposals—H.R. 591, S. 147 / H.R. 374, S. 291 / H.R. 1069, H.R. 148, H.R. 565, H.R. 633, H.R. 701, H.R. 794, H.R. 817, H.R. 829, H.R. 951, H.R. 1073, H.R. 1186, H.R. 1238, S. 370 / H.R. 1012, S. 108, H.R. 1042, and H.R. 630—pursue dramatically different goals, ranging from mandating closure of the Guantanamo detention facility to precluding closure through various requirements and restrictions, and offering various approaches to detainee treatment, interrogation methods, and jurisdictional concerns. This report surveys these proposals and flags pertinent legal implications. For detailed explorations of the legal issues raised by proposals addressing closure of the Guantanamo detention facility and interrogation techniques, see CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia, et. al. and CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea, Kenneth R. Thomas, and Michael John Garcia. Related Bills: H.R.591 S.147 H.R.374 S.291 H.R.1069 H.R.148 H.R.565 H.R.633 H.R.701 H.R.794 H.R.817 H.R.829 H.R.951 H.R.1073 H.R.1186 H.R.1238 S.370 H.R.1012 S.108 H.R.1042 H.R.630 Related Reports: R40139 RL33180 [ABSTRACT FROM AUTHOR]

Despite relying on different legal standards, courts have generally upheld laws authorizing law enforcement's compulsory collection of deoxyribonucleic acid (DNA) as reasonable under the Fourth Amendment of the U.S. Constitution. However, several developments might call this judicial consensus into question. First, whereas prior laws authorized compelled extraction of DNA samples only from people who had received a criminal conviction, new state and federal laws have expanded law enforcement's DNA collection authority to include people who have been arrested or detained but not convicted on criminal charges. Although on the federal level the U.S. Department of Justice has yet to implement this expanded authority, the Department has proposed a rule that would do so. In addition, several states now require DNA samples from arrestees. This expansion is likely to alter the Fourth Amendment analysis in DNA collection cases. In cases upholding DNA collection laws, courts relied in part on the reduction in privacy rights that accompanies post-conviction punishment under Fourth Amendment precedent. For people whom the government has arrested but not yet convicted, it appears that this reduction in privacy rights either does not apply or applies to a lesser extent. Second, emerging scientific research suggests that the type of DNA used in forensic analysis might implicate a greater privacy intrusion than courts had previously assumed. Federal Bureau of Investigation (FBI) analysts derive DNA profiles from so-called "junk DNA," which is nongenic DNA, because it is thought to lack both a biological purpose and indicators of sensitive medical characteristics. However, as new studies call this assumption into question, the privacy intrusion caused by DNA analysis might weigh more heavily against the government in Fourth Amendment decisions. Finally, most courts have yet to review the constitutionality of storing convicts' DNA profiles beyond the time of sentence completion. . . [ABSTRACT FROM AUTHOR]

Military courts, authorized by Article I of the U.S. Constitution, have jurisdiction over cases involving military servicemembers, including, in some cases, retired servicemembers. They have the power to convict for crimes defined in the Uniform Code of Military Justice (UCMJ), including both uniquely military offenses and crimes with equivalent definitions in civilian laws. For example, in a recent case, United States v. Stevenson, military courts prosecuted a retired serviceman for rape, a crime often tried in civilian courts. The military court system includes military courts-martial; a Criminal Court of Appeals for each branch of the armed services; and the U.S. Court of Appeals for the Armed Forces (CAAF), which has discretionary appellate jurisdiction over all military cases. With the exception of potential final review by the U.S. Supreme Court, these Article I courts handle review of military cases in an appellate system that rarely interacts with Article III courts. Criminal defendants in the Article III judicial system have an automatic right to appeal to federal courts of appeal and then a right to petition the Supreme Court for final review. In contrast, defendants in military cases typically may not appeal their cases to the U.S. Supreme Court unless the highest military court, the CAAF, had also granted discretionary review in the case. The Equal Justice for Our Military Act of 2007, H.R. 3174, which the House passed on September 27, 2008, and a companion bill in the Senate, S. 2052, would authorize appeals to the U.S. Supreme Court for all military cases, including cases that the CAAF declined to review. [ABSTRACT FROM AUTHOR]