Harvard Journal of Law & Public Policy

Tri-annual journal featuring scholarly review of law and issues of importance to students, educators, and practioners.

Articles from Vol. 38, No. 1, Winter

Drone On: The Commander in Chief Power to Target and Kill Americans
INTRODUCTION My proposition is a simple but bracing one: The President of the United States, in his capacity as military Commander in Chief of the nation's armed forces in time of constitutionally authorized war, has the plenary power and discretion...
Section 702 and the Collection of International Telephone and Internet Content
INTRODUCTION I. THE EVOLUTION OF SECTION 702 A. The President's Surveillance Program B. Redefinition of "Facility" under FISA C. The Protect America Act D. The FISA Amendments Act 1. Section 702 2. Sections 703 and 704 E. Executive...
Section 702 and the Collection of International Telephone and Internet Content
II. PROGRAMMATIC COLLECTION (143) Almost immediately after passage of the FAA, members of Congress, scholars, and others began criticizing Section 702 because of the potential for the government to use the authorities to engage in programmatic surveillance....
Section 702 and the Collection of International Telephone and Internet Content
C. Retention and Dissemination of Data One of the most concerning issues that arises in regard to the retention and dissemination of data obtained under Section 702 is that the NSA may indefinitely retain encrypted communications. In light of increasing...
Section 702 and the Collection of International Telephone and Internet Content
C. Foreign Intelligence, Criminal Prosecution If one accepts that the contours of the warrant requirement in foreign intelligence gathering are subject to countervailing pressure from separation of powers doctrine, it does not necessarily follow...
The Constitution Follows the Drone: Targeted Killings, Legal Constraints, and Judicial Safeguards
INTRODUCTION The more national security law stays the same, the more it changes. To understand why, consider relevant developments that have occurred in the few months since the original version of these remarks were delivered earlier this year....
The Dynamic Incorporation of Foreign Law and the Constitutional Regulation of Federal Lawmaking
INTRODUCTION I. THE LACEY ACT AND THE INCORPORATION OF FOREIGN LAW II. THE FEDERAL LAWMAKING PROCESS A. The Vesting of Legislative Authority in Congress: The Article I Bicameralism and Presentment Clauses B. The Delegation...
The Dynamic Incorporation of Foreign Law and the Constitutional Regulation of Federal Lawmaking
b. Laws Imposing Criminal Liability Must Be Written in English Being able to find a foreign statute, regulation, nonlegislative rule, or agency decision is just the first step. A law exposing someone to criminal liability must be written in terms...
The Obama Administration's Unprecedented Lawlessness
INTRODUCTION I. THE TAKE CARE CLAUSE A. The Take Care Clause's History B. The Take Care Clause's Text C. Judicial Interpretations of the Take Care Clause II. RATIONALES FOR NONENFORCEMENT: UNCONSTITUTIONAL STATUTES AND PROSECUTORIAL...
The Obama Administration's Unprecedented Lawlessness
1. Arms Sales to Iran After Ayatollah Khomeini overthrew the Iranian Shah and attacked the American Embassy in Tehran, the United States imposed economic sanctions and an arms embargo on Iran. (149) The signing of the Algiers Accord in 1981 lifted...
The Paradox of Administrative Preemption
INTRODUCTION I. ADMINISTRATIVE PREEMPTION DOCTRINE A. Taxonomy of Statutory Preemption B. Taxonomy of Administrative Preemption 1. Defining the Space 2. The Doctrine II. THE PARADOX-HYPOTHESIS A. The Original Structure B. The...
The Paradox of Administrative Preemption
III. THE "CONTINGENT CONCESSIONS" FOR MODERN GOVERNMENT This Part provides a stylized account of how the Framers' structural strategies of separation of powers and federalism have been repackaged to accommodate the modern administrative state. I...
Whose Religion Matters in Corporate RFRA Claims after Burwell V. Hobby Lobby Stores, Inc.?
Some hailed the decision as a victory for religious liberty, establishing that the government cannot ignore religious convictions and force business owners to facilitate what they view as murder. Others decried it as a massive setback for the rule...
Why the NSA Data Seizures Are Unconstitutional
Due to the unauthorized leaks of classified information, we have come to learn that the National Security Agency (NSA), an executive branch arm of the U.S. military, has established several data collection programs. In this article, I am not going...
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