Surveillance
| Pages | 14-18 |
14 Volume 19, January–March 2013 international law update
© 2013 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
Tribunal for the Former Yugoslavia, adopted by
S.C. Res. 827, U.N. Doc. S/RES/827 (1993),
reprinted in 32 I.L.M. 1159, 1192; Statute of the
International Tribunal for Rwanda, adopted by S.C.
Res. 955, U.N. Doc. S/RES/955 (1994), reprinted
in 33 I.L.M. 1598, 1602 (includes terrorism itself
as a crime); Statute of the Special Court for Sierra
Leone art. 3(d), Jan. 16, 2002, 2178 U.N.T.S.
138 (same). Nor have any international tribunals
exercising common-law-type power determined that
material support for terrorism is an international-
law war crime.” […]
“In short, neither the major conventions on
the law of war nor prominent modern international
tribunals nor leading international-law experts
have identied material support for terrorism as a
war crime. Perhaps most telling, before this case,
no person has ever been tried by an international-
law war crimes tribunal for material support for
terrorism.” […]
“To be sure, there is a strong argument that
aiding and abetting a recognized international-law
war crime such as terrorism is itself an international-
law war crime. And there are other similar war
crimes. But Hamdan was not charged with aiding
and abetting terrorism or some other similar war
crime. He was charged with material support for
terrorism.” […]
“In short, material support for terrorism was
not an international-law war crime under 10 U.S.C.
§ 821 at the time Hamdan engaged in the relevant
conduct.”
“Because we read the Military Commissions
Act not to sanction retroactive punishment for new
crimes, and because material support for terrorism
was not a pre-existing war crime under 10 U.S.C.
§ 821, Hamdan’s conviction for material support
for terrorism cannot stand. We reverse the decision
of the Court of Military Commission Review and
direct that Hamdan’s conviction for material support
for terrorism be vacated.” [Slip op. 21-28]
: Hamdan v. United States, No. 11-1257
(D.C. Cir. December 16, 2012).
SURVEILLANCE
U.S. S C
F I S
A (FISA) ;
S C’
()
, ()
In the following case, the U.S. Supreme
Court rejects the challenge brought by Amnesty
International (and several other parties) to Section
702 of the Foreign Intelligence Surveillance Act of
1978 (FISA), 50 U.S.C. Section 1881a. Section
1881a was added by the FISA Amendments Act of
2008, and permits the Attorney General and the
Director of National Intelligence to obtain foreign
intelligence information by jointly authorizing
the surveillance of individuals who are not “U.S.
persons” and who are reasonably believed to be
outside the U.S. Such surveillance usually requires
advance approval by the Foreign Intelligence
Surveillance Court (FISC).
Several U.S. parties, human rights organizations
and attorneys (“Respondents”), claim that they
are likely to engage in communications with
international individuals who may be targeted by
Section 1881a. e District Court for the Southern
District of New York found that the Respondents
lacked standing. e U.S. Court of Appeals for
the Second Circuit reversed because Respondents
showed an “objectively reasonable likelihood” that
their communications will be intercepted, and that
they are suering present injuries because of costly
and burdensome measures they have to take to
protect their communications from Section 1881a
surveillance.
e U.S. Supreme Court granted certiorari
and now nds that the Respondents lack Article
III standing. e opinion was written by Justice
Alito, joined by Roberts, C.J., Scalia, Kennedy and
omas.
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