Homeland Security Law : A Primer book cover
1st Edition

Homeland Security Law
A Primer

ISBN 9781138369696
Published December 20, 2018 by Routledge
250 Pages

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Book Description

Since 2001 the U.S. government has been engaged in the delicate balancing act of seeking to protect the country against terrorism, both foreign-connected and wholly domestic, while taking into account a number of constitutional protections that can all too easily be trammelled in the effort to assure domestic security. At the same time the development of these policies has created significant constitutional tension among the three branches of the federal government, especially when the President vigorously asserts claims of sweeping power as commander-in-chief in such a way as to raise warnings about the emergence of an imperial presidency. Simultaneously, the rule of law has been placed under stress as the technological prowess of the government has grown.

This book addresses these topics in an accessible manner, covering the key developments of domestic security law related to terrorism. Tyll van Geel covers the essential elements of homeland security law including: branches of government and institutions involved in counterterrorism law; border control and immigration; surveillance; the searching of computers and cell phones; the prosecution of terrorists for any number of crimes, including cyberterrorism; military detention; the prosecution of unprivileged enemy belligerents in military commissions; and habeas corpus. The book is designed to offer a clear guide to current issues in domestic security in response to terrorism and will be a valuable guide for concerned citizens as well as undergraduate students studying domestic politics or national security.

Table of Contents


Chapter 1 – The Counterterrorism Enterprise

I. The Steering Mechanism

II. The Core

A. Overview

B. Core: Information and Intelligence Collection, and Related Activities

C. Core: Law Enforcement and the Prosecution of Terrorists

D. Core: The Other Operational Functions

III. Overseeing and Constraining the Counterterrorism Enterprise

A. The Mechanisms

B. Effectiveness

Chapter 2 – President Bush and Mass Surveillance

I. Mass Surveillance

II. The President's Surveillance Program (PSP)

III. The President's Article II Authority

IV. The Authorization to Use Military Force (AUMF)

V. The PSP and the Fourth Amendment: A Brief Note

VI. The PSP and the Foreign Intelligence Surveillance Act (FISA)


Chapter 3 – Mass Surveillance Today

I. How Bulk Databases Were/Are Made

II. The Debate: Mass Surveillance in the Balance

III. The Law: FISA, E.O.12333, and the Electronic Communications Privacy Act (ECPA)

IV. A FISA Overview

V. FISA and the Collection of Metadata

A. Telephony and Internet Metadata: FISA §1842 - Pen Register/Trap and Trace

B. Telephony Metadata: §215

VI. FISA and Collecting the Content of Communications

A. FISA §1805

B. §702 and Mass Content Collection

1. About §702


3. Upstream - U.S. and Upstream-External Collection

VII. Mass Surveillance and the Fourth Amendment

A. Collection

1. Is Collection a Search/Seizure?

2. Should a Warrant Have Been Obtained Prior to Collecting?

3. Is Bulk Collection "Reasonable"?

B. Retention

C. Querying

D. Contact Chaining, Social Networking Analysis, and FBI Assessments

Chapter 4 – Securing the Borders

I. Security Between Ports of Entry

II. Passports

III. Visas, Immigrants, and Refugees

IV. Pre-Departure Databased Screening

V. Arrival Screening at Ports of Entry

A. Who Enjoys the Protections of the Fourth Amendment at the Border?

B. Terminology and Principles

C. Routine Searches

D. Nonroutine Searches and Reasonable Suspicion

E. Computers and Cell Phones and Non-Forensic Searches

F. Computers and Cell Phones and Forensic Searches

G. Other Border Issues

VI. Exclusion Following Arrival

VII. Removal of Aliens

Chapter 5 – Airline Security and the No Fly List

I. Pre-flight Air Safety Searches by the Transportation Security Administration (TSA)

II. Behavior and Profiling

III. The No Fly and Selectee Lists

A. An Overview

B. Consequences

C. Substantive Standard For Listing a Name

D. Redress

IV. The Constitution and the Watch List

Chapter 6 – Investigating Individual Suspects

I. An Initial Alert

II. The Stages of a Terrorist Investigation

III. Public Information and the Third Party Doctrine

IV. Human Intelligence

V. Obtaining Stored Information

VI. Stored Information Held By Other Governmental Agencies

VII. Physical Searches

A. FISA Physical Searches

B. Other (Non-FISA) Search Authority

VIII. Real Time Surveillance

A. Pen Register/Trap and Trace (P/T)

B. "Wiretapping"

IX. Real-Time Tracking and Cell Phones

Chapter 7 – The Trial

I. Terrorism and Federal Crimes: A General Overview

II. Material Support

III. Cyberterrorism

IV. The Trial - Challenges Rooted in the Constitution

V. The Trial - Challenges Rooted in Statutes

VI. The Trial - Challenges Rooted in Federal Rules

VII. Pulling a Few Threads Together

Chapter 8 – Military Detention and Interrogation

I. Presidential Domestic Exercise of the Constitution's Article II Military-Detention Authority

II. The Detention of U.S. Citizens Seized On U.S. Soil

III. Limits on the Substantive Grounds for Detention

IV. The President and the Department of Defense

V. Congressional Authorization of Detention

VI. Taking Stock: Statutes and DOD Policy

VII. The Judicial Determination of The Authority to Detain

VIII. Procedural Due Process and Proving Detainability

IX. Indefinite Detention, Forced Feeding, and Torture

Chapter 9 – Military Commissions: Trials

I. Article III Courts and Courts-Martial

II. Military Commissions

III. The Authority of A President to Establish and Use Military Commissions

IV. Are there Limits on the Authority of Congress and the President to Establish Military Commissions?

V. Military Commission Procedures

Chapter 10 – Protection Against Being 'Disappeared'

I. Writ of Habeas Corpus: Background

II. Attempts to Deny the Availability of the Writ

III. Habeas Corpus Procedures

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Tyll van Geel is Earl B. Taylor Professor Emeritus, University of Rochester.