1st Edition

Homeland Security Law A Primer

By Tyll van Geel Copyright 2019
    250 Pages
    by Routledge

    250 Pages
    by Routledge

    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.


    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

    2. PRISM

    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

    Select Bibliography



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