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National Security and Counterterrorism Law (5461) - Fall 2013

Professor Edward Richards

Exam updates!!!

> May we cite authorities that we are puling from? If, so can our citations
> not count against the word limit?

Good question. This is not a law review or research and writing assignment, so the key is to reference the key laws that the reader of your brief would need to know about. You do not need Blue Book cites, just enough information to identify the law or case, and only the key ones, not the endless cite bloat that we encourage in legal writing. This type of citation should not use up too many words, and this is already a long exam.
 

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First, remember that the exam is due on Friday. 

Think about your audience when you are writing the exam - what does the person reading it need to know, not just about the law, but also any background or policy that is necessary for context. OTOH, they do need to know law and not just policy. Think about what you knew before you took the course - what would be difficult for a person who does not know the material to understand? Again, there is no single best answer.

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>Just a quick question: The first two exam questions invite a comparison of authority, specifically, "U.S. law, customary international law, international human rights law, and applicable treaties and conventions". I am wondering if we are also supposed to international humanitarian law as well?

Thanks for raising this! I intended to include that as part of human rights law, but clearly that is ambiguous. Include international humanitarian law, and I will pass this on to everyone else.

> Okay I got one more, but this is more of a request I think…would it be possible for you to clarify the citizenship status of those being detained, tortured, killed, investigated etc.? Without this narrowing in scope I fear for the "tightness" of my memo. But if this is the type of academic exercise you were going for, then I understand.

That is part of the problem.

 

 

Course Information

Required Text (You can buy this online if they are not available.)

Counterterrorism Law, Second Edition - Stephen Dycus, William C. Banks, Peter Raven-Hansen, 2012. 864 pages. ISBN: 13: 978-07355-9863-8. There is a supplement that will be necessary because of all the changes in the past year.

There are used copies of the text available on Amazon and Bookfinder.com. Just make sure you get the second edition. The supplement has to be the 2013-2014 edition, so there will be no used copies.

Class participation can affect your final grade. We may have quizzes that will count toward the final grade.

Resources

Constitutional Powers

Congressional Powers

Declaring war

Raise and support armies

The navy

Regulation of the military

Calling up the militia

Governing state militias

Presidential Powers

Commander in Chief

Ambiguous Powers

Habeas corpus

National Security Law Cases and Materials

Bioterrorism Resources

Secrecy News Blog (free subscription) - an excellent source of information about national security issues.

Interesting Links

http://www.propublica.org/article/defenders-of-nsa-surveillance-web-omit-most-of-mumbai-plotters-story

http://www.propublica.org/article/worried-about-the-mass-surveillance-how-to-practice-safer-communication

http://www.npr.org/2012/05/09/152296621/cyber-briefings-scare-the-bejeezus-out-of-ceos?sc=17&f=1001

The Twitter ruling, standing for the defendant, and Twitter's motion to quash.

http://www.propublica.org/article/how-many-millions-of-cellphone-are-police-watching

http://www.propublica.org/article/classified-in-gitmo-trials-detainees-every-word

http://www.saltlaw.org/blog/2012/07/19/targeted-killings-urgent-autopsy-egypts-spymaster-omar-suleiman-bring-light-on-al-aulaquis-and-khan/

Rand Paul on drones and bathing suits

CRS - NSA Surveillance Leaks: Background and Issues for Congress, July 2, 2013

Assignments

You should check the WWW site for assignment information and course changes every day before class.

All assignments are subject to interruption by current events. National Security Law is a dynamic field and we will address breaking news as it happens.

20 Aug

Remarks of the President at the National Defense University, May 23, 2013

Chapter 1

Alien Tort Claim Act

More info on the Alien Tort Act

22 Aug

NSA/CIA on the WWW

Sosa for reference in class - paragraphs 67, 74, 78, 81, 82

See the email I sent for a breaking news story on NSA snooping. (If you did not get the email, or have trouble downloading the documents, send me a note and I will send it to you directly - richards@lsu.edu) We are going to do our intro to the cyberworld this class, rather than later in the term so we can follow this story as it develops. All you have to read is the WSJ story in the email, I do the intro on the board. temp

Structure of a packet

Example of preventive detention in NYC

27 Aug

Will we go to war over IHR violations?

How the NSA looks from Germany

Finish Chapter 1

Chapter 2, part A.

Testimony on the US Cyberwar capabilities before the House subcommittee on intelligence. - we are not reading this for class at this point, but it is fascinating if you are interested in cyber security.

29 Aug

Chapter 2, to the end.

NSA Surveillance Lawsuit Tracker

Castro corrections - he was never that good a ball player - he went to Havana Law School, not Harvard law school, and the dictator was Batista.

Materials for the class discussion

Geneva Convention Reference Site

Rome Statute of the International Criminal Court - Parse Section 8, war crimes.

Security Council Resolution 1973 - what was authorized in Libya?

Syria updates:

Why is Syria so complicated?

Syrian Electronic Army

Chemical Weapons

More strikes

What will we do?

What will Iran do?

How about Russia?

Why did he use them?

Syria is a perfect case of the problems in enforcing IHR. Look at the stories and think about it in the context of the Conventions we read for Tuesday. We will discuss it in class.

3 Sept

If you thought that the NSA was nosy.

Chapter 3 - think about Syria as you read about the power to make war.

Syria - the basics

Who is really behind the gas?

Syrian Rebels Claim Saudi Prince Bandar Responsible For Chemical Weapons Attack

Syria - Jurist aggregator

Punitive military strikes on Syria risk an inhumane intervention

If you think the NSA is bad, try the Putin-controlled Chrome toolbar

5 Sept

General advice for perparing for class - work through the Notes and Questions sections in the chapters.

Finish Chapter 3.

Chapter 4 to 117.

A more credible news outlet raising questions about the gas attack.

National Security Law Blog - excellent discussion of the Syria issues.

Human rights abused by Syrian rebels

10 Sept

Death of the Alien Tort Statute

N.S.A. Able to Foil Basic Safeguards of Privacy on Web - how to foil the NSA

Finish Chapter 4. Chapter 5 to 153.

The domestic politics of Syria

Peacekeeper liability

Get your passport ready

12 Sept

Finish reading Chapter 5. This is an important chapter and it will take more than one class to work through the material. But the earlier parts make more sense if you have also read the later material.

Best reporting on drones I have seen

NYTimes: Court Says Privacy Case Can Proceed vs. Google

More NSA/FISA documents declassified

17 Sept

More accurate

Finish our discussion of Chapter 5. Look hard at the different legal authority for the CIA, FBI, and NSA at their origin, how CHAOS and COINTLPRO questioned the legal oversight of the agencies, and how EO 12,333 attempted to fix this. Then look at the Sharing Information section and how the relationship between the agencies was changed in the wake of 9/11. Is it a good thing to have a unified state/federal intelligence system? Putting aside civil liberties concerns, are the practical concerns about having the DNI filter all the intelligence that goes to the president?

This will begin our discussion of the 4th Amendment:

Camara v. Municipal Court City and County, 387 U.S. 523 (1967), especially par. 23-56. Slides

19 Sept

New York v. Burger, 482 U.S. 691 (1987)

Chapter 6, parts a & b.

24 Sept

Eagan Order, Foreign Intelligence Surveillance Court - Today the Foreign Intelligence Surveillance Court released a previously classified opinion reauthorizing the collection of bulk telephony metadata under Section 215 of the USA Patriot Act. The opinion affirms that the bulk telephony metadata collection is both lawful and constitutional. The release of this opinion is consistent with the President’s call for more transparency on these valuable intelligence programs.

26 Sept

Continue discussion from last class. Finish Chapter 6. Updated slides from last class if you want the complete set.

Facebook and your expectation of privacy

1 Oct

FISA Definitions

Chapter 7

Chapter 8, section A.

2 Oct

Chapter 8. Clapper, page 7 in the supplement. Available here if you do not have access to the supplement.

8 Oct

How a Telecom Helped the Government Spy on Me

Grapping a suspect on foreign soil

Ransoming privacy

Syrian Chemical Weapons

The Silk Road Closed (maybe) - implications for national security?

A good piece on why you should care about your data even if they do not do anything wrong:

http://www.npr.org/blogs/alltechconsidered/2013/10/04/228199021/your-digital-trail-data-fuels-political-and-legal-agendas

It has a nice piece by John Dean reminding us that the Nixon enemies list was mostly people who not only did nothing wrong, but were trying to do something right. It then reminds us that in many states private lawyers can get all this third party data with a subpoena that is not overseen by the court.

Chapter 9

10 Oct

Chapter 10 to 303, profiling.

Substitute United States v. Cotterman United States Court of Appeals for the Ninth Circuit, Mar. 8, 2013 709 F.3d 952 (en banc) from the supplement for Arnold in the book.

Add Ibrahim v. Department of Homeland Security United States Court of Appeals, Ninth Circuit, Feb. 8, 2012 669 F.3d 983 after Gilmore (p 303).

(If you do not have access to the supplement, you can read the cases on Westlaw/Lexis.)

This is a dense chapter with important cases. Read carefully.

15 Oct

Finish Chapter 10. Read carefully, there is a lot of meat here. Profilling is one of the most difficult issues in national security law.

Is the ICC racist?

C.I.A. Warning on Snowden in ’09 Said to Slip Through the Cracks

Does the US comply with chemical weapons accords?

How to secure your computer from the NSA

The surveillance state - local version

Study questions from last year - this was a somewhat different course, in that it covered war powers and international intervention, so these do not match up completely with our course. The exam was also different, in that it was six hours, open book and notes, no Internet. It was three questions, each 1000 words. Our exam will have a lot more time, and I have not decided on the length, but it will be at least 1000 words per question. Given the different format, these are only samples, not a list of what questions I will pick from. The best way to prepare is to read all the materials before class, and then note anything important you have learned in class. There will not be anything on the exam that you cannot figure out using the book, it will be more of an exercise in thinking about the problem and using the law with some imagination.

22 Oct

Chapter 11

Darknets

24 Oct

Chapter 42 (Handout)

29 Oct

Chapter 43 through p. 1303 (C. PUBLICATION AS A CRIME?)

The Pentagon Papers (you do not have to read them)

31 Oct

Finish Chapter 43 and discussion from last class.

Read these supplements:

Department of Justice Report on Review of News Media Policies

United States v. Sterling

5 Nov

Chapter 12

In re Washington

7 Nov

Chapter 13 and Chapter 14 to 401.

12 Nov

Finish Chapter 14 and read Chapter 15. These cover cases we have already discussed a bit or that you have studies in Constitutional law, so it should not be too painful.

14 Nov

Al-Zahrani v. Rodriguez, 669 F.3d 315, 319. (D.C. Cir. 2012) (in the supplement) and the following note on page 143 of the supplement.

Chapter 16 to p 490.

The relevance of IHL in the context of terrorism

19 Nov

Citizen surveillance in China - notice what they call their surveillance camera system.

I may be late to class on Tuesday. You can start the discussion without me.

Finish Chapter 16

Hedges

Read Chapter 17

21 Nov

Chapter 18

We will try to wrap up 17 and 18 and make sense of the law of interrogation.

Have we really banned torture?

26 Nov

Chapter 19.

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