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National Security and Counterterrorism Law (5461) - Fall 2014

Professor Edward Richards

Text

Counterterrorism Law, Second Edition - Stephen Dycus, William C. Banks, Peter Raven-Hansen, 2012. 864 pages. ISBN: 13: 978-07355-9863-8. (Bookfinder)

There are used copies of the text available on Amazon and Bookfinder.com. Just make sure you get the second edition.

I am still researching the supplement.

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.

Aug 19

There is no reading assignment for this class. We will discuss the organization of the class and the nature of national security law.

http://www.msnbc.com/rachel-maddow-show/the-weapons-war-us-citys-streets

http://nymag.com/daily/intelligencer/2014/08/insane-militarization-police-ferguson.html

August 21

In the news - the ransom issue

Read Chapter 1

http://www.whitehouse.gov/the-press-office/2014/05/28/remarks-president-united-states-military-academy-commencement-ceremony

Alien Tort Claim Act

Factsheet on Alien Tort Claim Act

Terrorists or Statesmen?

King David Hotel Bombing - Menachem Begin, one of the bombers, becomes Israel’s sixth Prime Minister.

Yasser Arafat

 

August 26

Execution and Ransom

Read Chapter 2

This chapter introduces the Geneva Convention. It is dense reading, but very important. There are Notes and Questions after each section. Use these to help you parse the reading. We will at this pretty closely and may take more than one class. Figure out the different classifications of individuals under the Conventions, which have been ratified and which have not, and the limitations on their application, i.e. what about non-state warfare.

In the news: Is ISIS a real threat?

 

August 28

Finish discussion of Chapter 2

Chapter 3 to page 82. This complements Chapter 2 by giving us the basic war powers.

September 2

Finish Chapter 3 - Chapter 3 is about the President's authority to use military force without a declaration of war, including without any authorization from Congress. Think about why this is relevant with what is happening in Iraq right now:

Obama, Iraq and the Coming War Powers Fight With Congress

Listen to this podcast:

http://www.radiolab.org/story/60-words/

This is the background for the AUMF after 9/11.

Get ready for another exciting class discussion!

September 4

Chapter 4 - Targeted Killings

Think about the difference between a targeted killing and an assassination. In a legal sense, is a drone any different from a sniper?

September 9

Same materials as last class. Think about the role of targeted killings in conflicts such as the one developing in Iraq and the ongoing conflict in Syria.

September 11

Packets

This famous poem, written by Britain's imperial poet, was a response to the American take over of the Phillipines after the Spanish-American War.

9/11 Secrets come back to question new alliance with the Saudi Arabia,

The President's speech

You cannot make these things up

A reminder that Iraq was pretty broken before the 2nd Gulf War

NYTimes: Our Reluctant National Security President :http://nyti.ms/1qfyiP0 - Should we be in Syria, even if it has nothing to with our own security?

At the Nexus of Cybersecurity and Public Policy: Some Basic Concepts and Issues.

You can download this from the NAP press here:

http://www.nap.edu/catalog.php?record_id=18749

Read Chapters 1 & 2. 1 should read fast but read it! 2 will be simplistic if you know about Internet technology, but if you do not, read it closely. You need to understand this to function as an attorney in the modern world. We will discuss these chapters in class and I will draw on the board to introduce you to the packet-switched world.

September 16

Modern media, medieval message

The last time we made a real advance in the mid-east

No Comment Necessary: The Saudi Arabia-Syria Border?

http://nyti.ms/1nQG1h4

Chapter 3 in the NAP book.

September 18

Hacking Steve's Cloud

This  is just out:

What Bladerunner Got Wrong - it is a short piece on how the pervasiveness of social media has desensitized us to privacy concern so that we are giving away our rights in potentially troublesome ways.

Continue our discussion from the previous class.

September 23

I am not the only person worried about training camps for moderates in Saudi Arabia

Review from last class.

Abuse of discretion and excessive force in administrative searches - Berry v. Leslie, 13-14092, 2014 WL 4558168 (11th Cir. Sept. 16, 2014)

Slides reviewing the basics of administrative searches

Assignment for this class

Ebola: The Plague Fighters

Hell in the Hot Zone

Smallpox 2002 (Silent Weapon) - teaser

The United States Smallpox Bioterrorism Preparedness Plan: Rational Response or Potemkin Planning? - alternative site if you have trouble with the first site

September 25

Ebola update - it may stick around.  - This would be what you would expect if the control efforts do not get at the root cause of the spread of the disease, insanitary medical systems. We could never get rid of cholera, at waterborne illness, until we built a sanitary drinking water system.

CIA Halts Spying on Friendly Governments in W. Europe

Dirty War

GAO - Hospital Emergency Preparedness and Response During Superstorm Sandy - Hospitals are run on a "just in time"  basis, meaning that they do not keep much in extra supplies or capacity.

License plate scanner networks capture millions of vehicles' movements across the US,http://www.nola.com/news/index.ssf/2014/09/license_plate_scanner_networks.html

September 30

Cybersecurity Insurance

Chapter 5 - Text. This chapter lays out the structure of the intelligence agencies and some of the history. There are few cases, mostly just a review of the statutory powers and the shift post 9/11 from a wall between domestic and foreign intelligence to the current system where the two are merged. We will review the powers, and abuses (Church Committee) and the reforms that followed, then how the system was restructured after 9/11.

Two views of the history of the CIA:

Legacy of Ashes - NYT review

Legacy of Ashes - CIA review

 

October 2

Chapter 5

Did Obama Just Unify America’s Enemies?

NYTimes: Ebola Is Diagnosed in Texas, First Case Found in the U.S.
http://nyti.ms/ZpgjuI

And they screwed it up:

http://www.npr.org/2014/10/01/353048440/dallas-ebola-patient-was-not-diagnosed-on-first-hospital-visit

Getting to the real cause of Ebola outbreaks

NYTimes: When Privacy and Law Enforcement Collide - Should Apple have a backdoor for the FBI?

http://nyti.ms/1tf5y5a

 

October 7

Finish discussion of Chapter 5. Read Chapter 6, supplement pages 82-84.

http://www.foxnews.com/politics/2014/10/01/enemy-or-asset-fbi-documents-show-radical-cleric-awlaki-communicated-with/

NYTimes: Delay in Dallas Ebola Cleanup as Workers Balk at Task
http://nyti.ms/1nREQnd

NYTimes: Understanding the Risks of Ebola, and What ‘Direct Contact’ Means
http://nyti.ms/1x4FLAA

NYTimes: Contact Tracing Is Called Pivotal in Fighting Ebola
http://nyti.ms/ZwNhcx

 

October 14

Read Chapter 7. Supplement pp 84-85. This is a very dense and important chapter. Read it carefully! Study questions to help you prepare for class.

Do the Turks like Isis better than the Kurds?

NYTimes: Twitter Sues U.S. Government Over Data Disclosure Rules

NYTimes: Paying Respects, Pentagon Revives Vietnam, and War Over Truth

http://nyti.ms/1ye9n1B

NYTimes: Dimon Calls for Help on Cyberattacks

http://nyti.ms/1yhU8ES

NYTimes: Fox News Reporter Fought Subpoena in Justice Dept. Leak Inquiry

http://nyti.ms/1CZoax0

 

October 16

Please listen to the speaker at 12:40, Tim Osborne. He will be talking about sea level rise, subsidence, and their impact on the long term future of the Louisiana coast. If this talk runs late, I will be late to class because I am the host. (This is not required, but highly recommended.)

The epidemiology of epidemics - how many cases you estimate in the future depends on where you think you are on the curve.

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

How falling oil prices are squeezing Russia, Iran, and Saudi Arabia

NYTimes: C.I.A. Study of Covert Aid Fueled Skepticism About Helping Syrian Rebels

http://nyti.ms/1xQxkch

October 21

Chapter 9 Chapter 9 Study Questions

More info on Doe - Doe was the owner of the small ISP that got the NSL. It just happened that the NYC ACLU was one his ISP clients. Or maybe that was not just conincidence, but we cannot know because he still cannot tell you want the FBI wanted. Here is the record of the lititgation, and here is his interview on On the Media. Read the interview for class.

The (redacted) NSL from the Doe Case

Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014) - Police need a warrant to search a cell phone. - How does the court change the analysis for cell phones from the notion of searching a brief case? Does this case represent a changing view of the expectation of privacy in the electronic world?

The National Security Agency: Missions, Authorities, Oversight and Partnerships, 2013

This reviews the current authority for NSA surveillance. We will review it in class to see where the NSA stands after the recent cases and amendments.

 

 

October 23

NYTimes: Gunman Panics Ottawa, Killing Soldier in Spree at Capital - when is it a crazy guy and when it is a terrorist, why does it matter?

http://nyti.ms/1ykyoFB

NYTimes: Blackwater Guards Found Guilty in 2007 Iraq Killings
http://nyti.ms/1tfq1Lk

Globola

Chapter 10.

Replace Arnold with United States v. Cotterman, 709 F.3d 952 (Cir9 2013) from the supplement. Add Ibrahim v. Dep't of Homeland Sec., 669 F.3d 983 (9th Cir. 2012) from the supplement. (You can read these online if you do not have access to the supplement.

Add Ibrahim I and Ibrahim II  from supplement.

Study questions, not including Ibrahim II. Ibrahim II Questions

October 28

Chapter 11 - Study Questions

Hernandez v. United States, 757 F.3d 249 (5th Cir. 2014) (html)- This is a fascinating case that reviews several important areas of law. Study questions.

The most serious intrusion into rights

Steampunk metadata

Ebola confusion

October 30

LA Stupid de jure

Read Chapter 42 from the Moodle email. Study Questions - Chapter 42

Intelligence Community Directives - read 119 - Media Contacts

Liberia: The Hidden Truth About Ebola

An interesting 1st Amendment question

November 4

The dark side of the Internet

 My interview with Voice of American

Chapter 43 to D. INNOVATIONS IN CENSORSHIP - Study Questions Read this all carefully. The Pentagon Papers case is a pivotal event in US intelligence history.

Intelligence Community Directives – read 119 – Media Contacts - from last class

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

November 6

Trial court allows police to use "Glomar" response to deny records requests

Finish Chapter 43 - Questions - remainder of Chapter 43 and Sterling

US v Sterling

Department of Justice Report on Review of News Media Policies

The Twitter ruling - read this.

November 11

Chapter 12. - Study Questions  -  Lots of important material.

Social media surprise

The Mariel Boatlift and Subsequent detentions - the case

November 13

NYTimes: Fearing Bombs That Can Pick Whom to Kill

http://nyti.ms/1uZOQgs

Is this where we are headed?

Chapters 13 and 14. Questions

Al-Zahrani v. Rodriguez, 669 F.3d 315 (D.C. Cir. 2012)

November 18

Chapter 15 - we are skipping this chapter because you should have seen the cases in Constitutional law. You can look at the study questions as a quick review for our discussion of Korematsu.

Chapter 16 - we are concerned about Hamdi and Ali Saleh Kahlah al-Marri - read to answer the study questions  - Study Questions

Chapter 17 - read this so we can start our discussion of torture.

November 20

News

Lawyer speaks of Guantanamo injustice

Freedom Act to curb NSA surveillance dies in US Senate

NYTimes: Mail Monitoring Rarely Denied, Postal Service Says

http://nyti.ms/1F1VJxz

(Thursday's assignment)

Chapter 18

Evan Wallach, Drop by drop: Forgetting the history of water torture in US courts, 45 Colum. J. Transnat’l L. 468 (2006). Read through this. This is critical to deciding if the torture memos were written in good faith or whether they intentionally distorted the law.

Three views on the US position announced this week on the application of the convention against torture:

Gabor Rona - http://justsecurity.org/17558/obama-administrations-position-torture-convention-new-yes-significant/

Harold Hongju Koh - http://justsecurity.org/17551/americas-unequivocal-yes-torture-ban/

John Bellinger - http://www.lawfareblog.com/2014/11/u-s-delegation-asserts-article-16-of-convention-against-torture-applies-outside-u-s-territority-in-certain-circumstances-but-law-of-armed-conflict-takes-precedence-in-situations-of-armed-confli/

Criticism of these positions: http://www.blog.saltlaw.org/just-sayin-cmon-man-playing-family-feud-with-the-american-newspeak-on-torture-obligations/

November 25

(Last class assignment)

Continue our discussion from last class if necessary.

Exam Updates

Interesting quote, given the torture report:

Breyer -

"The majority also writes, "Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction." Ibid. I very much agree that pirates were fair game "wherever found." Indeed, that is the point. That is why we asked, in Sosa,who are today's pirates? Certainly today's pirates include torturers and perpetrators of genocide. And today, like the pirates of old, they are "fair game" where they are found. Like those pirates, they are "common enemies of all mankind and all nations have an equal interest in their apprehension and punishment." 1 Restatement *1673 § 404 Reporters' Note 1, p. 256 (quoting In re Demjanjuk,612 F.Supp. 544, 556 (N.D.Ohio 1985) (internal quotation marks omitted)). See Sosa, supra, at 732124 S.Ct. 2739. And just as a nation that harbored pirates provoked the concern of other nations in past centuries, see infra,at 1674, so harboring "common enemies of all mankind" provokes similar concerns today."

http://scholar.google.com/scholar_case?case=15509503170515180438&hl=en&as_sdt=6&as_vis=1&oi=scholarr

-------------

The summary of the torture report is out! Check out the New York Times!

Breaking news - the summary of the Senate torture report may be released soon:

https://firstlook.org/theintercept/2014/12/02/x-things-keep-mind-ever-get-read-torture-report/

Question:

 I am having trouble locating good resources for the Asymmetric warfare question.  I have looked through the book but there is not a lot mentioned about the subject.  I have created a rough outline for my discussion but do not feel that I have enough information to cover the question and am feeling lost.  If you can provide any guidance thank you, if this is not an answerable question than thank you for your time and I will carry on.

 Answer:

You are not limited to the book:

  ➢ This is an open book, open materials exam, but it must be your own work. You may not confer with others and you must attribute any published work that you use.

 Does that help?

 

 

 

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