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Exam Blog

National Security Law - Spring 2009

I will post answer to questions here, as well as clarifications of material.

Questions are flush, my answers are indented.

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Blog closed - Good luck! 11:30 PM

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What if the US has signed an agreement with the foreign government to use its legal process, then fails to do so?
 
Should this be the basis for exluding evidence, if it would otherwise be admissible?

You misunderstand - you have to answer the questions.:-) More seriously, look again at that case about searching the US citizen's home in Africa. The opinion talks about whether a foreign warrant makes any sense in the US court's analysis. Then you have to figure how you would argue this either way.

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Remember, the exam is shorter answer than previous exams in national security law. More like the last couple of administrative law exams.

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Enforcing Treaties
What is the international law significance of a treaty?
What happens if a country does not honor a treaty?
How are international trade rules enforced?
Is there an international law enforcement system for other treaties?

I understand that we can get around treaties by using Executive Agreements. I just can't seem to find any info on how treaties are actually enforced. I would guess that they aren't really--maybe sanctions, trade restrictions, etc. As circumstances change the treaties become outdated and are either "interpreted" differently or just ignored. This is my understanding of the subject, but I'm not sure that it really answers these questions that you are asking.

I think you know more than you think and are getting to the heart of the answer.

 

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Im having some trouble as I think about the question regarding whether Congress can shut down the state department by cutting off or not appropriating any funding. It seems like they can do this, but we also have law which says that congress cannot do something through appropriation that they otherwise could not do constitutionally. What is the answer here? Is it an alternative argument where ti could go either way?

Put on your adlaw hat. Where do the powers of an agency come from? Where does the money come from? What are the constitutional requirements for a state department? Is the state department a constitutional agency at all? Are the constitutional duties that the state department has to do?

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I notice that some of the questions on your "exam questions sheet" are opinion based (i.e. "Is this better than the separation of powers problem posed if the court intervened in a war powers case?"). Are we to just give you our best opinion as the answer or is there something more that you would like? (i.e. are we arguing our personal policy preferences based on a logical framework or are there some cases or other substantive material we should we using?).

The question is to force you to think about the policy and whether it is a good choice. If this were an exam question, you would need to explain the alternatives, not make a value judgment.

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Under Chapter 5, the question: When would the contingent authority and international law dominos revert to a pre-war state?

What are you asking here, can you clarify?

We discussed all things that follow from a declaration of war and how those things would be wound up when the war is over. This question is about what happens to all of those consequences when we have a war which we just quit fighting without a treaty or other formal end. We never had a treaty to end the Vietnam war, we just pulled out. We will probably never have an end to the war on terror.

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> In the Ch. 19 review questions you ask if the 2008 Amendment
> to FISA, Article 702, create an area warrant. I would guess
> you would not ask unless it did, but I cannot find the language.

I might ask either way.:-) There is no area warrant language, but look to see if there are circumstances where it allows a broad search without specific probable cause.

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Are administrative searches on the test?

Only to the extent that they are addressed in the study questions. Our discussion of administrative searches was to set up FISA.

 

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