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National Security Law (5461)
Spring 2010
Exam Blog

I will post questions from students here so everyone can benefit from the answers. I will also include exam tips and clarifications of questions. The blog will close the evening before the exam. New material will be added at the top.

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Exam tip one - some study questions require independent thought and the application of common sense. Do not be afraid to use these tools.

The administrative warrant materials study questions have been incorporated into Chapter 18.

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> I just finished answering your questions and it comes out to
> 160 pages! I am a 3l about to graduate and I need the
> credits. There is no way that I can memorize all of this by
> tomorrow. How worried do I need to be?

If you have done that much, the only way you would not do well enough to get credit for the course is if the Men in Black flash your brain tonight.:-)

More seriously, on any of my exams there is a core of questions on clearly important stuff that everyone would recognize as something they need to know. Get most of those, and you do fine. There are also more subtle questions to make sure that I get a good distribution. The more of those you know, the better you do.

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> Any insights would be helpful:
>
> John Doe, Inc. v. Mukasey (Doe V), 549 F.3d 861 (2008) -
> think i have part of this one but not the other part.
> 1. procedure for judicial review of an order to disclose NSL
> must be narroly tailored to conform to 1st amendment standards and ??
> 2. I'm clearly misreading something in the holding. I'm not
> understanding what this means:
> provisions of amended Patriot Act mandating standard of
> review and level of deference court must apply in assessing
> validity under First Amendment of nondisclosure orders issued
> by FBI to recipients of NSLs violated First Amendment
> standards by providing that certification by senior
> governmental officials that disclosure may endanger the
> national security or interfere with diplomatic relations be
> treated as conclusive unless the court found that the
> certification was made in bad faith.

What was the FBI doing with their NSLs in Doe I that raised a first amendment issue? (Are search issues 1st amendment issues?) Why is the very deferential review mandated by the Patriot Act amendments a problem if there is a 1st Amendment issue? Did the court approve the practice that raised the 1st amendment issue? What did it suggest were acceptible alternatives for the real problem the FBI was concerned about?

> McGrain v Daugherty, 273 US 135 (1927)-? Confused by this
> one, what are we supposed to get out of it?

What does this tell us about the power of Congress to compel information from witnesses? Why this be hard to do if the witness was in the Executive branch?

> Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) - I think to
> paraphrase here - Pres. and/or military can't suspend habeas
> for violation of law or without state of war?

Who did the judge say was the only party that would suspend habeas corpus? (This triggered Lincoln's famous question about whether you can lose the nation to preserve the constitution.)

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Not on the exam, but a great article about the bungled investigation of the anthrax letters.

2010 edition of the Manual for Military Commissions (MMC) (Apr. 28, 2010)

Available here:  http://www.defense.gov/news/d2010manual.pdf (also not on the exam)

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