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National Security and Counterterrorism Law (5461) - Fall 2015

Professor Edward Richards


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.


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

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

August 18

In the news - Lobbying Fight Over Iran Nuclear Deal Centers on Democrats

All the assignments will be posted to this blog. Check before class for breaking news updates. I reserve the right to use class participation points.

Seating - this is a small class in a big room. Please sit toward the center on the first few rows.


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. You can also rent the book from Amazon, which looks like a good deal.

National Security Law and Counterterrorism Law: 2015-2016 Supplement 2015th Edition

You need the supplement and it needs to be the current one. This subject has been changing by the month for the past 10 years. The supplement may not be available when the class starts so I will provide you copies of any needed materials.


The White House, National Security Strategy, Feb. 2015

Read this for the basic content, not to memorize details. What is the definition of national security as outlined in this document? What are the components of US national security policy?

This will give us a starting point to discuss the organization of course and what we hope to learn during the course.


August 20


Hack of the Day

For Hillary Clinton, Another Grilling About Emails

South Korea says it exchanged fire with North Korea at border

Read Chapter 1

Alien Tort Claim Act

Kiobel v. Royal Dutch Petroleum Co. 569 U.S. ___ (2013) - ATC limited to its original statutory definitions, no general mandate for US enforcement of international law.

Just read the syllabus. This does not change the cases we read for our purposes, but I want you to understand that the ATC is dead.

Terrorists or Statesmen?

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

Yasser Arafat

Terrorist or Criminal?

Charleston Shooting

Abortion clinic bombers


New Town

Oklahoma City



August 25

Chapter 2.

This is pretty dense, read it carefully. There are Notes and Questions after each section. Use these to help you parse the reading. We will parse 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.

The Nuremberg Trials

The Japanese War Crimes Trials

Common Article 3

The International Criminal Tribunal for the former Yugoslavia (ICTY

The best national security blogs


Just Security

The Defense of Hillary Clinton's Email Server That She Dare Not Utter

Europe Facing New Uncertainty in Terrorism Fight

ISIS Blows Up Ancient Temple at Syria’s Palmyra Ruins

From Venezuela to Iraq to Russia, Oil Price Drops Raise Fears of Unrest


August 27

Chapter Three, through page 82.

Constitutional war powers

Responding to threats and disasters

September 1

Assignment from last class - read to end of chapter 3.

The Lessons of Anwar al-Awlaki


Constitutional Powers

Congressional Powers

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water

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

September 3

Finish our discussion of Chapter 3. Read D. DEFENDING AGAINST AL QAEDA carefully, it is the authority for the war on terror and we want to look at that in depth.

September 8

The Lessons of Anwar al-Awlaki

The balance of power shifts

Chapter 4 to p. 117, D. U.S. LAW AND EXECUTIVE ORDER NO. 12,333.

Read carefully, this is dense and important material. If international human rights law is not binding and legally enforceable, how should we treat it in our legal system?

September 10

Are the Syrians the first official climate change refugees?

The objective of these readings is to understand how the president has used executive orders to craft some sort of due process for targeted killings.

Self-Imposed Limits on Targeted Killings

Finish Chapter 4

Readings from the supplement: (if you do not have the supplement, these are on the WWW, just google them.)

p. 91 Remarks of the President at the National Defense University, May 23, 2013

p. 95 U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations
Outside the United States and Areas of Active Hostilities, May 22, 2013

p. 98 E. Targeting a U.S. Citizen

p. 99 Department of Justice, White Paper: Lawfulness of a Lethal Operation Directed Against a U.S.
Citizen Who Is a Senior Operational Leader of Al-Qa’ida or an Associated Force, Draft Nov. 8, 2011

p. 111 U.S. Department of Justice, Office of Legal Counsel, Applicability of Federal Criminal Laws
and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi, July 16, 2010

September 15

U.S. Drops Charges That Professor Shared Technology With China - an example of the inability of the security agencies to understand high tech issues.

Another view of US human rights politics

The Ten Biggest American Intelligence Failures

Chapter 5. We are going to spend more than one class on Chapter 5, but we are going to talk across the entire chapter. It is dense and interesting, especially the Church Committee materials. Please read it all because it introduces two core issues in national security:

Is more data the same as more intelligence?

Intelligence silos versus forcing all intelligence through the same filter.


September 17

Stupid National Security Story of the Day

Texas Student Is Under Police Investigation for Building a Clock

The Collection of Presidential Briefing Products from 1961 to 1969

Finish Chapter 5

September 22

Stephen Breyer’s ‘The Court and the World’ - The Supreme Court and International Law

Review: Scott Shane’s ‘Objective Troy,’ on Killing the American Jihadist Anwar al-Awlaki

Cuba's Mysterious 'Numbers Station' Is Still on the Air

Anonymous group launches phase of cyber-attacks against ISIS

We do not have a specific reading assignment for Tuesday. I am going to give you an overview of administrative searches and we will discuss them based on the materials I present. You should have seen some of the relevant cases in ACJ, but this is a new way to look at them.

Slides reviewing the basics of administrative searches

Review these before class. Revised 9/21/2015 at 9:15 AM

September 24

Rats in NYC

Finish our discussion of the 4th Amendment and talk about the law governing information held by third parties.

Slides reviewing the basics of administrative searches


Be sure to pick up the addition to p. 167 in the supplement at p. 116.

September 29

Finish readings as last class. We are then going to do our intro the packet-switched world discussion.

Read Waldrop, Mitch. “DARPA and the Internet Revolution.” DARPA: 50 years of bridging the gap (2008): 78-85.

Great history of the Internet.

At the Nexus of Cybersecurity and Public Policy: Some Basic Concepts and Issues (2014)

Excellent introduction to cybersecurity – free download.

Read the first two chapters. This is about the jargon and basic issues. Much more interesting than cases or legal articles.

News Items

Police Program Aims to Pinpoint Those Most Likely to Commit Crimes

National security surveillance techniques applied to domestic policing. What problems do you see with this?

Pulling Back The Curtain On DARPA, The Pentagon's 'Brain'

The folks who really invented the Internet.

Postal Service Failed to Protect Personal Data in Mail Surveillance, Report Says http://nyti.ms/1MLOvXv

What is in a packet?

On the Internet, a typical packet length is about one kilobyte, or a thousand characters. A large message may be divided into thousands of individual packets. The beginning of an packet is called the "header" and records the following information:

IPv4 and IPv6


October 1

Snowden on the John Oliver Show

Brilliant discussion of the problem of getting people to care about privacy. (R rated) You need to watch this by next week because it is a good introduction to the Patriot Act issues we will discuss in future classes.

News Items

Police Program Aims to Pinpoint Those Most Likely to Commit Crimes

National security surveillance techniques applied to domestic policing. What problems do you see with this?

Postal Service Failed to Protect Personal Data in Mail Surveillance, Report Says - http://nyti.ms/1MLOvXv

Now Following the N.S.A. on Twitter, @Snowden - http://nyti.ms/1KPx3Lg

Chinese Official Faults U.S. Internet Security Policy - http://nyti.ms/1NZGzAI

Two views of the CIA

Legacy of Ashes - NYT review

Legacy of Ashes - CIA review

Reading assignment

At the Nexus of Cybersecurity and Public Policy: Some Basic Concepts and Issues (2014) - Chapter 3.

C. A Foreign Intelligence Exception? This is all in the supplement, pp. 118-127

This court previously has upheld as reasonable under the Fourth
Amendment the Patriot Act’s substitution of “a significant purpose” for
the talismanic phrase “primary purpose.”

An Unprecedented Look at Stuxnet, the World’s First Digital Weapon - for class discussion


October 6

Breaking news!

EU Court throws out safe habor provisions for transfer of data to the US

NYT Story

The Court of Justice declares that the Commission’s US Safe Harbour Decision is invalid - The Court's summary of the opinion.

The opinion (just for information)

Chapter 7 to: C. FISA Trends, p. 220


What We Can Learn From the Epic Failure of Google Flu Trends

Mass Murderers Fit Profile, as Do Many Others Who Don’t Kill http://nyti.ms/1L4YsJ3

Olympic-Level Troll Hijacks HLN Segment on Edward Snowden to Defend Edward Scissorhands

Law School News

Academic advising (in advance of registration for spring 2016 classes) is scheduled for the following days, from 10:15 a.m. to 1:45 p.m. All sessions will be held on the first floor of the library.

Tuesday, October 6

Wednesday, October 7

Wednesday, October 14

Thursday, October 15

October 13


PROGRAMMATIC SURVEILLANCE -  to p. 156. (most of this is one case)


Car hacks

California Now Has the Nation’s Best Digital Privacy Law

Spying Case Against U.S. Envoy Is Falling Apart, and Following a Pattern http://nyti.ms/1NxZOD4

Behind the European Privacy Ruling That’s Confounding Silicon Valley http://nyti.ms/1NsQP6a


October 15

Supplement - 156 to 169. Read carefully. This is dense.

Chapter 9 to 253.

October 20


Supplement additions, pages 169-172.

Stored Communications Act - 2703


iPhones, the FBI, and Going Dark.

Goodby Android

How PGP Works

October 22

Long assignment, but it needs to be discussed together. Supp. 172-207. We have already covered a lot of the first section on bulk collection. Concentrate on Clapper and the following case.

The leaked FISC opinion

Slides for quick review of standing

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 a coincidence, but we cannot know because he still cannot tell you want the FBI wanted. Here is the record of the litigation, and here is his interview on On the Media.

The (redacted) NSL from the Doe Case

October 27


If you are not paranoid, you are crazy.

Statue of Lenin Becomes Darth Vader Monument

Russia Presence Near Undersea Cables Raising Concern in U.S.


We have been talking about Riley, but have not looked at it. It is not a long case, and you just need to read starting paragraph 63. What you want to think about is the significance of the court recognizing that technology matters.

Riley v. California

Chapter 10

Read to p. 293, then substitute Cotterman from the supplement (p220) for Arnold. Pick back up in the text at Notes, page 296, omitting note 4. Then read to 305 - b. Watch Lists and Other Identification-Related Databases.

Heads up - next class has a long assignment, so get started. Supplement, p 233 to p. 262, and then finish Chapter 10.

October 29

Supplement, p 233 to p. 262, and then finish Chapter 10.


In 1983 ‘war scare,’ Soviet leadership feared nuclear surprise attack by U.S.

The Drone Papers

More on the Russians shadowing the undersea cable system

November 3


Will the EU save Snowden?

Battle Heats Up Over Exports of Surveillance Technology

U.S. Tech Giants May Blur National Security Boundaries in China Deals http://nyti.ms/1jXSioN

Court finds standing to contest inclusion on the no fly list: Mokdad v. Lynch, No. 14-1094, 2015 WL 6444668 (6th Cir. Oct. 26, 2015)

Hernandez v. US, 785 F. 3d 117 - Court of Appeals, 5th Circuit 2015


Read Chapter 11 and the note in the supplement at 262. A big chunk of this has been covered in other courses or earlier in this course and we will go through it pretty quickly. Look hard at the Notes starting on p. 339.

Read Chapter 12 to 353.

November 10

Substitute supplement materials (pp. 264-294) for section C in the text, then pick up with section D, material witnesses, and finish chapter 12. We have talked some already about material witnesses, but this provides more detailed information about the limits of using material witnesses status for detention.

November 12

The Suspension Clause

Martial Law in Louisiana - Brief Written in the Week After Hurricane Katrina - Edward P. Richards

Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism

Judge Leon’s Poignant, Yet Pointless, Injunction in Klayman - follow up on Clapper. The case: Klayman v. Obama, No. CV 13-851 (RJL), 2015 WL 6873127, (D.D.C. Nov. 9, 2015) Stay - Klayman v Obama

Read Prof. Vladeck's analysis.

Read Chapter 13 - we will go through this quickly. You have seen the Civil War cases before and we have already seen some of Eisentrager so you can guess what the results will be.

Read Chapter 14 - concentrate on Boumediene, which you have seen before. Plus short supplement piece on 294. (Bivens action for Guantanamo detainees - you can guess the result.)

You have seen the basics of these cases before. We want to read through these materials to figure out why the court decided that non-citizens on foreign soil got a right to habeas corpus in Boumediene, and why congress could not take away this right. While it took the court several years to get here, the principles are pretty simple once they were established. Key is the application of Mathews in Boumediene - what does that tells us about constitutional rights in general?


November 17

Breaking news

WorldViews A new Islamic State video threatens a Paris-style attack on Washington

The Atlantic: Congressional Republicans Pick a Fight Over Syrian Refugees. http://google.com/newsstand/s/CBIw_qrC3iM

Paris Attacks

Track down more recent coverage. We will discuss the attack and the implications for counterterrorism in the US.

Terror in Paris: What we know so far

Alabama, Michigan governors refuse to relocate Syrian refugees after Paris attacks

Bobby Jindal issues executive order to block Syrian refugees

Paris Terror Attack: Intelligence Failure Is Not Snowden’s Fault But A Break Down Of Communication and Cooperation

Paris attacks: security services struggle in terrorist battle - FT

Could Paris Happen Here? 

Should Europe Shun Refugees After the Paris Attacks? - is this the real motivation for ISIS?

After Paris Attacks, C.I.A. Director Rekindles Debate Over Surveillance

Chapter 17 and Chapter 18 through page 549. We are skipping the Guantanamo detention cases because you saw the basics of them in Conlaw. We also know that they basically fit into traditional detention law. Torture raises unique issues that will be good close out the course with. We will finish Chapter 18 and the supplement material on pages 346-371. Please read ahead so we can have a good discussion of these materials.


U.S. Department of State Initial Report of the United States of America to the UN Committee Against Torture


November 19

Finish discussion from last class. Discuss the exam.

Outside Psychologists Shielded U.S. Torture Program, Report Finds

Turning Away Refugees Won’t Fight Terrorism, and Might Make It Worse - another view of the refugee problem

Exam Notes

I will post any questions and answers about the exam here.


Not an exam note, but you might want to look for this documentary coming up on Showtime: The Spymasters: CIA in the Crosshairs


> Professor Richards, for the exam are we limited to using authorities you gave
> us - the text, the supplement and the materials posted on the website?

Those materials should be sufficient to answer the exam questions, but as an open materials exam, you are not limited to them. (I did not intend this to be a research paper in disguise.)



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