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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.
Congressional Powers
Presidential Powers
Ambiguous Powers
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.
News
For Hillary Clinton, Another Grilling About Emails
South Korea says it exchanged fire with North Korea at border
Read Chapter 1
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.
Terrorist or Criminal?
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 Japanese War Crimes Trials
The International Criminal Tribunal for the former Yugoslavia (ICTY
The best national security blogs
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
Chapter Three, through page 82.
Responding to threats and disasters
Assignment from last class - read to end of chapter 3.
The Lessons of Anwar al-Awlaki
Congressional Powers
Presidential Powers
Ambiguous Powers
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.
The Lessons of Anwar al-Awlaki
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?
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
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.
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
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
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
Chapter 6 to page 181, C. A FOREIGN INTELLIGENCE EXCEPTION?
Be sure to pick up the addition to p. 167 in the supplement at p. 116.
Finish readings as last class. We are then going to do our intro the packet-switched world discussion.
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:
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
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
EU Court throws out safe habor provisions for transfer of data to the US
The opinion (just for information)
Chapter 7 to: C. FISA Trends, p. 220
News
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
Chapter 8 to 232, B. THE FISA AMENDMENTS ACT AND THE FUTURE OF
PROGRAMMATIC SURVEILLANCE.
Supplement. p. 128 - B. THE FISA AMENDMENTS ACT AND THE FUTURE OF
PROGRAMMATIC SURVEILLANCE - to p. 156. (most of this is one case)
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
Supplement - 156 to 169. Read carefully. This is dense.
Chapter 9 to 253.
Chapter 9 to 284, B. CONNECTING THE DOTS—DATA MINING.
Supplement additions, pages 169-172.
Stored Communications Act - 2703
News
iPhones, the FBI, and Going Dark.
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.
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
News
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.
Assignments
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.
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.
Supplement, p 233 to p. 262, and then finish Chapter 10.
News
In 1983 ‘war scare,’ Soviet leadership feared nuclear surprise attack by U.S.
More on the Russians shadowing the undersea cable system
News
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
Assignment
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.
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.
Martial Law in Louisiana - Brief Written in the Week After Hurricane Katrina - Edward P. Richards
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?
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 attacks: security services struggle in terrorist battle - FT
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.
Resources
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
I will post any questions and answers about the exam here.
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Not an exam note, but you might want to look for this documentary coming up on Showtime: The Spymasters: CIA in the Crosshairs
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> 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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