Class information

Review the Class Information Page for class rules and the text and supplement.

All assignments and additional materials will be posted on this blog.

Assignments

Read Chapter 1 & 2

Find a national security/counterterrorism law issue in the news.

Resources

Poll Everywhere Mobile App

The United States Constitution

Assignment

Read Chapter 3.

Look at the news.

Resources

Map of Korea

Korean War Timeline

Impact on North Korea

EXECUTIVE ORDER 10340 – Steel seizure Executive Order

Constitutional Presidential Powers

Justice Jackson at Nuremberg

How might this shape his views?

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson’s view of Congress)

National Emergency Act of 1976

THE SEPARATION OF NATIONAL SECURITY POWERS: SUMMARY OF BASIC PRINCIPLES

¦ Under the formalist view of the separation of powers, Congress makes the laws, the Executive executes the laws, and the courts interpret the laws. Taking this view, the opinion for the Court in The Steel Seizure Case held that, because President Truman’s order both made and executed policy, he had usurped the lawmaking power of Congress.

¦ In fact, the respective powers of the branches are more blurred. First, Congress can by statute delegate lawmaking power to the Executive, provided that it makes policy by establishing statutory standards for the exercise of power and that the delegation does not violate the Constitution. The vast majority of executive actions are taken in exercise of such delegated powers, subject to check by judicial review for compliance with the statutory standards and the Constitution. These actions fall into Justice Jackson’s first grouping.

¦ Second, the Executive may acquire customary authority by a systematic and consistent practice known to and not questioned by Congress. These actions fall into Justice Jackson’s “twilight zone” grouping.

¦ Third, the President, in her capacity as Commander in Chief, may act without express statutory authority in some circumstances, but dicta in The Steel Seizure Case suggest that the scope of her independent powers may depend on the de jure existence of a war, the locus of the actions, or their impact on constitutional rights and liberties, among other factors.

¦ Unlike many constitutions, ours does not vest the head of state with general emergency powers. Instead, Congress may anticipate emergencies by delegating contingent emergency powers to the executive branch by statute. Even so, several Justices in The Steel Seizure Case speculated in dicta that the President might, after all, have some kind of inherent emergency powers depending on the gravity of the emergency.

¦ Infrequently, the President acts in defiance of statutory limits or prohibitions, placing his action in Justice Jackson’s third grouping. When branches collide, the Supreme Court has taken two approaches to declaring a winner. If the constitutional text expressly vests a power in a branch, the Court enforces that assignment without trying to balance the interests of the branches. But if the constitutional text is silent about the asserted power, then the Court engages in a balancing analysis: deciding whether the degree of intrusion on the President’s powers caused by the statute is justified by an overriding need to promote objectives within Congress’s constitutional authority.

¦ Because “declaring a winner” in Justice Jackson’s third grouping requires a court either to strike down a presidential action or to declare a statute unconstitutional, all three branches try mightily to avoid a collision. The President’s lawyers push the limits of statutory construction to find some colorable statutory authority or to narrowly construe statutory limits. Congress looks the other way or acquiesces in some fashion. And the courts deploy a panoply of avoidance techniques, ranging from declining to reach the merits by invoking the standing, ripeness, state secrets, and political question doctrines, to avoiding the merits of the constitutional question by construing statutes (where possible) to sidestep the constitutional question.

Assignment

Chapter 3 – Review

National Emergencies Act

Read chapter 4 to: B. THE COMMANDER IN CHIEF’S WAR POWERS, p. 81

Resources

Isreal Maps through time

Pre-State Period – Setting borders

• The Balfour Declaration
• Determining the Southern Border (1906)
• The Sykes-Picot Agreement (1916)
  
• The British Mandate
• The Peel Commission Plan (1937)
• The UN Partition Plan – Resolution 181 (1947)
  

Israel’s Changing Borders – War and Peace

Early Years of Independence – 1948-1967

• The War of Independence (1948)
• Armistice Lines (1949-1967)
• The Frontier with Syria (1949-1967)
• Jewish Communities Lost in the War of Independence
• Divided Jerusalem (1949-1967)
• The Sinai Campaign (1956)
  

The Six Day War – June 1967 

• Events leading to the Six Day War (1967)
• Israel After the Six Day War
• Old City of Jerusalem

Yom Kippur War – October 1973

• Yom Kippur War Cease-Fire Lines

News

Trump Just Recognized a Venezuelan Opposition Leader as President. Wait, Can He Do That?

Assignment

Finish Chapter 4

Check back for supplementary materials, depending on the news and class discussion.

Resources

Instances of Use of United States Armed Forces Abroad, 1798-2018

Chapter 4 – review

Assignment

Chapter 5

Check back for supplementary materials, depending on the news and class discussion.

Resources

Joint Resolution Declaring That a State of War Exists Between the Government of Germany and the Government and the People of the United States and Making Provisions to Prosecute the Same

Pub. L. No. 77-331, 55 Stat. 796 (1941)

Whereas the Government of Germany has formally declared war against the Government and the people of the United States of America: Therefore be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Government of Germany; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.

Joint Resolution – To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States. (18 September 2001)

News

U.S. Intelligence Chiefs Contradict Trump on North Korea and Iran https://nyti.ms/2HBet4o

Full record of the testimony – STATEMENT FOR THE RECORD WORLDWIDE THREAT ASSESSMENT of the US INTELLIGENCE COMMUNITY January 29, 2019.

See also: Trump blasts U.S. intelligence officials, disputes assessments on Iran and other global threats

An Angry Trump Pushes Back Against His Own ‘Naive’ Intelligence Officials

Assignment

Chapter 6 to: C. SUBSTANTIVE HURDLES: BIVENS AND QUALIFIED IMMUNITY, p. 158

Be sure to read the Supplement materials, p. 1-10 that are tied to this text.

Resources

Elements of standing – Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

Clapper – Slides 2019

Breaking News – Please Read This

Congressional options under the National Emergencies Act

Remember that under the Act, Congress can vote to cancel an emergency declaration. This is an analysis of the Democrats might use that to fight the declaration.

Assignment

Finish Chapter 6.

Read Supplement additions and replacements, page 10-16. (Check this before you read the chapter since some material has been replaced.

Resources

Slides – Damage actions against the government

News

The Cybersecurity 202: What Trump didn’t say about the state of the union’s cybersecurity

Assignment

Chapter 7 and the supplement, pages 16 & 17. This is a long chapter. We are not reading it for the deep factual record. You should be looking for the basic framework for the US legal effects of treaties, how they may be abrogated or modified, and the difference between Executive Agreements and treaties. Exactly what is the legal value of treaties on their own? What does it mean to enable a treaty by legislation? How does this affect the ability of the president to abrogate the effects of a treaty?

Resources

Slides – Chapter 7 (subject to revision)

Assignment

Chapter 8 and supplement material, pp. 17-19

These readings will add nuance to our starting assumption that the constitution only applies to US persons, not aliens, outside of the US. That basic premise will still hold, but the notion of what is outside the United States will expand, and we will find that the constitution applies there, but is attenuated. We will also look more deeply into Reid, finding that even it has implicit limits on the application of the Constitution to citizens outside the US.

News

CNBC: Google’s head of internet security says businesses should ignore cyber scare tactics and learn from history.

https://www.cnbc.com/2019/02/09/google-infosec-head-heather-adkins-ignore-scare-stores.html

The core of the story is that most businesses are not attending to basic digital security issues and that has to be where you start if you are worried about cyberterrorism and other scary things.

Assignment

Chapter 9 and supplement material on p. 19

News

Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States

Think of this as three legal questions:

1) how does the court determine if this is a proper emergency?

2) is the court better positioned to review the reprogramming of the money under the statutes that are triggered by the declaration?

3) how can the Supreme Court dodge this case?

California et al, v. Trump (Multistate Emergency Declaration Lawsuit)

Should the Court consider what the President says about the declaration?

Why Trump’s Emergency Mess Means Danger for the Courts https://nyti.ms/2V6FMFM

Assignment

Chapter 11. How We Go to War: Lessons from Vietnam

Skip 3. Testing the Legitimacy of the War in Court, p 332 to B. LIMITING THE SCOPE OF THE VIETNAM WAR, 339. (It is replaced by Smith v. Obama.)

Supplement p. 38 to 52.

This is a long chapter that we are reading for specific content, rather than carefully parsing all of the material. You should focus on:

How did we get into Vietnam?

The Korean War was justified through the US participation in the UN rather than a declaration of war. What was the legal justification for US participation in the Vietnam War without a declaration of war?

How did Congress try to end the war?

The most important part of the chapter is D. THE WAR POWERS RESOLUTION because this is the only standing legislative limit on the President’s power to unilaterally make war.

What are its requirements?

What is Congress trying to accomplish with the Resolution, i.e., what are they trying to avoid having to vote on?

Have presidents followed the Resolution?

Is it enforceable?

Smith v. Obama from the supplement reviews the justiciability of presidential war-making and the review of the necessary congressional authorization. Focus on what it adds to our existing knowledge about judicial review of presidential war-making.

Viet Nam War Resources:

The Draft and the Vietnam War

VA Data
August 4, 1964 – January 27, 1973
Total who served in all Armed Forces: 8,744,000
Deployed to Southeast Asia: 3,403,000

Battle Deaths: 47,424
Other Deaths (In Theatre): 10,785
Wounded: 153,303
Medals of Honor: 238

US Military casualties – Iraq – 4k -Afghanistan – 2k

Vietnam — Map of contemporary Vietnam –  Historical Atlas –  Pre-Vietnam War History  – War Timeline – The last US helicopter out of Vietman

Gulf of Tonkin Resolution

Indonesia – Map of Indonesia – 1950-1965 – 1965-1998

Movie about the beginning of the US involvement in Vietman

News

Episode 111: This National Emergency Podcast Requires the Use of the Armed Forces – The National Security Law Podcast

10 USC 2808: Construction authority in the event of a declaration of war or national emergency

Assignment

Chapter 14. Targeting Terrorists. Supplement pp. 59-62.

Resources

PROCEDURES FOR APPROVING DIRECT ACTION AGAINST TERRORIST TARGETS LOCATED OUTSIDE THE UNITED STATES AND AREAS OF ACTIVE HOSTILITIES (March 22. 2-13)

News

5 G Security

What Happens When Techno-Utopians Actually Run a Country

Assignment

Chapter 43 and supplement at pp. 216-218.

Resources

1st Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

OIG, Evaluation of the Department of State’s Security Clearance Process (2017)

News

CyberCom sent a message by taking down a troll farm on Election Day. Was Russia listening?

The Post – movie

Short documentary on the publication of the Pentagon Papers

Assignment

Chapter 44 and supplement pp.218-219.

Resources

The Pentagon Papers

The Pentagon Papers Timeline

Morland, Howard. “The H-Bomb Secret: How We Got It; Why We’re Telling It.” The Progressive 43.11 (1979).

What is WikiLeaks?

Pentagon Papers in the Federal Courts

This timeline is intended to capture the movement of cases, from the U.S. District Courts in two circuits to the Supreme Court of the United States.

1971 June 13 The New York Times publishes the first (of 3) excerpts from a classified Department of Defense study, popularly known as the Pentagon Papers.

June 14 Department of Justice files suit against the New York Times in the U.S. District Court for the Southern District of New York seeking a temporary restraining order to halt publication until a court hearing could be held to hear evidence.

June 15 Judge Murray Gurfein grants the temporary restraining order stopping the presses after three days of articles. However, the judge declines the government’s request for a preliminary injunction to stop publication until after the case is decided in court. The temporary restraining order is to stay in place pending the outcome of the Department of Justice’s appeal of his ruling.

June 18 The Washington Post begins publication of its series of articles and excerpts from the Pentagon Papers. The Department of Justice files suit immediately in the U.S. District Court for the District of Columbia for a temporary restraining order and a preliminary injunction to stop publication. Judge Gerhard Gesell denies the temporary restraining order.

June 19 The U.S. Court of Appeals for the D.C. Circuit votes 7-2 to uphold Judge Gessell’s decision and sends the case back to him to hold a hearing. Following this hearing, Judge Gesell again denies the injunction.

June 21 The U.S. Court of Appeals for the D.C. Circuit votes 7-2 to uphold Judge Gessell’s decision to denies the injunction.

June 23 The U.S. Court of Appeals for the Second Circuit reverses Judge Gurfein’s decision to deny the injunction, and remands the case to Judge Gurfein for further review.

June 26 Oral arguments before the Supreme Court.

June 28 Grand Jury in Los Angeles indicts Daniel Ellsberg and co-conspirator Anthony Russo on charges of theft and espionage.

June 30 The U.S. Supreme Court issues its opinion, ruling 6-3 that the government proof of justifications for prior restraint was not sufficient to stop publication. Each justice issues separate opinions explaining his rationale in concurring or dissenting decisions.

1972 January Trial for Daniel Ellsberg and Anthony Russo begins.

1973 May Case is dismissed.

No class! Happy Mardi Gras!

These classes will be covered with online materials done asynchronously – which means that you can read the materials, listen to the presentations, and work the quizzes on your own time frame. You do not need to log in during what would have been the class period. The quizzes count toward class participation points but are not a separate component of the final exam. I will start posting the materials next week and I can strongly recommend that you not wait until the last minute to work through them.

News

NSA has halted a counterterrorism program relying on phone records amid doubts about its utility

Assignment

The History of Administrative Searches and their Relevance to National Security Law

Camara v. Municipal Court City and County, 387 U.S. 523 (1967) par. 23-56.

The narrated slides, the video of the slides (you only need to listen to one) and the quiz are posted to the course page in Moodle. (The files are too big for the blog.) You need to read the case, listen to the presentation, and do the quiz.

Resource Cases

Frank v. Maryland, 359 U.S. 360 (1959)

See v. Seattle, 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967)

Readings

Chapter 21 and supplement. Chapter 24 and supplement. (Note – D. THE IMPACT OF NEW TECHNOLOGY in Chapter 21 has been replaced by the Carpenter case in the supplement materials for Chapter 24. We will read review Carpenter with Chapter 24, since it applies to both.)

These chapter deal with traditional 4th amendment questions and the extent that there are special circumstances for national security law. We will return to the intervening chapters, which deal with data collection under specific national security statutes after we have reviewed these chapters.

Online Assignments

The 2nd (no reading required) and 3rd (Chapter 21) online assignments are now posted. The video and the narrated PowerPoint are the same content, you do not need to listen to both. The video is provided as a convenience and to meet ADA accessibility requirements.

Resources

US v. Biswell, 406 US 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972)

New York v. Burger, 482 U.S. 691 (1987), but see: NY rejects “closely regulated industry” exception on state constitutional grounds – People v. Scott, 79 N.Y.2d 474, 593 N.E.2d 1328, 583 N.Y.S.2d 920(N.Y. 1992)

These are resource cases for the discussion of the regulated industries exception to the 4th Amendment. You should have seen this before in ACJ.

Assignment

Part 4 – Chapter 24 – Third-Party Records – Targeted Collection – has been posted on Moodle. This does not include Carpenter, which will be posted separately because it is a long presentation.

I have renumbered the assignments for clarity.

Assignment

The materials for the Carpenter case have been posted.

News

Senate Rejects Trump’s Border Emergency Declaration

Senate passes resolution to end U.S. involvement in Yemen’s civil war

Assignment

Chapter 22 and Chapter 23 to p. 677.

Slides – Chapter 22 – Congressional authority national security surveillance

Resources

S. Select Comm. to Study Government Operations with Respect to Intelligence Activities (Church Committee), Intelligence Activities and the Rights of Americans, S. Rep. No. 94-755, bk. II, at 6-7 (1976). (Church Committee Report V 2)

News

Satirical Site on NSA 702 surveillance

5G Security Concerns

Assignment

Finish Chapter 23 and read Chapter 25.

Resources

Slides – Chapter 22 – Congressional authority national security surveillance (from last class, revised to clarify “lone wolf”)

CHAPTER 36—FOREIGN INTELLIGENCE SURVEILLANCE – Definitions

We are going to look at the statute itself – I think it is hard to see the structure with the slides. This will clarify the lone wolf provision and the statute’s own definition of a United States Person.

Why Is the Lone Wolf FISA Provision Never Used? And Just How Broad is the FISC Understanding of Group Agency?

Global Internet Backbone 2018

LSU National Security Event

We would also like to take this time to invite you to our upcoming event Classified Communications: Messaging for National Security & Foreign Affairs on April 8th featuring Rear Admiral John Kirby, U.S. Navy (Retired) and Gordon Johndroe.

The second annual Academy of Applied Politics Speaker Series hosted by the Reilly Center for Media & Public Affairs, Cornerstone Government Affairs and Taylor Porter will be held on April 8, 2019 at the LSU Manship School of Mass Communication’s Journalism Building. “Classified Communications: Messaging for National Security and Foreign Affairs” featuring Rear Admiral John Kirby, USN (ret) and Vice President of Government Operations Communications at the The Boeing Company Gordon Johndroe will focus on how mass communication professionals cover and disperse military, foreign affairs and national security information. The event will investigate methods the military and national security organizations use to keep the public informed in peacetime, conflict and war.

News

Stingrays under Carpenter?

IN THE FACE OF DANGER, WE’RE TURNING TO SURVEILLANCE

Assignment

We will focus on the current application of 702 and bulk collection from Chapters 23 and 25, rather than the historical development leading to them. This should take only part of the class time.

Slides – Chapter 23 & 25 – Programmatic Surveillance and Bulk Collection

Read Chapter 26. This chapter raises a lot of current hot topics and should be a good discussion. Come prepared to talk.

Resources

Chapter 26

The 1967 War and the birth of international terrorism

News

Whatever is current on the release of the Mueller Report

Assignment

Finish discussion of Chapter 26.

Chapter 26 – Screening for Security

This is fairly short.

Resources

Firesign Theater

News

The New York Times: The Secret Death Toll of America’s Drones.

Bezos investigator’s accusations of Saudi hacking raise questions for government

Assignment

Finish discussion of Chapter 26

Slides – Chapter 26 – Screening for Security

Read Chapter 15 and the supplement materials. (This was previously assigned.) These are the cyber war materials. I have postponed these from where they are in the book order because I think they make more sense after we have discussed the basics of the internet and data collection/surveillance. We will begin discussion of these materials if we have time after finishing Chapter 26.

Slides – Chapter 15 – Cyber Operations

In Cyberwar, There are No Rules

This is an interesting background article that just came to my attention. Read it if you have time as background.

Resources

DoD Cybersecurity Chart (2019)

Department of Defense Cyber Strategy – Summary (2018)

National Cyber Strategy (White House) (2018)

Home Land Security Cybersecurity Strategy (2018)

News

The Cybersecurity 202: Arrest at Mar-a-Lago spotlights simple but pervasive threat of thumb drives

Gizmodo: Malware Is (Probably) Coming… If You Pirated Game of Thrones.
https://gizmodo.com/malware-is-probably-coming-if-you-pirated-game-of-1833751147

CAIR to Challenge Constitutionality of Federal Watchlist at April 4 Virginia Court Hearing

More than 1,000 private entities have access to terrorism watch list, government says

Assignment

Finish Chapter 15.

Slides – Chapter 15 – Cyber Operations (revised)

Read Chapter 19 – COVERT ACTIONS IN PRINCIPLE AND PRACTICE

Slides – Chapter 19 – Covert Actions

Resources

EO 12333

We are not going to parse this in detail. It is also in the book at p. 518. The key take away is that it is an Executive Order, not a statute or even a regulation – what does that tell us about the President’s discretion in following its details?

A student asked the very relevant question – does Section 702 of the FISA Amendments replace the original FISA provision.

The revised 702 (1881a) procedures do not displace the original FISA procedures.  You can see how they fit by looking at statute structure:

https://www.law.cornell.edu/uscode/text/50/chapter-36

This shows that the amendments are a new section, not one that displaces the previous sections.

News

White House whistleblower says Trump administration overturned 25 security clearance denials

Nielsen departure could deal a blow to Trump administration’s cybersecurity efforts

Assignment

Chapter 20 – Shadow War

This is a short chapter reviewing the tension between using the military, with its extensive formal oversight process, and paramilitary/contractors for covert operations.

2008 Mumbai Attacks

Slides – Chapter 20 – Shadow War

Chapter 36 – Secret Evidence in Criminal Trials to B. USING “SILENT” WITNESSES TO INTRODUCE SECRET EVIDENCE, p. 1134

Slides – Chapter 36 – Secret Evidence in Criminal Trials

News

Fox News: Secret Service under fire after agent testifies agency inserted malicious thumb drive into computer.

You can’t make this stuff up.

Assignment

Read Chapter 10 to 3. IHL Revised: The Geneva Protocols Additional (286). These are the conventions that have been ratified by the United States and have been enabled by statute. We want to learn the basic principles:

• the principle of humanity (the “elementary considerations of humanity being reflected and expressed in the Martens clause)
• the principle of distinction between civilians and combatants, and between civilian objects and military objectives;
• the principle of proportionality,
• the principle of military necessity (from which flows the prohibition of superfluous injury and unnecessary suffering.

Slides – Chapter 10 – International Humanitarian Law

These contain the text of the protocols we will review.

Back to Chapter 36.

Read B. USING “SILENT” WITNESSES TO INTRODUCE SECRET EVIDENCE

This is substantive law – how does the silent witness work and what legal issues does it pose?

Read C. ACCESS TO SECRET EXCULPATORY TESTIMONY

We are reading this section just to see how far the courts will go to limit the rights of a defendant they believe is a very bad actor.

Read D. DO WE NEED A NATIONAL SECURITY COURT?

This is a short philosophical discussion of whether we need special courts for national security cases?

Slides – Chapter 36 – Secret Evidence in Criminal Trials – complete

I do not know if we will be able to finish this in class. Anything we do not finish we will carry over. There will not be any additional assignment for the last class.

Resources

Red Cross, Summary of the Geneva Conventions of 1949 and Their Additional Protocols (2011)

This an excellent and brief summary of the provisions of all of the Geneva Protocols and the 1977 modifications which the US signed but never ratified or enabled.

DoD Law of War Manual – June 2015 Updated Dec 2016

Exam info

We will talk about what open book means for the exam.

Proposed standard:

Tabs (indicating chapters or page numbers for example) and margin notes and highlighting, but no sticky notes with substantive notes/reading notes.

Allowed books: The Dycus National Security Law text and the supplement.

News

Tracking Phones, Google Is a Dragnet for the Police

Julian Assange’s charges are a direct assault on press freedom, experts warn

Digging into the details of the indictment against Julian Assange

Extradition is tied to the specific charges, which, in theory, limits the ability of the DOJ to add espionage charges after extradition if they are not part of the charges the extradition request is based on. We refused to extradite IRA terrorists to Briton in the past because our politicians were concerned about the votes of IRA sympathizers in places such as Boston.

Julian Assange Got What He Deserved

You Don’t Have to Like Julian Assange to Defend Him

A number of iconic constitutional rights cases involved not very lovable people.

Assignment

Finish materials from last class. Discuss Wikileaks in the news.

News (NOT for the exam)

It’s Time to Admit That the Military Commissions Have Failed

A stunning conflict of interest ruling about one of the military commission judges – and more than one judge has the same problem.

“the U.S. Court of Appeals for the D.C. Circuit’s stunning, unanimous decision in In re Al-Nashiri III to throw out three-and-a-half years’ worth of pretrial rulings by a Guantanamo military commission in the case of the alleged USS Cole mastermind—all because Air Force Colonel Vance Spath, the judge presiding over those proceedings, was actively pursuing employment from the Justice Department as an immigration judge”

The opinion – In re Al-Nashiri, No. 18-1279, 2019 WL 1601994 (D.C. Cir. Apr. 16, 2019) while this is NOT exam material, if you have any interest in the military commissions, you should read this opinion. It is short and well written.