National Security Law
Spring 2023 - Richards
Day 1 – 10 Jan
First Day Assignment
National security law is not a bar course and some important parts are not even law in the sense of something that can be enforced or challenged in the courts. It’s administrative law, but with guns and nearly complete deference from the Supreme Court.
Read Chapter 1 of the text. Read the first 6 pages of President Reagan’s National Security Strategy from 1986, the height of the Cold War: National Security Decision Directive 238, Basic National Security Strategy, Sept. 2, 1986
Over the weekend, think about what you are worried about as national security legal problems and what you are interested in learning about in national security law. Send me an email – richards@lsu.edu – by Sunday night so I can make a list to discuss in class.
Day 2 – January 12
News
Computer breakdown sows chaos across US air travel system
Don’t panic. It might not be a cyberattack.
I survived Guantánamo. Why is it still open 21 years later?
Assignment
Finish discussion of Chapter 1
Read Chapter 2. It is a short read, but it raises fundamental issues about the structure of the US government. Be prepared to discuss.
Resources – Source of national security powers
Constitutional Powers
Congressional Powers
Presidential Powers
Ambiguous Powers
Day 3 – 17 Jan
News
Open-source intelligence is piercing the fog of war in Ukraine
Assignment
Read Chapter 3, to B. The Commander in Chief’s War Powers. p 55.
Day 4 – 19 Jan
News
How China planted an FBI mole who was discovered only after gutting the CIA’s vast spy network
Assignment
Finish reading Chapter 3.
Slides for Chapter 3 – revised
Slides posted before class are always subject to revision. If I revise them, I will post the revision before class so you can download it for your notes. Revisions are usually minor, just things I find as I am preparing for class. I am going to try to post slides a few days before class so you can use them to guide your readings.
Posted slides do not include polling slides or copyright images used for decoration.
Resources
Day 5 – 24 Jan
News
Students and Experts Agree: TikTok Bans Are Useless
NASA’s Double Asteroid Redirection Test Is a Smashing Success
BBC: Ukraine war: Germany won’t block export of its Leopard 2 tanks, foreign minister says.
Presidental emergency powers and the debt crisis
The debt limit catch-22: Will Congress hand Biden its power of the purse?
Biden Can Raise the Debt Ceiling Without Congress
Assignment
We will finish discussing Chapter 3. Slides for Chapter 3 – revised
Read Chapter 4. I have introduced most of the issues in Chapter 4 as we went through Chapter 3. That should allow us to cover the material more efficiently. We will not finish this chapter in one class, but we will go as far as we have time. Some of the early issues in the chapter make more sense after you have read the latter part of the chapter.
Read the supplement pp. 2-7. There is an edited excerpt from U.S. House of Representatives v. Mnuchin which finds that Congress does have standing to bring a challenge to a violation of congressional limitations on the use of appropriated money. There is also a note on the final disposition of Trump v. Sierra Club, which ends in limbo when the Biden administration ended the state of emergency and asked the Supreme Court to remove the case from its docket.
Slides for Chapter 4 – revised
Day 6 – 26 Jan
Moodle Attendance
There are three options to choose for attendance status: present, corrected, and absent. Moodle auto-populated the point allocation for each, giving “present” 2 points, “corrected” 1 point, and “absent” 0 points.
As the “corrected” status is merely used for administrative purposes, and functionally serves the same purpose as “present,” the point allocations for both “present” and “corrected” have been set to 1.
News
Breaking news – Biden Announces Abrams Tanks to be Delivered to Ukraine
Great resource – The Modern War Institute (West Point)
The trillion-dollar coin scheme, explained by the guy who invented it
Debt Ceilings, Bombs, Cliff and the Trillion Dollar Coin
Assignments
Slides for Chapter 4 – revised
Carry over the assignment from last class (day 5)
Day 7 – 31 Jan
News
Access to sophisticated computer chips is a primary battleground in national security law. This podcast discusses the chip war between the US and China, and why chips are the key strategic value of Taiwan. In a related story, the two key countries that build the equipment to make chips have agreed to not sell to China: Japan, Netherlands Agree to Limit Exports of Chip-Making Equipment to China
Assignment
Finish Chapter 4
Slides for Chapter 4 from last class. Slightly revisions in the slides we did not cover last class.
Read Chapter 5 over the weekend. This will carry us through the next class as well.
Slides for Chapter 5 – Revised
Day 8 – 2 Feb
News
Not today, I do not want to get bogged down.
Assignment
Finish Chapter 5
Slides for Chapter 5 – Revised (I clarified some slides in today’s section and add some to better illustrate the DFE)
Day 9 – 7 Feb
News
‘Total miscalculation’: China goes into crisis management mode on balloon fallout
Neo-Nazi leader and Maryland woman allegedly plotted to ‘completely destroy’ Baltimore, Justice Department says – Charging documents
Assignment
We are going to cover three short chapters next week, 6-8. These have companion materials in the supplement, including a substantial section on the Ukraine war on p. 34 of the supplement. We will look hard at the Ukraine war during this section.
Slides for Chapter 6 – revised
Slides for Chapter 7 – revised
Slides for Chapter 8 – draft
Day 10 – Feb 9
News
Chinese spy balloon contained technology to monitor communication signals, US says
Assignment
Finish the materials from last class.
Slides for Chapter 7 – revised
Slides for Chapter 8 – revised
We are going to hold the Ukraine war until next class.
Day 11 – 14 Feb
News
Why it takes a missile to shoot down a balloon made of Saran wrap.
Ordinary Russians Want Us to Freeze to Death
What is Russia’s Wagner Group of mercenaries in Ukraine?
Wagner Group Operations in Africa
U.S. designates Russian firm Wagner Group as criminal organization
Assignment
Finish material from last class.
One of the major legal questions raised by the Ukraine war is whether Russian soldiers are committing war crimes. We need to review the law of war before we turn to the Ukraine war. This is also critical information for our later discussion of cyberwar.
First, watch this short video: Rules of war (in a nutshell)
Then read Chapter 9.
Slides – Chapter 9 – final
The law of war is operationalized in The Commander’s Handbook on the Law of Land Warfare (2019). (Scan this, but you do not need to read it in detail.) This document incorporates the laws of war into the military standards for warfare, which are then subject to enforcement through the Uniform Code of Military Justice (2019). While does not make them general law, as would a statute, it does make them binding on the military. Read Chapter 1 of The Commander’s Handbook on the Law of Land Warfare (2019) to CLASSES OF PERSONS, p. 1-11. Study the chart on p. 1-6 that summarizes the basic principles. Also, read the short supplementary materials for Chapters 8 and 9 that I have emailed you. These came out after the supplement was published.
Resources
Day 12 – 16 Feb
News
Assignment
Find a story about the Ukraine war that highlights a potential violation of the UN charter or the law of armed combat – jus in bello – and email it to me by Wednesday night so I can compile them for class.
Ukraine war day. Study the note in the Supplement and look at the Ukraine war news sites.
The Ukraine War and the Crime of Aggression: How to Fill the Gaps in the International Legal System
Day 13 – 23 Feb
News
Putin suspends Russian involvement in nuclear arms pact over Ukraine tensions
Biden hails ‘rock solid’ Nato as Putin blames West for Russia’s war
What is the future of the internet? Don’t ask the Supreme Court– The problem with cyberlaw in the courts.
Assignment
Given current events, we are going to read Chapter 15 for class on Thursday.
Also review:
Read Chapter 15 – Nuclear War – no slides – this is a discussion class
Duck And Cover (1951) Bert The Turtle – This is an example of what we saw in school when I was a kid. This is the modern version: https://www.ready.gov/nuclear-explosion
No US missile defense system proven capable against ‘realistic’ ICBM threats: Study
All intercontinental missiles are hypersonic, i.e., they travel at several times the speed of sound. What is in the press as hypersonic missiles are ones that stay low in the atmosphere, rather than going into space and coming down, making them much harder to detect and shoot down.
What Happens When a Nuclear Bomb Hits”
Nuclear Winter May Bring a Decade of Destruction
How a small nuclear war would transform the entire planet
Hiroshima and Nagasaki: The Long Term Health Effects
Long-term radiation (a few years) effects are low, as is residual radiation, at least for air burst bombs. Bombs that explode at ground level put a lot more dirt into the atmosphere and may leave more residual radiation, but we have no experience with this.
Union of Concerned Scientists, Close Calls with Nuclear Weapons (Apr. 2015) – summary
Resource document, you do not need to read for class.
Blundering into a nuclear war in Ukraine: a hypothetical scenario
CRS: Nonstrategic Nuclear Weapons. Updated March 7, 2022
This is a clear guide to tactical versus strategic nuclear weapons prepared for Congress. Read pp 25-32 – Russian Nonstrategic Nuclear Weapons after the Cold War to get a sense of the Ukraine problem. Is this a meaningful distinction?
Resources
Day 14 – Feb 28
Class is in person – computer day means we talk about computers.
News
Al Jazeera English: US judge says 9/11 families not entitled to Afghan bank funds
Netanyahu said to huddle repeatedly with military brass over possible attack on Iran
China refuses to condemn Russia’s Ukraine invasion during G20 deadlock
What is China’s peace proposal on how to end Ukraine war?
Assignment
This is computer and Internet day! We have several chapters that deal with cyber operations and surveillance. You need to have a basic understanding of how the systems work to think clearly about the problems. I wish I could make the Supreme Court justices go through the material that we will review.
The Internet: 1997 – 2021 – One minute visualization of the growth of the Internet
Unit: Computers and the Internet – This is a series of Khan Academy videos that introduce the basics of computers and the Internet. I assume most of you have used Khan Academy lessons during K-12 and perhaps college. These are short, simple, and entertaining. Should take less than 90 minutes total to watch them all.
I will expand on these materials in class.
Day 15 – March 2
News
Could deep boreholes solve our nuclear waste problem?
Assignment
Chapter 14 – be sure to read the sections in the Supplement as well.
Materials for use in class – review ahead of time if you have the opportunity.
Demonstration of a software control system hack destroying an electrical generator
Cybersecurity and Infrastructure Security Agency
Day 16 – March 7
News
The Daring Ruse That Exposed China’s Campaign to Steal American Secrets
Assignment
We will finish the materials from last class and discuss the national security implications of social media and personal electronics in modern life. Look for national security disinformation on social media.
Slides – Chapter 14 – updated
Read Chapters 17&18, the introduction to the intelligence agencies. We will start those materials Tuesday and finish on Thursday.
Day 17 – March 9
News
Oral argument in Gonzalez v. Google LLC (discussed at the end of last class)
A key issue before the court is that the immediate result of limiting Section 230 immunity would likely be the end of moderation, except for specifically prohibited content such as child porn.
Intelligence Suggests Pro-Ukrainian Group Sabotaged Pipelines, U.S. Officials Say
Ukraine Suffered More Data-Wiping Malware Last Year Than Anywhere, Ever
Assignment
Chapters 17 & 18 from last class.
Slides – Chapters 17 & 18 – draft
Check back for news and additional resources, including slides.
Resources
National Intelligence Priorities Framework (Jan 7, 2021)
Memorandum on Renewing the National Security Council System (FEBRUARY 04, 2021)
Day 18 – March 14
News
Pentagon map shows Chinese outposts in South China Sea Spratly Islands.
Ron DeSantis Says Protecting Ukraine Is Not a Key U.S. Interest
ICC to open war crimes cases on Russia’s invasion of Ukraine
Assignment
Chapter 19
Slides – Chapter 19 – Draft
Resources
Two views of the CIA covert spycraft and covert operations.
Day 19 – March 16
News
Why Countries Are Trying to Ban TikTok https://nyti.ms/3mjkGa6
Video footage released of US drone forced down by Russian fighter jet
Assignment
Chapter 20
Slides – Chapter 20 – final
Day 20 – March 21
News
After arrest warrant for Putin, Russia opens case against ICC
Assignment
Finish Chapter 20
Read Chapter 21
Slides – Chapter 21 – revised
Resources
Day 21 – March 23
News
Taiwan recalls ambassador from Honduras, prepares to lose another diplomatic ally to China
Assignment
Read Chapter 22
Slides – Chapter 22 – revised
Resources
Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation
Day 22 – March 28
News
You Have No Privacy—the Government Already Bought It From Tech Companies
New Records Detail DHS Purchase and Use of Vast Quantities of Cell Phone Location Data
Assignment
A lot of this material should be familiar from ACJ. We will concentrate on the national security aspects of the material.
Slides – Chapter 22 – final (from last class).
Chapter 23
Slides – Chapter 23 – final.
Chapter 24 to B. BULK COLLECTION OF THIRD-PARTY RECORDS, p.729
Slides – Chapter 24 – final.
Day 23 – March 30
News
Wall Street Journal reporter arrested in Russia on spying charges
Assignment
Finish Chapter 24
Read Chapter 25
Day 24 – April 4
News
‘Vulkan files’ leak reveals Putin’s global and domestic cyberwarfare tactics
Assignment
Finish Chapter 25
Slides – Chapter 25 – final
Chapter 26
Slides – Chapter 26 – final
Day 25 – April 11
News
Pentagon investigating how Ukraine war document marked top-secret appeared online
Reuters: China simulates striking Taiwan on second day of drills.
Assignment
We are going to read Chapters 39 and 41 next, which deal with classified information. Counting this class, we have 4 classes left. The additional materials we cover will depend on how much time we spend on these chapters.
Read Chapter 39, the supplement, and this addendum to the supplement.
Slides – Chapter 39 – final
Read these annotated materials for discussion:
The President Executive Order 13526 _ National Archives
SF312 Classified Information Nondisclosure Agreement
Resources
Security Clearances – Personnel Security Standards and Procedures Governing Eligibility for Access to Sensitive Compartmented Information
Appealing a Denial or Revocation of a Clearance
Department of Justice Guide to the Freedom of Information Act – Exemption 1
Classified Information Nondisclosure Agreement (SF312)
SF 312 FREQUENTLY ASKED QUESTIONS CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT
Day 26 – April 13
News
Dozens of Australian politicians urge US to abandon Julian Assange extradition
Assignment
We will finish the discussion from last class and then look at Chapter 41. I am supplementing the material on the Pentagon Papers case. This is an important legal case, which left some questions open that have not yet been answered. It was also a key political case and is the model for subsequent attempts by government employees to influence policy through leaking classified government documents. The leaker, Daniel Ellsberg, was not a hippie peacenik, but a Marine officer and respected theoretician on game theory in war. As Nixon fought the disclosures and attempted to discredit Ellsburg, he authorized a burglary of Ellsberg’s psychiatrist’s office to collect incriminating information. This derailed Ellsberg’s criminal prosecution and resulted in the dismissal of the charges against him. (The Attorney General himself ended up in jail for crimes related to Watergate and Nixon’s election campaigns.) Remember, that this was a period when the press self-censored and the idea of a major newspaper publishing this type of leak was unheard of. The paper’s outside lawyers refused to advise it and told the editor to send back the papers and not look at them. Think about the different world we live in now.
Pentagon Papers/Ellsberg Timeline – Drawboard
The Pentagon Papers: The View From The Oval Office
This is Speilberg’s movie about the Pentagon Papers. You do not have to watch it for class, but it is great viewing and mostly accurate. Watch the trailer. The case riveted the public as it played out.
The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers
This is a documentary. Watch the trailer.
Read Chapter 41, the supplement, and this addendum to the supplement.
Slides – Chapter 41 – revised
Day 26 – April 18th
News
Read about the developing story of the Ukraine document leaks and any potential charges under the Espionage Act.
Russians boasted that just 1% of fake social profiles are caught, leak shows
‘A little kid trying to be important’: locals react to Pentagon leak suspect
Graham “stunned” alleged Pentagon leaker had access to classified intel
The key question – why allow such a low level soldier to have high-level clearance?
Assignment
Carry over the assignment from last class.
Day 28 – April 20
News
NBC News: Does the Teixeira case mean the national security clearance system is broken?
Assignment
No new assignment. Finish the assignment from last class.