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Natl Security Law (LAW-635-001)
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As the authors of our casebook suggest, “[t]here is no field of legal study more critical to the well-being of our people or our republic than National Security Law. In a world that bristles with animosity and danger, an inadequate national defense would jeopardize our lives and ideals. Yet measures taken in the name of national security sometimes pose comparable threats to those same ideals of liberty and justice.” Our study of National Security Law is, in many ways, the study of this most important balancing act we undertake as a society—the balance between national security and civil liberties. But it is just as much a study of whether this balance really is a zero-sum game—whether it truly is inevitable that greater security comes at the expense of our individual liberties, and vice-versa.
Although we will begin the semester with more of an overview of the constitutional separation of national security powers, especially as between the branches of the federal government, we will devote the bulk of our study to individual topics in the field, including the domestic use of the military; counterintelligence and the Foreign Intelligence Surveillance Act (FISA); criminal law and Fourth Amendment issues arising out of the war on terrorism; public health emergencies and the law of quarantine; the detention, treatment, and trial by military tribunals of “enemy combatants”; extraordinary rendition and the torture debate; the relevance (or lack thereof) of international law, including the Geneva Conventions; the need for secrecy balanced against the public right of access to governmental information; and, time permitting, the complicated relationship between the First Amendment and the press in national security cases. As much as our focus is on the actions and policies of the political branches, we will also look carefully at the role the courts have historically played in resolving legal claims implicating national security, including questions as to the appropriate degrees of secrecy, deference, and justiciability, and we will devote significant attention to the work of the federal courts today in defining (and policing) the limits of the government=s authority vis-a-vis the war on terrorism.
Textbooks and Other Materials
The textbook information on this page was provided by the instructor. Students should use this information when considering purchases from the AU Campus Store or other vendors. Students may check here to determine if books are currently available for purchase online.
The vast majority of our reading will be out of our eponymous casebook, Stephen Dycus et al., National Security Law (5th ed. 2011). The brand-new fifth edition is substantially different from the fourth edition, and so it will be difficult, if not impossible, to rely upon an older version of our text. The good news (such as it is), is that there is no supplement to the casebook. Any supplemental readings will be made available via MyWCL.
First Class Readings
As noted on the Syllabus, the assignment for the first class has two parts. First, read pages 7-51 of the casebook (you can skim pages 24-39, which should be quite familiar, and you should focus carefully on the notes on pages 46-49). Second, read this article by David Cole in the New York Review of Books on the killing of Anwar al-Awlaki.
As you read the Cole article, try to think through how you'd answer the following four questions in light of the casebook's discussion of the Constitution's text and history and the Supreme Court's decision in Youngstown:
1. Assume for the moment that Congress has not specifically authorized military operations such as the one that culminated in Awlaki's death. What is the strongest textual argument for the President's power to nevertheless undertake them? What non-textual arguments might you also make? Does your argument depend on the existence of specific facts? If so, what are they? As importantly, who should get to determine them?
2. How does your analysis change if Congress has authorized such operations? What legal sources might nevertheless constrain the President's power in this area? Can you point to specific constitutional provisions that might cabin Congress's authority to so provide, or the President's authority to exercise the authority that Congress has delegated? Might there be other constraints? Regardless of where the constraints come from, does their applicability turn on the existence of specific facts? If so, what are they, and who should get to determine them?
3. In Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010), the district court turned away an attempt by Awlaki's father to try to clarify the circumstances in which the U.S. government could target one of its own citizens. Assuming that the decision stands for the broader proposition that it will be exceedingly difficult to seek ex ante judicial review of a targeting operation, should there be ex post review, perhaps via a civil suit for damages? What are the pros and cons, in your view, of such after-the-fact judicial review? Do you believe more generally that courts can and should handle such sensitive national security cases? If not, how should such disputes be resolved?
4. Finally, keep in mind that we already have a fairly well-developed body of law concerning when law enforcement officers are entitled to use deadly force. Why isn't that the relevant jurisprudence here? Is there a fundamental tension between treating international terrorism according to a "war" paradigm as opposed to a "crime" paradigm? If so, which paradigm would you choose--and why?
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