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NSL: Detention, Treatment & Trial (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 three specific (and related) sets of topics: the detention, treatment, and trial of terrorism suspects, whether in military commissions or civilian criminal courts. Rather than providing a superficial survey of the field of National Security Law, this class will offer a more in-depth analysis of these three issues. And as much as our focus is on the actions and policies of the political branches for each topic, we will also look carefully at the role the courts have historically played in resolving legal claims in these fields, 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 those captured in 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 to determine if books are currently available for purchase online.
Our casebook for the semester will be Stephen Dycus et al., Counterterrorism Law (2d ed. 2011). Although there will be substantial additional readings provided via MyWCL, students are not expected to purchase the casebook's 2012 Supplement.
First Class Readings
For the first class, please (1) read the Course Overview and Syllabus; and (2) complete Assignment “1” therein (i.e., read pages 3-24 of our casebook and Handout I—which is available via MyWCL). If you have any trouble obtaining the casebook in time to complete the assignment for the first class, please let me know and I’ll do my best to make other arrangements.
As you do the reading for our first class, consider the following questions:
1) How would you define “terrorism,” if you were asked? Based on the casebook readings, how do different statutes define it? Are there things you like / don’t like about each of the definitions?
2) One of the central issues we’ll face this semester is the tension between using the criminal and military paradigms to respond to international terrorism. Focus on note 2 on page 7 of the casebook… do you see the ways in which terrorism both does and doesn’t comfortably fit within traditional criminal law understandings? Is criminal law sufficient to respond to the threat posed by al Qaeda and its affiliates? Contrast that with note 4 on pp. 7-8, and terrorism as “war.” What are the pros and cons of that approach? Ultimately, which do you find more convincing? Why?
3) The Almog and Saperstein cases deal with the extent to which “terrorism” is a recognized violation of international law. Why does that matter in each case? Can the decisions be reconciled? Why might this issue matter more generally? Might the United States’ authority to respond to terrorism turn in any meaningful way on its relationship with international law? Why or why not?
4) In Handout I, I’ve given you two of the three most important statutes we’ll discuss this semester: the September 2001 Authorization for Use of Military Force (“AUMF”), and the relevant provisions of the FY2012 National Defense Authorization Act (“NDAA”). What authority does section 2(a) of the AUMF provide? Section 1021 of the NDAA? Against whom, exactly, has Congress authorized the use of military force?
5) The contrast between the sweeping but vague language of the AUMF and the specific but perhaps internally inconsistent language of section 1021 of the NDAA is striking. In your view, does the NDAA “expand” the detention authority provided by the AUMF? Does it contract it? Does the answer depend on how the AUMF was interpreted in the 11 intervening years? If so, whose interpretations should matter? Congress’s? The President’s? The courts’? Does the answer also depend on the citizenship and location of the detainee? Should it so depend, in your view?
Use your MyAU username and password to access the syllabus in the following format(s):