National Security Law: Surveillance (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.
This semester, we will seek to answer this question through the specific lens of surveillance: the government’s power to watch, search, or otherwise monitor the behavior of individuals—criminal suspect or otherwise, citizen or otherwise—whom it believes it needs to monitor in order to protect national security. Indeed, whereas the disclosures of various hitherto secret surveillance programs by Edward Snowden has reignited public debate over the permissible scope of such authorities, a national conversation about the appropriate balance between the government’s surveillance powers and the privacy and civil liberties of those who are subject to such surveillance has been long overdue. Although I hope that you will leave this class with a better understanding of the competing sides in this debate, my goal is somewhat distinct—to provide you with as rigorous an introduction to the law of national security surveillance as one semester will allow, and, through it, to help better illuminate the broader tensions defining national security law, writ large.
Textbooks and Other Materials
Our readings will be divided between a casebook--Stephen Dycus et al., Counterterrorism Law (2d ed. 2012)--the 2014–15 Supplement thereto, and supplemental materials provided via MyWCL. The second edition is substantially different from the first edition, and so it will be difficult, if not impossible, to rely upon an older version of our text. Let me also encourage you to become a regular reader of “Lawfare” (http://www.lawfareblog.com), and “Just Security” (http://www.justsecurity.org), perhaps the two best sources of real-time discussion and analysis of current topics in national security law and policy (despite the fact that I’m one of the contributors to both).
First Class Readings
The assignment for the first class is to read the Supreme Court's decisions in United States v. Jones, 132 S. Ct. 945 (2012), and Clapper v. Amnesty Int'l, 133 S. Ct. 1138 (2013)--both of which are available at this link--and come ready to discuss the following five questions: Although the Jones Court unanimously rejects it, start with the government's position, as summarized by Justice Scalia in his majority opinion. Wasn't the government relying on fairly solid precedent in arguing that Jones did not have an expectation of privacy in his public movements by vehicle? What, for Justice Scalia, at least, is the critical distinction in this case? Although Justice Scalia resolves the case on narrow, trespass grounds, the separate concurring opinions by Justices Alito and Sotomayor would go a lot further. Why would Justice Alito hold that the use of the GPS device was a "search" for Fourth Amendment purposes? Why does Justice Sotomayor think it may well be time for the Court to revisit fairly well-settled pillars of its Fourth Amendment doctrine? Do you agree with either (or both) of them? How would you have voted in Jones, if you were on the Court? Turn to Clapper, and Justice Alito's majority opinion. Why does he reject the plaintiffs' "Article III standing" to challenge the FISA Amendments Act? Why can't the plaintiffs show that the surveillance to which they are objecting is "certainly impending"? Should that be the standard they have to surmount in order to sue? Why does Justice Breyer disagree, in his dissent? Whose argument do you find more convincing--and why? Whether or not you agree with Justice Alito's majority opinion in Clapper, what remedies does it leave for those who believe that government surveillance authorities are unlawful--whether on their face or as applied? Are motions to suppress in criminal cases sufficient? Even if they are, what would that require from the government? Finally, take a step back and think about the timing of these decisions. Jones, in January 2012, suggests that the Supreme Court is on the verge of reconsidering the third-party doctrine. Clapper, decided in February 2013, rejects the notion that it's likely--if not certain--that U.S. persons' communications are being intercepted by the government under the FISA Amendments Act. Then, in June 2013, Snowden comes along. Would either of these cases have come out the same, in your view, had they been decided after the Snowden disclosures? More fundamentally, do the Snowden disclosures provide the means for revisiting both of these decisions--and the Court's privacy jurisprudence more generally? If so, in what direction should the Court's approach move?
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