March 21

News

Assignment

Finish Chapter 23 and read Chapter 25.

March 19th

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)

Online Assignment – Part 5

I have renumbered the assignments for clarity.

Assignment

The materials for the Carpenter case have been posted.

Online Assignment – Part 4

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.

Online Assignment – Part 2 & 3

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 (Note – D. THE IMPACT OF NEW TECHNOLOGY in Chapter 21 has been replaced by the Carpenter case in the supplement materials for Chapter 24.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.

 

 

Online Assignments – Part 1

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)

March 7, March 12, and March 14

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.

March 5

No class! Happy Mardi Gras!

February 28

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.

February 26

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)

February 21

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)

February 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

February 14

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

February 12

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.

February 7

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)

February 5

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

January 31

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

January 29

Assignment

Chapter 5

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

January 24

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

 

January 22

Assignment

Chapter 3 – Review

National Emergencies Act

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

January 17

Assignment

Read Chapter 3.

Look at the news.
Read more »

January 15

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