Assignment 19

Assignment 19

We are going to take another look at emergency powers that might be applied during the pandemic.


These build on materials from the chapters on emergency response and the use of the military for domestic emergencies, plus these additional readings:

Richards III, Edward P. “The United States smallpox bioterrorism preparedness plan: Rational response or Potemkin planning.” Wm. Mitchell L. Rev. 36 (2009): 5179.

While this was written about smallpox, it has a lot of relevance to the current outbreak.

Richards, Edward P. “The jurisprudence of prevention: the right of societal self-defense against dangerous individuals.” Hastings Const. LQ 16 (1988): 329.

This is an old piece, but still a good history of public health authority and the tension between the state’s authority to protect versus the state’s authority to punish.  This article was written in 1989 to refute the idea that traditional public health laws had been implicitly repealed by the Warren Court.  (This was an idea pushed by civil libertarians during the beginning of the AIDS epidemic.) The thesis is developed through an analysis of then-current United States Supreme Court decisions involving the control of dangerous persons, including criminal law decisions.  While the article does not endorse the use of public health law powers in the criminal law context, the Supreme Court’s willingness to do so clearly implies that it believes that the traditional public health law decisions are still good precedent.  Kansas v. Hendricks, 521 U.S. 346 (1997), decided well after the publication of this article, follows the rationale of the criminal law cases analyzed in the article and applies traditional public health principles to the detention of sexual predators. This prevention/punishment distinction comes up later as we read the materials on 4th/5th Amendment issues on searches and surveillance.


The first is a podcast that I recorded with a professor from Emory on public health powers and the constitution:

The Constitution and the Coronavirus

The second is a podcast by Professor William Banks, a coauthor of our book, on emergency powers, including the military:

Emergency Powers and COVID-19 with William Banks



Assignment 18


Assignment 18 – Class Introduction

Counterterrorism Law – News Update Wednesday, March 25 2020

Video – Chapter 17Slides – Chapter 17

Video – Chapter 18Slides – Chapter 18

Video – EO 12,333Executive Order 12.333 (2008)

Going Forward

We are now in uncharted waters. Given the rapid spread of the disease, closing the university makes good sense. Our moving online will assure you do not lose credits and will be able to graduate on time. Parts of law school can work well as online education and other parts will suffer. Even the parts that can work well take a lot more development time than a week’s notice. The faculty will do our best, and we will try to assure that you – the students – do not suffer more than is unpreventable from this abrupt change.

The procedure in this class will change from day to day assignments tied to specific days in class to a series of assignments to be completed as you are able. You will need to work through all of them by the end of the term, but you have the flexibility to work as your schedule permits.  This recognizes that many of you have personal responsibilities that have expanded since the closing of the university, K-12 schools, and many businesses. You will need to read more and work more independently. Since this is the way you will have to work once you graduate, it will be a good transition to your post-law school world. We will still do an emailed-in take-home exam, which works well with our move to online.

I  have created an Online Class Question Page. If you email questions to me that I think should be shared with the class, I will post the question (deidentified) and the answer on this page. Please feel free to ask questions about the course and about the materials and will answer as quickly as I can.

Additional materials for last class

Introduction to the Packet-Switched World – video of the presentation from class. I recorded this for folks who had to miss last class (March 12) (Please excuse the low production values.) (Reposted as YouTube link)


U.S. combats martial law conspiracy theories as the National Guard assists in coronavirus response

These maps use phone data to track social distancing

11 countries are now using people’s phones to track the coronavirus pandemic, and it heralds a massive increase in surveillance

Why Germany’s coronavirus death rate is so much lower than other countries’ rates

How South Korea Flattened the Curve

Louisiana COVID-19 Cases

Readings for Assignment 18

We did not get to Chapters 17 & 18 and relevant supplement materials last class. (I was worried that we would go online and wanted to do the introduction to the Internet live.) They are the readings for this assignment.


Joint Publication 2-01 – Joint and National Intelligence Support to Military Operations – 5 July 2017

The Church Committee Reports

Marshall Curtis Erwin, Intelligence Issues for Congress 5 (Cong. Res. Serv. RL33539), Apr. 23, 2013

CIA, Notes from our Attic: A Curator’S Pocket History of the CIA (2014)


Day 17 – March 12



Chapters 17 & 18. This is mostly structural, which I will lecture on. Pay careful attention to the Halkin v. Helms case and the following discussion of the Church Committee. This is the one example in the modern age of Congress trying to assert its constitutional role of directing presidential actions. It did not last long.

Day 16 – March 10

Class News

LSU has canceled foreign study programs because of coronavirus and is considering canceling in-person classes if there is an outbreak in Baton Rouge. If in-person classes are canceled, I give you specific information about class on this blog. I am prepared to post online lectures and narrated PowerPoint slides, and we can use Moodle for review quizzes. We can also use the Moodle discussion forum, email, and Zoom. Since testing has just begun in Louisiana, our lack of cases is more likely a lack of information. It is likely that we will have local cases before too long, at which point the university will make a determination about in-person classes. Since our exam is a takehome, we are in good shape there. I will post it on Moodle and you will return it by email to my AA so there will not need to be any in-person visits to the school.


Intel community faces an uphill battle combating leaks after mistrial in major case

Coronavirus Shuts Federal Courtrooms in Washington State


Team 2 is up.

We are finishing our review of the role of Homeland Security with a discussion of the domestic use of the military. This is a timely topic as concerns grow over potential civil unrest if the coronavirus spreads. Read Chapter 39 in our text, and be sure to read the supplement materials.

Slides – Chapter 39


The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law – CRS (2018)

Day 15 – March 5


The New York Times: Defense Secretary Warns Commanders Not to Surprise Trump on Coronavirus.

San Antonio Officials Declare Emergency After COVID-19 Quarantine Hiccup


New Chapter 37 – Homeland Security. If you missed class, pick up the chapter from my AA, Ms. Fox.



Dark Winter – a real worst-case scenario

National Response Framework, Fourth Edition

Federal Disaster Declarations

Stafford Act Assistance and Acts of Terrorism. Congressional Research Service, 2019.

Critical review of the Model State Emergency Health Powers Act

Do exercises really equal preparation? – The Hurricane Pam Exercise

Southeast Louisiana Catastrophic Hurricane Functional Plan, August 6, 2004 (wrap-up) in which Louisiana promised FEMA that it was ready for a major hurricane.

Preparing For A Catastrophe: The Hurricane Pam Exercise Hearing Before The Committee On Homeland Security And Governmental Affairs, United States Senate, One Hundred Ninth Congress, Second Session, January 24, 2006.

Day 14 – March 3


Coronavirus Disease 2019 (COVID-19) – take your pick of disturbing stories.


Team 1 – Chapter 13 (from 2020 edition of the book) – Targeting Terrorists. If you missed class on Thursday, you may pick up the chapter from my AA, Cia Fox. We want to sort out the IHL standards from the U.S. law standards which apply to US citizens targeted as terrorists. This should not be too long a read – we have already covered Public Committee Against Torture in Israel.

Guide Chapter-13-(2020-edition)


Drone strike stats


Day 13 – February 27


The court rejected the application of Bivens in Hernandez v. Mesa, the cross-border shooting case. Thomas, joined by Gorsuch, went farther and asked the court to overrule Bivins, eliminating the court created right to sue federal employees for civil rights violations. The only remedy left would be the FTCA and anything additional provided by Congress.

U.S.-Taliban Peace Talks May Be Edging Closer To A Deal

Coronavirus Updates

HHS Secretary Azar: ‘I’m still chairman of the task force’ on coronavirus after Trump says Pence is leading response


Team 2 – Chapter 11 – How we Go to War: Lessons from Vietnam, plus material from the supplement.

I will briefly review the Vietnam War. We will focus on the material in the study guide. Globally, note how few legal constraints the court has allowed on presidential war-making powers.

Guide Chap – 11

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 (WWII – 16,112,566 over 5 years)
Deployed to Southeast Asia: 3,403,000

Battle Deaths: 47,424 (WWII – 291,557)
Other Deaths (In Theatre): 10,785
Wounded: 153,303 (WWII – 671,846)
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

The Truth about Tonkin (US Naval Institute)

Gulf of Tonkin Resolution

Indonesia – Map of Indonesia – 1950-1965 – 1965-1998

Movie about the beginning of the US involvement in Vietman

War Powers Resolution

Day 12 – February 20



No assignment. We will have 2 visitors from the War College who will present on the research work and take questions from the class. This is a great opportunity to talk with top military scholars. We will also extend an invitation to others in the law school community who might want to join us for their presentations.

Day 11 – February 18



Team 1

Finish Chapter 9 and read Chapter 10.

Guide Chap-9-II and 10

The key question is how the Conventions fit asymmetric warfare.


Hague Conventions

1925 Geneva Protocol – Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare

The Geneva Conventions and their Additional Protocols

Rules of war (in a nutshell)


Day 10 – February 13


The Legal Limits on Trump’s Reprisals Against Impeachment Witnesses

Military Whistleblower Law – Department of the Navy


Team 2

Chapter 8 and Chapter 9 to B. Content of Jus ad Bellum, p 260, and relevant supplement material.

Guide – Chap – 8 & 9-I


28 U.S. Code § 1350.Alien’s action for tort

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

Torture Victim Protection Act



Day 9 – February 11


Cyberlaw Podcast – update on espionage trial and other news.

This podcast also has a great discussion about the current conflicts between European privacy standards and those in the US and why this might interfere with national security surveillance.

The Coronavirus and the Constitution


I am concerned about the low level of preparation for class. I am dividing the class into two teams. One team will be on call for each class. Everyone needs to read the materials, but I will call on the assigned team for questions about the assigned material. (Everyone is fair game for general information and policy questions.) You will only need to be intensely prepared one day a week, but you can count on getting called on more often on your team’s day. Do not cut class on your team’s day – that counts against you if I see a pattern. If we do not finish the material, the originally assigned team stays on deck until we finish it.

Team 1

Team 2

Emily Barbera Samuel Bua
Nicholas Chauvin Indigo Diekmann
Kirstyn Frank Blane Mader
Alexandre Makhoul Michael Maldonado
Colin Munn Kyle O’Shea
John Oakes Olivia Ogden
Alexandria Otero Christian Redmon
Phillip Reed Marcus Sandifer
Michael Schouest Courtney Troxclair
Christopher Versak Eliana Wackerman
Stephen Williams


Review of State Secrets

D. EVIDENTIARY HURDLES: THE STATE SECRETS PRIVILEGE, p. 161 to the end of Chapter 6. I will review this in class.

Team 1

Chapter 7 and the two additions from the supplement.

Guide – Chapter 7 – please use this in doing your readings. I have narrowed the material that we will be considering in the chapter.


Day 8 – February 6


Breaking news – Judge OKs Limited Release of Pentagon Papers Case Records

Study claiming new coronavirus can be transmitted by people without symptoms was flawed

Another lesson about an evolving emergency – assumptions change as date accumulates.

Ex-C.I.A. Analyst Faces Trial in Biggest Leak of Agency’s History

Interesting story. Usually, there is a plea deal because the government does not want to present secrets in court and because juries do not like leakers.


Chapter 44

Can publishers be punished for publishing state secrets?

This case comes from the days of well-defined media that mostly cooperated with the government. Would this apply to bloggers?


Vietnam War Timeline

The Post – movie trailer

Background information on the Pentagon Papers

The Pentagon Papers


Day 7 – February 4


Map shows spread of virus across the globe

New England Journal of Medicine Coronavirus page

The Cybersecurity 202: Iowa caucus debacle shakes public confidence in 2020 security

More about stupid than about hacking.


I will do a brief summary of suing the government at the beginning of class. We are then going to read and discuss Chapter 43: RESTRAINING UNAUTHORIZED DISCLOSURES OF NATIONAL SECURITY INFORMATION. With Bolton in the news, it will be timely and will make you the best-informed person in the room on the actual law.

Guide – Chapter 43

This is a rich chapter with a lot of law. Read it carefully and think about the 1st Amendment versus the right to protect classified information. Also think about how this would apply to Bolton.


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)

National Security Decision Directive No. 84 (NSDD-84), Safeguarding National Security Information

Day 6 – January 30


CNN: White House has issued formal threat to Bolton to keep him from publishing book

Attorney responds to National Security Council after they said John Bolton’s book contains classified information

The White House can block classified information, but they have to show the court that it is really important information, not just something they classified to coverup problems. This is prior restraint, but officials sign a contract in which they agree to submit works for pre-approval. This is covered in Chapters 43 and 44 in the book, if you want to read ahead.



Chapter 6 – read to p. 137, then read the supplement p. 36-59, then Ripeness on 157, then supplement 59-66, then Qualified Immunity on 160 and the supplement on top of 66.


Day 5 – January 28


Breaking story – Bolton’s book. Keep an eye on this story, it has national security implications.

The Deadliest Flu – This is why scientists are so worried about the flu.

Coronavirus: Chinese hospitals in chaos as lockdown spreads to affect 33m people

This is a developing story. What would this look like in the US?

Do Quarantines Even Work? (Research paper cited in the editorial – Nonpharmaceutical Interventions Implemented by US Cities During the 1918-1919 Influenza Pandemic)

Prof. Markel has done excellent work on flu pandemics.


Supplement, pp. 1-14

Chapter 5 to b. Implied Authorization by Defense Appropriation, p.  121.

Supplement pp. 14-35.

Study Guide – Chap – 4 – III & Chap-5 – I

These readings complement each other by covering both emergency powers and funding limits on emergency powers.

Review 50 U.S. Code CHAPTER 34—NATIONAL EMERGENCIES, which was part of our assignment on Day 3.


A Guide to Emergency Powers and Their Use (2018)

Day 4 – January 23


Apple dropped plan for encrypting backups after FBI complained

U.S. To Impose Visa Restrictions For Pregnant Women –


Finish materials from last class. Read to p. 95, C. THE PRESIDENT’S EMERGENCY POWERS. Be sure to get the note for p. 80 from the supplement. (Make sure you have the supplement, the remainder of chapter 4 is in the supplement.

Read this short post on how prize money was divided. Prize money was paid to regular navy crews as well as privateers.

Guide – Chap – 4 (II)


Binney, Charles Chauncey. “The Latest Chapter of the American Law of Prize and Capture.” The American Law Register (1898-1907) 54.9 (1906): 537-549.

The history of prize money, which ended in 1905.

Instances of Use of United States Armed Forces Abroad, 1798-2018


Day 3 – January 21


The Guardian: Guantánamo: psychologists who designed CIA torture program to testify

Iran Conflict Could Shift To Cyberspace, Experts Warn


Chapter 3

You read Youngstown in Constitutional law, so this should be familiar.

Chapter 4 to Zivotofsky ex rel. Zivotofsky v. Kerry (Zivotofsky II) p.71

Guide – Chap 3-4


Examples of Presidental national security directives and executive orders


Day 2 – January 16


The Impeachment Parade

Trump: Apple Needs to Unlock iPhones from Pensacola Shooter

Apple responds to AG Barr over unlocking Pensacola shooter’s phone: “No.”

If Russia Hacked Burisma, Brace for the Leaks to Follow

Voting machines

Surveillance Capitalism

Try to listen to this before class. One of the key threads to cybersecurity is the merger of private actors and state actors.

Experimental evidence of massive-scale emotional contagion through social networks

Just read the abstract. One of the key strategies for cyberterrorism is state manipulation of social media.

Class Information

Review the Class Information and Resources page.


Chapter 1 & 2


Constitutional Powers

Congressional Powers

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water

Raise and support armies

The navy

Regulation of the military

Calling up the militia

Governing state militias

Presidential Powers

Commander in Chief

Ambiguous Powers

Habeas corpus

Day 1 – January 14

No Class – Football hangover day