November 21

Major Earthquake Response Plan

USNORTHCOM Playbook Cascadia Subduction Zone (CSZ) Catastrophic Earthquake & Tsunami Response (April 2016)

Breaking News

Gerry Adams, Irish Republican Leader, to Step Down From Sinn Fein

Another terrorist who became a statesman when his side won. Brexit may rekindle the conflict.

Judge considers whether Trump’s tweets should open up government’s dossier probe

The government’s right to deny that information exists (when it does) in an FOIA request is called a Glomar response, from a case in which the government kept secret information about using a private submarine borrowed from Howard Hughes. Read more here

The Coast Guard’s ‘Floating Guantánamos’


We will discuss the domestic role of the military and first response. You can skim the materials in book, but this is not exam material. We will then talk about the course and the sweep  of the material.

The online class evaluations are now available, so you should do those.

Smallpox Bioterrorism Attack – try to watch this to see a realistic (perhaps optimistic) portrayal of a smallpox attack.

Edward P. Richards, The United States Smallpox Bioterrorism Preparedness Plan: Rational Response or Potemkin Planning? National Security Forum Issue, 36 Wm. Mitchell L. Rev. 5179 (2010) (alternative source)

If you want to know more about smallpox  – my analysis of the problems with the smallpox response system and why the CDC gave into political pressure to weaken the response plan.

The Politics of Smallpox Modeling – Powerpoint

Smallpox Vaccine Injury Law Project


18 U.S. Code § 1385 – Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

(posse comitatus – a body of men, typically armed, summoned by a sheriff to enforce the law.)

Insurrection Act 10 U.S.C. §§331-335 (2012) – 


Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.


The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it . . . (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. . . .


Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents or those obstructing the enforcement of the laws to disperse and retire peaceably to their abodes within a limited time.


(a) In general.—The Secretary of Defense, upon the request of the Attorney General, may provide assistance in support of Department of Justice activities relating to the enforcement of section 175, 229, or 2332a of title 18 during an emergency situation involving a weapon of mass destruction. Department of Defense resources, including personnel of the Department of Defense, may be used to provide such assistance if—

(1) the Secretary of Defense and the Attorney General jointly determine that an emergency situation exists; and

(2) the Secretary of Defense determines that the provision of such assistance will not adversely affect the military preparedness of the United States.

Doyle, Charles, and Jennifer K. Elsea. “The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law.” (2012).

USNORTHCOM Playbook Cascadia Subduction Zone (CSZ) Catastrophic Earthquake & Tsunami Response

What would the response look like for a really big disaster?



November 16

Breaking News



Chapter 22 – Evidence in Criminal Trials

Be sure you can answer the questions before and after the cases.


The Making of a Suspect: The Case of Wen Ho Lee

The eventually fell apart.

CRS – Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act (2012)

November 14

Breaking News

U.S. Gave Its Torturers a Pass, So International Court Steps In

Security Breach and Spilled Secrets Have Shaken the N.S.A. to Its Core




Further reading

Margulies, Peter, Advising Terrorism: Material Support, Safe Harbors, and Freedom of Speech (March 4, 2011). Hastings Law Journal, Vol. 63, p. 455, 2011; Roger Williams Univ. Legal Studies Paper No. 101. Available at SSRN:


Snowden on the John Oliver Show


Inside the Third Reich

Legacy of Ashes

Legacy of Ashes – NYT review

Legacy of Ashes – CIA review


The Siege

Judgment at Nuremberg


Enemy of the State (1998)

The Conversation

Zero Dark Thirty

Body of Lies

Paradise Now


November 9

Breaking News

Cancel Water-Boarding 101

This is 2009, so take it as descriptive of the past, but perhaps also of the future.

Hagan JL, Hanson A. The Militarization of Mass Incapacitation and Torture during the Sunni Insurgency and American Occupation of Iraq. Social Sciences. 2016 Nov 30;5(4):78.


Chapter 19


The Torture Memo

U.N. Comm’n on Human Rights, Situation of Detainees at Guantanamo Bay (2006)

Senate Select Committee. “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program.” United States Senate: Declassified Dec. 3rd (2014).

November 7

Breaking News

An ICC Investigation of the U.S. in Afghanistan: What does it Mean?

Inside Bin Laden’s Files: GIFs, Memes, and Mr. Bean

Trump and the Rule of Law

Firearm Justifiable Homicides and Non-Fatal Self-Defense Gun Use (2015)

 Mohamedou Ould Slahi was held in Guantanamo for 14 years and tortured, despite there being no evidence that he was connected to terrorism. He wrote a diary in the form of letters to his attorneys, which is our best picture of what it was like for the detainees. It is a fascinating story. The version that was published while he was still being held was heavily redacted. Once he got out, he filled in the redactions as best as he could remember what he wrote and that version has now been published.

Gitmo, Unredacted – The interviews

Guantánamo Diary – The book.


Chapter 18

Read this carefully – we are going to talk about the definition of torture and whether one should be necessary under jus cogins. Should the authors of the torture memo have known this was torture? (What would be the standard for treatment under the Geneva convention?) As background, the best available information at the time this program was started was that it was useless for interrogation, and would, at best, generate unreliable information. The FBI had proven techniques that were also humane.

NB – We are going to track the Notes and Questions pretty closely in this chapter, as well as looking at the few cases.

Water Cure: US Policy and Practice in the Philippine Insurrection, Richard Prevost, ESQ, Member of the Virginia Bar and Military Law Section

Scan this and read the conclusion on p. 14 as background for the class discussion.


Army, U. S. “Field Manual 2-22.3 (FM 34-52). Human intelligence collector operations.” (2006). – PROHIBITION AGAINST USE OF FORCE

Convention Torture Act
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity As used in this chapter—

(1) ‘‘torture’’ means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or

suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) ‘‘severe mental pain or suffering’’ means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality . . . .

November 2

Exam Info

I have added an Exam Info page.

Breaking News

Manhattan Terror Attack Kills 8 as Pickup Truck Mows Down Cyclists


It is that time in the course when we are going to skip some of  the less critical material so we can get to more relevant materials. Chapter 16 concerns long term military detention of non-US persons, i.e., those at Guantanamo. Review the MILITARY DETENTION OF NON-U.S. PERSONS: SUMMARY OF BASIC PRINCIPLES on page 582, which we will discuss briefly in class. Then read Chapter 17. This is a dense chapter. Use the Notes and Questions to guide your reading, and I will try to focus our discussion on the issues they raise so that we can more efficiently cover the material.


28 USC 2680(h) – Exemptions to the FTCA

Comparison of 42 USC 1983 versus FTCA

Ziglar v. Abbasi, 137 S. Ct. 1843, 198 L. Ed. 2d 290 (2017)

October 31

Breaking News

Mariel detention correction: Clark v Martinez

It has been a while since I checked on the endgame for the Mariel detainees. In 2005 the Supreme Court ended indefinite immigration detentions.

How Fidel Castro and the Mariel boatlift changed lives and changed Miami

Niger Ambush Reignites Senate Debate Over Authorization Of Military Force

With Huge Fines, German Law Pushes Social Networks To Delete Abusive Posts

Under the measure — touted by many as the toughest law of its kind in the Western world — social media companies that have at least 2 million users in Germany, including Facebook, Google and Twitter, can be fined as much as 50 million euros ($58.3 million) if they fail to delete comments and posts that are deemed to violate German law. In clear-cut cases, the time that the platforms have to remove the offending material can be as little as 24 hours.


Chapter 15


Executive Order 9066: The President Authorizes Japanese Relocation

Enemy Alien Act

Non-Detention Act

October 26

Breaking News

When Dissent Became Treason

The persecution of dissenters and foreigners during WWI.

The FBI has 7,000 phones it cannot unlock

Encryption makes a big difference in protecting your privacy, as long as you do not put your data in the cloud unencrypted or send it to a third party.


Surveillance shifts from the NSA to local police

This is a short article, but it raises important questions about the decentralization of surveillance.

Chapter 14

October 24

Breaking News

Former National Security Officials Urge Section 702 Reauthorization in Letter to Congress




Origin of Habeas Corpus

Suspension Clause

October 19

Breaking News

New device detects texting while driving, but is it legal?

The next step in bots

Border Security – Firesign Theater

India’s national identity system

World Wide Geolocation System 


Think about the history of attacks on airlines before we talk about the 9/11 attack at the beginning of the chapter.

The 1970 Palestinian Hijackings of Three Jets to Jordan

D.B. Cooper: Everything you need to know in 5 minutes

How Hijackers Commandeered Over 130 American Planes — In 5 Years

Does the 9/11 screening make more sense in this context?

Finish Chapter 12 – Screening for Security


Krouse, William J., and Bart Elias. “Terrorist watchlist checks and air passenger prescreening.” LIBRARY OF CONGRESS WASHINGTON DC CONGRESSIONAL RESEARCH SERVICE, 2009.