Archives for 2020 Spring

Day 14 – March 3



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.


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