Exam info and Updates

Exam Q & A – I will post questions I receive from students (no identifying information will be posted) and my answers on this page. It also appears in the right sidebar of the blog.

This has been a news-filled semester. We have listened to podcasts and videos and reviewed documents – such as the impeachment documents – that are outside of the coverage of the book. The exam will only cover topics in the book and any supplements related to those topics. The key topics are in the slides and the ancillary discussions which were recorded for most classes – we had a technical glitch for three classes at the beginning. I have cleaned up the slides for those classes, as well as a couple of others, and reposted them. There is no new content, but it is now clear which chapters the material is from.  You do not need to relisten to every recorded class! But if you are looking at a slide or group of slides and are confused, you can navigate to that section of the video. Scientific and technical information, such as my lecture on the packet-switched world, will not be on the exam.

Past National Security/Counterrorism Exams

Warning – the course content has changed over the years, as has the law. The most recent exams are more representative of the content but the content has changed from previous years due to coverage changes and a new edition of the book.

Review Session – April 16 (Friday) 1:50-2:50

April 22

News

The Cybersecurity 202: Encrypted messaging app Signal finds serious flaws with a phone cracking tool favored by law enforcement

Can we trust what the government claims it has recovered from phones and other data sources?

Mass Extraction: The Widespread Power of U.S. Law Enforcement to Search Mobile Phones

Assignment

Chapter 14

I have prepared a video on cyber operations basis so we do not need to spend the class going through the background material. I will pick out highlights and key issues in class.

Chapter 14 – Narrated PowerPoint SlidesVideo

Resources

Slides – Chapter 41 – Part II

In Cyberwar, There are No Rules

Department of Defense Cyber Strategy – Summary (2018)

This is the most recent report.

DoD Law of War Manual – June 2015 Updated Dec 2016

This is the most recent revision.

DoD Law of War Manual – June 2015 Updated Dec 2016 – Chapter 16 – Annotated for Class

This is a locked document, which means I cannot extract pages for class materials so I have to work with the complete document. It is bookmarked so you can navigate to Chapter 16 with the bookmarks.

April 20

Remember to do the class evaluations!

News

CNN : Supreme Court asked to make foreign intelligence court opinions public.Petition

The question is whether the FISA statute prevents the FISC and FISCR from hearing the 1st Amendment issue and whether the Supreme Court may hear it, or whether the FISA statute implicitly strips it of jurisdiction.

Why Biden Isn’t Getting Flamed as Being Soft on Terror – POLITICO

The New Russia Sanctions Resolve a Mystery That Mueller Left Unanswered

“As the New York Times put it, the Treasury Department’s press release provides “the strongest evidence to date that Russian spies had penetrated the inner workings of the Trump campaign” in 2016.”

The Washington Post: The FBI wanted to unlock the San Bernardino shooter’s iPhone. It turned to a little-known Australian firm.

Assignment

Finish Chapter 41

As background for our discussion of new media and leaks published on the internet, look at these stories:

This is everything Edward Snowden revealed in one year of unprecedented top-secret leaks

Journalism or not? WikiLeaks’ status in media world complex

For class use: WikiLeaks Founder Charged in Superseding Indictment

For class use: Louisiana Reporter’s Shield Law

This is the last material that will be on the exam.


We are going to look at cyber operations for the remainder of the class on Tuesday and on Thursday.

As background, we are going to do a quick review of the laws of war.

First, watch this short video: Rules of war (in a nutshell)

We will discuss the laws of war as presented in The Commander’s Handbook on the Law of Land Warfare (2019). This document operationalizes the laws of war by incorporating them into the military standards for warfare, which are then subject to enforcement through the UCMJ. While does not make them general law, as would a statute, it does make them binding on the military. We are going to look at the basic principles as summarized in this chart and discussed in Chapter 1 of The Commander’s Handbook on the Law of Land Warfare (2019).

We are looking at these materials in the context of how they will apply to cyber operations.

Resources

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

Nuremberg Trials

The Geneva Conventions and their Additional Protocols

Slides – Chapter 39

Slides – Chapter 41 – Part I

 

 

 

April 16

Review Resources

702 Collection. There was a question during the review session about 702 collection. I wanted to provide a little additional information because I think I confused parts of 702 with other sections in my answer. 702 authorized collection of communications from US-persons reasonably believed to be outside the US who might have foreign intelligence information. It was necessary because packet-switched communications may flow through the US even if both ends of the communication are outside the US. These persons also use communications provided by US companies such as Google. 702 allows warrants to be issued to obtain information from the US companies handling these communications. While US-persons cannot be targeted, some of their communications will be collected in the process. Those must be protected through minimization procedures. The FISC will review the request to do surveillance on the targeted persons and the proposed minimization procedures. This is covered in the PowerPoints for Chapter 22, starting at slide 16.

Comparing 42 USC 1983 and Tort Claims Acts – a quick comparison of the acts, in response to a question.

Materials for the makeup class

Slides – Chapter 7 – Part I (these are the slides that we covered in the Feb 23 class.)

Narrated PowerPoint – Chapter 7 – Part II – video

Narrated PowerPoint – Chapter 8 – video

 

April 15

News

The Washington Post: Biden will withdraw all U.S. forces from Afghanistan by Sept. 11, 2021.

Airforce Magazine: The fall of Saigon

The Guardian: Forty years on from the fall of Saigon: witnessing the end of the Vietnam war

THE AFGHANISTAN PAPERS A secret history of the war

Pentagon Papers Redux? – “U.S. officials constantly said they were making progress. They were not, and they knew it, an exclusive Post investigation found.”

Assignment

Chapter 41

Resources

The Pentagon Papers – Complete – The National Archives

Famous Trials – The Pentagon Papers

The chronology

April 13

News

TBA

Assignment

Read Chapter  41 – Censorship.

We will finish Chapter 39 and begin Chapter 41.

Resources

Slides – Chapter 26

April 8

News

Peter Thiel suggests Bitcoin may be ‘Chinese financial weapon against the U.S.’

Assignment

Chapter 39

Resources

A good review of qualified immunity if you are not sure you fully understand the concept.

Classification EO – full text

Security Clearances – Personnel Security Standards and Procedures Governing Eligibility for Access to Sensitive Compartmented Information

Appealing a Denial or Revocation of a Clearance

Department of Justice Guide to the Freedom of Information Act – Exemption 1

Classified Information Nondisclosure Agreement (SF312)

SF 312 FREQUENTLY ASKED QUESTIONS CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT

 

April 6

News

Biden revokes Trump executive order sanctioning International Criminal Court officials.

Assignment

Read CHAPTER 26 – PROFILING AND TRAVEL BANS.

Read the profiling materials, some of which are in the travel ban case, carefully. That is the key legal issue in this chapter.

Resources

Slides – Chapter 25

Slides – Chapter 23

Slides – Chapter 2

Slides – Chapter 3 (combined into a single file – no new info)

Slides – Chapter 4 (combined into a single file – no new info)

March 30

News

Old news – Dawson’s Field Hijackings

This was the inspiration for 9/11. The Palestinian group that took the name Black September, hijacked 4 airplanes at once and landed 3 of them at a desert base called Dawson’s field. Ultimately the passengers were released and the planes were recovered with little violence. The hijackings were possible because the flight deck doors could not be secured. This was noted at the time and it was recommended that this be changed. It was also the subject of at least two thrillers. Nothing was done, making the 9/11 hijackings easier.

Assignment

Read Chapter 25. Think about data mining.

March 25

News

Prison Mail Surveillance Company Keeps Tabs On Those On the Outside, Too.

Do you waive your privacy rights when you communicate with a prisoner?

Assignment

Think about Justice Gorsuch’s musing on how property law could be rethought to protect digital records. We will finish Chapter 23 and discuss its implications.

Read Chapter 24.

Resources

Doe was the owner of the small ISP that got the NSL. It just happened that the NYC ACLU was one of his ISP clients. Or maybe that was not just a coincidence, but we cannot know because he still cannot tell you what the FBI wanted. Here is the record of the litigation, and here is his interview on On the Media.

Slides – Chapter 24

March 23

News

ODNI’s declassified Intelligence Community assessment of foreign threats to the 2020 US federal elections

This is the report which raises new questions about the Russian attempts to influence the election and links to persons connected to the Trump campaign.

Business Insider: US officials who are ready to fight China over Taiwan don’t understand how much is at stake.

This reminds us that trade and IP are not the only issues with China.

China Is Not Ten Feet Tall How Alarmism Undermines American Strategy

A counterpoint to views that China has outstripped the US on the foreign stage.

Want to get work where you need a security clearance? Start with this 136-page form: Standard Form 86 – Questionnaire for National Security

If you are filling out that form, better not smoke dope: 5 White House Staffers Fired Over Marijuana Use, Psaki Confirms

This company claims it can track all cars with remote vehicle assistance systems.

Assignment

Chapter 23

This is an important chapter that raises many important issues. Read it and be prepared to discuss it.

If you want to start reading ahead, we will continue with Chapters 24, 25, & 26.

Resources

Infographic: The World of Geolocation Data

Slides – Chapter 22

March 18

News

DNI Declassifies Report on Election Interference by Russia

Assignment

Chapter 22, which you should have read for Tuesday.

The authors have provided two 1 paragraph supplements to Chapter 22:

Chapter 22 A – NSL-p.-675

Chapter 22 B – NSL-p.-677

Resources

Military IG Report on the TSP (2009)

March 16

News

TBA

Assignment

Read Chapter 22

FISA Resources

FISA – 50 U.S. Code § 1801 – Definitions

FISA – Procedures for warrantless collection (foreign powers)

FISA – 50 U.S. Code § 1805 – Issuance of order

FISA – 50 U.S. Code § 1806 – Use of information

FISA Reports and other Documents

Class Resources

Slides – Chapter 20

Slides – Chapter 21

March 11

Class Rules Update – cameras

Class rules require that your camera be turned on. For the rest of the course, I will mark you absent if your camera is not on and you have signed in as present. If you have special circumstances, email me and I will not mark you absent.

News

Not new, but I didn’t post it last class – 1991 AUMF (first Iraq war)

Assignment

Finish discussing Chapter 20

Read Chapter 21 to B. FISA, Law Enforcement, and the Fourth Amendment p. 631.

Resources

FISA – 50 U.S. Code § 1801 – Definitions

FISA – Procedures

Slides that didn’t get posted from previous classes:

Slides – Administrative searches

Slides – Chapter 4, Part II

 

March 9

News

POLITICO: Bipartisan senators introduce bill to strip Biden of war powers.

AUMF – 2001

AUMF – 2002

Assignment

Finish our discussion of Chapter 19. Read Chapter 20

Resources

Slides – Chapter 19

March 4

News

Breaking News!! House scraps work schedule amid security threat

A Letter to the Speaker of the House and President pro tempore of the Senate Consistent with the War Powers Resolution – more about this next class.

Chinese Technology Platforms Operating in the United States: ASSESSING THE THREAT (2021)

Border agents can search phones freely under new circuit court rulingBorder search opinion

This Is How They Tell Me the World Ends The Cyberweapons Arms RaceInterview with the author

Assignment

Chapter 19

Supplement to Chapter 19 (one paragraph)

Slides from last class are posted on the page for that class.

March 2

News

Past National Security/Counterrorism Exams

Warning – the course content has changed over the years, as has the law. The most recent exams are more representative of the content but are not the same as this year.

A Trippy Visualization Charts the Internet’s Growth Since 1997

Watch the Internet grow through time.

ICE investigators used a private utility database covering millions to pursue immigration violations.

An example of the government using the limited protections on privately-held data to get access to data it could not legally/politically collect on its own.

The Woman Who Smashed Codes: A True Story of Love, Spies, and the Unlikely Heroine Who Outwitted America’s EnemiesInterview with the author and discussion of the history of code-breaking and the NSA

US intelligence report finds Saudi Crown Prince responsible for approving operation that killed Khashoggi

The problems of dealing with an important country and sort of ally with a 12-century monarchy.

Declassified Report: Assessing the Saudi Government’s Role in the Killing of Jamal K.hashoggi

More information about the report

Assignment

Finish Chapter 18.

I have prepared a video review of EO 12,333 which you can review after class. This is dry and it is easier to do on your own time.

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

Slides – Chapters 17 & 18Slides – Chapters 17 & 18 – annotated

Resources

Country Joe at Woodstock – an iconic 1960s moment.

The Vietnam War Resistance

The Church Committee Reports

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

February 25

News

How many principles have we scrapped since 9/11? A new Guantánamo film reminds us

Assignment

We are going to skip the Section of the Book on Using Force Abroad. There is material in the book for two semesters’ worth of classes. I want to focus on the national security issues that have domestic law implications. (While the Vietnam War is a defining event in national security law for my generation of scholars, it is as far from most of your experience as the Punic wars.)

The authors of this book are classic legal scholars, not tech nerds. While the book deals effectively with the law, I will add some additional materials to highlight the issues posed by modern technology. The first of these is a video I recorded on the shift from the copper wire world of analog data transmission to the modern world of digital (packetized) data transmission:

Introduction to the Packet-Switched World

This was recorded in the classroom and turned out to be the last in-person class of the spring 2020 term. The production values are not high, but the audio is good and you can see the writing on the board well enough to get the big picture. If you are a tech nerd, this will be very simplistic. If communications tech is essentially magic to you, the gist of the talk is how the shift from analog telephones and other communication devices made surveillance essentially free. Privacy laws were not what protected privacy in the analog world, it was the high cost of data collection. The law is struggling to keep up with the ease and cheapness of modern surveillance in the world of cell phones and social media. We will spend some time in class talking about your attitudes about privacy and surveillance.

We also have a reading assignment so we have material to review if the discussion flags.

Read Chapter 17 and Chapter 18 to 2. Presidential Authority,  p519.

This is introductory material on the organization of the intelligence agencies. You are reading this for familiarity with the structure of intelligence gathering. This is not a deep read on legal detail. Figure out the major players and get a sense of the limited legislative constraints on the actions of the agencies.

 

February 23

News

Mostly domestic this week, dominated by the Texas power outage and Senate hearings.

Assignment

Carryover materials as necessary from the canceled class.

Read Chapters 8 & 9. We are reading this material for general concepts and terms. This about who is a combatant, who is a non-combatant, how can the roles shift, what can you lawfully do to combatants and non-combatants, what are war crimes, and the general conventions for treating prisoners of war.

Resources

Rules of war (in a nutshell)

International humanitarian law: answers to your questions. ICRC (2015)

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

February 18

Class Cancelled – Continued Ice Storm Effects

Assignment updates to follow.

News

Belated news – Biden cancels border emergency proclamation

Trump Acquitted in Impeachment II

Assignment

Finish Chapter 6. Read Chapter 7.

Slides – Chapter 6

Slides – Chapter 7

Use these to guide your reading and review of the material. We are reading for basic familiarity with concepts. We are not going into the weeds.

Resources

Slides – Chapter 5 (file name corrected, no change in content)

Mulligan, Stephen P. “International Law and agreements: Their effect upon US Law.” report no. rL32528, Congressional research Service 4 (2018).

 

February 16 – Break

News

TBA

 

February 11

News

Breaking newsBorder agents can search phones freely under new circuit court ruling.

Watch the Impeachment Trial in the Senate.

The landmark Klan free-speech case behind Trump’s impeachment defense.

All the Presidents’ Lawers – Podcast

All presidents have legal issues. Some have more than others. A weekly conversation about the law, executive power, and all the presidents’ lawyers, good and bad.

Assignment

Finish discussing Chapter 5.

Read Chapter 6 to E. The Domestic Legal Effect of Customary International Law and Jus Cogens, p188.

Note – we are going to cover the international law chapters pretty quickly because we will learn that they do not have much impact on US law.

Resources

The Federal Tort Claims Act (FTCA): A Legal Overview

Bivens at the Border: Supreme Court to Consider Whether Cross-Border Shooting Case Can Proceed

A brief review of the Bivens doctrine.

What Is Qualified Immunity, and What Does It Have to Do With Police Reform?

February 9

Getting access to firewalled news sites

New York Times

LSU Guide

If LSU has a subscription, you can look up the access method here. Some require you to register, some require a proxy if you are off-campus.

Newspapers, such as the Financial Times

News

Supreme Court Says Germany Can’t Be Sued In Nazi-Era Art Case

Ex-President Trump’s Reply Brief in the Impeachment Proceeding

Biden harnesses Defense Production Act to speed vaccinations and production of protective equipment

Good discussion of whether an ex-president can be impeached.

Assignment

Read Chapter 5.

Listen to this brief podcast segment on the Trump national security emergency claims, such as in the Sierra Club case we will finish this class, and problem that they never get proper judicial review: https://pca.st/episode/11165cff-ff4f-4bcd-a935-7600cac00be3?t=3628

Resources

United States House of Representatives v. Mnuchin, 976 F.3d 1 (D.C. Cir. 2020) – Standing

Standing refresher

Video – Standing Review

Slides – Standing Review

Slides – National Security Class 2021 – 28 Jan

Slides – Chapter-4-Part I

February 4

News

TRIAL MEMORANDUM OF THE UNITED STATES HOUSE OF REPRESENTATIVES IN THE IMPEACHMENT TRIAL OF PRESIDENT DONALD J. TRUMP

I don’t think Trump’s lawyers have filed a reply at this point.

Assignment

In light of the readings and the podcasts, think about whether President Biden could declare climate change to be a national emergency and trigger powers that Congress has provided in emergency powers laws.

Finish Chapter 4. Don’t forget the supplement that is also posted on the Feb 2 assignment

No new readings. We are going to listen to two podcasts from the ABA national security law section on presidential emergency powers. The first is background on the border wall fence emergency. The second is on emergency powers and COVID from March 2020. Think about how things have played out since then.

 

February 2

Where do we go from here?

I am working on the complete course outline in light of being online, having a new edition of the book, and current events. At this point, we will work our way through the book to Chapter 10 over the next few weeks. (This is subject to breaking national security news that justifies a detour to explain the law behind the event.)  Before we reach Chapter 10, you will get a full map of the course.

News

The National Security Imperative to Tackle Illegal Fishing

Assignment

Read Chapter 4 and this supplement (2 pages)

This is a long assignment and we may not finish it on Tuesday. The material makes more sense if you see all of it at once.

January 28

News

Breaking news – DHS Issues National Terrorism Alert for Domestic Extremists

‘Dead on arrival’: Trump conviction unlikely after GOP votes to nix trial

Nine Questions for the Capitol Insurrection Commission

Assignment

Finish Chapter 3.

Most of the material is in the Notes, so read them carefully. There are not many cases testing the President’s emergency powers outside of wartime, so all of the material is in the notes. We will see cases involving emergency powers questions later in the book under the specific areas litigated in the cases.

Resources

Proclamation of a Blockade (Apr. 19, 1861)

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

Slides – National Security Class 2021 – 26 Jan

January 26

News

US House delivers article of impeachment against Donald Trump to Senate

Leahy, not Roberts, to preside over impeachment trial

Assignment

Pick up the materials from last class and read Chapter 3 to C. The President’s Emergency Powers, p68.

Resources

Slides – National Security Class 2021 – 21 Jan

These are slides from last Thursday’s class. I have fixed the technical problems that keep the last few classes from being recorded. All classes going forward will be recorded.

January 21

News

The Biden-Harris Administration Immediate Priorities

Biden Executive Orders (White House Site)

Biden Executive Orders Affecting National Security

First cabinet secretary confirmed

Assignment

Same assignment as last class

Slides – National Security Class 2021 – 21 Jan

January 19

News

What Parler Saw During the Attack on the Capitol

Capitol riot arrests: See who’s been charged across the U.S.

How will Trump pass ‘nuclear football’ to Biden if he’s not at swearing-in?

How Biden hopes to use executive actions to address America’s “compounding crises”

Inauguration Day

What can President-Elect Biden Do on Day 1? We will talk about executive orders versus APA rules.

Assignment

Read Chapter 3 to B. The Commander in Chief’s War Powers, p. 55

Not a lot of pages. Read this carefully and think about the questions in the chapter. Think back to Youngstown from Conlaw I.

(Looking ahead, we will finish Chapter 3 on Thursday, unless something exciting happens on Inauguration Day.)

January 14

News

Military Joint Chiefs statement condemning ‘sedition and insurrection’ at US Capitol

H. RES. 24 Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.  (html)

The 2021 Bill of Impeachment – for reading aloud

MATERIALS IN SUPPORT OF H. RES. 24, IMPEACHING DONALD JOHN TRUMP, PRESIDENT OF THE UNITED STATES, FOR HIGH CRIMES AND MISDEMEANORS

Previous attacks on the Capitol

Assignment

Read the Bill of Impeachment and scan the supporting materials. Look at the suspension clause of the 14th Amendment below in the resources. Has Congress made their case for insurrection? Is impeachment subject to the same standards as a criminal trial?

Read Chapter 2. It is a short read, but it raises fundamental issues about the structure of the US government. Be prepared to discuss.

Read Parliament Over Presidents

This a brief essay on how a parliamentary government compares to a presidential government. Think about the assertion that the US had its revolution too early and got stuck with an 18th-century government in a world of 19th-century governments.

Don’t forget to log into Moodle and log your attendance at the beginning of class.

Resources

14th Amendment Section 3

No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

History of the application of the disqualification clause.

January 12

Read Chapter 1 in the text.

Read the news about the invasion of the capital and think about the legal issues.

Listen to Episode 190 of the National Security Law Podcast. This was recorded by two national security law experts at the University of Texas Law School on Wednesday night, 6 January 2020. One professor is conservative and the other liberal. It is an informal podcast and contains some harsh language. It captures the nearly universal shock of national security law experts across the political spectrum.

The Pennsylvania Mutiny of 1783 and the dangers of leaving the protection of Congress to the Executive

Course Information

This class will be held through Zoom on TTH, 9:50-11:20 am CST. The Zoom links are available through the Zoom activity on the Moodle page. The first day of class is 12 January 2021. The text is Dycus, Stephen, William C. Banks, Peter Raven Hansen, and Stephen I. Vladeck. National Security Law, Seventh Edition, Aspen Publishers, 2020. You MUST have the 7th Edition. It is significantly changed from the previous editions. You do not need to buy a supplement. Supplemental materials, additional course materials, and the assignments will be posted on this site.

Under the new law school attendance policy, you will need to log into Moodle during the first 15 minutes of class and record your attendance. If you are delayed, you will be able to log in as late. Occasional late attendance will not count against you, but a consistent pattern of late attendance will be a problem. Instructions for marking attendance are here: Moodle: How to use the Attendance activity (Students)

You should leave your audio muted except when you are called on. You should leave your video on, with allowances for brief personal breaks due to local disruptions at your end. We will use Poll Everywhere for polling during the class sessions. You respond through a URL and you do not need to buy a license. The in-class polls will not be graded, but participation will count toward class participation points. Class participation can raise or lower your grade by up to 0.3 points.

National Security Blogs and Podcasts

Lawfare – a key blog for national security law. (Brookings)

Secrecy News Blog – an excellent source of information about national security issues.

Just Security – Just Security is based at the Reiss Center on Law and Security at New York University School of Law.

National Security Law Podcast – required listening if you are interested in national security law. (It is also entertaining.) (Law professors from U of Texas.)

Cyberlaw Podcast – required listening if you are interested in the nexus of national security and cyberlaw. (Conservative, big law orientation, but good legal discussions. I do not endorse the host’s political views.)