Exam Information

The exam is an in-class exam at the scheduled time, Wednesday, 4 May at 8:30, room 216. It is closed book and you will have 4 hours to complete the exam. The example will have multiple choice questions and a short essay section. The multiple-choice questions are the same format as the study questions.

Exam Q & A

I will post questions from students and my answers on this page to assure that any important information is available to all students. The most recent questions will be posted at the top.

Past National Security Law Exams

Course information

 

April 21

News

Catch up on Ukraine

Assignment

No new assigned material.

Continue discussion from last class on the legal and security issues posed by new media.

Discuss the changing nature of national security threats going forward.

Answer questions about the exam (within reason)

April 19

All slides are updated to the final version.

News

Don’t Just Freeze Russia’s Money. Seize It.

Why Is College in America So Expensive?

Not a climate issue, but you might find this interesting.

Assignment

We will finish the discussion from last class and then look at Chapter 41.  I am supplementing the material on the Pentagon Papers case. This is an important legal case, which left some questions open that have not yet been answered. It was also a key political case and is the model for subsequent attempts by government employees to influence policy through leaking classified government documents. The leaker, Daniel Ellsberg, was not a hippie peacenik, but a Marine officer and respected theoretician on game theory in war.  As Nixon fought the disclosures and attempted to discredit Ellsburg, he authorized a burglary of Ellsberg’s psychiatrist’s office to collect incriminating information. This derailed Ellsberg’s criminal prosecution and resulted in the dismissal of the charges against him. (The Attorney General himself ended up in jail for crimes related to Watergate and Nixon’s election campaigns.)  Remember, that this was a period when the press self-censored and the idea of a major newspaper publishing this type of leak was unheard of. The paper’s outside lawyers refused to advise it and told the editor to send back the papers and not look at them. Think about the different world we live in now.

Who was Daniel Ellsberg?

The Pentagon Papers: The View From The Oval Office

The Post | Official Trailer

This is Speilberg’s movie about the Pentagon Papers. You do not have to watch it for class, but it is great viewing and mostly accurate. Watch the trailer. The case riveted the public as it played out.

The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers

This is a documentary. Watch the trailer.

Read Chapter 41.

Slides – Chapter 41 (draft)

April 12

News

Sanctioning Russia Is a Form of War. We Need to Treat It Like One.

Podcase – Discussion with Nicholas Mulder is a historian at Cornell University and the author of the terrifyingly relevant new book “The Economic Weapon: The Rise of Sanctions as a Tool of Modern War.

Why Calls for War Crimes Justice Over Ukraine Face Long Odds

Assignment

Chapter 39

Slides – Chapter 39 (final)

Materials from class discussion

SF312 Classified Information Nondisclosure Agreement

The President Executive Order 13526 _ National Archives

Espionage Act

Resources

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 7

News

What the war in Ukraine means for energy, climate and food

Ukraine’s Zelensky questions UN Security Council’s mandate in speech on alleged Russian atrocities

Ukraine – CNNGuardian

Assignment

Finish discussion of Chapter 26

Chapter 35. Start at C. Secret Evidence p. 1096 and read to the end of the chapter.

Slides – Chapter 35 (Final)

Chapter 39 to C. Restricting Access to Sensitive Information: Security Clearances 1225

We are putting this over until next time to have time to talk about Ukraine.

April 5

News

North Korean television broadcast the country’s latest massive missile test, with feature film style editing. (March 25)

Assignment

Chapter 26

This chapter includes the Trump travel bans and the question of travel limits based on the religious identification that some of you have asked me about.

Slides – Chapter 26 (Final) 

Slides – Chapter 25 (pdf because of Poll Everywhere slides)

March 31

News

Need a bunker? – US bunker sales soar as anxiety over Russia rises

Dirty bomb ingredients go missing from Chornobyl monitoring lab

What is the risk of a nuclear accident in Ukraine? A radiation expert speaks from Kyiv.

This week’s Cyberlaw Podcast has a good discussion about what has been happening in Ukraine and the issues of tech companies such as Apple doing business with totalitarian governments.

Russian oil tankers are vanishing off the map

U.S. weighs largest ever draw from emergency oil reserve

Assignment

Read Chapter 25. Be prepared to discuss the key issues in the material and use PollEverywhere.

March 29

News

Breaking news – Judge rules Trump’s efforts to overturn election likely criminal (the opinion – Eastman v. Select Committee)

The case arises from a request for documents from the House Select Committee on Jan 6. The opinion deals with whether there is an attorney-client relationship between Prof. Eastman and President Trump, and, independent of that, whether the privilege was waived through the crime-fraud exception. There is an excellent discussion of the legal issues. The court found that some documents were privileged, but that the remainder were either not subject to the attorney-client privilege or the privilege was waived because the underlying behavior was likely a crime. (The privilege does not protect records when the attorney and the client are engaged in a criminal enterprise.) This says nothing about whether there is a basis for an indictment, only whether there is sufficient evidence of a crime to waive the privilege.

Russia-Ukraine war latest: Biden says Putin ‘cannot remain in power’

Biden: Putin comments were an expression of ‘moral outrage,’ not policy change

Online Conversation with Oleksiy Stolyarenko – 12:40 Wednesday. Details in your email from the Law School.

Local governments are attractive targets for hackers and are ill-prepared

New Orleans Ransomware Attack

Assignment

This is will be a different format class. No slides, just discussion. Be sure to figure out the difference between strategic nuclear weapons and tactical nuclear weapons and why this is key to the Ukraine situation.

Read Chapter 15 – Nuclear War (no slides)

Duck And Cover (1951) Bert The Turtle

This is an example of what we saw in school when I was a kid. This is the modern version: https://www.ready.gov/nuclear-explosion

After four decades and $200 billion, the US missile defense system is no match for a Russian nuclear attack

All intercontinental missiles are hypersonic, i.e., they travel at several times the speed of sound. What is in the press as hypersonic missiles are ones that stay low in the atmosphere, rather than going into space and coming down, making them much harder to detect and shoot down.

What Happens When a Nuclear Bomb Hits”

What if We Nuke a City?

How a small nuclear war would transform the entire planet

Long-term radiation (a few years) effects are low, as is residual radiation, at least for air burst bombs. Bombs that explode at ground level put a lot more dirt into the atmosphere and may leave more residual radiation, but we have no experience with this.

Union of Concerned Scientists, Close Calls with Nuclear Weapons (Apr. 2015)summary

Resource document, you do not need to read for class.

Blundering into a nuclear war in Ukraine: a hypothetical scenario

CRS: Nonstrategic Nuclear Weapons. Updated March 7, 2022

This is a clear guide to tactical versus strategic nuclear weapons prepared for Congress. Read pp 25-32 – Russian Nonstrategic Nuclear Weapons after the Cold War to get a sense of the Ukraine problem. Is this a meaningful distinction?

Looking forward

(Subject to revision based on unscheduled closing or world events.)

March 31 – Chapter 25

April 5 – Chapter 26

April 7 – Chapter 35

April 12 – Chapter 39

April 14 – Holiday

April 19 – Chapter 41

April 21 – Buffer day to finish material or if a class is canceled.

March 24

News

White House Releases Annual Report and Notice Concerning Legal and Policy Frameworks for War Powers – Lawfare

This is from last year at this time. Congress added a yearly summary reporting requirement to the War Powers Act. This requires a report to Congress and the release of the unclassified portion to the public. We are waiting for the public release of this year’s report.

Thunderbird Email

I mentioned last class that you could use a free email program to download a copy of your cloud account. I called it Mozzilla, which was correct about 15 years ago. It is Thunderbird.

Oil and the Ukraine War

Oil Embargo, 1973–1974

Oil Shock of 1978–79

The myth of US ‘energy independence’

These are three short items as background. The first 2 are the history that leads to the US push for “energy independence.”

The third is a recent analysis of why a supposedly energy-independent nation is still vulnerable to oil price shocks.

Assignment

Read this Lawfare post on a new case on geofencing – using google location data for a phone that is logged into google to identify who was near a crime scene at the time a crime was committed:

The Fourth Amendment and Geofence Warrants: A Critical Look at United States v. Chatrie

Read Chapter 24 and any supplement material. 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 (Final)

Resources

States v. Chatrie

March 22

News

NPR: A deepfake video showing Volodymyr Zelenskyy surrendering worries experts.

Is Vladimir Putin a war criminal, and who decides?

Podcast – Playing With Fire: Russia, Ukraine and the Geopolitics of Energy

An excellent discussion of the broad energy issues raised by the invasion of Ukraine, including how the opposition of German Greens to offshore wind, nukes, and domestic natural gas production left Germany massively dependent on Russian energy.

The weapons that are allowing the Ukrainian forces to hold back the Russians.

Stinger Missile

An oldie, dating back to the 1970s. I am sure that the electronics and targeting have been upgraded.

Javelin Weapon System

Elite Ukrainian Drone Pilots Are Reportedly Making All the Difference

Inside the cutting-edge Switchblade drones the U.S. is shipping to Ukraine

Assignment

Read Chapter 23 and any supplement material. The third-party doctrine is important for general privacy and criminal law, as well as national security. The court has begun the process of rethinking the policy in the modern world of cloud storage and virtual lives.

Slides – Chapter 23 (Final)

 

March 17

News

Keep an eye on Ukraine

UN court orders Russia to halt invasion of Ukraine (msn.com)

Russia’s war on Ukraine is driving up wheat prices and threatens global supplies of bread, meat and eggs

Russia and Ukraine between them account for almost a quarter of the world’s wheat exports. Wheat alone accounts for an estimated 20% of human calorie consumption. The US has significantly reduced wheat production over the past couple of decades to grow corn for ethanol – a program that has outlived its usefulness by about 40 years.

Assignment

We will carry over the assignment from Tuesday – Chapter 22.

 

March 15

News

Continue watching the Ukraine war for national security law issues.

China Plans To Take Advantage Of The Big Oil Exodus From Russia.

What are the strategic implications of great Chinese involvement in Russian oil?

We call on Biden to reject reckless demands for a no-fly zone

 

Assignment

We will carry over the assignment and resources from last class. Remember to read the material in the supplement.

Read Chapter 22. We will start it as we finish Chapter 21 and will complete the discussion on Thursday.

Slides – Chapter 22 (Final)

March 10

News

Keep reading about Ukraine

Nuclear Winter

Jury finds first US Capitol riot defendant to go on trial guilty on all counts

Assignment

We will finish Chapter 20. Read Chapter 21, which we will start with any remaining time after finishing Chapter 20.

Slides – Chapter 21 (Final)

Resources for Chapter 21

March 8

News

Biden expected to ban Russian energy imports today

What are the human rights law violations in Ukraine?

International court of justice to fast-track ruling on Russian invasion

International courts to investigate Russia’s Ukraine invasion

The single most damning email exchange in the new January 6 committee filing

I’ve Dealt With Foreign Cyberattacks. America Isn’t Ready for What’s Coming

JNSLP Symposium – Free Speech in the Age of Politically-Motivated Threats (March 8) – (Sahar Aziz)

Assignment

Read Chapter 20

Slides – Chapter 20 (Final)

March 3

Study Questions

I have posted some study questions on Moodle. These can help you review the materials and get a sense of what the multiple-choice portion of the exam will look like. You have until April 1st to complete them. You can repeat them and you should be able to see which ones you have wrong when you finish the quiz. (Email me if that is not working.) I will post more questions later in the course. I will also be posting old exams.

News

Read up on what is happening in Ukraine. Figure out what Swift is and why it is the most important sanction being considered.

The Lawfare Podcast: Making Sense of the Unprecedented Sanctions on Russia

Time is the key – can these work fast enough to stop the invasion?

Eastman case – Congressional Defendants’ Brief In Opposition To Plaintiff’S Privilege Assertions (2 March 2022)

Good review of the law on attorney-client privilege. Lawyers involved in the insurrection have been using ACP to resist discovery in the Congressional hearings.

Leader of Alabama Chapter of Oath Keepers Pleads Guilty to Seditious Conspiracy and Obstruction of Congress for Efforts to Stop Transfer of Power Following 2020 Presidential Election

Assignment

We will finish the discussion of Chapter 18. Read Chapter 19 and this short piece from Lawfare:

The CIA, Covert Action and Operations in Cyberspace

Slides – Chapter 19 (Final-Updated)

February 24

News

National Security Law Podcast on the invasion of Ukraine.

Excellent discusison.

Rep Garret Graves’s letter to President Biden urging him to get out of the way of unlimited oil and gas production. 

Assignment

Chapters 17 & 18

Slides for Chapter 17 & 18 (final)

Resources

National Intelligence Priorities Framework (Jan 7, 2021)

Memorandum on Renewing the National Security Council System (FEBRUARY 04, 2021)

February 22

News

Putin orders troops into pro-Russian regions of eastern Ukraine

Statement by Press Secretary Jen Psaki on Russian Announcement on Eastern Ukraine | The White House

US Agencies Say Russian Hackers Compromised Defense Contractors

Ukrainian says government websites, banks were hit with denial of service attack

Assignment

No new assignment for Tuesday. Start reading Chapters 17 & 18 for Thursday.

Resources

Executive Order on Improving the Nation’s Cybersecurity

The Cyber Social Contract How to Rebuild Trust in a Digital World

February 17

News

Ukraine defence ministry website, banks, knocked offline

Assignment

Read Chapter 14 – Cyber Operations.

I have prepared a background video on the basics of cyber attacks and the legal issues they raise. Watch this, then read the chapter. This will save spending class time on the basics. It will also allow you to pause and review issues if you get confused.

Background for Chapter 14 – Narrated PowerPoint Slides – Video

February 15

We will do an asynchronous class on Tuesday.

News

TBA

Assignment

The authors of this book are classic legal scholars, not tech nerds. (I suppose I am a tech nerd emeritus. I was heavily involved with tech earlier in my career in science and then in law for a while. Back when the Internet was young.) 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 next class talking about your attitudes about privacy and surveillance.

 

February 10

News

Gerry Adams

National Terrorism Advisory System Bulletin – February 07, 2022 02:00 pm

Assignment

We are now going to skip forward. Our text contains enough material for at least a 5-hour course. Professors in a 3-hour course choose a path through the book that focuses on a subset of the material. I like to emphasize the materials that have domestic legal implications, such as cyberwar, handling classified information (spying), and surveillance. We will skip the materials on making war and the rights of detainees. These should be covered in our international human rights course.

Read Chapter 13, Targeting Terrorists.  Be sure to read the supplement, including E. CASE STUDY: TARGETING GENERAL SOLEIMANI. Companion news story: US kills Iran general Qassem Suleimani in strike ordered by Trump

Think about how the US would feel and react if other countries were using drones to do targeted killings of US troops and civilians, especially in third countries as with the Soleimani killing. The US developed its targeted killing policy and its wide-reaching drone warfare plan when it was the only country with access to high-tech drones. That is changing. The biggest change is the commercialization of midsize drones which are capable of carrying enough explosives to do real damage or a small machine gun:

Heavy lift dones

These do not fly high or fast, but they are cheap and can be launched from the back of a pickup. Swarms of small drones with explosive charges would be even harder to protect against.

Study Guide – Chapter 13

Markup – Chapter 13

Look at these Stats on Drone Warfare – these are not rare stikes.

Scan: Trump administration: Principles, Standards, and Procedures for U.S. Direct Action Against Terrorist Targets

The supplement discusses these. They have been withdrawn and are being revised by the Biden administration.

 

 

February 8

News

Russia wins China’s backing in NATO showdown over Ukraine

Why Conservatives Should Be Eager to Deter Putin on Ukraine

Rich Lowry is the editor in chief of National Review.

Assignment

We will finish the materials from Chapter 7. Remember to check the supplement.

Read Chapter 8, which is short. Think about the Russian threat to Ukraine in the context of the material in the chapter. Add these new materials on Ukraine to the supplement: NSL Chapter 8 — The Right to Wage War.

Rather than reading all of Chapter 9, 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. I think this is a more effective presentation than in Chapter 9. Read Chapter 1 of The Commander’s Handbook on the Law of Land Warfare (2019). Study the chart on p. 1-6 that summarizes the basic principles.

Then read Chapter 9 from B. APPLYING IHL—CONFLICT CLASSIFICATION AND COMBATANT IMMUNITY, p. 286 to the end.

Slides – Chapter 8 (final)

Slides – The Law of War (final)

 

February 3

News

Biden Team Gets It Right on Inadmissibility of Torture Evidence in Al-Nashiri Case

Assignment

Finish Chapter 6. Read Chapter 7, which is short. Remember to check the supplement.

Slides – Chapter 7 (final)

February 1

Remember – we are online through 10 February!

News

An Important Development in the Law of Diplomatic Appointments

For the first time, Congress has created a statutory structure for the presidential appointment of informal foreign policy agents.

Assignment

Finish the materials from last class. Read Chapter 6 and any materials from the supplement. We will carry over what we do not finish on Tuesday to Thursday.

Slides – Chapter 6 (Final)

PDF Markup – Chapter 5 Part 1 – January-27

January 27

News

TBA

Assignment

Read Chapter 5

Slides – Chapter 5 (draft)

Standing refresher if your memory of standing from Conlaw I or Adlaw has faded. The introduction mentions Climate Change Law, but the discussion is generic and includes specific national security cases.

Video – Standing Review

Slides – Standing Review

January 25

News

D.C. Circuit Opinion in Atchley v. AstraZeneca

Just out. This is a claim under the Antiterrorism Act which allows individuals harmed by terrorism to sue entities that support terrorism. This claim is against a drug company and others. It alleges that the companies paid bribes to the Iraqi Ministry of Health, which was controlled by Jaysh al-Mahdi-linked Sadrists, and that these bribes ended up in the hands of terrorists who harmed them. The decision overrules the dismissal of the claim by the district court.

Assignment

Read Chapter 4. I have introduced most of the issues in Chapter 4 as we went through Chapter 3. That should allow us to cover the material more efficiently. I will post draft slides over the weekend. We will likely not finish this chapter in one class, but we will go as far as we have time. Some of the early issues in the chapter make more sense after you have read the latter part of the chapter.

Reminder – also check the supplement for readings connected to the chapter. There is an edited excerpt from U.S. House of Representatives v. Mnuchin which finds that Congress does have standing to bring a challenge to a violation of congressional limitations on the use of appropriated money. There is also a note on the final disposition of Trump v. Sierra Club, which ends in limbo when the Biden administration ended the state of emergency and asked the Supreme Court to remove the case from its docket.

Slides – Chapter 3 (final)

Slides – Chapter 4 (final)

January 20

News

Supreme Court rejects Trump’s bid to shield records from Jan. 6 committee.

Later in the course, we will look at the President’s ability to keep secrets. One important tool is executive privilege. Ex-president Trump invoked executive privilege to prevent the National Archives (which hold the papers of ex-Presidents) from releasing emails, visitor’s logs, and calendar entries to the Congressional Committee investigating the January 6 insurrection. The Biden administration reviewed the materials and found that they did not pose national security threats. The Appeals court found that the documents did fit into the established categories covered by Executive Privilege. The Court opined in dicta that ex-presidents could not exercise Executive privilege over the objections of the sitting president. The Supreme Court rejected President Trump’s emergency appeal. Only Justice Thomas would have granted the appeal. Justice Kavanaugh wrote separately that he disagreed with the dicta that an ex-President could not claim executive privilege. This is a well-founded objection.

Assignment

Finish Chapter 3

Slides from last class and draft slides for this class.

January 18

News

Leader of Oath Keepers and 10 Other Individuals Indicted in Federal Court for Seditious Conspiracy and Other Offenses Related to U.S. Capitol Breach

Assignment

Tip on reading the cases in the book – be sure to look for the answers to the questions in the gray box at the beginning of the case, as well as in the notes.

Continuing reading Chapter 3 to: C. The President’s Emergency Powers, p.68.

Preview of slides we will use in class (subject to revision)

Resources

The Monroe Doctrine

January 13

News

Was there a coup attempt against FDR?

As a point of reference, FDR was hated by much of the business community in the US, who feared he was a socialist. Others looked to the economic progress in Germany under Hitler and in Italy under Mussolini and argued that the US needed an authoritarian government to deal with the Depression. It was a dangerous time, but is now a footnote in history because these forces were not successful in undermining American democracy.

Assignment

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

Slides – Chapter 2

Read Parliament Over Presidents

This is 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.

Read Chapter 3 to: 2. When the President Acts in the “Zone of Twilight” in Foreign Relations, p36

January 11

News

Watch President Biden’s Full Jan. 6 Anniversary Speech

Major court hearing to test whether Trump could be liable for January 6

Free speech is a powerful bar to liability because the standard for incitement is very high.

Assignment

Read Chapter 1 in the text.

Read the news about the January 6th, 2021 invasion of the capital and think about the legal issues. Lawfare and Just Security are good starting points.

You need to set up your user name and log on for Poll Everywhere.

Poll Everywhere

You must use your real name because this will be used for class purposes. Your name will only be visible to me, and some activities will be completely anonymous.

Resources – Source of national security powers

Constitutional Powers

Congressional Powers

Declaring war

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