Course Information

This class will be held through Zoom on TTH, 9:50-11:20 am CST for the first three weeks, subject to the LSU COVID protocols. 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 should also buy the 2021-2022 supplement. Other supplemental materials, course materials, and 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)

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.)

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

February 3

News

TBA

Assignment

Finish Chapter 6. Read Chapter 7, which is short.

Slides – Chapter 7 (Draft)

February 1

News

TBA

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 (Draft)

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.

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