Professor Robert M. Chesney (homepage, scholarship)

 

                     National Security Law (Fall 2012)

 

 

 

 

 

 

 

This course surveys the framework of domestic and international laws that variously authorize and constrain the U.S. government’s pursuit of policies relating to national security.  “National security” can mean a great many things, of course, but for purposes of this course we will be concerned primarily with (i) the use of military force, (ii) the activities of the intelligence community (including both covert action and intelligence collection), and (iii) other counterterrorism-related activities (including the detention or trial of captured persons). 

 

Course Materials

 

This webpage is an integral part of the course, and you are responsible for what appears here.  Most of the reading assignments come from our casebook: Dycus, Berney, Banks, Raven-Hansen, National Security Law (5th ed.) (Amazon has it here).  Note that many assignments, however, are posted online as links or downloadable documents, particularly toward the end of the semester.  Review the syllabus below and you’ll see what I mean.  Note that the syllabus is merely a projection of the pace at which we will move through the materials.  I will be adjusting the syllabus throughout the semester to account for our actual pace, and to add in materials relating to breaking events.

 

Keeping Up With Current Events in the Field

 

Few fields have developed more over the past decade, and the pace of change has continues to be fast.  We will routinely begin class with a discussion of current developments specifically relating to (or at least plainly implicating) legal aspects of national security, and you are responsible for the content of those in-class discussions (which makes it important, obviously, to be there on time).  Those discussions will make more sense to you, of course, if you spend a few minutes the morning before class reviewing online sources that draw attention to or discuss these developments, including at a minimum my own co-authored blog, www.lawfareblog.com.  Other interesting sources include Georgetown Center on National Security and the Law’s Security Law Brief and Fordham Law’s Center on National Security’s Morning Brief. Note, too, that simply perusing the headlines on NPR, the New York Times, and the Washington Post can draw your attention to a host of emerging legal issues in this are.

 

Grades

 

Your grade will be determined entirely by the final exam given at the end of the semester, with one exception:  I reserve the right to adjust your final grade downward in the event you are (i) absent from class more than THREE times without my permission or (ii) unprepared to discuss the assignment when called upon in class on more than TWO occasions.  As for the exam, it will be an in-class, three-hour written exam involving a mix of essay questions and multiple-choice questions.  The exam will be “open book,” meaning that you may refer to whatever materials you wish so long as they are in hard copy. 

 

Office Hours

 

My fixed office hours are from 3:30 to 4:30 on Mondays and Tuesdays (my office is 6.238).  You are welcome to drop by unannounced at other times, though I recommend emailing me (rchesney@law.utexas.edu) if you want to be sure I’m there other than during office hours.  Please note that I’m also teaching Con Law this fall, and thus will be in class from 1:15 to 2:05 Tuesday through Thursday, and from 10:30 to 11:20 on Friday.

 


The Syllabus  (“CB” = Casebook)

 

UNIT I – THE U.S. CONSTITUTION AND THE DISTRIBUTION OF NATIONAL SECURITY POWERS AMONG THE BRANCHES

 

1.                    Principles Governing Separation of Powers Disputes

 

                        Youngstown Sheet & Tube Co. v. Sawyer (CB 24-44)

                        • Current events: http://www.npr.org/2012/08/26/160077178/obamas-warfare-from-power-to-a-policy (12 minute audio--listen, don’t just read the partial transcript)

 

2.                    Foreign Affairs Powers

 

• United States v. Curtiss-Wright Export Corp. (CB 52-60)

• Dames & Moore v. Regan (CB 60-67)

 

Foreign Affairs Powers Continued (Tuesday 9/4)

                       

3.                   The Power to Authorize the Use of Military Force (I)

 

• Context: Colonial and Founding Era Practice and Debates (CB 10-23)

 

4.                   The Power to Authorize the Use of Military Force (II)

 

                        • Executive Self-Authorization (CB 67-77)

 

5.                    The Power to Authorize the Use of Military Force (III)

 

                        •Executive Authorization for Narrow Forms of Force (CB 83-89)                     

 

6.                   The Power to Authorize the Use of Military Force (IV)

 

                        • Congressional Authority (CB 77-82, 90-99)

 

                        • The Authority to Use Force in Vietnam (CB 269-86)

 

7.                    Case Study: Vietnam (II)

 

                        • The Ability of Congress and the Judiciary to Check the Executive in War (CB 286-306)

 

8.                    Case Study: Vietnam (III)

 

                        • The War Powers Resolution (CB 307-22)

 

9.                    The Power to Authorize the Use of Military Force (V)

 

                        Executive Authority for Narrow Forms of Force Revisited (CB 343-54)

 

10.                 The Power to Authorize the Use of Military Force (VI)

 

                        Executive Authority for Narrow Forms of Force Concluded (CB 367-75) (SKIM ONLY)

• Memorandum from Caroline Krass, Principal Deputy Assistant Attorney General, Office of Legal Counsel, to Attorney General Eric Holder, “Authority to Use Military Force in Libya” (Apr. 1, 2011)

• Written Testimony of Harold Hongju Koh, Legal Adviser to the Secretary of State, Senate Foreign Relations Committee, “Libya and War Powers” (June 28, 2011)

 

UNIT II – INTERNATIONAL LAW AS A CONSTRAINT ON THE DECISION TO USE FORCE

 

11.                 Introduction to the U.N. Charter System, and Case Study: The Korean War

 

                        The Charter System and the Korean War (CB 210-17, 323-28)

 

12.                 Case Study: The Persian Gulf War

 

                        The Persian Gulf War (CB 328-34)

                        U.N.S.C.R. 660

U.N.S.C.R. 661

                        U.N.S.C.R. 678

                        U.N.S.C.R. 687

                        U.N.S.C.R. 688

                       

13.                Case Study: The War in Iraq

                       

                        • The War in Iraq (CB 354-67)

                        U.N.S.C.R. 1441

                        U.N.S.C.R. 1637      

 

UNIT III – THE LAW OF TARGETING AND DETENTION, AS SEEN THROUGH THE LENS OF THE WAR ON TERRORISM

 

14.                 The Field of Application of the Law of War, and an Introduction to its Treatment of Detention

 

• Excerpts from Nils Melzer, Targeted Killing in International Law (note – scanned pages are vertical and hard to read online as a result, better to print)

In re Territo

 

15.                 Detention and the Geneva Convention

 

Overview of the Geneva Conventions of 1949

- Common Article 2 (common to all four of the 1949 Geneva Conventions) defines when the full body of protections provided in the four treaties becomes applicable.  It states:

 

“Art 2. In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”

 

• “POWs”: The Geneva Convention (III) of 1949 Relative to the Treatment of Prisoners of War

- Article 21 (stating that POWs may be interned) (concentrate on the first three sentences)

- Article 118 (stating that POWs must be repatriated at the conclusion of hostilities) (concentrate on the first sentence)

- Article 4 (defining who qualifies for POW status; note that this link gives you both the text and the (long) commentary)

                                                - Article 5 (discussing procedures for resolving disputes over POW status, when status is “in doubt”)

- U.S. Army Regulation 190-8, “Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees” (1997) (This is a big document; please read ONLY section 1-6 (appearing on pages 6 and 7 of the pdf file), which implements the Article 5 system)

 

                        • “Civilians”: The Geneva Convention (IV) of 1949 Relative to the Protection of Civilian Persons

                                                - Article 4 (defining the set of persons protected by the Fourth Convention)

- Article 5 (individual security threats)

- Article 27 (focus on the final sentence, referencing measures of control and security)

- Articles 42 and 43 (internment of persons in the territory of a party to the conflict)

 

• Common Article 3 of the Geneva Conventions of 1949

 

- Each of the four Geneva Conventions of 1949 contain the following text at Article 3:

 

“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

 

• President Reagan, Message to the Senate Transmitting a Protocol to the 1949 Geneva Conventions (Jan. 29, 1987) (explaining why the Reagan administration did not support U.S. ratification of “Additional Protocol I,” a 1977 revision to the Geneva Conventions that many other countries (including most of our European allies) did ultimately join).

 

16.              Applying the Law of War Relating to Detention After the 9/11 Attacks

 

The September 18, 2001 Authorization for Use of Military Force

• President Bush, Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” (read sections 1, 2, and 3 ONLY)

• Office of Legal Counsel, Application of Treaties and Laws to al Qaeda and Taliban Detainees (read ONLY pages 6-10)

Office of Legal Counsel, Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 (Feb. 7, 2002)

• Memorandum from the President, “Humane Treatment of al Qaeda and Taliban Detainees” (February  7, 2002)

Hamdi v. Rumsfeld

 

17.             Applying the Law of War Relating to Detention After the 9/11 Attacks

 

Same readings as 17...

 

18.               The Contested Judicial Role in Relation to Military Detention

 

                        Johnson v. Eisentrager

                        • Office of Legal Counsel, “Possible Habeas Jurisdiction Over Aliens Held in Guantanamo Bay, Cuba” (December 28, 2001)

                        Rasul v. Bush (concluding that the federal habeas corpus statute applies at GTMO)

The Detainee Treatment Act of 2005 (read ONLY “Section 1005” concerning judicial review)

Hamdan v. Rumsfeld (concluding that the DTA does not apply to pending cases, and addressing whether Common Article 3 applies)

• The Military Commissions Act of 2006 (read ONLY “Section 7” concerning judicial review)

Boumediene v. Bush (holding that the Constitution requires habeas review at GTMO in these circumstances)

 

19.               A Judicial Role Beyond Guantanamo?

 

Al Maqaleh v. Gates

 

20.                Who Is Subject to Detention?

 

• Excerpt from Robert Chesney, Who May Be Held? (here) (surveying post-Boumediene caselaw on substantive scope of detention authority

• Section 1021 (and only section 1021) of the National Defense Authorization Act for Fiscal Year 2012 (here)

 

21.                 The Impact of the National Defense Authorization Act of FY ’12; Lethal Force (I)

 

• Sections 1022-1031 of the NDAA (here)

• President Obama’s February 2012 Order Implementing Section 1022 of the NDAA (here)

• The Law of War and Lethal Force: Descriptions of Customary Law Advanced by the International Committee of the Red Cross, Rules 1, 3, 4, 5, and 6:

 

1. The Principle of Distinction between Civilians and Combatants

3. Definition of Combatants

4. Definition of Armed Forces

5. Definition of Civilians

6. Civilians’ Loss of Protection

 

 

22.                 The Law Governing the Use of Lethal Force in the Counterterrorism Context (II)

 

• International Human Rights Law and Lethal Force (CB 376-86)

• The Israeli High Court of Justice Decision on Targeted Killing (CB 387-97)

• Harold Koh on the U.S. Government’s Position (here – you are only responsible for subpart “B. Use of Force” – about 10 paragraphs)

• John Brennan on the U.S. Government’s Position (full text here if you are interested, but the part you are responsible is this:

 

Remarks of John O. Brennan
Assistant to the Presidentfor Homeland Security and Counterterrorism
Program on Law and Security
Harvard Law School
Cambridge, Massachusetts
Friday, September 16, 2011

“Strengthening our Security by Adhering to our Values and Laws”

...

Nature and geographic scope of the conflict

First, our definition of the conflict. As the President has said many times, we are at war with al-Qa’ida. In an indisputable act of aggression, al-Qa’ida attacked our nation and killed nearly 3,000 innocent people. And as we were reminded just last weekend, al-Qa’ida seeks to attack us again. Our ongoing armed conflict with al-Qa’ida stems from our right—recognized under international law—to self defense.

An area in which there is some disagreement is the geographic scope of the conflict. The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to “hot” battlefields like Afghanistan. Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time. And as President Obama has stated on numerous occasions, we reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves.

That does not mean we can use military force whenever we want, wherever we want. International legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in foreign territories.

Others in the international community—including some of our closest allies and partners—take a different view of the geographic scope of the conflict, limiting it only to the “hot” battlefields. As such, they argue that, outside of these two active theatres, the United States can only act in self-defense against al-Qa’ida when they are planning, engaging in, or threatening an armed attack against U.S. interests if it amounts to an “imminent” threat.

In practice, the U.S. approach to targeting in the conflict with al-Qa’ida is far more aligned with our allies’ approach than many assume. This Administration’s counterterrorism efforts outside of Afghanistan and Iraq are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa’ida and its associated forces. Practically speaking, then, the question turns principally on how you define “imminence.”

We are finding increasing recognition in the international community that a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts. After all, al-Qa’ida does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it attacks. Nonetheless, it possesses the demonstrated capability to strike with little notice and cause significant civilian or military casualties. Over time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an “imminent” attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.

The convergence of our legal views with those of our international partners matters. The effectiveness of our counterterrorism activities depends on the assistance and cooperation of our allies—who, in ways public and private, take great risks to aid us in this fight. But their participation must be consistent with their laws, including their interpretation of international law. Again, we will never abdicate the security of the United States to a foreign country or refrain from taking action when appropriate. But we cannot ignore the reality that cooperative counterterrorism activities are a key to our national defense. The more our views and our allies’ views on these questions converge, without constraining our flexibility, the safer we will be as a country.

23.                The Law Governing the Use of Lethal Force in the Counterterrorism Context (III)

 

• The “Assassination” Prohibition in Executive Order 12,333 (CB 403-10)

• Charlie Savage, “Secret U.S. Memo Made Legal Case to Kill a Citizen,” The New York Times, Oct. 8, 2011 (note the article’s reference to the Supreme Court’s 2007 decision in Scott v. Harris and its 1985 decision in Tennessee v. Garner; please click through from the article to those cases, and at least skim them). 

• Scott Shane, “Adversaries of Iran Said to Be Stepping Up Covert Actions,” N.Y. Times (Jan. 11, 2012)

• Attorney General Eric Holder, Speech at Northwestern Law School (March 5, 2012)

 

24.                Interrogation (I)

 

• Geneva Convention (III) Relative to the Treatment of Prisoners of War

- Article 13 (requirement of humane treatment)

- Article 17 (questioning of POWs)

                        • Geneva Convention (IV) Relative to the Protection of Civilian Persons

- Article 27 (requirement of humane treatment)

- Article 31  (questioning of protected persons)

                        Common Article 3

• Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment (“CAT”)

- Review Articles 1, 2, 4, and 16

The War Crimes Act (as amended by the Military Commission Act of 2006).  Note that prior to this amendment, this statute simply incorporated Common Article 3 by reference, as a whole.  Consider the implications of this.

The Torture Act , with definitions here

 

25.                 Interrogation (II)

 

• Office of Legal Counsel, “Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340-2340A(Read pp. 1-13, 31-46)

Hamdan v. Rumsfeld (concluding that the DTA does not apply to pending cases, and addressing whether Common Article 3 applies)

• 2005 Office of Legal Counsel Memo on Cumulative Use of Enhanced Interrogation Methods (SKIM ONLY)

• 2005 Office of Legal Counsel Memo on Cruel, Inhuman, and Degrading Treatment under CAT Article 16 (pages 1-4 only)

• Executive Order 13440, Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency (July 20, 2007)

• Executive Order, Ensuring Lawful Interrogations (January 22, 2009)

 

26.                 Where to Prosecute: Military Commissions and Civilian Courts (I)

 

Ex parte Milligan

Ex parte Quirin

 

 

27.                 Military Commissions (II)

 

  President Bush, Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” (read sections 4 to the end)

• Congressional Research Service, “Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court” (here)

 

Note: In 2006’s Hamdan v. Rumsfeld, the Supreme Court held that the President could not without further statutory authority direct the establishment of military commissions for the trial of unlawful enemy combatants, as had been attempted by the President’s November 2001 order.  Congress responded soon thereafter by enacting the Military Commissions Act of 2006, which provided a statutory foundation for commission proceedings.  More recently, Congress enacted a statute (the Military Commissions Act of 2009) further refining the procedures to be used in commission proceedings.

 

• Michael Mukasey, Civilian Courts Are No Place to Try Terrorists (here)

• Andrew McCarthy, Combatants Not Defendants (here)

 

UNIT IV – Covert Action

 

28.                 Nature, Origins and Oversight

 

                        • CB 472-73, 475-88

 

29.                 Oversight Continued

 

                        • CB 503-10

                        • CB 519-21

• Re-read Scott Shane, “Adversaries of Iran Said to Be Stepping Up Covert Actions,” N.Y. Times (Jan. 11, 2012)

 

UNIT V – INVESTIGATIONS AND INTELLIGENCE COLLECTION

 

30.                National Security Investigations (I)

 

• The Fourth Amendment Context (CB 553-57)

• Electronic Surveillance and Criminal Investigations

- Federal Rule of Criminal Procedure 41

- Precedent (CB 557-58)

- Title III Warrant Applications

• Electronic Surveillance and Domestic Security Investigations (CB 558-68)

 

31.                National Security Investigations (II)

 

• The 4th Amendment and Foreign Intelligence Investigations in the U.S. (CB 568-79)

• “Electronic Surveillance” and the Foreign Intelligence Surveillance Act of 1978 (“FISA”)

- 50 USC 1801(f) (definition of “electronic surveillance” triggering FISA obligations)

- 50 USC 1803(a) and (b) (creation of the Foreign Intelligence Surveillance Court (“FISC”) and the FISC Ct of Review (“FISCR”)

                        - 50 USC 1804(a) and (d)  (elements that must be in an application for a FISA order)

- 50 USC 1801(a) and (b) (definition of “foreign power” and “agent of a foreign power”)

                        - 50 USC 1805 (a) and (b) (findings the FISC must make)

                        - 50 USC 1806(a-c), (e-g), (i) (limitations on the government’s use of FISA-derived information)

                        - 50 USC 1808 (reporting to Congress)

- 50 USC 1809 (criminal sanctions)

- 50 USC 1810 (civil liability)

                        - 50 USC 1805(f) (emergency procedures for exigent circumstances)

                        - 50 USC 1811 (the wartime exception)

• Physical searches under FISA

- 50 USC 1822(c) (authorizing FISA warrants for physical searches in the United States)

 

32.                National Security Investigations (III)

 

                        • Case Study: The “Wall” Controversy (CB 599-607)

 

33.                National Security Investigations (IV)

 

                        • Case Study: The “TSP” Controversy (CB 608-19)

 

34.                National Security Investigations (V)

 

                        • CB 620-32

 

35.                National Security Investigations (VI)

 

• The Fourth Amendment and Third-Party Records (CB 633-49)

 

                        36.                 National Security Investigations (VII)

 

                                                • Statutory Authorities to Obtain Third-Party Records (CB 649-71)

• Executive branch self-regulation and National Security/Foreign Intelligence Investigations: Read PAGES 16-24, and 31-32 of the Attorney General Guidelines for Domestic FBI Operations, and this news report commenting on the AG Guidelines and associated FBI implementation manual