University of Texas School of Law

 

Seminar: National Security and the Role of the Courts

Spring 2011

Prof. Robert Chesney

 

 

 

 

 

 

 

 

Welcome to the course website. In this seminar we explore the judicial role in national security-related affairs, with a particular emphasis on two questions: whether that role has changed over time, and why it has or has not.   That question will not readily be answered by reference to developments in just one or two particular doctrinal domains, nor can it be resolved persuasively solely by reference to theoretical perspectives.  Indeed, there may be no single answer, and in some contexts the answer may simply be indeterminate.  In any event, we will do our best to come to grips with these questions through the diversity of materials we will encounter in the weekly readings, the papers students will research and write, and the presentations students will give at the end of the course. 

 

Class Policies

 

Grading:

 

There are three components to the grade in this seminar.

 

1. Attendance and discussion: 30% of final grade

 

We will have 14 sessions in this course, counting the introductory session on 1/18.  You are expected to attend all sessions, fully-prepared and ready to join the conversation every time.  You need not strive to be the most frequent participant in the discussion, but you must participate some each week.  If you truly must be absent for some appropriate reason, confirm your explanation with me in advance (or as soon thereafter as possible) in order to avoid having your grade harmed for lack of participation that week.

 

2. Research paper: 50% of final grade

 

Half your grade will be determined by a research paper/project that you will undertake under my direction.  We will work together to select an appropriate topic and approach no later than the second week of class.  You will follow a fixed drafting schedule that will not be varied except in the event of an emergency, culminating in submission of the final product on the day of your presentation (see below). 

 

In terms of the substance of your paper, the general idea is to identify a specific lens through which to explore the overarching questions guiding this seminar (see the introductory paragraph at the top of this page).  There are many options for doctrinal approaches, for example, though I am open to alternative approaches (including, for example, explorations of the political science literature). 

 

3. Paper presentation: 20% of final grade

 

The final fifth of your grade will be determined by the quality of the live presentation that you will give, based on your research paper, over the final two weeks of the seminar.  The basic idea is simple: you will have the floor for approximately 15 minutes, during which time you will set forth your research question, your methods, your findings, and your conclusions. 

 

Office Hours

 

Formal office hours are 10:30 to 11:30 on Wednesdays, but I am in my office pretty much all the time during the work week unless away at a conference and am happy to have visitors whenever. My office is 6.238 (the new area on top of the library; mine is near the top of the internal atrium staircase).  You don’t have to email in advance, but it certainly is smart to do that just to make sure I’m free when you want to come by. 

 

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The Syllabus 

 

Week 1 – Introduction to the Seminar

 

We will spend the bulk of our first session getting to know one another and getting a grasp on the basic questions around which the seminar is structured.  As to the latter, the basic idea is deceptively simple.  We seek to understand how the role of the judiciary has evolved over time, if at all, in relation to the conduct of the U.S. government’s national security-related affairs.  To facilitate that initial discussion, please come to class prepared to answer the following question:

 

What specific inquiries might shed light on this issue?  In the second half of today’s seminar, for example, we’ll begin looking at the judicial role in relation to military prisoners.  There are many other factual or doctrinal domains that similarly could be used as case studies, however; you simply need an issue that might come before a court that has national security implications, and then you need to see whether we can identify judicial treatments of that issue at reasonably separate points in time (in an ideal world the issue would arise repeatedly throughout the history of the United States, but that is rarely if ever going to be the case). Identify some that do not appear elsewhere in this syllabus, and do a bit of initial research in an effort to determine whether there has in fact been some judicial treatment of the issue over time.

 

Week 2 – Case Study #1: Judicial Oversight of Military Detention and Trial (Part I)

 

Curtis A. Bradley, The Story of Ex parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization, in PRESIDENTIAL POWER STORIES (Schroeder & Bradley, ed. 2008).  

 

Johnson v. Eisentrager, 339 U.S. 763 (1950)

 

Boumediene v. Bush, 553 U.S.  (2008)

 

Al-Maqaleh v. Gates (D.C. Cir. 2010)

 

Week 3 – Case Study #1 – Judicial Oversight of Military Detention and Trial (Part II)

 

Benjamin Wittes, “The Necessity and Impossibility of Judicial Review,” in Law and the Long War (2008) (link to be added)

 

Steve Vladeck, The Long War, the Federal Courts, and the Necessity/Legality Paradox, 43 U. Rich. L. Rev. 893 (2009)

 

Wittes, et al., The Emerging Law of Military Detention (Brookings Institution 2010)

 

 

Week 4 (NOTE: not meeting until February 15 – no class on the 8th) – Case Study #2 – The State Secrets Privilege (Part I)

 

Totten v. United States, 92 U.S. 105 (1875)

 

United States v. Reynolds, 345 U.S. 1 (1953)

 

Halkin v. Helms, 598 F.2d 1 (1978), en banc denied (Jan. 16, 1979)

 

Tenet v. Doe, 544 U.S. 1 (2005)

 

El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007)

 

Week 5 – Case Study #2 – The State Secrets Privilege (Part II)

 

Amanda Frost, The State Secrets Privilege and Separation of Powers, 75 Fordham L. Rev. 1931 (2007)

 

Robert Chesney, State Secrets and the Limits of National Security Litigation, Geo. Wash. L. Rev. (2007)

 

Mohamed v. Jeppesen Dataplan (9th Cir. Sep. 8, 2010) (en banc)

 

Week 6 – Case Study #3 – Foreign Affairs Deference

 

H. Jefferson Powell, The Story of United States v. Curtiss-Wright Export Corporation, in PRESIDENTIAL POWER STORIES (Schroeder and Bradley ed. 2008)

 

Eric Posner and Cass Sunstein, Chevronizing Foreign Relations Law, 116 Yale L. J. 1170 (2007)

 

Derek Jinks and Neal K. Katyal, Disregarding Foreign Relations Law, 116 Yale L. J. 1230 (2007)

 

Week 7 – Theory Discussion #1 – Comparative Competence

 

Harold Koh, excerpt from “Why the President Almost Always Wins in Foreign Affairs” (Executive Initiative and Congressional Acquiescence) Yale Law Journal

 

Julian Ku & John Yoo, Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch, 23 Constitutional Commentary 179 (2006)

 

Deborah N. Pearlstein, Form and Function in the National Security Constitution, Conn. L. Rev. (2008)

 

Week 8 – Case Study #4 – Justiciability and War (Part I)

 

Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800)

 

The Brig Amy Warwick (The Prize Cases), 67 U.S (2 Black) 635 (1862)

 

Luftig v. McNamara, 373 F.2d 664 (D.C. Cir. 1967)

 

Berk v. Laird, 429 F.2d 302 (2d Cir. 1970)

 

Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1970)

 

DaCosta v. Laird, 448 F.2d 1368 (2d Cir. 1971) (DaCosta I)

 

DaCosta v. Laird, 405 U.S. 979 (1972) (dissent from denial of cert., by J. Douglas)

 

DaCosta v. Laird, 471 F.2d 1146 (2d Cir. Jan. 17, 1973) (DaCosta II)

 

Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. Mar. 20, 1973) (en banc rehearing denied June 21, 1973)

 

Holtzman v. Schlesinger, 361 F. Supp. 553 (E.D.N.Y. July 25, 1973) (enjoining bombing) (stayed pending appeal)

 

Holtzman v. Schlesinger, 414 U.S. 1304 (Aug. 1, 1973) (denial of motion to vacate stay, by J. Marshall)

 

Holtzman v. Schlesinger, 414 U.S. 1316 (Aug. 4, 1973) (grant of motion to vacate stay, by J. Douglas)

 

Holtzman v. Schlesinger, 414 U.S. 1321 (Aug. 4, 1973) (reinstatement of stay, by J. Marshall)

 

Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. Aug. 8, 1973) (cert. denied)

 

Week 9 – Case Study #4 – Justiciability and War (Part II)

 

Lowry v. Reagan, 676 F.Supp. 333 (D.D.C. 1987)

 

Ange v. Bush, 752 F.Supp. 509 (D.D.C. 1990)

 

Dellums v. Bush, 752 F.Supp. 1141 (D.D.C. 1990)

 

Harold Koh, THE NATIONAL SECURITY CONSTITUTION (1990), Chapter 6 (here) and Chapters 7-9 (here)

 

Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000)

 

 

Week 10 – Theory Discussion #2 – The Imperial Presidency

 

Arthur M. Schlesinger, Jr., “Epilogue: After the Imperial Presidency,” in THE IMPERIAL PRESIDENCY (1989 ed.)

 

Jack L. Goldsmith, THE TERROR PRESIDENCY (2007) (purchase here)

 

Week 11 – Theory and Practice – Emergencies and Deference; Case Study #5 – Detainee Transfers

 

Eric Posner and Adrian Vermeule, “Chapter 1: Emergencies, Tradeoffs, and Deference,” and “Chapter 5: Institutional Alternatives to Judicial Deference,” in TERROR IN THE BALANCE (2007)

 

Korematsu v. United States, 323 U.S. 214 (1944)

 

Munaf v. Geren, 553 U.S. __ (2008)

 

Kiyemba v. Obama (D.C. Cir. Feb. 18, 2009)

 

Abdah v. Obama (D.C. Cir. Jan. 11, 2011) (dissent from denial of petition for rehearing en banc)

 

Week 12 – Presentations Round 1

 

Week 13 – Presentations Round 2

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