The University of Puget Sound Department of Politics & Government

PG 338/Constitutional Law of U.S. National Security Spring 2016

Professor Seth Weinberger E-mail: sweinberger@pugetsound.edu Phone: 879-2994 Office: WY 214 Office Hours: Mondays & Wednesdays 10:00 AM 11:30 AM and 1:00 PM 3:30 PM; Tuesdays & Thursdays 10:00 AM 11:30 AM; Fridays by appointment. Course Location: WY 204 Course Hours: Mondays and Wednesdays @ 2:00 PM 3:20 PM Course Overview: The course will examine the constitutional law of U.S. national security policy. It will explore classic constitutional issues, such as separation of powers, war powers of the president and Congress, the role of international law, and treaty-making, as well as contemporary policy issues, such as the use of drones to kill American citizens suspected of being members of international terrorist organizations, the internment of suspected terrorists, and the question of the legal authority under which the U.S. conducts military operations against ISIS. The course begins with an introduction to the study of constitutional law, with particular focus on the constitutional law of U.S. national security policy and foreign relations. We consider some of the basic questions of the background of constitutional law, including different methods of constitutional interpretation. The course then moves to examine the roles of the president, Congress, and the courts in making, interpreting, and implementing constitutional law in the pursuit of U.S. foreign policy. Next, we will focus on several key issues and the attendant debates, including war powers, federalism, the powers of treaty-making, and the role of international law.

We will conclude by considering some of the crucial constitutional issues of present-day national security policy, including the use of force in Syria, the appropriate authorization for the on-going war on terror, detention policy, and the targeted killing of U.S. citizens. Class Policies:

Please, no eating in class. Drinks are allowed.

Please be on time for class.

Please, no laptops. Students with documented need for a laptop should speak to the professor. However, students may use tablets (no keyboard, must lie flat) to access Moodle readings in class.

If you have a physical, psychological, medical, or learning disability that may impact your course work, please contact Peggy Perno, Director of the Office of Accessibility and Accommodation, 105 Howarth, 253.879.3395. She will determine with you what accommodations are necessary and appropriate. All information and documentation is confidential.

Plagiarism will not be tolerated in any form or to any degree. If you are caught plagiarizing any work or committing any other violation of academic integrity, you may fail this course and will be reported to the University authorities. When in doubt, cite! If there are any questions about what to or how to cite, please ask! Please be sure to read the discussion of academic honesty in the Academic Handbook which can be found at http://www.pugetsound.edu/student-life/student-resources/student-handbook/academic-handbook/academic-integrity/. Ignorance of the concept or consequences of plagiarism and academic integrity will not be accepted as an excuse.

Late work will not be accepted. All work is due at the beginning of class on the due date (work handed in within 30 minutes following the beginning of class will be penalized one full grade). Requests for extensions will only be granted in exceptional circumstances, such as serious illnesses or family emergencies; if such a circumstance occurs, contact me immediately!

Be sure to turn off your cell phone before class. If your phone rings, I will ask you to leave class for the day. Any active use of a cell phone (texting, checking e-mail, making a call, web surfing, etc.) will likely result in you failing the class without additional warning.

Course Evaluation: Graded evaluations in this course are:

1. Class participation: 20% a. Students are expected to actively participate in class discussions

and to do so in a manner that reflects familiarity with the readings and previous class discussions. Students should be prepared to be called upon. Twice during the semester a student may obtain

immunity from being called upon by writing his or her name on a slip of paper and giving it to the professor immediately prior to the start of the days class. Only one student will be granted immunity per class; first come, first serve!

2. Case briefs: 20% a. Students will brief four or six cases over the course of the

semester. Students will sign up for cases to brief on the second day of class. Briefs will be submitted to the entire class via Moodle the night before the class period in which the case will be discussed. Instructions on how to brief cases will be handed out on the first day of class. Students may be called upon to present their briefs to the class. Each student will brief at least two long cases, and either two additional long cases or one long and three short cases.

3. Midterm Exam: 25% 4. Final Exam: 35%

a. Both exams will be take-home and both will be open-note and open-book.

Evaluation Standards: While grading is necessarily a subjective process, I strongly believe that you have a right to some insight into my expectations for your work, and how I will grade.

An A grade reflects evidence of original thinking and the ability to not just understand the concepts and theories, but to be capable of critical analysis and synthesis of seemingly unrelated ideas into an original argument. Furthermore, papers and exam answers will be well-written and organized. A B grade indicates a strong grasp of subject matter along with familiarity with the literature. Arguments will be reflective of the material covered in the course, rather than of original thought, and papers and exam answers will be well-written and organized. A C grade reflects a superficial grasp of the subject matter, with little demonstrated personal understanding of the ideas and concepts of the course. Papers and exam questions will be adequately written, but will not contain serious grammatical problems. A D grade reflects a poor understanding of subject matter and a lack of effort. Papers and exam questions will be seriously flawed and badly written.

A NOTE ABOUT THIS CLASS: I take your education very seriouslyand I assume that you do the same, if not more so. I put an enormous amount of effort into this class, from building the syllabus to planning each class, to writing paper prompts to grading your work. I try to give you the very best that I have to offer, and I expect nothing less from you in return. I expect that you give this class your full attention and your best effort. I expect that you do the readings before each class. I expect that you participate in class discussions. I expect that you ask questions when you do not understand something. I expect that you come to my office hours to further your comprehension of the material and to discuss your ideas in greater depth than we can do in class. I expect that you do not wait until the night before a due date to begin writing a paper. I expect that the work you hand in has been proofread, looks professional, and represents the very best thinking that you can do. If you do not expect to do these things, please do not take this class. Texts To Be Purchased: Foreign Relations Law: Cases and Materials, 5th edition, Curtis Bradley and Jack Goldsmith (Aspen Publishers, 2015). Restoring the Balance: War Powers in an Age of Terror, Seth Weinberger (Praeger Press, 2009). Any readings not from the above books can be found on the course Moodle site or for purchase as a course pack (338 pages) in the university bookstore. Any student having financial difficulties purchasing the textbooks should speak with the professor immediately. Course Outline and Assigned Readings 1/20 Introduction to the Constitutional Law of U.S. National Security

1. Foreign Relations Law, Overview of International Law and Institutions, xxv-xxvii.

1/25 The Constitutional Background

1. Foreign Relations Law, Historical and Conceptual Foundations, pp. 3-14.

2. The Constitution of the United States of America (in Foreign Relations Law, Appendix A).

1/27 U.S. Foreign Relations Authority 1. Foreign Relations Law, Historical and Conceptual Foundations,

pp. 14-43. 2. Dangerous Gamesmanship, Steve Coll, The New Yorker, April 27,

2015. 3. Yes, the U.S. Congress Has a Role in Foreign Affairs, Kevin Kosar,

Real Clear World, May 14, 2015. 2/1 Congresss National Security Powers

1. Foreign Relations Law, Congress and the President in Foreign Relations, pp. 137-156.

2/3 The Presidents National Security Powers

1. Foreign Relations Law, Congress and the President in Foreign Relations, pp. 157-176.

2. Obama Circumvents Laws with Signing Statements, a Tool He Promised to Use Lightly, Karen Tumulty, Washington Post, June 2, 2014.

3. How Barack Obama is Expanding Presidential Powerand What It Means for the Future, Andrew Prokop, Vox, September 9, 2014.

2/8 The Relationship Between Congress and the President

1. Foreign Relations Law, Congress and the President in Foreign Relations, pp. 176-202. NOTE: pp. 182-187 should be replaced with pp. 8-33 from the supplement; those pages are on the Moodle page. Additionally, note 10 on p. 195 should be replaced with pp. 33-38 from the supplement, also available on the Moodle page.

2. The Supreme Court Endorses the Power of the President to Defy Congress in Foreign Affairs, Julian Ku, opiniojuris.org, June 8, 2015.

3. Recognizable Power: The Supreme Court Deals a Blow to Executive Authority, Michael Glennon, Foreign Affairs, June 23, 2015.

2/10 The Role of the Courts

1. Foreign Relations Law, Courts and Foreign Relations, pp. 47-89. 2. The Legal Power of Standing, William Baude, The New York

Times, May 14, 2015.

2/15 The Relationship Between the Courts and the President 1. Foreign Relations Law, Courts and Foreign Relations, pp. 121-

135. 2. When Judges Make Foreign Policy, Noah Feldman, New York

Times, September 28, 2008. 2/17 Presidential War Powers

1. Foreign Relations Law, War Powers, pp. 607-615 and 667-692. 2. Obama Admin. Channels Cheney, Claims Unlimited War Powers,

Eli Lake, The Daily Beast, May 21, 2014. 2/22 Congressional War Powers

1. Foreign Relations Law, War Powers, pp. 585-607 & 628-650. 2. Oversight Now, Bruce Ackerman, Foreign Policy, June 11, 2013.

2/24 War Powers in the War on Terror

1. Joint Resolution of Congress Authorizing the Use of Force (September 18, 2001).

2. Authorization for Use of Military Force Against Iraq (October 22, 2002).

3. Restoring the Balance, Chapters 1 & 2. 4. Basic Principles of the War Power, Louis Fisher, Journal of

National Security Law and Policy, 5:319, 2012. 2/29 The Role of the States

1. Foreign Relations Law, States and Foreign Relations, pp. 203-261.

2. Govt Sues to Throw Out Arizona Immigration Law, Bob Christie, Yahoo News, July 6, 2010.

3/2 Treaties, Part I: Self-Execution, Last-In-Time Rule, and Separation of

Powers 1. Foreign Relations Law, Treaties and Other International

Agreements, pp. 265-287 & 319-340. 2. Tragic Isnt the Same as Illegal, Seth Weinberger, Tacoma News

Tribune, May 6, 2007. 3/7 Treaties, Part II: Federalism, Conditional Consent, and Executive

Agreements 1. Foreign Relations Law, Treaties and Other International

Agreements, pp. 288-319 & 367-389. 2. U.S. Seems Unlikely to Accept that Rights Treaty Applies to Its

Actions Abroad, Charlie Savage, The New York Times, March 6, 2014.

3/9 Treaties, Part III: Interpretation and Termination 1. Foreign Relations Law, Treaties and Other International

Agreements, pp. 340-367. NO CLASS 3/14 OR 3/16 SPRING BREAK 3/21 REVIEW MIDTERM EXAM WILL BE HANDED OUT AT THE END OF CLASS ON 3/21 AND WILL BE DUE AT THE BEGINNING OF CLASS ON 3/28. 3/23 Customary International Law, Part I: CIL as U.S. Domestic Law

1. Foreign Relations Law, Customary International Law and International Human Rights Legislation, pp. 391-408.

2. Contra CIA, Non-Self Executing Treaties Are Still the Supreme Law of the Land, Deborah Pearlstein, opiniojuris.org, October 28, 2015.

3/28 Customary International Law, Part II: CIL and Human Rights

1. Foreign Relations Law, Customary International Law and International Human Rights Legislation, pp. 408-488.

2. The Long Arm of International Law, Pierre Leval, Foreign Affairs, March/April 2013.

3. In Shell Win, Ruling Limits Jurisdiction in Foreign Rights Cases, Lawrence Hurley, Yahoo News, April 17, 2013.

3/30 Customary International Law, Part III: CIL and U.S. Domestic Law

1. Foreign Relations Law, Customary International Law and International Human Rights Legislation, pp. 489-510.

2. The War of Law, Jon Kyl, Douglas Feith, and John Fonte, Foreign Affairs, July/August 2013.

3. The Case for International Law, Harold Hongju Koh and Michael Doyle, Foreign Affairs, November/December 2013.

4/4 The Extraterritoriality of U.S. Constitutional Law

1. Foreign Relations Law, International Crime, pp. 513-550. 4/6 The Law of Extradition and Abduction

1. Foreign Relations Law, International Crime, pp. 550-584. 4/11 Constitutional Issues of the War on Terror

1. Foreign Relations Law, Terrorism, pp. 693-705. 2. The Fourth Amendment Meets the War on Terror, Slate, June

17, 2002, Eugene Volokh.

3. Theres No Such Thing as Peacetime, Rosa Brooks, Foreign Policy, March 13, 2015.

4. Law in the Time of Endless War, Robert Golan-Vilella, The National Interest, August 17, 2015.

4/13 The Status and Detention of Enemy Combatants

1. Foreign Relations Law, Terrorism, 705-726 and 741-761. 2. Restoring the Balance, Chapter 5. 3. Congressional Cowardice, Not Military Detentions, is the Real

Threat to Civil Liberty, Geoffrey Manne and Seth Weinberger, The Hill, December 16, 2011.

4. What Rights Should Dzokhar Tsarnaev Get and What Does It Matter?, Glenn Greenwald, The Guardian, April 20, 2013.

5. Tsarnaev Will Not Be Tried as Enemy Combatant: What Does That Mean?, Liz Goodwin, Yahoo News, April 22, 2013.

4/18 The Targeting of American Citizens

1. Foreign Relations Law, 790-806. 2. Memorandum for the Attorney General Re: Applicability of

Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Awalaki, US Department of Justice Office of Legal Counsel, July 16, 2010.

3. Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of al-Qaida or an Associated Force, U.S. Department of Justice.

4. Enemies Among Us: The Targeted Killing of American Members of al Qaeda and the Need for Congressional Involvement, Seth Weinberger, Georgetown Global Security Studies Review, May 2013.

5. Drone Courts: The Wrong Solution to the Wrong Problem, Steve Vladeck, justsecurity.org, December 2, 2014.

6. A Response to Professor Vladeck, Jeffrey Brand, Amos Guiora, and Steven Barela, justsecurity.org, December 16, 2014.

4/20 The Status of the AUMF

1. After the AUMF, Jennifer Daskal and Stephen Vladeck, Harvard National Security Journal, 5: 2014.

2. Ending the Forever War: One Year After President Obamas NDU Speech, Harold Hongju Koh, justsecurity.org, May 23, 2014.

3. A Tale of Two AUMFs, Robert Golan-Vilella, The National Interest, September-October 2014.

4. Iraq, Obama, and the Future of War Powers, Robert Golan-Vilella, The National Interest, August 27, 2014.

5. Is It a War? An Armed Conflict? Why Words Matter in the U.S. Fight vs, the Islamic State, Karen DeYoung, Washington Post, October 13, 2014.

6. The Legal Framework for the United States Use of Military Force Since 9/11, Stephen Preston, U.S. Department of Defense, April 10, 2015.

4/25 The Use of Force in Libya

1. Foreign Relations Law, War Powers, pp. 615-628. 2. Restoring the Balance, Chapter 3. 3. Authority to Use Military Force in Libya, White House Office of

Legal Counsel, April 1, 2011. 4. Questions for the Record Submitted to Legal Adviser Harold

Hongju Koh by Senator Richard Lugar, Senate Committee on Foreign Relations, June 28, 2011.

5. Testimony of Peter Spiro before the U.S. Senate Committee on Foreign Relations, June 28, 2011.

6. Testimony by Harold Hongju Koh before the U.S. Senate Committee on Foreign Relations, June 28, 2011.

7. Testimony by Louis Fisher before the U.S. Senate Committee on Foreign Relations, June 28, 2011.

4/27 The Use of Force in Syria

1. The Lawful Way to Fight the Islamic State, Harold Hongju Koh, Politico, August 29, 2014.

2. Three Reasons Why Obama Will Not (and Should Not) Seek Congressional Okay for ISIL Strikes, Peter Spiro, opiniojuris.org, September 8, 2014.

3. Does Obama Have the Authority to Strike in Syria? Dan Lamothe, Washington Post, September 10, 2014.

4. Obamas Betrayal of the Constitution, Bruce Ackerman, New York Times, September 11, 2014.

5. Obama Already Has Authority to Fight Islamic State, Cass Sunstein, Bloomberg View, September 15, 2014.

6. Dont Take the AUMF Bait, Seth Weinberger, The Hill, February 18, 2015.

7. Ever-Expanding Theories of Unilateral Article II War Power, Jack Goldsmith, lawfareblog.com, September 15, 2015.

5/2 Conclusion: The Scope of Presidential Power in the 21st Century 1. Restoring the Balance, Chapter 6. 2. Dismantling the Imperial Presidency, Aziz Huq, The Nation,

January 12, 2009. 3. The Need to Roll Back Presidential Power Grabs, Arlen Specter,

New York Review of Books, May 14, 2009. 4. Not a Suicide Pact: The Constitution in a Time of National

Emergency, Richard Posner, Conclusion. 5/4 REVIEW THE FINAL EXAM WILL BE HANDED OUT AT THE END OF CLASS ON 5/4 AND WILL BE DUE AT 4:00 PM ON FRIDAY, 5/13

Professor Seth Weinberger