Brief Course Description: Syllabus Law 654 Counterterrorism Law Seminar George Mason University Antonin Scalia Law School Spring 2018 This seminar course will provide students with exposure to the laws and policies around U.S. government counterterrorism efforts and will survey the wide range of legal issues implicated by such efforts at home and overseas. Issues to be addressed will also include international and domestic law applicable to counterterrorism activities, the authorities for the use of force, offensive operations overseas, domestic counterterrorism efforts, surveillance of terrorists, capture, detention, and interrogation of terrorism suspects, prosecutions in military commissions and domestic courts, immigration matters, and other legal authorities for addressing terrorism issues. Class Format: Seminar of 10-20 students; two credits; one two-hour class per week. Active participation in class discussions is required and students are expected to be fully prepared for each class session. Grading: Grades will be based on primarily on student s successful completion of a 20-30 page paper on counterterrorism law; class participation will provide for a discretionary one increment adjustment, as appropriate, per Scalia Law School academic regulations. Faculty Jamil N. Jaffer jjaffer@gmu.edu (202) 247-8390 (cell) John Lipsey jlipsey@gmu.edu (619) 867-8182 (cell) Office Hours: By appointment. Course Materials: The bulk of the course materials are cases or articles available on Westlaw or Lexis-Nexis or materials posted on TWEN; some of the materials may be available on the Internet also. 1
Materials posted on TWEN are indicated below and links to web-based materials are also provided. Please note that additional readings may be added over the course of the semester. As a result, students should check TWEN regularly for updated syllabi and readings. Course Assignments: Week One Introduction to Counterterrorism Law 1. The White House, Report on the Legal and Policy Frameworks Guiding the United States Use of Military Force and Related National Security Operations (Dec. 6, 2016) (only read pp. 1-43) Week Two Conceptualizing the War on Terror 1. President George W. Bush, Address to the Nation (Sept. 11, 2001) 2. President George W. Bush, Address to a Joint Session of Congress (Sept. 20, 2001) 3. President George W. Bush, Address at West Point (June 1, 2002) 4. President George W. Bush, Address on the Global War on Terror (Sept. 5, 2006) 5. John Brennan, The White House, Strengthening our Security by Adhering to our Values and Laws (Sept. 16, 2011) 6. President Barak Obama, Remarks at National Defense University (May 23, 2013) 7. Jeh Johnson, Department of Defense, The Conflict Against al Qaeda and its Affiliates: How Will it End? (Nov. 30, 2012) 8. Lisa Monaco, The White House, NYU Speech on Counterterrorism Policy (Nov. 11, 2013) Week Three International Law Frameworks for Counterterrorism Operations 1. Harold Koh, Excerpts from The Obama Administration and International Law (March 25, 2010) 2. Department of Defense, Joint Statement for the Record on the Law of Armed Conflict and the Use of Military Force (May 16, 2013) 2
3. Brian Egan, U.S. State Department, International Law, Legal Diplomacy, and the Counter-ISIL Campaign: Some Observations, 92 Int l L. Stud. 235, 235-48 (Apr. 1, 2016) Week Four Domestic Legal Framework for Counterterrorism Operations 1. Office of Legal Counsel, The President s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001) 2. Eric Holder, Remarks at Northwestern University School of Law (March 5, 2012) 3. Stephen Preston, Department of Defense, The Framework Under U.S. Law for Current Military Operations (May 21, 2014) 4. Harold Koh, Statement Before the Senate Foreign Relations Committee on the Authorization for the Use of Military Force After Iraq and Afghanistan (May 21, 2014) 5. Michael Mukasey, Statement Before the Senate Foreign Relations Committee on the Authorization for the Use of Military Force After Iraq and Afghanistan (May 21, 2014) 6. Stephen Preston, Department of Defense, The Legal Framework for the United States' Use of Military Force Since 9/11 (Apr. 10, 2015) Week Five Authorizing the Use of Force Against Terrorists 1. Public Law 107-40, Authorization for the Use of Military Force (also known as the 9/11 Authorization for the Use of Military Force ) (Sept. 18, 2001) 2. The White House, Letter from the President - Authorization for the Use of United States Armed Forces in Connection with the Islamic State of Iraq and the Levant (Feb. 11, 2015) 3. The White House, Draft Authorization for the Use of Military Force Against the Islamic State of Iraq and the Levant (Feb. 11, 2015) 4. Senators Tim Kaine & Jeff Flake, S. 1587 Authorization for the Use of Military Force Against the Islamic State of Iraq and the Levant (June 16, 2015) 5. Senators Tim Kaine & Jeff Flake, S.J. Res. 43 Authorization for the Use of Military Force Against al-qaeda, the Taliban, and the Islamic State of Iraq and Syria (May 25, 2017) 6. Secretary of State Rex Tillerson, U.S. State Department, Testimony to Senate Foreign Relations Committee on AUMF (Oct. 30, 2017) 3
7. John B. Bellinger III, Testimony on Reviewing Congressional Authorizations on Use of Force before the Senate Foreign Relations Committee (June 20, 2017) 8. Kathleen Hicks, Testimony on a New Authorization for the Use of Military Force before the Senate Foreign Relations Committee (June 20, 2017) Week Six Introduction to Offensive Counterterrorism Operations (+4+10+9+13+3+4+3) 1. John Brennan, The White House, The Efficacy and Ethics of U.S. Counterterrorism Strategy (Apr. 30, 2012) 2. The White House, Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities (May 23, 2013) 3. The White House, Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities (May 22, 2013) 4. Lisa A. Monaco, The White House, Remarks at CFR Moskow Memorial Lecture (Mar. 7, 2016) 5. Jennifer M. O Connor, Department of Defense, Applying the Law of Targeting to the Modern Battlefield (Nov. 28, 2016) 6. Executive Order 13732, US Policy on Pre- & Post-Strike Measures to Address Civilian Casualties in the US Operations Involving the Use of Force (July 1, 2016) 7. Office of the Director of National Intelligence, Summary of Information Regarding U.S. Counterterrorism Strikes Outside Areas of Active Hostilities (July 1, 2016) Week Seven Drone Strikes and Covert Action 1. Eric Holder, Department of Justice, Letter to the Senate on the Awlaki Operation (May 22, 2013) 2. Office of Legal Counsel, Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-aulaqi (July 16, 2010) 3. Stephen W. Preston, Central Intelligence Agency, Remarks at Harvard Law School (Apr. 10, 2012) Week Eight Counterterrorism Surveillance 4
1. 9/11 Commission, Excerpts from Report of the National Commission on Terrorist Attacks Against the United States ( The 9/11 Commission Report ), pp. 266-277 (2004) 2. In re: Directives [redacted] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. 2008) 3. Foreign Intelligence Surveillance Court, Opinion on Section 215 Metadata Program (Oct. 11, 2013) 4. House of Representatives, House Report on USA Freedom Act (May 18, 2015) (only read pp. 1-10). 5. House of Representative, Section-by-Section on FISA 702 Reauthorization Bill (Jan 12, 2018) Week Nine Capture and Detention of Terrorism Suspects (+21) NOTE: PROPOSED PAPER TOPICS DUE THIS WEEK 1. Hamdi v. Rumsfeld, 542 U.S. 507 (2004) 2. Boumediene v. Bush, 553 U.S. 723 (2008) 3. Al-Bihani v. Obama, 590 F. 3d 866 (2010) 4. Department of Defense, Plan for Closing the Guantanamo Bay Detention Facility (May 23, 2016) Week Ten Interrogation of Terrorism Suspects 1. Office of Legal Counsel, Memo on Interrogation Techniques Under the Torture Act (May 10, 2005) 2. Office of Legal Counsel, Memorandum Withdrawing OLC Interrogation Memos (Apr. 15, 2009) 3. Senate Intelligence Committee, Study of the CIA s Detention and Interrogation Program: Findings and Conclusions (Dec. 13, 2012) 4. Mary McLeod, U.S. State Department, U.S. Affirms Torture is Prohibited at All Times in All Places (Nov. 12, 2014) 5
Week Eleven Prosecuting Terrorists in Military Commissions NOTE: FINAL PAPER TOPICS DUE THIS WEEK 1. Hamdan v. Rumsfeld, 548 U.S. 557 (2006) 2. President George W. Bush, Speech on Military Commissions (Sept. 6, 2006) 3. Al-Balhul v. United States, 840 F.3d 757 (D.C. Cir. 2016) Week Twelve Prosecuting Terrorists in Federal Court 1. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157 (2d Cir. 2008) 2. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 177 (2d Cir. 2008) 3. New York Times, U.S. Drops Plan for a 9/11 Trial in New York City (Jan. 29, 2010) 4. David Kris, Department of Justice, Speech at the Brookings Institution (June 11, 2010) 5. New York Times, Detainee Acquitted on Most Counts in 98 Bombings (Nov. 17, 2010) 6. U.S. v. Ghailani, 733 F. 3d 29 (2d Cir. 2013) 7. U.S. v. Abu Katallah, 2017 WL 3534989 (D.D.C. Aug. 16, 2017) Week Thirteen Domestic Counterterrorism Efforts 1. Bissonette v. Haig, 776 F.2d 1384 (8th Cir. 1985) 2. Insurrection Act, 10 U.S.C. 332-34 3. Military Cooperation on WMD, 10 U.S.C. 382 4. Office of Legal Counsel, Authority for the Use of Military Force to Combat Terrorist Activities Within the United States (Oct 23, 2001) 5. Padilla v. United States, 233 F. Supp 2d. 564 (S.D.N.Y. 2002) 6. Padilla v. Hanft, 432 F.3d 582 (4th Cir. 2005) 7. Office of Legal Counsel, Memorandum Regarding OLC Domestic Use of the Military Opinion (Oct. 6, 2008) 6
Week Fourteen The Ethics of Counterterrorism Lawyering 1. Jeh Johnson, National Security Law, Lawyers, and Lawyering in the Obama Administration (Feb. 22, 2012) 2. Jamil N. Jaffer, The Ethics of National Security Lawyering: A Response to Jeh Johnson, 31 Yale L. & Pol. Rev. 173, 173-83 (2012) 3. Office of Legal Counsel, Memorandum Regarding OLC War on Terror Opinions (Jan. 15, 2009) 7