National Security and Law Courses at NYU Law – Fall 2019
Stephen Holmes and David Golove
This colloquium will deal with a broad range of national security issues. Following 9/11, the national security landscape was largely defined by the still continuing war against terrorism, which gave rise not only to conflicts on several continents with non-state actors (e.g., al Qaeda and ISIS), but also to the wars in Iraq and Afghanistan. More recently, new kinds of national security dilemmas have increasingly taken center stage: Great power competition between the United States and China and the United States and Russia; the prospect and reality of nuclear proliferation on the Korean peninsula and in the Middle East; the emergence of increasingly sophisticated, and the widespread availability of, cyber weapons; and the much discussed breakdown of the liberal international legal order, characterized by intensifying threats to global institutions like the European Union, the World Trade Organization, the NATO Alliance, as well as to democracy itself from the rise of so-called populist parties. The international, constitutional and administrative law issues this new landscape implicates are legion, and we will be considering a variety of them in the papers and other writings that visiting experts will present each week in this Colloquium. The Colloquium aims to foster productive discussion on these issues between legal academics, serious journalists and historians, and government officials with practical experience.
The study of international and transnational law concerning international humanitarian law, human rights law, and national security has grown enormously in recent years. The colloquium provides students with the opportunity to engage this area of scholarship by bringing to the seminar leading academics producing some of the most interesting new work. Our distinguished guest speakers will generally present a work-in-progress. Students will write reaction papers and participate actively in class discussion. Some sessions of the colloquium will be reserved for meetings for students only without outside speakers. Students will have a choice as to which weeks they write a reaction paper. The seminar will bring through great scholars including: Tom Dannenbaum, Laura Dickinson, Monica Hakimi, Oona Hathaway, Alex Moorehead, Adil Haque, Rebecca Ingber. Their paper topics include “Indeterminacy in the Law of Armed Conflict,” “Specifying the Criminal Wrong of Starvation,” “Air Operations and Human Rights Law: Issues of Extraterritorial Jurisdiction,” and “National Security Policymaking in the Shadow of International Law.” The seminar will be an intellectual feast with highly collegial and engaging discussions.
Tuesdays and Thursdays, 9:00-10:50am
This course provides an introduction to the subset of international law relating to the conduct of war – known as international humanitarian law (IHL) or the law of armed conflict. The course will also explore some of the deeper themes that emerge in this area of law. We will consider topics such as the definition of armed conflict; the concept of “unlawful combatants;” the power to detain, capture, and kill; the treatment of civilians and prisoners-of-war; and emergent issues such as drones and cyber warfare. Familiarity with public international law is helpful, but not necessary, to participate in the course. The textbook for the course is: Corn, G. S. et al. (2018). The Law of Armed Conflict: An Operational Approach (2nd ed.). Wolters Kluwer. This book is available for purchase at the NYU Bookstore.
Lisa Monaco and Andrew Weissmann
This seminar will focus on the formation of national security law and national security policy, and the dynamic interactions between those two areas. We will analyze the relationships among the three branches, the different institutional actors within the executive branch, and the interaction between U.S. national security agencies and their counterparts abroad. Specific topics will include intelligence, counterterrorism, and the role of the courts in national security, and cybersecurity, among others. In an era in which the United States seems to be asking fundamental questions about its role in the world, we will surface and examine some of the core assumptions animating U.S. national security law and policy in the post-World War II era.
Tuesdays, 2:00-3:15pm; Thursdays 1:00-2:15pm
This class will focus on constitutional issues surrounding the conduct of foreign affairs, war, presidential vs. congressional powers, and the role of the courts in national security. Few areas of constitutional law have been so persistently controversial, including and even especially in recent decades, and in few have the major issues remained unsettled despite seemingly endless debates through the whole course of U.S. history. We will begin the class with an historical excursion, examining how these issues were understood and debated at three crucial junctures in U.S. history, the Founding, the Civil War and World War II, the precedents from which still figure centrally in constitutional debates and court decisions. We will then turn to the present post-September 11, and now the Trump, era and examine a range of critical issues: The treaty power and executive agreements, including so-called non-binding agreements like the Iran Nuclear Deal and the Paris Climate Change Agreement; the President’s power to terminate treaties; the self-executing treaty doctrine; the role of customary international law in the U.S. constitutional order; the power of the President to initiate military hostilities; presidential and congressional powers in the conduct of war, including the power of military detention and trial, intelligence gathering, the use of coercive interrogation, and domestic surveillance; executive privilege; the law pertaining to national emergencies; and the role of the courts in war and foreign affairs.