National Security and Law Courses at NYU Law – Spring 2020

Federalist Papers Seminar

Stephen Holmes

The seminar will explore the principal themes of The Federalist Papers, including executive power, checks and balances, the judicial function, bicameralism, federalism, and the right of rebellion. Attention will also be paid to the over-representation of geographical stretch deliberately built into the Electoral College, the rules for Impeaching a treasonous President, the use of the federative principle to accomplish the goal of trans-continental expansion, the legitimacy of the constitution-making process itself, as well as to the debate with the Anti-Federalists.

Legal History Colloquium

David Golove and Daniel Hulsebosch

Modern myths to the contrary, American law has never been insulated from the wider world. Instead, it has developed in dialogue or competition with foreign sources of law, or as part of direct and indirect diplomacy. This colloquium will focus on the history of the international dimensions of the American Constitution and in particular the role of the Law of Nations as a constituent of federal law. The colloquium will alternate between public and private sessions. In the public sessions, the colloquium will discuss works-in-progress by historians or legal scholars. In the private sessions, the moderators and students will discuss reading materials that provide context for the upcoming public papers. Students will submit periodic response papers.

Lincoln, The Civil War and the Constitution: Foundations of the National Security Powers of the President and Congress Seminar

David Golove

This seminar will focus on the constitutional issues posed by the Civil War. The secession crisis that followed the election of 1860 forced into the open perhaps the most portentous constitutional question raised in U.S. history. Could states withdraw from the Union as a remedy for perceived grievances, or was the Union indissoluble, as Lincoln believed? Yet, debate over this ultimate issue had been preceded by decades of only somewhat less cataclysmic constitutional disputation over the nature of the federal system. What was the status of the Western Territories and of Congress’s powers to govern them? Did the latter include, as the Missouri Compromise had assumed but the Supreme Court denied in Dred Scott and then Senators Lincoln and Douglas had famously debated, the power to prohibit slavery in those territories? Most crucially, what was the status of slavery – the time-bomb of “property in human flesh”? Could it be eradicated and the promise of the Declaration of Independence that “all men are created equal” be redeemed? But it was not only the conflict between the sections that gave rise to profound constitutional controversies. Lincoln’s conduct of the war likewise raised fundamental questions about the nature of the Constitution’s foundational Republican principles. Could the Union both preserve itself and remain within the bounds of the Constitution? What was the constitutional status of emergency powers – the suspension of habeas corpus, the imposition of martial law rule throughout the North, the extensive employment of military (so-called arbitrary) arrests and trials of civilians before military commissions, the application of the international laws of war to enemies who were also U.S. citizens, the widespread confiscations of property (including millions of “slaves” in the Emancipation Proclamation), the imposition of naval blockades, and the passage Indemnity Acts immunizing executive officials from liability for unconstitutional acts? The intense constitutional debates that these measures engendered have been enormously influential in the development of the constitutional war powers ever since. The relationship of these questions to contemporary debates over presidential actions in the War on Terror is evident. The first portion of the course will be dedicated to considering the role of slavery in the U.S. Constitution of 1787 and the development of the United States throughout the antebellum period as an aggressive “slave-holding” republic. The issue of race and racism will be central to our discussions. The second portion will focus on the Civil War itself. Finally, we will turn to Reconstruction, and the problematic nature of the Reconstruction Amendments from the perspective of Article V of the Constitution. We will also consider the violent and ultimately successful resistance to Reconstruction in the former Confederacy, which ensured that the problem of race and racism would continue to be central to the American political order. In addition to important scholarly works on the issues, the course materials will include extensive primary source materials, including not only court opinions but also congressional debates, executive branch legal opinions, and scholarly writings and pamphlets by leading lawyers of the day.

International Humanitarian Law

Ryan Goodman

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.

Counterterrorism Intelligence Gathering and Law Enforcement Seminar

Stephen J. Schulhofer

This seminar will examine domestic intelligence-gathering and law-enforcement efforts deployed in response to the threat of global terrorism. Organizational and policy perspectives will be considered within a framework centered on governing legal powers and limitations. Topics will include state and local policing against terrorism, federal search and surveillance law (Patriot Act, Foreign Intelligence Surveillance Act, data mining, and other sophisticated forms of electronic surveillance); detention and interrogation; First Amendment concerns (infiltration and monitoring of political and religious groups); trial forums and procedures (including preventive detention, military trials and criminal prosecution); access to classified information; and the tension that arises in all these settings between needs for secrecy and oversight. In addition to its attention to salient policy questions, the seminar will seek to develop a mastery of relevant constitutional, statutory and doctrinal rules and principles. The seminar is limited to students who have previously taken a criminal procedure course that considers Fourth Amendment issues in depth.

Colloquium on Law and Security

Stephen Holmes and David Golove

Thursdays, 3:00-4:50pm

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.

Hauser Colloquium

Ryan Goodman

Wednesdays, 2:10-4:00pm

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.

International Humanitarian Law

Ryan Goodman

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.

National Security Law and Policy Seminar

Lisa Monaco and Andrew Weissmann

Tuesdays, 4:00-5:50pm

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.

The National Security Executive, the Courts, and the Constitution

David Golove

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.