National Security and Law Courses at NYU Law – Spring 2021

Colloquium on Law and Security

Rachel Goldbrenner, David Golove, and Stephen Holmes

Thursdays, 3:20-5:20 p.m.

The Colloquium will explore a broad array of emerging issues in the rapidly changing field of national security. Today, U.S. policy makers no longer see transnational terrorism as the central threat to American national security. Unchallenged American hegemony is increasingly a feature of the past. The nature of how we fight as well as how we cooperate across borders is changing. The aim of the seminar, therefore, is to define and debate the new, complex and evolving threat environment facing the country in the third decade of the twenty-first century. We will look abroad, including at deteriorating relations with an increasingly powerful China and a belligerent Russia, the threat of cyber warfare and “gray zone” tactics, the weakening of America’s traditional alliances and values, and emerging conflicts in regions such as the Middle East. And we will also focus on domestic issues in the United States, including white nationalism and systemic racism, strains on our system of democracy, challenges within our national security bureaucracy, and persistent, and growing, questions around executive powers and the adequacy of Congressional oversight. Each week we will engage with a presentation by an eminent national security expert—including former government officials, legal academics, international relations specialists, journalists, and human rights activists—as we explore the defining features and dilemmas of today’s national security law and policy. The semester’s speakers will include: Rosa Brooks, a former Defense Department official, author and Professor at Georgetown Law Center; Masha Gessen, a New Yorker staff writer and author and leading thinker on Russia and authoritarianism; Liza Goitein, the co-director of the Brennan Center’s Liberty & National Security program and expert on emergency powers; NYU Law Professor and founding Editor-in-Chief of Just Security, Ryan Goodman; Cardozo Law Professor Rebecca Ingber, a former government lawyer and scholar in international and national security law and presidential power; Robert Malley, the President & CEO of International Crisis Group and a former senior government official; Fordham Law Professor Catherine Powell, an expert in human rights, constitutional law and national security; NYU Law Professor Sam Rascoff, a cybersecurity and intelligence expert; Ganesh Sitaraman, a Vanderbilt Law Professor and author in constitutional law, economic policy, democracy, and foreign affairs; and Stephen Vladeck, a University of Texas Law Professor and commentator and litigator on national security law matters.

The National Security Executive, the Courts, and the Constitution

David Golove

Fridays 1:00-3:00 p.m.

This course will focus on constitutional aspects of foreign affairs, war, and national security. The idea is to give students an introduction to the major issues in an area of constitutional law that has been tremendously controversial over the past twenty years and, indeed, through much of U.S. history. Students will be introduced to a variety of fundamental constitutional issues pertaining to the treaty power, the role of international law in the U.S. domestic legal order, the role of the courts in resolving foreign affairs disputes, and the perennial and hugely consequential struggles between Congress and the President over control of foreign affairs, including over the so-called war powers. The materials for the course, and our discussions, will place these issues in historical context in order to provide students with a deeper, more informed understanding of contemporary constitutional debates, which often include considerable reliance on historical precedents. This approach will also illuminate important aspects of contemporary theoretical debates about constitutional interpretation, as well as help us to think more critically, and in a more informed way, about the relationship between constitutional and international law, a subject of intense controversy in contemporary law and politics. Among other topics, we will consider the treaty power and executive agreements, including so-called non-binding agreements like President Obama’s Iran Nuclear Deal and the Paris Climate Change Agreement; the President’s power to terminate treaties and executive agreements; the self-executing treaty doctrine; the role of customary international law in the U.S. constitutional order; human rights litigation in U.S. courts; 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. We will also focus on some of the more recent controversies surrounding President Trump’s unilateral executive measures – e.g., Trump’s “Muslim ban”; his national emergency declaration and the “border wall”; his use of military force in Syria; and his refusal to cooperate with congressional oversight efforts.

Hauser Colloquium

Ryan Goodman

Tuesdays 2:15-4:15 p.m.

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 reaction papers. The seminar will be an intellectual feast with highly collegial and engaging discussions.

International Humanitarian Law

Ryan Goodman

Tuesdays and Thursdays 8:50-10:50 a.m.

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.

Legislation and the Regulatory State

Samuel J. Rascoff

Wednesdays 10:40 a.m.-12:40 p.m., Thursdays 11:00 a.m.-1:00 p.m.

This course focuses on the institutions, processes and conceptual underpinnings of the contemporary regulatory state. We consider how Congress enacts laws and how administrative agencies implement them through rulemaking and other procedures. We examine the role of courts in interpreting statutes and reviewing agency action. And we pay attention to the ways in which distinctive bodies of non-judge-made law (e.g., OLC memoranda, executive orders) define the exercise of public power. Cases studies are drawn from a variety of areas, including national security.

Presidential Powers Seminar

Richard Pildes and Bob Bauer

Thursdays 5:30-7:30 p.m.

This seminar will explore major contemporary and historical controversies concerning the powers and constraints on the powers of the President. Some of the general issues studied will include the scope of unilateral executive powers; broad delegations by Congress to the President; executive privilege; the scope of congressional oversight; impeachment; the separation of powers; and the scope of judicial review of presidential actions. Readings and discussion will center on the historical development of legal doctrine on these issues and the increase in the visibility and intensity of these issues over the last several administrations. Materials will include judicial decisions as well as case studies of current and recent issues. We will examine these issues both as legal matters and from the perspective of the real-world functioning of the White House and Congress. Some of the larger themes we will explore include the growth of presidential powers over time and how presidential power should be understood in an era of highly polarized political parties. Class participation is expected. There will be no exam, but a requirement of a 20-25 paper on an approved topic related to the issues covered in the seminar.

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 Constitution and foreign policy, the role of parties in the thinking of the Framers, 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.

National Security Law and Policy Seminar

Lisa Monaco

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.

Cybersecurity Law and Technology Seminar

Randal S. Milch

We are responding to the cyber-security crisis with a hodgepodge of disconnected private and public initiatives. A comprehensive response is out of reach because there is no integrated set of laws or policies governing the threat and the response to it; the pace of technological advance far outstrips that of regulation; and governance remains fundamentally domestic while the technology of threat and response knows no boundaries. A wide variety of laws created for other situations – ranging from disparate privacy statutes, the Digital Millennium Copyright Act, surveillance statutes and sector-specific regulatory enactments – are being brought to bear as rights and responsibilities are sorted out. Technology and policy are interdependent in cyberspace. The key to intelligent application of the disparate regulatory and policy schemes – and the basis for intelligent development of law and policy – is a thorough understanding of the technology that underlies the current and future security of the Internet. At the same time, the engineers who build products and solve problems can increase the range of policy choices if they appreciate the range of policy needs and legal/compliance requirements, including those that are inefficient or counter-intuitive from an engineering point of view. This seminar — featuring lecturers from the Tandon School of Engineering and bi-weekly cybersecurity labs — aims to bring the relevant technology and the current legal landscape together, for a richer understanding of each.

Counterterrorism Intelligence Gathering, Prosecution, and Defense

Stephen J. Schulhofer

This seminar will examine domestic intelligence-gathering and law-enforcement efforts deployed in response to the threat of global and domestic terrorism. Policy concerns will be considered along with close attention to applicable 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 by civilian courts; military detention of “enemy combatants”; First Amendment concerns (infiltration and monitoring of political and religious groups); trial forums and procedures (including military trials and criminal prosecution); access to classified information; and the tension that arises in all these settings between needs for secrecy and needs for effective 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 course that considers Fourth Amendment issues in depth.

Military Justice Seminar

Eugene R. Fidell

This seminar explores the nature and function of contemporary military justice, the application of international human rights, and strategies for reform. Topics will include the role of commanders; unlawful command-, presidential-, and congressional-influence; constitutional rights of military personnel; court-martial jurisdiction and offenses; judicial independence; punishment; military commissions; and summary (nonjudicial) proceedings. We regularly consider foreign materials. Professional responsibility is an integral part of the course and will be examined in light of the ABA Model Rules of Professional Conduct and comparable service rules, with particular attention to attorney competence, conflicts of interest, mobility between prosecution and defense functions, fee arrangements, maintaining client confidences, advertising, and media relations. The textbook is EUGENE R. FIDELL, ELIZABETH L. HILLMAN, JOSHUA E. KASTENBERG, FRANKLIN D. ROSENBLATT, DWIGHT H. SULLIVAN & RACHEL E. VANLANDINGHAM, MILITARY JUSTICE: CASES AND MATERIALS (Carolina Academic Press 3d ed. 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.